Southern Gas & Gasoline Engine Co. v. Adams & Peters
Southern Gas & Gasoline Engine Co. v. Adams & Peters
Opinion of the Court
This suit was brought by the Southern Gas & Gasoline Engine Company, appellant, against Adams & Peters, a partnership, appellees, for the recovery of the balance due on the purchase price of one 20 H. P. Flour City traction engine, sold by •appellant to the appellees in October, 1911. Appellees filed an answer, alleging that the engine was defective as a whole and in all of-its parts in material and workmanship, and would not do the work it was sold to do, and claiming damages for the difference between the value of the engine at the time delivered and the price which they contracted to pay for same, with interest, and for money spent in making repairs upon the engine, and for .damages suffered by them in the losses on their potato crop by reason of. its defective condition and failure to work properly. The case was submitted to the jury on special issues, all of which were found in favor of appellees, and judgment was rendered thereon in their favor, awarding a recovery of the difference between the contract price and the value of the engine delivered, and for freight and demurrage, and for damages for delay in harvesting their potato crop, all aggregating $836.31, over and above the amount due the appellant, and judgment was rendered against it in favor of appellees for that amount, from which this appeal is prosecuted.
The court, however, in entering this judgment for them, refused to allow appellees interest at 6 per cent, per annum upon the amount of damages found in their favor by the jury, or the balance due them after offsetting the amount due appellant, from the date the same were found to have been sustained, June 15, 1912, until the trial, which would have entitled them, as they alleged, to judgment for the larger amount of $863.23, with 6 per cent, annual interest thereon from October 19, 1912, until paid. Upon the court’s denial of their motion to so allow them interest, they filed and have presented here a cross-assignment raising that issue. The case, then, is regularly before this court upon a number of assignments urged by appellant, and the cross-assignment of appellees relating to interest.
“It is a further condition of this contract that the Southern Gas & Gasoline Engine Company shall not be held responsible for damages in the use of this machinery, either original or consequential, and purchaser shall make good any loss to them on same caused by fire, carelessness, or malicious injury until same is fully paid for.’’
With much earnestness it is argued that, in defining damages, the terms “special” and “consequential” are synonyms for one and the same thing, and hence identical; that the $1,734.30 receiyed by appellees for the *677 loss sustained by them from the delay in marketing their potato crop, because of the failure of the engine to work properly, being “special damages,” are likewise “consequential damages,” and therefore within the quoted terms of the contract. But, while appreciating its force, we are unable to agree to this construction of the meaning of the contract. Upon the contrary, we agree with the trial court that its terms did not exempt appellant from the kind of damages here obtained against it, and think it quite plain that the damage appellant had in mind in preparing the contract was some damage which might occur during the actual operation of the engine, such as the explosion thereof, or the breaking or flying off of a part of the machinery, or some other such injury resulting proximately from the actual operation of the machinery, for which it might otherwise have been liable. This view of its meaning and intent is strengthened, it seems to us, by the correlative obligation placed by the last clause of the quoted paragraph upon appellees to indemnify appellant for any loss on the engine itself, pending full payment for it, resulting from fire, carelessness, or malicious injury; in other words, it was evidently contemplated upon the one hand that careless, incompetent, or even malicious use or operation of the engine might subject appellant to liability for damages as its consequence, or upon the other result in the destruction or substantial injury to the machine itself, and it was sought to thus exempt appellant from responsibility or loss in either contingency. A further consideration is that the damage so recovered for did not result from any actual use or operation of the engine, but rather from its nonuse or failure to operate at all. Both assignments are overruled.
“Was or was not the workmanship used in the construction of the engine involved in this controversy of the best class? In connection with this question and your answer thereto, you are charged that you will not consider any defects1, if any, in the design of the engine, or its parts, in so far as the design is distinguishable from the workmanship thereof.” Railway Co. v. Gober, 125 S. W. 383; Boardman v. Woodward, 118 S. W. 551; Railway Co. v. Matherly, 35 Tex. Civ. App. 604, 81 S. W. 589, affirmed 98 Tex. 625; Railway Co. v. Brown, 33 Tex. Civ. App. 269, 76 S. W. 794; Knowles v. Railway Co., 121 S. W. 232.
It must also be presumed that the jury both understood and followed this specific direction from the court, and did not consider that portion of Adams’ testimony relating alone to defects in design of any part of the engine. Ashcroft v. Pouns, 1 Tex. 594; M., K. & T. Ry. v. Craig, 52 Tex. Civ. App. 611, 114 S. W. 850; M., K. & T. Ry. v. Flood, 35 Tex. Civ. App. 197, 79 S. W. 1106, affirmed 98 Tex. 625; H. & T. C. Ry. v. Hester, 7 S. W. 776; Railway v. Harper, 53 Tex. Civ. App. 614, 114 S. W. 1168, affirmed 114 S. W. 1199; Patterson v. Frazer, 93 S. W. 146. Furthermore it was not practicable for the court in advance to determine what part of the testimony might relate to design and what part to material and workmanship only, in a complicated piece of machinery such as this engine was, for the reason that the line of demarcation between defects of the one or the other kind was necessarily narrow and not easily distinguishable.
