Whitten v. Alling & Cory Co.

• Decision Date: 17 July 1975
• Docket Number: No. 844,844
• Citation: 526 S.W.2d 245
• Court: Texas Court of Appeals
• Parties: Lindsay H. WHITTEN et al., Appellants, v. ALLING & CORY COMPANY, Appellee.

Page 245

526 S.W.2d 245

Lindsay H. WHITTEN et al., Appellants, v. ALLING & CORY COMPANY, Appellee.

No. 844.

Court of Civil Appeals of Texas,

Tyler.

July 17, 1975.

Parnass & Hill, Larry S. Parnass, Irving, Dennis R. Croman, Dallas, for appellants.

Allen, Knuths, Bracken & Short, Tedford E. Kimbell, Dallas, for appellee.

MOORE, Justice.

Plaintiff-appellee, Alling & Cory Company, instituted suit against appellants, Lindsay H. Whitten and Harold D . Sewell, alleging a breach of a written surety agreement in which appellants guaranteed payment of the debts of Goodway, Inc., to the extent of $50,000.00 for goods and merchandise sold to Goodway, Inc. Appellants answered with a general denial and among other defenses set up a plea of failure of consideration. After a trial before the court sitting without a jury, the trial court rendered judgment in favor of appellee, Alling & Cory Company, for the sum of $49,909.02 together with interest, attorney's fees and costs. Appellants duly perfected this appeal.

We affirm.

The trial court filed extensive findings of fact and conclusions of law, finding among othr things, that: (1) during the early part of 1972, Goodway, Inc., began to experience financial difficulty to the extent that by the summer of 1972, Alling & Cory Company began supplying Goodway with its paper products only on a C.O.D. basis, (2) during this period of time, the appellants were attempting to acquire the assets of Goodway, Inc., and were interested in keeping Goodway in business until they could complete their arrangements to purchase the company, (3) during the month of October, 1972, Goodway, Inc., placed certain orders for paper with Alling & Cory Company and was unable to pay on a certified check--C.O.D. basis, (4) Goodway was in immediate need of such paper in order to maintain its manufacturing operations and to fill certain orders which it had received, (5) at this time, Whitten and Sewell approached Alling & Cory Company and requested that the paper be shipped to Goodway on a credit or open account basis, in return for which Whitten and Sewell agreed to unconditionally guarantee, as sureties, the due and punctual payment, in accordance with the terms of sale, of the indebtedness incurred by Goodway for goods and merchandise sold by Alling & Cory to Goodway up to a maximum amount of $50,000.00. The appellants agreed that such guarantees could be reduced to writing and that they would execute a written agreement setting forth such guarantees, (6) in consideration of the guarantees and agreement of the appellants, Alling & Cory Company proceeded to deliver and release certain orders already received from Goodway and to fill other orders on a credit and open account basis, (7) during the months of October and November, 1972, Alling & Cory sold to Goodway on an open account basis goods and merchandise at an agreed price of $49,909.02, which was delivered to and accepted by Goodway, Inc., (8) on November 22, 1972, in accordance with the previous oral agreement, Sewell and Whitten signed a written suretyship agreement which read in part, 'That in consideration of the sale, on credit, of goods and merchandise by ALLINg (sic) & CORY COMPANY ('Alling & Cory') to GOODWAY, INC. and its subsidiaries ('Goodway'), the undersigned, as surety, hereby unconditionally guarantees the due and punctual payment in accordance with the terms of sale of all indebtedness, whether such indebtedness now exists or is hereafter incurred, owed by Goodway to Alling & Cory for all goods and merchandise sold by Alling & Cory to Goodway,' (9) it was the intention of the parties that the written instrument dated November 22, 1972, constitute their agreements and guarantees concerning the sale on credit of goods and merchandise by Alling & Cory to Goodway, Inc., in October and November, 1972, (10) after the credit on the open account reached the sum of $49,909.02, in the middle of November, 1972, Alling & Cory refused to extend further credit and sold Goodway nothing on credit after the written suretyship agreement was executed on November 22, 1972, (11) Goodway, Inc., has never at any time paid for the paper sold on credit to it during the months of October and November, 1972, and was, at the institution of this suit, and still is indebted to Alling & Cory in a sum in excess of $200,000.00, (12) in accordance with the terms of the sale, the indebtedness due for the goods and merchandise sold on credit to Goodway, Inc., by Alling & Cory Company in October and November of 1972 in the amount of $49,909.02 was due on December 10, 1972, (13) demand was made upon Sewell and Whitten to pay the sum of $49,909.02 to Alling & Cory on December 21, 1972, but such sum was never paid, (14) a reasonable attorney's fee for representing the plaintiff in the trial of this cause is $5,000.00, (15) a reasonable attorney's fee to represent the plaintiff in this cause in an appeal to the Court of Civil Appeals is $1,000.00, (16) a reasonable attorney's fee to represent the plaintiff in this cause in a further appeal to the Supreme Court of Texas is $1,000.00.

The foregoing findings of fact have not been challenged by any of appellants' points of error. Such findings therefore constitute undisputed facts and are conclusive and binding on appellants as well as this court. Curtis v. National Cash Register Co., 429 S.W.2d 909 (Tex.Civ.App., Amarillo, 1968, writ ref., n.r.e.); Curry v. E. E. Stone Lumber Co., 218 S.W.2d 293 (Tex.Civ.App., El Paso, 1948, writ ref., n.r.e.).

By their first point, appellants urge that the trial court erred in rendering judgment against them on the basis of the suretyship agreement. First, they argue that at the time of the delivery of the merchandise, the suretyship agreement was oral. Therefore, they argue that the agreement was void because in contravention of the Statute of Frauds which provides that a promise to stand good for the debts of another must be in writing. Section 26.01(b)(2), Business and Commerce Code, Vernon's Ann.Tex.Statutes....