Bedner v. Dunigan Tool & Supply Co.

• Citation: 180 S.W.2d 919
• Decision Date: 03 May 1944
• Docket Number: No. A-46.,A-46.
• Parties: BEDNER v. DUNIGAN TOOL & SUPPLY CO.
• Court: Supreme Court of Texas

180 S.W.2d 919

BEDNER v. DUNIGAN TOOL & SUPPLY CO.

No. A-46.

Supreme Court of Texas.

May 3, 1944.

Rehearing Denied June 21, 1944.

Error from Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by Dunigan Tool & Supply Company against A. G. Bedner to recover alleged balance due on a note. To review a judgment of the Court of Civil Appeals, 176 S.W.2d 220, affirming a judgment for the plaintiff, defendant brings error.

Affirmed.

Wm. L. Evans, of Fort Worth, and John F. Evans, of Breckenridge, for plaintiff in error.

Harrell & Bowers, of Breckenridge, for defendant in error.

TAYLOR, Commissioner.

The controversy out of which this suit arose, as reflected by the original petition of Dunigan Tool & Supply Company, was concerning A. G. Bedner's refusal to pay a balance of about $1,600 on a note signed by him for the original sum of $34,764.67. As reflected by Bedner's verified original answer and the subsequent pleadings of the parties, the controversy in reality concerned his right to recover from the vendor company the full purchase price, plus interest, of a pumping unit alleged to have been guaranteed to be capable of performing the special work for which he purchased it.

Upon conclusion of the evidence introduced by Bedner the Company moved for an instructed verdict upon the grounds, among others, that (1) it appeared from his testimony that the pump would perform a part of the work for which it was bought and was therefore not worthless to Bedner, and because (2) it appeared from the evidence that after Bedner knew of the defects in the pumping unit he signed the note sued upon (which included the sum charged for the unit) and thereafter ratified his indebtedness, agreeing in writing to pay same. The trial court sustained the motion and rendered judgment in the Company's favor. The Court of Civil Appeals affirmed the judgment primarily upon the ground that the pleadings and evidence did not raise an issue of rescission. It was assumed, however, that the pleadings were sufficient to tender the issue, and upon this assumption the Court held as a matter of law that the evidence did not raise the issue. 176 S.W.2d 220. Bedner's application for writ of error was granted under the view that the Court of Civil Appeals erred in holding as a matter of law, that his pleadings and evidence presented no defense to the amount of the note insofar as it included the purchase price of the pumping unit. We are impelled upon final consideration of the case to affirm the judgments of the courts below, but hold in this connection that the pleadings of Bedner, in the absence of an exception thereto, were sufficient to tender the issue of an implied agreement on the Company's part, to rescind.

Bedner's pleadings were all verified. In his sworn answer, which admitted the execution of the note and chattel mortgage, he alleged affirmatively that the Company was engaged in the business of selling oil well supplies and that he was engaged in the business of oil well drilling; that it became necessary in connection with his business to use a high pressure pumping unit (pump with motor attached) and that he informed the Company of the nature of his operations and of his need to purchase such unit as would be suitable for the operations described; that "thereupon plaintiff recommended and guaranteed to be suitable and satisfactory for the purposes required a certain 50 h. p. Waukesha motor with * * * Gaso Pump attached thereto which defendant * * * purchased from the plaintiff upon such * * * guarantee of suitableness." He further alleged that he took the unit out and tried it and "after many efforts * * * the pump proved * * * incapable" of performing the work and "could not be utilized" by him and "was wholly worthless to him"; and that after the pumping unit had been demonstrated to be worthless for the purpose for which it was purchased he "returned said pump and motor attached, to plaintiff * * * and fully informed plaintiff of said facts and demanded that plaintiff give him credit for the purchase price thereof * * * and the plaintiff retained possession of the said pump with engine attached and has ever since exercised dominion thereover."

Accepting Bedner's allegations as true, the machinery was taken back by the seller after it was demonstrated it could not do the work for which it was sold. Impliedly the Company received it back because obligated to do so under the terms of the sale. In other words it is reasonable to conclude that the Company took the pumping unit back in accordance with an agreement on its part to do so, which, not being expressed, was implied. The pleadings were sufficient, in the absence of an exception thereto of any character, to tender the issue of an implied agreement to rescind.

The recognized test of an implied warranty of suitableness for the particular purpose for which purchased is "whether the buyer informed the seller of the circumstances and conditions which necessitated his purchase of a certain general character of article and left it to the seller to select the particular kind suitable * * * for the buyer's use." Annotation, 90 A.L.R. p. 411, supplementing Annotation, 59 A.L.R. p. 1180. The rule is recognized in this state that when the article purchased is entirely...