Tryad Service Corp. v. Machine Tool Center, Inc.
| Citation | 512 S.W.2d 785 |
| Decision Date | 17 July 1974 |
| Docket Number | No. 993,993 |
| Parties | TRYAD SERVICE CORPORATION, Appellant, v. MACHINE TOOL CENTER, INC., et al., Appellees. (14th Dist.) |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Bryan W. Scott, Robbie S. Morris, Urban, Coolidge, Pennington & Scott, Houston, for appellant.
A. H. Evans, Vinson, Elkins, Searls, Connally & Smith, Bill Cannon, Theodore R. Kirchheimer, Houston, for appellees.
This is a suit for breach of contract.
The appellant, Tryad Service Corporation, brought suit against appellees, Machine Tool Center, Inc., and Reed Drilling Tools Division of G. W. Murphy Industries, Inc., (now known as Reed Tool Company) for breach of a contract to sell a certain piece of industrial equipment. After Tryad had rested, the trial judge, upon motions by the appellees, withdrew the case from the jury and granted a judgment that Tryad take nothing.
An instructed verdict is proper only when there are no material fact issues. Air Conditioning v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952). If reasonable men may differ, then a fact issue exists. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948). In our determination of the above test, the evidence must be viewed in the light most favorable to the appellant, Anderson v. Moore, 448 S.W.2d 105 (Tex.Sup.1969), every reasonable inference must be indulged in the appellant's favor, Tripp v. West Texas Utilities Company, 461 S.W.2d 224 (Tex.Civ.App.--El Paso 1970, writ ref'd n.r.e.), and all contradictory evidence which is unfavorable to the appellant must be discarded. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953).
The evidence, as viewed under the above standards, is as follows. Tryad is in the business of cutting and threading pipe. In 1969 it was seeking to purchase a used Smalley General 30 threadmill. Mr. Jack Augsburger, president of Tryad, came to Houston in March of 1969 seeking to make a purchase of this machine. While in Houston, he went to Machine Tool Center, Inc., which deals in used machinery. He talked with Benedict O'Leary, vice-president of Machine Tool, who informed him that he know of a company which was seeking to sell a Smalley General 30 threadmill. Augsburger and O'Leary went to the plant of Reed Tool, where they met with Mr. Duane Wolfe, who showed Augsburger the machine. At that time the machine was not in working condition because of missing parts. Wolfe informed Augsburger that the parts had been ordered and the machine could be put in working order in about six weeks. Augsburger and O'Leary returned to the offices of Machine Tool. Augsburger called his corporate offices in California to confer with the other principal in the company.
The next day Augsburger and O'Leary returned to Reed, and Augsburger was told that the purchase price of the machine was $22,000 F.O.B. Houston. The deal was to be arranged in such a manner that Machine Tool was to purchase the machine from Reed for approximately $15,000 in cash and one turret lathe, which was worth about $5000. This would leave Machine Tool with a profit of about $2000 on the transaction. Augsburger made an offer of $22,500 F.O.B . Long Beach, California, with the machine to be put in running order by Reed. The additional $500 was to cover freight expenses. Wolfe told Augsburger that he did not have authority to bind the corporation to such a contract and that they would have to see Bill Cannon, who was vice-president of Reed in charge of manufacturing. Mr. Cannon was supervisor of the Reed plant and was in charge of about 1100 men. Cannon agreed to the terms and agreed to furnish a letter stating that Reed would deliver the machine in running order.
Augsburger then returned to Machine Tool and utilized its office to prepare, on a Machine Tool letterhead, the following written memorandum of the oral agreement:
March 19, 1969
Tryad Service Corp.
Gentlemen:
We agree to sell:
1--Smalley General Co. size 30 MB thread mill--Ser. #7195--10 1/2 spindle hole--30 swing-over-bed--cross slide attachment--carriage with hydraulic draulic feed--33 long travel--25 cross travel--built-in hydraulic system--coolant pump unit--carriage spindle with V belt motor drive from top mounted Sterling 10-5 H/P Speed-Trol unit--3/60/220--2000/1000 max. R/R/M--main spindle with V belt motor drive 15 H/P Speed-Trol unit--3/60/220/2000/666 incl. controls and wiring.
The above machine to be put in A 1 running condition and fully assembled; final inspection to be made by J. J. Augsburger or a duly authorized representative of Tryad Service Corporation prior to final acceptance and delivery.
The above has been agreed upon as per letter from Reed Drilling Tools Division of G. W. Murphy Industries dated the 19th of March 1969.
TERMS: $4,500.00 due as of receipt of above letter by Tryad Service Corp. Balance of $18,000.00 due after inspection prior to shipping of machine.
MACHINE TOOL CENTER INC.
/s/ Dick O'Leary
Dick O'Leary--Vice President
Accepted by: /s/ Jack Augsburger
Wolfe prepared the letter from Reed and read it to Augsburger over the phone. O'Leary signed the written memorandum prepared by Augsburger, after it was approved by Mr. Rod, who was president of Machine Tool. Machine Tool.
That same day, Augsburger left Houston to conduct further business in New Orleans. While still in that city, he received a phone call from O'Leary telling him that the deal was off; Reed had decided not to sell the machine to Machine Tool, so Machine Tool would not be able to sell to Tryad. Tryad never received a copy of the...
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