C. A. Bryant Co. v. Hamlin Independent School Dist. , 1929 Tex. App. LEXIS 702 ( 1929 )

HICKMAN, C. J.

This is the second appeal of this case. The opinion on the former appeal will be. found reported in 274 S. W. 266. After the case reached this court on the second appeal, we certified certain questions involved to the Supreme Court. The opinion of the,Supreme Court answering certified questions is reported in 14 S.W.(2d) 53. The certificate is set out in full in that opinion, and no further statement of the nature of the case is required than that contained theréin. Under the answers to the certified questions the case must be remanded for another trial. As we construe the opinion of the Supreme Court, parol evidence will be admissible on the next trial to explain the ambiguous portion of the written contract. In that opinion the question of the sufficiency of the pleadings to permit of the introduction of oral testimony to explain the ambiguous language was not discussed. That question was not before that court. It is our opinion that, if appellee desires to introduce oral testimony explaining the written contract, it will be necessary to plead the ambiguity. San Antonio Machine & Supply Co. v. Allen (Tex. Civ. App.) 268 S. W. 532; Curry v. Texas Co. (Tex. Civ. App.) 8 S.W.(2d) 206.

In view of another trial, we think it proper to make the further observation that the pleadings, as we construe them, declare upon a breach of the warranty contained in the letter, and also upon a breach of the obligation to furnish a competent man to install the toilet system. It would seem from the opinion of the Supreme Court that it did not devolve upon appellee to allege and prove that the installation man was incompetent, but that a case is made upon proof of the fact that, without appellee’s fault, the system, when installed, was not odorless, sanitary, and satisfactory. If, however, appellee, upon another trial, sees fit to allege and rely upon a breach of the contract in the particular that appellant failed to furnish a competent installation man, then such issue should be submitted to tbe jury, if supported by evidence. A suit for damages for breach of a contract to furnish a competent man presents different questions of fact and law to a suit for breach of warranty that the system, when installed, would be odorless, sanitary, and satisfactory.

Since the case must be retried, it is unnecessary for us to pass upon the propositions urged in appellant’s brief, challenging the sufficiency of the evidence to sustain the verdict.

The judgment of the trial court is reversed, and the cause remanded.