Garcia v. Rutledge

• Decision Date: 14 September 1982
• Docket Number: No. 9381,9381
• Citation: 649 S.W.2d 307
• Parties: Robert GARCIA, Appellant, v. Frank RUTLEDGE, d/b/a Frank's Truck and Tractor, Appellee.
• Court: Texas Court of Appeals

Page 307

649 S.W.2d 307

Robert GARCIA, Appellant, v. Frank RUTLEDGE, d/b/a Frank's Truck and Tractor, Appellee.

No. 9381.

Court of Appeals of Texas Amarillo.

Sept. 14, 1982.

Rehearing Denied Oct. 26, 1982.

Whittenburg, Whittenburg & Schachter, David Mullin, Susan L. Burnette, David Whitten, Amarillo, for appellant.

Kirby, Ratliff, Sansom, Manning & Greak, Ted L. Sansom, Littlefield, for appellee.

Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.

BOYD, Justice.

Appellant Robert Garcia brings this appeal from a judgment rendered non obstante veredicto in favor of appellee Frank Rutledge. The suit arises from an alleged failure on the part of Rutledge to properly repair a truck belonging to Garcia. As originally filed by Garcia, the suit alleged a breach of warranty, violation of the Deceptive Trade Practices Act, conversion and malicious prosecution. Upon trial the jury found that Rutledge had breached his warranty to repair the truck and had converted the truck. Garcia raises four points of alleged error. For the reasons hereinafter set out we reverse the judgment of the trial court and remand the case for another trial.

In his first point Garcia alleges that there was legally sufficient evidence supporting the jury verdict as to breach of warranty. In his second point, he asserts that no special issues were submitted by Rutledge on his alleged defenses to breach of warranty and, since defendant failed to establish the defenses as a matter of law, judgment for Garcia should have been rendered based on the jury verdict. In his first counterpoint, Rutledge asserts Garcia cannot recover on the breach of warranty because Garcia failed to perform a simultaneous condition of the contract, viz., payment of the contract price. Logical continuity, we think, requires discussion of these points and the counterpoint together.

To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be determined that there is no evidence upon which the jury could have made its findings. In acting upon the motion, all evidence must be considered in a light most favorable to support the jury verdict, and every reasonable intendment deducible from the evidence is to be indulged in favor of the verdict. Only the evidence and inferences therefrom that support the jury finding should be considered with all contrary evidence and inferences being rejected. Dodd v. Texas Farm Products Co., 576 S.W.2d 812 (Tex.1979). A judgment notwithstanding the verdict can only be upheld when rendition of a directed verdict would have been proper. Tex.R.Civ.P. 301.

Viewed in a light most favorable to the jury verdict, the evidence shows that in September 1979, Garcia took his truck to Rutledge's garage for repairs. On October 31, 1979, he picked up the truck and paid a repair bill of $3,302.34 with a check. Rutledge had given a 90 day warranty on his work. Garcia immediately began having problems with the truck. The air compressor didn't pump air, the exhaust emitted white smoke which was not characteristic of diesel engines, the engine made strange noises and the oil pressure was low. The next day, Garcia notified either Rutledge or one of his employees of the problems he was having and his desire to have the truck fixed. Later, Garcia's check was returned for insufficient funds, although at the time he gave the check he thought he had deposited enough money to cover the check. When told the check had bounced, Garcia agreed to pay when the truck was fixed. He returned the truck to Rutledge's garage in December but the truck was never fixed.

The evidence was sufficient to justify the jury in finding that Rutledge's repair warranty to Garcia had been breached. Indeed, Rutledge candidly admits the truth of the finding by the jury that he had breached a warranty to repair.

Rutledge argues, however, that no recovery is proper without a showing by Garcia that he paid for the repairs in the first place. He asserts that the evidence is uncontroverted that Garcia gave an "insufficient funds" check when the truck was picked up. He reasons that the performance required of Rutledge, i.e. repair of the truck, was a concurrent or simultaneous condition to the performance required of Garcia which was payment of the contract price of reasonable charges. Thus, he says, without proper payment Garcia never became entitled to any kind of performance from appellee. We disagree.

While it is difficult to categorize Rutledge's argument, close analysis reveals that it is, in essence, a plea of failure of consideration excusing his non-performance.

