E. F. Elmberg Co. v. Dunlap Hardware Co.

• Decision Date: 16 November 1921
• Docket Number: (No. 1787.)
• Citation: 234 S.W. 700
• Parties: E. F. ELMBERG CO. v. DUNLAP HARDWARE CO.
• Court: Texas Court of Appeals

234 S.W. 700

E. F. ELMBERG CO. v. DUNLAP HARDWARE CO.

(No. 1787.)

Court of Civil Appeals of Texas. Amarillo.

November 16, 1921.

Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.

Action by the Dunlap Hardware Company against the E. F. Elmberg Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. H. Russell, of Hereford, and J. V. Gregory, of Parkersburg, Iowa, for appellant.

Wm. M. Knight and Carl Gilliland, both of Hereford, for appellee.

HUFF, C. J.

This action was brought by the Dunlap Hardware Company, appellee, against the Elmberg Company, appellant, for damages on an express breach of warranty of machinery manufactured by appellant, known as "Elmo feed grinders" and "Elmo belt attachments," for automobiles. It is alleged that appellee entered into a written contract with appellant, by the terms of which appellant agreed to sell to appellee such machines as appellee might order at and for the price of $18.50 each, f. o. b. Parkersburg, Iowa. The contract was attached to the petition as an exhibit. It is alleged:

"That by the terms of said written agreement defendant guaranteed every machine should come up to and fulfill every claim made for it in the advertising matter used by it and agreed to refund in full the purchase price of any machine sold in the territory above described that failed to come up to said guaranty. That the advertising matter prepared and used by defendants stated that said machines would grind corn and oats, coarse or fine, and would grind wheat into graham flour."

That at the time of entering into the contract an agent of appellant and a representative of appellee canvassed a part of the territory awarded in the contract, making demonstration with a sample machine to contemplating purchasers, with kaffir corn, maize, feterita, and other grains produced in the locality. Appellant's representative then and there represented the machine would grind kaffir corn, maize, feterita, and other grains produced in the locality and knew such were the principal grains grown in the territory and very little wheat and less corn and oats. That the representations that the machine would grind such grains induced appellee to enter into the contract and but for which it would not have purchased any of the machines. That appellee purchased 500 of the feed grinders and 500 of the belt attachments and paid therefor $18.50 for each machine and in addition paid the freight on the machines so purchased from Parkersburg, Iowa, to Hereford, Tex., $844.60. "That said machines were bought by the plaintiff from the defendant under the guaranty and representations above mentioned, as well as under the implied agreement that they were suitable for the purpose for which they were made and sold and that they would do the work for which they were designed in a good, proper and efficient manner." On receipt of 500 grinders upon examination it was found about 250 of them "were so poorly and badly constructed that they permitted the grain to leak out through an opening in the joints of the casting which should have been so constructed that they would have fitted together tightly and closely so that no grain could escape; but that instead of the different pieces of casting going together properly and fitting up closely and tightly, a large opening was left, through which the grain could and did pour out onto the ground before reaching the grinding burrs." About 250, or 50 per cent., of the grinders were so defective and poorly constructed that, when putting them together, "if the bolts on one side of the machine were tightened up so as to pull the machine together in a proper way, and as it was designed to be set up, the burrs could not be drawn together so as to grind the grain, in consequence of which the grain could and did pass through the burrs without being ground." If the machine had been properly constructed, when the bolts on both sides were drawn up, the burrs would have fitted together closely and have ground the grain.

"Plaintiff further avers that the belt attachments furnished by it from the defendant were purchased for the express and sole purpose of being used to drive the grinders, and that about 250 of them, by reason of the fact that the grinders are defective and will not work properly, are absolutely worthless and of no value for any purpose to the plaintiff. That the belt attachments are of no use and are absolutely worthless unless they can be used for the purpose of driving the feed grinders." That it was understood between the parties that appellee should sell the machines for $27.50 each, or a profit of $8.50 each, which was a reasonable and fair profit. That appellee is entitled to recover a sum of $18.50 for each defective grinder, $18.50 for each belt attachment, and the sum of $8.50, profits on each machine. It prays for judgment for its damages in the sum of $12,000. The petition also alleges that both parties were and are private corporations, appellee's principal office and place of business being at Hereford, Tex., and appellant's Parkersburg, Butler county, Iowa. The appellant was served by nonresident notice on the 6th of September, 1920. Upon the filing of the suit August 24, 1920, appellee sued out a writ of attachment and seized 500 crates of machines in the cars on the railway track at Hereford, Tex., on the same day.

