*1 361, Additionally, 424, appel- at Answering Rev. 368.” ing Rule T.R.C.P. juris- give too late us motion, he did motion was filed lee’s states It filed after we over- three. diction to act. point of error number not waive rehearing. answer, appellee ruled its motion for Such Anticipating appellant’s pre- time motion must be made within the says issue that this makes a controverted 453, scribed under Rule T.R.C.P. of fact in the Court which occurred should Appeals Civil which this Court filing Appellee’s findings motion for T. findings (Rule 453, make its of fact. of fact overruled. Appellee’s R.C.P.) requests motion only a dispute we reconcile this so that YOUNG, participating. not J.,
question applica in appear of law will its Supreme tion for writ error to the 476, (Rule Appellee’s T.R.C.P.).
Court.
motion is without merit for a number
reasons. arguments in
Rule which restricts appellate disput-
the intermediate courts to points fact, permissive ed of law or EQUIPMENT SUPPLY AND GENERAL every require that nature. It does not COMPANY, Appellant, INC., point argued. practical As of error many points matter error are sub- only only per- mitted on the briefs PHILLIPS, Appellee. Harry S. points argued tinent in the short time No. 650. Appel-
allotted the intermediate court. Texas, Appeals of Court Civil lee’s brief brief answered the Tyler. particular (third) point of error. 28, 1972. Dec. question ap- not the whether or pellant point error is waived his third Rehearing 22, 1973. Denied Feb. procedural question and not a procedure fact. Such a could and should
have been handled motion filed
parties during argument oral or subse-
quently by post submission motion. any procedural failed to take
steps bring this to the attention of the
Court at the alleged time of the occurrence.
Appellee’s motion for this to file Court
findings under Rule T.R.C.P. inappropriate. This rule concerns fact trial,
findings during occurring the actual appellate at the intermedi- level. The reporter.
ate court has no court It does
not function to find facts. As the Su- Smith,
preme Court stated Wisdom v. Tex. 209 S.W.2d Graham, City
restated in of Beaumont v. (Tex.Sup.1969) S.W.2d 829 “courts appeals make jurisdiction
civil have no
original findings appeal; in cases on of fact L.
they can ‘unfind’ facts. 38 Texas *2 Moore, Tyler, covering greenhouse Jr., Ardon E. V.T.C.A.,
panels. 2.715(b). lant. Bus. & C. § appellee. Clark, Tyler, for H.
Charles *3 MOORE, Justice. this Phillips, brought
Appellee, Harry S. appellant, damages against General suit for Inc., for Company, Equipment Supply and im- warranty; breach of express particular warranty fitness for plied warranty implied and breach of purpose; plas- to certain merchantability relating sold paneling,” called “P.V.C. paneling, tic Compa- Equipment Supply and by General Inc., Phillips roofing Harry to S. ny, Ap- cover four ímaterial to war- ¡pellee alleged paneling was that period five to seven last for a ranted to years after sale years; that within three extent darkened to such an paneling quantities sunlight in sufficient could that greenhouses, resulting not enter into the as destruction the loss of as well Appel- Phillip’s greenhouse business. allegations generally and lant denied the any warranty existed the alleged that modified either was excluded or be- by dealing expressly the course of parties. Trial was before tween the issues, special response to jury. express warranty, that an found particu- implied fitness for a warranty of implied warranty purpose, lar and an by merchantability appellant, were made a breach such war- there was resulting in proximately ranties judg- appellee. trial court rendered The awarding verdict ment on the $176,067.53. Appel- damages in sum of duly perfected appeal. is- response special to the jury, The findings: sues, (1) following made the Equipment Co. Supply and that General promise affirmation of fact made an that (2) goods; plaintiff relating part basis such became relied plaintiff agreement; (3) making defendant representations plain- goods sold to purchase; (4) greenhouse tiff failed to comply selling covering with affirmations business promises defendant; products, (5) poly- that be- known as injured; vinyl-chloride. plaintiff Appellee, Harry Phil- cause such failure was S. lips, green- operated large owned and four proximate was (6) failure County, Texas, injury houses in plaintiff; suffered Smith was (7) engaged goods growing in the business of sold failed certain enu- to meet selling plants, principally in requirements merated merchantabili- but was as to ty; in- business “mums” plaintiff financially growing (chrysanthe- (8) that failure; jured mum). mailed out certain because of such (9) owners fi- material to advertising such failure cause of was the promote sales of its P.V.C. by plaintiff; nancial injury suffered advertising invited goods product. material plaintiff purchased *4 paneling. inquiries concerning purpose covering green- P.V.C. used for of his Phillips house; of material con- received some that defendant knew or should (11) taining following statements: purpose for particular known of the have plaintiff purchased (12) goods; your you planning are to cover “How that should have known defendant knew or single . year . . with plaintiff skill or relying was on defendant’s . . two or polyethylene season . goods; (13) to furnish suitable ag three film season P.V.C. soft reli- goods in plaintiff purchased that rigid . to seven cor- year or judgment or skill ance on defendant’s five rugated panels?" (Emphasis sup- PVC goods; such (14) furnish suitable plied.) goods intended were not suitable for their purpose; of un- (IS) use or that because
