SHARPE, Justice.
This suit was brought by appellant, a corporation, to recover the purchase price of a cotton picking machine sold by it to appellee under a written contract.
The trial court rendered judgment that appellant take nothing, based 'upon a jury verdict consisting of answers to two special issues. Special issue number one found that the machine in question was not a new machine at the time of its delivery to appellee. Special issue number two found that the machine was not wholly worthless for the purpose of picking cotton.
Appellant asserts four points of error. Point one urges that appellant was entitled to judgment non obstante veredicto for the purchase price of said cotton picking machine based upon facts shown by undisputed evidence and the answer of the jury to special issue number two. Appellant’s points two, three and four are directed to the answer of the jury to special issue number one. Point two asserts that said answer is without support in the evidence. Point three asserts that such answer is so against the great weight and preponderance of the evidence as to be manifestly wrong. Point four asserts that the evidence is insufficient to support such finding.
We have concluded that appellant’s points one and four should be sustained. The facts conclusively proved and the finding of the jury on special issue number two entitles appellant to judgment for the purchase price of said cotton picking machine in the absence of any defense established by appellee which would authorize rescission or damages as an offset to the said purchase price. The answer of the jury to special issue number one is immaterial to the defense relied upon by appellee in this case,- and, in any event, the evidence is insufficient to support the same.
Appellee’s defense in this case is limited to alleged failure of consideration giving rise to rescission of the contract. He does-not claim fraud, accident or mistake; nor does he claim damages for breach of warranty as an offset to reduce the amount owing on the purchase price. Appellee particularly urges that there was a failure of consideration because he received something other and different from what he ordered in that the cotton picking machine was .not “new”, since the evidence established that it was manufactured in the month of June, 1961, some fourteen months prior to its delivery to him.
Appellee’s evidence shows that on August 3, 1962, he advised an agent of appellant by telephone that he desired to purchase a new Model 420 International Harvester Diesel, two-row, low-drum Cotton Picker. Appellant’s agent advised ap-pellee that it did not have a machine on hand meeting such description and that some three or four weeks would be required to obtain one from the factory; that appellant could probably get a high-drum picker of such model if appellee was willing to accept the same. Shortly thereafter, appellant advised appellee that a high-drum picker had been located in the Rio Grande Valley and appellee agreed to-buy it. Appellee also instructed appellant to install compression sheets thereon. The machine was delivered to appellee and demonstrated to him. on August 11, 1962,. prior to the time he signed the contract for same and a separate delivery report showing that he had received the machine,, which was described therein by model number and serial number, in satisfactory condition. Appellee requested and was granted an extension of time in which to pay for the machine on the ground that he-had not consummated the sale of cotton-which he had on hand and was trying to-sell at a higher price. Appellee reiterated' his promise to pay on several occasions.. After several days, the machine started'. [857]*857■causing difficulty and appellee then requested that a representative of the manufacturer visit him so that the machine •could be repaired and the warranty thereon extended. About fifty bales of cotton were picked with the machine until about August 26, 1962, after which the machine "was not used again. In September, 1962, •at appellee’s request, appellant took the machine to its place of business for repairs. Appellee testified that about the middle of October, 1962, he checked the serial number on the machine, thought it was old, •and then advised his foreman to tell appellant he didn’t want any part of it.
Appellee does not contend that he specifically ordered a 1962 model machine or one manufactured in the year 1962. While on the witness stand in this case, ap-pellee testified, in substance, that the year 1962 was not mentioned to the agent of •appellant when the machine was ordered •or thereafter, until he had accepted and used the same.
It is well settled in Texas that in the absence of fraud or an agreement allowing the property to be returned to the seller, rescission for breach of warranty can be availed of by the purchaser only where the identity of the article is involved and it proves to be something other than that which was purchased or if such article is wholly worthless for the purpose for which it was sold. Wright v. Davenport, 44 Tex. 164, 167 (1875);1 Dillard v. Clutter, 145 S.W.2d 632 (Tex.Civ.App., 1940, writ ref.); Bedner v. Dunigan Tool & Supply Company, 142 Tex. 663, 180 S.W. 2d 919 (1944) ; 77 C.J.S. Sales § 100, pages 796-797; 37A Tex.Jur., Sales § 352, page 731.
