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FOSTER BROTHERS MANUFACTURING COMPANY v. STYLE-RITE MANUFACTURING COMPANY (01/17/80)

January 17, 1980

FOSTER BROTHERS MANUFACTURING COMPANY, APPELLANTS
v.
STYLE-RITE MANUFACTURING COMPANY, APPELLEES



From 18th Judicial District Court, Johnson County, Texas

COUNSEL

Robert J. Wilson, Robert J. Wilson & Associates, Inc., Burleson, for appellant.

Terry W. Bradley, Bradley & Lummus, Cleburne, for appellee.

Author: James

This appeal originated from judgment rendered on a counterclaim in the form of an action on a sworn account. Foster Brothers Manufacturing Company, Appellant, brought suit against Style-Rite Manufacturing Company, Appellee, for breach of warranties made in the sale of merchandise. Style-Rite answered with a general denial and also filed a counterclaim against Foster Brothers in the nature of a sworn account, with past due invoices offered as exhibits in support of the counterclaim. Appellant Foster Brothers did not file any response to Style-Rite's counterclaim. During a jury trial on the merits, Foster Brothers took a non-suit on the breach of warranty action, but Style-Rite proceeded to prosecute its counterclaim in a hearing before the judge without the jury. In this hearing Style-Rite introduced into evidence its sworn account, i. e. the past due invoices which were made a part of the sworn pleadings in the counterclaim. Foster Brothers objected to the introduction of some of the invoices for the reason that they were addressed to "Foster Hard Furniture Company" rather than to "Foster Brothers Manufacturing Co.", the named defendant in the counterclaim. The objection was overruled, the invoices in question were admitted, and the trial court rendered judgment against Foster Brothers for the total amount of all invoices offered by Style-Rite, plus attorney's fees.

Foster Brothers appeals this judgment on only one point of error, asserting that the trial court improperly admitted into evidence the invoices which were addressed to "Foster Hard Furniture Company." Foster Brothers claims that in this case these invoices were hearsay as to Fosters Brothers and cannot support a judgment against Foster Brothers.

The record in this case shows that Style-Rite's verified account, as it appeared in the pleadings and as offered into evidence at the hearing, included a total of seven invoices. Two of the invoices were addressed to "FOSTER BROS. MFG. CO., 2101 S. Vandeventer, St. Louis, Mo. 63110." The remaining five invoices were addressed to "FOSTER HARD FURNITURE CO., 230 Crider St., Buffalo, N. Y. 14215." The "Cross-Defendant" named in Style-Rite's counterclaim was "Foster Bros. Mfg. Company." The Civil Docket Sheet included in the transcript of this case indicates that Style-Rite had citation issued in its counterclaim and that said citation was served on "Roy Adams at St. Louis, Missouri." There is nothing in the record to show any connection whatsoever between Appellant Foster Brothers and the entity known as "Foster Hard Furniture Co."

As a general rule, a sworn account is prima facie evidence of a debt and the account need not even be formally introduced into evidence unless the account has been denied in writing under oath. Airborne Freight Corp. v. CRB Marketing, Inc. (Tex.1978) 566 S.W.2d 573. However, a sworn account is not prima facie evidence of a debt against a stranger to the transaction. McCamant v. Batsell (Tex.1883) 59 Tex. 363; Hilton v. Musebeck Shoe Co. (Austin Tex.Civ.App.1974) 505 S.W.2d 341, NRE; Copeland v. Hunt (Corpus Christi Tex.Civ.App.1968) 434 S.W.2d 156, NRE; Eng v. Wheeler (San Antonio Tex.Civ.App.1957) 302 S.W.2d 263, writ dism'd w. o. j. In fact, such accounts, though verified, are hearsay as to strangers to the transactions included in the sworn account. Copeland v. Hunt, cited supra; Sampson v. Apco Oil Corporation (Amarillo Tex.Civ.App.1972) 476 S.W.2d 430, NWH. By way of analogy to the case at bar, even in the absence of a sworn denial, a sworn account showing obligations by someone other than the defendant cannot support a summary judgment. Aztec Pipe and Supply Company, Inc. v. Sundance Oil Company (1st Houston Tex.Civ.App.1978) 568 ...


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