Manes v. J. I. Case Threshing MacH. Co. , 1922 Tex. App. LEXIS 929 ( 1922 )

JENKINS, J.

We misconceived the scope of appellee’s answer herein, for which reason our former opinion is withdrawn, and this opinion is substituted in lieu thereof. * Appellant brought this suit to rescind a contract, made by him with appellee for the purchase of an automobile, and to recover the purchase money which he had paid for same, and to cancel an unpaid purchase-money note, which he executed to appellee. He alleged as grounds for such rescission that he was induced to purchase the automobile by certain false and fraudulent representations, made to him by Joe Evans, ap-pellee’s sale agent, with whom the contract of purchase was made. The nature of such representations appears from the special issues submitted to the jury and the findings thereon, as hereinafter set out. He alleged that he had redelivered the automobile to ap-pellee’s agent, who still had possession of same; but, if the facts in reference thereto did not constitute a redelivery, he tendered the automobile, then in possession of appel-lee’s agent, to appellee.

Appellant alleged, in the alternative, that appellee executed a written warranty as .to the workmanship and material in said automobile, and that the same had failed in numerous particulars, specifying the same, and prayed, in the alternative, for damages for breach of such warranty. He alleged that by reason of such defects in material and workmanship the automobile was worthless for the purposes for which- it was sold.

Appellee answered by general demurrer, special exceptions, general and special denial, and specially pleaded that the automobile was sold under a written contract of warranty, wherein its liability was limited to defects in workmanship and material developing within 90 days; and that no notice of such defects had been given appellee within that time.

Thirty-nine special issues were submitted to the jury. Opr view of this case renders it necessary that we should consider only the following of such findings:

“Question No. 2. Did Joe Evans in the sale of the automobile to the plaintiff, O. B. Manes, represent to said O. B. Manes that the engine of the car would develop from 40 to 50 horse power?” Answer: “Yes.”

“Question No. 3. Did the engine of said automobile at said time develop from 40 to 50 horse power? '"If you find on this issue, you will answer, ‘yes’ or ‘no.’” Answer: “No.”

“Question No. 4. Did Joe Evans in the sale of the automobile to plaintiff O. B. Manes represent to the said O. B. Manes, that said car would go up the brickyard hill located in Coleman, Tex., on high gear at the speed of 8 to 10 miles per hour? If you answer this issue you will answer ‘yes’ or ‘no:.’ ” Answer; “Yes.”

“Question No. 5. Would said car go up said brickyard hill on high gear at the rate of 8 to 10 miles per hour? If you find on this issue, you will answer ‘yes’ or ‘no.’ ” Answer: “No.”

“Question No. ,6. Did Joe Evans in the sale of the automobile to plaintiff, O. B. Manes, represent to said O. B. Manes that said ear would run from 15 to 18 miles on one gallon of gasoline? If you find on this issue, you will answer same ‘yes’ or ‘no.’ ” Answer: “Yes.”

“Question No. 7. Would said car run from 15 to 18 miles on pne. gallon of gasoline at the time same was delivered to O. B. Manes at Coleman, Tex.? If you find on this issue, you will answer same ‘yes’ or ‘no.’ ” Answer: “No.”

“Question No. 8. Did O. B. Manes believe said representations, if any, as made to be true? If you find on this issue, you will answer same ‘yes’ or ‘no.’ ” Answer: “Yes.”

“Question No. 9. Was the said O. B. Manes induced by said representations, if any made to him, to purchase said car? If you find on this issue you will answer same ‘yes’ or ‘no.’ ” Answer: “Yes.”

“Question No. 10. Was the secondhand automobile delivered by O. B. Manes to Joe Evans delivered to him at any agreed price of $600? If you find on this issue, you will answer same ‘yes’ or ‘no.’” Answer: “Yes.”

Appellee did not file a cross-assignment of error that these findings were not supported by the evidence.

The answers of the jury to the issues relating to appellant’s right to recover on the warranty will not be considered, for reasons herein stated.

[1] The answers of the jury to the special issues above set out are sustained by the evidence, and are sufficient, under apiiel-lant’s allegations, to entitle him to judgment as prayed for, unless he has waived his right to rescind the contract. Appellant, upon return of the verdict, moved the court to enter judgment in his favor, which motion was by the court overruled.

