L. D. Powell Co. v. Sturgeon, 299 S.W. 274

L. D. Powell Co. v. Sturgeon

299 S.W. 274 | Tex. App. | 1927

It appeared without dispute in the testimony heard at the trial that defendant in error purchased the books, and agreed to pay for them as alleged by plaintiff in error, and, further, that he failed to pay $102.70 of the price agreed upon. That being true, the judgment should have been in plaintiff in error's favor for the sum it sued for, unless it appeared it was liable to defendant in error for damages as found by the jury. That finding was based on allegations and testimony by defendant in error that he was induced to enter into the contract by false representations made to him by plaintiff in error's agent that the books were edited by the "best law editors," could be relied on as containing the "latest and correct law of all the courts, including the higher courts of Texas, were all any lawyer needed on the subjects of evidence and procedure, and that plaintiff in error from time to time would furnish him (defendant in error) with supplements bringing the books up to date."

Assuming that the representations were made and were false as charged, and that they would have entitled defendant in error to a rescission of the contract had he promptly demanded it on discovering their falsity, they did not entitle him to recover damages of plaintiff in error, for, as shown in the statements above, when defendant in error entered into the contract, he agreed that "no representations or agreements" not contained in the writing had been made on behalf of plaintiff in error. Having so agreed, and having thereby (it is assumed) induced plaintiff in error to accept his order for the books, defendant in error was not in a position to claim liability on the part of plaintiff in error for damages he suffered as the result of his reliance on the oral representations made to him by the agent. If the agreement did not operate as an estoppel against defendant in error, it was equivalent to an acknowledgment by him that he knew the agent with whom he dealt was without authority to bind plaintiff in error by such representations. It is well settled that one dealing with an agent, and knowing his lack of authority to act for his principal in making given representations, cannot set up the falsity of the representations as a ground for a recovery of damages of the principal. National Guarantee Loan Co. v. Thomas,28 Tex. Civ. App. 379, 67 S.W. 454; National Equitable Soc. of Belton v. Camp (Tex.Civ.App.) 184 S.W. 589; Reagen v. Society (Tex.Civ.App.)202 S.W. 157; Kasch v. Williams (Tex.Civ.App.) 251 S.W. 816.

As shown in the statement above, defendant in error alleged in his answer that the consideration for his undertaking under the contract "wholly failed." But certainly the books had a "junk value" (Thresher Co. v. Higgins [Tex. Civ. App.] 279 S.W. 531), if none other, and hence it cannot be said it appeared that the consideration for defendant in error's undertaking wholly failed. The rule seems to be that a buyer, in an action for an agreed price, cannot show as a defense that the article he purchased, not wholly without value, was worth less than he promised to pay for it. Kessler v. Zacharias, 145 Mich. 698, 108 N.W. 1012. But, if the rule were otherwise, we think it would still appear from the record before us that the judgment should have been for plaintiff in error for the sum it sued for instead of for defendant in error for any sum, for, the failure of consideration, if any, being partial only, and defendant in error having failed to show the extent thereof, there was no basis for a judgment in his favor. Gutta Percha Rubber *276 Mfg. Co. v. City of Cleburne, 102 Tex. 36, 112 S.W. 1047.

The judgment will be reversed, and judgment will be here rendered in favor of plaintiff in error for the amount it sued for.