The two cases cited by appellant go no further than such a holding. In the Bancroft Case, plans and specifications of the elevators, including the drums, were submitted, examined, and approved, and it was contracted that the same should be put in “as per plan and specifications submitted.” In the Case Plow Works Case, the purchaser “specified the sizes and dimensions and materials of the plan, and kind of wheel it desired, and its agents looked over and examined similar wheels, manufactured by the vendor, which had been tested in their presence, as to their quality and strength,” and the court said that “the plaintiff must be held to have obtained that for which it contracted.” A careful reading of the opinions shows that the court’s holding in each case was based upon the previous approval of the particular design. The third case cited (Wilson v. Avery Co., 182 S. W. 884), while not, we think, at all relevant here, simply holds that where the purchaser had himself tendered the issue that the engine was constructed on a wrong mechanical principle, and for that reason would not do the work and was valueless, he could not complain of the admission of evidence in rebuttal that the company’s other engines of like construction and plan would and did do the same work.
In this connection, without detailing the evidence, we deem it sufficient to say that, not only did much of the testimony of ap- *679 pellee Adams relate to defects in workmanship and material, as has aboye been found, but, aided as it was by other evidence, there was ample support for the jury’s findings that neither the workmanship nor the material in the engine were of the very best class as the contract had provided they should be, and that as a consequence appellees suffered damage in the amount so found for them; indeed, appellant’s own witnesses, including the president of the company that manufactured the engine, upon cross-examination admitted that a number of the alleged defects testified to by appellee Adams, such as the use of “stud bolts” instead of “loose bolts,” failure to cast the cam shaft boxes integral with the crank case or trunk,- the omission of bushings from the piston of the motor, and the employment of a Heinze instead of Remy magneto, were real defects, or at least did not embody the best workmanship, and that remedying them would constitute “beneficial improvements,” which could be effected without changing the design, or model of the engine. In fact, the last-mentioned witness, Mr. Kinnard, testified that all these changes had been made since the sale to appellees in 1911, and that his company was at the time of this trial manufacturing this same engine in its improved condition in the respects referred to, and upon the same model from which appellees’ was made.
Any issue as to defects in the design alone of the engine having been thus eliminated, and the verdict and judgment having been grounded upon other and material issues amply supported by admissible evidence, errors, if any, in admitting any of Adams’ testimony and in refusing the special charge requested were thereby cured, and no harm resulted to appellant. The three assignments presenting these questions are accordingly overruled. Railway Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S. W. 1111; Engledow v. James, 35 Tex. 81; Hancock v. Stacy, 103 Tex. 219, 125 S. W. 584; Simpson v. De Ramirez, 50 Tex. Civ. App. 25, 110 S. W. 149; 1 Michie’s Texas Digest, p. 798, 1st col., 3d par., also (e), and cases cited; Shifflet v. Morelle, 68 Tex. 382, 392, 4 S. W. 382; W. P. Oil Co. v. State, 48 Tex. Civ. App. 162, 106 S. W. 918; De Hoyes v. Gal., etc., R. Co., 52 Tex. Civ. App. 543, 115 S. W. 75-77; Brown v. Johnson, 73 S. W. 49.
“The court erred in refusing to allow appellees interest upon the amount of damages found in their favor by the jury, and the balance due thereon, from the date when the same were sustained, to wit, June 15, 1912, at the rate of 6 per cent, per annum.
“Proposition.
“Interest upon the amount of damages found is allowed by way of indemnification and full compensation for the injuries sustained, and as a part, and in the nature, of general damages, and the same will be allowed under a prayer for general relief, where the amount claimed in the pleadings is stated at a sufficient sum to cover the loss at the time of the claim, and the interest thereon from that date to the time of trial.”
- We are of opinion that this position is well taken and that the assignment must be sustained and interest allowed. The trial court’s finding upon this matter, as recited in its judgment, is:
_ “The court finds that the defendants are entitled, as a matter of right and equity, to interest upon the amount of damages found in their favor by the jury from the date when the same were sustained, to wit, June 15, 1912, at the rate of 6 per cent, per annum, the amount upon which the defendants would be entitled to receive interest, of course, being reduced by the amount of the principal and interest of the deferred payments of the purchase price of the engine, as each payment matured and became payable, if the pleadings of the defendants, in the opinion of the court, permitted a judgment for defendants for such interest, and the court would allow interest upon the damages found as a part of the compensation and indemnification to which the court finds the defendants are entitled, if their pleadings permitted such recovery; but, it being the opinion of the¡ court that the pleadings of the defendants will not permit this court to enter judgment in their favor for such interest, the same is denied, and for this reason the motion for the defendants heretofore filed, to enter judgment in their behalf for the sum of $863.23, with interest thereon from October 19, 1912, at the rate of 6 per cent, per annum until paid, is overruled, to which they except.”
This part of the judgment was error. Ap-pellees had sued for $2,909.58, and thus laid their damages at a sum far more than sufficient to cover their actual loss at the time of the accrual and interest upon it until the trial. Such being the state of the pleadings, they were entitled to recover interest, reduced in the manner just recited from the judgment below, under their general prayer, without the necessity of specifically praying for it. Magnolia, etc., Corp. v. Chaffee, 192 S. W. 562; Railway Co. v. Jackson, 62 Tex. 214, 4th par. et seq.; Railway Co. v. Greathouse, 82 Tex. 1ll, 17 S. W. 834, last paragraph; Railway Co. v. Addison, 96 Tex. 64, 3d par., 70 S. W. 200; W. U. Tel. Co. v. Garner, 83 S. W. 434; Erie City Iron Works v. Noble, 58 Tex. Civ. App. 245, 124 S. W. 174, 3d par.
The trial court’s judgment will therefore, be so reformed as to give appellee judgment for the sum of $863.23, with interest thereon from October 19, 1912, at the rate of 6 per cent, per annum until paid, instead of for $836.31, with interest thereon at the rate of 6 per cent, per annum from May 12, 1916, until paid, and as thus reformed, will be affirmed. „
Reformed and affirmed.
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