Cooper-Bessemer Corporation v. Shindler, 10879.
| Decision Date | 19 October 1939 |
| Docket Number | No. 10879.,10879. |
| Citation | 132 S.W.2d 450 |
| Parties | COOPER-BESSEMER CORPORATION v. SHINDLER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Waller County; W. B. Browder, Judge.
Action by the Cooper-Bessemer Corporation against J. T. Shindler to recover on a note and to foreclose a mortgage lien, wherein defendant filed alternative cross-actions. Defendant abandoned one cross action and elected to stand on the other. Judgment was entered for plaintiff on its note and for defendant on his cross action, and final judgment was entered in favor of plaintiff for the difference between the amount of the judgment entered for defendant and the judgment entered for plaintiff and for foreclosure of its mortgage lien, and plaintiff appeals.
Judgment reformed and as reformed affirmed.
A. W. Hodde, of Brenham, and White & McCulloch, of Dallas, for appellant.
No brief filed for appellee.
This is an appeal in an action brought by appellant, The Cooper-Bessemer Corporation, against appellee, J. T. Shindler, on a note for the sum $743.65, and for foreclosure of a mortgage lien on an engine and machinery used in the operation of a cotton gin in Waller County, Texas.
On May 18, 1934, appellant sold to appellee a re-built engine and certain machinery for the sum of $2,885. Appellee paid therefor $800 in cash and executed his three certain notes, payable to appellant, for the sum of $695 each, and secured by a mortgage lien on said engine and machinery. Appellee paid Notes Nos. 1 and 2, and on October 1, 1936, renewed and extended note No. 3 and his mortgage lien on said engine and machinery for a period of one year. On May 6, 1938, appellee having failed to pay said renewed note when it became due, appellant filed suit for the amount due thereon, amounting with interest and attorney's fees to the sum of $906.50, and for foreclosure of its mortgage lien on said engine and machinery.
Appellee answered by general denial and general demurrer. By cross-action dated September 27, 1938, he pled both express and implied warranties that said engine would perform satisfactorily the services for which it was purchased. He alleged that the re-built engine was found to be originally and fundamentally defective in design and construction; that in seeking to have said defects remedied he had expended the sum of $548.36, for which he sought recovery. By alternate cross-action he alleged that by reason of latent defects in said engine the value thereof was diminished by the sum of $550. He sought a reduction by this amount in any judgment that might be rendered against him.
Appellant answered said cross-action by general demurrer, special exceptions and a plea of the two years statute of limitation, Vernon's Ann.Civil Statutes, Art. 5526. He specially pled the terms of the written contract under which said engine and machinery were purchased, and alleged that the company had agreed to repair or replace defective parts for a period of only one year; that more than two years had expired and that if any defect existed in the engine in not functioning properly, it was due to the acts of appellee and that he was estopped from claiming any sum on his cross-action.
By supplemental answer appellee pled that appellant had waived its right to rely on the one year limit upon its warranty of material and workmanship by subsequent promises and attempts to repair said engine.
The cause was tried before a jury, who, in answer to special issues submitted, found the piston rod packing box defective, in that it allowed water to pass into the crank case; that said defect had caused said engine to consume 365 gallons of oil in excess of what it should have consumed, valued at $167.90; that appellee had expended in remedying the defects in said engine, the sum of $403.40; that the market value of said engine at the time of its shipment to appellee was $2,000; that appellant, in undertaking to repair and overcome the defects in said engine on or about December 1, 1936, had waived its right to rely upon the one year limit upon its guarantee of workmanship and material set out in said purchase contract; and that appellee discovered, or should have discovered by the exercise of proper diligence, the defects in said engine on October 1, 1937.
Appellee, by motion filed after the return of the verdict of the jury and prior to the entry of judgment, abandoned his cross-action for his alleged expenses incurred in repairing said engine and expressly elected to stand on his alternative cross-action. By said motion he entered his remittitur to the amount of $335 so as to make the verdict coincide with his pleadings, and moved the court to enter judgment in his favor against appellant in the sum of $550.
Judgment was entered by the trial court awarding appellant judgment on its note in the sum of $932.80, awarding appellee judgment on his cross-action in the sum of $550, with final judgment in favor of appellant in the sum of $382.80 with interest and costs of suit, and for foreclosure of its mortgage...
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...Appellee argues that this is careless language. If it be, it has been carelessly stated more than once. In Cooper-Bessemer Corporation v. Shindler, Tex.Civ.App., 132 S.W.2d 450, it was the discovery of the breach of warranty which accrued the cause of action in the case of latent defects in......
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