suitability goods plaintiff of suffered finan- Rigid Quality Import “Finest PVC — unsuitability injury; (16) cial Mit- Panels Plastic from World-Famous plaintiff’s of of goods was 26", subishi, Corrugations, and repre- 1J4" injury; (17) 21/2" that the and statement 8', 10', show long. 28" wide x 12' Tests of merely sentations were affirmations ¡no nor- (sic) years deteriaration of goods, the value of the or statements of (Emphasis supplied.) mal use.” goods; or commendation (18) that cash market value greenhouses sale immediately prior to the increase “Because of the tremendous greenhouses, panel- said P.V.C. Film, and in the Panels use P.V.C. ing been fit its intended use was sched- uncertainty shipping and $85,000.00; (19) the cash market val- your East, know ules in the Far must greenhouses ue at the time of the fall con- requirements for and summer sale of the said as exist- they delivery. guarantee struction now to $12,678.00. ed at the their time of sale was flo- a where Japan From ... land together No. with agricultural growing ral skills and as answers was sum follows: What a modern legendary . . . comes money, paid cash, fairly and would requirements material that meets all reasonably compensate plaintiff fi- for his per- . . construction . injury resulting
nancial to him from handle, fectly. easy to Light weight, purchase paneling, (a) installation virtually easy tough to work. It’s and $16,305; panels, replacement (b) P.V.C. pro- indestructible; maximum provides $10,385.00; panels, ac- (c) loss, excep- including profits, tual stability business loss is light tection. And its $145,322.00. discolor black or tional. It zvon’t turn exposure.” . years . . even Supply Equip-
Appellant, General after Inc., engaged (Emphasis supplied.) ment Company, was by the appel- promises; goods sold (4) from advertisement Another promises comply “not seller failed to with paneling would stated its P.V.C. seller; burn, rot, affirmations of rust or mildew.” failure, such buyer, because of (5) that the conversations, repre- a After numerous financially injured; and appellant traveled sentative of proximate cause comply was a failure to offering construction place business buyer. injury suffered the financial thereafter operation suggestions and 2.313, and Com- Texas Business See Sec. paneling. It purchased the P.V.C. lee merce Commercial Code Uniform darkened undisputed Also following 2.313. Code Comment approxi- period of a turned black within see A.L.R.3rd installed after it was mately two ’mums As a result the greenhouses. repre given test for whether failed to the blooms grow and failed to “warranty” is a a mere ex sentation mature, appellee substan- thereby causing as opinion is: did the seller pression of tial which the sume assert a fact of merely express judg ignorant, or did he by ap- question presented primary thing they ment as to which about points through seven one pellant’s opinion. expected each be to have *5 any affirmations appellant made whether 374, Wedding Duncan, Ky. 220 v. 310 S. relating to promises appellee to fact or (1969). 564 W.2d express war- an paneling amounting to the representations were ranty or whether the record, appellant the commenda- appellant’s merely made than to more one affirmation thereof. goods the and the value tion of appellee relating quality pan- to of the appellant urges that this connection (1) els: that “tests deterioration show no jury’s support the evidence to there is no years use,” in 5 won’t of normal “It (2) express warranty (Special finding of an turn black or . after discolor . . even finding jury’s and that 1) No. exposure,” (3) and it “will not appellant by were that the statements made burn, rot, rust or mildew.” The record opinion (Special Is- not mere statements of appellee that knowledge shows had no against overwhelming sue No. is 17) dispute of these facts. It is without weight of the evidence. preponderance and panels turning commenced dark be and points appear to without merit years’ after causing about two use a dimi- are overruled. light nution of agent the retailer or his Whether Texas Business
