Stone Co., Inc. v. Carminati

• Decision Date: 17 October 1958
• Docket Number: No. 15937,15937
• Citation: 317 S.W.2d 78
• Parties: STONE COMPANY, INC., Appellant, v. P. A. CARMINATI, Appellee.
• Court: Texas Court of Appeals

Page 78

317 S.W.2d 78

STONE COMPANY, INC., Appellant, v. P. A. CARMINATI, Appellee.

No. 15937.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 17, 1958.

Witts, Geary, Hamilton & Brice, and Jim K. Choate, Dallas, for appellant.

T. B. Coffield, Bowie, for appellee.

BOYD, Justice.

Stone Company, Inc., sued P. A. Carminati to recover for materials furnished and labor expended in repairing an air-conditioning unit. A trial to the court resulted in a judgment for Carminati. Stone Company, Inc., appeals.

According to appellant's allegations, it sold to appellee in the ordinary course of business certain items of goods, wares, and merchandise, which were installed by appellant in appellee's air-conditioning unit and which items were of the total value of $364.25; the labor of installing the items was of the value of $67.50; appellee agreed to pay the prices and charges as set out; in the alternative, if appellee did not specifically agree to pay the prices charged, he did agree to pay the usual and customary prices; the prices charged were the usual and customary prices, and they were reasonable. Appellant attached to its petition a sworn and itemized account in accordance with Rule 185, Texas Rules of Civil Procedure.

Appellee filed a verified denial of the account under the Rule, and further pleaded that he purchased from appellant 'and its Agent' an air-conditioning unit; before the purchase he discussed the matter with appellant; appellant's representative told appellee that the unit was warranted to give good service for five years, and appellant would see that the unit was correctly installed; the first summer after the installation the unit did not perform properly, and early in the second summer 'something burned out' and the unit would not work at all; appellee informed appellant of the failure of the unit and that he expected appellant to restore it to operation; appellant's representative came to appellee's house and made some changes in the installation and otherwise repaired the unit and placed it in working order; appellee did not order or purchase any item listed in appellant's account and did not agree to pay for any item of merchandise or any labor; he expected appellant to make the repairs under its warranty.

Separate findings of fact and conclusions of law were not requested and were not filed.

Appellant's contentions are that there was no proof of warranty or misrepresentation on its part, and that the undisputed evidence shows that appellee asked for, received, and retained the goods and services of appellant.

According to appellee's testimony, he went to the place of business of a Mr. Lindsey in Gainesville to get a Westinghouse air-conditioning unit; Lindsey did not have the unit in stock, and told appellee to go to appellant's place in Dallas and there examine the unit; appellant was a Westinghouse distributor; appellee went to Dallas and appellant's representative showed him the unit and took him to several houses where appellant had installed similar units and appellee saw them in operation; Lindsey had previously taken the plans and specifications to appellant and 'came back with a blue-print of that'; appellant's representative told appellee that the unit had a five year warranty; 'Q. Did he tell you what they did? A. They just took care of it for five years. * * * I told him, and he knew about it, too, that I was buying this through Mr. Lindsey, and Mr. Lindsey was a new man, just taken this on, taken this agency on. * * * And that the reason I was down there looking at this was because Mr. Lindsey didn't have a display of them to show me, and I asked them if they would send a man up here with Mr. Lindsey and see it was properly installed. Q. What did he tell you? A. Yes, sir, he would. Q. Did he do that? A. No, sir'; appellee knew that appellant was furnishing the unit to Lindsey; the unit burned out early in the second summer and appellee went to appellant to 'see about it'; Lindsey went with him; he did not ask about the cost of the repairs, and was told nothing about it; he was not asked to agree to pay for anything, and he did not agree to pay for anything; he insisted that appellant come and see about the unit; he did not ask what it would cost; he asked appellant 'to take care of the unit,...