J. I. Case Threshing Mach. Co. v. Manes

• Decision Date: 10 October 1923
• Docket Number: (No. 454-3841.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 254 S.W. 929
• Parties: J. I. CASE THRESHING MACH. CO. v. MANES.
• Court: Texas Supreme Court

254 S.W. 929

J. I. CASE THRESHING MACH. CO. v. MANES.

(No. 454-3841.)^*

Commission of Appeals of Texas, Section A.

October 10, 1923.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by O. B. Manes against the J. I. Case Threshing Machine Company. Judgment for plaintiff for less relief than demanded was reversed and rendered by the Court of Civil Appeals (241 S. W. 757), and defendant brings error. Judgment of Court of Civil Appeals reversed and judgment of district court affirmed, except as to costs.

Spence, Haven & Smithdeal, of Dallas, for plaintiff in error.

Snodgrass & Dibrell, of Coleman, for defendant in error.

GERMAN, J.

This suit was filed in the district court of Coleman county, Tex., February 8, 1916, by O. B. Manes, designated herein as plaintiff, who undertook to rescind a contract for the purchase of an automobile, to cancel unpaid purchase notes, and to recover money paid. There have been two trials. The last trial was upon a third amended original petition. This petition contained three counts as a basis of recovery. The first count set out certain representations, claimed by plaintiff to have been made by one Joe Evans, as agent of the J. I. Case Threshing Machine Company, referred to here as defendant, and claimed by plaintiff to have been false and fraudulent, by reason of which he was induced to make the contract for the purchase of the automobile, and but for which he would not have executed the contract. He also sought to recover under a written warranty contained in the contract, and upon an implied warranty. Defendant answered by general denial, and specially pleaded that Evans was an independent dealer and had no power or authority to make the representations and promises alleged to have been made, and that the written contract furnished all of the terms of the agreement, as well as the only warranty which could be binding upon defendant. Defendant further alleged that plaintiff, by reason of his written contract, obtained possession of the automobile, and applied the same to the use of himself and family from March, 1915, to January, 1916, without giving notice of any breach of the warranty, and without giving defendant an opportunity to comply with the terms of the warranty as set out in the contract; and that thereby plaintiff had lost all right, if any, he ever had to rescind the contract.

The case was submitted to a jury upon 45 special issues. All issues with reference to representations made by Joe Evans to plaintiff were answered by the jury favorable to plaintiff. These answers clearly entitled plaintiff to recover under the first count in his petition, provided Evans had authority to bind defendant by such representations, and provided plaintiff had not lost his right to rescind. All issues with reference to warranty, that is, as to defects in the automobile on account of material or workmanship, were answered favorable to the defendant. The jury also found that such defects as did develop within 90 days (the period covered by the warranty) were due to use of the car, and could be corrected at an expenditure of $30. In answer to special issue No. 39 the jury found that the plaintiff, after having knowledge of the defects in the car, continued to use the same for his own purposes for an unreasonable length of time before tendering it back to defendant. The jury further found that the difference between the value of the automobile at the time it was received and as it should have been under the written contract was $30.

On these findings the trial court denied plaintiff a rescission of the contract of purchase, but awarded him judgment against defendant for $30. However, all costs of suit were taxed against plaintiff, the court stating as a reason therefor that the recovery by plaintiff was less than the minimum jurisdiction of the court.

The Court of Civil Appeals for the Third District at first affirmed the judgment of the trial court, but, on motion for rehearing, reversed and rendered judgment in favor of plaintiff Manes for a rescission of the contract and recovery of the purchase money paid for the automobile. 241 S. W. 757.

The Court of Civil Appeals reversed and rendered the judgment of the trial court upon the proposition that as defendant had pleaded waiver only to that count in the petition alleging breach of warranty and had not pleaded waiver to the count alleging fraud and misrepresentation, under the findings of the jury as to misrepresentations made by Joe Evans, plaintiff was entitled to a rescission, although the jury found in favor of defendant on the plea of waiver. We are unable to agree with the honorable Court of Civil Appeals as to construction placed on defendant's pleadings with reference to waiver. The pleading set out in detail the things which it was claimed plaintiff did with reference to the car, and his acts, in our opinion would constitute a waiver of all right to rescind the contract, either on account of fraud and misrepresentation, or breach of warranty; although defendant, in its answer, incorporated these allegations in paragraphs dealing particularly with matters pertaining to the warranty. However, under a proper conception of the case this objection with reference to pleading is wholly immaterial.

The written order, among other things, contained these provisions:

"The company is not responsible to the purchaser for any undertakings, promises or warranties made by their representatives beyond those expressed herein.

"The undersigned hereby acknowledges to have received a full, true, and correct copy of this order, and that no promises, representations, or agreements have been made not herein contained.

"No branch house manager, salesman, expert, or local dealer, unless authorized in writing by an officer of the company, has any authority to waive, alter, or enlarge this contract, or to make any new or substituted or different contract representation or warranty."

It is undisputed that J. W. Evans & Co., who received and forwarded plaintiff's order for the automobile, were local dealers, who had no authority to bind defendant by any agreement, promise, or warranty other than those contained in the written order. Before the contract was binding it had to be accepted by the company at its home office in Racine, Wis. Notice of acceptance was sent direct to plaintiff, and he admitted that he received and retained a copy of the order. The company had no notice or knowledge of statements made by Evans in his efforts to obtain the order. There is no finding that plaintiff was induced to sign the contract by fraud or deceit.

In view of this written contract and its clear provisions it is manifest that defendant company was not bound by any promise, agreement, or representation made by Evans & Co. Bybee v. Embree-McLean Carriage Co. (Tex. Civ. App.) 135 S. W. 205; Blackstad Mercantile Co. v. Porter (Tex. Civ. App.) 158 S. W. 216; Clark &...