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was not a 20 horse power at the drawbar. I I know that when we got through digging don't know whether it was as early as the 1st the potatoes (which was in July) we tore the of February or not. I came up here to tell engine down, and saw what the trouble was." them it wasn't doing 20 horse power work, and I believed it when I so told them, which was

The evidence shows that the items of exprobably the first week in February. I know pense in repairs on the engine were paid out during the first week in February that the en; by appellees; and it may be said that, if gine was not developing 20 horse power, and I told them it wasn't doing the work a 20 horse admissible, the testimony also shows that power engine should do, and at that time they the value of the potato crop and damage told me to sit still, that they would have a thereto were as found by the jury. man down here that could make it do anything. Either Mr. Leavens or Mr. Marlin said that Mr.

It will be noted, from an inspection of the Adcock (the man who first came) wasn't a pleading, that no fraud, accident, or mistake traction man. He said he was a stationary en- is alleged in the action for rescission; but gine man, and this man from the factory knew it is claimed that certain warranties as to what he was doing, and I told them all right, we would wait and see what he was. I don't know the power of the engine and of the material when I at last came to the conclusion we didn't and workmanship were made. These warhave a 20 horse power engine at the drawbar, ranties are pleaded, and recovery based but when we failed to make it work the first time I had some doubts about it. Mr. Fahling

the eon is sought. Appellees discovered in didn't make it work the first time when he was January, 1912, that the engine would not there in January. When Mr. Fahling was develop 20 horse power and were dissatisdown there, it was raining both times, and he tied with it. On May the 8th they wrote didn't get to show the engine out under favorable conditions. He said if it was dry he a letter repudiating the purchase and telling could make it pull the plows, and a whole lot appellant the engine was held subject to its of things, and I had to accept his statement order, and giving the reasons why this action because I couldn't say it wouldn't. cock was sent down there the 24th or 25th of was taken. After that they continued to use November, 1911, and was there up to about the it until about the first week in July. 29th when he returned to Houston. He did [1] No fraud is charged in this case, but not succeed in fixing it. Couldn't get the hitch arranged, and, when they got that fixed, it even if it had been, this being strictly an wouldn't pull the plow. It then began raining, action for rescission and damages, appellees and nothing was done with the engine until in had no right to continue to use the engine January, and I came up and told these people until the crop was harvested and then to here it was not giving satisfaction."

offer it back after it had been torn down. He says he was told to wait till Fahling Mr. Justice Fly has well said in Hallwood came. He did come, and the engine failed to Cash Register Co. v. Berry, 35 Tex. Civ. App. do any better.

554, 80 S. W. 857: “Then, about that time, why the bolts that “The rule is that a defrauded party must dishold the connecting rod broke-snapped off--and affirm the contract at the earliest practical time we were a month getting that fixed; then Mr. after the fraud is discovered, and that he must Fabling came back a second time and tried to return or offer to return whatever he has remake it work, and the magneto played out along ceived from the other party; and if he retains about that time.” "When I say about that the article purchased, and continues to use it time' I am talking about early spring of that after discovery of the fraud that induced the year, probably April; it might have been the purchase, he will be held to have waived the last of March. It was in February when we right to rescind the contract and to have acfinished plowing our land for the potato crop. quiesced in it." We finished with the mules."

Again, Chief Justice James, in Geiser Mfg. The last time Fahling was there, Adams Co. v. Lunsford, 139 S. W. 64, said: says, he brought a new Remy magneto to

"The testimony shows clearly that they kept put on, but refused to put same on the en- and used the machine, after they knew that de gine until the notes were signed for deferred fendant would not perform the promises; and payments, which Adams declined to do, stat- pudiated the making of the promises they con

after they knew that defendant denied and reing that the engine was defective otherwise. tinued to use the machine under such circumFahling then took the magneto away and re- stances until they abandoned it to its fate someturned no more. The engine was used some where out in the country in Hale county. Ad

mitting that such failure and refusal' would time after that before the harvesting of the give plaintiffs the right to rescind, it was nevercrop began. About the 1st of June, appellees theless essential to such relief that upon disput a new magneto on and used the engine covery of the fact that the promises would not

be performed to not only tender or offer to rein harvesting the crop up till in July, al- turn the machine, but to hold to such position though the evidence shows that it did not consistently, instead of, as they did in this case, work well, and that it took about six weeks proceeding with the use of the machine, recog.

nizing the contract. Kempner v. Advance to do the work it should have done in two Thresher Co., and cases there cited, 118 S. W. weeks, if working well.

