Hilton v. Musebeck Shoe Company, Inc.

505 S.W.2d 341, 1974 Tex. App. LEXIS 2142

• Court: Court of Appeals of Texas
• Decided: January 30, 1974
• Docket: 12099
• Status: Published

Opinions

PHILLIPS, Chief Justice.

Appellee Musebeck Shoe Company sued appellant on a sworn account. Appellant by a sworn answer stated that the goods and wares allegedly sold him were in fact sold to Hilton Foot-So-Port Shoes, Inc., a Texas Corporation chartered and existing during the period of time alleged by appel-lee, and still an existing corporation and further that appellant was not liable in the capacity in which he was sued nor liable in any other capacity.

By way of a special exception appellant directed the court’s attention to appellee’s original petition contending that the exhibit attached to appellee’s petition, as Exhibit “A,” was insufficient and incapable of supporting an action on a sworn account in that the exhibit did not allege with the requisite specificity so as to put appellant on notice of those goods, wares and merchandise allegedly involved.

Trial was to the court sitting without a jury pursuant to which judgment was rendered for appellee for the amount prayed for in the sworn account.

Appellant is before us on two principal points of error either of which, in our judgment, requires a reversal of this judgment.

The trial court erred in concluding as a matter of law that appellant’s answer does not conform to the requirements of Rule 185, Texas Rules of Civil Procedure, and in entering judgment for appellee based upon this conclusion.

At trial appellant introduced testimony in support of the allegations in his answer which allegations are stated above. Rule 185, T.R.C.P. provides that a properly pleaded sworn account is to be taken as prima facie evidence “unless the party resisting such claim shall . . . file a written denial, under oath, stating that each and every item is not just or true . ” Appellant failed to file such a sworn written denial; however, he filed a verified plea under Rule 93(c), T.R.C.P. which raised the issue that appellee was not entitled to recover in the capacity in which he had sued, or that the defendant was not liable in the capacity in which he had been sued. A denial that a defendant is not doing business under an assumed name or trade name (as was alleged) is required to be verified by Rule 93(o), T.R. C.P. Appellant properly raised both of these affirmative defenses by his verified first amended original answer, but the trial court overruled these defenses and held as a matter of law that his answer failed to conform to the requirements of Rule 185, T.R.C.P. This • was error under this Court’s decision in Nichols v. Acers Company, 415 S.W.2d 683 (Tex.Civ.App.1967, writ ref. n. r. e.) and in Starlight Supply Company v. Feris, 462 S.W.2d 608 (Tex.Civ.App. 1970). Also see McCamant v. Batsell, 59 Tex. 363; Copeland v. Hunt, 434 S.W.2d 156 (Tex.Civ.App.1968, writ ref. n. r. e.) These cases state that the rule which makes a verified account prima facie evidence unless a written denial under oath is filed does not apply to or cover transactions between third parties who are strangers to the transaction.

The court also erred in overruling appellant’s special exception. A party seeking to recover on a sworn account is required by Rule 185, T.R.C.P. to plead and prove that he furnished labor or materials and that he has kept a systematic record pursuant thereto. Appellee attempted to comply with this requirement by attaching to its petition copies of what appear to be ledger pages containing dates, invoice numbers, charges and credits. However, at no time did appellee plead or prove, as challenged by appellant’s special exception, any invoices or other documents reflecting the basis of the alleged account in terms of type of merchandise, its quantity, cost, or other identifying factors. Nor was there any showing that the prices charged therefor were either agreed upon or were reasonable and customary. United States Insulation Sales Corporation v. Jones-Blair Company, 491 S.W.2d 226 (Tex.Civ.App.1973); Williamsburg Nursing Home, Inc. v. Paramedics, 460 S.W.2d 168 (Tex.Civ.App.1970).

Judgment of the trial court is reversed, and judgment is here rendered that appel-lee take nothing by this suit.

Reversed and Rendered.