Griswold v. Tucker
| Decision Date | 03 December 1948 |
| Docket Number | No. 14989.,14989. |
| Citation | 216 S.W.2d 276 |
| Parties | GRISWOLD v. TUCKER. |
| Court | Texas Court of Appeals |
Appeal from County Court at Law, Tarrant County; Drew S. Clifton, Judge.
Action by Eddie G. Tucker against Ray Griswold for damages for alleged breach of warranty as to the age of a truck sold by defendant to plaintiff. Judgment for plaintiff, and defendant appeals.
Affirmed.
Mark McGee, of Fort Worth, for appellant.
W. A. Hawkins, of Fort Worth, for appellee.
Plaintiff, Eddie G. Tucker, sued defendant, Ray Griswold, for damages growing out of the purchase of a Ford dump truck. The action was based upon allegations that defendant represented the truck to be a 1947 model and plaintiff believed and relied upon such representations; that in fact it was a 1946 model and was worth $500 less than if it had been a 1947 model as represented by defendant.
Trial was to the court without a jury. Judgment was entered for plaintiff for $300 and defendant appeals. At defendant's request the court filed findings of fact and conclusions of law.
Defendant's points of error 1 and 2 are to the effect that (1) since the transaction between the parties was one of exchange in trucks and not a sale and purchase of a truck under an express or implied warranty, plaintiff's measure of damages, if any, was the difference in the value of the two trucks added to the cash paid and not the difference in the market value of a 1947 model truck and a 1946 model, which plaintiff claimed to have received; and (2) the court erred in entering judgment on a wrong measure of any damages plaintiff may have sustained.
Plaintiff's suit, his testimony and the court's judgment were predicated upon the theory that the deal between the parties was a sale by defendant and a purchase by plaintiff of the Ford dump truck as distinguished from an exchange of property between them.
It is the contention of defendant (appellant here) that under the evidence the transaction was an exchange of trucks, plaintiff parting with his 1942 model truck and some cash difference, receiving in exchange therefor another Ford dump truck of a later model; and that since it was an exchange transaction, plaintiff's measure of damages, if any, was the difference in the reasonable value of what he parted with and what he received and not, as plaintiff contends and as the court found, the difference in the reasonable market value of the truck actually received by him and what its value would have been if it had been the kind and model represented by defendant.
The testimony relating to these points is without material conflict. Plaintiff was hauling gravel in his 1942 dump truck; he wanted a newer model and a better truck, preferably a 1947 model Ford truck; defendant told him he had three trucks, two of which were 1946 models and one was a 1947 model, each priced at $1750. Plaintiff preferred a 1947 model because it would bring a greater "trade in value" if he should later decide to buy a new truck; he took the one defendant had represented to be a 1947 model out and drove it a short distance and returned; the parties then made a deal by which defendant would accept plaintiff's 1942 model truck at $500 and $1250 in cash for the 1947 model truck. What we have said is sufficient for the purpose of discussing these points.
The court treated this transaction as a sale of the truck by defendant to plaintiff under representations by defendant that it in fact was a 1947 model.
There is nothing in the record to indicate that plaintiff sought recovery for a fraud or intentional misrepresentation by defendant of the model of the truck but his suit was for breach of a warranty because defendant represented it to be a 1947 model when in fact it was a 1946 model. The difference between the parties here lies in the measure of damages recovered in this case. If this transaction was an exchange of property between the parties and the element of fraud had been present, plaintiff's measure of damages would have been different from what it would have been for breach of a warranty under a contract of sale.
There is a recognized difference between an exchange and a sale. The test seems to be if one party passes his property to another and in turn receives from the latter his property without having an agreed value placed on both, it is deemed an exchange. Upon the other hand, a transaction is a sale although made for something other than money, where the property of each is transferred at an agreed or market value. This is likewise true if the property of one is transferred to another at an agreed price in part payment of the agreed total cash value of the other. 18 Tex.Jur. 471, sec. 2.
In his attack on the judgment, defendant cites and relies upon certain decisions which we shall briefly notice.
George v. Hesse, 100 Tex. 44, 93 S.W. 107, 8 L.R.A.,N.S., 123 Am.St.Rep. 772, 15 Ann.Cas. 456, involved an exchange of real estate of unequal values, in which the more valuable tract passed at a stipulated price, while there was no agreement as to the value of the lesser one. The suit was to recover damages for the "fraudulent" misrepresentations as to the value of the better tract. The court held that it was an exchange and the measure of damages was the difference in the value of what plaintiff gave in exchange and what he received. This holding was based on the nature of plaintiff's suit for fraud in an exchange of property. B. & H. Motor Co. v. Tucker, Tex.Civ.App., 299 S.W. 949, was a suit growing out of an exchange of automobiles, in which fraud was relied upon and the first cited case was followed. Also in Robert & St. John Motor Co. v. Bumpass, Tex.Civ.App., 65 S.W.2d 399, 401, writ dismissed, where an action was prosecuted under allegations of fraud, the rule as to the measure of damages was followed as announced in the first cited case; but the court observed in that case that if the suit had been one for damages for breach of a warranty (as was the instant case), the measure of damages would have been "the difference between the purchase price of the automobile and the value of same in its defective condition at the time of the purchase."
We think that in this case the pleadings and proof showed this transaction to have been a sale by defendant of the truck and not an exchange as contended by defendant. The price was agreed upon and was paid partly in cash and partly by the transfer of the 1942 truck at an agreed price in lieu of cash. The suit was not one based on fraud, which, in the cited cases, appears to be a prime factor in determining the measure of damages. See Morriss-Buick Co. v. Huss, 131 Tex. 102, 113...
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