Free Sewing Machine Co. v. S. T. Atkin F. Co.

• Citation: 71 S.W.2d 604
• Decision Date: 16 May 1934
• Docket Number: No. 7964.,7964.
• Parties: FREE SEWING MACHINE CO. v. S. T. ATKIN FURNITURE CO.
• Court: Texas Court of Appeals

Page 604

71 S.W.2d 604

FREE SEWING MACHINE CO. v. S. T. ATKIN FURNITURE CO.

No. 7964.

Court of Civil Appeals of Texas. Austin.

May 16, 1934.

Appeal from Williamson County Court; E. M. Grimes, Jr., Judge.

Action by the Free Sewing Machine Company against S. T. Atkin and another, a partnership, engaged in business as the S. T. Atkin Furniture Company, wherein the defendants filed a cross-action. Judgment for defendants, and plaintiff appeals.

Affirmed.

W. H. Nunn, of Georgetown, for appellant.

Wilcox & Graves, of Georgetown, for appellee.

BLAIR, Justice.

Appellant, Free Sewing Machine Company, an Illinois corporation, sued appellees, S. T. and Thatcher Atkin, a partnership engaged in selling furniture and sewing machines, to retail trade at Georgetown, Tex., for $590.70, alleged to be due for certain sewing machines sold and delivered by appellant to appellees under written contract dated May 5, 1929. Appellees admitted executing the written order for the sewing machines, but as defense to the suit on the contract alleged that it was procured by the false and fraudulent representations of appellant and its agents, to the effect that the sewing machines were the best and most efficient on the market; that they would do proper and successful sewing, and could be easily operated by almost any person. That after the machines were received it was ascertained that they would not successfully operate and would not do the work intended, and that each of the five or six sold by appellees had to be taken back; and that the machines were practically worthless; and that the implied covenant that the machines would do the work intended was breached. That as soon as appellees learned and were convinced that the machines could not be run or operated successfully, they notified appellant and offered to return the machines upon payment of certain items of expense incurred in connection with their purchase and attempted sales; and by their answer made the same tender of the machines at the trial of the case. Appellees prayed that the contract sued upon be canceled or rescinded. They further alleged that in an effort to make the machines operate they employed an expert, and paid him $25 for his services; that they paid salesmen $180 for selling the machines which they had to take back; and paid $30.59 freight on the shipment of machines; and by way of cross-action sought to recover these items of expenses as damages resulting from the fraud.

The evidence fully established the fraud of appellant and its agents in selling the sewing machines to appellees as well as the items of expenses incurred in connection with the purchase and attempted sales of the machines; and on the trial to the court without a jury judgment was rendered for appellees canceling or rescinding the contract sued upon for the fraud inducing its execution; but judgment on appellee's cross-action was for only the item of $30.59 for freight.

The written order for the machines stipulated that conditions not embodied in the instrument would not be binding on appellant; nor would any separate or collateral agreement made between appellees and the solicitor or agent who signed the instrument be binding on appellant. It is contended by appellant that if the alleged and proved misrepresentations were not mere sales talks, they were warranties, and therefore controlled by said provisions of the contract. The contentions are not sustained.

A representation that a sewing machine will do the work intended to be done by it is not mere sales talk. The contract or written order for the machines contained no provision or covenant of warranty, so the law would imply a covenant that the machines would do the work intended to be done by them. The rule is settled that one entitled to avoid a written contract by parol proof of fraud of the agent inducing its execution is not bound by a stipulation in the contract that no representation or promise made by the agent and not embodied in the contract will be binding upon the principal. While the rule prohibits the admission of parol evidence to change or vary the terms of a valid written contract, it does not operate to prevent its admission to show fraud inducing its execution. A person who has been so defrauded may set up the fraud by way of defense when sued on the contract or transaction, and resorting to equity he may cancel or rescind the contract, return the thing bought, and receive back what he has paid; and he may both rescind and recover damages where both are necessary to make him whole. Edward Thompson Co....