Halff Co. v. Jones

• Decision Date: 27 June 1914
• Docket Number: (No. 7168.)
• Parties: HALFF CO. v. JONES.
• Court: Texas Court of Appeals

169 S.W. 906

HALFF CO. v. JONES.

(No. 7168.)

Court of Civil Appeals of Texas. Dallas.

June 27, 1914.

Rehearing Denied October 17, 1914.

Appeal from District Court, Hunt County; C. L. Elder, Special Judge.

Action by H. E. Jones against the Halff Company and another. From a judgment for plaintiff, the defendant named appeals. Affirmed.

Alex F. Weisberg and Thompson, Knight, Baker & Harris, all of Dallas, for appellant. Clark & Leddy, of Greenville, for appellee.

TALBOT, J.

Appellee, H. E. Jones, brought this suit in the district court of Hunt county, Tex., against appellant, the Halff Company, and against Beall Hardware & Implement Company, alleging that the Halff Company is a partnership composed of G. A. C. Halff and Melville Levy, and in business in the city and county of Dallas, Tex.; that the Beall Hardware & Implement Company is its agent in Hunt county, Tex.; that plaintiff was induced to buy a certain automobile from the Halff Company by divers false representations, guaranties, and warranties; that said representations, guaranties, and warranties were made by the agents of the Halff Company, acting within the scope of their employment, or by persons held out by the Halff Company to plaintiff as being its agents; that as soon as he discovered their falsity, and that the automobile could not be made to come up to said representations, guaranties, and warranties, he tendered back the said automobile to the defendants, who refused to receive the same. Plaintiff in his pleading further tenders back said automobile, disaffirms said contract of sale, seeks a rescission thereof, and judgment for the purchase price of the automobile, which he alleges was $1,675. He does not allege any cause of action for deceit or in the nature of deceit. Plaintiff also seeks judgment for rescission against the Beall Hardware & Implement Company in the event it should be held that the latter was not the agent of the Halff Company. Defendant the Halff Company denied that it, or any one acting with its knowledge or authority, real or apparent, made any false representations, guaranties, or warranties with reference to said automobile. It denied further that said automobile was sold by it to Jones, or by any one acting as its agent, real or apparent, or by any one held out by it to be its agent, and denied in detail the various allegations in plaintiff's pleadings contained, and alleged further that plaintiff was precluded from rescinding the sale of said automobile, for that he has used and operated same for a considerable period of time after knowing and realizing its alleged defects. The Beall Hardware & Implement Company answered, and prayed that, if plaintiff procured judgment of rescission against it, a like judgment he rendered in its favor against the Halff Company; but, as no judgment for or against it was rendered, its pleadings become immaterial. The case was tried without a jury, and judgment rendered by the court on November 25, 1913, in favor of the plaintiff, rescinding the contract of purchase of said automobile, and giving plaintiff judgment against defendant the Halff Company in the sum of $1,675, and decreeing said automobile to defendant the Halff Company. It was further adjudged that plaintiff take nothing against the defendant the Beall Hardware & Implement Company, and the latter was given no judgment against the Halff Company. From the judgment rendered, the Halff Company appealed.

At the request of the appellant, the trial judge prepared and filed conclusions of fact and law. The conclusions of fact are as follows:

(1) A short time prior to December 28, 1913, plaintiff, being then the owner of a Buick automobile, and desiring to get a better and a more up-to-date car than the one he owned, applied to Bob Mitchell, the owner of a garage in Celeste, where the plaintiff lives, and told Mitchell that he would like to have a better and more "classy" car. Prior to that time plaintiff had been in Dallas, had gone through the salesroom of the Halff Company, defendant herein, and had been shown some of its Chalmers cars and literature. He told Mitchell that he was impressed with the Chalmers car. Mitchell was an agent for another kind, but was not an agent for the Chalmers. He undertook, however, to get the Chalmers agency and was referred by the company in Detroit to the Halff Company at Dallas. He applied to the Halff Company, and was told by it that the defendant Beall Hardware & Implement Company was its agent, and referred Mitchell to the last-named company. Mitchell took the matter up with that company, and it was agreed that, if a sale was made, the "commissions" should be divided between it and Mitchell.

