Freeman Oldsmobile Mazda Co. v. Pinson

• Decision Date: 29 March 1979
• Docket Number: No. 5266,5266
• Citation: 580 S.W.2d 112
• Parties: FREEMAN OLDSMOBILE MAZDA CO., Appellant, v. Jess F. PINSON, Appellee.
• Court: Texas Court of Appeals

Page 112

580 S.W.2d 112

FREEMAN OLDSMOBILE MAZDA CO., Appellant, v.Jess F. PINSON, Appellee.

No. 5266.

Court of Civil Appeals of Texas, Eastland.

March 29, 1979.

Rehearing Denied April 26, 1979.

Stephen R. Bishop and Roy J. True, True & Zable, Dallas, for appellant.

V. Wayne Pope, Dallas, for appellee.

Before McCLOUD, C. J., DICKENSON and BROWN, JJ.

RALEIGH BROWN, Justice.

This is a Deceptive Trade Practices and Consumer Protection Act case.Jess F. Pinson sued Freeman Oldsmobile Mazda Co., seeking damages, attorney's fees and costs allegedly sustained by him as a result of violations of the act transpiring from the purchase of a new 1976 Oldsmobile.After a nonjury trial, judgment was entered granting Pinson rescission of the contract and directing Freeman Oldsmobile to pay Pinson the purchase price.Upon such payment, Pinson was to return the automobile to defendant.Freeman Oldsmobile appeals.We reverse and render.

Pinson purchased a new Oldsmobile Starfire automobile from Freeman Oldsmobile on or about July 29, 1976, for a purchase price of $5,720.33.A few days after the purchase, Pinson noticed approximately four small indentations on the hood of the automobile and noticed some paint overspray on the left rear quarter panel of the automobile.He notified Freeman Oldsmobile of his discovery, and Freeman offered to correct the defects without charge to Pinson under the new car warranty.The cost to repair the warranty defects was estimated to be from $75 to $100.Pinson refused to allow Freeman Oldsmobile to correct the defects and instituted the instant case.At the conclusion of his case, Pinson acknowledged his claim for treble damages was not well taken and advised the courthe was not pursuing such claim, but was relying on his claim for rescission of the transaction.

The court in its findings of fact and conclusions of law stated:

That the Plaintiff herein purchased a 1976 Oldsmobile Starfire automobile for the sum of $5,720.33; that at the time of delivery of the vehicle in question, the vehicle was not as represented in that it contained certain defects, the nature of which the Defendant either knew or should have known in the exercise of ordinary care and failed to disclose to the Plaintiff upon delivery of the vehicle; that shortly thereafter, the Plaintiff discovered said defects and tendered or offered to tender the vehicle back to the Defendant in exchange for the return of the purchase price; that the tender was declined; that the transaction falls within the purvue of the Texas Deceptive Trade Practices Consumer Protection Act, Texas Business and Commerce Code, as a prohibited transaction; that treble damages would not apply because the Plaintiff's damages lie under Sec. 17.50(b)(3) but that attorney's fees to the Plaintiff would apply, that the attorney's fees were agreed and stipulated by counsel for both sides as to the amount but not as to the applicability.

The primary thrust of appellant's appeal is that there is no evidence of the essential elements necessary to support a judgment for rescission.We agree.

Our first question is whether it is necessary to plead and prove grounds for rescission under the Deceptive Trade Act to be entitled to such relief.

Prior to the adoption of the Texas Business & Commerce Code in 1967, the law concerning the right to rescission was stated in Mathis Equipment Company v. Rosson, 386 S.W.2d 854(Tex.Civ.App. Corpus Christi1964, writ ref'd n. r. e.) to be:

It is well settled in Texas that in the absence of fraud or an agreement allowing the property to be returned to the seller, rescission for breach of warranty can be availed of by the purchaser only where the identity of the article is involved and it proves to be something other than that which was purchased or if such article is wholly worthless for the purpose for which it was sold.Wright v. Davenport, 44 Tex. 164, 167(1875);Dillard v. Clutter, 145 S.W.2d 632(Tex.Civ.App., 1940, writ ref.);Bedner v. Dunigan Tool & Supply Company, 142 Tex. 663, 180 S.W.2d 919(1944);77 C.J.S.Sales§ 100, pages 796-797;37A Tex.Jur., Sales§ 352, page 731.

See alsoBill McDavid Oldsmobile, Inc. v. Mulcahy, 533 S.W.2d 160(Tex.Civ.App. Houston(1st Dist.)1976, no writ);Villarreal v. Boggus Motor Company, 471 S.W.2d 615(Tex.Civ.App. Corpus Christi1971, writ ref'd n. r. e.).

In Dillard v. Clutter, 145 S.W.2d 632(Tex.Civ.App. Amarillo1940, writ ref'd), the court said:

There is no general rule of law better established in this State than that, in the absence of fraud or an express agreement to take back an article or property sold under a warranty, the vendee cannot return the article and recover back all of the purchase money or that part of it which he has paid . . . (citing authorities).

The only condition under which a buyer has the right of rescission by reason of the warranty of the seller, in the absence of fraud or...