Nunn v. Brillhart

• Decision Date: 14 June 1922
• Docket Number: (No. 326-3674.)
• Citation: Nunn v. Brillhart, 242 S.W. 459, 111 Tex. 588 (Tex. 1922)
• Parties: NUNN v. BRILLHART.
• Court: Texas Supreme Court

242 S.W. 459

NUNN v. BRILLHART.

(No. 326-3674.)

Commission of Appeals of Texas, Section A.

June 14, 1922.

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

Suit by Jacob H. Brillhart against H. H. Simpson & Co. and W. G. Nunn. From a judgment for plaintiff, defendant Nunn appealed. Reversed and remanded (230 S. W. 862), and defendant Nunn brings error. Affirmed.

McCutcheon & Church, of Dallas, for plaintiff in error.

Holloway & Holloway, of Dallas, for defendant in error.

GALLAGHER, J.

Jacob H. Brillhart, defendant in error, owned a building in Dallas, Tex. On the 11th day of April, 1916, he entered into a contract with H. H. Simpson & Co., in which contract Simpson & Co. agreed to install a complete heating system in his house according to specifications contained therein. Said contract provided that the owner should pay the contractors the sum of $840 upon completion and test of said system. It also contained the following:

"Second. Contractor guarantees said system to raise temperature to 70 degrees F. in each room of first and second floors of said building in zero weather, and to supply two gallons of water per minute for a periods necessary in household use, for a period of one year. Failing to do so, contractor shall remove all portions and parts of system without cost to owner, and repay to owner all money paid on account of this contract."

H. H. Simpson & Co. as principals and W. G. Nunn as surety executed a bond to Brillhart, bearing even date with said contract in the penal sum of $840, conditioned that, if said principals should perform and fulfill all the obligations imposed on them by said contract, a copy of which was annexed, and made a part thereof, such obligation should be void, otherwise remain in full force and effect.

The heating plant was put in during the summer, and on September 2, 1916, it was subjected to a theoretical test which seems to have satisfied Brillhart, who immediately paid the major part of the agreed purchase price. Shortly thereafter he paid the remainder. There is no complaint that Simpson & Co. did not install the identical system called for by the specifications in said contract, nor that any defective material, equipment, or workmanship was used. The system installed failed to furnish a temperature of 70 degrees in the rooms of said building as guaranteed, and failed to supply two gallons of hot water per minute. There was also some complaint that the hot water furnished was discolored and not fit for household use.

After repeated complaints by Brillhart to Simpson & Co. and to Nunn, and after repeated efforts on the part of Simpson & Co. to make the system function according to said guaranty, Brillhart demanded that they remove the same and return the purchase price. This they failed to do. This demand was first made about February 3, 1917, and was repeated one or more times thereafter. On June 12, 1917, Brillhart made a written demand on Nunn to complete the contract. Nunn took no action. Shortly thereafter Brillhart had the plant remodeled and certain additions made thereto; the reasonable cost of the same being $690. He claimed that the system still failed to meet the requirements of the guaranty, and that it would cost $464 additional to make it do so. Brillhart then brought suit to recover said sums. The case was submitted to a jury on special issues. Upon the answers of the jury thereto the court entered judgment in favor of Brillhart against Simpson & Co. as principals, and Nunn as surety, for said sum of $690, with interest from date of payment. and against Simpson & Co. alone for said further sum of $464, with interest.

Nunn alone appealed. The Court of Civil Appeals held that it was the duty of Simpson & Co., upon demand, to remove the plant and pay the purchase money, and that, having failed to do so, they became liable for the breach of said guaranty just as though the contract did not contain such stipulation and that the measure of damage was such an amount as would cover the reasonable cost of remedying the defects in the system so as to fulfill the terms of the contract, and that such rule was properly applied by the trial court in this case. The Court of Civil Appeals further held that the trial court erred in admitting certain evidence, and on account of such error reversed and remanded the case. 230 S. W. 862. Nunn obtained a writ of error.

The only issues presented to this court are whether the liability of plaintiff in error as surety on said bond is limited to the cost of removing the heating system and the return of the purchase price as stipulated in said contract, and, if not so limited, how the damages suffered by defendant in error should be measured.

The parties to this contract had a right to stipulate in advance what course should be pursued in event of a failure of the guaranty. They had a right to provide that in such event the contract should be rescinded, and that each party should be restored to his former position. They so stipulated in the second paragraph of the contract by providing that the plant should be removed by the contractors, and that they should repay the purchase price to the owner. Plaintiff in error as surety claims the right to stand on that stipulation, and to have his liability in the premises measured and determined thereby. He claims the remedy provided by such stipulation is contractual, and that it excludes any other remedy which the law may provide in cases where no such stipulation is agreed upon and incorporated into the guaranty contract.

The authorities on the question involved are not in accord. When the provisions for return and rescission are merely permissive, it is generally held that they give the buyer an option to seek redress by that method, and his right to seek redress if he chooses under the ordinary rules of law is not in any way impaired thereby. McGill v. Hall (Tex. Civ. App.) 26 S. W. 132; Birch v. Kavanaugh Knitting Co., 34 App. Div. 614, 54 N. Y. Supp. 449, affirmed 165 N. Y. 617, 59 N. E. 1119; Gaar S. & C. v. Patterson, 65 Minn. 449, 68 N. W. 69; Shupe v. Collender, 56 Conn. 489, 15 Atl. 405, 1 L. R. A. 339.

There are also cases holding, apparently on the same theory, that when the dealer promises in the guaranty that in event the article fails to do the work guaranteed he will substitute an article that will do the work, or remove it and refund the amount paid, such promise may be waived by the purchaser, and he may keep the article and bring an action for damages for breach of the guaranty. Park v. Richardson & Boynton Co., 81 Wis. 399, 51 N. W. 572; Seigworth v. Leffel, 76 Pa. 476, 479, 480; Williams v. Thrall, 101 Wis. 337, 76 N. W. 599; Rochevot v. Wolf, 96 App. Div. 506, 89 N. Y. Supp. 142; Long v. Chapman, 97 App. Div. 241, 89 N. Y. Supp. 841.

The weight of authority, however, supports what we consider the better rule, which is, that when the provision for rescission is a part of the guaranty, as in this case, and where it is clearly expressed in mandatory terms, the parties are bound thereby, and that the same furnishes the remedy to which the buyer must resort in case of breach. This rule is aptly stated in the case of Wilson v. Nickols & Shepherd Co., 139 Ky. 506, 513, 97 S. W. 18, 21, as follows:

"Contracts similar to this have been before this court in a number of cases, and it has uniformly been ruled that, when the parties to a contract have agreed upon the warranties and the remedies that accrue upon a breach of them, these remedies constitute the only relief in this particular that the purchaser has, and he must...