221 S.W. 577 | Tex. Comm'n App. | 1920
Plaintiff in error, Hackney Manufacturing Company, a corporation, hereinafter referred to as plaintiff, brought this action against defendants in error, A. T. Ce-lum, R. W. Love, Albert T. Celum, and Valley Implement & Vehicle Company, hereinafter referred to as implement company, seeking to recover upon two promissory notes for the sum of $687.50 each, alleging in substance that defendants in error were jointly and severally liable — the defendants A. T. Celum, R. W. Love, and Albert T. Celum as principals, and the implement company by reason of its indorsement of the notes at their inception and before delivery of the same to it.
A. T. Celum answered that he had been induced by the fraudulent representations of plaintiff and its agent to purchase an auto plow from it, and in consideration for the purchase price executed the notes in question and paid plaintiff the sum of $500 in cash.
The fraudulent representations relied upon were, in substance, that the plow was simple in its operation, well adapted as a tractor, had sufficient power to plow in all kinds of soil, that a thorough test had proved it would successfully plow five-year old alfalfa sod ten inches deep, and, in the event it did not do the work satisfactorily, plaintiff would take it back and return the money and notes. He further alleged that after making a thorough test the plow was found to be unsuited for the purposes for which it was purchased and unsatisfactory to him; that, immediately upon discovery of these facts, he notified plaintiff that he rescinded the contract, and demanded the return of the notes and money paid.
In the cross-action filed, Celum sought to recover the $500 paid plaintiff, $174 freight paid by him on the plow, the sum of $253.46 expended for labor employed and gasoline and oil consumed in testing the plow, and the sum of $217.40, plus $22 freight, for disc and break bottoms ordered by him and used in testing the plow.
The case was submitted to a jury upon special issues, and the jury in response thereto found: That A. 'T. Celum1 was induced by the fraudulent representations of plaintiff and its agent, as to the character of the work the plow would do, to sign the contract and exeefite the notes; that he at no time used the plow in a way inconsistent with its being the property of plaintiff; that he was induced to continue his tests of the plow upon the representations of plaintiff and its agent; that he was using it all the time for the purpose of testing it, to determine whether it could be made to do the work satisfactorily; that he first found the latter part of July that the plow was not satisfactory to him, and at that time rejected it, and notified plaintiff thereof; that he did not use it after rejection; and that about three months under the prevailing circumstances was a reasonable time for him to test the plow and notify plaintiff of the rejection.
Upon the answers to the special issues, the court rendered judgment canceling and rescinding the contract, and rendered judgment for A. T. Celum 'on his cross-action for the sum of $1,057, establishing and foreclosing a lien on the plow, steering attachment, and gang, but denying him a recovery of $217.40 plus $22 freight for the disc and breaker bottoms. The defendants Love and Albert H. Celum were discharged with their costs.
Upon appeal, the Court of Civil Appeals reformed the judgment, denying a lien and the foreclosure thereof on the plow, steering attachment, and gang; and as reformed the judgment was affirmed. 189 S. W. 9S8. The writ was granted upon application referred to the committee of judges.
If, however, defendants Love and Albert H.Celum be considered as sureties, instead of joint, or joint and several, obligors, the result under the rule announced in the case of Aultman & Taylor Co. v. Hefner, 67 Tex. 54, 2 S. W. 861, would be the same.
Our conclusion is that the judgment of the Court of Civil Appeals should be affirmed.
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