White, Ward & Erwin v. Hager

• Decision Date: 07 March 1923
• Docket Number: (No. 382-3573.)
• Citation: White, Ward & Erwin v. Hager, 248 S.W. 319, 112 Tex. 516 (Tex. 1923)
• Parties: WHITE, WARD & ERWIN v. HAGER.
• Court: Texas Supreme Court

248 S.W. 319

WHITE, WARD & ERWIN v. HAGER.

(No. 382-3573.)

Commission of Appeals of Texas, Section B.

March 7, 1923.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by F. B. Hager against White, Ward & Erwin. Judgment for plaintiff, and defendants bring error. Question certified to Supreme Court. Question answered and ordered certified to Court of Civil Appeals.

K. R. Craig and W. F. Bane, both of Dallas, for plaintiffs in error.

M. M. Parks and House & Wilson, all of Dallas, for defendant in error.

POWELL, J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Fifth District:

"Suit pending in the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas.

"Statement.

"The defendant in error, F. B. Hager, brought suit against the plaintiffs in error, White, Ward & Erwin, and recovered judgment for the rescission of the sale of an automobile made by the latter to the former, and for the recovery of the purchase price paid therefor. The Guaranty Securities Company, a corporation, was joined as defendant on the allegations of Hager that a note was executed by him for part of the purchase money of said automobile, and that said note had been transferred by plaintiffs in error to and was held by said corporation. Defendant in error alleged in substance that the plaintiff in error, on or about the 15th day of July, 1915, called upon him and offered to sell him a new five-passenger Overland automobile, model 75-B; that defendant in error then informed plaintiffs in error that he had never owned an automobile, had never had any experience in handling or operating one, and knew absolutely nothing about them, but that he would like to own an automobile, provided he could buy one that he could operate and enjoy for the use of himself and family as an everyday service car over the roads of Dallas and adjoining counties in Texas; that unless he could buy a car that would render him such service it would be of no value to him, and he did not wish to buy; that thereupon the plaintiffs in error represented that they had just the car defendant in error needed, and had the car that would give him perfect service and full and complete satisfaction; that defendant in error then remarked that he would have to rely upon plaintiff in error's representations in the purchase of a car, if he dealt with them, and that in reply plaintiffs in error said: `We are your local merchants, and we could not afford to sell you a car and have you dissatisfied, even if we wanted to, and you can buy the car from us and we will guarantee to you said car to be mechanically perfect in all its parts and to be suitable for the service for which you say you want a car, and we will guarantee that said car will give you full and complete satisfaction; and, if we cannot make it satisfactory to you, we will agree that whenever you become finally dissatisfied with said car you may return same to us, and we will make you whole, give you back the consideration paid us for said car.' Defendant in error further alleged that the plaintiffs in error represented that the gears of said car were perfectly fitted; that the engine and the pistons of the same were in perfect order and would give good service and satisfaction; that the motor was a good motor, and could be relied on to give good service; that the gears had never given any trouble, and would operate to the satisfaction of the defendant in error; that said car was mechanically perfect, and was not worn in any of its parts and was not defective, had no cracks or sand laps in the engine or radiator; that the ignition system and wiring through was in perfect order; that the rear gear system was properly meshed; that the engine was not broken nor cracked, nor damaged in any of its parts or in any way; that plaintiffs in error represented that the car and model that they were offering to sell defendant in error was not only a new automobile, but was a new model, and that they would on that account be specially interested, and would personally see to it that it gave defendant in error perfect satisfaction.

