Jenkins v. Northwestern Pipe & Supply Co.

• Court: Texas Supreme Court
• Writing for the Court: Short
• Citation: Jenkins v. Northwestern Pipe & Supply Co., 299 S.W. 857 (Tex. 1927)
• Decision Date: 30 November 1927
• Docket Number: (No. 837-4900.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: JENKINS v. NORTHWESTERN PIPE & SUPPLY CO.

299 S.W. 857

JENKINS v. NORTHWESTERN PIPE & SUPPLY CO.

(No. 837-4900.)^*

Commission of Appeals of Texas, Section B.

November 30, 1927.

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

Action by the Northwestern Pipe & Supply Company against J. J. Jenkins. From a judgment for plaintiff, defendant appealed to the Amarillo Court of Civil Appeals, which affirmed the judgment, and defendant brings error. Judgments reversed, and case remanded.

Kenley, Dawson & Holliday, of Wichita Falls, for plaintiff in error.

Carrigan, Britain, Morgan & King, W. E. Wilson, and E. R. Surles, all of Wichita Falls, for defendant in error.

SHORT, P. J.

This suit grows out of a transaction wherein the plaintiff in error sold to the defendants in error a quantity of casing located in an abandoned well, the casing intended to be bought weighing 20 pounds to the lineal foot, for a consideration of $200 actually paid upon the delivery of the bill of sale. When the defendants in error began to extract the casing from the well, they discovered for the first time that the casing only weighed 13 pounds to the lineal foot. Whereupon the defendants in error tendered the casing back to the plaintiff in error and demanded the return of the $200. This tender having been declined, this suit was brought in the county court at law of Wichita county, Tex., and upon the trial to a jury, wherein special issues were presented and answered, a verdict for the defendants in error for $360 was rendered, the defendants in error having sued for $385, of which $200 represented the original purchase price and $185 represented the lost profits. The plaintiff in error having appealed to the Court of Civil Appeals at Amarillo, the judgment of the trial court was affirmed. Whereupon writ of error was granted by the Supreme Court.

The jury answered that the defendants in error, at the time they paid the $200 for the casing, did not rely upon their own knowledge or investigation as to the kind of casing they were purchasing, but did rely upon the provision in the bill of sale as to the weight of casing. In answer to special issue No. 3, the jury answered that, immediately after learning the casing was not a 20-pound casing the defendants in error proceeded with the pulling of the same, with the intention to accept it as in compliance with the contract. The testimony in the case is sufficient to support each of these findings.

There is also testimony in the case which would justify a finding by the trial court that the casing actually sold was worthless, and it is upon the assumption that the trial judge did so find this fact that the Court of Civil Appeals based its conclusion that the judgment of the trial court should be affirmed, since it is a familiar principle of the law that, where a case is tried on special issues and neither party tenders an issue and a judgment is rendered, the trial judge is presumed to have found any material fact in issue supported by testimony in harmony with the judgment rendered.

The defendants in error in their pleading, after alleging the contract of sale between the parties and their performance of their part of the terms and the discovery that the casing was not 20-pound casing, but was 13-pound casing, then alleged that immediately on such discovery they notified the plaintiff in error of said fact and refused to accept the casing and tendered it back and have at all times been ready and willing to deliver it to the plaintiff in error. They then alleged that the reasonable market value of the 20-pound casing in the condition and of the age of that supposed to be in the well was $510 and the reasonable cost and expense of pulling the casing would not have exceeded $125. They then alleged that they purchased the casing for the purpose of resale and that, if it had been 20-pound casing, they would have sold it at a profit of $185. They therefore alleged that they were entitled to recover the purchase price of $200 and the profit of $185, aggregating $385.

The plaintiff in error answered by general and special exceptions, general denial, and, among other things, specially answered that the defendants in error had elected to affirm the contract and accept the casing after discovering the casing to be of the weight of 13 pounds, and it has been seen that the jury found that the defendants in error had...