West Texas Utilities Company v. Huber

• Decision Date: 13 July 1956
• Docket Number: No. 3249,3249
• Citation: 292 S.W.2d 702
• Parties: WEST TEXAS UTILITIES COMPANY, Appellant, v. G. A. HUBER, Appellee.
• Court: Texas Court of Appeals

Page 702

292 S.W.2d 702

WEST TEXAS UTILITIES COMPANY, Appellant, v. G. A. HUBER, Appellee.

No. 3249.

Court of Civil Appeals of Texas, Eastland.

July 13, 1956.

Rehearing Denied Aug. 10, 1956.

Wagstaff, Harwell, Alvis & Pope, Abilene, for appellant.

Bradbury, Tippen & Brown, Abilene, Biggers, Baker, Lloyd & Carver, Dallas, for appellee.

GRISSOM, Chief Justice.

Huber recovered a judgment against the utility company for breach of a contract to install a lighting system that would properly illuminate his miniature golf course. The company has appealed. The jury found that (14) it was agreed that 'if the plaintiff was not satisfied with any lighting work or arrangements installed by defendant, then the defendant would remove same without any charge to plaintiff for such equipment or work;' that (14-a) before plaintiff closed his golf course he did not unequivocally accept the lighting system as installed after knowing its defects and that (15) after plaintiff closed his golf course be 'elected to retain the lighting system as then installed on such miniature golf course, after knowing of such system's defects * * *.'

The substance of appellant's points is that because the jury found there was an agreement that if plaintiff was not satisfied defendant would remove the equipment without charge and that plaintiff retained the lighting system knowing of its defects plaintiff was thereby restricted to the remedy of rescission and could not maintain a suit for damages. Appellant contends that said findings entitled it to judgment as a matter of law. Appellant supports an able argument by citation of authorities including Nunn v. Brillhart, Tex.Com.App., 111 Tex. 588, 242 S.W. 459; Oltmanns Bros. v. Poland, Tex.Civ.App., 142 S.W. 653 and Adams v. Crittenden, Tex.Civ.App., 191 S.W. 833, 835.

(1) Appellant's contention should be sustained if the contract clearly shows that it was the intention of the parties to make removal of the equipment the exclusive remedy. The law is established that, with certain exceptions, parties may by contract so restrict their remedy.

(2) 'But the mere fact that the contract provides the buyer with a particular remedy does not, of course, necessarily mean that such remedy is exclusive. The provision may be merely permissive, in which case the remedy is regarded as supplementary of those afforded by law, and the buyer may follow it or not, as he chooses. Thus when a contract for the sale of machinery imposes upon the seller the duty of making good any parts thereof which may become defective within a year, but there is no provision making it obligatory upon the buyer to return any defective parts, he does not lose his right to relief if he does not return any parts.' 37 Tex.Jur. 511, 512.

(3) In Nunn v. Brillhart, Tex.Com.App., 111 Tex. 588, 242 S.W. 459, 461, the court said that when a provision for rescission in a guaranty contract is not merely permissive, giving the buyer an option, but is a part of the guaranty and is clearly expressed in mandatory terms such agreed remedy is exclusive. In Stark v. George, Tex.Com.App., 252 S.W. 1053, 1056, the court said:

'In a footnote to the case of Wasatch Orchard Co. v. Morgan Canning Co., (32 Utah 229, 89 P. 1009,) 12 L.R.A.,N.S., 540, it is said:

"If, in a contract for the sale of a chattel, a mere power, not obligatory, is conferred upon the buyer for the return of the chattel if not satisfactory, or if not as warranted, it is a general rule that the buyer, in such case, is not limited to that remedy alone, but he has an...