Aultman Co. v. York , 1 Tex. Civ. App. 484 ( 1892 )

C. Aultman Co., a corporation, sued York and John and E. S. Kirby on three notes given for part of the purchase money for a threshing machine, sold to the defendants by Low Low, acting as agents for plaintiff.

The defenses interposed were fraudulent representations and a breach of warranty.

This is the second appeal, a former judgment in favor of appellees having been reversed. Aultman Co. v. York, 71 Tex. 261 [71 Tex. 261].

Over four years after the suit was instituted, and nearly five years after the sale was made, the defendants impleaded Low Low, and averred that if the representations and contract of warranty made by them were not binding on the plaintiff, then Low Low should respond in damages, etc.

Low Low, among other things, pleaded the two years statute of limitation; and while this plea appears to have been fully sustained by the testimony, there was a verdict in favor of the original defendants against Low Low for $139, which, however, was remitted by the defendants before judgment.

The verdict also declared that defendants were not liable on the notes sued on, and that said notes should be cancelled.

The testimony clearly shows, that the only contract of warranty that Low Low were authorized to make for the plaintiff was made; that said contract was in writing (or printed), and it was produced by defendants, and put in evidence by plaintiff. By this instrument, and this alone, was the plaintiff bound; and its terms were as obligatory upon defendants as plaintiff. Machine Co. v. Crow, 30 N.W. Rep., 609.

The defendant John Kirby testified that he was induced to purchase the machine by certain verbal representations made by a member of the firm of Low Low, and that he considered them, Low Low, liable for all damages.

It was evidently upon the theory entertained by this defendant that the jury returned a verdict in favor of the defendants against Low Low for $139, and not upon the theory of a breach of the written warranty given by appellant. If this was the theory upon which the verdict against Low Low was rendered, then the jury, to have been consistent, should have found for appellant against appellees for the full amount of the notes sued on. If, on the other hand, the verdict was based upon a breach of appellant's warranty, it is not supported by the testimony, because the evidence fails to show that the written notices required by the contract of warranty were given by appellees within the time required, and the question of waiver was not submitted to the jury.

Appellant is entitled to judgment for the full amount of the notes sued on, unless appellees show a breach of the written contract of warranty. And to show such breach, they must show compliance on their part with those parts of the contract requiring them to give written notices, return defective parts, and that there was not continued use of the machine after the expiration of the time named in the warranty, unless it be shown that appellees' compliance with these terms of the contract has been waived.

The charge of the court did not cover all these phases of the case as clearly and fully as it should have done.

Because the verdict and judgment are not sustained by the testimony, we reverse the case.

Reversed and remanded.