Buck v. Reed

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. — 491 — “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- 1 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. — 492 — “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. * * * — 493 — “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? ?<A Well, there is a steering clutch drum, perhaps that big around, and it has a flange that it bolts into, and this flange gears into the pinion drive up on the outside of it, and there were bolts left out of the flange where the steering clutch drum bolted to the flange.. About every other bolt was left out of it, and consequently not having enough bolts in it, it tore the whole side of the flange out or tore the whole side of the drum out where it bolts to it, and in doing so, it tore up some bearings and clutch discs and I don’t remember exactly, but I spent about $290 on parts for it. “Q About how long did it take to obtain those parts and about how long did it take to get the labor done to repair that damage that had resulted? “A I was two weeks getting the parts and repairing it. “Q All-told, about what did you have to spend out of your pocket for these parts to repair that? “A Just the parts themselves right at three hundred. Of course, I bought gas and had expenses, and what have you, going to Houston to find the parts.” — 494 — Following this breakdown of the tractor and before doing further work with it, Shine came to Austin and talked with Stelfox, and we quote Shine: “Q What conversation did you have with Stelfox at that time? “A I explained to him what the deal was and told him I did not think the machine was what it was represented to be. He pointed out to me that he had not done anything to the steering clutch, to his knowledge, arid he was sure the rest of the machine was all right, and as he 'had stated that it would be, and so I was still reluctant. He said, ‘Well, I will tear up the note, and I will knock off $700 for the trouble that you have had on the steering clutch, and we will make a new note and reduce the payments on the machine. “Q Did he say anything about the remaining condition of the machine ? “A Yes; he still assured me that he had done all the work on the motor and the tracks and the rollers and various things were in real good things on the machine and that he had spent four or five thousand dollars on it, and the machine had to run, and I explained to him I had not run the machine enough to make the payments on it with, and he said, ‘Well, don’t worry about that.’ ” The result of this conference was that the $10,000.00 note was cancelled and the note sued on executed, Shine having explained the matter to appellant. At the same time Shine gave Stelfox $700.00 in checks, payable to appellant as requested by Stelfox, to be deposited at short intervals. None of these checks was paid on presentation. These checks were, Shine testified, to apply on the $9300.00 note. Stelfox testified they were not, that the new note was signed only to reduce the payments from $1000.00 per month to $700.00 per month. Shortly after the new note was given Shine moved the tractor to Teague where he had a dam job for the tractor. He worked a day and a half and the “motor went out.” We quote Shine: “Q You looked into the motor? “A Yes, sir. I pulled the head off of it and pulled the side covers and the pan off of it and inspected it. “Q What did you discover the condition to be? “A Well, the motor was completely shot and wore out. There was pieces of. broken rings and small pieces of aluminum which probably came from a previous broken piston, and the crank shaft was flat — had three-thousandths wear in it. * * * “Q What did you do when you found this condition existed inside the motor after you opened it up and looked at it? “A I made arrangements to get another machine, because I had a time limit on this job. “Q Did you order any parts or did you leave it like it was? “A I ordered parts for it. I had to, so I could get it running and move it out with a truck. “Q You say you had a time limit on that job? “A Yes, sir. “Q But you had to rent another machine because this tractor had busted down? “A Yes, sir. — 495 — “Q Then what happened? “A Well, I ordered the parts, and I went to Dallas and picked up the parts. • I picked up rings and inserts and I think one or two pistons, I don’t remember, and of course gaskets and a valve or so.” It was at this time that Shine first became aware thát he did not have a 1948 model tractor, but instead a 1942 model. Shine installed the parts obtained in Dallas and repaired the tractor “sufficient to get it running,” and he “walked it (tractor) into town” and put it in storage. Mr. Shine testified that he would not have purchased the tractor and would not have executed either of the notes if he had not relied upon the statements by Stelfox as to the model of the tractor, its- condition and the amount of repairs made on it. When Shine first saw the tractor, he tried it out. We quote him: “A . The. first - time I saw the tractor it was eye appealing. It looked like it was a newly reconditioned tractor and had a new paint job on'it'. The first time I saw it I did not stop and look at the tractor, but I saw it as I went by. “Q" Now, when you went over and talked to Stelfox about the tractor, did you try it out at all? “A The best you can on a city lot “Q Well, what did you do? “A I started the engine and moved it backwards and forward and spun it around one time. ■“Q Well, did you do it on your own or were you invited by Mr. Stel- ■ fox? ■“A Well, there wasn’t any objections to me doing it. ■“Q Just describe what you did. Did you start the engine ? .