[2] Appellee contends that appellant has waived such right, by reason of the undisputed evidence that he kept and used the car from about the 5th of April, 1915, to about January 5, 1916, before tendering the same to appellee.

Had waiver been pleaded, the following special issue and the answer thereto might require consideration at our hands:

“Question No. 11. Did O. B. Manes hold and use said car in ignorance of the nature of the defects, if any, existing in the car? If you find on this issue, you will answer ‘yes’ or ‘no.’ ’’ Answer: “Xes.”

But as we construe appellee’s answer, it did not plead waiver.

In connection with its defense that appellant’s right to recover damages was limited to 90 days from the delivery of the car, ap-pellee alleges that appellant had kept, used, and abused the same for a period of about 9 months, without any complaint to it as to such alleged defects; for which reason it would not be right for appellant to rescind the contract and throw the car back on ap-pellee. These allegations were in separate clauses of the answer, wherein the limitation of appellee’s liability was alleged to be distinctly limited by the warranty clause of the contract.

[3, 4] Appellee, in a separate clause of its defense, referred to appellant’s plea as to rescission, but confined itself to a denial of the facts therein alleged. There is apparently no attempt by appellee to plead waiver as against appellant’s alleged right to re"scind. The word “waived” is not found in the answer. There is no allegation that appellant did not offer to return the car within a reasonable time, and no facts are alleged which, as a matter of law, would show that appellant had waived his right to rescind the contract. One essential fact necessary to constitute such waiver is that the purchaser discovered the facts constituting the fraud, and did not offer to return the article and rescind the contract within a reasonable time after the discovery of the fraud; or that he kept the article for such a length of time after such discovery as would necessarily imply that the same was unreasonable. Knowledge of the facts which constitute the fraud is a necessary element of waiver.

“A waiver exists only where one with full knowledge of a material fact does or forbears to do something inconsistent with the existence of the right or of his intention to rely upon that ■right. Knowledge of the existence of the right, benefit, or advantage on the part of the party claimed to have made the waiver is an essential prerequisite to its relinquishment. No one can be said to have waived that which he does not know; or where he has acted under a misapprehension of facts. Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both of which he might claim.” 40 Cyc. 259, subd. 3.

[5] No exception was taken to a plea of waiver in the instant case, for the reason, as appellant contends, that there was no such plea. The sufficiency of a pleading by either the plaintiff or the defendant, which omits facts essential to a recovery or a defense, does not depend upon the same being excepted to. Tel. Co. v. Harris, 105 Tex. 320, 148 S. W. 284; Smith v. Nesbitt (Tex. Civ. App.) 235 S. W. 1107.

[6J Nor does the proof of a fact necessary to be proven as a basis of a judgment cure the failure to allege such fact. Evidence as to a fact not alleged can form no proper basis of a judgment. Cole v. Crawford, 69 Tex. 126, 5 S. W. 646; Bank v. Freeman, 107 Tex. 523, 181 S. W. 187; Cooper v. Loughlin, 75 Tex. 524, 13 S. W. 37; Moody v. Rowland, 100 Tex. 371, 99 S. W. 1115; Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979; Maddox v. Clark, 107 Tex. 212, 175 S. W. 1053; Davis v. Davis, 51 Tex. Civ. App. 491, 112 S. W. 948; McDonald v. Lastinger (Tex. Civ. App.) 214 S. W. 832; Fisher v. Russell (Tex. Civ. App.) 204 S. W. 145.

Knowledge of the fraud being essential to a plea of waiver, and the same not having been alleged by appellee, it is immaterial whether or not the statement of facts, or the findings of the jury, show such facts as are sufficient to have sustained a plea of waiver, and would have justified the court in entering judgment for- the appellee.

For the reason that the trial court erred in overruling appellant’s motion for judgment, the appellant’s motion for a rehearing is granted, and judgment is here now rendered setting aside the judgment of the court; and judgment is rendered for appellant, rescinding the contract for the purchase of the automobile, and for the recovery of the amount of the purchase money paid therefor, with interest from the dates of such payments, and for the cancellation of the purchase-money note as prayed for, and for all costs in the court below as well as the costs of this appeal.

Motion granted. Reversed and rendered for appellant.

<S=oPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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