DAVID BROTHERS, d/b/a DAVID BROTHERS DESIGN COLLECTION,FROM A COUNTY COURT APPELLANT, v. SOUTHWEST MEDIA CORPORATION, d/b/a D MAGAZINE, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-89-00466-CV
DAVID BROTHERS, d/b/a
DAVID BROTHERS DESIGN COLLECTION,FROM A COUNTY COURT
 
                APPELLANT,
 
v.
 
 
SOUTHWEST MEDIA CORPORATION,
d/b/a D MAGAZINE,
 
                APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES BAKER AND WHITTINGTON
OPINION PER CURIAM
JUNE 28, 1989
        David Brothers, d/b/a David Thomas Design Collection, appeals by way of petition for writ of error a postanswer default judgment entered in favor of Southwest Media Corporation, d/b/a D Magazine. In three points of error, Brothers argues that there is no evidence, or alternatively insufficient evidence, to support the trial court's judgment and that the trial court erred in awarding attorneys' fees to someone who was not a party to the suit. We affirm the trial court's judgment.
        Brothers contracted with Southwest to run an advertisement in the December, 1987, issue of D Magazine. Southwest invoiced Brothers for the ad. When Brothers failed to pay, Southwest sued, asserting, among other claims, a claim for breach of contract. Brothers filed an answer asserting certain affirmative defenses but failed to appear when the cause was set for trial.
        At trial before the court, the contract and the invoice were duly admitted into evidence. Nina Spiegel, the credit manager for Southwest, testified as follows:
    Q. . . . Did the contract run in the magazine?
 
    A. Yes, it did.
 
    Q. And did you charge a fee for it?
 
    A. Yes, we did.
 
* * *
    Q. . . . Now, you charged the fee to David Brothers for running the advertising?
 
    A. Yes.
                In his first point of error, Brothers contends that there is no evidence to support the trial court's judgment. In reviewing no evidence points, we consider only the evidence and inferences tending to support the judgment and disregard all evidence to the contrary. If there is any evidence of probative value to support the judgment, we must affirm. See International Bank, N.A. v. Morales, 736 S.W.2d 622, 624 (Tex. 1987). Brothers' argument is that Spiegel testified only that Southwest ran the contract, not the advertisement itself, in the December, 1987 issue. Yet Spiegel also testified that Southwest charged a fee "for running the advertising." This testimony constitutes some probative evidence that the advertisement itself, and not the contract, was run. We overrule Brothers' first point of error.
        Brothers next argues that, in any event, there was insufficient evidence to support the trial court's finding that the advertisement actually ran. In reviewing such a point, we must consider and weigh all of the evidence to determine if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Ellsworth v. Bishop Jewelry & Loan Co., 742 S.W.2d 533, 535 (Tex. App.--Dallas 1987, writ denied). We may not substitute our judgment for the trier of fact, and where there is conflicting evidence the fact finder's decision will be left undisturbed. Ellsworth, 742 S.W.2d at 535.
        The advertising contract was introduced into evidence. By its terms, the contract provided that "[a]ll advertising is invoiced on the day of publication issuance." The invoice, dated November 24, 1987, was introduced into evidence. The invoice, taken together with the contract, is some evidence that Brothers' advertisement ran in a publication issued on that date. Finally, we have Spiegel's testimony that the contract ran in the magazine. The testimony was somewhat inarticulate, but a witness is not required to be perfect; if a witness's testimony is mistaken or unclear, it is subject to correction or explanation. See State v. Hartman, 338 S.W.2d 302, 309 (Tex. Civ. App.--Austin 1960, writ ref'd n.r.e.). Furthermore, the fact finder has a right to use his common knowledge and experience in life in weighing the evidence before him. See Byars v. Richardson, 417 S.W.2d 854, 859 (Tex. Civ. App.--Beaumont 1967, writ ref'd n.r.e.). The fact finder, knowing that magazines do not ordinarily publish advertising contracts, could have concluded that Spiegel's testimony involved merely a slip of the tongue. There was thus ample evidence to support the finding that Brothers' advertisement did in fact run in the December, 1987 issue of D Magazine. Conversely, there was no evidence presented that the advertising did not run. We overrule Brothers' second point of error.
        In his third point of error, Brothers complains that the trial court awarded attorneys' fees to "STILLMAN & BENNETT, P.C., Attorneys at Law, for Plaintiff [Southwest] herein," on the theory that the law firm of Stillman & Bennett, P.C., was not a party to the suit. Brothers makes no other complaint about the award. It is clear, however, that any claim that Stillman & Bennett, P.C., might have for attorneys' fees against Brothers is entirely derivative of the claim of Southwest against Brothers. The award to Stillman & Bennett, P.C., is not in its own right, but in its capacity as counsel for Southwest. Because there is no dispute that Southwest could assert a claim for attorneys' fees in its own right, it could assert that claim through its counsel. See Rainwater v. Haddox, 544 S.W.2d 729, 732 (Tex. Civ. App.--Amarillo 1976, no writ). Therefore, Brothers' complaint about the judgment, at least to that extent, is a complaint only of form, not of substance. Section 38.001 of the Texas Civil Practice and Remedies Code, permitting recovery of attorneys' fees in contract actions, is to be liberally construed to promote its underlying purposes. TEX. CIV. PRAC. & REM. CODE ANN. §§38.001(8), 38.005 (Vernon 1986). We decline to thwart those purposes by elevating form over substance.
        While we are not to be understood as encouraging the drafting of judgments awarding fees directly to attorneys, rather than to the clients whose claim for fees they actually are, we conclude that error, if any, in this case was harmless. Nothing useful would be served by remanding this cause to the trial court for the sole purpose of amending its judgment to award attorneys' fees directly to Southwest, when it is clear that any collection of attorneys' fees undertaken by Stillman & Bennett, P.C., would be on behalf of Southwest and inure directly to its benefit. We overrule Brothers' third point of error.
        We affirm the trial court's judgment.
                                                  PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
 
 
89-00446.F
 
 
File Date[01-02-89]
File Name[890466F]