McGinty v. Modern Film Effects, Inc.

Court of Appeals of Texas

McGinty v. Modern Film Effects, Inc.

553 S.W.2d 21, 1977 Tex. App. LEXIS 3113

CourtCourt of Appeals of Texas

DecidedJune 15, 1977

DocketNo. 12581

StatusPublished

Cited by2 cases

This text of 553 S.W.2d 21 (McGinty v. Modern Film Effects, 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.

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McGinty v. Modern Film Effects, Inc., 553 S.W.2d 21, 1977 Tex. App. LEXIS 3113 (Tex. Ct. App. 1977).

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Opinion

PHILLIPS, Chief Justice.

Appellee, Modern Film Effects, Inc., sold merchandise on credit to U.F.I., doing business as United Film International. A guaranty agreement was executed by appellant, Rush McGinty, to guarantee any and all indebtedness of U.F.I. to appellee. Subsequently, appellee filed this suit in sworn account against U.F.I. for the balance due on the account, and joined appellant therein as guarantor. The case was tried to the court and judgment was rendered for ap-[22]*22pellee, jointly and severally, against U.F.I. and appellant. Rush McGinty was the only defendant to appeal from this judgment. We affirm.

At trial, appellee introduced a sworn account as proof of U.F.I.’s indebtedness pursuant to Tex.R.Civ.P. 185. As U.F.I. had failed to appear or to answer at the trial, the court entered a default judgment against it. The court then entered the judgment complained of here against appellant.

Appellant contends that a sworn account cannot be used to prove a debt against one who is a stranger to the transaction, as it is hearsay as to the third party, citing cases.¹

We agree but the rule is not applicable under the circumstances of this case. Appellant requested no findings of fact or conclusions of law, so if there is evidence to support the judgment of the trial court on any theory of the case, the judgment of the trial court should be affirmed and every issue raised by the testimony must be resolved in support of the judgment. See Nichols v. Acers, cited in the footnote herein. Consequently, we presume that when the court charged appellant with U.F.I.’s debt on the guaranty, it based its decision on the judgment against U.F.I. that it had entered and not upon the sworn account itself.

In Sampson v. Apeo Oil Corp., 476 S.W.2d 430 (Tex.Civ.App.1972, no writ), the court set out three elements necessary to prove a cause of action against a guarantor such as appellant: first, that the guarantor had executed the guaranty agreement; second, that the guaranty agreement had not been terminated; and third, that the principal was indebted to the plaintiff in a certain amount that was due and unpaid.

In the case at bar, there is no dispute as to the first two requirements. Consequently, as there is sufficient evidence to support the implied finding by the court that the principal, U.F.I., was indebted to appellee, we affirm the judgment.

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PHILLIPS, Chief Justice.

Appellee, Modern Film Effects, Inc., sold merchandise on credit to U.F.I., doing business as United Film International. A guaranty agreement was executed by appellant, Rush McGinty, to guarantee any and all indebtedness of U.F.I. to appellee. Subsequently, appellee filed this suit in sworn account against U.F.I. for the balance due on the account, and joined appellant therein as guarantor. The case was tried to the court and judgment was rendered for ap-[22]*22pellee, jointly and severally, against U.F.I. and appellant. Rush McGinty was the only defendant to appeal from this judgment. We affirm.

At trial, appellee introduced a sworn account as proof of U.F.I.’s indebtedness pursuant to Tex.R.Civ.P. 185. As U.F.I. had failed to appear or to answer at the trial, the court entered a default judgment against it. The court then entered the judgment complained of here against appellant.

Appellant contends that a sworn account cannot be used to prove a debt against one who is a stranger to the transaction, as it is hearsay as to the third party, citing cases.¹

We agree but the rule is not applicable under the circumstances of this case. Appellant requested no findings of fact or conclusions of law, so if there is evidence to support the judgment of the trial court on any theory of the case, the judgment of the trial court should be affirmed and every issue raised by the testimony must be resolved in support of the judgment. See Nichols v. Acers, cited in the footnote herein. Consequently, we presume that when the court charged appellant with U.F.I.’s debt on the guaranty, it based its decision on the judgment against U.F.I. that it had entered and not upon the sworn account itself.

In Sampson v. Apeo Oil Corp., 476 S.W.2d 430 (Tex.Civ.App.1972, no writ), the court set out three elements necessary to prove a cause of action against a guarantor such as appellant: first, that the guarantor had executed the guaranty agreement; second, that the guaranty agreement had not been terminated; and third, that the principal was indebted to the plaintiff in a certain amount that was due and unpaid.

In the case at bar, there is no dispute as to the first two requirements. Consequently, as there is sufficient evidence to support the implied finding by the court that the principal, U.F.I., was indebted to appellee, we affirm the judgment.

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553 S.W.2d 21, 1977 Tex. App. LEXIS 3113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcginty-v-modern-film-effects-inc-texapp-1977.

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