"It was further alleged that the plaintiffs in error, for the purpose of defrauding the defendant in error and for the purpose of inducing him to purchase said automobile, falsely and fraudulently represented to him said automobile to be as described, knowing defendant in error's ignorance of automobiles, his confidence in them as merchants, and knowing that he would believe each and every representation made to be true and rely upon them, and, for the purpose and design of selling defendant in error the car in question, made all of said representations, guaranties, and warranties well knowing that they were not true. It was further alleged that said automobile was not a new car, but instead a secondhand car, and was not a model 75-B, but a model 75; that it did not give satisfactory service, would not pull hills in high because of the many defects in the engine and other parts of said car; that none of the representations and warranties of the plaintiffs in error pertaining to the car were true, but were untrue; that in addition to the warranties stated the plaintiffs in error represented to defendant in error that if he purchased said car and the same should prove to be defective or fail to give satisfaction they without cost to defendant in error would try to make said car give good service and satisfaction; that the automobile was especially defective in that the cylinder group had a `sand lap or crack' in the side and leaked water badly; that the crack had been filled with grease or other substance to prevent defendant in error from detecting said sand lap or crack; that the ignition system in the automobile was defective and would not give sufficient spark to operate the same; that the cylinder group and ignition system was so badly defective that same could not be placed in good condition, either by the plaintiff or defendant; that one of the cylinders was badly cracked, and an oversized piston had been installed, and said piston was so tight that same would not run; that the rear gear system of said automobile was defective, in that it `honed and ground,' which was caused by the gears not working properly and on account of the defective construction and improper molding of said parts rendering the rear gear system impossible of correction; that all of the defects in said automobile were known to the plaintiffs in error at the time of the sale and representations and warranties alleged by defendant in error were made by the plaintiffs in error. Defendant in error charged that after giving the automobile a thorough trial and giving the plaintiffs in error sufficient opportunity to make it satisfactory, he tendered the car back to plaintiff in error in as good condition as when received and demanded the return of his money which he had paid and the return of the note given for a part of the purchase money, but that plaintiffs in error refused to take back the car, and refused to return the consideration paid for it; that all the representations by the plaintiffs in error were falsely and fraudulently made with intent to deceive and defraud defendant in error, which in fact they did.

"The defendant in error prayed for a rescission of the contract of sale, for judgment against White, Ward & Erwin for the amount of the money paid on the purchase of the automobile in the sum of $245.25 and interest; for the cancellation of the purchase-money note; or, in the event the Guaranty Securities Company recovered on the note, then that defendant in error have judgment over against White, Ward & Erwin for the amount of such recovery; for costs and general relief. White, Ward & Erwin denied, generally and specifically, all the allegations of false representations, denied the falsity of the alleged representations that the car was a new car, and that it was a model 75-B, alleging that it was a new car, and that it was in fact a model 75-B; denied the making of the warranties and guaranties and agreement for rescission alleged by plaintiff, which warranties and guaranties and agreement were shown by plaintiff's petition and supplemental petition to have been verbally made during the negotiations of, and before the closing of, the sale. They further alleged that the contract of sale was in writing, signed by Hager, as well as themselves, and that such written contract contained no terms of warranty, nor any agreement for the rescission of the sale; and attached to their amended pleading a copy of the written contract, and prayed that plaintiff take nothing by his suit. The defendant in error pleaded by supplemental petition that one of the plaintiffs in error, J. F. White, called him, defendant in error, into his office in the town of Garland and produced a contract, note, and mortgage for him to sign; that when this was done defendant in error told him that his eyes were in such a bad condition that he could not see to read the papers, but was willing to sign, provided they contained the warranties and guaranties which had been agreed upon; that the plaintiff in error, White, read the papers, and as read by White they appeared to contain all the warranties, guaranties, and agreements previously verbally made to him, and he then signed the papers, but that the papers did not in fact contain all the representations and warranties, etc.

"The case was submitted to the jury upon special issues, and upon sufficient evidence to warrant their conclusions they found that the automobile in question was, in accordance with representations of the plaintiffs in error, a model 75-B; that plaintiffs in error guaranteed or warranted said automobile to be mechanically perfect in all its parts, and was suitable for the service for which the plaintiff stated he desired said car, but that it was not mechanically perfect...