Chatham Machinery Co. v. Smith

• Decision Date: 05 February 1898
• Citation: Chatham Machinery Co. v. Smith, 44 S.W. 592 (Tex. App. 1898)
• Parties: CHATHAM MACHINERY CO. v. SMITH.
• Court: Texas Court of Appeals

44 S.W. 592

CHATHAM MACHINERY CO. v. SMITH.

Court of Civil Appeals of Texas.

February 5, 1898.

Appeal from Kaufman county court; John Vesey, Judge.

Action by James F. Smith against the Chatham Machinery Company. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Gossett & Young, for appellant. Wynne & Smith, for appellee.

FINLEY, C. J.

James F. Smith sued the Chatham Machinery Company, a firm composed of A. M. Rhodes and H. G. Rhodes, and doing business at Bryan, Brazos county, Tex., alleging by first amended original petition: That on June 6, 1894, appellant, through its agents, sold to appellee a 60-saw Chatham gin, for $160; a 60-saw Van Winkle feeder, for $80; a 60-saw Pratt condenser, for $80; and a 40 horse power boiler, for $425; and that at time of purchase by appellee he had not seen any of the machinery, but that he purchased the gin stand (being the only machinery alleged to be defective) wholly upon representations of agents of appellant. The machinery was shipped to him at Terrell, and carried to his gin house, three miles from town, and placed in position. That he paid for all the machinery in full before the trial of cause. That upon trial of the gin it would not work, and he could never operate it. Appellee alleged same to be wholly worthless, and asked a rescission of the contract as to the gin stand, feeder, and condenser, but not as to the boiler. He claims to be damaged in the value of the gin, feeder, and condenser, and also in the further sum of "$2.50 for hauling gin stand, feeder, and condenser from Terrell, * * * $40 for hands to put up said machinery, * * * $10 for material furnished in placing machinery in position," and appellee further tendered back the machinery. Appellee claimed that the agents of appellant induced him to buy a Chatham gin by false and fraudulent representations as to its quality, etc. Appellant filed a plea of privilege to be sued in Brazos county, and also several special exceptions to items of damages claimed, and to so much of the amended petition as sought to tender back the machinery, and for rescission of contract of purchase. The court sustained the exception to so much of the petition as sought rescission of contract and tender back of the machinery after the same had been fully paid for. On trial of the cause, the jury found against appellant on pleas of privilege and plea as to jurisdiction (as to amount in controversy) of court, and for plaintiff for damages in the sum of $356.40; and on June 3, 1897, plaintiff filed remittitur on said verdict and judgment in the sum of $76.90, from which judgment the defendant has duly prosecuted this appeal.

1. It is claimed the court erred in not sustaining appellant's special exception to the items of $40 and $10, special damages claimed by the plaintiff. It was alleged that the labor of putting up the machinery cost $40, and the material used in placing the machinery was worth $10. The other allegations in the petition showed that the machinery was so defective that it could not be used, and that there, by these expenditures, became of no use and value. The special exception was not well taken.

2. Appellant's second, third, fourth, and fifth assignments of error relate to alleged errors in the charge and refusal of special charges asked upon the issue of the...