Texas Harvester Co. v. Wilson-Whaley Co.

Citation210 S.W. 574
Decision Date22 June 1918
Docket Number(No. 8896.)
PartiesTEXAS HARVESTER CO. v. WILSON-WHALEY CO.
CourtCourt of Appeals of Texas

Appeal from District Court, Comanche County; J. H. Arnald, Judge.

Suit by the Wilson-Whaley Company against the Texas Harvester Company. From judgment for plaintiff, defendant appeals. Reformed and affirmed.

Cockrell, Gray, McBride & Odonnell, of Dallas, and Callaway & Callaway, of Comanche, for appellant.

A. E. Hampton, of De Leon, H. N. Goodson, of Comanche, and Theodore Mack and David B. Trammell, both of Ft. Worth, for appellee.

Opinion.

DUNKLIN, J.

The Wilson-Whaley Company, a private corporation doing business in the town of De Leon, Comanche county, purchased from the Texas Harvester Company another private corporation seven Sterling peanut threshing machines. The Wilson-Whaley Company was conducting a mercantile business in the town of De Leon, and as a part of its business was engaged in selling farm machinery to farmers in that vicinity, and the threshing machines were purchased to supply its customers.

This suit was instituted by the Wilson-Whaley Company against the Texas Harvester Company to recover damages for alleged fraud and deceit practiced upon it through defendant's duly authorized agents, R. E. Harris and C. M. Fouts, in the sale of those machines; and from a judgment in plaintiff's favor the defendant has appealed.

The case was tried without a jury, and the trial judge filed findings of fact and conclusions of law, which are as follows, eliminating therefrom useless repetitions of such expressions as "I find that," but otherwise quoting the findings literally, to wit:

Findings of Fact.

"The defendant, the Texas Harvester Company, is a corporation duly incorporated under the laws of the state of Texas; and at all the times alleged in the plaintiff's second amended petition, R. E. Harris and M. C. Fouts were the legal representatives and agents of said defendant corporation, with full power and authority from said corporation to perform the acts, and bind the defendant, as is alleged in the plaintiff's second amended petition.

"(2) On or about April 1, 1914, the plaintiff Wilson-Whaley Company was a private corporation, with its principal office in De Leon in Comanche county, Tex., and at such time continuously to this date was engaged as a general mercantile corporation.

"(3) On or about April 1, 1914, R. E. Harris and C. M. Fouts, as legal representatives and agents of the Texas Harvester Company with full authority, did induce the plaintiff, the Wilson-Whaley Company, to make a contract with the Texas Harvester Company for the purchase of Sterling peanut threshers, complete, which consisted of a separator, and engine and other attachments on one frame; and the representations of fact made by said agents to the plaintiff, and on which it relied, that induced it to enter into said contract, were as follows, to wit:

"(A) That Heebner & Sons were manufacturers, or controlled the manufacture of all the peanut threshers that were being sold in this section of the country, such as the Little Giant, Champion, and Sterling.

"(B) That the Sterling was the best peanut thresher that was being manufactured; that it classed a grade A1, and that it was a better and more durable peanut thresher than any other kind and make of peanut threshers; that it was a peanut thresher that had been thoroughly tried and tested, and was the very best peanut thresher in workmanship, material, construction, and service that was being sold by any one; and that, if plaintiff would purchase the Sterling thresher, it would have the best peanut thresher that was on the market.

"(C) That defendant had bought out and controlled the output of the manufacturing business of Heebner & Sons, and the products that said business controlled; and that said defendant was going to discontinue the manufacture of all peanut threshers, except that of the Sterling, and would discontinue the manufacture of the Champion and Little Giant peanut threshers, and repairs for the same; and that, if plaintiff entered into the contract with defendant to handle the Sterling threshers, plaintiff would not only have the best thresher that was on the market, but would have the only one that would be sold in any of the peanut territory in the future, and that if plaintiff handled any other make of peanut thresher, and particularly the Little Giant, or the Champion, on account of the fact that all other makes of peanut threshers, and particularly the Little Giant and the Champion, were to be discontinued and not thereafter be manufactured, plaintiff would be unable to buy from any one extras and repairs for any other peanut thresher, except the Sterling, after the 1914 and 1915 peanut season.

