Goddard MacHinery Co. v. Industrial Equipment Repairs, Inc.

Court of Appeals of Texas

Goddard MacHinery Co. v. Industrial Equipment Repairs, Inc.

351 S.W.2d 371, 1961 Tex. App. LEXIS 2718

Court of Appeals of Texas·Decided October 26, 1961·No. 3944·Published·Cited by 7 cases

Opinion

WILSON, Justice.

Plaintiff sued on a verified account. Defendant’s unverified answer pleaded pay *372 ment and accord and satisfaction. ■ The court concluded that in the absence of verified denial under Rule 185, Texas Rules of Civil Procedure, defendant was “not entitled to offer any defense as pleaded”, withdrew the case from the jury and rendered judgment on the pleadings for plaintiff.

This was error. Even in the absence of a sworn denial, under the Rule, defendant’s pleaded defenses in the nature of confession and avoidance were available. Yelton v. Bird Lime & Cement Co., Tex.Civ.App., 161 S.W.2d 353, syl. 6, writ ref. w. m.; J. M. Radford Gro. Co. v. Porter, Tex.Civ. App., 17 S.W.2d 145, 147, writ dis.; Glasco v. Frazer, Tex.Civ.App., 225 S.W.2d 633, 635, writ dis.; McConnon & Co. v. Klenk, Tex.Civ.App., 11 S.W.2d 222, 223; American Druggists Synd. v. Holt Drug Co., Tex.Civ.App., 272 S.W. 508, 509; Queen City Motor Co. v. Texas Auto Supply Co., Tex.Civ.App., 241 S.W. 212, 214 and cases therein cited. Reversed and remanded.

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WILSON, Justice.

Plaintiff sued on a verified account. Defendant’s unverified answer pleaded pay *372 ment and accord and satisfaction. ■ The court concluded that in the absence of verified denial under Rule 185, Texas Rules of Civil Procedure, defendant was “not entitled to offer any defense as pleaded”, withdrew the case from the jury and rendered judgment on the pleadings for plaintiff.

This was error. Even in the absence of a sworn denial, under the Rule, defendant’s pleaded defenses in the nature of confession and avoidance were available. Yelton v. Bird Lime & Cement Co., Tex.Civ.App., 161 S.W.2d 353, syl. 6, writ ref. w. m.; J. M. Radford Gro. Co. v. Porter, Tex.Civ. App., 17 S.W.2d 145, 147, writ dis.; Glasco v. Frazer, Tex.Civ.App., 225 S.W.2d 633, 635, writ dis.; McConnon & Co. v. Klenk, Tex.Civ.App., 11 S.W.2d 222, 223; American Druggists Synd. v. Holt Drug Co., Tex.Civ.App., 272 S.W. 508, 509; Queen City Motor Co. v. Texas Auto Supply Co., Tex.Civ.App., 241 S.W. 212, 214 and cases therein cited. Reversed and remanded.

Goddard MacHinery Co. v. Industrial Equipment Repairs, Inc., 351 S.W.2d 371, 1961 Tex. App. LEXIS 2718 (Tex. Ct. App. 1961).

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