“A I asked him was the batteries tip, and he said ‘yes, get up- in it and start it.’ So I got up and started the machine, and as I say, moved it forward and backwards, and tried the steering'clutches, .and I cut it one way and then, the other to see if it was wo.rkirig. You could not dp a lot with it on a city lot like that, because you would tear the thing up.' * * * “Q But I am trying to see if Mr. Stel-fox was not perfectly willing for you to do anything you wanted to test that machine short of tearing his building down or ruining his place. “A Yes, sir, he was, anything within reason in relation to the space we had to do it in. “Q After you had examined it and operated it and listened to the - motor, you were satisfied with it, weren’t you ? “A I was satisfied with the way it sounded, yes, sir.” On cross examination of Shine it was brought out that he was an experienced bulldozer operator and that he was qualified to do repair work on bulldozers. Shine testified: “Q You undertook to rebuild the machine as far as the clutch box was concerned, is that, right? “A Yes, sir. “Q And you testified that you were very dissatisfied and were ready to tender the machine back; isn’t that what you said? “A By the time I got over here, I certainly was. “Q Did you have the bills with you at that time ? “A Yes, sir, I had the' bills. — 496 — “Q Did you tender them to Mr. Stel-fox? “A Yes, sir. “Q Did he pay them? “A No, he did not pay any cash. He said, ‘Well, I will tell you what I will do, Shine.’ He said, ‘We will • make a new deal on the machine.’ “Q You did not have $700 worth of bills on the machine, did you? “A I did not have that as far as parts spent, hut I had $700 worth of time involved in it. “Q I suppose you told him you were dissatisfied with the machine? “A Yes, sir. “Q And in fact you exchanged notes and gave a $9300 note with a longer pay-out for the $10,000 with a ten month pay-out, didn’t you? “A In effect, you might call it that. I did not think of it as such. The way he explained it, he said, ‘Well, we will make a new note, and I will compensate you $700, and re-sell you the thing on a new note, and we will start all over.’ * * * “Q You told him that you were dissatisfied with the whole machine and did not think it had been represented correctly? “A He reassured me that it was as he represented it. He said, T spent four to five thousand on it, and I had so-and-so done, and the motor is in perfect shape.’ ” Shine had carefully examined the exterior of the tractor before purchasing it but regarding the motor, he testified: “Q . * * * You knew, more about the tractor than he did. “A I certainly did not. I did not know what had been installed in the tractor. It was represented to me with new motor kits, and everything else, and that motor was completely wore out when I took it down. “Q You had run it for a month and a half? “A I had it in my possession, but I had not operated it a month and a half. “Q During the one and one-half month period you had been operating it from time to time, hadn’t you? “A Over intervals, yes, sir. “Q And you continued to operate it until it broke down with some motor disorder ? “A At intervals, yes, sir.” Shine has tendered the tractor back to appellee and has testified that it is in as good condition as when he bought it. Mr. Ernest J. Kohutek, associated with the Allis-Chalmers dealers of San Antonio, testified for appellant. We quote a portion of his testimony: “Q What year model or manufacture is HD-14, Serial 1669, tractor? “A That tractor was manufactured in July, 1942. “Q Is there any obvious, visual difference in appearance between an HD-14 tractor that was manufactured in 1948 as distinguished' from one that was manufactured in 1942? “A No, just the appearance, you can’t tell.” After qualifying, Mr. Kohutek testified as-to the difference in values of a 1942 and 1948 HD-14 tractor as follows: “Q And will you tell us the values of the 1942 manufactured tractor, HD-14, if it is in A-l condition, and its value in fair condition, and its value in poor condition in June or August of 19S3? — 497 — “A In A-l shape, it would be from five to six thousand dollars; fair shape, two to three thousand dollars; and in poor shape, that is poor operating shape, it would be from five hundred to fifteen hundred dollars. * * * “Q What would have been the value if it was a 1948 manufactured? Would it have been more than a 1942? “A Oh, yes, sir. “Q What would have been the great-ter