Mathis Equipment Co. v. Rosson

• Decision Date: 25 June 1964
• Docket Number: No. 40,40
• Citation: 386 S.W.2d 854
• Parties: MATHIS EQUIPMENT COMPANY, Appellant, v. C. P. ROSSON, Jr., Appellee.
• Court: Texas Court of Appeals

Page 854

386 S.W.2d 854

MATHIS EQUIPMENT COMPANY, Appellant, v. C. P. ROSSON, Jr., Appellee.

No. 40.

Court of Civil Appeals of Texas, Corpus Christi.

June 25, 1964.

Rehearing Denied Jan. 14, 1965.

Second Motion for Rehearing Denied Feb. 11, 1965.

Luther Jones, Jr., Corpus Christi, Frederic Johnson, Sinton, for appellant.

John J. Pichinson, Corpus Christi, Wm. E. Nicholas, Joe C. Ternus, John H. Flinn, Sinton, for appellee.

SHARPE, Justice.

This suit was brought by appellant, a corporation, to recover the purchase price of a cotton picking machine sold by it to appellee under a written contract.

The trial court rendered judgment that appellant take nothing, based upon a jury verdict consisting of answers to two special issues. Special issue number one found that the machine in question was not a new machine at the time of its delivery to appellee. Special issue number two found that the machine was not wholly worthless for the purpose of picking cotton.

Appellant asserts four points of error. Point one urges that appellant was entitled to judgment non obstante veredicto for the purchase price of said cotton picking machine based upon facts shown by undisputed evidence and the answer of the jury to special issue number two. Appellant's points two, three and four are directed to the answer of the jury to special issue number one. Point two asserts that said answer is without support in the evidence. Point three asserts that such answer is so against the great weight and preponderance of the evidence as to be manifestly wrong. Point four asserts that the evidence is insufficient to support such finding.

We have concluded that appellant's points one and four should be sustained. The facts conclusively proved and the finding of the jury on special issue number two entitles appellant to judgment for the purchase price of said cotton picking machine in the absence of any defense established by appellee which would authorize rescission or damages as an offset to the said purchase price. The answer of the jury to special issue number one is immaterial to the defense relied upon by appellee in this case, and, in any event, the evidence is insufficient to support the same.

Appellee's defense in this case is limited to alleged failure of consideration giving rise to rescission of the contract. He does not claim fraud, accident or mistake; nor does he claim damages for breach of warranty as an offset to reduce the amount owing on the purchase price. Appellee particularly urges that there was a failure of consideration because he received something other and different from what he ordered in that the cotton picking machine was not 'new', since the evidence established that it was manufactured in the month of June, 1961, some fourteen months prior to its delivery to him.

Appellee's evidence shows that on August 3, 1962, he advised an agent of appellant by telephone that he desired to purchase a new Model 420 International Harvester Diesel, two-row, low-drum Cotton Picker. Appellant's agent advised appellee that it did not have a machine on hand meeting such description and that some three or four weeks would be required to obtain one from the factory; that appellant could probably get a highdrum picker of such model if appellee was willing to accept the same. Shortly thereafter, appellant advised appellee that a high-drum picker had been located in the Rio Grande Valley and appellee agreed to buy it. Appellee also instructed appellant to install compression sheets thereon. The machine was delivered to appellee and demonstrated to him on August 11, 1962, prior to the time he signed the contract for same and a separate delivery report showing that he had received the machine, which was described therein by model number and serial number, in satisfactory condition. Appellee requested and was granted an extension of time in which to pay for the machine on the ground that he had not consummated the sale of cotton which he had on hand and was trying to sell at a higher price. Appellee reiterated his promise to pay on several occasions. After several days, the machine started causing difficulty and appellee then requested that a representative of the manufacturer visit him so that the machine could be repaired and the warranty thereon extended. About fifty bales of cotton were picked with the machine until about August 26, 1962, after which the machine was not used again. In September, 1962, at appellee's request, appellant took the machine to its place of business for repairs. Appellee testified that about the middle of October, 1962, he checked the serial number on the machine, thought it was old, and then advised his foreman to tell appellant he didn't want any part of it.

Appellee does not contend that he specifically ordered a 1962 model machine or one manufactured in the year 1962. While on the witness stand in this case, appellee testified, in substance, that the year 1962 was not mentioned to the agent of appellant when the machine was ordered or thereafter, until he had accepted and used the same.