In this case appellee does not rely upon fraud or an agreement to return the property involved in the sale and the jury has found that the machine in question was not wholly worthless for the purpose of picking cotton. The evidence does not establish or raise an issue that appellee received something different from what he ordered by description, but, on the other hand, conclusively shows that the specific item of personal property described in the written contract and delivery report was demonstrated to and delivered to appellee prior to the time he executed the said instruments. Since it is established that a specifically identified article of personal property was appropriated to the contract by the parties and that appellee accepted same, the title to said machine passed to appellee and the contract became executed. Farmers’ Rice Milling Co. v. Standard Rice Co., 276 S.W. 904, 905 (Tex.Comm.App., 1925); Hill v. Childers, 268 S.W.2d 203, 205 (Tex.Civ.App., 1954, writ ref. n. r. e.). The requirement that the machine be new, whatever it was before, then became, at most, a warranty which guaranteed that the machine which had been appropriated to the contract by the parties possessed the quality of newness. El Paso & S. W. R. Co. v. Eichel & Weikel, 130 S.W. 922, 936 (Tex.Civ.App., 1910, writ ref.); Eastern Seed Co. v. Pyle, 191 S.W.2d 708 (Tex.Civ.App., 1945), affirmed 145 Tex. 385, 198 S.W.2d 562 (1946); 13 Tex.Jur.2d, Con[858]*858tracts, § 160, page 347, wherein it is stated:
“After the goods have been accepted, the buyer may then treat any breach of ‘condition’ concerning the quality of the goods as a breach of warranty only; he may not reject the goods and consider the contract repudiated.”
In this case, the appellee plead failure of consideration as an affirmative defense to the seller’s cause of action based upon a written contract, as is required by Rule 94, Texas Rules of Civil Procedure.
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SHARPE, Justice.
This suit was brought by appellant, a corporation, to recover the purchase price of a cotton picking machine sold by it to appellee under a written contract.
The trial court rendered judgment that appellant take nothing, based 'upon a jury verdict consisting of answers to two special issues. Special issue number one found that the machine in question was not a new machine at the time of its delivery to appellee. Special issue number two found that the machine was not wholly worthless for the purpose of picking cotton.
Appellant asserts four points of error. Point one urges that appellant was entitled to judgment non obstante veredicto for the purchase price of said cotton picking machine based upon facts shown by undisputed evidence and the answer of the jury to special issue number two. Appellant’s points two, three and four are directed to the answer of the jury to special issue number one. Point two asserts that said answer is without support in the evidence. Point three asserts that such answer is so against the great weight and preponderance of the evidence as to be manifestly wrong. Point four asserts that the evidence is insufficient to support such finding.
We have concluded that appellant’s points one and four should be sustained. The facts conclusively proved and the finding of the jury on special issue number two entitles appellant to judgment for the purchase price of said cotton picking machine in the absence of any defense established by appellee which would authorize rescission or damages as an offset to the said purchase price. The answer of the jury to special issue number one is immaterial to the defense relied upon by appellee in this case,- and, in any event, the evidence is insufficient to support the same.
Appellee’s defense in this case is limited to alleged failure of consideration giving rise to rescission of the contract. He does-not claim fraud, accident or mistake; nor does he claim damages for breach of warranty as an offset to reduce the amount owing on the purchase price. Appellee particularly urges that there was a failure of consideration because he received something other and different from what he ordered in that the cotton picking machine was .not “new”, since the evidence established that it was manufactured in the month of June, 1961, some fourteen months prior to its delivery to him.
