245 S.W. 1032 | Tex. App. | 1922
Appellee had never seen the fountain prior to its delivery, and did not know of such defects until after it was installed in his place of business. The pumps and ice cream cabinet were repaired to appellee's satisfaction, about November 1, 1920. From the time the fountain was installed, May 18, 1918, to the time such repairs were made, the appellee, in order to serve his trade, employed extra labor in operating the fountain, which would not have been needed but for the defective condition of the pumps and ice cream cabinet.
Appellee, in addition to delivering appellant a soda fountain which he was using, executed to appellant certain promissory notes, and executed a mortgage on the fountain purchased to secure the payment of same. Nineteen of these notes, amounted, in the aggregate, principal and interest, at the time the suit was tried, June 10, 1921, to $718.90. This suit was to recover on the notes and to foreclose the mortgage given to secure the same.
Appellee recovered for damages by reason of the amount paid for extra labor in operating the fountain. The case was submitted to a jury on the following special issues:
"(1) Was the soda fountain in issue at the time it was delivered in such a condition as to reasonably perform the purposes for which it was sold by the plaintiff and bought by the defendant? Answer Yes or No.
"If you answer question No. 1 in the affirmative, then you need not answer the remaining estions herein. If you answer question No. 1 in the negative, then answer the following questions:
"(2) State whether or not the defendant was forced to expend any additional money for labor on account of the fact that the fountain was not in such condition as to reasonably perform the purposes for which it was sold? Answer Yes or No.
"(3) State in dollars and cents the amount of money the defendant was forced to reasonably expend for additional labor from May 18, 1918, to November 1, 1920, on account of said condition of the fountain in issue herein." *1033
To the first question the jury answered, "No ;" to the second question, "Yes;" and to the third question, "$700.00;" and judgment was entered accordingly.
For reasons stated in our opinion herein, we find that the answer to question No. 1 is not supported by, but is against, the uncontradicted evidence. Such being the case, the jury should not have answered questions Nos. 2 and 3, and their answers should not be considered as furnishing a basis for the judgment herein. If the law as to the damages recoverable, if any, is as we conceive it to be, and as stated in our opinion herein, the answer to question No. 3 is not supported by, but is contrary to, the evidence.
Referring to question No. 3, if there was an implied warranty that the fountain, including the pumps and ice cream cabinet, would be in good working order when installed, appellee would have been entitled to recover, as consequential damages, the cost of the necessary repairs, and the cost of extra labor for operating same during the time reasonably necessary to have such repairs made. It is not made to appear that from May, 1918, to November, 1920, was such reasonable time. This was the time for which he was allowed by the jury in answer to question No. 3.
So, if we should hold that there was an implied warranty in the sale of the fountain, and that the same was breached by reason of the defective condition of the pumps and the ice cream cabinet, we would be constrained to reverse and remand this case for the reason that the judgment is not supported by the evidence.
But we hold that there was no implied warranty. This for the reason that a specific and designated fountain was sold, of which it is not shown the seller was the manufacturer. There was no misrepresentation and no concealment of any fact known to the seller. The buyer knew that it was a secondhand fountain. He did not see proper to protect himself by express warranty. The fountain delivered was of the kind and description sold.
It is a general rule of law that there is no implied warranty in the sale of secondhand goods. 30 Cyc. 408; Fairbanks v. Holt,
Perhaps there are some exceptions to the general rules as above stated, but the evidence herein does not bring this case within such exceptions.
For the reasons stated, the judgment of the trial court is reversed, and judgment is here rendered for appellant as prayed for in its petition.
Reversed and rendered.