
    GREENLEE et al. v. CONSOLIDATED OIL CO. OF TEXAS et al.
    (No. 1310.)
    (Court of Civil Appeals of Texas. El Paso.
    March 30, 1922.
    Rehearing Denied June 1, 1922.)
    1. Parties <©=7( I) — Trustees of trust estate may sue in their own names for price of goods sold.
    The trustees of a trust estate, being owners of the legal title to its property, may sue and recover judgment in their own names for the purchase price of goods sold by it.
    2. Sales <©=352(7) — Evidence held to support findings that sellers did not make false representations alleged, and that purchaser did not rely thereon.
    Evidence held sufficient to support the jury’s findings, in an action for the purchase price of well casing, that plaintiffs did not represent that it was 40-pound casing, and that defendant did not rely on such representations.
    3. Sales <©=36, 270 — Issues of mutual mistake and implied warranty of fitness held inapplicable, where purchaser relied on his own investigation.
    In an action for the purchase price of well casing, where the evidfence showed that plaintiffs made no positive representation as alleged that the casing was 40-pound casing, and that defendant inspected and tested the casing to ascertain its weight, and relied on his own investigation, the issues of mutual mistake and implied warranty of fitness for the purpose for which plaintiffs knew it was being purchased were inapplicable.
    4. Appeal and error <©=>1140(3) — Error in award of damages cured by remittitur.
    Error, if any, in an award of damages is cured by a remittitur of the amount improperly awarded.
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge,
    Action by D. S. Rumph and others, trustees of the Consolidated Oil Company of Texas, against C. C. Greenlee and another, partners. Judgment for plaintiffs, and defendants appeal.
    Judgment, less sum remitted by plaintiffs, affirmed.
    Shepherd & Kelly, of Eastland, and Shepherd & Lankford, of Cisco, for appellants.
    Barker & Barker, of Cisco, for appellees.
   HIGGINS, J.

D. S. Rumph, S. P. Rumph, and H. E. Wakefield, trustees of the Consolidated Oil Company of Texas, brought this suit against C. C. Greenlee and C. L. Wal-thers, composing the firm of Greenlee and Walthers, to recover the sum of $4,208, the purchase price of certain well casing sold by the Consolidated Oil Company to said firm. A writ of attachment was sued out and levied upon certain property, which was thereafter replevied by the defendants. The defendants answered, admitting that they had purchased the casing at the price sued for, but bought it upon the special representation and guaranty upon the part of the plaintiffs that it was 10-inch 40-pound casing, upon which representation and guaranty they relied in making the purchase, and that the casing was not 40-pound casing, but 30-pound, and they tendered back such casing to the plaintiffs. It was further alleged that when they made the purchase they informed plaintiffs that they needed 40-pound 10-inch casing for use in a well which they were then drilling, which plaintiffs knew, and the plaintiffs sold the casing to them knowing the use for which it was desired, and that it was worthless for the purpose. The defendants reconvened for damages sustained by them by reason of the fact that the casing was not of the weight contracted for, and also sought damages for the alleged wrongful and malicious issuance of the writ of attachment. The case was submitted to a jury upon special issues.

The findings pertinent to the issues presented by this appeal are as follows: That the casing was not 40-pound casing. That neither D. S. Rumph nor S. P. Rumph represented to Greenlee that the casing they were offering to sell him was 40-pound casing, and that Greenlee did not rely upon any such representations at the time the purchase was made. The negotiations between the parties were conducted by D. S. Rumph and S. P. Rumph representing the Consolidated Oil Company, and C. C. Green-lee representing the defendants. The testimony shows that Greenlee approached the Rumphs for the purpose of buying some 10-inch 40-pound casing, and, according to. the testimony of the Rumphs, they stated to Greenlee that they had some casing which was! bought for 40-pound casing. Both - of the Rumphs deny that they made any representations that the casing was in fact 40-pound casing, and they testified that the extent of their representation was that' they had bought it and paid for it as 40-pound casing. There is also ample evidence to show that Greenlee in making the purchase did not rely upon any representation made by the Rumphs, for it is shown that he inspected the easing in company with one of the Rumphs, and for the purpose of ascertaining its weight obtained calipers and calipered the casing; it being also shown that this was an approved method of ascertaining the weight of casing. There is also evidence that after having inspected the casing and calipered it he expressed himself as satisfied with its weight, and thereupon made the purchase.

The first assignment is that the court erred in rendering the judgment in favor of the trustees of the Consolidated Oil Company because the evidence shows that the casing belonged to the company. This matter presents no error. The trustees being the owners of the legal title, they were authorized to sue in their own names, and judgment in their favor was properly rendered. Aldridge v. Pardee, 24 Tex. Civ. App. 254, 60 S. W. 789; Sears on Trust Estates, p. 207.

The second assignment is to the effect that the court erred in rendering judgment for the plaintiffs upon the findings that the Rumphs made no representations, and that Greenlee did not rely upon any representation because the evidence is positive and practically uncontroverted that the Rumphs did make such representations, and that Greenlee, relying thereon, made the contract of purchase. We cannot concur in this view of the evidence. The evidence abundantly supports the jury’s findings upon these issues.

The third and fifth assignments are to the effect that the defendants were entitled to a rescission of the contract of sale because the undisputed evidence is that the parties were mutually mistaken as to the weight of the casing. In the first place we doubt if the issue of mutual mistake as a ground for rescission is presented by the pleadings. But, if properly pleaded, it would have no application here, in view of the evidence that there was no positive representation upon the part of the Rumphs that the casing was 40-pound casing, and in view of the further evidence that Greenlee made an inspection of the casing, examined and tested it for the purpose of ascertaining whether it was 40-pound casing, and relied upon his own investigation as to its weight. Graves v. Haynes (Tex. Com. App.) 231 S. W. 383; Cresap v. Manor, 63 Tex. 485; Garrett v. Burleson, 25 Tex. Supp. 41.

And for the same reason the fourth assignment is without merit, wherein it is contended that there was an implied warranty that the casing was fit for the purpose for which it was desired, of which purpose the Rumphs were aware.

Eor the same reason the sixth assignment presents no error.

The seventh assignment and another matter presented as fundamental error relate to an item of $200 of actual damages sustained by the defendants for the alleged wrongful issuance of the writ of attachment. The appellees have filed a remittitur of this amount, and error, if any, thus presented is cured by the remittitur so filed.

The judgment of the court below, less the sum of $200 remitted, is affirmed.

The Costs of the appeal are taxed against the appellees. 
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