HEDRICK BEECHCRAFT-HOUSTON, INC.,FROM A COUNTY COURT APPELLANT, v. CONTEMPORARY FINANCIAL CORPORATION, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00957-CV
 
HEDRICK BEECHCRAFT-HOUSTON, INC.,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
CONTEMPORARY FINANCIAL CORPORATION,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, BAKER, AND KINKEADE
OPINION BY JUSTICE BAKER
APRIL 28, 1989
        In this sworn account case, when Hedrick Beechcraft-Houston, Inc. rested its case before the jury, the trial court granted Contemporary Financial Corporation's motion for judgment. Hedrick appeals, contending that the trial court erred in granting Contemporary's motion because Hedrick presented sufficient evidence to raise fact questions for the jury's determination and because Hedrick presented sufficient evidence to raise fact questions concerning the authority of Contemporary's representative or agent. We agree. We reverse the trial court's judgment and remand the cause for a new trial.
        Hedrick sued Contemporary on a sworn account for an unpaid balance for goods and services furnished by Hedrick to Contemporary. The account arose out of Contemporary's request for a test flight of a Hawker jet airplane that Contemporary was interested in purchasing. The account included invoices for fuel costs, crew costs, and engine rental. Hedrick contended that the agreement between the parties contemplated that Contemporary would pay all fuel costs, crew costs, and engine rental for the test flight. Contemporary paid the fuel costs but refused to pay crew costs and engine rental costs.
        Contemporary answered the suit with a sworn denial contending that the account made the basis of Hedrick's petition was not just or true. In answer to Hedrick's request for admissions, Contemporary admitted that Hedrick delivered the goods, wares, merchandise, or services described on Hedrick's invoices to it. Contemporary also admitted that it accepted the goods, wares, merchandise, or services shown on the invoices. Contemporary denied that the prices charged as shown on the invoices were agreed to between the parties. Contemporary's position was that although it agreed to the test flight and agreed to pay for fuel costs, it denied that it ever agreed to pay for crew and engine rental costs.
        Prior to submitting evidence to a jury, the parties entered into a stipulation. When the trial court asked whether Contemporary agreed to this stipulation, Contemporary's counsel stated that it stipulated that the airplane was provided, that it was used, that Hedrick did make demand on Contemporary for a price, and that the price, had it been agreed to, would have been reasonable and customary.
        John Willis, vice president/sales manager for Hedrick, testified. Willis testified that he dealt in person and by telephone with Mr. Tom Wachendorfer, whom Willis identified as aviation director for Contemporary. At oral argument, Contemporary contended that it made a timely objection to the identification of Wachendorfer as its aviation director, but the record does not support this contention. Willis testified that early in April 1986, Tom Wachendorfer came to Hedrick's place of business and inspected the airplane, as it was the type that Contemporary desired to purchase. Willis further testified that following this evaluation, Contemporary made an offer directly to the airplane's owner and furnished a copy of that offer to Hedrick as Hedrick was acting as a broker. Willis testified that the owner declined Contemporary's offer.
        Subsequent to this event, Willis was recontacted by Wachendorfer. Wachendorfer requested another opportunity to reevaluate the airplane for Contemporary and requested a demonstration trip. Wachendorfer asked Willis about the charges that would be made if the trip could be arranged. Willis testified that Hedrick proposed that it would arrange a demonstration flight if Contemporary would pay the fuel costs, the crew costs, and the engine rental costs. Willis further testified that Wachendorfer told him that he would have to confirm the arrangement and that the charges specified would have to be approved by Mr. Fichtner (identified in the record as president of Contemporary). Willis testified that Wachendorfer recontacted him, allegedly stated that the charges were approved by Fichtner, and that the demonstration flight was scheduled. Willis testified that Hedrick's records reflected that Contemporary did pay the fuel costs but that the other costs were not paid and that the balance due on the account was $3,760.89. At the conclusion of Willis's testimony, Hedrick's attorney testified as to his reasonable attorney's fees, and Hedrick rested its case.
