Buck v. Reed (381 S.W.2d 490, 1964)

HUGHES, Justice.

Our previous judgment reversing and remanding this case to the Trial Court has been reversed by the Supreme Court and the case remanded to this Court for a determination of appellant’s points Nos. 4, 6, 8, 10, 12, 14, 16 and 18. 370 S.W.2d 867. Reference is made to the opinion of the Supreme Court for a complete statement of the nature of this suit. It is sufficient at this point to say that H. M. Reed, appellee, sued T. W. Buck, Jr., appellant, on a promissory note for $9300.00 dated August 31, 1953, payable to J. H. (Dude) Stelfox, executed by appellant and Glen Malcolm Shine. The note was given in payment for one HD-14 Allis Chalmers Tractor with Bulldozer Blade and Power Unit Serial No. 1669, belonging to appellee. Stelfox was the agent of appellee in making sale of the tractor and equipment and he assigned the note in suit to him without receiving any consideration from appellee.

Trial to the Court without a jury resulted in judgment for appellee for $15,370.03, with 10% interest thereon until paid.

The points of error which we are to determine, enumerated above, are that the following findings of fact made by the Trial Court so contrary to the overwhelming weight and preponderance of the credible evidence as to be clearly wrong and unjust:

“10. J. H. (Dude) Stelfox did not on June 13, 1953, or at any other time represent to Glen Malcolm Shine or T. W. Buck, Jr., that the bulldozer described in Paragraph 3 above was manufactured in 1948 or any other year.

"11. J. H. (Dude) Stelfox did not on June 13, 1953, or at any other time represent to Glen Malcolm Shine or T. W. Buck, Jr., that the bulldozer described in Paragraph 3 above was in as good as brand new condition.

“12. J. H. (Dude) Stelfox did not on June 13, 1953, or at any other time represent to Glen Malcolm Shine or T. W. Buck, Jr., that the bulldozer described in Paragraph 3 above was in efficient operating condition.

“14. Neither Glen Malcolm Shine nor T. W. Buck, Jr., relied on the statements made by J. H. (Dude) Stelfox set forth in Paragraph 12 or on any other statements made by Stelfox but they relied entirely on their own knowledge, observation and testing of said bulldozer in purchasing it.

“20. The consideration for the note described in Paragraph 1 above was the settlement, compromise and satisfaction of all claims, demands and disputes concerning the condition of the bulldozer described in Paragraph 3 above.

“21. J. H. (Dude) Stelfox did not, in connection with the settlement described in Paragraph 19 above, make any statements or representations con- cerning the condition of the bulldozer described in Paragraph 3 above.

“22. Neither Glen Malcolm Shine nor T. W. Buck, Jr., relied on any statements or representations of J. H. (Dude) Stelfox made on or about August 31, 1953, concerning the condition of said bulldozer or concerning any other matters involved in the sale of said bulldozer or the cancellation of the first note and execution of the second note.

“23. Prior to August 31, 1953, Glen Malcolm Shine had full opportunity to test, operate and inspect said bulldozer and had so tested, operated and inspected said bulldozer fully and on said date he was fully informed as to its mechanical condition and knew more about its condition than did J. H. (Dude) Stelfox.

We will review all of the evidence bearing on these findings.

Mr. Shine, who lived in Houstbn, had served in the Sea Bees in the Pacific area during World War II with appellant. In May 1953, Shine and his family came to Austin to visit appellant, who was a life long resident of Austin, and his family. The visit was purely social. A week later Shine returned to Austin and told appellant that he could get suitable work around Madisonville if he had a bulldozer tractor and that he had seen one in Austin, describing its location. Appellant, who was acquainted with and had worked for Stel-fox, recognized the location as belonging to Stelfox. Appellant ascertained that the tractor was for sale and so informed Shine by letter, Shine, having returned home. He returned to Austin about June 13, 1953.

Appellant, who merely lent his name to Shine testified:

“Q Were any representations made to you at the time of the original sale about the condition of the tractor by Stelfox or anybody else ? / >

“A Naturally it was made that; the tractor was in A-l condition,- and as Mr. Stelfox stated in his testimony, it was the same as new

“Q Mr. Stelfox made the representation * * * •'

“A That is correct.

“Q Did he mention the year in which it was manufactured or sold?-

“A It was my impression it was supposed to be a ’47 or ’48 motor, and * * *

“Q You are sure * * *

“A I am positive of that.”