"(D) That the Sterling peanut thresher would thresh from 400 to 600 bushels of peanuts per day.

"(E) That defendant would have stationed at De Leon, Tex., an expert operator to look after the proper operation of said machines.

"(F) That defendant guarantied all of said threshers to be made of good material, and to do good work and to be first-class in point of construction, workmanship, and material.

"(G) That the defendant exhibited to plaintiff a catalogue showing cuts of said machine and the principle on which they were constructed and operated, and which cuts showed the operating principle of the shaker to be a motion and movement longitudinally with said machine.

"(4) Each and all of the representations set out in finding No. 3 was represented and stated to the plaintiff by the defendant as a statement and representation of fact.

"(5) The plaintiff was entirely ignorant and unskilled with reference to peanut threshers, and had no experience whatever relative thereto; and it acted solely and alone upon the representations of fact made to it by the defendant, as set out and stated in finding No. 3, supra; and but for each and all of said representations of fact the plaintiff would not have acted, and entered into said contract.

"(6) Each and all of the representations of fact set out in finding No. 3, supra, were each and all material representations of fact, inducing the contract on the part of the plaintiff, and but for a belief and reliance in each and every one of said representations the plaintiff would not have contracted.

"(7) Each and every one of the representations of fact alleged in the plaintiff's second amended petition, and set out in finding No. 3, supra, were made by the defendant to the plaintiff in Comanche county, Tex., and induced solely thereby, the defendant contracted and acted to its damage, in Comanche county, Tex.

"(8) Each and all of the representations of fact set out in finding No. 3, supra, were affirmatively false and fraudulent, at the time they were made in Comanche county, Tex.

"(9) The plaintiff, after the use of the diligence required by law, only discovered said fraud practiced on it, in the month of July, from July to November, A. D. 1915.

"(10) Induced solely and alone upon said representations of facts set out in finding No. 3, supra, and, relying thereon, the plaintiff, prior to May 15, 1914, contracted with the defendant for the purchase of seven Sterling peanut threshers and equipments complete; and, authorized by said defendant, the plaintiff made the same representations of fact to its customers, and prior to May 15, 1914, had sold by valid contracts said seven peanut threshers to its customers.

"(11) All of said contracts were complete and consummated contracts, induced by a belief and reliance on said representations of fact set out in finding No. 3, supra, and were complete and consummated and became valid and complete and binding contracts prior to May 15, 1914.

"(12) The defendant agreed to at its cost repair said machines, and authorized the plaintiff to have said repairs made at its cost, and also furnish at its cost certain extra trucks, belting, and repairs.

"(13) Acting under said representations and the contract made in reliance thereon, the plaintiff purchased from the defendant seven threshing outfits complete, consisting of separator and attachments and engines and equipments, mounted on one frame, and for which the plaintiff paid to the defendant the sum of $3,365.61. On account of freight on said seven machines the plaintiff paid the sum of $350. For extras and express the plaintiff paid $242.02. For seven extra trucks the plaintiff paid $190. For work and labor the plaintiff paid $193.86. For extra belting the plaintiff paid $147. For certain extras on the thresher sold to Johnson the plaintiff paid $24. All of the items paid out by plaintiff on the accounts above stated aggregate the sum of $4,512.49.

"Each and all of the items and expense above stated was divided and authorized by the defendant to the plaintiff, that the plaintiff should pay on account of the defendant, and that the defendant would make good to the plaintiff such expenditures.

"(14) The plaintiff has received, on account of the sale of said machines, the sum of $2,023, and, except for said amount said machines, or any note or notes taken in payment therefor, are absolutely worthless and have no market value, and the consequent damage to the plaintiff is the sum of $2,489.49, with interest thereon at 6 per cent. from January 1, 1915.

"(15) None of the representations of fact set out in finding No. 3, supra, existed at the time they were made, nor since; and the defendant failed in each and every instance so far as said representations of fact were concerned; and each and every one of said representations of fact were false and fraudulent; and each and every representation of fact, being false and fraudulent contributed to and resulted in damage to the plaintiff; and, unless the plaintiff had believed and relied on each and every one of said representations of fact, it would not have entered into said contract.

"(16) In order that there...

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