Dalton Adding MacHine Sales Co. v. Wicks & Co.

BEVY, J. (after stating the facts as above). The error for review is that of the purely legal effect attaching to the special facts, upon which the judgment was based. We can consider it, since it is apparent upon the face of the record, and in nowise involves the sufficiency of the evidence to support or warrant such facts.. A motion for new trial was not necessary in order to. authorize the appellate court to review a pure question of law formally and timely excepted in the trial court, and apparent in the record. Craver v. Greer, 179 S. W. 862, 107 Tex. 356. And as applicable to this ease a judgment can be based in part upon a special verdict and in part upon the court’s conclusions of fact actually made. Arkansas Fertilizer Co. v. City National Bank, 135 S. W. 529, 104 Tex. 187; Cement Co. v. Latta & Happer (Tex. Civ. App.) 193 S. W. at page 1131. The appellant pleaded as against rescission the sole reason of waiver of the right to rescind. The rule is otherwise only when several distinct grounds of liability or defense are pleaded, and one of the grounds is not submitted that the ground not submitted is deemed waived in case there is no request made to submit it to the jury, or to the court for special findings. Trans Co. v. Winters (Tex. Com. App.) 222 S. W. 541; Ry. Co. v. Price (Tex. Com. App.) 240 S. W. 524. In this case the representation was that the machine was mechanically constructed as a bookkeeping machine, to make and enter accounts, and add and subtract credits and debits. It is deemed to be the duty of the defrauded party at the earliest practicable time after discovering the fraud to elect whether he will perform the contract of sale or rescind the agreement. The notice of rescission must not only be promptly given, but such rescission must be adhered to in order to bind the parties; otherwise the acts, being inconsistent with any intention of avoidance would have the effect of an election to affirm the agreement. Bank v. Warner (Tex. Civ. App.) 31 S. W. 239. Waiving the right to rescind has the meaning of tending to perform the contract. The appellee here discovered “about the 1st day of March, 1922;” while the machine was in their actual possession, that “it was not a bookkeeping machine.” Thereupon “at once” the appel-lee notified the appellant that it would not perform the agreement to purchase it, and “tendered the machine back” to the appellant. If the facts had rested there, in view of the -special findings of the jury, the. judgment of the court would have been legally right, for the" appellee would have been entitled to relief by rescission on the ground of false representations. But the further facts cannot be put aside that, although the appel-lee notified the appellant that the machine was not the machine agreed to be sold, and offered to send it back, nevertheless the appel-lee thereafter used the machine as their own in their business “up until about July 1, 1922, when the defendant purchased another make of bookkeeping machine.” The “appellant paid no attention to their repeated complaints and the tender,” and therefore it did not take the machine away, and the appellee did not ship or return it to appellant, but used it as their own. Hence," although the appellee may have in the first instance given prompt notice of rescission, it did not adhere thereto. Ap-pellee’s continued use of the machine as its own in its business for some four months after appellee had learned the true facts would operate as an acceptance of the machine as a compliance with the contract, and fatal to the right to rescind, even- though notice of rescission had been given previously. Car Co. v. Brashear (Tex. Civ. App.) 158 S. W. 233; Motor Co. v. White (Tex. Civ. App.) 239 S. W. 329; Cash Register Co. v. Berry, 80 S. W. 857, 35 Tex. Civ. App. 554; Edwards v. Wooldridge, 115 S. W. 920, 52 Tex. Civ. App. 512; Engine Co. v. Adams & Peters (Tex. Civ. App.) 169 S. W. 1143. The special findings of the jury on fraud become immaterial, since the special findings by the court of waiver legally eliminated the issue embodied in such special findings of the jury. Hill v. Hoeldtke, 142 S. W. 871, 104 Tex. 594, 40 L. R. A. (N. S.) 672. Therefore, as a matter of law, appearing on the face of the record, the court’s findings on a matter pleaded required a judgment to be entered for the appellant, and it was error not to do so. Accordingly -the judgment is reversed, and judgment is here rendered for appellant for the amount sued , for, with the foreclosure of the chattel mortgage lien on the property described, and in denial of any recovery by appellee in its cross-action; the appellee to pay costs of trial court and of appeal.