Opinion
No. 2968.
November 27, 1924. Rehearing Denied December 4, 1924.
Appeal from Lamar County Court; W. Dewey Lawrence, Judge.
Action by the J. B. Colt Company against James W. Reeves. From a judgment for defendant, plaintiff appeals. Reversed and rendered, without prejudice.
September 8, 1919, appellant and appellee entered into a contract in writing whereby appellant, by its agent, one Hood, in consideration of $269.75 appellee was to pay it, sold appellee a generator and appliances specified, constituting a lighting plant, for installation in appellee's dwelling house. The contract contained a stipulation whereby appellant warranted the apparatus "to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship." It was recited in the instrument evidencing the contract that "no agent or representative of the (appellant) company has made any statement or verbal agreements modifying or adding to the terms of conditions herein set forth," and stipulated therein that the terms of the contract as written should not be "altered or modified by any agent of the company." It was provided in the instrument that on a contingency specified appellee should make and deliver his promissory note for said sum of $269.75 to appellant; and appellee afterward, to wit, on October 21, 1919, executed and delivered such a note to appellant. The note was payable October 21, 1920. Appellee having failed to pay the note when it became due, appellant commenced and prosecuted this suit. In his answer appellee alleged that the consideration for his undertaking had failed, in that the lighting plant when installed "was found to be defective in workmanship and material." He alleged, further, that the plant was "not such as he contracted for and was wholly worthless." The answer contained other allegations, charing misrepresentations on the part of the agent who acted for appellant in the sale of the plant, which we do not think it necessary to state. The trial court thought the testimony made only the issue he submitted to the jury, which was as follows:
"Was or was not the lighting plant in controversy in this case so defective in workmanship or material that it was not the plant defendant contracted for?"
The jury having answered the question in the negative, the court rendered judgment that appellant take nothing by its suit.
Allen Baughan, of Paris, for appellant.
Patrick Eubank, of Paris, for appellee.
It affirmatively appears in the record that the judgment was based entirely on the finding of the jury that the lighting plant was "so defective in workmanship or material that it was not the plant which defendant contracted for." That meant no more than that the warranty in the contract (set out in the statement above) covering the sale and purchase of the plant had been violated. There was no finding, and no basis for one in the testimony, that the warranty, or breach thereof, was "accompanied with fraud." Wright v. Davenport, 44 Tex. 164. It further affirmatively appeared that the plant was not entirely worthless for the purpose for which appellee purchased it. On the contrary, the testimony was undisputed that it was merely defective, the effect of the defects being only to occasion inconvenience in lighting and greater expense in the operation of the plant than otherwise would have been incurred. The testimony indicated further that the defects existing could have been repaired and that appellant offered to repair same without cost to appellee.
It has been settled law in this state since the decision of the Supreme Court in the case cited above "that a mere breach of warranty, unattended by fraud, does not entitle the vendee to rescind the contract or return the goods," unless the contract so provides. French Piano Organ Co. v. Thomas, 36 Tex. Civ. App. 78, 80 S.W. 1063; Fetzer v. Haralson (Tex.Civ.App.) 147 S.W. 290; Ulrich v. Piano Co. (Tex.Civ.App.) 199 S.W. 310; Liquid Carbonic Co. v. Migurski (Tex.Civ.App.) 229 S.W. 661; E. F. Elmberg Co. v. Dunlap Hardware Co. (Tex.Civ.App.) 234 S.W. 700; Sessums Motor Co. v. White (Tex.Civ.App.) 239 S.W. 329; Silo Co. v. Alley (Tex.Civ.App.) 180 S.W. 621. In this case the contract did not so provide, and appellee's remedy, therefore, was a recovery of damages he suffered because of a breach of the warranty. (Authorities cited above.) As he did not seek that kind of relief in this suit, the court should have rendered judgment in appellant's favor for the amount of the note sued upon.
Therefore the judgment will be reversed, and judgment as indicated will be rendered here; but such rendition will be without prejudice of the right in appellee to recover damages for the breach of the warranty by appellant if he should seek a recovery thereof.