Walter A. Wood Mowing & Reaping Mach. Co v. Hancock

• Court: Texas Court of Appeals
• Writing for the Court: Stephens
• Citation: Walter A. Wood Mowing & Reaping Mach. Co v. Hancock, 23 S.W. 384, 4 Tex. Civ. App. 302 (Tex. App. 1893)
• Decision Date: 04 October 1893
• Parties: WALTER A. WOOD MOWING & REAPING MACH. CO v. HANCOCK.

23 S.W. 384

WALTER A. WOOD MOWING & REAPING MACH. CO v. HANCOCK.

Court of Civil Appeals of Texas.

October 4, 1893.

Appeal from Wilbarger county court; J. W. Blankinship, Judge.

Action by W. H. Hancock against the Walter A. Wood Mowing & Reaping Machine Company to rescind the sale of a harvester by defendant to plaintiff, and recover the purchase money paid, and certain items of damage alleged to have been caused by failure of the machine to work as represented. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Reversed.

The petition and amendments thereto alleged, in substance, that defendant's agent misrepresented the machine; that it did inferior and defective work; that defendant, by its agent, agreed with plaintiff that, if it did not do good work, he would not have to pay for it; that he paid $25 cash on the purchase, and gave two notes for $58.75 each; that defendant transferred the notes to the State Bank of St. Louis, which brought suit on the note first maturing at Dallas, Tex.; that defendant contested such suit, on the ground of failure of consideration, but was unsuccessful; that he paid the judgment in such case, amounting to $95.90, including the attorney's fee stipulated for in the note, and $10.45 costs, and also paid $5 to his attorney for defending such suit; that on the maturity of the other note he paid the same, with interest, amounting to $72; and that, on account of the defective working of the machine, his oats were wasted in the harvest of 1888 to the value of $250. He also tendered back the machine, and relinquished any ownership or claim on the same. He asked judgment for the amount paid on the machine, including the costs and expenses incurred in defending the suit on the note first maturing. Defendant specially excepted to that part of the petition which set up the costs and attorney's fees paid by plaintiff in such suit, on the ground that these did not constitute a proper element of damage. The exception was overruled. Defendant also pleaded the two-years statute of limitation in bar of the item of damage claimed for waste of oats in the harvest of 1888. An exception by plaintiff to such plea was sustained. The jury returned a verdict in favor of plaintiff for $140, and also allowed him to retain the machine. Defendant asked for a new trial, on the ground, among others, that the verdict was not responsive to the issues.

Stephens & Huff, for appellant. McGhee & Easton, for appellee.

STEPHENS, J.

The judgment in this case must be reversed, and the cause remanded for a new trial, on the following grounds: The exceptions of appellant to that part of appellee's petition which alleged, as items of damage, the costs of the Dallas suit, including the attorney's fee, should have been...