Sec. 2.313 of the con promise affirmed a fact or V.A.T.S., made a (U.C.C.), and Commerce Code “ * ** cerning product amounting a war to any affirmation provides ranty usually question of fact for the promise by made the seller to of fact or Co., jury. Walgreen Lindroth 407 Ill. and v. goods relates to the buyer which 121, Econ bargain (1950); 94 Miller v. N.E.2d 847 of the part of the basis becomes ” ** * Co., omy Hog and Powder Iowa warranty. re- Cattle 228 To express is an 626, Antwerp- 4 theory (1940); 293 N.W. Van money under the cover 207, Schwarz, 82 Texas, Aldridge must Co. v. 263 Ala. warranty in one express Compton v. M. O’Neil (1955); 209 fact or So.2d affirmation prove: (1) Co., 478, N.E.2d 635 App. 101 Ohio 139 buyer re- to the promise the seller fa light in a most (1955). When viewed such affirmation goods; lating (2) to verdict, think the to the we vorable part promise became of fact amply Special Issue No. 1 answer injured bargain; basis of careful After a supported by the evidence. purchase, relied making the party, in find that we all the evidence we fact or review of affirmations representations, 918 agree County,
are unable with con- he testified observed the representa- turning tention the statements and and found them to be dark. He nothing tions light amounted to testified that factor critical expression flowers, opinion. more than growing a mere was a there Consequently appel- shortage agree light coming cannot with roof through Special plants lant’s 17 as a getting contention Issue No. result the against weight light. Appellee overwhelming enough that due testified preponderance of lack of ma- light the evidence. to the failed to ’mums properly; ture that those that reached By appel- points eight through fourteen ad- stage small size which flower lant asserts that there is no evidence versely price affected sale’s support jury’s finding Is- failed to bloom became worth- sues Nos. and wherein the found less. that the affirmation of fact was the basis of the bargain appellee relied proximate Ordinarily, the issue of upon same. is a fact for determi cause Tex.Jur.2d, sec. jury. nation pur- prior The record shows that to the p. 708. chase of the paneling, asked expect long get how could serv- issue ice out of told he and was proved circumstantial evidence. depend years. could on it for five or six Hopson Corp., v. Gulf Oil 150 Tex. Appellee upon the also testified he relied Roden, 415 Nash (1951); S.W.2d statements contained the advertisements Austin, 1967, 251 (Tex.Civ.App., S.W.2d by appellant. sent him He testified further ref., light e.). in a n. r. When viewed representations but he would verdict, con we are most favorable purchased *6 paneling. not have the When ample rais that there was evidence vinced light proper viewed the think the we ing proximate the issue cause. of record contains at least some evidence probative support findings force to the points brought All forward other representations the were the basis of fix appellant challenging the by judgment bargain appellee the there- and relied upon the liability appellant based ing on Appellant’s eight on. four- points through findings express an warran of breach of teen are overruled. to be ty have been considered and found
By points appellant challenged In view and 34 merit and are overruled. without conclusion, judgment ground the is not on the that there it will foregoing challeng points support necessary no evidence jury’s finding to to discuss decreeing liability for appellant’s comply failure to with express ap- implied warranty. an Rule warranty proximately caused breach of Suffice pellee Rules injury by financial as found of Civil Procedure. Texas response Special say, the record we have reviewed No. 6. adequate evi concluded that there have Appellee testified that two after finding, jury’s verdict dence to sustain the installed, roof be- had been appellee’s damage proximately! was gan more up to “stretch” or reach for express! by a of both an caused light. The leaves stems became thin. The fit-1 warranty implied warranty apart too far and the blooms ness. small. He attributed condition to light through By point appellant complains pan- lack transmission the 39th Special 18 on els. He that this caused submission of Issue No. testified panels and dark. the issue did not constitute becoming ground clouded damages. proper He also Browning, County Agent Ben measure of Smith complains ty 2.714(b) applicable of the submission the issue not be- stated in special showing and the he contends finding because cause of circumstances that a diminution in damages market value of a amount. different contemplation was not proximate damages in the The in this case consist at parties consequential damages as time of the sale of incidental and goods. provided by 2.715. Sec. 2.715, supra,
