Burchfield v. Tanner

• Decision Date: 12 November 1943
• Docket Number: No. 11358.,11358.
• Citation: 175 S.W.2d 756
• Parties: BURCHFIELD et al. v. TANNER.
• Court: Texas Court of Appeals

Page 756

175 S.W.2d 756

BURCHFIELD et al. v. TANNER.

No. 11358.

Court of Civil Appeals of Texas. San Antonio.

November 12, 1943.

Rehearing Denied December 8, 1943.

Appeal from District Court, Cameron County; Jas. S. Graham, Judge.

Action by K. L. Tanner against L. M. Burchfield and others, copartners operating the Service Gin Company, for breach of warranty. From a judgment for plaintiff, after plaintiff had filed remittitur, defendants appeal.

Judgment in accordance with opinion.

H. L. Faulk, of Brownsville, Carter & Stiernberg, of Harlingen, and A. H. Moore, of La Feria, for appellants.

Seabury, Taylor & Wagner, of Brownsville, for appellee.

NORVELL, Justice.

L. M. Burchfield, R. H. McMinn and J. E. Robinson, co-partners operating the Service Gin Company of La Feria, Texas, have appealed from a judgment for $3,014.67, in favor of K. L. Tanner, which was based upon twenty-one special issues answered by a jury.

The jury found (1) that before purchasing approximately sixty bushels of cottonseed of the Del Fos variety in the early part of March, 1942, Tanner, the appellee, advised McMinn, one of appellants (who was acting for the partnership) that he was purchasing said seed for immediate planting purposes; (2) that appellants sold appellee sixty bushels of Del Fos seed for immediate planting purposes; (3) that appellee believed said seed to be suitable for planting purposes; (4) that appellee believed said deed to be suitable at the time he planted it; (5) that, however, said seed were not reasonably sound and suitable for planting purposes; (6) that appellee purchased forty-two bushels of Del Fos cotton seed from the Quality Gin Company; (7 and 8) that appellee picked 32,452 pounds of cotton seed and 16,029 pounds of lint cotton from approximately 80 acres of land which he had in Cameron County; (9) that the market value of said lint cotton was $0.166 per pound; (10) that the reasonable average cost to appellee for picking the seed cotton was $1.75 per 100 pounds; (11) that had the cotton seed purchased by appellee from appellants been sound and suitable for planting purposes, appellee would have grown 30,000 pounds of lint cotton on said eighty-acre tract, and (12) 90,000 pounds of cotton seed; (13) that the average value of lint cotton in Cameron County, such as would have been raised by appellee had the seed been suitable was $0.18 per pound, (14) while the average value per ton of such cotton seed would have been $44 per ton; (15) that the cost of picking such seed cotton would have been $1.25 per hundred pounds; (16) that the reasonable cost to appellee for replanting his eighty acres because of a poor stand was $192.50; (17, 18, 19 and 20) that appellee incurred an additional expense of $92.50 in hoeing, cultivating and dusting costs because of the poor stand resulting from the use of unsatisfactory seed; and (21) that each sack of seed sold by appellants to appellee did not have attached thereto a tag provided by the Commissioner of Agriculture, giving the name and address of the person who labeled the seed, the kind of seed, a statement where the seed was grown, the percentage of germination and lot identification or lot number, per cent of weed seed and the name and approximate number of secondary noxious weed seed, other seed crops and percentage of inert matter.

After the jury had been discharged, appellee filed a remittitur of 30,000 pounds of cotton seed, or the value thereof, and presented to the court an affidavit signed by all twelve of the jurymen to the effect that the answer of 90,000 pounds made by them to Special Issue No. 12 was a unanimous clerical mistake and that an answer of 60,000 pounds was actually agreed upon. It was agreed between the parties that all of the jurymen would testify in open court in the manner set forth in the affidavit signed by them. The court accepted the remittitur and entered judgment as if the jury had answered 60,000 pounds in answer to Special Issue No. 12, instead of 90,000 pounds. The judgment is based upon a calculation set out therein.

Tanner was credited with 60,000 pounds of cotton seed at $44 per ton; 30,000 pounds of lint cotton at 18 cents a pound, and certain expense items necessitated by a replanting of his field. Offset against these items were the cost (as found by the jury) of picking 90,000 pounds of seed cotton and the ginning of the same as well as the value of the lint cotton and cotton seed actually raised by him. The settling of the various items involved left a balance in favor of Tanner of $3,014.67.

Appellants present four points.

By their first point appellants insist as a matter of fundamental error that there is a fatal variance between the pleadings and the issues submitted to the jury in that the pleadings declare upon an express warranty while the issues were submitted upon the theory of implied warranty. We overrule this point. We believe the petition sufficiently sets forth a claim of liability upon the theory of an implied warranty. Further, the record does not disclose that appellants objected to the submission of issues because of a deficiency in pleading, and the point is therefor waived under the provisions of Rule 274, Texas R.C.P.

By their second point appellants assert that the jury's answer to Special Issue No. 5 is contrary to the overwhelming preponderance of the evidence and is not supported by the evidence. In determining the sufficiency of the evidence, "we must view the case from the standpoint of the appellee, in whose favor judgment was rendered below, and give to [his] testimony full credence and all the weight to which it is entitled, irrespective of any testimony to the contrary." Federal Life Ins. Co. v. Thornton, Tex.Civ.App., 21 S. W.2d 352, 354. We hold that the evidence is sufficient to support the jury's finding that the seed purchased from appellants was not reasonably sound and suitable for planting purposes. We likewise hold that the finding is not against such an overwhelming preponderance of the evidence as would authorize our setting the same aside. Nickel v. Nickel, Tex.Civ.App., 130 S.W.2d 1085; 3 Tex.Jur. 1097, § 769.

By their fourth point appellants assert that there is an irreconcilable conflict between the jury's answers to Special Issues Nos. 11 (30,000 pounds of lint cotton) and 12 (90,000 pounds of cotton seed) in that "when applied to the pleadings the answer to Special Issue No. 11 is to the effect that the (appellee) would have produced 60 bales of cotton, while in answer to Special Issue No. 12, when applied to the pleadings, (is a) finding that appellee would have produced 90 bales of cotton." Appellee pleaded that had the cotton seed purchased of appellants been sound and suitable for planting purposes he would have raised between 70 and 80 bales (of an average of 500 lbs.) of lint cotton upon his eighty-acre tract of land, and that the seed would have averaged 1,000 lbs. to the bale. The undisputed testimony in the record is that the ratio of cotton seed to lint cotton is 800 to 1,000 pounds of cotton seed to 500 pounds of lint cotton. The conflict is readily apparent. The finding of 90,000 pounds of cotton seed indicates at least 90 bales or 45,000 pounds of lint cotton. The finding of 30,000 pounds of lint cotton indicates from 48,000 to 60,000 pounds of cotton seed. However, the action of the trial court in either disregarding or allowing a correction of the jury's answer to Special Issue No. 12, obviously removed this conflict.

This brings us to a consideration of appellants' third point, wherein they recognize the trial court's power to consider a unanimous mistake of a jury to the extent of refusing to enter judgment thereon but assert that under authority of Caylat v. Houston E. & W. T. R. Co., 113 Tex. 131, 252 S.W. 478, the trial court was unauthorized to enter a judgment against them. The Caylat case sets forth the law of this State which is applicable to unanimous mistakes of juries except as it may be modified as to the use of jurors' affidavits by the case of ...