A's Vending, Inc. v. Texas Bank

497 S.W.2d 450, 1973 Tex. App. LEXIS 2867

• Court: Court of Appeals of Texas
• Decided: June 21, 1973
• Docket: No. 5252
• Status: Published

Opinions

HALL, Justice.

Defendants, A’s Vending, Inc., and Phil N. Weinberg, appeal from a summary judgment awarding plaintiff, Texas Bank and Trust Company of Dallas, recovery on a past due note, including interest and ten percent attorney’s fees provided for in the note, all in the total sum of $26,791.73, and foreclosure of a security agreement securing the note. The defendants are co-makers of the note and plaintiff is payee therein.

The summary judgment record supports the ruling of the trial court unless, as asserted by defendants in their first of three points of error, a material issue of fact is raised in the record regarding an offset that was not allowed defendants by plaintiff.

The first mention of offsets is contained in the affidavit of plaintiff’s senior vice-president, Irving Hitt, which was filed by plaintiff in support of its motion for summary judgment. Referring to the note, Hitt stated: “All just and lawful offsets and credits have been allowed.”

Weinberg is president of A’s Vending, Inc., and signed the note in that capacity and individually. In a verified reply to plaintiff’s motion for summary judgment Weinberg stated, on personal knowledge: “Plaintiff is holding the sum of Two Thousand, Nine Hundred Forty-three and 52/100 ($2,943.52) Dollars that belongs to Defendants, but Plaintiff has failed to offset this amount against the alleged amount owed on the promissory note which is made the basis of this suit.”

Plaintiff argues that Weinberg’s statement is a mere conclusion insofar as it asserts “that same should be offset,” and is therefore insufficient to raise a question of fact. Plaintiff relies upon the well-established rule that only admissible testimony having probative force is to be considered in ruling on a motion for summary judgment. See Rule 166-A, para, (e), Vernon’s Texas Rules of Civil Procedure; Crain v. Davis, (Tex.Sup., 1967) 417 S.W. 2d 53, 55; Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215, 216 (1956).

We disagree with plaintiff’s argument. We believe that Weinberg’s testimony that plaintiff is holding a specified sum of defendants’ money which was not offset against the note is sufficient to place in issue the truth of plaintiff’s general assertion that all proper offsets have been made. Plaintiff is the movant. Weinberg’s statement is sufficiently factual to cast upon plaintiff the burden of coming forward, if it can, with summary judgment proof which would conclusively show that it does not hold money belonging to defendants, or which would establish as a matter of law that defendants’ money held by it need not or cannot be offset against the note, before the summary judgment would be proper. Accordingly, we sustain defendants’ first point of error.

Defendants’ remaining two points are based upon alleged affirmative defenses of usury and want of consideration. We have given careful attention to these points and the contentions argued thereunder. We find them to be without merit and they are overruled.

The judgment is reversed and this cause is remanded to the trial court.

Reversed and remanded.