717; Grabenheimer v. Blum, 63 Tex. 369." On May 8, 1912, appellees wrote appel

Appellees had known from January, 1912, lant that the engine was not working well, until July of that same year that the enwas not according to contract, and would gine was defective in power and in workmanbe held subject to its order, upon repayment ship and material, if we take the testimony of the cash payment made. It was about the of Mr. Adams, who was a practical malast of May or first of June that appelleeschinist and had charge of the engine. In put the new magneto on the engine. Adams May they attempted to repudiate the pursays:

chase. Following all this they continued to

use the machine until July. We are there-, science, or the trade or particular business fore led to the conclusion that, notwith out of which it arises. To the average juror, standing appellees' letter of May 8th, they scientific or trade terms, such as this, would did not repudiate the sale, but dealt with be meaningless unless so explained, and such the property as their own long after they had explanation is not a variation of the condiscovered all of the alleged breaches of tract in any sense of the word. warranty. In addition to the authorities [3] We are of the opinion that the third following, Justice Moursund has treated this assignment should be sustained, because it subject extensively in Luckenbach v. Thomas, was not pleaded that the Proney brake test 166 S. W. 99. The first and second assign- was ever demanded and made as provided in ments of error are sustained. Hallwood the contract; but the fourth assignment, Cash Reg. Co. v. Berry, 35 Tex. Civ. App. raising specifically the question of the admis554, 80 S. W. 857; Geiser Mfg. Co. v. Luns. sibility of testimony to explain what is meant ford, 139 S. W. 64; Houston Motor Car Co. by 20 horse power, whether at the belt or v. Brashear, 158 S. W. 233; Scalf v. Tomp- drawbar, is overruled, and a like disposikins, 61 Tex. 476; Pullman Co. v. Street Cartion is made of the fifth assignment, comCo., 157 U. S. 94, 15 Sup. Ct. 503, 39 L. plaining of the refusal of the requested Ed. 362; Foster v. Rowley, 110 Mich. 63, charge therein set forth. 67 N. W. 1077; Palmer v. Banfield, S6 Wis. [4). By the sixth assignment complaint is 441, 56 N. W. 1090; Bassett v. Brown, 105 made of the action of the court in refusing Mass. 551.

to submit the charge requested as to wheth: The third and fourth assignments of error er the engine failed to develop 20 horse powdeal with exceptions to the admissibility of er at the belt; by the seventh assignment certain testimony as to what is meant by that the court erred in refusing to submit 20 horse power, as expressed in the contract, the question as to the horse power separate whether at the belt or drawbar, (1) because from the question of the quality of the masuch testimony would vary the terms of a terial and workmanship; and by the eighth written contract, (2) because the contract assignment that the court erred in submitting provided that the engine would develop 20 special issue No. 1 as to the horse power, horse power when subjected to the Proney quality of material and workmanship, all in brake test, and (3) it was not alleged that one question. As to the first two, special issuch test had been made; and the fifth as sues were requested on these points and were signment complains of the refusal of the refused. The question as to where the court to submit a special instruction that the horse power was to be tested was a sharply evidence failed to show that there was any contested point; appellees contending that general or universal custom among machin- it should be at the drawbar and appellant ery men, whereby it was understood that, that it should be at the belt. Special iswhen a gasoline engine was sold at a cer sue No. 1 was so framed that the jury could tain rated horse power, it was generally not answer it “Yes” or “No," unless they and commonly understood that such rated found all three one way. Suppose the enhorse power was at the drawbar and not at gine were defective in material, but was not the belt, and as the contract provided for in workmanship, and at the same time dethe Proney brake test, and that the undis- veloped 20 horse power, we will say at the puted evidence showed that the engine was drawbar, as contended by appellees. The to develop 20 horse power at the belt and jury could not make reply as required by the not at the drawbar.

