Middleton v. Rabon Thompson Co.

HIGGINS, Justice. Middleton sued appellee to rescind the purchase of a used automobile. The trial was without a jury, resulting in judgment for defendant. Plaintiff alleged various false representations made by appel-lee concerning the car, but no findings were made by the court as to any of such representations, except the allegation the defendant had set back the speedometer . about 35,000 miles, and the plaintiff relied upon the speedometer as correctly reflecting the mileage of the car. The court found the speedometer had been so set back, but plaintiff did not rely on the speedometer reading in buying the car. No point.is here presented as to any of the other misrepresentations alleged, but appellant assails the finding that he did not rely upon the speedometer reading. The evidence warranted the finding in question. This court would not be justified in setting'the same aside. Furthermore, it was neither pleaded nor proven by appellant that the car was worth less than the price paid for same. Under such circumstances, no right to rescind was shown. Russell v. Industrial T. Co., 113 Tex. 441, 251 S.W. 1034, 258 S.W. 462, 51 A.L.R. 1; Bauder v. Johnson (Tex.Civ.App.) 36 S.W.(2d) 1112. For these reasons, the judgment should be affirmed. The findings referred to in assignments 3 and 4 are not in conflict. The errors, if any, in the court’s findings, referred v to in assignments 6 and 7, are harmless. Affirmed.