227 S.W. 499 | Tex. App. | 1921
Appellants, Geo. T. Webb and others, brought this suit against the appellee, Emmerson-Brantingham Implement Company, to recover damages for fraudulent representations made by the implement company in the sale of a secondhand gasoline tractor. This appeal is from the judgment of the trial court, sustaining defendant's general and special exceptions to the plaintiffs' petition. We will therefore set out so much of the allegations of this pleading as is necessary to make our holding in reference thereto intelligible.
Plaintiffs alleged: First. That in November, 1916, the implement company fraudulently represented that a certain secondhand tractor, which it proposed to sell to plaintiff, would with slight repairs, which it agreed to make, be in first-class condition and as good as new, and do all farm work required of it by the plaintiffs; that plaintiffs, relying on these representations, bought the tractor, and executed to the defendants their two notes, aggregating $1,635, securing payment thereof by chattel mortgage on said tractor; that the plaintiffs paid the freight on said tractor, amounting to the sum of $55; that such statements as to the condition of said tractor were false, "in that said tractor when repaired was wholly worthless," and would not run after repeated efforts on the part of defendants' agents to repair it, and "that same was practically worthless, and that the freight paid out by plaintiffs should be refunded." Second. That plaintiffs paid out certain sums of money for new parts ordered for repair of said tractor on the representation of the Implement company that "plaintiffs would get credit for them, and that the engine could truly be made to work all right," these items aggregating the sum of $99.53; that the plaintiffs made numerous trips and incurred personal expenses in the sum of $90, and bought certain other parts for said tractor, in an attempt to make it operate, at an additional expense of $15.48; that plaintiff also purchased of the defendant for use with said tractor a sod-bottom plow, paying therefor the sum of $65, and that said plow was worthless to the plaintiff "unless said engine could be operated successfully"; and that plaintiffs had no other means of using said plow. Third. That if the said engine had not been defective plaintiffs would have planted 35 acres of wheat in the fall of 1916, and would have made a net profit thereon of $400, and would, in the year 1917, have planted 155 acres in milo maize and kaffir corn, and would have made a profit on said crop of $1,800, and that plaintiffs had a contract with one Elmer Knight for the plowing of 200 acres of land in the fall of 1916, at $2.25 per acre, out of which they would have made a profit of $294, but which plowing they lost on account of the worthless condition of said tractor. Fourth. That the said enumerated items of damages "resulted from the defective condition of said tractor, and because same would not operate as represented by defendants," and that the defendants were informed of the purpose for which the plaintiffs intended to use said engine in planting said crops and in plowing lands for others as alleged. Fifth. That the plaintiffs would not have received said tractor but for the false and fraudulent representations of the defendant; that the defendants continued to represent that they could and would place said tractor in good working condition; that plaintiffs attempted to return said engine to defendant, but were induced to keep it on the representations that the defendant expected to make the same run; that defendant knew that said engine could not be made to run, but made said promises and representations for the fraudulent purpose of "getting plaintiffs to keep it for a while longer so as to have a better excuse to refuse to do anything further with same"; that the said fraudulent acts and representations were made and committed in Swisher county, in the district court, of which county the suit was brought.
Defendant, in its answer, among other things, pleaded that the contract for the sale of said engine was in writing, and it was provided therein that the implement company made no warranties of any kind in reference to the condition of said engine, etc. The plaintiff, in a supplemental petition, expressly stated that the suit was "for damages on account of false and fraudulent *501 representations made by defendant and its agents."
The exceptions urged by the defendant consisted of a general demurrer and special exceptions to the various items of damage alleged.
The plaintiff's suit was for deceit in the fraudulent representations made by the defendant. Routh v. Caron,
We think the petition is sufficient to have warranted a recovery of the item of $55 freight paid on the tractor, and those items of personal expense incurred by the plaintiff, in attempting to make the tractor work. Chatham Machinery Co. v. Smith, 44 S.W. 592; Southern Gas Gasoline Engine Co. v. Pevito, supra. If the tractor is in fact worthless, the plaintiffs have lost said sums as the proximate result of the wrong, in addition to the amount they paid the defendant in notes for the tractor.
The petition is not sufficient to authorize a recovery of those amounts alleged to have been paid for parts to be used in the repairing of said tractor on the agreement between the plaintiffs and the defendant that the plaintiffs "would get credit for them." In the absence of any further statements to show what was meant by this agreement, we take it to mean that the defendant would credit these amounts on the plaintiffs' notes or other account with it, and there is no allegation that this was not done.
The claim for $65, paid for a sod-bottom plow, for use with the engine, is not supported by sufficient allegations to warrant a recovery of this item. The allegation is that said plow is worthless to the plaintiff, there is no allegation that the plow has no market or intrinsic value, and no offer by the plaintiffs to return it to the defendant. Chatham Machine Co. v. Smith, 44 S.W. 592.
The allegations of loss of profits on a plowing contract and on crops that would have been put in but for the defective condition of the tractor are, in our opinion, also insufficient. The plaintiffs, by this action, have affirmed the contract, and the action itself is for deceit, under the rule announced in George v. Hesse,
If we are correct in the foregoing conclusions, the court was in error in sustaining the general demurrer and in dismissing the cause for want of cause of action, which judgment would be a bar to a recovery, even in a court of competent jurisdiction, of those items, as to which the plaintiff alleged a good cause of action. If the amount recoverable should be reduced by exceptions to the different items of damage alleged to an amount below the jurisdiction of the court, a proper judgment would be, after sustaining such exceptions and the refusal of plaintiff to amend, to dismiss the cause for want of jurisdiction. Under the circumstances of this case we think we should reverse and remand the cause. Reasoner v. G., C. S. F. Ry.,