Jessen v. Scott

• Decision Date: 21 February 1929
• Docket Number: (No. 2240.)
• Citation: 14 S.W.2d 290
• Parties: JESSEN v. SCOTT.
• Court: Texas Court of Appeals

14 S.W.2d 290

JESSEN v. SCOTT.

(No. 2240.)

Court of Civil Appeals of Texas. El Paso.

February 21, 1929.

Appeal from County Court, at Law, El Paso County; J. M. Deaver, Judge.

Action by Louis A. Scott against William Jessen and another. From the judgment, the named defendant appeals. Reformed in part, and affirmed in part.

See also (Civ. App.) 10 S.W.(2d) 185.

Knollenberg & Cameron, of El Paso, for plaintiff in error.

Harrison & Scott, of El Paso, for defendant in error.

WALTHALL, J.

Louis A. Scott brought this suit against William Jessen and W. S. Ray Manufacturing Company, alleging the latter to be "a corporation duly incorporated, having its principal office and place of business and residence in the City of San Francisco, California," and that it was and is now engaged in the manufacture, sale, and distribution of a machine known as the Ray rotary fuel oil burner, and had and now has William Jessen as its agent and representative in El Paso county, Tex.; that Jessen, acting individually and as agent of said corporation, represented to defendant in error that he had one of the latest types of said burners that he would install in defendant in error's residence and connect same to the furnace in said residence complete with clock thermostat and all other automatic controls for the sum of $350, and warranted said burner and all equipment and controls to be in perfect mechanical condition, and guaranteed said burner and controls to give satisfactory service, and to heat defendant in error's residence more quickly and efficiently and at less cost than by burning coal; that relying upon said representations and warranties and believing same to be true, on March 14, 1927, he purchased said burner, and in payment therefor he executed his 12 promissory notes in monthly installments of $29.17 each, payable to the order of El Paso Engineering Company; that said notes were promptly sold, the purchaser being a bona fide purchaser for value without notice; that he paid said notes and the interest due thereon of $14.83. Defendant in error alleges that, though requested, the clock thermostat was never installed; that said burner and equipment gave only partially satisfactory service in March, 1297, for only a few hours after the installation thereof, and never gave any satisfactory service at any time thereafter. The petition then in detail states the defects in the burner and the equipment; that the burner leaked oil and was dangerous to use; the motor to the pump was defective and worn; the automatic controls did not properly function; and there were other defects, so that the whole equipment finally broke down completely, and defendant in error's residence was without heat for several days during cold weather, thereby causing his family to suffer extreme discomfort and causing one of his children to contract a severe cold and become ill. The petition alleges that frequent demand was made that the burner be removed and replaced with another or the purchase price be repaid, but said demand was refused, and that defendant in error had said burner disconnected and removed. Defendant in error sues to recover the following items of damage which he alleges he sustained:

1. $350 purchase price paid.

2. $14.83 interest on the notes.

3. $3 paid to have burner dismantled and removed.

4. $85 labor, parts and material to restore furnace as it was before plaintiff in error damaged same.

5. $150 compensation for physical discomfort to defendant in error and family occasioned by the failure of the burner to function.

6. $75 compensation to defendant in error for his loss of time in working with said burner in trying to get it to heat his house.

The judgment recites that on motion of defendant in error the cause was dismissed against W. S. Ray Manufacturing Company, and that William Jessen, though duly cited to appear and answer, wholly failed and in all things made default, and after considering the pleadings and evidence, finds that plaintiff is entitled to recover against William Jessen the...