O'Shea v. International Business Machines Corp., 17225

• Decision Date: 22 February 1979
• Docket Number: No. 17225,17225
• Citation: 578 S.W.2d 844
• Parties: William J. O'SHEA, Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 844

578 S.W.2d 844

William J. O'SHEA, Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellee.

No. 17225.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Feb. 22, 1979.

Rehearing Denied March 29, 1979.

Butler, Binion, Rice, Cook & Knapp, Michael W. Fox, Houston, for appellant.

John A. Daniel, Dallas, for appellee.

DOYLE, Justice.

Mr. William J. O'Shea (O'Shea) appeals from a judgment in favor of International Business Machines Corporation (IBM) for $756.00 plus interest and $689.00 attorney's fees.

IBM filed suit against O'Shea in Dallas County, Texas, based on a written agreement between them executed in Houston, Texas, for the purchase of an IBM Correcting Selectric II typewriter, alleging that O'Shea failed to pay for this equipment. In the alternative, IBM also alleged that O'Shea's omission, not calling IBM more than once, prevented them from installing the typewriter. Defendant O'Shea answered, filed a plea of privilege, which was sustained, and thereafter filed a counterclaim against IBM claiming it failed to comply with the contract and violated Art. 17.50 of the Texas Deceptive Trade Practices-Consumer Protection Act by unconscionable actions. On special issues the jury found that the failure of IBM to install the typewriter was due to an act or omission by O'Shea. They did not find that O'Shea did not notify IBM within a reasonable time after delivery of the typewriter that the typewriter had not been installed. The jury found that the counterclaim brought by O'Shea against IBM was groundless and brought in bad faith or for the purpose of harassment. The judgment awarded IBM the purchase price of the typewriter and attorney's fees on its defense of O'Shea's counterclaim based on the jury's finding that the counterclaim was groundless and in bad faith or for harassment. O'Shea appeals.

The immediate question facing the court is presented by O'Shea's points no. 1 and 2 which raise the questions of an instructed verdict and the insufficiency of the evidence to support the jury's finding to Special Issue no. 1, which reads as follows:

"Do you find from a preponderance of the evidence that the failure of International Business Machines Corporation to install the typewriter in question as represented under the terms of the contract (Plaintiff's Exhibit One) was due to an act or omission on the part of International Business Machines Corporation or William J. O'Shea?"

The jury answered: "William J. O'Shea".

Only the following portion of the contract between the parties dealt with installation:

"Purchaser will make available a suitable place of installation with all facilities as specified by IBM and furnish all labor required for all unpacking and placing equipment in the desired location. Equipment purchased under this agreement will be installed by IBM. The date, (Monday through Friday) following that on which IBM determines that the equipment has been installed shall be considered the date of installation of such equipment for all purposes of this agreement. IBM will notify purchaser when the equipment has been installed."

The contract further provided that payment would be due 30 days from the date of contract.

Although apparently not required to do so by the terms of the contract, it is undisputed that O'Shea did call IBM within a day or two after delivery on August 29, 1974, and asked that his typewriter be installed. In response to Special Issue No. 2 as to whether O'Shea notified IBM within a reasonable period of time after delivery of the typewriter that the typewriter had not been installed, the jury in effect found that O'Shea had so notified IBM. Further, IBM obviously not only knew of the typewriter's delivery to O'Shea, but proceeded as though it had been installed by sending O'Shea a past due notice on September 30, 1974; a solicitation for extension of expiring warranty on October 24, 1974; a second past due notice on October 3, 1974; another notice about the expiring warranty on November 20, 1974; a standard form collection letter on November 22, 1974; and a letter dated December 10, 1974, giving notice of legal action if payments were not made by return mail. The record further shows that it was not until April 10, 1975, seven (7) months after the typewriter should have been installed, that IBM for the first time offered to make arrangements for the installation. O'Shea contends that this was a conditioned offer not imposed by any terms of the contract.

We have carefully examined each of IBM's exhibits tendered to show its constant contact with O'Shea concerning his account with it. These notices and letters are concerning demands for payment and warranties and not offers to install the typewriter. It is not clear to us how IBM regards such exhibits as evidence of its willingness to comply with the installation terms of the contract when all the while it erroneously considered that the machine had already been installed. Prior to the latter part of November 1974, IBM was accusing O'Shea only of not paying his account. Any act or omission on O'Shea's part would have come subsequent to this date. We must now consider whether evidence adduced was factually sufficient to sustain the jury's findings.

The evidence is undisputed that the typewriter was never installed by IBM and was returned to IBM by O'Shea on October 28, 1976. Although the time for installation was not stated, the court will imply a reasonable time. Pace Corporation v. Jackson, Tex.Civ.App., 275 S.W.2d 849, affd. 155 Tex. 179, 284 S.W.2d 340 (1955).

As a general rule, performance is excused when a party to a contract prevents the other party from performing. Miller v. Hodges, 260 S.W. 168, 172 (Tex.Comm. of App., 1924, jdgt. adopted)

The only acts that could be construed as constituting evidence that O'Shea prevented IBM from installing the typewriter would be O'Shea's failure to call and advise IBM that his typewriter had never been installed after he received various demands for payment and letters about a warranty. Was O'Shea legally obligated to call IBM after receiving such correspondence? We think he was not. The evidence submitted by IBM on this point tended, at best, to show bad faith on O'Shea's part in not making further calls to IBM concerning its failure to make the installation. However, in view of the hard feelings that arose between the parties when O'Shea initially called IBM, it is evident that neither party was willing to alter its position in an attempt to resolve the stalemate. It is questionable that this constituted such bad faith on O'Shea's part as would prevent IBM's installation of the typewriter. Supportive of our view is the case of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), wherein Justice Denman, in determining the evidence legally insufficient to support a jury finding said:

"From a careful examination of the cases, it appears (1) that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being "any evidence"; and (2) that it is the duty of the court to determine whether the testimony has more than that degree of probative force. If it so determines, the law presumes that the jury could not "reasonably infer the existence of the alleged fact," and "that there is no room for ordinary minds to differ as to the conclusion to be drawn from it." The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of...