669 S.W.2d 779 (Tex. Civ. App. 1984)
In July 1981, Supermind Publishing Co., Inc. contracted with Printing Center of Texas, Inc. to print 5,000 books entitled "Supermind Supermemory."1 The parties executed a written bid proposal dated July 31, 1981, which covered essential terms including quantity, trim size, and the type of paper and cover.2 The specified paper was thirty-pound white newsprint, and Supermind's witness was shown a sample of the newsprint to be used.3 Supermind paid a $2,900 deposit pursuant to the contract.4
When the books were delivered, Supermind rejected them on the ground that they failed to conform to the contract.5 The delivered books had pages that were gray instead of white, off-center cover art, crooked and wrinkled pages, and inadequate perforation on a pull-out page.6 Supermind filed suit against Printing Center in county court at law seeking a refund of the deposit.7
Supermind's original petition sought the $2,900 deposit plus interest and reasonable attorney's fees.8 Supermind later amended its petition to specify additional amounts for attorney's fees, including $900 previously rendered, fees through trial, and $3,500 each for appeals to the Court of Appeals and Supreme Court.9 The case was tried to a jury, which found that the books failed to conform to the contract in some respect.10
The trial court entered judgment awarding Supermind the $2,900 deposit and $3,000 as reasonable attorney's fees.11 Printing Center appealed, raising issues about the admission of evidence on attorney's fees, the sufficiency of the evidence supporting the jury's finding of nonconformity, and the trial court's jurisdiction to enter the judgment.12
Whether appellee laid the proper predicate for admission of an attorney's billing statement as proof of reasonable attorney's fees?13
Under TEX. REV. CIV. STAT. ANN. art. 3737e § 2, the identity and mode of preparation of a memorandum or record may be proved by the testimony of the custodian or other qualified witness even though the witness lacks personal knowledge of the contents.14 Such lack affects only weight and credibility but not admissibility.15 A party waives any objection that billings constitute improper summaries of original records by failing to raise that specific deficiency at trial.16
Yes. Patricia Burrows, a legal secretary in appellee's attorney's office, testified as custodian of the records when the letter billings were offered under the business records exception.17 Although cross-examination established that Burrows lacked personal knowledge of the facts recited in the billings, she was not the custodian when the records were made.18 The statute expressly permits such testimony.19
It treats the absence of personal knowledge as going only to weight.20 Appellant raised no trial objection that the billings were summaries of original records whose voluminous character, admissibility, and availability for inspection had not been shown.21 This waived that ground on appeal.22
Appellee laid the proper predicate for admission of the attorney's billing statements as proof of reasonable attorney's fees.23
Whether the evidence was legally and factually sufficient to support the jury's finding that the books failed to conform to the contract?24
Under TEX. BUS. & COM. CODE ANN. § 2.601, if goods or the tender of delivery fail in any respect to conform to the contract, the buyer may reject the whole.25 Conformity requires complete performance according to both express terms and implied warranties.26 This includes the warranty of merchantability under § 2.314. Goods must pass without objection in the trade and be fit for their ordinary purposes.27 Substantial performance is not the legal equivalent of conformity.28
Yes. The written contract specified thirty-pound white newsprint, and appellee's witness testified that the tendered books had gray pages rather than the white sample shown before contracting.29 This created an express warranty under § 2.313(a)(3) that the goods would conform to the sample.30 Additional evidence showed off-center cover art, crooked and wrinkled pages, and inadequate perforation on a pull-out page.31 Because appellant knew the books were intended for public sale, the implied warranty of merchantability applied.32 A jury could reasonably conclude that books with these defects were not fit for ordinary commercial sale or appealing to the public.33
Appellant failed to prove bad-faith rejection or to request a special issue on that defense.34
The evidence was legally and factually sufficient to support the jury's finding that the books failed to conform to the contract.35
Whether the judgment of the trial court is void because it did not have jurisdiction to award a judgment in excess of its maximum jurisdictional limit?36
Jurisdiction over the amount in controversy is determined by the good-faith allegations in the original petition.37 Subsequent amendments seeking only additional attorney's fees that accrue from further prosecution of the suit do not divest the court of jurisdiction once properly acquired.38 A claim that the original allegations were fraudulently made to confer jurisdiction must be pleaded and proved in the trial court or it is waived.39
No. Supermind's original petition sought recovery of the $2,900 deposit plus interest and reasonable attorney's fees.40 This amount did not clearly exceed the county court at law's $5,000 jurisdictional limit exclusive of interest.41 The later amended petition added specific amounts for previously rendered fees, trial fees, and appellate fees.42 These additions did not divest jurisdiction.43 Printing Center never pleaded or proved that the original allegations were fraudulent.44 Therefore it waived any such contention.45
The judgment of the trial court is not void for lack of jurisdiction.46