W.H. McCrory & Co., Inc. v. Contractors Equipment and Supply Co., 13944
| Decision Date | 06 March 1985 |
| Docket Number | No. 13944,13944 |
| Citation | 691 S.W.2d 717 |
| Parties | W.H. McCRORY & CO., INC., Appellant, v. CONTRACTORS EQUIPMENT AND SUPPLY COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Arch M. Skelton, Besing, Murphy & Armstrong, Dallas, for appellant.
Gary W. Javore, Gregory B. Grigsby, Johnson & Christopher, San Antonio, for appellee.
Before SHANNON, C.J., and EARL W. SMITH and GAMMAGE, JJ.
ON MOTION FOR REHEARING
Our opinion of December 12, 1984, is withdrawn and the following opinion is handed down in lieu thereof.
Appellant W.H. McCrory & Co., Inc., seeks to set aside a take-nothing judgment rendered by the district court of Travis County upon appellee Contractors Equipment and Supply Company's (CESCO) motion for judgment non obstante veredicto. This Court will affirm the judgment.
McCrory pleaded an oral contract to lease a used forklift from CESCO. McCrory had negotiated the oral contract with CESCO's president, Bob Mott. By the terms of the alleged oral contract, McCrory claimed an option to purchase the forklift for $40,000 and to receive credit for ninety percent of its previous rental payments toward that purchase price. Thereafter, the president of CESCO died.
When McCrory queried the new owners of CESCO concerning the exercise of the alleged option, CESCO finally denied the existence of the option, and claimed instead that the lease agreement between CESCO and McCrory was embodied in a written instrument which had been delivered to McCrory along with the forklift. The written instrument did not confer upon McCrory an option to purchase the forklift. McCrory thereafter stopped making rental payments.
CESCO later offered to sell the forklift to McCrory for $54,000 and to credit sixty percent of McCrory's previous rental payments towards that price. McCrory rejected this offer and later purported to exercise its alleged option to purchase the forklift under the claimed oral contract by sending a letter and a check to CESCO.
CESCO sued McCrory for past-due rentals of $15,009.14 under the claimed written lease agreement and for attorney's fees. In its answer, McCrory filed a counterclaim pleading the oral contract containing the option to purchase the forklift. McCrory sought, among other things, specific performance of the oral contract by CESCO's delivery of a bill of sale showing McCrory as the owner of the forklift free and clear of any indebtedness. CESCO's defense to the counterclaim was the Statute of Frauds. Tex.Bus. & Com.Code Ann. § 2.201 (1968).
In response to special issues, the jury (1) refused to find that a written contract was made between CESCO and McCrory for rental of the forklift; (2) found that the oral contract between CESCO and McCrory contained an option to purchase the forklift; (3) found that McCrory exercised its option to purchase within the time specified or within a reasonable time, if no time had been specified; and (4) found that no money was due and owing from McCrory to CESCO; and (5) found that the reasonable rental value of the forklift was $1,900 in addition to tax.
The judgment, by its terms, overruled CESCO's motion for judgment non obstante veredicto in part and granted it in part. The district court concluded in the judgment that there was some evidence warranting the jury's refusal to find that a written contract existed between the parties and some evidence warranting the jury's finding that the oral contract between the parties contained an option to purchase the forklift. On the other hand, the district court concluded the option contract violated the Statute of Frauds and was, therefore, unenforceable. The court concluded further that there was no applicable exception to the Statute of Frauds. The district court determined further that McCrory failed to prove the terms of the option contract and that had McCrory proved up the terms of the oral contract, CESCO would be entitled to an offset for the reasonable rental value of the forklift, as found by the jury. The judgment provided, accordingly, that CESCO take nothing by its suit and, as well, that McCrory take nothing by its counterclaim.
In rendering the judgment, the district court necessarily must have concluded, among other things, that the evidence established as a matter of law that the oral contract was in violation of the Statute of Frauds and that, McCrory as the party seeking to avoid the effect of application of that defense, had the burden to request the submission of special issues the answers to which would establish an exception to the statute.
Only McCrory perfected an appeal from the judgment; however, CESCO complains by cross-points of that part of the judgment denying its recovery.
McCrory contends on appeal that the district court erred in concluding that enforcement of the option to purchase under the oral contract would violate the Statute of Frauds. McCrory argues further that CESCO waived the Statute of Frauds defense by not requesting special issues inquiring whether exceptions to the Statute of Frauds were applicable.
The Statute of Frauds of the Texas Business and Commerce Code provides as follows:
§ 2.201.
(a) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(b) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of Subsection (a) against such party unless written notice of objection to its contents is given within ten days after it is received.
(c) A contract which does not satisfy the requirements of Subsection (a) but which is valid in other respects is enforceable
(1) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or
(2) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
(3) with respect to goods...
To continue reading
Request your trial
-
Texas Farmers Ins. Co. v. Soriano
...v. C-E Natco, 749 S.W.2d 603, 606 (Tex.App.--Houston [1st Dist.] 1988, writ denied); W.H. McCrory & Co. v. Contractors Equip. & Supply Co., 691 S.W.2d 717, 721 (Tex.App.--Austin 1985, writ ref'd n.r.e.); see also TEX.R.APP.P. I. ELEMENTS OF CAUSE OF ACTION IN UNDERINSURANCE CASE. Given the ......
-
Texas Commerce Bank Reagan Through Texas Commerce Bank Nat. Ass'n v. Lebco Constructors, Inc.
...on December 20, 1990, and the trial court again denied Lebco's motion.8 But see W.H. McCrory & Co. v. Contractors Equipment and Supply Co., 691 S.W.2d 717, 721 (Tex.App.--Austin 1985, writ ref'd n.r.e.) (motion for j.n.o.v. filed before judgment does not adequately apprise the trial court o......
-
Adams v. H & H Meat Products Inc.
...other grounds by Formosa Plastics v. Presidio Eng'r, 960 S.W.2d 41, 47 (Tex. 1998); W.H. McCrory & Co. v. Contractors Equip. & Supply Co., 691 S.W.2d 717, 720-21 (Tex. App.--Austin 1985, writ ref'd n.r.e.); see also Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 881 (1962) (party seeking t......
-
HOW Ins. Co. v. Patriot Financial Services of Texas, Inc.
...trial court's rendition of judgment for such damages. Tex.R.App.P. 52(a) (Supp.1989); see W.H. McCrory & Co. v. Contractors Equip. & Supply Co., 691 S.W.2d 717 (Tex.App.1985, writ ref'd n.r.e.); Siegler v. Williams, 658 S.W.2d 236 (Tex.App.1983, no writ). Point of error eight is In their fi......