Andrews v. Austin Motor Truck Co., 10158

• Decision Date: 01 July 1953
• Docket Number: No. 10158,10158
• Citation: 259 S.W.2d 772
• Parties: ANDREWS v. AUSTIN MOTOR TRUCK CO., Inc.
• Court: Texas Court of Appeals

Page 772

259 S.W.2d 772

ANDREWS v. AUSTIN MOTOR TRUCK CO., Inc.

No. 10158.

Court of Civil Appeals of Texas, Austin.

July 1, 1953.

Rehearing Denied July 31, 1953.

Pichinson & Utter, Corpus Christi, John D. Coats, Austin, by Norman Utter, Corpus Christi, for appellant.

Jerome M. Smith, Yelderman & Martin, Austin, for appellee.

HUGHES, Justice.

T. A. Andrews, appellant, sued Austin Motor Truck Company, Inc., for damages alleged to have resulted from a false representation made by its agents in selling appellant a G. M. C. truck and for rescission of the contract of sale. The alleged misrepresentation was that the truck was a 1952 model.

Appellee answered by filing numerous special exceptions, a general denial and a cross action.

Following the filing of this answer and cross action and without any intervening action by the court on the exceptions appellee filed a motion for summary judgment. This motion called the attention of the court to the special exceptions in the answer and requested a ruling thereon and alleged that when such rulings were made 'it will be conclusively shown as a matter of law that plaintiff has wholly and entirely failed to state a cause of action against this defendant.'

In the alternative the motion for summary judgment averred that the truck sold appellant was a 1952 model and a supporting affidavit of Carlos Walker, manager of appellee, was attached.

Appellant filed a counter affidavit the sufficiency of which appellee challenges. We need not determine this question for reasons which are stated later.

The motion for summary judgment came on for hearing and 'the court proceeded to hear and consider said motion together with the affidavits filed by the defendant, Austin Motor Truck Company, Inc., the counter-affidavits of the plaintiff, T. A. Andrews, the pleadings of the parties relative to the motion for summary judgment that plaintiff take nothing by his action, the depositions as filed herein, and the court having considered said motion, the affidavits and counter-affidavits and the other matters hereinabove recited, is of the opinion and so finds that under the pleadings of the plaintiff as filed herein, in connection with the several affidavits and depositions, no triable issue of fact, is raised by the pleadings of plaintiff and for which reason judgment should be entered granting the motion for summary judgment that plaintiff take nothing by his action as filed herein.'

The judgment indicated was rendered.

It is to be noted that the judgment does not dispose of the exceptions to the pleadings of appellant except, perhaps, by implication.

The deposition referred to in the judgment of the court was that of appellee's Mr. Walker. He testified that the truck sold appellant was received from the manufacturer in June 1951, accompanied by a 1951 manufacturer's certificate. He further testified that about November 1, 1951, the factory advised his company that if they would return all 1951 certificates they would be replaced by 1952 certificates. Thereupon the 1951 certificate on the truck sold appellant was replaced by a 1952 certificate.

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