There was no answer filed by the appellant in the court below.

Judgment was rendered for appellee for $12,000, foreclosing the attachment lien on the property seized under the writ. The judgment in effect recites that the case was called on appearance day for orders, and that the parties, by attorneys, agreed in open court that the case could be set for trial on November 17, 1920, which was done. That the case was called on the 17th of November, and that plaintiff's counsel announced that Mr. Russell, attorney for the defendant, was then sick and the case was postponed until the 18th. On that day, when regularly called for trial, Mr. Russell, the attorney for the defendant, appeared and asked in open court to reset the case for a future day in the term, but declined to file an answer and stated in open court that he did not know whether he would file any answer for defendant as Mr. Gregory, defendant's attorney, lived in Parkersburg, Iowa, and was not present, and that he did not know what the reason was for his absence, and that he, himself, did not know what course of defense to present in the way of an answer. The plaintiff then announced ready for trial and asked the court to hear and try the case, which request the court granted and, upon testimony adduced at that time, rendered judgment as above stated.

The first and second assignments of error relate to the action of the trial court in overruling the motion of appellant for new trial, on the ground that he found that Mr. Russell was the attorney of the appellant in the trial court. This assignment is simply the sworn statement of the attorneys, Russell and Gregory, setting up the facts as they conceived them in contradiction of the recitation in the judgment. The assignments do not purport to point out the particular error committed by the trial court or wherein the court was in error in rendering the judgment. The assignments cannot be considered because improperly briefed and presented in this court.

The second assignment asserts the judgment of the trial court should be set aside because the petition upon which it was rendered was subject to a general demurrer and does not state a cause of action. We have concluded to consider this assignment hereafter under subsequent assignments.

The third, fourth, and fifth assignments we have concluded to overrule without discussing at this time.

We have concluded this case should be reversed as the judgment is not supported by the pleadings and the evidence. The assignments are not as definite as they should be, but in considering the motion for new trial as a whole, wherein it assails the petition as being insufficient, and the contract upon which the action is based and the testimony adduced upon the trial, we think all together are sufficient to challenge the judgment for $12,000 as being unjust and not supported by the facts.

The contract upon which the action is based stipulates that appellant appoints appellee exclusive agent and guarantees to it the exclusive right to sell the manufactured products of appellant in all the counties included in the northwest portion of Texas, defining the territory, the entire states of New Mexico and Oklahoma. Upon its execution appellee purchased 250 Elmo feed grinders and 250 Elmo belt attachments for automobiles, a total of 500 machines, at $18.50 each; the aggregate sum paid being $9,250, f. o. b. Parkersburg, Iowa. It is agreed appellant would thereafter fill all carload orders made by appellee. The fifth clause reads:

"The party of the first part (appellant) guarantees that every machine will come up to and fulfill every claim made for it in the advertising matter used by first party and hereby promises to refund in full the purchase price for any machine sold by the second party in the territory above described that fails to come up to said guaranty. The first party also agrees to replace any defective part in said machine due to defective workmanship, without charge to the party of the second part, provided the transportation charges on said defective parts shall be paid to the factory at Parkersburg, Iowa."

The evidence shows there were two carloads of machines shipped, making 500 grinders and 500 belt attachments. Of these, as we understand, only part of the grinders were defective. The witness on the stand described the defects substantially as alleged. A third car was shipped but not delivered, having been consigned to appellant at Hereford. It was this car which was attached. The evidence is very indefinite, but as we gather, appellee had sold...