(2) After Mitchell and the Beall Hardware & Implement Company had the agreement about "the commissions," Bert Beall, president and manager of that company, went to Celeste, and he and Mitchell began negotiations with plaintiff, looking to the sale of a Chalmers car. They examined plaintiff's Buick car, agreed that it was worth $550, and proposed to accept it at that amount in part payment for any Chalmers car plaintiff might purchase. With this understanding plaintiff delivered to them the said Buick car, and the same was at that time of the reasonable cash value of $550.

(3) Plaintiff having explained fully the kind of a car he desired — a 4 cylinder, 4 passenger, 30 horse power car, one that was light and would climb hills, pull over rough roads, and in which he could get about easily and quickly in the black land country where he lives — said Beall phoned to defendant Halff Company to ascertain if they had on hand a 4 cylinder, 4 passenger, 30 horse power Chalmers. Being informed that they had such a car, plaintiff and Mitchell soon thereafter went over to Dallas to inspect the car, and, if satisfactory plaintiff was to pay therefor, and they were to bring it home.

(4) While in the salesroom of the Halff Company at Dallas, and before the car was brought out, Melville Levy, a member of the firm of the Halff Company, stated and represented to the plaintiff that the Chalmers 4 cylinder, 4 passenger, 30 horse power car (the car then under negotiations) was first-class in all respects; that it was a 30 horse power car, would develop as much or more power than any other 30 horse power car on the market; that it would climb hills and pull through sand easily and smoothly; and further stated in effect that if said car, when purchased, would not go from Dallas to Celeste on high gear, it would not be plaintiff's car; that the trade might be rescinded. The car was brought to the salesroom to be delivered, but it began raining, and for that reason was not taken at that time. On the following Sunday Mitchell returned to Dallas and drove the car to Celeste and delivered it to the plaintiff. I further find that plaintiff relied on each and all of said statements and representations, and would not have purchased or paid for the car if they had not been made.

(5) The car was defective and failed to be as it was represented. It did not give satisfaction, and could not be made to give satisfaction to the plaintiff, and was in fact entirely worthless for the purposes for which he purchased the same, and these purposes were made known to both defendants before the contract of purchase was made.

(6) As soon as the car reached Celeste, both defendants were notified of the fact that the car was defective and not as represented. The defendant Halff Company immediately sent an expert mechanic to remedy the defect, but he failed to do so. This was repeated five or six times, with the same result, until plaintiff, finally becoming satisfied that it was useless to wait longer for defendants to remedy the trouble (that it could not be remedied), tendered the car back to defendants and demanded the payment of the amount he paid for the same, to wit, $1,675. This defendants refused to repay, and plaintiff has, since then, held the car subject to the orders of defendants and has not used the same. Under the circumstances, the car was tendered back within a reasonable time.

(7) I find that each of the defendant companies represented to plaintiff that the Beall Hardware & Implement Company was the agent of the Halff Company, and that the plaintiff did not know either actually or constructively of any limitation of the power of such agent or of the existence of any contract defining their relationship, and that, in purchasing the automobile in question, plaintiff acted in the belief that said agency existed.

(8) I find that, in the negotiations leading to the contract of purchase, the Beall Hardware & Implement Company made only such representations respecting the car as the literature of the Halff Company contained respecting the same, but I further find that the car was not as represented by such literature.

The conclusions of law filed by the court are as follows:

(1) "That the plaintiff is entitled to rescind the contract and recover the purchase money paid by him for the automobile in question, with six per cent. interest thereon from January 1, 1913."

(2) "I further conclude that plaintiff is entitled to recover said sum from the defendant the Halff Company alone, but, if necessary, I would hold that he is entitled to recover the same against the Beall Hardware & Implement Company. In that event, however, I would hold that the latter company is entitled to recover the amount from the Halff Company on its cross-bill. I therefore deem it unnecessary to render any judgment against the Beall Hardware & Implement Company. I accordingly enter judgment for the plaintiff for the sum of $1,675, together with 6 per cent. interest thereon from January 1, 1913, against the Halff Company, and that plaintiff take nothing against the other defendant."

Appellant's several assignments of error complain of the admission of certain testimony, over their objections, and challenge the sufficiency of the evidence to authorize ...