Caples v. Port Huron Engine & Thresher Co.

• Decision Date: 22 June 1910
• Citation: 131 S.W. 303
• Court: Texas Court of Appeals
• Parties: CAPLES v. PORT HURON ENGINE & THRESHER CO.

131 S.W. 303

CAPLES v. PORT HURON ENGINE & THRESHER CO.

Court of Civil Appeal of Texas.

June 22, 1910.

Rehearing Denied November 2, 1910.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by the Port Huron Engine & Thresher Company against Richard Caples. From a judgment for plaintiff, defendant appeals. Affirmed.

Jay Good and M. W. Stanton, for appellant. J. H. McBroom, W. M. Peticolas, and Nagle & Scott, for appellee.

JAMES, C. J.

This action is against Caples to recover the purchase price of eight spreading wagons, based on a written order signed by appellant on November 11, 1907, and accepted by appellee, which wagons were received by defendant and used by him in carrying out a construction contract with the county of El Paso. Defendant answered by pleas of general denial, total and partial failure of consideration, fraud and misrepresentation in the sale of the wagons, that the contract of November 11th, which contained certain specific and limited warranties, was not the contract which controlled the sale, but a prior contract of October 28th controlled, also, that the contract of November 11th was modified by subsequent oral agreement and correspondence, that the wagons were defective, by reason of which defendant sustained damages, and prayed that plaintiff take nothing by its suit and that defendant have judgment for $581.16, the amount of freight and demurrage which defendant had paid. Supplemental pleadings and trial amendments were filed which will be referred to in the course of this opinion, if necessary. The court directed the jury to return a verdict for the amount sued for less $1,126.17.

The first assignment of error is that the court erred in directing the jury to allow the defendant $195 damages on account of the loss of defendant during the time the wagons were out of use and were being repaired. This is submitted as a proposition in appellant's brief; but it is clearly no proposition such as the rules contemplate, and, furthermore, the complaint, so far as expressed, is of something that was in favor of appellant.

The second, third, fourth, and fifth assignments, which relate to the same subject-matter as the above, are somewhat freer from the objection, because the assignments, which are likewise submitted as propositions, read together, indicate the point of law intended to be advanced, which is in effect that the court erred in directing the jury to allow defendant said sum of $195 for the reason that the jury were authorized under the pleadings and evidence to find for defendant a greater sum in respect to the item. Appellee meets this contention by stating that under the testimony defendant was not entitled to any allowance whatever for the time the wagons were out of use, undergoing repairs, and upon this ground appellee asks us to reform the judgment by adding to it the sum of $195. There being nothing in the record or papers to show that a cross-assignment of error was filed in the trial court, or filed here by consent, we cannot in any event consider reforming the judgment in this particular. The material question is whether or not the court erred in not permitting the jury to find for defendant a larger allowance for such item. As appellant states in the brief that said five assignments involve nearly every proposition of law contended for in this cause, we may in this connection deal with the case in general.

There were two written contracts between Caples and appellee embodying the terms of the sale of these wagons. The first was dated October 28, 1907, reading as follows: "El Paso, Texas, October 28, 1907. I, P. F. Brick, agent for the Port Huron E. & T. Co., do sell to Richard Caples eight (8) wagons loaded on cars at factory at Port Huron, Mich., for the sum of three hundred and thirty-four dollars and eighty cents each. Said wagons to be of the design known as the 1907 model, said wagons to be equipped with double top box, and having a capacity of six cubic yards. Said P. F. Brick, agent, guarantees said wagons for a period of six months, and should any parts of said wagons break said parts are to be repaired at the company's expense, and said Rich Caples agrees to pay for same ten (10) days after the arrival of said wagons. P. F. Brick."

The above contract of sale had not been performed even in part by either party, when, on November 11, 1907, a new contract of sale, to which no plea of non est factum was interposed, was entered into, under the following circumstances as detailed by Mr. Caples, who testified: "These are the circumstances under which I signed the contract of November 11, 1908: After I had concluded to purchase the wagons from Mr. Brick, I told him I would have him sign a contract in which we would understand each other. He said, `All right,' and this contract (of October 28th) was drawn up and signed. He then had a letter which he brought me stating the company wanted an order made out on their blanks, that it was customary to write on their printed form the order, and I told him that I had given him...