"I know that when we got through digging the potatoes (which was in July) we tore the engine down, and saw what the trouble was." The evidence shows that the items of expense in repairs on the engine were paid out by appellees; and it may be said that, if admissible, the testimony also shows that the value of the potato crop and damage thereto were as found by the jury. was not a 20 horse power at the drawbar. I don't know whether it was as early as the 1st of February or not. I came up here to tell them it wasn't doing 20 horse power work, and I believed it when I so told them, which was probably the first week in February. I know during the first week in February that the engine was not developing 20 horse power, and I told them it wasn't doing the work a 20 horse power engine should do, and at that time they told me to sit still, that they would have a man down here that could make it do anything. It will be noted, from an inspection of the Either Mr. Leavens or Mr. Marlin said that Mr. 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 the power of the engine and of the material would wait and see what he was. I don't know 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 thereon 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 fied 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 not succeed in fixing it. Couldn't get the hitch arranged, and, when they got that fixed, it wouldn't pull the plow. It then began raining, and nothing was done with the engine until in January, and I came up and told these people here it was not giving satisfaction." Ad He says he was told to wait till Fahling came. He did come, and the engine failed to do any better. "Then, about that time, why the bolts that hold the connecting rod broke-snapped off-and we were a month getting that fixed; then Mr. Fahling came back a second time and tried to make it work, and the magneto played out along about that time." "When I say 'about that time' I am talking about early spring of that year, probably April; it might have been the last of March. It was in February when we finished plowing our land for the potato crop. We finished with the mules." The last time Fahling was there, Adams says, he brought a new Remy magneto to put on, but refused to put same on the engine until the notes were signed for deferred payments, which Adams declined to do, ing that the engine was defective otherwise. Fahling then took the magneto away and returned no more. The engine was used some time after that before the harvesting of the crop began. About the 1st of June, appellees put a new magneto on and used the engine in harvesting the crop up till in July, although the evidence shows that it did not work well, and that it took about six weeks to do the work it should have done in two weeks, if working well. [1] No fraud is charged in this case, but even if it had been, this being strictly an action for rescission and damages, appellees had no right to continue to use the engine until the crop was harvested and then to offer it back after it had been torn down. Mr. Justice Fly has well said in Hallwood Cash Register Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857: "The rule is that a defrauded party must disaffirm the contract at the earliest practical time after the fraud is discovered, and that he must return or offer to return whatever he has received from the other party; and if he retains the article purchased, and continues to use it after discovery of the fraud that induced the purchase, he will be held to have waived the right to rescind the contract and to have acquiesced in it." Again, Chief Justice James, in Geiser Mfg. Co. v. Lunsford, 139 S. W. 64, said: "The testimony shows clearly that they kept and used the machine, after they knew that de fendant would not perform the promises; and after they knew that defendant denied and restat-pudiated the making of the promises they continued to use the machine under such circumstances until they abandoned it to its fate somewhere out in the country in Hale county. Admitting that such failure and refusal would give plaintiffs the right to rescind, it was nevertheless essential to such relief that upon discovery of the fact that the promises would not be performed to not only tender or offer to return the machine, but to hold to such position consistently, instead of, as they did in this case, proceeding with the use of the machine, recog nizing the contract. Kempner v. Advance Thresher Co., and cases there cited, 118 S. W. 717; Grabenheimer v. Blum, 63 Tex. 369." On May 8, 1912, appellees wrote appellant that the engine was not working well, was not according to contract, and would be held subject to its order, upon repayment of the cash payment made. It was about the last of May or first of June that appellees put the new magneto on the engine. Adams says: Appellees had known from January, 1912, until July of that same year that the engine was defective in power and in workmanship and material, if we take the testimony of Mr. Adams, who was a practical machinist and had charge of the engine. In May they attempted to repudiate the purchase. 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 following, Justice Moursund has treated this subject extensively in Luckenbach v. Thomas, 166 S. W. 99. The first and second assignments of error are sustained. Hallwood Cash Reg. Co. v. Berry, 35 Tex. Civ. App. 554, 80 S. W. 857; Geiser Mfg. Co. v. Lunsford, 139 S. W. 64; Houston Motor Car Co. v. Brashear, 158 S. W. 233; Scalf v. Tompkins, 61 Tex. 476; Pullman Co. v. Street Car Co., 157 U. S. 94, 15 Sup. Ct. 503, 39 L. Ed. 362; Foster v. Rowley, 110 Mich. 63, 67 N. W. 1077; Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090; Bassett v. Brown, 105 Mass. 551. The third and fourth assignments of error deal with exceptions to the admissibility of certain testimony as to what is meant by 20 horse power, as expressed in the contract, whether at the belt or drawbar, (1) because such testimony would vary the terms of a written contract, (2) because the contract provided that