        Contemporary promptly moved for a directed verdict on the ground that Hedrick had failed by the presentation of its case in chief to demonstrate that anyone from Hedrick had an agreement, either orally or in writing, from anyone with Contemporary that Contemporary would pay crew and engine rental costs. Contemporary contended that there was no evidence that Tom Wachendorfer was its representative or agent. The court granted Contemporary's motion for directed verdict, stating it was granted not as an instructed verdict, but as a motion for judgment. The trial court discharged the jury and subsequently entered judgment that Hedrick take nothing.
        The only issue presented on appeal is whether there was any evidence of an agreement between Hedrick and Contemporary that Contemporary would pay for the crew and engine rental costs incurred during the demonstration flight which would raise a material fact issue for the jury's determination. The rule is well-settled that it is error to instruct a verdict when the evidence raises any material fact issue. In passing upon the question of the authority of the trial court to instruct a verdict, the evidence must be considered in the light most favorable to the party against whom the verdict is instructed. An instructed verdict is warranted only when the evidence shows that no other verdict can be rendered and the winning party is entitled to judgment as a matter of law. If there is any conflicting evidence in the record of a probative nature, either direct or circumstantial, the case is for the jury. See Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952); White v. White, 141 Tex. 328, 172 S.W.2d 295, 296 (1943); Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725, 728-29 (1930).         To make this determination, the trial court, without passing upon the credibility of the witnesses, must accept as true all evidence which, when liberally construed in favor of the party adverse to the motion for instructed verdict, tends to support the adverse party's contention. The trial court must also indulge every reasonable inference deducible from the evidence in the adverse party's favor and disregard all contradictory evidence favorable to the movant. If this evidence amounts to more than a scintilla, a fact issue is raised. See Humphreys v. Haragan, 476 S.W.2d 880, 882 (Tex. Civ. App.--Amarillo 1972, no writ).
        When the trial court granted Contemporary's motion, the evidence consisted of the stipulation by Contemporary that Hedrick furnished the airplane for a demonstration flight, that Contemporary used the airplane for that purpose, that Hedrick made a demand on Contemporary for a price, and that the price [$3,760.89], had it been agreed to, would have been reasonable and customary. Willis testified that he dealt in person and by telephone with Tom Wachendorfer, who was identified as aviation director for Contemporary. The first occasion for Willis's contact with Wachendorfer was when Wachendorfer came to Hedrick's premises and evaluated the airplane in early April. Contemporary made an offer to purchase the airplane from the owner, but this offer was declined.
        Willis then testified that Wachendorfer recontacted him and, in the hopes that Wachendorfer could convince Contemporary to buy the airplane, requested that a demonstration flight be arranged. Willis testified that he quoted the charges for a demonstration flight to include fuel costs, crew costs, and engine rental costs. Willis testified that in the course of these negotiations, Wachendorfer stated that he would have to have the charges approved by Mr. Fichtner, who was president of Contemporary. Willis testified that Wachendorfer recontacted him and stated that the charges were approved by Mr. Fichtner, and the demonstration flight was arranged. In response to questions by Contemporary's counsel on voir dire examination, Willis testified that he directly contacted Wachendorfer at the office of Contemporary Financial Corporation by telephone.
        When passing on the propriety of a directed verdict, this Court is required to view the evidence and the inferences therefrom in the light most favorable to the losing party in the trial court and to disregard all evidence and inferences adverse to that party. Rogers v. Searle, 544 S.W.2d 114, 115 (Tex. 1976); see Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 753 (Tex. 1970). We hold that Hedrick introduced evidence sufficient to raise a fact issue before the jury and that the trial court erred in granting Contemporary's motion for directed verdict. We sustain Hedrick's points one and two.
        We reverse the trial court's judgment and remand the cause for a new trial.
                                                                                                                                                             __________________________
                                                          JAMES A. BAKER
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00957.F
 
 
File Date[01-02-89]
File Name[880957]