Cunningham v. Associates Investment Co.

Court of Appeals of Texas

Cunningham v. Associates Investment Co.

295 S.W.2d 687, 1956 Tex. App. LEXIS 1945

CourtCourt of Appeals of Texas

DecidedJuly 11, 1956

Docket5172

StatusPublished

Cited by5 cases

This text of 295 S.W.2d 687 (Cunningham v. Associates Investment Co.) 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

Cunningham v. Associates Investment Co., 295 S.W.2d 687, 1956 Tex. App. LEXIS 1945 (Tex. Ct. App. 1956).

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Opinions

HAMILTON, Chief Justice.

This is an appeal from the judgment of the County Court at Law of Grayson County, granted in favor of appellee, Associates Investment Company, on its motion for summary judgment on its note, and on appellant’s cross-action, against Carl Cunningham, appellant.

It appears that appellant executed a note and chattel mortgage on an automobile which he had purchased from the appellee, said note to be payable in 24 equal monthly installments. After several monthly installments had 'been paid and at a, time when no delinquent payments were, due, appellant voluntarily returned the automobile to appellee, saying he could not pay for it Said automobile was subsequently sold by appellee to the highest bidder, as pro[688]*688vided in the chattel mortgage, and. the amount received therefor was credited on appellant’s note, leaving a balance unpaid of $458.80. Judgment was entered for said amount, plus $68.82 attorneys fees. The note did not provide for any attorneys fees. Judgment also was for appellee on appellant’s cross-action for damages for alleged wrongful sale of automobile.

Appellant complains of the court allowing attorneys fees. We agree with appellant in this instance, and hold that the trial court was in error in allowing -'attorneys fees when there was no promise by appellant to pay attorneys fees.

Appellant also contends that the court was in error in not granting appellant’s motion to strike the admissions filed in the cause in reply to appellee’s request for admissions, for the reason that appellee did not mail the request by registered mail but sent same by certified mail, which failed to comply with Rule 21a, T.R.C.P., which provides that such matters be sent by registered mail or delivered in person. We think this complaint is without merit. While appellant may not have been required to file his admissions in reply to appellee’s request for admissions sent by certified mail, yet he having filed them voluntarily we do not think the trial court abused its discretion in refusing to strike them.

Appellant also contends that there was a valid question of dispute of fact as to whether or not appellant turned said car over ■ to appellee upon the promise that appellee would notify him before selling said car. This question of fact, if any, was raised by affidavit' filed by appellant two days after appellee’s motion for summary judgment was set for hearing, and heard. There was no motion made by appellant for extension of time in which to file a controverting affidavit, and no excuse given for not having filed same within the time required. The court heard the matter without the benefit of said affidavit, and did not consider same in arriving at his judgment. We therefore overrule such contention of appellant. •

All other points raised by appellant are overruled.

We affirm the court’s judgment as' to the principal amount of $458.80, and reform said judgment by deducting the amount of $68.82 allowed as attorneys fees.

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HAMILTON, Chief Justice.

This is an appeal from the judgment of the County Court at Law of Grayson County, granted in favor of appellee, Associates Investment Company, on its motion for summary judgment on its note, and on appellant’s cross-action, against Carl Cunningham, appellant.

It appears that appellant executed a note and chattel mortgage on an automobile which he had purchased from the appellee, said note to be payable in 24 equal monthly installments. After several monthly installments had 'been paid and at a, time when no delinquent payments were, due, appellant voluntarily returned the automobile to appellee, saying he could not pay for it Said automobile was subsequently sold by appellee to the highest bidder, as pro[688]*688vided in the chattel mortgage, and. the amount received therefor was credited on appellant’s note, leaving a balance unpaid of $458.80. Judgment was entered for said amount, plus $68.82 attorneys fees. The note did not provide for any attorneys fees. Judgment also was for appellee on appellant’s cross-action for damages for alleged wrongful sale of automobile.

Appellant complains of the court allowing attorneys fees. We agree with appellant in this instance, and hold that the trial court was in error in allowing -'attorneys fees when there was no promise by appellant to pay attorneys fees.

Appellant also contends that the court was in error in not granting appellant’s motion to strike the admissions filed in the cause in reply to appellee’s request for admissions, for the reason that appellee did not mail the request by registered mail but sent same by certified mail, which failed to comply with Rule 21a, T.R.C.P., which provides that such matters be sent by registered mail or delivered in person. We think this complaint is without merit. While appellant may not have been required to file his admissions in reply to appellee’s request for admissions sent by certified mail, yet he having filed them voluntarily we do not think the trial court abused its discretion in refusing to strike them.

Appellant also contends that there was a valid question of dispute of fact as to whether or not appellant turned said car over ■ to appellee upon the promise that appellee would notify him before selling said car. This question of fact, if any, was raised by affidavit' filed by appellant two days after appellee’s motion for summary judgment was set for hearing, and heard. There was no motion made by appellant for extension of time in which to file a controverting affidavit, and no excuse given for not having filed same within the time required. The court heard the matter without the benefit of said affidavit, and did not consider same in arriving at his judgment. We therefore overrule such contention of appellant. •

All other points raised by appellant are overruled.

We affirm the court’s judgment as' to the principal amount of $458.80, and reform said judgment by deducting the amount of $68.82 allowed as attorneys fees.

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295 S.W.2d 687, 1956 Tex. App. LEXIS 1945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-associates-investment-co-texapp-1956.

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