Appellee’s evidence shows that on August 3, 1962, he advised an agent of appellant by telephone that he desired to purchase a new Model 420 International Harvester Diesel, two-row, low-drum Cotton Picker. Appellant’s agent advised ap-pellee that it did not have a machine on hand meeting such description and that some three or four weeks would be required to obtain one from the factory; that appellant could probably get a high-drum picker of such model if appellee was willing to accept the same. Shortly thereafter, appellant advised appellee that a high-drum picker had been located in the Rio Grande Valley and appellee agreed to-buy it. Appellee also instructed appellant to install compression sheets thereon. The machine was delivered to appellee and demonstrated to him. on August 11, 1962,. prior to the time he signed the contract for same and a separate delivery report showing that he had received the machine,, which was described therein by model number and serial number, in satisfactory condition. Appellee requested and was granted an extension of time in which to pay for the machine on the ground that he-had not consummated the sale of cotton-which he had on hand and was trying to-sell at a higher price. Appellee reiterated' his promise to pay on several occasions.. After several days, the machine started'. [857]*857■causing difficulty and appellee then requested that a representative of the manufacturer visit him so that the machine •could be repaired and the warranty thereon extended. About fifty bales of cotton were picked with the machine until about August 26, 1962, after which the machine "was not used again. In September, 1962, •at appellee’s request, appellant took the machine to its place of business for repairs. Appellee testified that about the middle of October, 1962, he checked the serial number on the machine, thought it was old, •and then advised his foreman to tell appellant he didn’t want any part of it.
Appellee does not contend that he specifically ordered a 1962 model machine or one manufactured in the year 1962. While on the witness stand in this case, ap-pellee testified, in substance, that the year 1962 was not mentioned to the agent of •appellant when the machine was ordered •or thereafter, until he had accepted and used the same.
It is well settled in Texas that in the absence of fraud or an agreement allowing the property to be returned to the seller, rescission for breach of warranty can be availed of by the purchaser only where the identity of the article is involved and it proves to be something other than that which was purchased or if such article is wholly worthless for the purpose for which it was sold. Wright v. Davenport, 44 Tex. 164, 167 (1875);1 Dillard v. Clutter, 145 S.W.2d 632 (Tex.Civ.App., 1940, writ ref.); Bedner v. Dunigan Tool & Supply Company, 142 Tex. 663, 180 S.W. 2d 919 (1944) ; 77 C.J.S. Sales § 100, pages 796-797; 37A Tex.Jur., Sales § 352, page 731.
In this case appellee does not rely upon fraud or an agreement to return the property involved in the sale and the jury has found that the machine in question was not wholly worthless for the purpose of picking cotton. The evidence does not establish or raise an issue that appellee received something different from what he ordered by description, but, on the other hand, conclusively shows that the specific item of personal property described in the written contract and delivery report was demonstrated to and delivered to appellee prior to the time he executed the said instruments. Since it is established that a specifically identified article of personal property was appropriated to the contract by the parties and that appellee accepted same, the title to said machine passed to appellee and the contract became executed. Farmers’ Rice Milling Co. v. Standard Rice Co., 276 S.W. 904, 905 (Tex.Comm.App., 1925); Hill v. Childers, 268 S.W.2d 203, 205 (Tex.Civ.App., 1954, writ ref. n. r. e.). The requirement that the machine be new, whatever it was before, then became, at most, a warranty which guaranteed that the machine which had been appropriated to the contract by the parties possessed the quality of newness. El Paso & S. W. R. Co. v. Eichel & Weikel, 130 S.W. 922, 936 (Tex.Civ.App., 1910, writ ref.); Eastern Seed Co. v. Pyle, 191 S.W.2d 708 (Tex.Civ.App., 1945), affirmed 145 Tex. 385, 198 S.W.2d 562 (1946); 13 Tex.Jur.2d, Con[858]*858tracts, § 160, page 347, wherein it is stated:
“After the goods have been accepted, the buyer may then treat any breach of ‘condition’ concerning the quality of the goods as a breach of warranty only; he may not reject the goods and consider the contract repudiated.”
