Barnett v. William , 242 S.W. 348 ( 1922 )

It affirmatively appears from the recital in the judgment set out in the statement above that the rescission awarded was based on the findings alone of the jury that the tractor was not made of good material and would not do good and serviceable work if properly adjusted and operated by a competent person. That being true, if those findings did not warrant the judgment, this court cannot assume, as, otherwise, it might, if the testimony warranted them (article 1985, Vernon's Statutes) that the trial court made other findings which, considered with those the jury made, authorized the judgment.

The trial court, it seems from the recital referred to, thought the legal effect of the findings was to establish that the consideration for appellees' undertaking wholly failed, and on that theory awarded a rescission of the contract. But we think that was not the effect of the findings, and that they only established that the tractor was not what it was warranted to be. It did not follow, because it was not made of good material and would not do good and serviceable work, that it was wholly without value. We are of the opinion, therefore, that the judgment is fundamentally erroneous because not warranted by the findings.

While the law is otherwise in some jurisdictions, it has been the rule in this state since the decision in Wright v. Davenport, 44 Tex. 164, that "mere breach of warranty, unattended by fraud, does not entitle the vendee to rescind the contract or return the goods" unless the contract provides that he may do so. Organ Co. v. Thomas, 36 Tex. Civ. App. 78,80 S.W. 1063; Ulrich v. Piano Co. (Tex. Civ. App.) 199 S.W. 310; Carbonic Co. v. Migurski (Tex. Civ. App.) 229 S.W. 361; Potter v. Mobley (Tex. Civ. App.) 194 S.W. 205; Organ Co. v. Garza, 53 Tex. Civ. App. 346,116 S.W. 150; Motor Co. v. White (Tex. Civ. App.) 239 S.W. 329. The instant case, as made by the findings on which the judgment is predicated, appears to us to be strictly within the rule.

On the testimony in the record the relief If any, appellees are entitled to is not by re scission, we think, but by damages for breach of the warranties. If the new trial is on that theory, as we think it should be, the questions made by the assignments if they arise at all, will be determinable by rules applicable in that kind of a case. We have not thought it necessary, therefore, to consider the assignments.

So far as the judgment is in appellees' favor against Baker Ragsdale, it is reversed, and the cause is remanded for a new trial as between them. The judgment is not disturbed in other respects.