Southern Gas & Gasoline Engine Co. v. Adams & Peters

• Decision Date: 07 October 1914
• Docket Number: (No. 5286.)
• Citation: 169 S.W. 1143
• Parties: SOUTHERN GAS & GASOLINE ENGINE CO. v. ADAMS & PETERS.
• Court: Texas Court of Appeals

169 S.W. 1143

SOUTHERN GAS & GASOLINE ENGINE CO. v. ADAMS & PETERS.

(No. 5286.)

Court of Civil Appeals of Texas. San Antonio.

October 7, 1914.

On Motion for Rehearing, October 28, 1914.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Action by the Southern Gas & Gasoline Engine Company against Adams & Peters, with cross-action by defendant. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Bryan & Bryan, of Houston, for appellant. Fisher, Campbell & Amerman, of Houston, for appellee.

CARL, J.

The appellant, Southern Gas & Gasoline Engine Company, sued Adams & Peters, appellees, to recover a balance due on the purchase price of one 20 horse power Flour City traction engine sold by appellant to appellees in October, 1911. Appellees answered and filed a cross-action, alleging that the engine had failed to develop 20 horse power traction pull and was defective in material and workmanship.

It was alleged that appellant contracted to sell them "a 20 horse power traction engine," by which was meant (as commonly known and understood, especially among machinery men) to mean one which would develop a traction force or power when in operation of "20 horse power"; and further that said engine was warranted to be of the very best workmanship and material, and that the same, when properly handled, would develop the specified power.

It is further pleaded that appellees had notified appellant before, and at the time of purchasing said engine, that they desired the same to use upon their potato farm, for the purpose of drawing plows, potato diggers, etc., in planting, cultivating, and harvesting Irish potatoes for the market; that said engine did not work properly from the start, of which they advised appellant; and that appellant, on various occasions, sent its agents and representatives to work on said engine, and adjust the same, and, after each attempt to repair the same, appellant, its agents and representatives, assured appellees that same would then fulfill the requirements in the contract and do the work expected. And further that appellees relied upon the warranties and representations of appellant and repeated assurances, and did not know, prior to the time the potato crop was ready to be harvested, that they would not be able to harvest the crop by the use of the engine, and depended upon it for that purpose; that the engine would not develop 20 horse power and was not of the best material and workmanship; that when they began harvesting their crop, about June 1, 1912, they were unable to do so, because of defective workmanship and material in said engine and on account of the fact that it did not develop 20 horse power; and that on that account it took the appellees about six weeks or more to harvest their crop, which might have been harvested in two weeks had the engine been as represented, they having no other means of harvesting the crop of potatoes; that the engine was of no value at the time of its delivery. They asked for rescission of the contract; for recovery of the part of the purchase money paid; for amount of freight paid by them on the engine from the factory to Duke's Station, and an additional sum of $24 freight and demurrage on said engine from Duke's Station to Sheppard's Switch, because appellant failed to ship the engine to the latter place as provided in the contract; for amount of repairing done on the engine in an effort to make it work; for the amount of damages sustained by them to their potato crop by failure to get same harvested before the market declined.

The purchase price of the engine was $1,750, one-third in cash upon arrival of engine, one-third in 8 months, and one-third due in 12 months.

The contract of sale states that appellant proposes to furnish and deliver f. o. b. cars at factory "one 20 H. P. Flour City gasoline traction engine," and the guaranty clause reads:

"Guarantee.—The material in the machinery and workmanship shall be of the very best class, and if any part of said machinery shows defective material or workmanship within one year from date of shipment, we agree to furnish a new part free of charge f. o. b. factory, to replace such defective part. The engine, when in proper condition and correctly installed, adjusted and handled, is guaranteed to develop the power as rated, when using satisfactory fuel as herein specified. (Upon written demand, within 60 days from date of invoice, we will make a regular Proney brake test after the plant is properly installed, the purchaser to furnish all facilities, material and assistance, and if the engine develops the power as above mentioned, under the conditions herein specified, he is to pay the entire expense thereof.)"

