Handy v. Roberts , 1914 Tex. App. LEXIS 54 ( 1914 )

(after stating the facts as above). The first and second assignments predicate error by bill of exception upon the admission of certain evidence. The assignments should be overruled, we think, as affording no sufficient grounds for reversal of the judgment.

The third assignment predicates error upon the charge of the court in authorizing a verdict for appellants upon the finding by a jury of the failure on the part of appellee to use ordinary prudence to inspect and discover that the oats furnished were not Texas red rust proof oats.

It is insisted that it was the absolute duty of appellee to inspect the oats before sowing them. Appellee never saw the oats that were delivered, and was in bed sick when they were sowed the next day, and there is no pretense of any evidence otherwise going to show that he had occasion or opportunity to discover that the oats were not the kind he bought. Unless it should appear — and it does not here — that appellee had discovered the difference in the oats through occasion and opportunity to do so, he would not be precluded of his right to damages proximately caused by the alleged deceit. And under the facts here, there was no error in the instruction of which appellants could complain.

The fourth assignment is predicated upon the refusal to give a peremptory instruction in favor of appellants. It is quite clear from the evidence that appellee was intending to purchase of appellants, for planting purposes, only the particular variety and quality of seed oats called the Texas red rust proof oats. But the evidence is conflicting as to the terms of the sale. The evidence in behalf of appellee goes to show a sale of the specific variety and quality of oats as claimed by him. The evidence in behalf of appellants goes to show a sale only and specifically of an Arkansas oat, which was delivered strictly in accordance with the terms of sale. In view of the evidence, if the appellee, through Mr. Legate, made the proposal to appellants to purchase from them 50 bushels of Texas red rust proof seed oats, as was the exclusive province of a jury to say, and appellants, knowing the terms of the proposal, accepted such proposal, and agreed to sell and deliver that particular kind and variety of oats, then a contract in respect thereto is established by the evidence. Here in one view it would appear that the appellee agreed to buy a specific kind and variety of seed oats, and the appellants agreed, if true, on the sale and delivery of the specific article. Being a contract in regard to the sale and delivery of a specific article, as within the province of the jury to say, then knowingly to deliver a wholly different variety and kind of seed oats, if true, with the intention that it should be acted upon by appellee, and actually inducing him to act upon it as the particular kind and variety of oats actually bought, would operate to establish that which is in law termed "fraud." And for such fraudulent representation of fact, if so found by the jury, an action in the nature of deceit, as here, would lie. Floral Co. v. Watson, 160 S.W. 659. Whether the different variety of oats delivered was, in fact, of a character to deceive appellee became and was, under the facts here, a question for the jury. The facts go to show that he never saw the oats delivered, and was sick at the time, and by reason thereof his means of knowledge was not equal to that of appellants, and hence we could not say, as a matter of law, that he did not in this case have a right to rely upon the alleged false representation of fact. We think the case as made by the record was one that was legally required to be passed to the jury for decision.

The fifth and sixth assignments each predicate error upon refusal to give special charges respecting what it would take to constitute a warranty. The point made is that the jury should have been instructed to the effect that a sale of grain for seed designated as Texas red rust proof oats does not constitute a warranty that said oats are suitable for any particular use. The case, as pleaded and proven, does not involve warranty. Plaintiff's action is for tort, in the nature of deceit; and the court's charge to the jury was in accordance with the petition. A distinction is to be observed between warranties and other grounds of liability. In the case of a warranty the rights of the purchaser rest in contract, while in the case of fraud they are based on the tort.

Where the contract is for the sale of a designated article, and another is delivered, the failure to deliver the particular goods is not a breach of warranty, but a breach of the contract. Reed v. Randall, 29 N.Y. 358,86 Am.Dec. 305. Whereas in a sale of a particular article by description, and actually delivered, there is ordinarily an implied warranty that the article shall be of the kind described.

The effect of alleged acts of deceit is to be determined by their truth or falsity, and the damages recoverable are such as result proximately from the wrong as, within the contemplation of the parties, would result from the act. Jones v. George, 61 Tex. 345, 48 Am.Rep. 280. The assignments are overruled.

While the question of excessive damages is not raised by any assignment, yet we think there is fundamental error here in respect thereto. It appears from this record that appellee only owned two-thirds of the crop, and the charge authorized the jury to consider damages to all the crop. As said in Jones v. George, supra: "The owners of the other part of the crop, who, subsequent to its destruction, conveyed their interests therein, together with any right of action they might have against the appellee for his breach of contract, could not thereby clothe the appellants with a right of action they never had. With them the appellee had no contract, and it is well settled that, when a right or duty is created wholly by contract, it can only be enforced between the contracting parties or their privies." Being the owner of only two-thirds of the crop, and the jury having measured the value of the whole loss at $240, the appellee would be entitled to recover two-thirds of that amount, or $160.

Therefore the judgment is reformed so as to allow appellee a recovery against appellants for $160, and, as so reformed, the judgment will be affirmed; but the appellants, for this error, will recover of appellee all costs of appeal.