Bell v. Self

• Decision Date: 15 February 1919
• Docket Number: (No. 8991.)
• Citation: 210 S.W. 304
• Parties: BELL et al. v. SELF.
• Court: Texas Court of Appeals

210 S.W. 304

BELL et al. v. SELF.

(No. 8991.)

Court of Civil Appeals of Texas. Ft. Worth.

February 15, 1919.

Rehearing Denied March 22, 1919.

Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.

Action by Keller J. Bell and another against Norman W. Self. From judgment for defendant, plaintiffs appeal. Affirmed.

Flournoy, Smith & Storer and Dedmon, Potter & Pinney, all of Ft. Worth, for appellants.

Slay, Simon & Smith, of Ft. Worth, for appellee.

DUNKLIN, J.

Keller J. Bell and Sid R. Clift, partners doing business in the trade-name of Western Silo Company, sued Norman W. Self upon two promissory notes executed by the defendant in consideration of the sale to him by plaintiffs of two silos which were manufactured by plaintiffs. The defendant denied liability on the notes on the ground that he was induced to sign them and give security therefor not required by the contract of purchase by a warranty made by plaintiffs' agent that the silos, which had then been shipped to defendant and were ready for delivery, would when erected in accordance with plaintiffs' specifications and directions withstand ordinary winds prevailing in Wilbarger county, where defendant resided; that said silos were afterwards so erected and had been blown down by such winds and by reason thereof were worthless, and the consideration for the notes sued on had wholly failed. Defendant claimed that such contract of warranty and the execution of the notes given in consideration therefor was to that extent a modification and change of the prior original written contract of purchase, which was in writing. Defendant also by cross-action sought a recovery against plaintiffs for damages sustained by him in the matter of expenses incurred in the erection of the silos in reliance upon plaintiffs' warranty that they would withstand the tests above mentioned.

Judgment was rendered denying plaintiffs a recovery, from which they have appealed. Defendant also was denied a recovery on his cross-action, but no appeal was taken from that judgment.

The trial was without a jury, and following are the findings of fact and conclusions of law filed by the trial judge:

"The court finds: That on February 2, 1914, the plaintiffs and defendant entered into a written contract, by the terms of which plaintiffs agreed to manufacture and deliver to defendant at Vernon, Tex., two silos, for which defendant agreed to pay plaintiffs $1,068.00, one-fourth thereof in cash upon delivery of the silos, and the balance to be paid on January 1, 1915, without interest, which contract provided that failure to make settlement as above specified releases the plaintiffs from all responsibility and makes the entire amount due and payable in Ft. Worth, Tex., and that, if upon receipt of silo, any part is found defective or missing, defendant should within 10 days notify plaintiffs in writing and give them reasonable time to replace all such parts, and at such time as such replacements are made the responsibility ceases; that said contract constitutes the entire and only agreement between the parties, and plaintiffs would not, under any circumstances, allow any deductions of whatsoever nature not specified in said contract. That, to induce defendant to enter into the contract, plaintiffs, their agents and representatives, represented to defendant that the anchorage system which plaintiffs furnished as a part of said silos was amply sufficient to hold the silos up under ordinary conditions and in ordinary winds where they were to be erected in Wilbarger county, Tex., and that said system had been tried out and tested by plaintiffs and had proven good, and that plaintiffs would guarantee that said silos would stand up under ordinary conditions. That defendant believed said representations to be true and relied thereon, and but for his reliance thereon would not have entered into the contract to purchase the silos. That defendant was wholly unacquainted with the silos and the means of anchoring same, and relied on said representations in making the purchase, and plaintiffs' agents at the time knew that defendant was unacquainted with the silos and the anchorage system and was relying upon their statements and representations. That plaintiffs and their said agents knew, at the time of making said statements and representations, that they were false and untrue. That plaintiffs authorized their said agents to make such representations and guaranty. That said representations were in fact false. That said anchorage system was wholly insufficient to sustain the silos under ordinary conditions in Wilbarger county, Tex., and said silos were worthless and of no value whatever.

"That said silos were shipped to Vernon, Tex., about April, 1914, with freight charges unpaid, and the common carrier handling same refused to deliver same until the freight charges were paid. That about said date defendant was informed that said anchorage system was wholly insufficient to hold the silos up under ordinary conditions and was told that the silos were worthless and of no value, and that by reason thereof defendant refused to accept the silos and notified plaintiffs thereof. That thereafter plaintiffs sent their agent, F. W. Schopmeyer, to see defendant concerning the silos. That the said Schopmeyer called upon defendant at Vernon, Tex., about the 19th day of May, 1914, and defendant immediately notified him that he (defendant) would not accept the silos under any circumstances and unconditionally refused to accept them and informed said Schopmeyer that his reason for so refusing was that he had heard that the silos would not stand up and were worthless, and Waggoner's Champion silos had all blown down, and that he offered to let defendant have them if he wanted...