Shearer v. Gaar, Scott & Co.

• Decision Date: 27 November 1905
• Citation: 90 S.W. 684
• Parties: SHEARER v. GAAR, SCOTT & CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

90 S.W. 684

SHEARER v. GAAR, SCOTT & CO.^*

Court of Civil Appeals of Texas.

November 27, 1905.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Action by T. W. Shearer against Gaar, Scott & Co. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

H. E. Marshall and J. R. Davis, for appellant. Crook & Harris, for appellee.

PLEASANTS, J.

This suit was brought by appellee, a corporation organized and chartered under the laws of the state of Indiana, against appellant, to recover upon two promissory notes for the sum of $641.66 each, and to foreclose a mortgage given by appellant upon a traction engine, described in the petition, to secure the payment of said notes. The defendant answered by general demurrer and general denial, and by special plea, in which it is averred, in substance, that about the 27th of June, 1902, he was desirous of purchasing a traction engine to be used in drawing and pulling an elevator grader for grading his rice canal; that he was ignorant of the character and kind of engine required for such work; that he informed plaintiff and its agent of these facts, and that he relied on it to furnish an engine suitable for such work, and, plaintiff, with knowledge of these facts, represented and guarantied to defendant that it could furnish an engine such as desired, and such as would perform in a satisfactory manner the work of pulling said elevator grader, and defendant, relying on such representations, ordered from plaintiff the 22 H. P. compound traction engine in controversy, and promised to pay therefor the sum of $1,925 in three promissory notes, as set forth in plaintiff's petition, the engine to be delivered to defendant by plaintiff at Dayton, Tex.; that plaintiff further impliedly represented, guarantied and warranted that said engine should be made of good, substantial, and durable material, such as is ordinarily used in making first-class traction engines, and that said engine and all its parts should be properly and skillfully constructed, so that same should work and run smoothly and correctly and properly, such as first-class traction engines, when properly built and constructed, do and perform, and that said engine should in all respects be first-class and proper; that said engine was delivered to defendant at Dayton, Tex., in July, 1902; that thereafter he executed said notes under an agreement and understanding with plaintiff that the execution thereof should not be a ratification or an acceptance of said engine, or a waiver of the defects as to said warranties and representations; that said engine was and has proved totally ineffectual and deficient in performing the work which it was represented and guarantied to perform, and is entirely inadequate in strength and power to draw an elevator grader, and is not made of first-class material, and was improperly constructed, and would not perform the work it should have performed. "That on account of the facts set forth defendant has been unable, and it is impossible, to realize any benefit from said engine, and that on account of continual breaks of said engine, caused from its aforesaid defects, defendant lost six months' time in the work of grading his canal; that defendant tried and endeavored for said six months to make and cause said engine to run in co-operation with plaintiff's experts and representatives, and rendered plaintiff all aid and friendly assistance in defendant's power to render towards consummating said purposes, and employed competent person to run said engine, but defendant had to abandon said engine because same was wholly worthless, and purchase a new engine for the sum of $2,700; that said defects herein set out, and all defects and failure of warranty and false representation as herein set out, were wholly unknown to defendant until the time when defendant abandoned said engine, and said defects were hidden to defendant until said time; that defendant has been damaged in loss of time spent and work hired to be done on said engine and in connection therewith in the sum of $2,500, and delay of six months in working on said canal in the sum of $500." It is further averred "that because of said facts there has been a total failure of consideration, which failure of consideration defendant here and now pleads and urges." This plea concludes with the following prayer: "Defendant prays that the contract set out, and on which the notes sued on by plaintiff were given, be canceled; that said notes be canceled and said mortgage be canceled; and that defendant either be permitted to retain said engine in compensation for the note paid by defendant, or, if said engine be returned to plaintiff, that defendant have and recover of plaintiff the amount of said note and legal interest. In the alternative defendant prays, if said contract be not canceled, that defendant have and recover of plaintiff, as an offset to plaintiff's demand on said notes, the difference between the actual value of said engine as herein pleaded and the amount for which plaintiff sues. By way of reconvention defendant further prays judgment against plaintiff, also, in the sum of $3,000 for his consequential damages as above set out, occasioned as above set out. Defendant prays for such other relief in law and equity as he may be entitled to." In answer to this plea plaintiff, by supplemental petition, set up the contract under which said engine was sold to defendant, and alleged that under the terms of said contract plaintiff was released from all liability upon its warranties by reason of the failure of the defendant to notify it of the alleged defects in said engine, and to return the defective parts thereof within the time specified in the contract, and by the execution by the defendant of the notes described in said contract and herein sued on, and because defendant continued to use the engine long after the time mentioned had expired. The cause was tried to the court and resulted in judgment in favor of plaintiff for the full amount claimed in the petition.

The engine, in part payment for which the notes sued on were executed, was sold by plaintiff to the defendant on a written order signed by defendant on June 27, 1902. This order contains the following stipulations:

"June 27, 1902. The undersigned this day orders of Gaar, Scott & Co., Richmond, Indiana, through their agent, Stowell Lumber & Implement Company, at Stowell, Texas: Quantity, 1; size, 22-horse; description, compound; article, traction engine and attachments. In consideration whereof, the undersigned agrees to receive the same on its arrival, subject to all the conditions of warranty printed herein, pay freight charges from Richmond, Indiana; also agrees to pay to their order, at the time and place of delivery the sum of $1,925.00 dollars in the following manner: * * * Machinery to be loaded on cars at Richmond, Indiana, on or about at once, and shipped to T. W. Shearer, consignee, at Dayton, Texas, county of Liberty, state of Texas.

"Warranty.

"Caution: No person unless authorized in writing from the home office at Richmond, Indiana, by an officer of Gaar, Scott & Company, has any authority to add to, abridge or change this warranty in any manner, and to do so will render it void and of none effect.

"(1) It is hereby mutually agreed and understood by and between the parties hereto, that this contract is divisible and that each article herein ordered is ordered and sold at a separate price, and is included in this contract at a separate fixed price, which price for any given article above ordered shall be ascertained by multiplying the amount representing the total consideration herein mentioned to be paid by the purchaser, by a fraction whose numerator shall be the price of said article as the same appears in Gaar, Scott & Company's 1902 price list, and whose...