266 S.W. 564 | Tex. App. | 1924
It affirmatively appears in the record that the judgment was based *565
entirely 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,
It has been settled law in this state since the decision of the Supreme Court in the case 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,
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.