Southwestern, Portland Cement Co. v. O. D. Havard Co. , 1913 Tex. App. LEXIS 860 ( 1913 )

HIGGINS, J.

Appellee instituted this suit originally in the justice court, for the recovery of $152 alleged to be due as the purchase price of two coal meters sold and delivered to the appellant. The trial there resulted in a judgment in favor of appellee. The cause was appealed to the ‘county court, where it was tried before the court without the intervention of a jury, and judgment in appellee’s favor was rendered for like amount.

On April 15, 1910, appellant purchased four coal meters from the appellee, but after using same for a time they proved unsatisfactory and were returned to the appellee about October 24, 1910. Thereupon appellee wrote appellant, suggesting that they be permitted to rebuild one of the meters “and return it to you on thirty days’ trial for the same price as the original. If it is not satisfactory at the end of that time, you can return it at our expense. However, if it is, and you desite the other three, we will rebuild them under the same conditions.” In reply to this suggestion appellant advised they would be glad to have one of the meters rebuilt and returned and they would give it a fair trial, and in reply appellee advised that as soon as the returned meters reached them they would have same corrected and “return one to you immediately for thirty days’ trial.” The reconstructed meter was received by appellant on or about January 1, 1911, and on March 16th thereafter appellant advised the appellee that the meter seemed to be working very good and looked as though it would be a success; that it would be a great help if they had another meter, wherefore they requested that they send another one “to operate with this one on trial.” The second meter was shipped and received by appellant about April 1, 1911. On September 21, 1911, appellant returned the meters, claiming that they were worthless for the purpose for which they were intended.

[1] In his findings of fact and conclusions of law the trial court found that the appellant gave the meters a fair trial and did not retain them an unreasonable length of time for such purpose; that after giving them a fair and full test the meters failed to measure -coal with sufficient accuracy to be of any value, and were worthless for the purpose for which they were intended. But that with respect to the right of the appellant to return the meters after a trial, the time of trial was limited to 30 days, and as respects this limitation, time was of the essence of the contract, and by delay appellant had lost its right to return the meters and was therefore liable for the purchase price.

We concur in the conclusion of the trial court that time was of, the essence of the contract as respects the right of appellant to return the meters, and having retained and used the same beyond the time specified in the contract, and granted, within which to test the same, the right to return was lost and appellant became liable for the purchase price.

[2] But it is insisted that, if this be a correct interpretation of the contract, the evidence discloses a waiver by appellee of this limitation. It is unnecessary for us to examine the evidence to ascertain whether or not this contention is well founded. If there was a waiver it would not be available without having been pleaded, since it would be in avoidance of the time limitation pleaded By appellee. In the absence of a plea of waiver, evidence thereof, however introduced, is not available as a' defense. Ginners, etc., v. Wiley & House, 147 S. W. 629, and cases there -cited.

Affirmed.