the engine would develop 20 horse power when subjected to the Proney brake test, and (3) it was not alleged that such test had been made; and the fifth assignment complains of the refusal of the court to submit a special instruction that the evidence failed to show that there was any general or universal custom among machinery men, whereby it was understood that, when a gasoline engine was sold at a certain rated horse power, it was generally and commonly understood that such rated horse power was at the drawbar and not at the belt, and as the contract provided for the Proney brake test, and that the undisputed evidence showed that the engine was to develop 20 horse power at the belt and not at the drawbar. [3] We are of the opinion that the third assignment should be sustained, because it was not pleaded that the Proney brake test was ever demanded and made as provided in the contract; but the fourth assignment, raising specifically the question of the admissibility of testimony to explain what is meant by 20 horse power, whether at the belt or drawbar, is overruled, and a like disposition is made of the fifth assignment, complaining of the refusal of the requested charge therein set forth. [4] By the sixth assignment complaint is made of the action of the court in refusing to submit the charge requested as to whether the engine failed to develop 20 horse power at the belt; by the seventh assignment that the court erred in refusing to submit the question as to the horse power separate from the question of the quality of the material and workmanship; and by the eighth assignment that the court erred in submitting special issue No. 1 as to the horse power, quality of material and workmanship, all in one question. As to the first two, special issues were requested on these points and were refused. The question as to where the horse power was to be tested was a sharply contested point; appellees contending that it should be at the drawbar and appellant that it should be at the belt. Special issue No. 1 was so framed that the jury could not answer it "Yes" or "No," unless they found all three one way. Suppose the engine were defective in material, but was not in workmanship, and at the same time developed 20 horse power, we will say at the drawbar, as contended by appellees. The jury could not make reply as required by the court. Appellant made timely request for the submission of these issues and filed objection to that complained of in the eighth assignment. A party is entitled, upon timely request, to have each material issue submitted to the jury in such a way as to make a clear-cut issue; and the court should not group contested issues so as to require the jury to give an affirmative or negative an [2] The contract states that it is to be "one 20 H. P. Flour City gasoline traction engine." It is not varying the terms of a written instrument to explain what is meant by a term used therein, especially a scientific or trade term which is not generally understood. Here we have the written instrument merely stating that the engine is to develop 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 belt or drawbar, and the only way a layman could understand the term would be by proof as to what is meant by such a term. If it had stated that the power should be tested at the drawbar or belt, there could be no question that parol evidence could not be introduced which would tend to vary the writing. But parol evidence is admissible to aid in the interpretation of a contract in accordance with the recognized meaning of any word or term therein, as used in any art, to an answer on each material issue, and when the statute says "it shall be the duty of the court, when it submits a case to the jury upon special issues, to submit all the issues made by the pleading," it does not mean that several questions, which might receive different answers, may be embraced as one issue and submitted in a way to admit of but one answer to the whole group. The sixth, seventh, and eighth assignments are sustained. [5] Upon the question of custom among 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: "Do you or not find from the evidence that the engine in controversy was of the power represented in said contract, and that the material and workmanship used in construction of said engine was of the very best class? In answering this question you will say, 'First, we find that it (was) or (was not),' as you may find from the evidence. In this connection you are charged that, in order for the parties to be bound by custom, it is necessary that the defendants shall establish, by the preponderance of the evidence, that it was commonly understood among the dealers in machinery and gasoline traction engines in selling a traction engine at a rated horse power that, in the absence of any agreement, it was understood that the horse power mentioned was rated at the drawbar, and such custom must not be temporary but must be general as to the particular trade and so well established that every one dealing in that trade, namely, in this instance, in the gasoline traction engine trade, is presumed to know such custom and make contracts with reference thereto." assignment is sustained. Railway Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; Metropolitan Company v. Wagner, 50 Tex. Civ. App. 233, 109 S. W. 1120, 1121. [9] The contract permitted witnesses to testify, over objection, that another traction engine of 22% drawbar pull, or 45 horse power belt pull, operated in a field about two miles distant from the engine in question would pull 12 disc plows, while this engine was pulling 6 plows, and this evidence was objected to because it was not shown that the two engines were operating under the same conditions, being of different make, different horse power, and not being operated by the same man, and further that it was not shown that the soil was the same, nor that the same physical conditions existed. For instance, it is in evidence that a great deal depends upon 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: "Fourth. Did any part of said engine show defective material or workmanship? "Fifth. If, in answer to the foregoing question, you say that any part of said engine showed defective material or workmanship, then was the plaintiff, Southern Gas & Gasoline Engine Company, ready, able, and willing to furnish new parts free of charge f. o. b. factory when called upon by the defendants, Adams & Peters?" If the engine developed the power at which it was rated, but the material and workmanship were not as provided in the contract, it seems to us that appellant was entitled to know those facts from the jury. And it was entitled to have it determined whether it had failed and refused to furnish new parts. This may become material in view of another trial. [7] But this is an action to rescind the contract, and not to offset the purchase price to the extent of necessary repairs. "Where a buyer of machinery accepts same in defective condition, and undertakes to place it in good condition at the cost of the seller, he becomes liable for the price, less the amount necessarily used to place it in good condition." Saunders' Ex'rs v. Weekes et al., 55 S. W. 34; Masterson v. Heitman, 38 Tex. Civ. App. 476, 87 S. W. 227. The tenth assignment is sustained, and a like disposition is made of assignments 11, 12, 13, and 132. er it is wet or dry. The other engine (the Hart-Parr) was of a different horse power and made by another factory. A negro driver was operating the engine in controversy, and it was shown that he had wrecked the engine and had broken disc plows by running onto stumps, and he had never operated a traction engine before that one. It is not shown what kind of man was operating the Hart-Parr engine, to which this one was sought to be compared. Chief Justice James has well said that: admitted if the difference in conditions is prob"Testimony of this character ought not to be ably such as would have a tendency to confuse or mislead the jury in considering the matter at issue." Olivaras v. Railway, 77 S. W. 951, 982. It Unless the conditions and surroundings are the same or similar, testimony of this character ought not to be admitted, for, if not so limited, the jury will be led off into a maze of comparisons; confusion and unsatisfactory results being the natural consequence. may be said that the driver is of no material consequence, for instance, and yet one man may be able to get the greatest possible efficiency out of the engine, while another would not even approach it; one aeronaut may be able to describe all manner of figures in the air, while another would only pilot a wreck 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. The fifteenth assignment is sustained. [10] Assignments 16, 17, 172, 18, and 19 raise, in different forms, objections to the measure of damages as submitted by the court and are treated together. It is contended that the fall in the price of potatoes and others rotting in the ground was not the natural and proximate result of the engine not being as provided in the contract, and could not reasonably be foreseen at the time the contract was made. Further that appellant was not responsible for fluctuations in the potato market. But it is shown that at the time the engine was purchased, and many times thereafter, appellant was apprised of the purposes for which it was bought. In fact, Mr. Marlin, president of appellant, testified: "I knew they wanted the engine, which they were thinking of purchasing, for the purpose of use on the potato farm." [13] Appellee Adams having testified that Fahling had refused to deliver the magneto unless Adams & Peters would sign the notes, it was not irrelevant to permit appellant's witnesses C. A. Leavens and C. W. Marlin to testify that they had not given Fahling such instructions when they sent the magneto by him to appellees; but this was not such error as would cause us to reverse the case, if that were the only trouble. What we have already said makes it unnecessary to say more than that all other assignments are overruled. The judgment is reversed, and the cause remanded. On Motion for Rehearing. [14] Appellees urge, in their motion for a rehearing, that this court erred in sustaining appellant's assignments of error numbered 6, 7, 8, 10, and 11 for the reason that said assignments complained of the errors of the trial court in either giving charges or refusing charges to the jury, and that there are no bills of exception in the record to the action of the court complained of in the as power to consider and determine such assignments. It is argued that it would be speculative to a high degree to hold appellant for loss of potatoes by rotting and for a fluctuation in the market eight or nine months after the contract was made. It was well known, how-signments, and therefore this court had no ever, at the time the engine was sold, that it was to be used in raising and harvesting a crop of potatoes, and it must have been in contemplation of the parties that the crop would mature at about the time it was gathered. And it must likewise have been in the minds of all the parties that the market was subject to fluctuations. The only way that damages could be proven, then, would be to prove the market price at the time the potatoes should have been gathered, and what it was at the time they were able to harvest them on account of any defects in the engine. We do not think the court erred in this respect, except that, of course, appellants would be entitled to full protection and credit for what the crop brought on the market. These assignments are overruled. [11] As to whether appellees used due diligence to protect themselves against loss after the discovery of the defects, if any, in the engine was a question for the jury, and the twentieth assignment is overruled. Both parties to this appeal filed lengthy and able briefs, but appellees nowhere in their brief made any objection to the consideration of these assignments. Nor was our attention ever called to the fact that no bills of exception were reserved to the action of the court in such