This case involves a new vehicle warranty. Norvel Courtney, d/b/a Precision Brake Service, Appellee (Plaintiff) brought suit against Orr Chevrolet, Inc., and Chevrolet Division of General Motors Corporation, Appellants (Defendants), for the cost of repairing a 1971 Chevrolet pickup truck and damages for the loss of use of the vehicle on the basis that Appellants had breached the vehicle warranty. The jury found that the vehicle was defective in material and workmanship and awarded Appellee the sum of $1,800.00 as the reasonable and necessary cost of repairing or replacing the defective parts in the truck. The jury also awarded Appellee $4,500.00 as the reasonable value of the loss of use of the vehicle. The Trial Court entered judgment for Appellee against the Appellants jointly and severally in the sum of $6,300.00 and costs. Appellants timely filed their appeals.
The record on appeal reveals that Appellant Orr Chevrolet failed by one day to timely file its amended motion for new trial. Its attorney filed an affidavit stating that although the amended motion for new trial had a file mark of May 17, 1972, it was in fact hand delivered by him to the District Clerk of Bowie County on May 16, 1972. Appellee filed his motion to strike the points of error of Orr Chevrolet, Inc., for the reason that Orr’s amended motion for new trial was not timely filed. Appel-lee affixed to his motion an affidavit from the District Clerk of Bowie County stating that the amended motion for new trial was filed on May 17, 1972; that it was accompanied by a cover letter dated May 16, 1972; and that the clerk had no independent recollection of being handed the amended motion by the attorney for Orr Chevrolet. Appellee’s attorney filed his affidavit with this Court stating that he received a copy of the amended motion for new trial on May 17, 1972, along with a cover letter dated May 16th and that the letter and motion were received through the U. S. Mail. Under Art. 1822, Vernon’s Ann.Tex.Rev.Civ.Stat., this Court has power, upon affidavit, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction. Gaskin v. Perritt,
Appellant Chevrolet Motor Division of ■General Motors Corporation presents three points of error for our consideration.
The burden of proof was upon Appellee to establish whether or not his vehicle was repairable. If the cost of repairing the vehicle were more than the loss in its fair market value, then the loss in fair market value would be the measure of damage. If the car were subject to repair, and the cost of its repair was less than the loss in fair market value, then the cost-of-repair measure of damages would be applicable. In this case, Appellee testified that the fair market value of the truck free of defects on November 3rd, 1970, would have been $4,800.00 and that its fair market value on August 20, 1971, after the damage was discovered was $1,000.00. Thereafter, the court submitted Special Issue No. 5 inquiring as to the reasonable and necessary cost of repairing or replacing defective parts on Appellee’s truck. Appellee has failed to sustain his burden of proof relative to the cost of repairing the vehicle. The only testimony relative to the cost of repairing the automobile for $1,800.00 came from Mr. Courtney, the Appellee, when he stated that he got that figure from another Chevrolet company through a telephone conversation to that company’s parts department and that he couldn’t recall the person with whom he had talked. All of the testimony in the record concerning the cost of repair of the vehicle was hearsay. Inadmissible hearsay admitted without objection may not be used for any purpose. 1 Tex.Law of Evidence, McCormick & Ray, 2d Ed. Sec. 31, p. 33. “This position seems to be based upon the assumption that such evidence is entirely without probative value.” See also Knapik v. Edison Bros., Inc.,
Point of Error No. 1 of Appellant Chevrolet Motor Division of General Motors Corporation is sustained, since Appel-lee offered no evidence of probative force that would support an issue inquiring into the cost of repairing the vehicle.
Appellant Chevrolet Division of General Motors Corporation offered the deposition testimony of Appellee, stating that Appel-lee was relying upon the Chevrolet warranty which he received with his truck and that he was not relying upon any other type of writing or any other type of warranty. Appellee further testified that his suit was based upon a breach of the warranty which he received with his truck. It was established that Defendant’s Exhibit No. 1 was the warranty which was issued with Appellee’s truck. That warranty provides the following:
“This warranty does not cover: . 3. Loss of time, inconvenience, loss of use of the vehicle or other consequential damages; . . . .”
Since Appellee had previously relied upon that warranty to have his truck repaired, he cannot now repudiate it. As between Appellee and Appellant Chevrolet
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Division of General Motors Corporation, the Appellee is not entitled to recover damages for the loss of use of his truck as a result of the alleged breach of an expressed warranty. Lankford v. Rogers Ford Sales,
The judgment of the Trial Court as it relates to Appellant Orr Chevrolet, Inc., is affirmed. The judgment of the Trial Court as it relates to Appellant Chevrolet Division of General Motors Corporation is reversed and rendered that Appellee take nothing.