
    DALTON ADDING MACH. SALES CO. v. VALLEY MOTOR CO., Inc.
    (No. 2914.)
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 16, 1927.
    1. Trial @=>351 (2) — Where defense is abandoned by agreement of parties to withdraw it from jury, court is not authorized to pass on it.
    In action to recover purchase price of adding machine where buyer, who pleaded and offered evidence to show he never received machine, intends to abandon such defense by agreeing with seller that such issue be withdrawn from jury, court is not authorized to pass on such issue.
    2. Appeal and error @=>930(3) — Reviewing court should presume in favor of judgment that court determined issues it was permitted to pass on in favor of prevailing party (Rev. . St. 1925, art. 2190).
    Where parties to action for purchase price of adding machine, by agreement to withdraw certain defense from jury, intended to permit court to pass on such issue, reviewing court should presume in favor of judgment for defendant that court determined such issue in its favor, under Rev. St. 1925, art. 2190.
    3. Sales @=>365 — Finding that seller agreed to> hold contract sued on till huyer tried another machine held insufficient of itself to support judgment for buyer.
    In ac.tion for purchase price of adding machine, finding that seller agreed with buyer to hold contract sued on till buyer had tried out another machine held insufficient of itself to authorize judgment that seller take nothing by its suit.
    4. Sales @=>166(1) — In action for purchase price of adding machine, showing that machine delivered was not machine ordered constitutes defense.
    In action for purchase price of adding machine, showing that bookkeeping machine delivered to buyer was not machine purchased by him constitutes defense, since buyer cannot be compelled to accept and pay for something he did not agree to buy.
    Appeal from Bailey County Court; Wm. G. Kennedy, Judge.
    Action by the Dalton Adding Machine Sales Company against the Valley Motor Company, Inc. Judgment for defendant, and plaintiff appeals'.
    Reversed and remanded.
    Howard & Burks, of Lubbock, for appellant.
    Levi Pressly, of Muleshoe, for appellee.
   JACKSON, J.

The appellant, the Dalton Adding Machine Sales Company, instituted this suit in the county court of Bailey county, Texas, against the appellee, the Valley Motor Co., Inc., to recover the sum of $285.-00, with interest and attorney’s fees on a written contract executed by appellee to appellant for one Dalton Adding-Calculating Machine.

The appellant attached to its petition a copy of the contract, pleaded its effect, and alleged default by appellee.

The contract constitutes a note and mortgage, and the provisions of which necessary to a disposition of this appeal, read:

“To the Dalton Adding Machine Sales Co., Cincinnati, Ohio.
“Date 12 — 4—24.
“Please enter my /our order for the following and deliver f. o. b. Muleshoe, Tex.: 1 Dalton adding calculating machine, model 68TÜ-102-U, serial number 139295-5026. Por which I/we agree to pay to the order of the Dalton Adding Machine Sales Company, Cincinnati, Ohio, $320, as follows: $35 cash with order; balance of $285 in' 19 equal monthly payments of $15, first monthly payment due February 1, 1925, and one the first of each month thereafter until paid. Terms, 2 per cent, discount for cash. The provisions on the other side are a part of this order. [Signed] Valley Motor Co., by K. K. Smith. City, Muleshoe. County, Bailey. State, Texas. This order subject to the approval of the Dalton Adding Machine Sales Company, Cincinnati, Ohio. Approved at Cincinnati, Ohio, 12 — 9—1924. The Dalton Adding Machine Sales Company, by H. C. Grubbs, Vice President.”
“(6) This instrument may not be varied by any oral understanding or agreement, contemporaneous or otherwise; all previous negotiations, either oral or written, being hereby abrogated or merged herein; and this printed and written document, when approved by an executive officer of your company at Cincinnati, Ohio, is to constitute the entire agreement and understanding between the parties hereto.
• “(7) It is expressly agreed that this order shall not be countermanded, that the original hereof has been unconditionally released and delivered for transmission to the Dalton Adding Machine Sales Company, and that any notice or communication relating hereto or contemplated hereby shall be made in writing to said company at Cincinnati, Ohio, and not otherwise.”

The appellee answered by general demurrer, general denial, and alleged that at the time of the execution of the contract he advised the agent of appellant that he did not want a bookkeeping machine, but an adding machine; that the agent insisted that appel-lee take the bookkeeping machine for 10 days’ trial and sign an order for the adding machine, which would not be filed until he was allowed 10 days to try out the bookkeeping machine, and if after 10 days the bookkeeping machine did not give satisfaction he would be sent the adding machine which he wanted; that relying on said representations, the bookkeeping machine was sent to appellee and in about 10 days after its delivery the agent called and appellee advised him that he did not want the bookkeeping machine; that the agent told appellee to pack said machine for shipment, and he would take it up and send appellee the machine he wanted; that it was understood and agreed, at the time the order was signed, that appellee was not buying a bookkeeping machine but an adding machine, as described in the order, and that about 10 days after the delivery of the bookkeeping machine, the agent promised to take up said machine and have the appellant send him the adding machine that he had ordered.