court. Appellant made timely request for [2] The contract states that it is to be the submission of these issues and filed ob“one 20 H. P. Flour City gasoline traction en-jection to that complained of in the eighth gine." It is not varying the terms of a writ- assignment. A party is entitled, upon timeten instrument to explain what is meant by ly request, to have each material issue suba term used therein, especially a scientific mitted to the jury in such a way as to make or trade term which is not generally under- a clear-cut issue; and the court should not stood. Here we have the written instru- group contested issues so as to require the ment merely stating that the engine is to jury to give an affirmative or negative andevelop 20 horse power. It is nowhere stat. swer to the whole group. A party is entitled ed that it is to develop that power at the to an answer on each material issue, and belt or drawbar, and the only way a lay. when the statute says “it shall be the duty man could understand the term would be by of the court, when it submits a case to the proof as to what is meant by such a term. jury upon special issues, to submit all the isIf it had stated that the power should be sues made by the pleading,” it does not mean tested at the drawbar or belt, there could that several questions, which might receive be no question that parol evidence could not different answers, may be embraced as one isbe introduced which would tend to vary the sue and submitted in a way to admit of but writing. But parol evidence is admissible to one answer to the whole group. The sixth, aid in the interpretation of a contract in ac- seventh, and eighth assignments are suscordance with the recognized meaning of any tained.

machinery men as to what is meant by horse [8] The fourteenth assignment complains power, the court submitted to the jury to de- of the action of the court in permitting wittermine whether it had been established that nesses to testify “to the effect that the writthe rated horse power was to be tested at the ten contract between the parties was a drawbar, as contended by appellees, and we form of contract used among machinery men think this was sufficient. According to the for stationary engines, and not for the sale testimony, there were only two places where of traction engines, because the contract was it was claimed the power should be tested, the best evidence of its own contents and its and they were at the drawbar and belt. So, terms and conditions, and could not be varied if it be shown, by custom, that it was meant or set aside by the oral testimony of witat the drawbar, it would necessarily follow nesses as to their understanding, opinions, that it would not be at the belt. It is not at and conclusions, and the evidence is irrelall necessary to submit the converse of that evant and immaterial.” There is no fraud, which has already been affirmatively given. accident, or mistake pleaded as to the exeThe ninth assignment is overruled.

cution of the contract, and it would certainly [6] The court submitted special issue No. not be subject to attack in this manner. The 1 as follows:

assignment is sustained. Railway Co. v. “Do you or not find from the evidence that Hannig, 91 Tex. 347, 43 S. W. 508; Metropolithe engine in controversy was of the power rep-tan Company v. Wagner, 50 Tex. Civ. App. resented in said contract, and that the mate: 233, 109 S. W. 1120, 1121. rial and workmanship used in construction of said engine was of the very best class? In an- [9] The contract permitted witnesses to tesswering this question you will say, 'First, we tify, over objection, that another traction enfind that it (was) or (was not), as you may gine of 2242 drawbar pull, or 45 horse power find from the evidence. In this connection you are charged that, in order for the parties to belt pull, operated in a field about two miles be bound by custom, it is necessary that the distant from the engine in question would defendants shall establish, by the preponderance pull 12 disc plows, while this engine was pullof the evidence, that it was commonly under- ing 6 plows, and this evidence was objected stood among the deaiers in machinery and gasoline traction engines in selling a traction en- to because it was not shown that the two gine at a rated horse power that, in the ab- engines were operating under the same consence of any agreement, it was understood that the horse. power mentioned was rated at the ditions, being of different make, different drawbar, and such custom must not be tempo- horse power, and not being operated by the rary but must be general as to the particular same man, and further that it was not shown trade and so well established that every one that the soil was the same, nor that the same dealing in that trade, namely, in this instance, physical conditions existed. For instance, it in the gasoline traction engine trade, is presumed to know such custom and make contracts is in evidence that a great deal depends upon with reference thereto."

