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

• Decision Date: 15 November 1917
• Docket Number: (No. 7409.)
• Citation: 198 S.W. 676
• Parties: SOUTHERN GAS & GASOLINE ENGINE CO. v. ADAMS & PETERS.
• Court: Texas Court of Appeals

Page 676

198 S.W. 676

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

(No. 7409.)

Court of Civil Appeals of Texas. Galveston.

November 15, 1917.

Rehearing Denied November 22, 1917.

Appeal from District Court, Harris County.

Action by the Southern Gas & Gasoline Engine Company against Adams & Peters, wherein defendants filed a counterclaim. Judgment for defendants, and plaintiff appeals. Reformed and affirmed.

See, also, 169 S. W. 1143.

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

GRAVES, J.

This suit was brought by the Southern Gas & Gasoline Engine Company, appellant, against Adams & Peters, a partnership, appellees, for the recovery of the balance due on the purchase price of one 20 H. P. Flour City traction engine, sold by appellant to the appellees in October, 1911. Appellees filed an answer, alleging that the engine was defective as a whole and in all of its parts in material and workmanship, and would not do the work it was sold to do, and claiming damages for the difference between the value of the engine at the time delivered and the price which they contracted to pay for same, with interest, and for money spent in making repairs upon the engine, and for damages suffered by them in the losses on their potato crop by reason of its defective condition and failure to work properly. The case was submitted to the jury on special issues, all of which were found in favor of appellees, and judgment was rendered thereon in their favor, awarding a recovery of the difference between the contract price and the value of the engine delivered, and for freight and demurrage, and for damages for delay in harvesting their potato crop, all aggregating $836.31, over and above the amount due the appellant, and judgment was rendered against it in favor of appellees for that amount, from which this appeal is prosecuted.

The court, however, in entering this judgment for them, refused to allow appellees interest at 6 per cent. per annum upon the amount of damages found in their favor by the jury, or the balance due them after offsetting the amount due appellant, from the date the same were found to have been sustained, June 15, 1912, until the trial, which would have entitled them, as they alleged, to judgment for the larger amount of $863.23, with 6 per cent. annual interest thereon from October 19, 1912, until paid. Upon the court's denial of their motion to so allow them interest, they filed and have presented here a cross-assignment raising that issue. The case, then, is regularly before this court upon a number of assignments urged by appellant, and the cross-assignment of appellees relating to interest.

By appellant's first two assignments it is contended that appellees were not entitled to offset against its debt sued upon any damages they might have sustained for the loss of or for delay in marketing their potato crop, because it appears from the express terms of the written contract between them that appellant was not to be held responsible for damages in the use of the machinery, either original or consequential, and, such damages being consequential, no counterclaim therefor would lie. The provision of the contract referred to is as follows:

"It is a further condition of this contract that the Southern Gas & Gasoline Engine Company shall not be held responsible for damages in the use of this machinery, either original or consequential, and purchaser shall make good any loss to them on same caused by fire, carelessness, or malicious injury until same is fully paid for."

With much earnestness it is argued that, in defining damages, the terms "special" and "consequential" are synonyms for one and the same thing, and hence identical; that the $1,734.30 received by appellees for the loss sustained by them from the delay in marketing their potato crop, because of the failure of the engine to work properly, being "special damages," are likewise "consequential damages," and therefore within the quoted terms of the contract. But, while appreciating its force, we are unable to agree to this construction of the meaning of the contract. Upon the contrary, we agree with the trial court that its terms did not exempt appellant from the kind of damages here obtained against it, and think it quite plain that the damage appellant had in mind in preparing the contract was some damage which might occur during the actual operation of the engine, such as the explosion thereof, or the breaking or flying off of a part of the machinery, or some other such injury resulting proximately from the actual operation of the machinery, for which it might otherwise have been liable. This view of its meaning and intent is strengthened, it seems to us, by the correlative obligation placed by the last clause of the quoted paragraph upon appellees to indemnify appellant for any loss on the engine itself, pending full payment for it, resulting from fire, carelessness, or malicious injury; in other words, it was evidently contemplated upon the one hand that careless, incompetent, or even malicious use or operation of the engine might subject appellant to liability for damages as its consequence, or upon the other result in the destruction or substantial injury to the machine itself, and it was sought to thus exempt appellant from responsibility or loss in either contingency. A further consideration is that the damage so recovered for did not result from any actual use or operation of the engine, but rather from its nonuse or failure to operate at all. Both assignments are overruled.

The third assignment challenges the sufficiency of the allegations in appellees' answer, charging, in effect, that the engine broke and gave way in its various parts and would not do the work it was sold and represented to do, on the ground that they are too vague, indefinite, and uncertain in not specifying what parts broke or gave way, and what particular work it was represented the engine would do. But, when considered as a whole, we think the answer sufficiently set out the nature and extent of the defects complained of, and gave appellant ample notice of what it must meet in contending that the engine filled the requirements of the contract and would do the work it was claimed by appellees to have been sold to do. It was charged that within one year from the date of shipment the engine as a whole, and throughout all of its parts and appurtenances showed defective material and workmanship; that by reason of such defects, it began to and did break and give way, and that among the inferior and defective parts that so broke, gave way, and failed to properly work were those specified in a long itemized list; that appellees, within the year's time called for in the contract, notified appellant of all these conditions, and that the engine was absolutely worthless, and in vain demanded that it replace the same with one of good workmanship and material. It was further alleged that the engine had been sold to appellees under the repeated representation that it was a traction engine of 20 horse power, and of the very best workmanship and material, made after previous notice of just what work they desired it to do upon their potato farm in Brazoria county, Tex., and that it would do that particular work. This assignment cannot therefore be sustained.

As the fourth, fifth and sixth assignments raise in varying forms essentially, or at least in practical effect, the same issue, they will be treated together. The first of these assails the admission of testimony which, it is claimed, tended only to show that the engine in question was manufactured upon an incorrect design or plan of construction, while the other two attack the court's rulings in not sustaining an exception to a special issue, and in not giving a requested charge, both based upon the contention that appellant would not, under the contract sued upon, be responsible for damage resulting from any such defective design. The argument is that, when boiled down, the complained of testimony of the witness R. C. Adams only tended to show, if indeed that much, that certain parts of the engine, including, among others, the connecting rod-bearing surface on the crank shaft, the rocker arms, the housing of the cam shaft, the connecting rod bolts, and the piston pins, were manufactured upon an incorrect design, and that, in an action for damages for breach of a specific warranty of workmanship and material against the seller of an engine, not its manufacturer, it is error to admit evidence which reflects upon the design or plan of construction of the various parts of the engine, since such seller does not impliedly warrant the sufficiency of its design and is not responsible for damage resulting from defects therein. The leading cases cited in support of this position are the following: J. I. Case Plow Works v. Niles & Scott Co., 90 Wis. 590, 63 N. W. 1013; Bancroft v. San Francisco Tool Co. (Cal.) 47 Pac. 684; Wilson v. Avery, 182 S. W. 884. A careful examination of the voluminous testimony of the witness Adams discloses that there was much of it that went to other matters than...