C. A. Bryant Co. v. Hamlin Independent School Dist.

• Decision Date: 07 March 1929
• Docket Number: (No. 1106-5023.)
• Citation: 14 S.W.2d 53
• Parties: C. A. BRYANT CO. v. HAMLIN INDEPENDENT SCHOOL DIST.
• Court: Texas Supreme Court

Page 53

14 S.W.2d 53

C. A. BRYANT CO. v. HAMLIN INDEPENDENT SCHOOL DIST.

(No. 1106-5023.)

Commission of Appeals of Texas, Section A.

March 7, 1929.

Certified Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by the Hamlin Independent School District against the C. A. Bryant Company. From the judgment, defendant appealed to the Court of Civil Appeals, which certified questions to the Commission of Appeals. Questions answered.

Stinson, Hair, Brooks & Duke, of Abilene, and Charles E. Coombes, of Stamford, for appellant.

Thomas, Pope & Shapard, of Anson, for appellee.

LEDDY, J.

Certified questions from the Court of Civil Appeals for the Eleventh supreme judicial district. The certificate is as follows: "The above styled and numbered cause is under submission in this court and the appeal is the second one. The first is reported under the same style in (Tex. Civ. App.) 274 S. W. 266. Writ of error was applied for by appellees and dismissed for want of jurisdiction. Attention is called to the decision in that case to the effect that the letter copied in the opinion, together with the order executed by appellee, constituted the contract of the parties and that said contract did not evidence the sale of an installed system and could not be varied by parol evidence unless authorized by appropriate pleadings. Further, that there was no evidence that the equipment sold by appellant to appellee was wholly without value. After the remand there ordered appellee's pleadings were amended so as to allege that the contract sued on was partly oral and partly written and was for the sale and installation of a toilet system supplanting the system appellee then had in use. That the oral offer was subsequently and before its acceptance confirmed by a written letter, expressly guarantying the toilet system odorless, sanitary and satisfactory in every respect, and in compliance with the sanitary laws then in effect, which letter induced the acceptance of the oral offer. That said letter thereby became a material part of the contract of sale and installation, but that said letter and its acceptance did not evidence, nor does it purport to evidence the entire contract of sale and installation of the toilet system. That, in fact, the contract between the parties was for an installed system and guaranteed as a system and not merely as to its integral parts, to wit: eighteen toilet seats with merely a competent installation man to install the same at appellee's expense. That the warranty had failed in that after a few months service said system proved to be unsatisfactory, and worthless, and the odor therefrom became so offensive that appellee was required to discontinue the use of same and that the system as such and its integral parts were wholly worthless, although said system had been operated and cared for strictly in accordance with the directions given by appellant for its use. That the system had been so defectively installed that the contents of the metallic drums, instead of running through the drain pipes furnished and installed by the appellant, percolated and oozed out under the foundations of said building, causing the floors thereof to crack and burst, and that said system was so built into said brick houses that said brick houses could not be used for any other purpose and were wholly worthless to appellee as such. That on account of the breach of said warranty by appellant the value of said buildings had been reduced in the sum of $2,500.00, to appellee's damage in said sum, which damages were in contemplation of the parties at the time said contract for the sale and installation of said toilet system was made, and at the time the written warranty was executed, and that said special damage in the sum of $2,500.00 was directly and proximately caused by the failure of the toilet system in question and the breach by appellant of its written warranty."

"On the trial appellee introduced evidence to the effect that appellant's representative, Hansen, called upon the appellee's agents in person at Hamlin, Texas, for the purpose of selling to appellee a Pease Chemical Toilet System; that said Hansen had notice at the time that appellee then had in use the ordinary dry outside toilets and had no buildings or place to house the proposed toilet system. That Hansen, representing the appellant, offered to sell and install said chemical toilet system, representing that it consisted of commodes, receptacle tanks, septic tanks, ventilators and all pipes and connections that went therewith. That appellee's agents did not have in use any chemical toilet system, had never seen one before, knew nothing about same. That appellant, through its said agent, while on the ground, ascertained the number of students enrolled, the possible population of the district, and therefrom figured the size of the plant, the number of commodes needed and that he with knowledge of the ignorance of the board on such matter, undertook to and did estimate the number of stools needed and the size of the plant and agreed that same be installed and buildings be erected therefor, and to furnish plans and specifications for the buildings and entire system."

"All the above explanation and representations were orally made at the same time by the said Hansen as the representative of the appellant. Said Hansen stated that the system, after it was installed, would be odorless, sanitary and satisfactory in every respect. That the proposition was not then accepted and Hansen was instructed to confirm the proposition in writing before it could be accepted. That appellant, through its said agent, therefore, furnished the following warranty of said system: (Said petition then sets out verbatim the letter heretofore referred to and copied in the opinion of the Court of Civil Appeals, except that as shown in this record said letter contains the following postcript:)

"`I want to impress upon you the necessity of ordering these toilets before the end of the week if you expect to get them in before school starts. At this time we can promise installation by September 1st, but at the rate work is piling up on us we will not be able to do this unless we get your order before Saturday.'

"That after the receipt of the above letter appellee accepted the proposition theretofore made by the said Hansen and appellant afterward furnished the plans and specifications for the building, shipped all material necessary for the installation of the system, including eighteen seats, four cylindrical receptacle tanks, two for each building, furnishing the tees, drain pipes to connect same. That appellant furnished also ventilators and after the foundation of the building was laid, appellant's installation man came out in December, 1920, and undertook to install the system, according to the plans and specifications furnished by appellant. That the installation man furnished by appellant put the drums or receptacle tanks in each building, connected them with the septic tanks built under his supervision and the entire system was completed and installed by Van Turner in the latter part of December, 1920, in accordance with the plans and specifications so furnished.

"That the letter written by appellant hereinbefore referred to was written several days after the oral negotiations between said Hansen and appellee's agents at Hamlin. That after the installation of said system the same operated successfully for a period of some four or five months until some time in May 1921, at which time appellee's agents attempted to drain the receptacles into the septic tanks, but that the contents, instead of running into said tanks, flowed in and under the foundations of the buildings and that the system became so offensive that its use had to be abandoned, and that the foundations of said buildings settled and cracked, and that the buildings...