Carroll v. Mitchell-Parks Mfg. Co.

• Decision Date: 09 April 1910
• Citation: Carroll v. Mitchell-Parks Mfg. Co., 128 S.W. 446, 60 Tex. Civ. App. 263 (Tex. App. 1910)
• Parties: CARROLL v. MITCHELL-PARKS MFG. CO.
• Court: Texas Court of Appeals

128 S.W. 446

CARROLL v. MITCHELL-PARKS MFG. CO.

Court of Civil Appeals of Texas.

April 9, 1910.

Rehearing Denied May 12, 1910.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Action by the Mitchell-Parks Manufacturing Company against M. W. Carroll. Judgment for plaintiff. Defendant appeals. Affirmed.

Fleming & Fleming and W. H. Burges, for appellant. Crook, Lord & Lawhon, for appellee.

REESE, J.

The Mitchell-Parks Manufacturing Company brought this suit against M. W. Carroll to recover $1,125, with interest, being the amount due upon 10 promissory notes executed by defendant for $112.50 each. Upon trial without a jury there was a judgment for plaintiff for the full amount claimed, from which defendant prosecutes this appeal.

The notes were given as part of the purchase price of a certain machine, called a "gravity moulding machine," and the method for using the same, both covered by letters patent, sold by appellee to appellant, who was doing business under the name of Texas Iron & Car Works, under which name the contract for the purchase of the machine and the notes were executed. To the action appellant pleaded failure of consideration of the notes, breach of warranty as to the machine, fraud in procuring the contract, etc.

We adopt the following conclusions of fact found by the trial court, correcting what is evidently a mere clerical error as to the machine being No. 1 instead of No. 2, and omitting certain immaterial findings, which are objected to by appellant, and which we do not find to be fully supported by the evidence to the extent stated in the court's findings:

"I find that on May 21, 1907, that the plaintiff and defendant entered into the following contract in writing, to wit: `Contract. This contract made and entered into this May 21, 1907, by and between the Mitchell-Parks Mfg. Co., a corporation of St. Louis, state of Missouri, hereinafter called first party, and Texas Iron & Car Wks., hereinafter called second party, witnesseth: That, for the consideration hereinafter stated, said first party has this day sold to said second party the right to use in their foundry at Beaumont, Texas, the gravity moulding method and one No. 2 machine for practicing same; the same method and machinery being protected by letters patent granted in the United States, said patents now being owned by the said first party. The first party agrees to deliver said machinery in good condition f. o. b. cars at point of shipment, and to guarantee same to be free from mechanical defects. The second party agrees to pay freight charges to destination, and to install the machine at his own expense. The second party agrees to pay said first party as consideration for the machine and right to use said method the sum of $1,500.00, payable as follows: One-fourth, or $375.00, on shipment of machinery, and the balance on acceptance at the expiration of the trial period, in cash, less 2 per cent., or in ten equal monthly payments of $112.50 each, in notes bearing 6 per cent. interest from date. It is further agreed that should said party desire to discontinue the use of the moulder, and serve notice to that effect on said first party within thirty days after starting the machinery, then said first party hereby agrees to refund to said second party the full amount of the first payment, the said second party agreeing to box or crate the machinery and deliver same to the nearest railroad station subject to the order or shipping instructions of the said first party. Failure on part of said second party to notify said first party of their intention to discontinue the use of the moulder within thirty days after starting same shall be construed as a full acceptance of this contract. Said first party contracts and agrees to defend and protect said second party in the use of said method and machinery against any and all suits that may be brought against said second party by any person, firm or corporation, involving the right of said second party to use said method and machinery. This contract is binding upon the first party when signed by its president or secretary or its duly authorized officers. In witness hereof, the parties have hereunto affixed their respective signatures, the party of the first part executing the same by and through its proper officers with its corporate seal attached. This contract signed in duplicate. Mitchell-Parks Mfg. Company, by J. N. Bonner, Secty., First Party. Texas Iron & Car Works, by M. W. Carroll, Second Party. Method protected by U. S. patent No. 840,070, dated January 1, 1907. Machine protected by U. S. patent No. 840,789, dated January 8, 1907.'

"I further find that, in accordance with the foregoing contract, the plaintiff, the Mitchell-Parks Manufacturing Company, shipped to the defendant at Beaumont, Tex., the gravity moulding machine No. 2, with the method of practicing the same, and that the said machine was erected and installed by the defendant in his foundry at Beaumont, Tex. I further find that the defendant was unable to make the machine in question do the work that it was contemplated it should do. I further find that the defendant subjected the said gravity moulding machine and method to a complete and fair test after the same was erected, and after using and testing the said machine and method until the 20th day of September, 1907, the defendant accepted and retained the said moulding machine and method, and on said date executed his 10 promissory notes to the plaintiff, each for $112.50, in accordance with the said written contract, and delivered the said notes to the plaintiff, being the same notes herein sued on, and fully described in the statement of facts in this cause, and I also find that the defendant paid one-fourth of the purchase price of the said moulding machine and gravity method, to wit, $375, in accordance with the said written contract.

"I also find that the defendant has never at any time expressed a desire to discontinue the use of the moulding machine and method, and that the defendant did not give notice to that effect to the plaintiff within 30 days after starting the machinery, and that, in fact, the defendant has never given notice to that effect to the...