The court, at the request of appellee, submitted the case to the jury upon the following special issues:

“Special issue No. 1. Is the machine introduced in evidence herein the machine purchased by the defendant herein?
“Special issue No. 2. Did the plaintiff, thrtfugh its agent, agree with- the defendant to hold the contract sued on until the defendant had tried out the bookkeeping machine?”

The record discloses that:

“Thereafter, by consent of the parties, special issue No. 1 was withdrawn from the jury and the jury instructed not to answer said issue.”

The jury answered special issue No. 2 in the affirmative, and the court rendered judgment in favor of appellee and that appellant take nothing by its suit, from which judgment this appeal is prosecuted.

The appellant introduced in evidence the contract, and it was agreed that such contract had been duly filed in the chattel mortgage records of Bailey county, Tex., on December 20, 1924, and that the 10 per cent, attorney’s fees stipulated therein are reasonable.

K. K. Smith, the president of appellee, testified that he gave the order introduced in evidence to appellant for an adding and calculating machine, with the understanding that it would not be filed for 10 days; that the agent had with him a bookkeeping machine exactly like the one sent to appellee; that appellee advisgd the agent that he did not want that kind of a machine as it would not work in kis kind of bookkeeping; tkat ke wanted an adding mackine, and tke agent told kim that if he was not satisfied with the bookkeeping mackine, after 10 days’ trial, ke would take it up and have tke adding machine sent; tkat ke received tke bookkeeping machine tke latter part of December, and about 10 days thereafter told appellant’s agent tkat ke could not use it, and tke agent told kim to box it up and he would take it to Amarillo and have tke adding mackine sent to kim, as ordered, but tke bookkeeping mackine was never called for; tkat all tke bookkeeping mackine which ke received, except that part exhibited in tke courthouse, was boxed up over at appellee’s place of business in Muleshoe, where it had been since he received it; tkat ke had used the mackine sent him in kis business as an adding ma-ckine ; tkat tke paint on tke top part of tke handle was worn off;" and tkat ke never did get tke machine tkat ke contracted for.

If the appellee, after having pleaded and' offered evidence to show tkat ke never received tke mackine ordered, intended to abandon suck defense by agreeing with tke appellant tkat suck issue might be withdrawn from tke jury, tke court would not be authorized to pass upon suck issue. Citizens’ National Bank v. Texas Compress Co. (Tex. Civ. App.) 294 S. W. 331, and authorities cited.

If tke parties, by said agreement, intended to permit tke court to pass upon suck issue, then we should presume in favor of the judgment tkat tke court determined suck issue in favor of appellee. Article 2190, R. C. S. 1925; Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132; Hughes et al. v. Hughes et al. (Tex. Com. App.) 221 S. W. 970.

There is nothing in tke record to disclose why said issue, after being submitted, was withdrawn, nor tke purpose and intention of tke parties in so doing.

, To add to tke uncertainty, there is what purports to be a statement of facts, under article 2244, R. C. g., but tke parties state:

“We also agree to submit this cause as an agreed case under the provisions of the statute, and that it may be determined accordingly.” Article 2177, R. C. S.

Tke court certifies that tke statement of facts on file was signed by counsel for all parties thereto “and was submitted to the court and disposed of as an agreed case,” but tke case before us was tried to a j.ury.

The finding on issue No. 2, standing alone, would not authorize tke judgment rendered.

Appellee did not plead tkat kis signature to tke contract was secured through fraud and did not tender, in kis pleadings, the mackine to appellant* Issue No. 1 would have, under tke facts revealed in this record, constituted a defense to appellant’s cause of action, as pleaded. “It is a well-settled rule of tke law of sales that a buyer cannot be compelled to accept and pay for something which ke has not agreed to buy. 2 Meekem on gales, 1154. If tke thing tendered be not what ke agreed to buy, ke may reject it, even though it is like tke thing ke bought.” Dallas Oil & Refining Co. v. Washington Cotton Oil Co. (Tex. Civ. App.) 283 S. W. 345, and authorities cited, gee Markham Warehouse & Elevator Co. v. Plotner & Stoddard (Tex. Civ. App.) 140 S. W. 356; Pruitt Commission Co. v. Pruitt Dispatch Co. (Tex. Civ. App.) 129 S. W. 1150.

Under tke record, appellee had not waived its right to have delivered to it tke mackine purchased. Tke judgment is reversed and tke cause remanded. 
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