In this case, the appellee plead failure of consideration as an affirmative defense to the seller’s cause of action based upon a written contract, as is required by Rule 94, Texas Rules of Civil Procedure. However, appellee failed to establish either a total failure of consideration or the extent of a partial one, and he did not claim an offset for damages on account of breach of warranty. Under such circumstances, the seller was entitled to recover the entire purchase price because no defense was made out. 51 Tex.Jur.2d, Sales, § 357, pages 99-100; J. B. Colt Co. v. Reeves, 266 S.W. 564 (Tex.Civ.App., 1924, no writ history); Jameson v. Consolidated Oil Co., 284 S.W. 309 (Tex.Civ.App., 1926, no writ history); Allison Ranch Co. v. Angelo Auto Electric, 145 S.W.2d 645 (Tex.Civ. App., 1940, writ dism., w. o. j.)
It thus appears that even if supported by evidence the finding of the jury on special issue number one would avail appellee only if he had relied upon the same in connection with a claim for damages on account of breach of warranty, which he did not do. Such finding was, therefore, immaterial to the defense relied upon by appellee and the trial court should have disregarded the answer in connection with rendition of judgment.
Appellee failed to establish any defense which would authorize rescission of the contract in question and appellant’s motion for judgment non obstante veredicto should have been granted. Appellant’s point number one is sustained.
There is an additional reason why the finding on special issue number one should have been disregarded. It not only was immaterial in connection with rendir tion of judgment under the state of the record herein, but the evidence was not sufficient to support the jury answer to same.
The trial court in this case defined the term “new machine” as “a machine in condition as when first manufactured, not worn or defaced by use in any degree.” This definition is from the case of Maxwell v. Bastrop Manufacturing Co., 77 Tex. 233, 14 S.W. 35 (1890) where the court was considering the words “new and efficient” as applied to machinery, contained in an act of the legislature, and wherein the court said in part that “Many illustrations of the use of the word ‘new’ readily suggest themselves.” In the case of Mills County v. Brown County, 87 Tex. 475, 29 S.W. 650 (1895), our Supreme Court has also held that the word “new” is a relative term, and, in discussing the subject said:
“ * * * As was suggested in the argument, ‘new’ is a relative term. We have a striking illustration of this fact in the case of the Holy Scriptures. The canonical books which appeared upon the advent of the Christian era, though now nearly 20 centuries old, are known in group as the ‘New Testament,’ in contradistinction to the former canonical books, which are known together as the ‘Old Testament.’ ”
The definition of “new machine” submitted to the jury in this case was not objected to and may be considered to be correct for the purpose of this case. However, the word “new” may have different meanings, depending upon various factors such as the nature and character of the article involved and the context of the fact situation under consideration. The cases hereinbefore cited are illustrative of this statement along with others which will be briefly noted.
[859]*859In the case of Baum v. Segal (DC N.J., 1950) 89 F.Supp. 716, the purchaser sued for damages because certain inner tubes ordered by him were not new but were patched or reconditioned. The court found that in the tire and tube business when inner tubes are ordered the buyer normally specified firsts or seconds, which was not done in that instance. Although the testimony showed that the major portion of the tubes delivered to the purchaser had the factory brand erased and some had been patched to cover factory defects, the court, nevertheless, held that the purchaser got new tubes which he had contracted for but not first line and quality.
In the case of Ajax Petroleum Products Company v. Blake, 126 N.E.2d 926 (Court of Appeals of Ohio, 1953) the court considered the meaning of the word “new” in connection with a piece of road building equipment which had been manufactured some four years prior to its sale. The purchaser brought suit for breach of express warranty and damages resulting therefrom on the ground that the machinery was in fact not “new”. The defendant-seller, testified that he had engaged in the road equipment business for many years and in such business the term “new” is used to designate that the equipment involved has not been previously used. The trial court adopted this test and rejected the opinion testimony of the president of the corporation-purchaser of said equipment that the word “new” meant newly made or of recent manufacture. The trial judge instructed a verdict and entered judgment for the defendant-seller, based upon a finding that there was no breach of warranty. Such holding was affirmed on appeal. The court quoted from 66 C.J.S., giving a definition of the word “new” and held as follows:
“ ‘New. A relative term defined as meaning not yet used or worn; now first used for some purpose; recently made; still unimpaired by use. In its ordinary acceptation, the opposite of the term “old”.’
