Humble Oil & Refining Co. v. Southwestern Bell Telephone Co.

BARCUS, J. Plaintiff in error filed this suit in the justice court against Southwestern Bell Telephone Company, a corporation, and B. K. Bain and R. A. Bain, composing the partnership of Bain Transfer Company, on the following verified account: “July 15, 1923. To 45 gallons gasproof paint, $2.54½ per gallon, $114.41. Total amount due, $114.41.” B. K. Bain and R. A. Bain filed no written pleadings in ‘ the justice court. The Southwestern Bell Telephone Company answered in the justice court by a sworn denial of the justness of the account sued on, a general demurrer, general denial, and then by way of cross-action against their code- *489 fendants Bains, alleged that B. K. and R. A. Bain as independent contractors had negligently destroyed said paint while moving a bunkhouse belonging to the telephone company, and that, if it should be in any way held liable, it was entitled to judgment over against B. K. Bain and R. A. Bain for any amount for which judgment should he rendered against it. The judgment in the justice court recited that all the parties appeared and judgment was rendered in said court in favor of appellant against B. K. and R. A. Bain for the amount sued for, and that appellant take nothing against the telephone company. On appeal to the county court, judgment was rendered against appellant in favor of all the defendants. It appears without controversy that the only pleading filed by the appellant in the justice court was the sworn verified account. Appellant in its brief states that its suit was originally filed in the justice court on a verified account. The judgment in the justice court recites said fact, and the judgment rendered in the county court finds as a fact that appellant’s suit in the justice court was based upon a verified account, and appellant in its brief does not make any contention that any other pleading, either oral or written, was presented or filed by it as a basis for recovery in the justice court other than said verified account. In the county court appellant filed an amended pleading, in which it sought judgment on the verified account as filed in the justice court, and in the alternative asked for judgment for damages which it had suffered by reason of the defendants, jointly and severally, having negligently destroyed 45 gallons of gas-proof paint of the value of $2.54⅛ per gallon, being $114.41, together with interest thereon. B. K. and R. A. Bain in the county court filed a general demurrer and a general denial, and the telephone company answered as in the justice court. The cause was tried to the court, and the judgment in the county court recites: “The court, having withheld its rulings on the demurrers and exceptions until the plaintiff offered its testimony, and the testimony having fully established the fact that this was an action for damages for the destruction of property, and was not a suit based on a verified account, sustained the denials and demurrers of the defendants Southwestern Bell Telephone Company and the Bain Transfer Company, a partnership composed of R. A. Bain and B. K. Bain, and that the defendants go hence without day and recover their costs.” Appellant by its first and second propositions contends that it had the right to amend its pleadings in the county court, and sue not only on the verified account, but, in the alternative, for damages by reason of the defendants having negligently destroyed the 45 gallons of paint, and that the trial court was in error in refusing to permit it to amend its pleadings in said respect. The general rule is that parties on appeal from the justice court may amend their pleadings in the county court, if the amended pleadings do not set up a new cause of action. McCaskill v. Clay (Tex. Civ. App.) 284 S. W. 643, and authorities there cited. The courts, however, have uniformily held that a cause of action begun in the justice court cannot be so amended in the county court as to embrace an ■ entirely different cause of action. It has been held that a suit on an alleged contract cannot be changed to a suit on an implied contract (M., IC & T. Ry. Co. v. Ryan. [Tex. Civ. App.] 170 S. W. 858; Curton v. Craddock [Tex. Civ. App.] 252 S. W. 1074; Mood v. Methodist Episcopal Church, South [Tex. Civ. App.] 289 S. W. 461; [Tex. Com. AppJ 296 S. W. 506); and that a suit on notes cannot be changed to a suit on an account (Alvis v. John G. Harris Hdw. Co. [Tex. Civ. App.] 218 S. W. 538); and that a suit on an account cannot be changed to a suit on a written obligation (Laing v. St. Louis Type Foundry Co., 3 Willson, Civ. Cas. Ct. App. 563). As to. what constitutes a different cause of action is forcefully pointed out by the Supreme Court in Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707, in which case it is held that a pleading sets up a new cause of action when the same evidence will not support both of the pleadings, and when the allegations of each are not subject to the same defenses. . Clearly, the same evidence Will not establish or defeat a suit founded on a contract which is implied in a suit on a verified account and a suit for damages founded on a tort. We do not therefore think the trial court was in error in sustaining the demurrer to appellant’s amended pleadings. Appellant does not claim, and we do not think it could be held, that its pleading in the justice court embraced both a verified account and was for damages growing out of a tort. If it could be said that the trial court was in error in refusing to permit appellant to amend its pleadings in the county court, appellant is in no position to complain of the