Southern Gas & Gasoline Engine Co. v. Peveto

• Decision Date: 20 June 1912
• Parties: SOUTHERN GAS & GASOLINE ENGINE CO. v. PEVETO.
• Court: Texas Court of Appeals

150 S.W. 279

SOUTHERN GAS & GASOLINE ENGINE CO. v. PEVETO.

Court of Civil Appeals of Texas. Galveston.

June 20, 1912.

Rehearing Denied October 10, 1912.

Appeal from District Court, Orange County; W. B. Powell, Judge.

Action by S. H. Peveto against the Southern Gas & Gasoline Engine Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lewis R. Bryan, of Houston, for appellant. Holland & Holland, of Orange, for appellee.

REESE, J.

Alleging in his petition that the Southern Gas & Gasoline Engine Company had sold him a certain gasoline engine for the purpose of pumping water from his artesian well to water the rice on his own land and other land contiguous thereto, the plaintiff, S. H. Peveto, brings this suit against said engine company to recover damages alleged to have been suffered by him on account of the failure of the engine to come up to the requirements of the representations and guaranties of defendant as to the amount of water it was capable of raising, in consequence of which on account of deficiency of water the crops of rice were damaged. It was further alleged that the engine was worthless for the work which it was understood it was to do; that it was tendered back to defendant, who refused to receive it. Plaintiff sought to recover, first, the amount of the cash payment he had made on the engine; second, the balance due on a certain judgment recovered against him by an innocent purchaser to whom defendant had sold the notes given for the credit payment, part of said judgment having been satisfied by an execution sale of the engine; third, certain expenses to which he had been put in moving and installing the engine; and, fourth, the value of the crop of rice planted on the land which would have been produced if the engine had been as represented. On trial with a jury under the charge of the court the jury returned a verdict for plaintiff for each of the items of damage claimed amounting in the aggregate to $3,298.55. A remittitur of $212.40 was filed, and a judgment rendered for $3,086.15, from which defendant appeals.

The assignments of error present certain questions which will be passed upon without following the order of the assignments or discussing the several propositions in detail. This opinion will be sufficient to indicate the reasons of our reversal of the judgment as required by the statute. R. S. art. 1039. The appellee relied upon a verbal contract between himself and the agent of appellant, by the terms of which the engine was guaranteed to furnish (by pumping from appellee's artesian well) sufficient water to water 300 acres of rice. Appellant pleaded that the only contract between the parties was in writing, a copy of which was attached to its answer, by the terms of which appellant only guaranteed that the engine should be 50 horse power. The court in the charge to the jury instructed them that this written contract was the only contract between the parties, and that, if the engine was 50 horse power, they should return a verdict for defendant. The jury was instructed that if they found for plaintiff on this issue, and that the engine was worthless for the purposes for which it was being used and for which it was purchased, they should return a verdict for plaintiff, allowing him the sum of $576, being the amount of the cash payment made by him, also $674, being the unpaid balance due upon the judgment aforesaid, with interest upon both amounts. Complaint is made in several ways by the assignments of error that appellee was not entitled to recover in any event the amount unpaid upon this judgment.

The facts as to this are that, when the engine was sold, appellee paid in cash $576 and gave his negotiable promissory notes for the balance. These notes were by appellant transferred regularly before maturity to the First National Bank of Springfield, Ohio, which afterwards sued appellee and obtained judgment on the notes for $1,199.50. The bank was an innocent purchaser for value, and appellee's defense to the notes unavailable as against it. Execution was issued on this judgment under which the engine was sold, leaving a balance still due of $674.50. Appellee sought to recover this sum along with the cash paid, upon the theory that the engine was worthless for the purpose for which it had been sold, and that, as soon as this was discovered, he had tendered it back to appellant. It is no objection to this judgment, as appellee sought to use it, that appellant was not a party to it. The question is whether appellee could recover the amount of the judgment as part of the purchase price paid without actual payment or satisfaction of the judgment. Upon this question we find much difficulty in arriving at a satisfactory conclusion from the authorities, which, so far as we have been able to find, are meager, and not in harmony. Our conclusion is that, until the balance of this judgment is actually paid, appellee is not entitled to be compensated for the same. The mere establishing of the...