
    ALLIS-CHALMERS MFG. CO. v. FULLER.
    (No. 2748.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 18, 1923.
    Rehearing Denied June 7, 1923.)
    Sales <&wkey;120 — Defective parts or breach of warranties of machine sold held insufficient to authorize rescission.
    That there were some defective parts in a tractor sold, or that it did not fully meet all the warranties made by the seller’s agent, held insufficient, in the absence of fraud or intentional deception, to authorize rescission.
    Appeal from Denton County Court; E. J. Key, Judge.
    Suit by J. J. Fuller against the Allis-Chalmers Manufacturing Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Saner, Saner, Turner & Rodgers, of Dallas, for appellant.
    Hopkins & Jackson, of Denton, for ap-pellee.
   HODGES, J.

About April 3, 1929, the ap-pellee purchased from the appellant a tractor and plow. The consideration was $965, one-half of which was paid in cash, and the remainder evidenced by a promissory note due the following November. Later the appellee became dissatisfied with his purchase on account of some alleged defects ,in the tractor, and in February, 1921, offered to rescind the sale -and tendered back tbe tractor and ¡plow. This offer was refused by'tbe appellant, and this suit followed.

In ¡bis petition tbe appellee alleged, in substance, that tbe tractor bad been warranted to bim as made of good material, mechanically ¡well constructed, and that it would do bis work satisfactorily. He further alleges that 'the tractor was worthless, some of tbe parts defective, and that it was unfit for tbe use fot which be purchased it. He claims that he was induced to purchase by réason of tbe false and fraudulent representations made by the agents of the appellant. He asked that tbe contract be rescinded, that tbe note which be bad executed be canceled, and that he recover back tbe amount of money be bad paid' in cash and the sum of $28 paid as interest on tbe note. He further asked, in tbe event be was not entitled to have tbe note cánceled, that be recover tbe value of tbe ■nóte and the amount of cash which be bad 'paid. He also prayed that, in tbe event he was not entitled to relief in either of the 'respects stated, be be awarded the damages sustained by reason of tbe defective condition of the tractor and plow.

Tbe case was submitted to tbe jury on a number of special issues, many of which were found in favor of the plaintiff. Those .Wbieh are.-,material may be summarized as follows: (1) At tbe time tbe tractor was sold tbe agents of the' appellant agreed that they would make it do satisfactory work on the plaintiff’s farm; (2)' that it did not do satisfactory work, and that appellant bad ■failed to make the promise good; (3)- that ■the tractor and plow did not measure up to tbe representations made by the appellant’s .agents; (4) part of tbe machinery was not made of first-class material'; (5) tbe reasonable replacement cost of tbe defective parts was about $200; (6) that the actual value of the tractor and plow at tbe time it was delivered to. tbe appellee was $965; (7) that the difference between tbe reasonable value of tbe tractor and plow and its value if it had come up to tbe warranty was $600; (8) that ‘ the appellee discovered tbe defects in tbe tractor and plow at the time be purchased it, and offered to return it in February of 1921. Upon those and some other findings tbe court entered up a judgment in favor of tbe appellee for a rescission of tbe contract and for a recovery of tbe sum of $993, tbe entire purchase price plus $28 paid as interest.

It is.difficult to understand bow any judgment for tbe plaintiff could be entered upon these findings. This was an executed contract. Half of tbe purchase price was paid in cash; tbe remainder was embodied in a note which before maturity passed into tbe bands of a third party, and that note, in determining the rights of tbe parties, must be treated as so much cash. Tbe jury having found that the actual value of tbe machinery was $965, tbe exact amount of tbe purchase price, clearly there could be no right of rescission on tbe ground that the property was worthless. Tbe written contract offered in evidence, which contained tbe terms of the sale, provided for the replacement of defective parts, free of charge, if application was made at tbe factory any time within a year after tbe sale. That contract, tbe jury found, bad not been violated. At tbe time tbe demand for a rescission was made tbe year bad not expired. While fraud on tbe part of tbe appellant’s agents was alleged, that issue was not submitted to the jury, nor was there any evidence offered which justified a finding of fraud in making tbe sale. Tbe tractor was carried to tbe appellee’s premises and tested by plowing on bis land, and he agreed to purchase only after a test which fully satisfied bim that it was tbe machine be wanted. The mere fact that there were some defective parts, or that tbe machine did not fully meet all the warranties made by the agents, when these-were unattended by any fraud or intentional deception, would not authorize tbe court to declare a rescission of tbe contract. Barnett v. Williams (Tex. Civ. App.) 242 S. W. 348. The most tbe appellee can claim, under tbe facts of this case, would be tbe damages be sustained for tbe breach of the warranties made by tbe appellant’s agents. Under tbe express finding of tbe jury that sum could not, in any event, exceed $600. It would be difficult to render a judgment for any amount of damages, in view of the further finding that-tbe property was worth all that tbe purchaser paid for it.

Tbe judgment will be reversed, and tbe cause remanded. 
      
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