It is well settled in Texas that in the absence of fraud or an agreement allowing the property to be returned to the seller, rescission for breach of warranty can be availed of by the purchaser only where the identity of the article is involved and it proves to be something other than that which was purchased or if such article is wholly worthless for the purpose for which it was sold. Wright v. Davenport, 44 Tex. 164, 167 (1875); ¹ Dillard v. Clutter, 145 S.W.2d 632 (Tex.Civ.App., 1940, writ ref.); Bedner v. Dunigan Tool & Supply Company, 142 Tex. 663, 180 S.W.2d 919 (1944); 77 C.J.S. Sales Sec. 100, pages 796-797; 37A Tex.Jur., Sales Sec. 352, page 731.

In this case appellee does not rely upon fraud or an agreement to return the property involved in the sale and the jury has found that the machine in question was not wholly worthless for the purpose of picking cotton. The evidence does not establish or raise an issue that appellee received something different from what he ordered by description, but, on the other hand, conclusively shows that the specific item of personal property described in the written contract and delivery report was demonstrated to and delivered to appellee prior to the time he executed the said instruments. Since it is established that a specifically identified article of personal property was appropriated to the contract by the parties and that appellee accepted same, the title to said machine passed to appellee and the contract became executed. Farmers' Rice Milling Co. v. Standard Rice Co., 276 S.W. 904, 905 (Tex.Comm.App., 1925); Hill v. Childers, 268 S.W.2d 203, 205 (Tex.Civ.App., 1954, writ ref. n. r. e.). The requirement that the machine be new, whatever it was before, then became, at most, a warranty which guaranteed that the machine which had been appropriated to the contract by the parties possessed the quality of newness. El Paso & S. W. R. Co. v. Eichel & Weikel, 130 S.W. 922, 936 (Tex.Civ.App., 1910, writ ref.); Eastern Seed Co. v. Pyle, 191 S.W.2d 708 (Tex.Civ.App., 1945), affirmed 145 Tex. 385, 198 S.W.2d 562 (1946); 13 Tex.Jur.2d, Contracts Sec. 160, page 347, wherein it is stated:

'After the goods have been accepted, the buyer may then treat any breach of 'condition' concerning the quality of the goods as a breach of warranty only; he may not reject the goods and consider the contract repudiated.'

In this case, the appellee plead failure of consideration as an affirmative defense to the seller's cause of action based upon a written contract, as is required by Rule 94, Texas Rules of Civil Procedure. However, appellee failed to establish either a total failure of consideration or the extent of a partial one, and he did not claim an offset for damages on account of breach of warranty. Under such circumstances, the seller was entitled to recover the entire purchase price because no defense was made out. 51 Tex.Jur.2d, Sales, Sec. 357, pages 99-100; J. B. Colt Co. v. Reeves, 266 S.W. 564 (Tex.Civ.App., 1924, no writ history); Jameson v. Consolidated Oil Co., 284 S.W. 309 (Tex.Civ.App., 1926, no writ history); Allison Ranch Co. v. Angelo Auto Electric, 145 S.W.2d 645 (Tex.Civ.App., 1940, writ dism., w. o. j.)

It thus appears that even if supported by evidence the finding of the jury on special issue number one would avail appellee only if he had relied upon the same in connection with a claim for damages on account of breach of warranty, which he did not do. Such finding was, therefore, immaterial to the defense relied upon by appellee and the trial court should have disregarded the answer in connection with rendition of judgment.

Appellee failed to establish any defense which would authorize rescission of the contract in question and appellant's motion for judgment non obstante veredicto should have been granted. Appellant's point number one is sustained.

There is an additional reason why the finding on special issue number one should have been disregarded. It not only was immaterial in connection with rendition of judgment under the state of the record herein, but the evidence was not sufficient to support the jury answer to same.

The trial court in this case defined the term 'new machine' as 'a machine in condition as when first manufactured, not worn or defaced by use in any degree.' This definition is from the case of Maxwell v. Bastrop Manufacturing Co., 77 Tex. 233, 14 S.W. 35 (1890) where the court was considering the words 'new and efficient' as applied to machinery, contained in an act of the ligislature, and wherein the court said in part that 'Many illustrations of the use of the word 'new' readily suggest themselves.' In the case of Mills County v. Brown County, 87 Tex. 475, 29 S.W. 650 (1895), our Supreme Court has also held that the word 'new' is a relative term, and, in discussing the subject said:

'* * * As was suggested in the argument, 'new' is a...