Pyronauts, Inc. v. Associated Fire Extinguisher Co., 17823

• Decision Date: 01 April 1977
• Docket Number: No. 17823,17823
• Citation: 549 S.W.2d 460
• Parties: PYRONAUTS, INC., Appellant, v. ASSOCIATED FIRE EXTINGUISHER COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 460

549 S.W.2d 460

PYRONAUTS, INC., Appellant, v. ASSOCIATED FIRE EXTINGUISHER COMPANY, Appellee.

No. 17823.

Court of Civil Appeals of Texas, Fort Worth.

April 1, 1977.

Newbern & Hogle, and Richard H. Hogle, Fort Worth, for appellant.

Attorneys withdrawn No brief filed.

OPINION

SPURLOCK, Justice.

This is a suit on an account, and for reboxing charges incurred when merchandise was returned by the buyer, Associated Fire Extinguisher Company (Associated), to the manufacturer, Pyronauts, Inc. (Pyronauts), in damaged cartons, and a counterclaim by Associated for promotion expenses, freight charges, and fraud for misrepresentation of the product's quality. Trial was to a jury, whose findings were uncertain. The trial court awarded $2,945.00 to Associated. Pyronauts appeals.

Reversed and rendered.

Associated filed no briefs in this case; nor did it appear for oral submission. Under Tex.R.Civ.P. 419, this court may accept any statements made by Pyronauts in its original brief, as to the facts or the record as true, unless challenged. City of Dallas v. Holcomb, 381 S.W.2d 347 (Tex.Civ.App. Dallas 1964), aff'd, 383 S.W.2d 585 (Tex.1964); Sunray Enterprises, Inc. v. Rosenaur, 335 S.W.2d 670 (Tex.Civ.App. Dallas 1960, writ ref'd n. r. e.); Westchester Fire Ins. Co. v. Burns, 83 S.W.2d 814 (Tex.Civ.App. Beaumont 1935, writ dism'd); Lake Worth Amusement Co. v. Maples, 36 S.W.2d 1072 (Tex.Civ.App. Fort Worth 1931, no writ). Therefore, we accept as true any statements made by Pyronauts in its original brief, as to the facts and the record.

Pyronauts is in the business of manufacturing chemicals which it sells to companies that distribute fire extinguishing materials, such as Associated. Associated placed two orders with Pyronauts, for which it was billed $920.00 for the first order, and $9,700.00 for the second. Associated, not satisfied with the quality of the chemicals, sent the second order back to Pyronauts. The boxes were received by Pyronauts in damaged condition, for which Pyronauts charged a 15% reboxing charge, as their contract provided, adding $1,455.00 to the $920.00 still owing on the first order. Associated paid $468.52 toward the account, leaving a balance due of $1,906.48. The parties agreed that Pyronauts would allow a credit on its account for one roundtrip fare between California, Associated's home office, and Fort Worth, Pyronauts' home office. This further reduced the indebtedness to $1,680.74, for which amount Pyronauts sued. Pyronauts also prayed for interest, attorney's fees, and costs. Associated filed a counterclaim, alleging that Pyronauts fraudulently misrepresented the quality of the chemicals, and that Associated relied on the misrepresentation to its detriment, spending $500.00 to promote the product, and $2,200.00 in freight charges. It prayed for those amounts, in addition to $2,200.00 exemplary damages and attorney's fees.

The case was submitted to the jury on special issues. The jury found Associated was indebted to Pyronauts in the amount of $1,455.00 reboxing charge, plus $2,000.00 attorney's fees for preparation and trial, plus $750.00 for appeal to the court of civil appeals and $750.00 for appeal to the supreme court. However, it also found that Pyronauts made fraudulent representations, but found actual damages in the amount of "$2200 freight." It also found $5,000.00 exemplary damages for Associated.

The court reduced these amounts to judgment against Pyronauts in the sum of $2,945.00, from which it appeals.

The jury was not requested to find whether the chemicals were substandard, but rather whether Pyronauts made representations of material facts regarding the production of the chemicals, which they found had been made, were false, were made with the intent to induce Associated to buy them, and were reasonably relied upon to Associated's detriment. However, the next special issue, "Find from a preponderance of the evidence the amount of money, in dollars and cents, Defendant, Associated Fire Extinguisher Company, sustained as actual damages. Answer in dollars and cents, if any," was answered "$2200 Freight." To this, the jury added exemplary damages of $5,000.00.

Taking as fact all representations made by Pyronauts, we find there was no evidence introduced to show what amount, if any, Associated paid for freight. However, attorney for Associated, in his jury argument said, "Did he sustain damages? He sure did. How much?...