Brunswick Corp. v. Suburban Bowling, Inc.

398 S.W.2d 294, 1965 Tex. App. LEXIS 2376
CourtCourt of Appeals of Texas
DecidedNovember 26, 1965
DocketNo. 4015
StatusPublished
Cited by1 cases

This text of 398 S.W.2d 294 (Brunswick Corp. v. Suburban Bowling, Inc.) 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
Brunswick Corp. v. Suburban Bowling, Inc., 398 S.W.2d 294, 1965 Tex. App. LEXIS 2376 (Tex. Ct. App. 1965).

Opinion

COLLINGS, Justice.

Brunswick Corporation brought suit against Suburban Bowling, Inc., seeking a deficiency judgment, on two promissory notes secured by chattel mortgages on bowling equipment. The defendant answered by a general denial and, among other defenses, alleged that the bowling equipment covered by such chattel mortgages had been voluntarily surrendered and delivered by defendant to the plaintiff in August 1963, and accepted by plaintiff under an agreement that plaintiff would accept the equipment in full and complete satisfaction, accord and cancellation of the notes sued upon, and that the defendant was thereby released from further obligation in connection therewith. The trial was before the court without a jury and judgment was rendered that the plaintiff take nothing. Brunswick Corporation has appealed.

[295]*295Appellant urges two points of error contending that the court (1) erred in admitting the testimony of the witness Samuel E. Dale as to out of court statements of alleged agents of appellant, because such testimony was in violation of the hearsay rule, and (2) in holding that appellant agreed to remove the bowling equipment in satisfaction of the balance owed by appellee on the promissory notes, because such holding is contrary to the great weight and preponderance of the evidence.

The principal controverted fact issue was whether there was an agreement that appellant was to remove the bowling equipment in satisfaction and accord of the balance owed by appellee on the promissory notes. No findings of fact and conclusions of law were filed by the court, and in support of the judgment it is presumed that the court found the controverted issue of fact against appellant.

The evidence shows that Mr. Dan M. Moody of Houston, Texas, is a stockholder and the president of appellee Suburban Bowling, Inc., hereafter referred to as Suburban, which has operated several bowling establishments, including the Northshore Bowling Lanes. Mr. Moody testified that he had been connected with the bowling business for about seven or eight years since he met Mr. Roy Moore. He stated that during that time he had become accustomed to dealing with companies which sell bowling equipment, particularly with A M F and Brunswick Corporation, referred to as Brunswick. He testified that he was familiar with the business affairs of Suburban, familiar with the books, records and correspondence of the company, and with the fact that appellee had done business with appellant Brunswick; that appel-lee purchased sixteen bowling lanes and pinsetters from appellant at one time and later bought pool tables and other equipment; that appellee’s business relationship with appellant extended from the time such equipment was purchased in 1959 until the " bowling alley equipment was turned back to appellant in August of 1963; that appellee still owned pool tables purchased from appellant and was paying therefor according to agreement.

Mr. Moody stated that he represented and still represents appellee, Suburban Bowling; that Mr. Roy Moore was the person at Brunswick with whom he dealt; that he dealt with Moore when he purchased the bowling equipment from Brunswick; that Moore always held himself out as representing and speaking for Brunswick and that he always dealt with Moore when he had business with Brunswick; that when he wanted to buy bowling alley equipment from Brunswick Moore set the price for the equipment and determined the method of payment; that if a problem or dispute arose he contacted Mr. Moore in an attempt to settle the matter and if Brunswick contacted him about any problem or dispute that Moore was the person who made the contact ; that at all times during their dealings Moore indicated to him that he had authority to speak for Brunswick. Moody stated that the total amount of money appellee had paid to Brunswick on business done with and through Mr. Moore was about $160,000.00.

Moody stated that he was familiar with the bowling alley equipment in question which had been purchased from Brunswick; that in August of 1963, the equipment was located in Northshore Bowling Lanes, and in excellent condition; that in July of 1963 he contacted Brunswick by oral conversation with Mr. Moore; that he told Moore he would like for them to take such bowling equipment back “and everybody consider that the value of the equipment was worth the remaining debt — and that the debt would be paid in full and everybody happy and released.” Moody testified that at that time Moore said they would be glad to come and get the equipment, but said he couldn’t promise any definite date of removal; that [296]*296Moore’s only comment was that he couldn’t give a definite date. Moody also stated that thereafter on April 9, 1963, he wrote the following to appellant:

“August 9, 1963
CERTIFIED MAIL NO. 16360 ■
RETURN RECEIPT REQUESTED
Mr. Roy Moore
Brunswick Corporation
1322 North Industrial
Dallas, Tex.
Dear Roy:
Re: Suburban Bowling, Inc.
As you and Mr. Canaby in your home office both know, this company is not able to make the payments on your lanes and pinsetters at the- North-shore Bowling Lanes.
This is a request that your company immediately remove your lanes and pinsetters on a mutual agreement of full release of all parties concerned.
I will appreciate your expediting this request at the earliest possible date.
Yours very truly,
SUBURBAN BOWLING, INC.
BY:
Vice President
DMM :mbs
CC: Mr. Canaby
Brunswick Corporation
623 South Wabash
Chicago, Illinois
(Cert. Mail No. 16361)
CC: Mr. John H. Crooker, Jr.”

Mr. Moody stated that he had received some correspondence from Brunswick signed by Mr. Canaby and that he sent Canaby a copy of the letter as indicated by the notation at the bottom thereof. The evidence shows that the bowling equipment was removed about the 22nd day of August 1963. This suit was brought by appellant on December 29, 1964.

Mr. Moore denied that he ever agreed with Suburban to remove the bowling alley equipment in satisfaction and accord of the balance owing on the promissory notes. Mr. Moody and another witness testified that on March S, 1965, a conference was held at the office of appellant’s attorneys in Houston at which attorneys for both parties, he and Mr. Moore, were present; that at such conference Moore was shown a copy of the above letter dated August 9, 1963, and he admitted that Brunswick took back the equipment pursuant to- such letter. Moore admitted that he received the letter from Mr. Moody dated August 9, 1963, but he denied that he admitted at the conference on March 5, 1965 that he took the bowling alley equipment back pursuant to- such letter.

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Bluebook (online)
398 S.W.2d 294, 1965 Tex. App. LEXIS 2376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brunswick-corp-v-suburban-bowling-inc-texapp-1965.