On answers to special issues submitted to the jury, judgment was rendered that appellant take nothing as against appellees, and that the contract of sale be rescinded and canceled, and in favor of appellees against appellant for $583.33 paid as part of the purchase price, together with interest, $24 freight and demurrage from Duke's Station to Sheppard's Switch, $156 freight paid from the factory to Duke's Station, $165.80 for repairs on the engine, $2,159.01 damages sustained by defendant to their potato crop, or an aggregate sum of $3,088.14.

The engine was delivered about November 20, 1911, and unloaded by appellees a few days later. Mr. Adams, one of the appellees, is a practical machinery man, and upon his testimony in the main they rely. He says they began trying to use the engine about the 25th of November, 1911.

"We used it the last week in November, or tried to use it until the 10th or 12th of December; that is, for nearly three weeks, or two weeks anyhow. We tried it in January; I think we did."

He says he did not at that time know it would not produce 20 horse power, because he had no catalogue nor specifications, and that he relied on the representations made that it would do so.

"I don't know that I can now fix the time as to when I first discovered that that engine was not a 20 horse power at the drawbar. I don't know whether it was as early as the 1st of February or not. I came up here to tell them it wasn't doing 20 horse power work, and I believed it when I so told them, which was probably the first week in February. I know during the first week in February that the engine was not developing 20 horse power, and I told them it wasn't doing the work a 20 horse power engine should do, and at that time they told me to sit still, that they would have a man down here that could make it do anything. Either Mr. Leavens or Mr. Marlin said that Mr. Adcock (the man who first came) wasn't a traction man. He said he was a stationary engine man, and this man from the factory knew what he was doing, and I told them all right, we would wait and see what he was. I don't know when I at last came to the conclusion we didn't have a 20 horse power engine at the drawbar, but when we failed to make it work the first time I had some doubts about it. Mr. Fahling didn't make it work the first time when he was there in January. When Mr. Fahling was down there, it was raining both times, and he didn't get to show the engine out under favorable conditions. He said if it was dry he could make it pull the plows, and a whole lot of things, and I had to accept his statement because I couldn't say it wouldn't. * * * Adcock was sent down there the 24th or 25th of November, 1911, and was there up to about the 29th when he returned to Houston. He did not succeed in fixing it. Couldn't get the hitch arranged, and, when they got that fixed, it wouldn't pull the plow. It then began raining, and nothing was done with the engine until in January, and I came up and told these people here it was not giving satisfaction."

He says he was told to wait till Fahling came. He did come, and the engine failed to do any better.

"Then, about that time, why the bolts that hold the connecting rod broke — snapped off — and we were a month getting that fixed; then Mr. Fahling came back a second time and tried to make it work, and the magneto played out along about that time." "When I say `about that time' I am talking about early spring of that year, probably April; it might have been the last of March. It was in February when we finished plowing our land for the potato crop. We finished with the mules."

The last time Fahling was there, Adams says, he brought a new Remy magneto to put on, but refused to put same on the engine until the notes were signed for deferred payments, which Adams declined to do, stating that the engine was defective otherwise. Fahling then took the magneto away and returned no more. The engine was used some time after that before the harvesting of the crop began. About the 1st of June, appellees put a new magneto on and used the engine in harvesting the crop up till in July, although the evidence shows that it did not work well, and that it took about six weeks to do the work it should have done in two weeks, if working well.

On May 8, 1912, appellees wrote appellant that the engine was not working well, was not according to contract, and would be held subject to its order, upon repayment of the cash payment made. It was about the last of May or first of June that appellees put the new magneto on the engine. Adams says:

"I know that when we got through digging the potatoes (which was in July) we tore the engine down, and saw what the trouble was."

The evidence shows that the items of expense in repairs on the engine were paid out by appellees; and it may be said that, if admissible, the testimony also shows that the value of the potato crop and damage thereto were as found by the jury.

It will be noted, from an inspection of the pleading, that no fraud, accident, or mistake is alleged in the action for rescission; but it is claimed that certain warranties as to the power of the engine and of the material and workmanship were made. These warranties are pleaded,...