Beef Industries, Inc. v. Bruer

516 S.W.2d 716, 1974 Tex. App. LEXIS 2721
CourtCourt of Appeals of Texas
DecidedOctober 29, 1974
DocketNo. 8460
StatusPublished
Cited by2 cases

This text of 516 S.W.2d 716 (Beef Industries, Inc. v. Bruer) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beef Industries, Inc. v. Bruer, 516 S.W.2d 716, 1974 Tex. App. LEXIS 2721 (Tex. Ct. App. 1974).

Opinion

ELLIS, Chief Justice.

The defendant corporation, Beef Industries, Inc., has appealed from an adverse judgment entered by the trial court in favor of John Bruer, plaintiff-appellee, for the recovery of money which he allegedly loaned to and was used by the corporation and for unpaid expenses incurred by the plaintiff in behalf of the corporation while he was its president. Affirmed.

The suit was originally instituted by John O. Bruer, plaintiff, against Beef Industries, Inc., Amarillo Industries, Inc., and John R. McCoy, defendants. Bruer alleged that he had loaned money to McCoy, who was acting individually and as an officer, director and agent for Beef Industries, Inc.; that such money was delivered to Beef Industries, Inc., Amarillo Industries, Inc., or their affiliate corporations, or employees of officers during the period Bruer was president of Beef Industries, Inc.; and that such money has never been repaid to the plaintiff. In addition, Bruer alleged that he is entitled to reimbursement for certain expenses incurred while acting as president of Beef Industries, Inc. In his suit he seeks recovery for the unpaid loans and expenses so incurred. By way of counterclaim the defendants sought damages against the plaintiff by reason of his conduct which was allegedly detrimental to the defendants’ interests. The trial court sustained McCoy’s plea to the jurisdiction, and he was thereafter dismissed as a party defendant. Also, McCoy’s counterclaim against the plaintiff was dismissed. The action against Amarillo Industries, Inc., as well as its counterclaim against the plaintiff, was severed from this cause leaving for determination in the instant case his alleged cause of action against Beef Industries, Inc., and its counterclaim against Bruer. The cause was tried before the court without a jury.

Bruer was president of Beef Industries, Inc., for a period of approximately six months beginning in January, 1972, and ending in June, 1972. However, he stated that he was not a stockholder or member of the board of directors for Beef Industries, Inc. During such period, Beef Industries, Inc., a holding company, was engaged in varied agriculture related businesses, and certain of its operations were carried on through its affiliate corporations, which included Amarillo Industries, Inc. While acting as president, Bruer wrote several checks payable to Beef Industries, Inc., and one check payable to its affiliate, Amarillo Industries, Inc. Also, [718]*718he wrote one check payable to “Beef Feeders” which was endorsed in behalf of such payee by an officer of Beef Industries, Inc. Seven checks were admitted in evidence in the aggregate sum of $17,800, and judgment was entered by the trial court awarding such sum to plaintiff and denying Beef Industries, Inc., any recovery on its counterclaim. The defendant corporation has brought this appeal from such judgment on nine points of error.

In response to defendant’s request, the trial court made and filed its findings of fact and conclusions of law, as follows:

“FINDINGS OF FACT
“1. At sundry times between February 10, 1972, and June 4, 1972, plaintiff loaned money to the defendant, totaling $17,800.00.
“2. The said money was loaned by the plaintiff to the defendant, and said money was delivered to the defendant, or its affiliate corporations and companies.
“3. The money so loaned was advanced pursuant to the agreement of the defendant to repay said money.
“4. On or about June 19, 1972, plaintiff made demand on the defendant for repayment of the amount of money loaned to said defendant.
“5. Defendant has failed and refused to pay the amount loaned to it by the plaintiff.
“CONCLUSIONS OF LAW
“1. The defendant breached the agreement to repay the $17,800.00 loaned to it by the plaintiff.
“2. Plaintiff is entitled to recover a judgment from the defendant of $17,800.00, plus interest at 6 per cent per annum from date of judgment and cost of suit.
“3. Defendant is not entitled to recover on its cross-action against plaintiff.”

It is well settled that in a non jury case the trial court is the judge of the credibility of the witnesses and the weight to be given their testimony, and the findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of a jury. Where there is evidence of probative force to support the findings and judgment of the trial court such findings are controlling on the reviewing court and will not be disturbed even though the evidence is conflicting and the appellate court might have reached a different conclusion. Curtis v. Curtis, 473 S.W.2d 636 (Tex.Civ.App.-Tyler 1971, no writ); Heard v. City of Dallas, 456 S.W.2d 440 (Tex.Civ.App.-Dallas 1970, writ ref’d n. r. e.). In the case of Tix v. Employers Casualty Company, 368 S.W.2d 105, 107 (Tex.Civ.App.-Houston 1963, no writ), the court stated:

“In determining whether there is evidence of probative value to support a finding of fact, we must examine the evidence and view it most favorably to that finding and draw all reasonable conclusions therefrom. If so viewing the evidence and drawing such reasonable inferences we conclude that a reasonable mind could reach the conclusion reached by the trier of the facts, then there is evidence of probative force and we may not disregard such finding and render judgment contrary to it.”

See also, Guerrero v. Paredes, 470 S.W.2d 921 (Tex.Civ.App.-El Paso 1971, no writ); Coastal Plains Inc. v. City of Fort Worth, 443 S.W.2d 414 (Tex.Civ.App.-Fort Worth 1969, no writ); 4 Tex.Jur.2d Rev. § 783, at 285-286.

The appellant, Beef Industries, Inc., challenged by various points of error the court’s admission into evidence and consideration of a check given and delivered by plaintiff in the amount of $3,300 with Beef Feeders as payee, and the inclusion of such amount as a part of the total judgment entered against the defendant. The appellant contends that: there is no proof that such transaction was approved by the board of [719]*719directors of appellant corporation; appel-lee admitted that Beef Feeders was not an affiliate of appellant by defining the four affiliates of the defendant corporation to be others than Beef Feeders; there was no proof that Beef Feeders was controlled by appellant corporation; there is no sameness of officers, directors, control, ownership, or circumstances to justify the trial court’s computing the $3,300 check as a corporate obligation of the appellant; and it was error to include the $3,300 amount (along with a certain $5,000 check with Amarillo Industries, Inc., as payee) as indebtedness owing to plaintiff by the appellant corporation.

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Bluebook (online)
516 S.W.2d 716, 1974 Tex. App. LEXIS 2721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beef-industries-inc-v-bruer-texapp-1974.