the engineer in charge and the lay of the Appellant requested the following special land, and whether hard or soft soil, or whethissues which were refused:

er it is wet or dry. The other engine (the "Fourth. Did any part of said engine show Hart-Parr) was of a different horse power defective material or workmanship?

and made by another factory. A negro driver "Fifth. If, in answer to the foregoing question, you say that any part of said engine show

was operating the engine in controversy, and ed defective material or workmanship, then it was shown that he had wrecked the engine was the plaintiff, Southern Gas & Gasoline and had broken disc plows by running onto Engine Company, ready, able, and willing to stumps, and he had never operated a traction furnish new parts free of charge f. o. b. factory when called upon by the defendants, Adams & engine before that one. It is not shown what Peters?"

kind of man was operating the Hart-Parr enIf the engine developed the power at which gine, to which this one was sought to be comit was rated, but the material ānd workman- pared. Chief Justice James has well said ship were not as provided in the contract, it that: seems to us that appellant was entitled to admitted if the difference in conditions is prob

“Testimony of this character ought not to be know those facts from the jury. And it was ably such as would have a tendency to confuse entitled to have it determined whether it or mislead the jury in considering the matter had failed and refused to furnish new parts. at issue.” Olivaras v. Railway, 77 S. W. 931,

982. This may become material in view of another trial.

Unless the conditions and surroundings are [7] But this is an action to rescind the con- the same or similar, testimony of this chartract, and not to offset the purchase price to acter ought not to be admitted, for, if not so the extent of necessary repairs.

limited, the jury will be led off into a maze "Where a buyer of machinery accepts same in of comparisons; confusion and unsatisfactory defective condition, and undertakes to place it results being the natural consequence. It in good condition at the cost of the seller, he may be said that the driver is of no material becomes liable for the price, less the amount necessarily used to place it in good condition." consequence, for instance, and yet one man Saunders' Ex'rs v. Weekes et al., 53 S. W. 34; may be able to get the greatest possible effiMasterson v. Heitman, 38 Tex. Civ. App. 476, ciency out of the engine, while another would 87 S. W. 227.

not even approach it; one aeronaut may be The tenth assignment is sustained, and a ahle to describe all manner of figures in the like disposition is made of assignments 11, 12, air, while another would only pilot a wreck 13, and 1342.

in the attempt, as this negro driver did. Chief Justice Fisher held that similar testi-, Engine Co. v. Peveto, 150 S. W. 279; Mechem mony should have been rejected, the condi- on Sales, $$ 817–1830. tions not having been shown to be similar. [13] Appellee Adams having testified that The fifteenth assignment is sustained. Fahling had refused to deliver the magneto

(10) Assignments 16, 17, 1742, 18, and 19 unless Adams & Peters would sign the notes, raise, in different forms, objections to the it was not irrelevant to permit appellant's measure of damages as submitted by the witnesses C. A. Leavens and C. W. Marlin to court and are treated together. It is con- testify that they had not given Fahling such tended that the fall in the price of potatoes instructions when they sent the magneto by and others rotting in the ground was not the him to appellees; but this was not such error natural and proximate result of the engine as would cause us to reverse the case, if that not being as provided in the contract, and were the only trouble. could not reasonably be foreseen at the time What we have already said makes it unthe contract was made. Further that appel- necessary to say more than that all other lant was not responsible for fluctuations in assignments are overruled. the potato market. But it is shown that at The judgment is reversed, and the cause the time the engine was purchased, and many

remanded. times thereafter, appellant was apprised of

On Motion for Rehearing. the purposes for which it was bought. In fact, Mr. Marlin, president of appellant, tes- [14] Appellees urge, in their motion for ao tified:

rehearing, that this court erred in sustaining “I knew they wanted the engine, which they appellant's assignments of error numbered 6, were thinking of purchasing, for the purpose of 7, 8, 10, and 11 for the reason that said asuse on the potato farm."

