Avery Co. of Texas v. Harrison Co.

• Decision Date: 20 December 1924
• Docket Number: (No. 596-4069.)
• Citation: 267 S.W. 254
• Parties: AVERY CO. OF TEXAS v. HARRISON CO.
• Court: Texas Supreme Court

Page 254

267 S.W. 254

AVERY CO. OF TEXAS v. HARRISON CO.

(No. 596-4069.)

Commission of Appeals of Texas, Section A.

December 20, 1924.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by J. E. Harrison and another, as surviving partners of the Harrison Company, a partnership, against the Avery Company of Texas. Judgment for plaintiffs was modified by Court of Civil Appeals (254 S. W. 1015), and defendant brings error. Reversed and rendered.

Burgess, Burgess, Sadler, Chrestman & Brundridge, of Dallas, for plaintiff in error.

H. B. Short, of Center, and W. T. Davis, of San Augustine, for defendants in error.

GERMAN, P. J.

J. E. Harrison and E. F. Harrison, as the surviving partners of Harrison Company, a partnership, filed this suit in the district court of San Augustine county, Tex., against the Avery Company of Texas, a corporation, with its principal office and place of business in Dallas county. We will designate the parties as in the trial court.

We have had much difficulty in determining the nature of plaintiffs' cause of action as pleaded. From the pleadings it would appear to be a suit for damages because of breach of warranties in a contract made between plaintiffs and the agents of defendant; while from the argument and counter propositions of plaintiffs' counsel it appears that they consider the suit as one for damages for fraud and deceit practiced by defendant through its agents in the making of a contract for the purchase of a tractor and plows. We therefore find it necessary to set out the substance of plaintiffs' second amended original petition, on which they went to trial.

By this pleading it is alleged: That plaintiffs owned certain lands in San Augustine county which were suitable for the growing of oats, and a part of which they desired to plant in oats for the years 1914 and 1915. That being desirous of purchasing a tractor and plows for the purpose of plowing and cultivating said lands, in June, 1914, they made known their intentions to agents of defendant, explaining to said agents the purposes for which they wanted said machinery, and fully advising them of their intentions to plant said lands in oats during the years 1914 and 1915. That defendant's agents had full and expert knowledge of the machinery and plows suitable and necessary to the purposes of plaintiffs, and were advised that plaintiffs would rely upon such expert knowledge in purchasing the engine and plows that they needed. That being advised of the desires and needs of plaintiffs, the agents of defendant represented that defendant's Avery 20 traction H. B. 35 brake H. B. gas tractor, and defendant's Avery self-lift 5 furrow plow with thribble bottoms were what was needed by plaintiffs and would effectively and economically do the work which they desired to do. That a certain tractor engine was pointed out to plaintiffs by defendant's agents, which was represented to be as good as new, and which it was represented, had been used only about two months. That defendant would sell all of said machinery, plows and accessories, for the sum of $1,340, one half to be paid in cash and the other half by note. That relying upon said representations by defendant's agents, plaintiffs on the 3d day of July, 1914, agreed in writing to take said machinery, upon the terms stated, "in which writing it was warranted that said engine would do said work and pull said plows." It was further alleged that after said tractor and plows were delivered to plaintiffs they would not do the work they were warranted to do; that the engine was not new, or good as new, but was secondhand, and in bad repair. "That all said representations were false, willfully and knowingly made with the intent to deceive plaintiffs, and all said warranties failed." It was also alleged that by reason of the failure of said tractor and plows to do the work which they were warranted to do, plaintiffs were prevented from planting a part of their lands in oats for the years 1914 and 1915, to their damage in the sum of $6,000. "That by reason of the premises said parties have been damaged by the said false representations and failure of warranties of the said defendant in the said sum of $6,000, and the further sum of $670 cash paid, and the further sum of $1,100 the amount of said note." Plaintiffs also alleged that "said representations and warranties on the part of the defendant" were made in San Augustine county, and "that said warranties failed and were breached in San Augustine county, Tex., for which reason the cause of action herein set up arose and a part thereof arose in San Augustine county."

Plaintiffs prayed for damages as above shown, and in the alternative prayed for the difference between the market value of the machinery at the time of the discovery of its unfitness and its value as represented to plaintiffs by defendant's agents.

Defendant filed a plea of privilege to be sued in Dallas county. It also pleaded numerous defenses, but particularly alleged that the contract and agreement between plaintiffs and defendant was in writing, that it contained all of the promises and agreements made by defendant, as well as all warranties, and if there had been a breach of the contract or warranties, then the liability of defendant was to be measured by the provisions of the contract, and that, in accordance with said provisions, plaintiffs had waived all claims they may have ever had against defendant. It was also specially pleaded that the written agreement between the parties provided that defendant company would not be bound by any verbal agreements of any kind made with its agents or dealers; and that therefore plaintiffs were not entitled to rely upon any representation or warranty not contained in the written contract.

The trial court overruled defendant's plea of privilege, and the case was tried without a jury. Judgment was rendered in favor of plaintiffs for $8,011, which was evidently the full amount of damages sued for, with interest. The Court of Civil Appeals reformed the judgment, allowing recovery for only $3,000 as profit on the crop of oats which plaintiffs would have grown for the year 1914 but for the failure of the tractor and plows to do the work which it was represented they would do. 254 S. W. 1015.

It was shown by the evidence that negotiations with the plaintiffs were by one Nordyke and one Hamm, local agents and dealers for defendant; that these agents had no authority to enter into written contracts, but before any contract became binding on the defendant it was necessary to send same to the Dallas office for acceptance. The written agreement between the parties, dated July 3, 1914, was offered in evidence. It shows that plaintiffs ordered defendant to ship to them at San Augustine, Tex., a certain tractor, with usual fixtures and attachments, and certain plows and equipment. It is provided in the contract that the machinery is ordered on approval and subject to the warranty contained in the printed order, and, if the purchaser requests, the settlement may be deposited in the bank to allow one day's trial of the machinery. In case of failure, the property to be turned over to the company without liability to either party. It is further provided that if within six days after the tractor is started the purchaser is not satisfied that it can be made to operate satisfactorily, and proper request is made, the company is to furnish expert operators to assist in the operation of same. The written order contains the following warranties and representations:

"Warranty. — Said Avery gas tractor to be well made, of good material, and in a workmanlike manner, and any piece or part that proves defective within 90 days to be made good at the factory, at Peoria, Ill., free of charge. (Ignition apparatus not guaranteed, except as by the makers of same.)"

"Warranty on Avery Self-Lift Plow. — The Avery self-lift engine gang plows are warranted to be well made, of good material, and in a workmanlike manner, and all castings and shafting that break through fair and proper use, within one year from date of purchase, will be replaced free of charge."

"Representation. — That the said tractor, if an 8 H. P., will pull from two to three 14-inch plows; if a 12 H. P., from three to four 14-inch plows; if a 20 H. P., from four to six 14-inch plows; if a 25 H. P., from five to seven 14-inch plows; if a 40 H. P., from eight to ten 14-inch plows, in ordinary stubble ground, at a depth of from four to six inches; provided the...