matter until the motion for Under rule 40 this a rehearing was filed. court is authorized to rely upon the briefs for a proper presentation of the case on appeal, without an examination of the record; and to assume that if there were any objections to the assignments or to the matters upon which the same were predicated, the other party would call our attention to it. Rule 41 (142 S. W. xiv), expressly provides that: "Whatever of the statements of appellant or plaintiff in error in his brief is not contested will be considered as acquiesced in." We did not go into the lengthy transcript to see if there were preserved bills of exception, but assumed that, if counsel for appellees had any objection to the consideration of said assignments, the same would have been made known to us. Appellant insists that objections or exceptions were preserved and are shown in the record; but that is aside from the question. To tolerate a practice of this kind would virtually require a resubmission of the case. Certainly another consideration along a line not heretofore presented to us. It would be equivalent to giving a party two opportunities to brief the [12] In regard to the engine itself, the measure of damages would be the difference between what it was worth at the time received and the contract price, and not what it was worth in June of the following year. This being an action for rescission, the evidence of value in June was doubtless permitted to support the allegation that it was of no value, and thereby avoid an actual tender. Assignment 22 is therefore sustained. Aultman v. Hefner, 67 Tex. 59, 2 S. W. 861; Heisig Rice Co. v. Fairbanks, Morse Co., 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, 81 S. W. 1244; Southern Gas & Gasoline would have made of these assignments, had timely objection been made, when able coun 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. Hannig, 91 Tex. 347, 43 S. W. 508; Metropolitan Company v. Wagner, 50 Tex. Civ. App. 233, 109 S. W. 1120, 1121. [9] The contract permitted witnesses to testify, over objection, that another traction engine of 221⁄2 drawbar pull, or 45 horse power belt pull, operated in a field about two miles distant from the engine in question would pull 12 disc plows, while this engine was pulling 6 plows, and this evidence was objected "Do you or not find from the evidence that the engine in controversy was of the power represented in said contract, and that the material and workmanship used in construction of said engine was of the very best class? In answering this question you will say, 'First, we find that it (was) or (was not),' as you may find from the evidence. In this connection you are charged that, in order for the parties to be bound by custom, it is necessary that the defendants shall establish, by the preponderance of the evidence, that it was commonly understood among the dealers in machinery and gasoline traction engines in selling a traction engine at a rated horse power that, in the absence of any agreement, it was understood that 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 trade and so well established that every one dealing in that trade, namely, in this instance, in the gasoline traction engine trade, is presumed to know such custom and make contracts with reference thereto." to because it was not shown that the two engines were operating under the same conditions, being of different make, different same man, and further that it was not shown that the soil was the same, nor that the same physical conditions existed. For instance, it is in evidence that a great deal depends upon 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: "Fourth. Did any part of said engine show defective material or workmanship? "Fifth. If, in answer to the foregoing question, you say that any part of said engine showed defective material or workmanship, then was the plaintiff, Southern Gas & Gasoline Engine Company, ready, able, and willing to furnish new parts free of charge f. o. b. factory when called upon by the defendants, Adams & Peters?" If the engine developed the power at which it was rated, but the material and workmanship were not as provided in the contract, it seems to us that appellant was entitled to know those facts from the jury. And it was entitled to have it determined whether it had failed and refused to furnish new parts. This may become material in view of another trial. [7] But this is an action to rescind the contract, and not to offset the purchase price to the extent of necessary repairs. "Where a buyer of machinery accepts same in defective condition, and undertakes to place it in good condition at the cost of the seller, he becomes liable for the price, less the amount necessarily used to place it in good condition." Saunders' Ex'rs v. Weekes et al., 55 S. W. 34; Masterson v. Heitman, 38 Tex. Civ. App. 476, 87 S. W. 227. The tenth assignment is sustained, and a like disposition is made of assignments 11, 12, 13, and 132. er it is wet or dry. The other engine (the Hart-Parr) was of a different horse power and made by another factory. A negro driver was operating the engine in controversy, and it was shown that he had wrecked the engine and had broken disc plows by running onto stumps, and he had never operated a traction engine before that one. It is not shown what kind of man was operating the Hart-Parr engine, to which this one was sought to be compared. Chief Justice James has well said that: It Unless the conditions and surroundings are the same or similar, testimony of this character ought not to be admitted, for, if not so limited, the jury will be led off into a maze of comparisons; confusion and unsatisfactory results being the natural consequence. may be said that the driver is of no material consequence, for instance, and yet one man may be able to get the greatest possible efficiency out of the engine, while another would not even approach it; one aeronaut may be able to describe all manner of figures in the air, while another would only pilot a wreck in the attempt, as this negro driver did. |