First National Bank of San Angelo v. Sheffield

Court of Appeals of Texas

First National Bank of San Angelo v. Sheffield

475 S.W.2d 820, 1972 Tex. App. LEXIS 2252

CourtCourt of Appeals of Texas

DecidedJanuary 12, 1972

Docket11873

StatusPublished

Cited by12 cases

This text of 475 S.W.2d 820 (First National Bank of San Angelo v. Sheffield) 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

First National Bank of San Angelo v. Sheffield, 475 S.W.2d 820, 1972 Tex. App. LEXIS 2252 (Tex. Ct. App. 1972).

Pincite

Opinion

SHANNON, Justice.

Appellant, The First National Bank of San Angelo, assignee of Bill Taylor, sued appellee, Buford Sheffield, on a sworn account to recover $513.00 which represented charges for hauling cattle from Brady to Corsicana. Upon trial to the court, judgment was entered that appellant take nothing.

In answer to appellant’s sworn petition, appellee pleaded, among other things, that the debt was not his, but rather was that of C. D. Wyche who had bought the cattle from appellee. Appellee pleaded, in this connection, that he had arranged with Taylor to haul the cattle at Wyche’s cost. Wyche was not a party to the suit.

Appellee in his answer did not deny under oath that the items in the sworn account were “just or true” pursuant to Rule 185, Texas Rules of Civil Procedure. In response to appellee’s answer, appellant filed special exception number one which pointed out in effect that appellee’s un-sworn answer did not comply with Rule 185. The court overruled the special exception, and after a trial on the merits, judgment was rendered for appellee. The order overruling special exception number *821 one is the basis for appellant’s single point of error.

The narrow issue is whether appellee’s unsworn answer is sufficient to support the judgment.

While some defenses against a sworn account may be proved in the absence of a sworn denial, 1 the defense that the account was wrongfully charged against the defendant, and that he did not owe it, may not be proved in the absence of a sworn denial. Yelton v. Bird Lime & Cement Co., 161 S.W.2d 353 (Tex.Civ.App. 1942, writ ref. w.o.m.), cf. Collins v. Kent-Coffey Mfg. Co., 380 S.W.2d 59 (Tex.Civ.App. 1964, writ ref’d), but see for contra, dictum, Hood v. Robertson, 33 S.W.2d 882 (Tex.Civ.App. 1930, no writ).

Appellee contends that since appellant was not a party to the original transaction between Bill Taylor and him, appellant may not recover on the sworn account. Appellee’s contention is untenable. Appellant pleaded that it was the assignee of Bill Taylor. Open accounts have long been held to be subject to oral or written assignments, and an assignee may sue in his own name. Rollison v. Hope, 18 Tex. 446 (1857). Upon trial the assignee, of course, must prove the assignment. Carpenter v. Historical Pub. Co., 24 S.W. 685 (Tex.Civ.App. 1894, no writ). Appellee has not cited authority to this Court, nor have we been able to discover authority, to the effect that an assignee may not recover upon the sworn account of his assignor.

The judgment is reversed and the cause is remanded with the instruction that appellant’s special exception number one be granted, and that appellee be permitted to amend his answer in conformance with Rule 185.

Reversed and remanded with instruction.

1

. For example:

accord and satisfaction

Goddard Mach. Co. v. Industrial Equipment Repairs, Inc., 351 S.W.2d 371 (Tex.Civ.App., 1961, no writ).

Statute of Limitations

Kimbrough v. Vacuum Oil Co., 289 S.W. 151 (Tex.Civ.App. 1926, no writ). Contract violative of antitrust law

McConnon & Co. v. Klenk, 11 S.W.2d 222 (Tex.Civ.App.1928, no writ).

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SHANNON, Justice.

Appellant, The First National Bank of San Angelo, assignee of Bill Taylor, sued appellee, Buford Sheffield, on a sworn account to recover $513.00 which represented charges for hauling cattle from Brady to Corsicana. Upon trial to the court, judgment was entered that appellant take nothing.

In answer to appellant’s sworn petition, appellee pleaded, among other things, that the debt was not his, but rather was that of C. D. Wyche who had bought the cattle from appellee. Appellee pleaded, in this connection, that he had arranged with Taylor to haul the cattle at Wyche’s cost. Wyche was not a party to the suit.

Appellee in his answer did not deny under oath that the items in the sworn account were “just or true” pursuant to Rule 185, Texas Rules of Civil Procedure. In response to appellee’s answer, appellant filed special exception number one which pointed out in effect that appellee’s un-sworn answer did not comply with Rule 185. The court overruled the special exception, and after a trial on the merits, judgment was rendered for appellee. The order overruling special exception number *821 one is the basis for appellant’s single point of error.

The narrow issue is whether appellee’s unsworn answer is sufficient to support the judgment.

While some defenses against a sworn account may be proved in the absence of a sworn denial, 1 the defense that the account was wrongfully charged against the defendant, and that he did not owe it, may not be proved in the absence of a sworn denial. Yelton v. Bird Lime & Cement Co., 161 S.W.2d 353 (Tex.Civ.App. 1942, writ ref. w.o.m.), cf. Collins v. Kent-Coffey Mfg. Co., 380 S.W.2d 59 (Tex.Civ.App. 1964, writ ref’d), but see for contra, dictum, Hood v. Robertson, 33 S.W.2d 882 (Tex.Civ.App. 1930, no writ).

Appellee contends that since appellant was not a party to the original transaction between Bill Taylor and him, appellant may not recover on the sworn account. Appellee’s contention is untenable. Appellant pleaded that it was the assignee of Bill Taylor. Open accounts have long been held to be subject to oral or written assignments, and an assignee may sue in his own name. Rollison v. Hope, 18 Tex. 446 (1857). Upon trial the assignee, of course, must prove the assignment. Carpenter v. Historical Pub. Co., 24 S.W. 685 (Tex.Civ.App. 1894, no writ). Appellee has not cited authority to this Court, nor have we been able to discover authority, to the effect that an assignee may not recover upon the sworn account of his assignor.

The judgment is reversed and the cause is remanded with the instruction that appellant’s special exception number one be granted, and that appellee be permitted to amend his answer in conformance with Rule 185.

Reversed and remanded with instruction.

1

. For example:

accord and satisfaction

Goddard Mach. Co. v. Industrial Equipment Repairs, Inc., 351 S.W.2d 371 (Tex.Civ.App., 1961, no writ).

Statute of Limitations

Kimbrough v. Vacuum Oil Co., 289 S.W. 151 (Tex.Civ.App. 1926, no writ). Contract violative of antitrust law

McConnon & Co. v. Klenk, 11 S.W.2d 222 (Tex.Civ.App.1928, no writ).

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475 S.W.2d 820, 1972 Tex. App. LEXIS 2252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-of-san-angelo-v-sheffield-texapp-1972.

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