Texan Man's Shop, Inc. v. Nunn-Bush Shoe Co.
| Decision Date | 31 March 1966 |
| Docket Number | NUNN-BUSH,No. 190,190 |
| Citation | 401 S.W.2d 716 |
| Parties | TEXAN MAN'S SHOP, INC., et al., Appellants, v.SHOE COMPANY, Appellee. . Corpus Christi |
| Court | Texas Court of Appeals |
Rankin, Kern & Martinez, by Stonewall Van Wie, III, McAllen, for appellants.
Kelley, Looney, McLean & Littleton, by D. F. Martinak, Edinburg, for appellee.
Suit on sworn account instituted by appellee, plaintiff below, against appellants and others, defendants below.
In a non-jury trial the lower court rendered judgment in favor of appellee against appellants Texan Man's Shop and C. M. Hickman, jointly and severally, for the amount of $2,560.05, which included $500.00 for attorney's fees. Judgment was also rendered that appellee take nothing against two other defendants, but such action is not involved in this appeal. The trial court made and filed original and amended findings of fact and conclusions of law.
Appellants urge thirteen points of error, which are replied to by appellee's six counterpoints. Appellants' points 1, 2, 3 and 4 assert, in substance, that the evidence was legally and factually insufficient to authorize a finding that the goods had been shipped or delivered to appellant Texan Man's Shop, Inc., and their points 6, 7, 8 and 9 urge the same contentions as to appellant C. M. Hickman; points 10 and 11 assert legal and factual insufficiency of the evidence to authorize a finding that the goods were ever sold to or bought by Hickman in his indicidual capacity; point 12 asserts that there is no evidence concerning reasonableness of attorney's fees awarded to appellee; point 13 asserts error of the trial court in overruling three special exceptions to appellee's petition based upon the sworn account; point 5, the remaining point not heretofore mentioned, asserts that the trial court erred in admitting into evidence the account and supporting invoices of appellee.
The trial court found, among other things, that 'Goods, wares and merchandise as reflected in copies of invoices attached to Plaintiff's First Amended Original Petition as Exhibit 'C' were shipped to Texan Man's Shop, Inc.' There was no express finding concerning delivery to C. M. Hickman. The trial court concluded that Texan Man's Shop, Inc., and C. M. Hickman were jointly and severally liable to appellee in the sum of $2,060.05 for goods, wares and merchandise sold to Texan Man's Shop, Inc., and for reasonable attorney's fees in the amount of $500.00, and that appellee failed to prove its cause of action based on an account of Texan Man's Shop, Inc., assigned to appellee by Newton Manufacturing Company.
A review of the Statement of Facts and the exhibits referred to by the trial court leads to the conclusion that the evidence is factually insufficient to support findings that the goods had been delivered to either Texan Man's Shop, Inc., or C. M. Hickman. Appellants' points 2 and 7 which assert factual insufficiency on the issue of delivery must be sustained.
Appellee's petition was based upon a sworn account for goods, wares and merchandise allegedly sold and delivered to appellants. The appellants filed a proper sworn denial which placed the burden upon appellee to establish each and every item of its account by legal and proper evidence. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941).
The evidence presented by appellee consisted of the testimony of two witnesses and certain exhibits. The testimony of the witness Hugh Cole is not...
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