Joy v. National Exchange Bank

Court of Appeals of Texas

Joy v. National Exchange Bank

74 S.W. 325, 32 Tex. Civ. App. 398, 1903 Tex. App. LEXIS 280

CourtCourt of Appeals of Texas

DecidedMay 6, 1903

StatusPublished

Cited by9 cases

This text of 74 S.W. 325 (Joy v. National Exchange Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Joy v. National Exchange Bank, 74 S.W. 325, 32 Tex. Civ. App. 398, 1903 Tex. App. LEXIS 280 (Tex. Ct. App. 1903).

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Opinion

NEILL, Associate Justice.

—On November 7, 1901, the Southwestern Electrical Engineering and Construction Company sold the appellant, H. A. Joy, an electrical generator, for which appellant agreed to pay the company $500 cash. Afterwards the company assigned its account against Joy for the purchase money to the National Exchange Bank of Dallas, and guaranteed its payment. This suit was brought by the bank against the appellant on the account, and against the company on its guaranty.

The appellant answered that he bought the generator upon the company’s warranty that it was in good working order and equal to its rated capacity in generating electricity, sound and free from defects of labor and material, and a good first-class second-hand machine in good condition. That there was a breach of such warranty, in that the machine would not run and operate because the field coils were soaked with oil and the insulation decayed, etc.

The only issue in the case is: Was the machine sold upon the alleged warranty? The undisputed evidence shows that the generator was not manufactured by the seller, and that it was a second-hand machine. That appellant knew these facts, and that the generator was open to his inspection when he bought it. The rule is: “Where goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor manufacturer.” Mechem on Sales, sec. 1316. There was no fraud plead by appellant. Therefore there could be no implied warranty, and none is alleged.

The question of the express warranty plead was for the jury; and it having, upon a charge properly submitting the issue, found, upon evidence reasonably sufficient to sustain the verdict, in favor of the appellee—no assignment of error being well taken—we will affirm the judgment.

Affirmed.

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NEILL, Associate Justice.

—On November 7, 1901, the Southwestern Electrical Engineering and Construction Company sold the appellant, H. A. Joy, an electrical generator, for which appellant agreed to pay the company $500 cash. Afterwards the company assigned its account against Joy for the purchase money to the National Exchange Bank of Dallas, and guaranteed its payment. This suit was brought by the bank against the appellant on the account, and against the company on its guaranty.

The appellant answered that he bought the generator upon the company’s warranty that it was in good working order and equal to its rated capacity in generating electricity, sound and free from defects of labor and material, and a good first-class second-hand machine in good condition. That there was a breach of such warranty, in that the machine would not run and operate because the field coils were soaked with oil and the insulation decayed, etc.

The only issue in the case is: Was the machine sold upon the alleged warranty? The undisputed evidence shows that the generator was not manufactured by the seller, and that it was a second-hand machine. That appellant knew these facts, and that the generator was open to his inspection when he bought it. The rule is: “Where goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor manufacturer.” Mechem on Sales, sec. 1316. There was no fraud plead by appellant. Therefore there could be no implied warranty, and none is alleged.

The question of the express warranty plead was for the jury; and it having, upon a charge properly submitting the issue, found, upon evidence reasonably sufficient to sustain the verdict, in favor of the appellee—no assignment of error being well taken—we will affirm the judgment.

Affirmed.

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74 S.W. 325, 32 Tex. Civ. App. 398, 1903 Tex. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joy-v-national-exchange-bank-texapp-1903.

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