The with (a) are here Subsection Sec. damages provide confronted is what recovera- intended reimbursement for appellee ble for breach of expenses who incurs reasonable inci- warranty. dent warranty. to the breach of applicable 2.714(b), statutes are Sec. Is the submission of By 2.715 of (c) Uniform Commercial seems 18 and the trial court Nos. sues Code, Annotated Texas Vernon’s Statutes. damages ’to have assumed that incidental a diminution in market included value provides 2.714 part: Sec. before Under the record damages “(b) measure of us, this constituted we do believe breach of is the at difference aproper measure place acceptance the time and between put decided a new When goods accepted the value of the and the greenhouses in the fall roof on his they they value would have had roofing he the old took off warranted, been as special unless circum- replaced pan- No. 2 and it with the P.V.C. proximate damages stances show of a eling purchased appellant. from In the different amount. spring replaced of 1967 the roof In a “(c) proper case incidental roofing house 4. The on houses Nos. No. consequential under replaced 1 and 3 was with P.V.C. next section also be recovered.” purchased from sometime early fall After spring of 1967 of 1968. 2.715, Buyer’s and Conse- Incidental discovering de- the P.V.C. to be quential Damages fective, appellee put houses a new roof on resulting Incidental “(a) October, Appellee 4 in Nos. *7 * * * from seller’s breach include panel- replace the defective did not any expense other reasonable incident to to the prior 1 ing Nos. on houses delay or other breach. July greenhouses all four on time he sold 24, 1970. Consequential resulting “(b) damages
from the seller’s breach include roofs on dispute It is without , replaced greenhouses without he two general “(1) resulting loss from damages greenhouses. structural particular requirements needs of which the seller contract- at the time of the diminution in market While reason to know and could which damages, general it value evidence reasonably prevented by cover or damages ly understood the measure of otherwise; and repafe Bowman Steel Corp. cost Co., 364 Casualty Mutual v. Lumbermens injury “(2) person property Cir., 8; 1966) F.2d 246 Note Winan (3rd proximately any resulting from Construction, dy Gra Inc. v. Greenhouse warranty.” Floral, Inc., ham 456 S.W.2d Wholesale ordinary Worth, 1970); instant (Tex.Civ.App., case the Ft. Contracts, damages p. measure for warran- sec. Tex.Jur.2d, Building breach of sustain contention that In a We Committee Comment to Sec. 2.715 the diminution in cash market value in this of our Uniform Commercial we find: Code proper instance is not the of dam- measure proving “4. The burden of extent ages, especially since the shows evidence by way consequential of loss incurred replaced defective paneling was buyer, on damage is but section without damage material the structure. on liberal administration of remedies re- It occurs to us that the incidental jects any certainty doctrine of re- involved here would be the reasonable cost quires almost precision mathematical paneling with the defective replacing proof of loss. Loss be deter- represented by equal quality as that mined in any manner which is reason- value, lant, salvage any, if less the able under the circumstances.” Therefore, we think paneling. defective Special submitting the trial court erred recovery allowing and in
Issue No. 18 profits The loss of in this instance Is- upon jury finding based solely upon appellee’s assumption rests sues Nos. 18 and 19. fully planted the four chrysanthemums, they produced and if By forty-third forty-second expected, expect flowers as he would have evi- points appellant urges that there is no $30,240.00 year. profit of ed to make a Spe- support jury’s answer dence to solely upon his based His estimate was 20(c) cial Issue No. wherein the crop grow projection own that he could loss, appellee’s found that actual business he and that every of ’mums fourteen weeks $145,322.00. including profits, lost for profit five cents a net would make supplied.) In this connection (Emphasis record each ’mum sold. testimony urges that as to support whatever there is no evidence profits conjectural specula- lost was so profits. His as to net estimate tive that amounted to no evidence never that he had testimony clearly shows probative establishing force for profit made a out of ’mums profits. lost thought merely what he projections were favorable he should under the most make 2.715(b) provides Section that in addi The record shows conditions. consequential is also entitled to dam ’mums, appellee also raised growing tion to ages from the seller’s breach of resulting While warranty. profits. This includes loss of kept separate admits he no set of records however, Damages must profits, lost profits sale of or losses from the nof~be~Str1n3efimfe-as_To-be conjectural. — 3 for loss ’mums, claim his sole Tex.Jur.2d, , Anderson, Sales, 3 0 sec. con losses he profits is based Code, Uniform Commercial 2-715:4. He does on the ’mums. sustained tends he reasonably “a buyer can show Where *8 any of losses not contend he sustained customers pattern sales definite of testi According to the plants. the buyer the they but which would have made accountant, the mony of his his customers because did not make them ending June, in year fiscal the business for buyer’s product the were dissatisfied with the 1967, $6,882.00; for a loss of suffered seller’s of a defect traceable the because a business had year ending in 1968 the warranty, is entitled to the of ending in year profit $203.41; for the of profits from the seller recover for loss of of 1969, a loss business sustained warranty.” in his action for breach of ending June, in $23,817.51 year and for Anderson, Code, Uniform Commercial Sec 1970, loss of sustained a the business 479; Edition, 2-715:26, 478, pp. ond sold on $53,537.32. greenhouses The Corp., 500 Mobil 438 F.2d Lewis v. Oil Cir., 24, (8th 1971). July