signments complained of the errors of the It is argued that it would be speculative to trial court in either giving charges or refusa high degree to hold appellant for loss of ing charges to the jury, and that there are potatoes by rotting and for a fluctuation in no bills of exception in the record to the the market eight or nine months after the action of the court complained of in the ascontract was made. It was well known, how- signments, and therefore this court had no ever, at the time the engine was sold, that power to consider and determine such asit was to be used in raising and harvesting a

signments. crop of potatoes, and it must have been in

Both parties to this appeal filed lengthy contemplation of the parties that the crop and able briefs, but appellees nowhere in would mature at about the time it was gath- their brief made any objection to the considered. And it must likewise have been in the eration of these assignments. Nor was our minds of all the parties that the market was attention ever called to the fact that no bills subject to fluctuations. The only way that of exception were reserved to the action of damages could be proven, then, would be to the court in such matter until the motion for prove the market price at the time the pota

a rehearing was filed. Under rule 40 this toes should have been gathered, and what it court is authorized to rely upon the briefs was at the time they were able to harvest for a proper presentation of the case on apthem on account of any defects in the engine. peal, without an examination of the record; We do not think the court erred in this re- and to assume that if there were any objecspect, except that, of course, appellants would tions to the assignments or to the matters be entitled to full protection and credit for upon which the same were predicated, the what the crop brought on the market. These Rule 41 (142 S. W. xiv), expressly provides

other party would call our attention to it. assignments are overruled.

that: [11] As to whether appellees used due diligence to proteot themselves against loss after plaintiff in error in his brief is not contested

"Whatever of the statements of appellant or the discovery of the defects, if any, in the will be considered as acquiesced in." engine was a question for the jury, and the We did not go into the lengthy transcript twentieth assignment is overruled.

to see if there were preserved bills of excep[12] In regard to the engine itself, the tion, but assumed that, if counsel for appelmeasure of damages would be the difference lees .had any objection to the consideration between what it was worth at the time re- of said assignments, the same would have ceived and the contract price, and not what been made known to us. Appellant insists it was worth in June of the following year. that objections or exceptions were preserved This being an action for rescission, the evi- and are shown in the record; but that is dence of value in June was doubtless per- aside from the question. To tolerate a pracmitted to support the allegation that it was tice of this kind would virtually require a of no value, and thereby avoid an actual resubmission of the case. Certainly another tender. Assignment 22 is therefore sustain-consideration along a line not heretofore preed. Aultman v. Hefner, 67 Tex. 59, 2 S. W. sented to us. It would be equivalent to giv861 ; Heisig Rice Co. v. Fairbanks, Morse Co., | ing a party two opportunities to brief the 45 Tex. Civ. App. 383, 100 S. W. 959; Ault-case. No matter what disposition this court man Co. v. Cappleman, 36 Tex. Civ. App. 523, would have made of these assignments, had

machinery men as to what is meant by horse [8] The fourteenth assignment complains power, the court submitted to the jury to de- of the action of the court in permitting wittermine whether it had been established that nesses to testify "to the effect that the writthe rated horse power was to be tested at the ten contract between the parties was a drawbar, as contended by appellees, and we form of contract used among machinery men think this was sufficient. According to the for stationary engines, and not for the sale testimony, there were only two places where of traction engines, because the contract was it was claimed the power should be tested, the best evidence of its own contents and its and they were at the drawbar and belt. So, terms and conditions, and could not be varied if it be shown, by custom, that it was meant or set aside by the oral testimony of witat the drawbar, it would necessarily follow nesses as to their understanding, opinions, that it would not be at the belt. It is not at and conclusions, and the evidence is irrelall necessary to submit the converse of that evant and immaterial.” There is no fraud, which has already been affirmatively given. accident, or mistake pleaded as to the exe. The ninth assignment is overruled.

