C. H. Dean Co. v. Standifer

• Decision Date: 16 November 1904
• Citation: 83 S.W. 230
• Parties: C. H. DEAN CO. v. STANDIFER.
• Court: Texas Court of Appeals

83 S.W. 230

C. H. DEAN CO. v. STANDIFER.

Court of Civil Appeals of Texas.

November 16, 1904.

Appeal from Karnes County Court; A. J. Parker, Judge.

Action by the C. H. Dean Company against M. Standifer. From a judgment for defendant, plaintiff appeals. Reversed.

Keller & Keller, for appellant. M. B. Little, for appellee.

NEILL, J.

Appellant sued appellee to recover $58, the balance of the purchase money alleged to be due for a refrigerator sold by the former to the latter. Appellee answered that he was a butcher, and bought the refrigerator upon a special warranty that it would be delivered in good condition, and that it would not leak, for the purpose of keeping his meat in good condition; that there was a breach of warranty, in that the refrigerator was not delivered in good condition, but leaked, and was wholly worthless; that he had paid $28 of the purchase price, and that he lost, by reason of its not being the kind warranted, $100 worth of meat which he had placed for keeping in the refrigerator. The amount of money paid and the value of the meat lost were pleaded in reconvention, and judgment asked therefor. By supplemental petition appellant excepted to the plea in reconvention; specially denied the contract of warranty, averring that, if such contract was made, it was by an agent, who had no authority to make such contract; that appellee was estopped from recovering on the alleged breach of warrant for the reason he had made payments after he knew of the defects, and had afterwards sold the refrigerator for more than he bought it for. The exceptions were overruled, the case was tried before a jury, and the trial resulted in a judgment of $1 in favor of the appellee. As we shall reverse the judgment, we will say no more about the facts than is necessary to a consideration of the questions presented by the assignments of error.

There was testimony tending to prove (1) the warranty; (2) its breach; (3) the payment, after discovery of the defects of a part of the purchase money; and (4) that appellee lost meat by reason of the refrigerator not being such as warranted. But the only evidence of the quantity lost, or its value, was the testimony admitted over appellant's objection, for which, as one reason, we are going to reverse the judgment. It is contended by appellant that the court erred in not sustaining its exceptions to appellee's plea in reconvention, because the damages sought to be recovered thereby are too remote, speculative, and uncertain to constitute a cause of action; that, if there were a warranty, and a breach thereof, the true measure of damages is the difference between the value of the property as it actually was and what would have been its value had it been as represented or warranted. Ordinarily, the measure of damages for a breach of warranty is the difference between the actual value and the agreed value of the article sold, with interest. Anderson v. Duffield, 8 Tex. 237. But where the parties, at the time of making the contract, had in contemplation some special end or purpose for which the article was warranted to be fit, and if the buyer, in endeavoring to apply the article to the purpose it was warranted as suitable, sustains naturally and proximately some loss incidental to such application, compensation for such loss may be included. Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; Beeman v. Banta, 118 N. Y. 538, 23 N. E. 887, 16 Am. St. Rep. 779; Tatro v. Brown, 118 Mich. 615, 77 N. W. 274; Stranahan Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634; McCaa v. Elam Drug Co., 114 Ala. 74, 21 South. 479, 62 Am. St. Rep. 88. For example, in Beeman v. Banta, supra, where the seller of a refrigerator warranted that it would keep meats until the time for spring market and the buyer filled it with meat, and the meat was lost through defects in the refrigerator, it was held that the measure of damages was not simply the cost of remedying the defect, but included the value of the meat lost, estimated at what it would have been had it kept until the spring market. If, therefore, when appellant sold appellee the refrigerator, he knew it was purchased by him as a butcher for the purpose of keeping his meat, or was charged with notice of such fact from the very nature of the sale and the circumstances attending it, and warranted the refrigerator to be delivered in good condition, and not to leak, and if, in the condition so warranted, meat in good condition placed in it would have kept, if the refrigerator was properly used, and the refrigerator was not such as warranted, and by reason thereof meat placed in it for keeping was spoiled, and its value lost to appellee, then he would be entitled to recover the amount of such loss; provided, however, he did not know, or by the exercise of ordinary prudence and circumspection could not have known, that the condition of the refrigerator was such that meat placed in it would probably spoil. In view of the principles stated, we do not think appellant's exceptions to the plea in reconvention can be sustained, and the trial court did not err in overruling them, nor in that part of the charge complained of in the eleventh assignment of error.

Appellant requested the court to instruct the jury that the burden is on the defendant to prove his contract of warranty as alleged, and, unless they should find there was a contract, such as alleged, from a preponderance of the evidence, to find for the plaintiff. The sale of the refrigerator was not disputed, and the only answer to the suit for the purchase money was the breach of an express warranty. As such a warranty ordinarily excludes an implied warranty (Case Threshing Mach. Co. v....