Webb v. Emerson-Brantingham Implement Co.
| Decision Date | 26 January 1921 |
| Docket Number | (No. 1720.) |
| Citation | 227 S.W. 499 |
| Parties | WEBB et al. v. EMERSON-BRANTINGHAM IMPLEMENT CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Swisher County; R. C. Joiner, Judge.
Action by George T. Webb and others against the Emerson-Brantingham Implement Company. From a judgment sustaining exceptions to the petition, plaintiffs appeal. Reversed and remanded.
W. F. Hendrix, of Tulia, for appellants.
Spence, Haven & Smithdeal, of Dallas, for appellee.
Appellants, Geo. T. Webb and others, brought this suit against the appellee, Emmerson-Brantingham Implement Company, to recover damages for fraudulent representations made by the implement company in the sale of a secondhand gasoline tractor. This appeal is from the judgment of the trial court, sustaining defendant's general and special exceptions to the plaintiffs' petition. We will therefore set out so much of the allegations of this pleading as is necessary to make our holding in reference thereto intelligible.
Plaintiffs alleged: First. That in November, 1916, the implement company fraudulently represented that a certain secondhand tractor, which it proposed to sell to plaintiff, would with slight repairs, which it agreed to make, be in first-class condition and as good as new, and do all farm work required of it by the plaintiffs; that plaintiffs, relying on these representations, bought the tractor, and executed to the defendants their two notes, aggregating $1,635, securing payment thereof by chattel mortgage on said tractor; that the plaintiffs paid the freight on said tractor, amounting to the sum of $55; that such statements as to the condition of said tractor were false, "in that said tractor when repaired was wholly worthless," and would not run after repeated efforts on the part of defendants' agents to repair it, and "that same was practically worthless, and that the freight paid out by plaintiffs should be refunded." Second. That plaintiffs paid out certain sums of money for new parts ordered for repair of said tractor on the representation of the implement company that "plaintiffs would get credit for them, and that the engine could truly be made to work all right," these items aggregating the sum of $99.53; that the plaintiffs made numerous trips and incurred personal expenses in the sum of $90, and bought certain other parts for said tractor, in an attempt to make it operate, at an additional expense of $15.48; that plaintiff also purchased of the defendant for use with said tractor a sod-bottom plow, paying therefor the sum of $65, and that said plow was worthless to the plaintiff "unless said engine could be operated successfully"; and that plaintiffs had no other means of using said plow. Third. That if the said engine had not been defective plaintiffs would have planted 35 acres of wheat in the fall of 1916, and would have made a net profit thereon of $400, and would, in the year 1917, have planted 155 acres in milo maize and kaffir corn, and would have made a profit on said crop of $1,800, and that plaintiffs had a contract with one Elmer Knight for the plowing of 200 acres of land in the fall of 1916, at $2.25 per acre, out of which they would have made a profit of $294, but which plowing they lost on account of the worthless condition of said tractor. Fourth. That the said enumerated items of damages "resulted from the defective condition of said tractor, and because same would not operate as represented by defendants," and that the defendants were informed of the purpose for which the plaintiffs intended to use said engine in planting said crops and in plowing lands for others as alleged. Fifth. That the plaintiffs would not have received said tractor but for the false and fraudulent representations of the defendant; that the defendants continued to represent that they could and would place said tractor in good working condition; that plaintiffs attempted to return said engine to defendant, but were induced to keep it on the representations that the defendant expected to make the same run; that defendant knew that said engine could not be made to run, but made said promises and representations for the fraudulent purpose of "getting plaintiffs to keep it for a while longer so as to have a better excuse to refuse to do anything further with same"; that the said fraudulent acts and representations were made and committed in Swisher county, in the district court, of which county the suit was brought.
Defendant, in its answer, among other things, pleaded that the contract for the sale of said engine was in writing, and it was provided therein that the implement company made no warranties of any kind in reference to the condition of said engine, etc. The plaintiff, in a supplemental petition, expressly stated that the suit was "for damages on account of false and fraudulent representations made by defendant and its agents."
The exceptions urged by the defendant consisted of a general demurrer and special exceptions to the various items of damage alleged.
The plaintiff's suit was for deceit in the fraudulent representations made by the defendant. Routh v. Caron, 64 Tex. 291. That is the fair construction to be placed upon the averments of their original petition, and the plaintiffs expressly so declare in their supplemental petition. The ordinary damages allowed in such case is the difference in the contract price paid for the goods and the value of the goods as delivered and in addition such special damages as were the proximate result of the wrong. George v. Hess, 100 Tex. 44, 93 S. W. 107; Rumely Products Co. v. Moss, 175 S. W. 1087, 1088. The plaintiffs itemized their damages, and do not allege general damages, and do not sue for any amount on account of the difference between the contract price of the tractor and its actual value, so we need not determine whether the fact that it appears that notes were given for the purchase price of the tractor, and the petition...
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