' “It will be noted that under this definition the word may have a meaning contended by each of the parties, but when it has a special meaning in a certain business it must be interpreted as ordinarily used in that business. It is a matter of common knowledge that the use test is used in the automobile trade in determining whether or not an automobile is new. In other situations the use test cannot be employed for the reason that use consumes a commodity, for example, food products such as corn, wheat, potatoes, oranges, etc. In such cases the term must mean the opposite of ‘old’.”
We believe that the use test, discussed by the Court of Appeals of Ohio in the case of Ajax Petroleum Products Company v. Blake, supra, is a proper one to be applied in this case. The fact that a cotton picking machine sold in 1962 was manufactured in 1961 would not prevent it from being a new machine so long as it had not been used.
In this case the evidence shows without dispute that the machine in question was manufactured June 16, 1961; that it was shipped to Pharr, Texas, on June 22, 1961; that it was there stored in a designated International Harvester warehouse, after delivery on June 28, 1961; that it remained there until delivered to employees of Mathis Equipment Company, appellant herein, on August 8, 1962; and that the machine had never been sold or used prior to being so delivered. The evidence further established that new cotton picking machines are not sold under designation of a certain year, but, on the other hand, are sold under a specific model number.
In the final analysis, the evidence in this case shows that appellee decided not to pay for said machine because he discovered, more than two months after he accepted the machine and had picked fifty bales of cotton with it, that it had been manufactured in the month of June, 1961.
[860]*860As we have heretofore pointed out, the trial court in this case defined the term “new machine” as meaning “a machine in condition as when first manufactured, not worn or defaced by use in any degree.” The evidence, considered in its most favorable light to appellee, was not sufficient to establish by a preponderance thereof that the machine was not new under such definition. There was no direct testimony to the effect that the machine, at the time of its delivery to appellee, was not in the same condition as it was when first manufactured, nor was there direct testimony that the machine had been used prior to its delivery to appellee. Appellee testified that after several days of operation there was discovered a break in the cam track of the machine which in his opinion, was an “old break”. This is claimed by appellee to support an inference that the machine had been used prior to its delivery to him. This evidence amounts to no more than a bare conclusion which does not constitute evidence of probative force to support a finding that the machine had been used. Neither is the remaining testimony, direct or circumstantial, particularly that to the effect that some trouble was experienced with certain parts of the machine within a short period of time after appellee used it to pick cotton, sufficient to support a finding of non-newness.
The fact that the machine herein involved was manufactured fourteen months before the sale to appellee, standing alone or considered with the other testimony in this case, is not sufficient to establish that the machine was not new. This is- particularly true in the face of direct- testimony establishing the date of manufacture, the place where such machine was stored before being delivered to appellee and positive direct testimony that it had not been used theretofore. The evidence is insufficient to support the answer of the jury in response to special issue number one, and appellant’s point number four is sustained.
The record herein reflects that appellee elected to rely upon failure of consideration and rescission instead of a claim for damages based upon breach of warranty. Both appellant and appellee made trial amendments to their pleadirigs after appellant had rested its direct case and before appellee offered testimony in his defense. Appellee was in the best possible position at that stage of the trial to determine what his defenses would be to the prima facie case which had then been established by appellant; and it is apparent that the election not to seek damages for breach of warranty was deliberately made by appellee.
The evidence herein established appellant’s prima facie right of recovery which could have been defeated only if appellee brought his defense within some recognized rule authorizing rescission of the contract or authorizing damages giving rise to a reduction of the amount owing on same. Appellee failed to establish any such defenses and appellant’s amended motion for judgment non obstante veredicto should have been granted and judgment entered allowing appellant to recover on the contract of sale.
On oral argument of this case counsel for all parties advised this court that following trial in the lower court the cotton picking machine involved had been sold for the sum of $14,400.00, pursuant to agreement of the parties. The record herein does not reflect such agreement or sale so that we can act upon it in connection with rendition of judgment. However, counsel have assured us that they are in agreement that proper credit will be given in the event judgment is rendered for appellant..
The judgment of the trial court is reversed and here rendered in favor of appellant for recovery of the purchase price of said machine in the amount of $16,-400.00, together with interest from October IS, 1962.