*1 .950 tecum. subpoena düces report under
praisal by' it; was delivered produce it
He did direc- court’s attorney at condemnor’s Ap- exception. complete the bill
tion to violated requirement
pellant insists this 186a, Rules of Texas
Rules 167 relates rule latter Procedure.
depositions. be- this witness made of inquiry was
No market value
fore the there he testified Although
appellees’ tract. there damage, the
was severance
was none. production requiring
If there was error perfect report appraisal to see unable exception we are
bill of this- under judgment, affected harmless.
record it charge.
Complaints are made of thereto objections does not show record acted on presented or on do objections relied Rule Appellant pre
present reversible error. care we have points which seventeen
sents opinion none our
fully considered. af reversal,
merits
firmed. GLASS, INC.
CRAFTSMAN Cathey- al., CATHEY et
W. H. D/B/A Fullingim Company. Hardware of Civil
Amarillo. 30, 1961.
Oct.
Rehearing Denied Dec.
omitted to a Based an- on submitted,-the special swеrs to the appel- entered a that nothing. lant take ap- Marsh, general manager of Charles pellant company of his em- along with one ployees, appellees’ hardware store went to chain, purpose purchasing some hooks, in- which to and links were needed to Mr. stall a hoist or lift. Marsh related 'Wirtz, clerk, purpose the sales for which after se- thе articles were and chain “D links” lecting the some asked for repair or links “cold shuts” are chain Although the used to connect the chain. appellees particular type had that of chain stock, type links another link be used hoist. There to disрute some as to whether not Marsh or much weight Wirtz how the hoist told lift, would be to admit- but Wirtz was told ted he the hoist was be to used lifting “quite bit of weight.” rеsponse In to Marsh’s statement links, regarding you the chain sure “Are these won’t break?” Wirtz testified he plied, “Well, it is recommended to hold a weight equal pur- of an size chain.” type of chain chased recommended link Í requested. Wirtz rather than the originally he n undisputed It link that broke on first occasion the hoist was used to lift glass, resulting approximate- square ly 920 feet being broken. is the this amount tо- Wilson, Underwood, Heare & Sutton gether alleged related that Amarillo, appellant. Berry, is here There suing for. testimony no thаt part other Hankins, Adkins, Fullingim & Simpson, Chain or hoist broke snapped or on the oc- Amarillo, appellees. question. casiоn in DENTON, Chief Justice. response to the issues submit- In ted, suit that Appellant brought against appellees findings the material were: incurred when a salesman had notice of the use to chain to recover quantity connecting and repair link broke caused of which represented link; chain it was the link was hoisted to fall glass being Appellant it was based its cause action suitable breаk. used; alleged link was breach on an used; purpose for it was or fitness of a warranties good repair link or link was not as link аppellees. originally Marsh. The case was sub- holding, assessing damages three view of we are After that Wirtz issues, found that Wirtz was emрloyer, appellees authorized to make authorized *3 implied cannot war herein, effect or remove this make ranty suitability. Clearly agent was question. Undoubt- of the regard in to the link in implied clothed what judgment de- with to do edly its the entered reasonably necessary proper was to car strength denying appellant recovery on ry job employers’ is- out his mer last tо sell his of the answer to the prospective authority to chandise to customers. Al lack of sue Wirtz’s though opinion we arе of the the evidence make warranties.
supports
proposition
appellees,
in this State that
It is
settled
well
through
agent,
their
made an
war
particular use
article is
an
a
ranty
particu
or fitness for a
warranty
implied
that it is suita
there is an
рurpose,
lar
we do not deem
a conclu
such
Clayton
Turner &
ble for
a use.
v.
such
disposition
sion
this
necessary
815;
(Tex.Com.Apр.) 288 S.W.
Shackelford
case.
McCamey,
Co.
Norvell-Wilder Hardware
v.
value of
jury
The
the reasonable
found
(writ dis
Tex.Civ.App., 290
772
S.W.
was
when thе con-
;
Sup
missed)
Dunigan
Bedner v.
Tool &
snapped was
necting
question
$621.-
919,
Co.,
663,
142
S.W.2d
180
ply
Tex.
00;
damaged when ad-
ap
Supreme
in the Bedner case
purchased
spe-
had to
for a
ditional
applied in
proved
following
test
previously
job
contracted for and that
cific
these cases:
in cut-
glass valued at
was wasted
$223.00
implied
recognized test of an
“The
size;
ting
and that
it to
warrаnty
par-
of suitableness
up
expended
cleaning
ticular
debris.
buyer informed the sel-
is ‘whether the
buyer
the circumstances and conditions
is well settled that
ler
a
purchase
goods
of a
can recover
sustained as
which necessitated
of a breach of
general
necessary
character of article and
and usual result
certain
particu-
warranty,
seleсt the
and in
thereto he can
left it to the seller to
addition
* * *
consequential damages as his
recover such
lar kind
”
contеmplated
prob
as a
buyer’s
seller should have
use.’
warranty.
the breach of
able result of
It is admitted that the
Moss,
Rumely Products Cо. v.
Tex.Civ.
employee knew of the
intended
1084;
Hybrid
App.,
Kalb
S.W.
De
Seed
175
being
the chain and link. After
in
use of
Tex.Civ.App., 293
Agee,
Co. v.
S.W.2d
for which the chain
formed of
; Mary’s
(error
e.)
n.
En
refused
St.
Oil
r.
was to be
and link
Co.,
gine
v. Allen-Morrow
Tex.Civ.
Co.
a
link other
and recommended
(no
history).
Aрp.,
On *4 Rehearing Denied Dec.
PER CURIAM. rehearing, motion
In its except damages all remit
offers which the
amount of $621.00 when
be the value con- snapped. appellant’s hoist offer remit the other upon its
tention ren- reverse and this Court
damages should appellant for in behalf of the
der case court. costs of amount we do
Contrary to contention appellant was entitled to the $621.-
not think a matter of law. aware
We are in cases to render
this Court are con items severable submitted, been erroneously to have
ceded party’s offer conceding followed However, facts and cir remittitur. peculiar to this case do
cumstances rule into effect. remain con
bring this case that all
vinced been have submitted under
should original in accordance with the
instructions
opinion. pleadings sup- and evidence fact
ported appellee had the use which
notice of was to goes to the implied warranty rather than to
foreseeability damage to handled by appellant.
that was appears
In addition from the record fully developed case
that the
previous trial.
Appellant’s motion rehearing is ac-
cordingly overruled.