Ellis v. Tips

• Decision Date: 07 April 1897
• Parties: ELLIS v. TIPS.
• Court: Texas Court of Appeals

40 S.W. 524

ELLIS v. TIPS.

Court of Civil Appeals of Texas.

April 7, 1897.

Appeal from district court, Travis county; F. G. Morris, Judge.

Action by Walter Tips against L. A. Ellis. Judgment for plaintiff, and defendant appeals. Reversed.

West & Cochran and Eugene Williams, for appellant. W. F. North and Hogg & Robertson, for appellee.

KEY, J.

This is a suit by appellee to recover the contract price of a cotton gin and gin machinery placed by him on appellant's plantation in Ft. Bend county, less a credit of $190 conceded by appellee. Appellant's answer embraced a plea in abatement, alleging the pendency of a suit in Ft. Bend county between him and appellee involving the same subject-matter in controversy in this suit; a general demurrer and special exceptions; a plea to the merits, denying all liability except for the sum of $135.90, which amount, he alleged, had been tendered to appellee; and a plea of failure of consideration as to one branch of liability set up in plaintiff's petition. Appellant also filed a cross action in which he sought a rescission of the contract of sale, and to recover damages from appellant on account of noncompliance with certain warranties in the contract, and the failure of appellee to comply with the terms thereof. The trial court sustained the plaintiff's exception to defendant's plea in abatement, and also his exception to defendant's cross action for damages, and upon trial a verdict and judgment were rendered for the plaintiff for $1,600, with 8 per cent. interest from October 1, 1895. The defendant has appealed.

The paragraphs of the defendant's plea in reconvention marked A, B, and C sought to recover for extra expenses alleged to have been incurred by the defendant while operating and testing the machinery, and which, it is alleged, would not have been incurred had the machinery been such as the plaintiff guarantied and warranted it to be. Paragraph D, as amended by the defendant's trial amendment, sought to recover for injury by the machinery to the cotton that was ginned. Paragraph E averred that on account of plaintiff's delay in furnishing the machinery, the improper manner in which his agent worked the same, and said agent's detention of the machinery while repairing the same, the defendant had been compelled to store his cotton, as picked, in different houses on his plantation, and thereafter rehaul and rehandle the same, at an actual cost of $250. Appellant alleged that the facts pleaded by him in the paragraphs of his cross action referred to were, at the time the contract was entered into, in contemplation of the parties as results expected to flow from a breach of the contract on the part of appellee. Plaintiff excepted to each of said items of damage as being too remote, and the court below sustained the exception. In this ruling we think the court erred. While the general rule is that the difference between the value of the machinery delivered and that called for by the contract will constitute the measure of damages, this is not always the case; and when, as in this case, it is alleged that the machinery was intended to do particular work at a particular time and place, and that the seller agreed and warranted that it would accomplish the purpose for which the buyer was procuring it, and that damages such as have been referred to were contemplated by the parties as likely to result from a breach of the contract on the part of the seller, such special or consequential damages are recoverable. Jones v. George, 61 Tex. 347; Chatham v. Jones, 69 Tex. 745, 7 S. W. 600; Alamo Mills Co. v. Hercules Iron Works, 1 Tex. Civ. App. 683, 22 S. W. 1097; Houchins v. Williams Bros. (Tex. Civ. App.) 25 S. W. 730. Of course, as held by this court in Railway Co. v. Gilbert, 4 Tex. Civ. App. 366, 22 S. W. 760, and 23 S. W. 320, and Wells, Fargo & Co. v. Battle, 5 Tex. Civ. App. 532, 24 S. W. 353, the party seeking to recover special damages must allege and prove that such damages were in contemplation of the parties at the time the contract was made. The pleading under consideration complies with this rule, and therefore the damages sought to be recovered in the portions of the plea in reconvention to which we have referred were not too remote.

It is contended, however, by counsel for appellee, that, if the court erred in the ruling referred to, the error is now harmless, because the court instructed the jury, as a prerequisite to a recovery by the plaintiff, that they must believe from the testimony either that the contract of settlement pleaded...