J. B. Colt Co. v. Reeves
266 S.W. 564
Tex. App.
1924
Check Treatment
WILLSON, C. J.

(after stating the facts as above). It affirmatively appears in the record that the judgment was based en *565 tirely on the finding of the jury that the lighting plant was “so defective in workmanship or material that it was not the plant which defendant contracted for.” That meant no more than that the warranty in the contract (set out in the statement above) covering the sale and purchase of the plant had been violated. There was no finding, and no basis for one in the testimony, that the warranty, or breach thereof, was “accompanied with fraud.” Wright v. Davenport, 44 Tex. 164. It further affirmatively appeared that the plant was not entirely worthless for the purpose for which appellee purchased it. On the contrary, the testimony was undisputed that it was merely defective, the effect of the defects being only to occasion inc'onvenience in lighting and greater expense in the operation of the plant than otherwise would have been incurred. The testimony indicated further that the defects existing could have been repaired and that appellant offered to repair same without cost to appellee.

It has been settled law in this state since the decision of the Supreme Cotirt in the ease cited above “that a mere breach of warranty, unattended by fraud, does not entitle the vendee- to rescind the contract or return the goods,” unless the contract so provides. French Piano & Organ Co. v. Thomas, 36 Tex. Civ. App. 78, 80 S. W. 1063; Fetzer v. Haralson (Tex. Civ. App.) 147 S. W. 290; Ulrich v. Piano Co. (Tex. Civ. App.) 199 S. W. 310; Diquid Carbonic Co. v. Migurski (Tex. Civ. App.) 229 S. W. 661; E. F. Elmberg Co. v. Dunlap Hardware Co. (Tex. Civ. App.) 234 S. W. 700; Sessums Motor Co. v. White (Tex. Civ. App.) 239 S. W. 329; Silo Co. v. Alley (Tex. Civ. App.) 180 S. W. 621. In this case the contract did not so provide, and appellee’s remedy, therefore, was a recovery of damages he suffered because of a breach of the warranty. (Authorities cited above.) As he did not seek that kind of relief in this suit, the court should have rendered judgment in appellant’s favor for the amount of the note sued upon.

Therefore the judgment will be reversed, and judgment as indicated will be rendered here; but such rendition will be without prejudice of the right in appellee to recover damages for the breach of the warranty by appellant if he should seek a recovery thereof.