Watson v. Cargill, Inc., Nutrena Division, 5901
| Decision Date | 28 September 1978 |
| Docket Number | No. 5901,5901 |
| Citation | 573 S.W.2d 35 |
| Court | Texas Court of Appeals |
| Parties | Bobby Lee WATSON, Appellant, v. CARGILL, INC., NUTRENA DIVISION, Appellee. |
Andy J. McMullen, McMullen, Connally, Robertson, Jordan, Holliman & Campbell, Inc., Hamilton, for appellant.
John L. Bates, Waco, for appellee.
Plaintiff-Appellee Cargill, Inc., Nutrena Feed Division, brought this suit for Quantum meruit to recover $4,554.72, alleged to be the reasonable value of dairy cattle feed sold and delivered by plaintiff to defendant-appellant Bobby Lee Watson on "a running account" in the regular course of business at defendant's instance and request. Plaintiff sued also for reasonable attorney's fees in the amount of $1,518.24. Defendant answered with a general denial, and with special pleas that (1) part of the account sued upon was barred by the two-year statute of limitation and (2) that he was not indebted to plaintiff on the last four sales sued upon because, by agreement of the parties, he had paid for each on delivery, but plaintiff had erroneously credited those payments to the oldest charges on his account. During the course of the trial, by way of trial amendment, defendant also pleaded that plaintiff had charged him usurious interest on the account subjecting plaintiff to the penalties set forth in Article 5069-1.06, for which he prayed recovery.
Trial was to the court without a jury. During the hearing the court determined that defendant's plea of limitation was good, and refused to hear evidence proffered by plaintiff relating to the portion of the account which allegedly fell within the two-year limitation period. Plaintiff perfected its bill of exception on that proof. After the trial, the court sustained defendant's plea of payment on delivery of the last four purchases from plaintiff, but denied defendant any recovery on his pleadings of usury. Under those rulings judgment was rendered for plaintiff for $1,192.41 on the account, plus $500.00 attorney's fees.
Express findings of fact and conclusions of law were neither requested by the parties nor filed by the court. Therefore, it must be presumed that all necessary fact findings were impliedly made by the court in support of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950).
Both parties complain on appeal. Defendant asserts (1) the court erred in allowing plaintiff any recovery on the account because there was no evidence of delivery or value of the feed sold to him; (2) the court erred in allowing plaintiff attorney's fees because when this case was tried and determined there was no legal basis for such fees; and, (3) under the undisputed evidence, the court erred in failing to award defendant the penalties under the usury statutes, including an award of reasonable attorney's fees. Plaintiff contends the court erred (1) in affirming defendant's plea of limitation and failing to consider plaintiff's proof as to all the open accounts; and (2) in holding that plaintiff could not credit cash payments made by defendant on the last four deliveries to the oldest unpaid invoices on the account.
This case was originally filed by plaintiff on January 9, 1976, in the 19th Judicial District Court in McLennan County, as a suit on verified open account under the provisions of Rule 185, Vernon's Tex.Rules Civ.Proc., for the sum $4,554.72. The following itemized statement of account was attached to plaintiff's original petition in support of the suit:
STATEMENT OF ACCOUNT
Date Transaction Charges Credits Balance
------- -------------- ------- ------- --------
1-13-75 Invoice #68497 478.80 478.80
1-17-75 Invoice #68555 875.77 1,354.57
1-20-75 Invoice #68572 589.40 1,943.97
1-24-75 Invoice #68630 978.67 2,922.64
1-27-75 Invoice #68652 705.51 3,628.15
1-31-75 Invoice #68719 926.57 4,554.72
Copies of the six invoices listed on the statement of account were also attached to the original pleadings as exhibits.
On February 10, 1976, on defendant's plea of privilege, the case was transferred to Hamilton County.
On February 18, 1977, after the case was docketed in the District Court in Hamilton County, plaintiff filed its first amended original petition, which was also in the nature of a suit on verified open account. However, the statement of account attached to the amended petition was as follows:
Again, the invoices attached to the amended petition were only the last six listed on the statement, being the same invoices attached to plaintiff's original pleadings.
When the case was called for trial on February 22, 1977, plaintiff's counsel conceded the merit of an exception made by defendant attacking the validity of the affidavit attached to plaintiff's amended petition; admitted that "we do not now have a verified account"; and stated to the court that he would proceed on "a quantum meruit basis . . . and not under Rule 185." The case proceeded on that basis.
Defendant's plea of the two-year statute of limitation, Article 5526, Vernon's Tex.Civ.St., was made to all transactions and charges shown on the statement of account attached to plaintiff's amended petition which were not shown on the statement of account attached to the original petition. As we have said, the court sustained the plea. Plaintiff contends the ruling was erroneous, and we agree.
The limitation question is controlled by the applicability of Articles 5526 and 5539b, Vernon's Tex.Civ.St. Article 5526 sets forth certain actions which must be brought within two years. It provides in part as follows:
Article 5539b is concerned with limitation as affecting amended and supplemental pleading, and it reads as follows
We agree with defendant's argument that each item on the open account was a separate transaction between the parties, but we believe that plaintiff's original petition embraced the whole account, and that the amended petition was simply an enlargement and amplification of the facts of the account originally sued upon. In both pleadings, plaintiff sought the same balance due on the account of $4,554.72. To reach this balance as pleaded originally and by amendment required the application of all payments made by defendant to the oldest transactions, a procedure contested by defendant. It was plaintiff's application of the payments in that fashion which brought...
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...interpreting similar statutes. See State ex rel. Turner v. Altoona, 274 N.W.2d 366, 367 (Iowa 1979); Watson v. Cargill, Inc., 573 S.W.2d 35, 42 (Tex.Civ.App.1978); Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973)......
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