Clark v. Davenport

• Decision Date: 01 January 1875
• Court: Texas Supreme Court
• Parties: WRIGHT & CLARK v. W. A. DAVENPORT.

44 Tex. 164

WRIGHT & CLARK

v.W. A. DAVENPORT.

Supreme Court of Texas.

1875.

APPEAL from Gregg. Tried below before the Hon. Z. Norton.

This was a suit by appellants on a note for balance due for a steam engine.

The defendant pleaded in reconvention that the engine was not such as was guaranteed in the contract.

Judgment was rendered for the defendant, from which an appeal was taken. The facts are sufficiently stated in the opinion.

Mason & Campbell, for appellants.

McCord & McKay, for appellee.

MOORE, ASSOCIATE JUSTICE.

Suit was brought by appellants in the District Court of Gregg county against appellee, on a note for nine hundred and twenty-four 69/100 dollars, for balance agreed to be paid for “a 16-horse-power portable engine, complete, with governor,” bought of appellants, and to foreclose a mortgage given by appellee on said “engine, with governor attached, and fixtures,” to secure the payment of said note.

Appellee answered by a general exception, general denial, and that appellants guaranteed said engine, when put in good running order, to saw four thousand feet of pine lumber a day. But said engine proved to be, on inspection by persons competent to judge thereof, an engine of not more than 10-horse power, and, after a full and fair trial, not capable of sawing more than two thousand feet of pine lumber per day, and by reason of its incapacity was wholly useless to him, and therefore the consideration for which said note was given had wholly failed.

Appellee also pleaded in reconvention that he purchased said engine on the faith of appellants' said guaranty, and at the time of its delivery paid them nine hundred and twenty-four 69/100 dollars in cash, and executed his said note for the balance of the purchase price; that after erecting and putting said engine in order he found it wholly insufficient to do the work warranted by appellants; that he informed appellants of said deficiency, offered to deliver said engine back to them, and demanded the repayment of said sum paid in cash as aforesaid and the cancelation of said note. All of which appellants refused. He was compelled, therefore, to keep and hold the same, but has been at all times since, and is still, ready and willing to return said engine. Whereupon he prays that said note be canceled, and that he have judgment against appellants for said amount paid thereon in cash as aforesaid, and also for special damages which it is alleged he has sustained by reason of said engine not being such as guaranteed by appellants.

A jury was waived, and the cause was submitted to the court, by whom it was adjudged that appellants take nothing by their suit, that appellee have judgment against them for the amount paid on the said engine, and that he should return and deliver it to appellants at the city of Jefferson, Marion county, the place where he received it.

It appears from the statement of facts that the evidence, as to whether there was a breach of the warranty, was quite conflicting. If, therefore, the judgment is such an one as should be rendered on the issues made by appellees' pleas being decided in his favor, the judgment must be affirmed. There was no testimony tending to show that the engine was utterly worthless and of no value whatever, or to prove the difference between its real value and an engine of the capacity and efficiency such as it was warranted to be. Evidently appellee did not seek compensation in damages merely for the breach of the warranty. He manifestly relies upon his supposed right to rescind the contract for breach of the warranty; and unless the vendee, under an executed contract of this character, has the right to tender back the goods purchased, if they prove to be not such as warranted, and cancel the contract, the judgment must be reversed.

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