Southern Gas & Gasoline Engine Co. v. Richolson

• Decision Date: 19 November 1919
• Docket Number: (No. 96-2921.)
• Citation: 216 S.W. 158
• Parties: SOUTHERN GAS & GASOLINE ENGINE CO. et al. v. RICHOLSON et al.
• Court: Texas Supreme Court

Page 158

216 S.W. 158

SOUTHERN GAS & GASOLINE ENGINE CO. et al. v. RICHOLSON et al.

(No. 96-2921.)

Commission of Appeals of Texas, Section B.

November 19, 1919.

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

Action by the Southern Gas & Gasoline Engine Company against J. J. Richolson and another, in which the named defendant cross-complained and the Foos Gas Engine Company intervened. Judgment for named defendant on his cross-complaint, affirmed by Court of Civil Appeals (181 S. W. 529), and plaintiff and intervener bring error. Judgments of district court and Court of Civil Appeals reversed, and cause remanded.

Bryan & Bryan and Andrews, Streetman, Burns & Logue, all of Houston, for plaintiffs in error.

Lane, Walters & Storey and B F. Louis, all of Houston, Townsend, Quinn & Townsend, of Columbus, and Paul Kayser, of Houston, for defendants in error.

McCLENDON, J.

The controversy in this case arose out of an alleged breach of contract of sale of certain machinery for the irrigation of a rice farm. For convenience, the parties will be designated as in the trial court: Southern Gas & Gasoline Engine Company, plaintiff; Foos Gas Engine Company, intervener; J. J. Richolson and L. P. Bunge, defendants. Intervener was a foreign corporation, engaged in the manufacture of machinery. Plaintiff was a Texas corporation, engaged in the sale of machinery, and acted as agent for intervener in Texas. The usual course of business between the two corporations was for plaintiff to purchase the machinery from intervener and make sales direct to purchasers in its own name. The contract in question was made between intervener and defendant Richolson, the owner of the farm, because Richolson wanted the responsibility of intervener behind the contract. The machinery was paid for partly in cash upon its delivery; the balance in two notes of $3,500 each, payable to the order of intervener, secured by chattel mortgage on the machinery. One of these notes was transferred to plaintiff as its share in the transaction.

Plaintiff brought this suit against Richolson upon its note and for foreclosure. Intervener sued upon its note, and joined in the prayer for foreclosure. By way of cross-action, defendant Richolson sought damages for an alleged breach of the contract of sale, claiming failure on intervener's part to install the machinery in time to irrigate the 1910 crop and failure of the plant to supply the amount of water guaranteed in the contract. Defendant Bunge was interested with Richolson in cultivating part of the land. Upon a verdict upon special issues, the trial court rendered judgment in favor of the defendant Richolson for $16,193.05, which sum was arrived at by calculation from the facts found in the verdict after deducting the amount of the two notes sued upon and an agreed credit. This judgment was affirmed by the court of Civil Appeals, Eighth District. 181 S. W. 529.

The question of leading importance is whether the judgment embraces items of damage for which defendant was not bound under the contract. This question embraces two elements: First, whether under the contract the intervener was obligated to install the machinery; and, if not, second, whether the verdict includes damages for failure to install in time to water the crop.

Defendant's cross-action was grounded in breach of contract alone; the contention being, among others, that intervener was obligated to install the machinery. This contention is rested on two propositions: First, that the contract expressly, or by necessary implication, imposed this obligation; and, second, that the contract, when read in the light of surrounding circumstances, must be so construed. The contract, which was in the form of a proposal, and was accepted by intervener on January 3, 1910, contains the following provisions:

"We propose to furnish you:

"One Foos vertical two-cylinder engine, which shall develop 125 brake horse power. when using the following fuel: Producer gas made from commercial lignite such as Hoyt, Calvert, or Rockdale coal. To be shipped about 90 days from approval of order."

"Erecting. — We are to furnish an engineer to supervise the installation of the machinery furnished hereunder and instruct your operators. You are to build necessary foundations to our blueprints, place the machinery thereon, furnish all help and facilities required. You are to promptly remove all obstacles to the complete performance of our contract. or compensate for any loss or delay resulting therefrom. [Interlined:] 30 days; also superintend foundation."

"Guarantee.—This plant is guaranteed to deliver 125 brake H. P. 24 hours on 6,744 lbs. of commercial lignite coal, such as Hoyt, Rockdale, etc., and to pump 800 gallons of water per min. when operating on a 40-foot lift. The engine will not use more than 1/1000 gallons of lubricating oil per H. P. hour.

"We reserve the right to alter the above equipment to best suit the fuel used and operating conditions."

"It is understood that this contract covers the complete agreement that no agent has any authority to obligate us by any terms not herein expressed, and no modification shall be binding, unless in writing, and approved by our home office at Springfield, Ohio.

"This agreement is subject to delays caused by fires, strikes, accidents, or other causes beyond our control; no liability is assumed therefor; receipt of material constitutes a waiver of any claim for damages on account of delay."

In the specifications attached to the contract it is provided:

"The plant is to be complete, less foundations, hauling, common labor, buildings, and flumes."

The evidence conclusively shows that both parties to the contract had in contemplation that the plant was to be used for supplying water to irrigate a rice crop to be planted upon defendants' farm in 1910. That the contract must be read in the light of the surrounding circumstances, in arriving at a just interpretation of its terms, may be conceded; but this rule does not admit of a violation of the express language which the parties have employed in defining their obligations, nor the reading into the contract of terms which its express provisions exclude. In interpreting the several obligations of the parties, we may measure the reciprocal duties imposed by reference to the main object of accomplishment. The parties have, however, specifically provided what each was to do under the contract. Intervener's obligations may be summarized: To furnish certain specified machinery, which, when installed, was guaranteed to produce certain specified results under given conditions; to ship the machinery within about 90 days of acceptance of the proposal; to furnish blueprints for the foundations; to provide an engineer to supervise the installation and instruct defendant's operators. Defendant was to build the foundations according to the blueprints furnished, place the machinery thereon, furnish all help and facilities required, and promptly remove all obstacles to complete performance of the contract. Clearly a failure on the part of intervener...