cution of the contract, and it would certainly [6] The court submitted special issue No. not be subject to attack in this manner. The 1 as follows:

assignment is sustained. Railway Co. v. “Do you or not find from the evidence that Hannig, 91 Tex. 347, 43 S. W. 508; Metropolithe engine in controversy was of the power rep-tan Company v. Wagner, 50 Tex, Civ. App. resented in said contract, and that the mate: 233, 109 S. W. 1120, 1121. rial and workmanship used in construction of said engine was of the very best class? In an- [9] The contract permitted witnesses to tesswering this question you will say, ‘First, we tify, over objection, that another traction enfind that it (was) or (was not),' as you may gine of 2242 drawbar pull, or 45 horse power find from the evidence. In this connection you are charged that, in order for the parties to belt pull, operated in a field about two miles be bound by custom, it is necessary that the distant from the engine in question would defendants shall establish, by the preponderance pull 12 disc plows, while this engine was pullof the evidence, that it was commonly under. ing 6 plows, and this evidence was objected stood among the dealers in machinery and gasoline traction engines in selling a traction en- to because it was not shown that the two gine at a rated horse power that, in the ab- engines were operating under the same consence of any agreement, it was understood that ditions, being of different make, different the horse power mentioned was rated at the drawbar, and such custom must not be tempo- horse power, and not being operated by the rary but must be general as to the particular same man, and further that it was not shown trade and so well established that every one that the soil was the same, nor that the same dealing in that trade, namely, in this instance, physical conditions existed. For instance, it in the gasoline traction engine trade, is presumed to know such custom and make contracts is in evidence that a great deal depends upon with reference thereto."

the engineer in charge and the lay of the Appellant requested the following special land, and whether hard or soft soil, or whethissues which were refused:

er it is wet or dry. The other engine (the "Fourth. Did any part of said engine show Hart-Parr) was of a different horse power defective material or workmanship?

and made by another factory. A negro driver "Fifth. If, in answer to the foregoing question, you say that any part of said engine show was operating the engine in controversy, and ed defective material or workmanship, then it was shown that he had wrecked the engine was the plaintiff, Southern Gas & Gasoline and had broken disc plows by running onto Engine Company, ready, able, and willing to stumps, and he had never operated a traction furnish new parts free of charge f. o. b. factory when called upon by the defendants, Adams & engine before that one. It is not shown what Peters?"

kind of man was operating the Hart-Parr enIf the engine developed the power at which gine, to which this one was sought to be comit was rated, but the material ānd workman- pared. Chief Justice James has well said

that: ship were not as provided in the contract, it seems to us that appellant was entitled to admitted if the difference in conditions is prob

"Testimony of this character ought not to be know those facts from the jury. And it was ably such as would have a tendency to confuse entitled to have it determined whether it or mislead the jury in considering the matter had failed and refused to furnish new parts. at issue.” Olivaras v. Railway, 77 S. W. 981,

982, This may become material in view of another trial.

Unless the conditions and surroundings are [7] But this is an action to rescind the con- the same or similar, testimony of this chartract, and not to offset the purchase price to acter ought not to be admitted, for, if not so the extent of necessary repairs.

limited, the jury will be led off into a maze "Where a buyer of machinery accepts same in of comparisons; confusion and unsatisfactory defective condition, and undertakes to place it results being the natural consequence. It in good condition at the cost of the seller, he may be said that the driver is of no material becomes liable for the price, less the amount necessarily used to place it in good condition."

consequence, for instance, and yet one man Saunders Ex'rs v. Weekes et al., 55 S. W. 34; may be able to get the greatest possible effiMasterson v. Heitman, 38 Tex. Civ. App. 476, ciency out of the engine, while another would 87 S. W. 227.

not even approach it; one aeronaut may be The tenth assignment is sustained, and a ahle to describe all manner of figures in the like disposition is made of assignments 11, 12, air, while another would only pilot a wreck 13, and 1342.

in the attempt, as this negro driver did.

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