Failure of consideration is a defense which must be specifically pled by a defendant. Tex.R.Civ.P. 94. The salutary purpose of this rule is to require the defendant to announce in his pleadings what his defense will be if it includes any of the matters referred to in the Rule, and to give the plaintiff the opportunity of knowing what character of proof he may need to meet the defense pled. Reid v. Associated Employers Lloyds, 164 S.W.2d 584 (Tex.Civ.App.--Fort Worth 1942, writ ref'd). In the absence of such a plea the question of failure of consideration is not before a reviewing court, Leal v. Leal, 401 S.W.2d 293 (Tex.Civ.App.--San Antonio 1966, no writ history).

Moreover, we cannot agree that the evidence that appellant's check was returned established this defense of appellant as a matter of law. In discussion of this question, we must note that, the contract in question being one in which the predominant factor was the furnishing of services and performance of work (engine repair), Chapter 2 of the Texas Uniform Commercial Code does not apply. Freeman v. Shannon Const., Inc., 560 S.W.2d 732, 739 (Tex.Civ.App.--Amarillo 1978, writ ref'd n.r.e.). We are, therefore, relegated to basic principles of contract law.

Both parties agree that they reached an agreement when Garcia initially brought his truck to Rutledge for repairs. Both agree that, under this agreement, Rutledge promised to repair the truck and Garcia promised to pay for the repairs. There apparently was no express agreement concerning when each party was obligated to perform on his respective promise. However, the uncontroverted evidence establishes that, after the initial conversations between the parties relating to repair, Rutledge picked up the truck and, without request for any deposit or preliminary payment from Garcia, commenced the repair work.

The acts of the parties themselves indicating the construction they place upon a contract is the highest evidence and entitled to great if not controlling weight. Lone Star Gas v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504, 508 (1942). It is therefore reasonable to infer, that the intent of the parties was that Garcia was not obligated to pay until the repairs were completed, thereby making the proper completion of the repairs a condition precedent to the obligation of appellant to pay for the repairs. A contractual "condition precedent" has been defined as "those acts or events, which occur subsequently to the making of a contract that must occur before there is a right to immediate performance and before there is a breach of contractual duty." Hohenburg Bros. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.1970). Since the jury's finding that Rutledge had breached his warranty of repair is supported by sufficient evidence, the necessary implication of this finding is that Rutledge failed to fulfill his condition precedent to receiving payment. It is obvious, therefore, that Garcia's failure to pay did not, as a matter of law, establish any defense to the breach of warranty. Appellant's first point of error is granted as is appellant's point of error two to the extent hereinafter set out. Appellee's first counterpoint is overruled.

In point of error three, appellant asserts error on the part of the trial court in disregarding the jury finding that Rutledge converted the truck belonging to Garcia since there was legally sufficient evidence supporting such finding. In point four appellant alleges that, since appellee submitted no jury issues on his alleged defenses to conversion and, since he failed to establish his defenses as a matter of law, appellant was entitled to judgment for such conversion. In his third counterpoint, appellee asserts that, to the contrary, his continued possession of the truck after appellant's demand for its return was justified as a matter of law. Again, we think logical continuity requires a discussion of these points and counterpoint together.

Article 16, Section 37, of the Texas Constitution gives mechanics, artisans and materialmen a lien upon articles repaired by them for the value of their labor done or material furnished. This provision is self-executing, and the lien exists independently and apart from any legislative act. Hayek v. Western Steel Company, 478 S.W.2d 786 (Tex.1972). This lien, however, does not authorize the repairman to take possession of the article repaired and hold it until his charges are paid. McBride v. Beakley, 203 S.W. 1137 (Tex.Civ.App.--Amarillo 1918, n.w.h.). The right to this constitutional lien, which may be foreclosed in the Courts, and any right to retain possession until the debt is paid are two separate and distinct rights. Paul v. Nance Buick Company, 487 S.W.2d 426 (Tex.Civ.App.--El Paso 1972, no writ). Appellee's defense then must, of necessity, rest upon any possessory right given him by Article 5503, Tex.Rev.Civ.Stat.

Article 5503 gives a repairman the right "to retain possession" of the article repaired. However, it is well established that the right to retain possession given by this statute is lost on voluntary delivery of the vehicle to the owner where no fraud in obtaining possession is involved. Texas Hydraulic & Equipment Company, Inc. v. Associates Discount Corporation, 414 S.W.2d 199 (Tex.Civ.App.--Austin 1967, no writ). Also, by coming into the possession of the...