921 until the ing years each of the find- uphold jury’s Appellee seeks to turning dark. paneling evi- commenced by arguing that the profits of lost profit in amount a loss of dence shows says $30,240.00per He therefore year. of we believe the evidence While for warranted
that since the least sufficient to show a loss of at some ample proof six was more than profits, we think the case was tried finding $145,322.00. of to sustain the theory wrong submitted of agree. do not We record, proper measure profits for in this instance lost rea is would be the difference between generally accepted rule The crop sonable market value of each profit that a loss it is shown that where actually consequence of ’mums as raised and sold and probable a natural and crop which reasonable market value of the complained of act or omission certainty, produced would have been and sold is shown with sufficient amount an therefor; paneling been as warranted. but may recovery there be a East, Hoopes Tex.Civ.App. v. 19 48 ticipated profits where cannot be recovered (1898, ref.); err. P. and S.W. 764 Buckbee v. dependent uncertain they Co., Hohenadel, (7th Cir.); 224 14 fluc F. conditions, market such as changing Jr. 63, 64; business, Tex.Jur.2d, Crops, 17 secs. Wed where change a tuations or ding Duncan, supra. This measure they may from which there is no evidence profits include lost would es estimated. Evidence to intelligently be also for fluctuation in or would allow profits be uncertain tablish must not price. market prof- speculative. necessary that It is not susceptible of exact calcula should be jits tion; there be data sufficient remaining damage findings The they with a which be ascertained \from be found in do (b) 20(a) exact degree certainty opinion not in our constitute for a basis Reasonable Corporation v. Battery ness. Southwest sustaining judgment appellee. Owen, 115 1097 131 Tex. S.W.2d findings, jury these found the cost Lanier, Tex. (1938); Riddle v. paneling installing defective P.V.C. 1941, op. (Tex.Com.App., S.W.2d $16,305.00 amounted to cost and that the adopted). replacing the defective paneling on two of greenhouses $10,385.00. amounted to proof of- We are of appellee recovery awarded any constitute ev- appellee fered fails to for both amounts. This er constitutes an his probative upon which idence of force damage roneous measure of for the reason intelligently loss could estimated. operates that it as a windfall in 'favor is to be profits evidence of loss of recovery. and allows a double testimony. Nowhere found Tex.Jur.2d, this measure sec. 291. Under the loss testimony testify did as to damages appellee fully reim would be any the numerous in market value of bursed for defective crops The evidence on ’mums. paid under fa- its is that would be for a roof on two based verdict new have raised circumstances he could vorable free stat As cost. 600,000 per annum approximately ’mums above, proper measure of we think the ed *9 profit net of five and could have realized a replacing the cost of would be opinion this plant. In our cents on each greenhouses. four defective on all spec- purely conjectural and
testimony was have conclud- stated we shows he For the reasons Moreover the evidence ulative. reversed. judgment dur- ed the must be sold a considerable amount of ’mums Proce- Rule Texas Rules of Civil
dure, provides as follows: Joe et OLIVARES, al., Appellants, Sr., judgment “When or decree of reversed, court below shall court be CITY OF SAN Appellee. ANTONIO, proceed shall judgment render No. 7414.
decree as the below should have court rendered, except necessary when Appeals Texas, Court of Civil that some matter ascertained be Beaumont. damage or the to be assessed or the mat- 28, 1972. Dec. uncertain, ter to be decreed is in either Rehearing As Amended on Denial of of which cases the cause shall be re- Feb. manded for new trial.” record, there is no way can be rendered be e., damages,
cause the incidental rea i. replacing pan
sonable cost of the defective
eling on all a matter four
which has never been ascertained
jury. Under the issues submitted the replacement
found the cost on two of Thus the incidental dam
ages respect are uncertain. With e., profits,
consequential damages, i. loss of opinion
we are of the that the
tried on wrong theory. We think the
evidence developed should have been show crop the market value of each ’mum produced sold,
actually as well as evi showing
dence the market value each of crops produced which would have been complied
and sold if the had been
with. us,
Under the record before justice ends of would by reversing better served and remand-
ing for a trial reversing new rather than
and rendering.
Reversed and remanded.
McKAY, (concurring). Justice my opinion not make a did
proper objection Special Issue No. 18
preserve point appeal, nor did prove different measure of applied
from that which was and submitted court, thereby waiving the trial the sub-
mission of another measure of
Otherwise, majority I concur in the
opinion.