Shine testified:

“Q When you all went over to Mr. Stelfox, you say he introduced you. Then what conversation did you have with Stelfox?

“A Well, I just talked to him about the machine. I asked him what model it was.

“Q ,,What did lip tell you?

“A' He told me it was a 1948 Allis- • Chalmers HD-14.

‘•‘Q What other conversation did you have with him? - . .

“A He immediately’told me about the repairs he had done tp the machine. He said he spent some- ■ where bétwéefl four to five thousand dollars ’oh it "in repairs! He had a new pngih’e in it and new -' - rollers, new track, new track bolts, ' and riumerous other1 olfds and ends '■ that you do to'1'a machine' where '-you' put itrin condition for resale. ■ : ■ :> ft,!. •' ’ . ■;

. “Q .Did he. make1 any statement as to its condition? i"',-:-1 ; M. _ ■ ■

_ “A He stated that it was; actually in ¡as good.condition as a brand-new. v’. machine, as far as — working condition. .* *

“Q What influenced1 you as to this particular machine? -I understood’ ' -■ you to say that in'passing by. there ■_ and looking at it, it was all paint-v - ed, and looked likev-new.v-

“A Right.

“Q What was it that influenced you in this particular machine? .

“A - This particular - machine;-■ what - caused.me, to be interested was the fact that it had been supposed to be reconditioned and all this work ' done on it. He explained the numerous things that had been done to the machine ■ and I honestly thought th^-t I could; take the ma- - chine and put it to work. I was not particularly interested in purchasing the machine. I mean to : - say, he was • as interested in me taking the machine, it seemed like, as I was in obtaining it. I looked . no other place for a machine, and actually did not care whether I had the machine or not I did have the work for it, and I was not engaged at the time, and I thought, ‘Well, it would be a working situation for both of us. I will take the machine over there-; and be responsible for it and attempt to work it.’ . .

“Q When he explained to .you'that: this was a ’48 model tractor, did you have any reason, to-'disbelieve. ; that? . -. • . - •;

“A No, sir.'

“Q Did you believe his statement and rely on it?

“A Yes, sir..

“Q ’ When he told you that he had . spent between $4,000 and $5,000' in reconditioning it to- make it as good as brand-new, did you believe that?

“A . Yes, sir.' ‘

“Q Did you rely on that?

“A Yes, sir, sure did.

“Q Did he tell you whether or-not. this-, machine, because of its recent manufacturing timé arid reconditioning, would or would-not do the - • job that you told him that you • - ■ could get over there to usé that machine^on? ■'> .

“A He assured me that it would. -I / explained to him what I was go- - ing to use it -for, and he assured-, me the machine would do it.

“Q On the basis of those statements and your reliance on .them, did you . then agree to buy the machine ?

“A Yes, sir, I agreed. - •

“Q And on what price?

“A We agreed on $10,000.

“Q Was there any cash down payment on that at all ?

“A No, sir. * * *

“Q Now, were you acquainted with the different year models of Allis-Chalmers tractors or any other caterpillar tractors?

“A I was acquainted with the fact that there are several different year models. For several years in a row they may build a machine that the layman’s eye could not distinguish the difference between a ’48 and whatever year it was manufactured in.

“Q Were you familiar enough with the machine that you could tell by looking at it whether or not it was manufactured in 1941, ’42, ’48, or’46?

“A No, sir.

“Q There was no outward appearance that would indicate to you what the year model of the machine was; is that correct?

“A That is correct.”

Shine commenced working with the tractor about the middle of July 1963. He did some “light” jobs with the tractor such as clearing brush, cleaning dirt tanks and digging shallow tanks. About the 10th of August, 1953, the clutch on the tractor went out, concerning which Mr. Shine testified:

“Q Just describe to the Court what resulted from the clutch going out on it; describe what you mean by the steering clutch going out and the condition it was in then.

“A The steering clutch, you have a right and a left steering clutch. That is the way you steer the tractor instead of having a steering wheel. So if the right-hand clutch went out, you could not steer the tractor. You could move the tractor, but you could not steer it, and consequently I tore into it. I had a working knowledge of mechanics, and I thought I was competent and that I could make repairs on it, so I tore into it and found out what the trouble ' was.

“Q What do you mean by tearing into it?

“A I disassembled it.

“Q You disassembled it?

“A I disassembled it; I tore it down.

“Q Did you examine it?

“A’ Yes, sir.

“Q What sort of damage did you find that- resulted and what did you determine had caused it?

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