Chaq Oil Co. v. Gardner Machinery Corp.
| Decision Date | 10 October 1973 |
| Docket Number | No. 866,866 |
| Citation | 13 UCCRep.Serv. 806,500 S.W.2d 877 |
| Parties | 13 UCC Rep.Serv. 806 CHAQ OIL COMPANY, Appellant, v. GARDNER MACHINERY CORPORATION, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Jack B. Manning, Travis G. Wilson, Bean & Manning, Houston, for appellant.
L. E. Laurence, Moore & Laurence, Houston, for appellee.
This is a suit for damages arising from an alleged breach of implied warranties of merchantability and fitness for a particular purpose. Appellant, Chaq Oil Company (Chaq), plaintiff below, purchased a used 'crawler-tractor' from appellee, Gardner Machinery Corporation (Gardner). Rather extensive repairs to the machine were later made by Chaq and this suit was brought for the purchase price plus the cost of the repairs. Trial was to the court. Plaintiff's managing partner was the only witness called. The court then entered a take-nothing judgment against Chaq. Chaq has properly perfected this appeal. We affirm.
The court filed thirty-three findings of fact and nine conclusions of law which are the basis for Chaq's points of error on this appeal . In the view we take of this case, however, it is not necessary to decide whether all of those findings have support in the evidence. The following facts are undisputed and are all that are necessary to support our conclusions: (1) Chaq's managing partner, Mr. A. S. Parks, saw the machinery operating before he purchased it, and (2) the machinery was used (second-hand), which fact was known to both parties at the time of the purchase.
Chaq seeks to recover under one or both of two implied warranties, those of merchantability and fitness for a particular purpose. The warranty of merchantability is implied in a contract for the sale of goods unless excluded or modified in the proper manner. Tex.Bus. & Comm.Code Ann. sec. 2.314(a), V.T.C.A. (1968). 1 The standards of merchantability applicable to the crawler-tractor are that it must pass without objection in the trade under the contract description and that it be fit for the ordinary purposes for which such goods are used. Sec. 2.314(b)(1), (3). The Official Comments to the Uniform Commercial Code, upon which the Texas Code is modeled, state that a contract for the sale of second-hand goods carries only such obligations as are appropriate to such goods, as that is their contract description. Uniform Commercial Code sec. 2--314, Comment 3. Under Texas law no implied warranty of merchantability is appropriate in the case of goods purchased with the knowledge that they are used or second-hand. Norvell-Wilder Supply Company v. Richardson, 300 S.W.2d 773, 775 (Tex.Civ.App.-El Paso 1957, writ ref'd n.r.e.); American Soda Fountain Co. v. Palace Drug Store,245 S.W. 1032 (Tex.Civ.App.-Austin 1922, no writ). One early case even went so far as to hold that the purchaser of a second-hand machine from someone other than the manufacturer may not complain of latent defects without pleading and proving fraud. Joy v. National Exch. Bank of Dallas, 32 Tex.Civ.App. 398, 74 S.W. 2325 (1903, no writ). The Business & Commerce Commerce Code clearly contemplates that such pre-code law be used when applicable to supplement code provisions. Sec. 1.103. Applying the rule established in these cases, we hold that there was no implied warranty of merchantability of this machine upon which Chaq can recover.
The implied warranty of fitness for a...
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