court’s action with reference thereto, because it does not appear from the record that appellant excepted to the court’s action in refusing to permit it to file the amended pleading. Article 2237 of the Revised Statutes 1925 provides specifically that if any party is dissatisfied with any ruling of the trial court he may except, and unless the record shows that an exception was taken to the action of the trial court in sustaining an exception or demurrer to the pleadings, the appellate- court will not review the trial court’s action with reference there-, to. Lee v. Hickson, 40 Tex. Civ. App. 632, 91 S. W. 636; Reasonover v. Riley Bros. (Tex. Civ. App.) 150 S. W. 220. *490 Appellant by its third, fourth, fifth, sixth, and seventh propositions contends, in effect, that its cause of action was properly brought as a verified account, and that since it did file the suit in the justice court on a verified account, and since appellees B. K. and R. A. Bain failed to deny under oath the justness of said verified account, it was entitled to a judgment in the justice court as well as in the county court against B. K. and R. A. Bain for the full amount thereof. We overrule this contention. It is true that a single transaction may be an account. Peterson v. Graham-Brown Shoe Co. (Tex. Civ. App.) 200 S. W. 899, and authorities there cited. In this case, however, the evidence shows without dispute that appellant’s claim is for damages which it claims to have suffered by reason of appellees having negligently destroyed 45 gallons of paint, and not by reason of any contract of sale of said paint to appellees or by reason of any account it had against them, or either of them. As we understand the law, an account between parties contemplates and presupposes a contract, express or implied, under the terms of which a party has sold and delivered chattels to another in consideration of his express or implied promise and agreement to pay therefor, as distinguished from damages founded on a tort which one party may suffer by reason of the negligent acts and conduct of another party whereby he has been deprived of the value of his property. McCamant v. Batsell, 59 Tex. 363. In T. & P. Ry. Co. v. Booby, 1 White & W. Civ. Cas. Ct. App. 299, Looby filed suit against the railway company for damages which he had suffered by reason of the defendant having converted to its own use some railway cross-ties, and in said suit claimed that his account was within the purview of said article. The court in passing on this question held that it was not an account, and used this language: “The suit is for the value of property alleged to have been taken by and appropriated to the use of the defendant. It is the common-law action of trover and conversion. The cause of action, as stated in the instrument sued upon, does not exist by virtue of any contract between the plaintiff and the defendant, and does not show a transaction between the parties, by which the defendant is prima facie' bound for the payment of the amount claimed, or for goods sold and delivered, or other transaction legitimately forming the basis of an account proper. It is, on the contrary, as it shows upon its face, a claim for unliquidated damages, viz.: The unascertained value of the cross-ties which had been taken by the defendant and converted to its own use. We are of the opinion -that the plaintiff’s claim is not an ‘account,’ within the meaning of the statute.” To the same effect is the holding in H. & T. O. Ry. Co. v. White, 1 White & W. Civ. Cas. Ct. App. 64; G., H. & S. A. Ry. Co. v. Gildea, 2 Willson, Civ. Cas. Ct. App. 204; H. & T. C. Ry. Co. v. Hays & Co., 1 White & W. Civ. Cas. Ct. App. 416; G., H. & S. A. Ry. Co. v. Morris, 1 White & W. Civ. Cas. Ct. App. 427; Davidson v. McCall Co. (Tex. Civ. App.) 95 S. W. 32. Appellant’s claim for damages not being founded upon an account which under the law could be verified, appellees were not required to deny under oath the justness thereof in order to defeat same. De Long v. Miller (Tex. Civ. App.) 37 S. W. 191; Myers v. Grantham (Tex. Civ. App.) 187 S. W. 532; McCamant v. Batsell, 59 Tex. 363. Appellant by its eighth proposition contends that since it recovered judgment in the justice court against appellees B. K. and R. A. Bain on a verified account, which was not denied under oath by said appellees in said court, the county court had no authority to set aside said judgment on appeal. We overrule this contention. When a cause is appealed from the justice court to the county court, it is tried de novo, and the judgment rendered in the justice court is of no force or effect and cannot be offered in evidence in the county court. Appellant by its ninth and last proposition contends that the judgment rendered by the county court is contrary to the uncontroverted evidence in the cause and contrary to the plain statute law of Texas. This assignment is too general in its nature and scope to be entitled to consideration. We have, however, carefully examined the entire record, and do not believe that the judgment rendered by the trial court under the pleadings in this ease is erroneous. Appellant having based its cause of action alone in the justice court upon a verified account against appellees, and the undisputed facts showing that its claim, if any, is for tort, it was not entitled to judgment, it being a well-settled principle of law that no judgment should be rendered unless there is pleading as well as evidence to support the same. .We have examined all of appellant’s assignments of error and propositions submitted thereunder, and same are overruled. The judgment of the trial court is affirmed.