value of the ’48 tractor, an HD-14, manufactured in 1948? “A I would say a ’48, between eight to nine thousand. “Q What would be the fair market value of an HD-14, ’48 manufactured tractor, of that particular model if it was in just fair condition? “A In fair condition it would be, I would say, between $4,500 and $5,-000.” Mr. Kohutek testified that for practical purposes the 1942 and 1948 tractors were the same and that from their appearance one could not be distinguished from the other. Mr. R'oy C. Green, shop foreman for Central Texas Equipment Company and formerly employed by H. B. Zachry and Holland Page, testified for appellant. His testimony related to repair work he did on the tractor in suit from 1951-1953. He replaced the motor kit (sleeves, pistons, rings and valve job)- for Stelfox in late 1952 or early 1953 at a cost of $600.00. About two weeks after this repair was made, Mr. Green was requested by J. R. Canion, to go to the City filtration plant to work on this tractor, and we quote his testimony: “A The motor had frozen up on the HD-14 tractor I had previously put a motor kit in. “Q That is the Serial 1669 tractor? “A Right-o. “Q The motor had frozen up? “A Yes, sir. “Q What caused it to freeze up? “A They started it without water in it. “Q What do you mean by it froze up? “A The pistons seized to the sleeves and pulled three of the sleeves in two and locked the motor tight. “Q So it was not runnable when you got out there? “A No, sir. “Q Did you do at the request of Can-ion some repairs on that frozen motor ? “A Yes, sir. “Q What sort of repairs did you do on it? “A I replaced the three broken sleeves. “Q You replaced the three broken sleeves ? “A Yes, sir. “Q Was there any other damages resulting from the operation of that motor without water in it? “A Well, the motor had got awfully hot. “Q What would that cause? What effect, if anything, would that heat that caused it to freeze up have • on that motor? What effect it did have. “A It caused the pistons to expand and pulled the sleeve in two and I replaced the sleeves, but as to any other damage that was done at the time, well, I can’t say that it done any immediate damage at the time. Naturally, it hurt all the wearing parts of the motor to some extent. — 498 — “Q Now, did you at that time attempt to, or did you go in and repair all of the consequential damage that came from this heat that froze up the motor? “A No, sir, I just replaced the sleeves. "Q By replacing the sleeves, would that just permit the motor to start up and run? “A Yes, sir, the motor was in running condition when I léft it. “Q Having replaced those sleeves as a result of the motor having been run while it was without water and got so hot that it froze up, would that have restored that motor to an equal condition to what it was in at the time you completed the installation of the motor kit? “A No, sir, it would not. * * * “Q Do you know, Mr. Green, what the year model of that tractor was, the manufactured date of it or approximate date of it? “A It is approximately a ’41 or ’42 model. “Q Is there any difference to the normal person’s eye as between ■ one HD-14 model Allis-Chalmers tractor, manufactured in 1942 and one that was manufactured in 1948? “A No, sir. “Q There is no difference to the eye? “A No, sir. “Q Was there any internal difference to it, assuming both were brand-new machines? “A Yes, sir. “Q What are those differences? “A Clutches. Transmission. “Q . Is it for the better or the worse as between the ’42 and ’48 in those respects ? “A Well, they are improving on them at all times.” Mr. Green also testified that this HD-14 tractor, in fair operating condition, had a market value in the summer of 1953 ’ of $3500.00 to $4000.00. If it had been a 1948 model the value would have ranged from $6200.00 to $7100.00, according to Mr. Green. Mr. Green also testified that immediately after installing the motor kit, the tractor was not in “as good as brand-new condition.” Appellee testified by deposition and very briefly in person at the trial. He did not testify to'the cost of' the tractor. The only repairs he could remember making on the tractor were those done when the tractor was stored with Holland Page, and by some one out on the “Dallas Road.” He “guessed” these latter repairs cost around $1000.00. He did not know the cost of the repairs made by Page. Although the depositions of appellee were taken in October 1960 and the trial was held in January 1962, the only record furnished for repairs on the tractor was the receipted1 bill of Mr. Green for $979.50, for the repairs about which he testified as shown above. . ' Mr. Stelfox testified by deposition only, which was introduced by appellant. He testified thát he sent two men to West Texas to bring the tractor to Austin at the request of appellee. This was about six to nine months before the sale to Shine. Stelfox testified that he “put new rollers on it, new rails, new track bolts, and a complete new motor kit,” and that he spent close to $4,000.00 on it. We quote his testimony in this respect: “A We brought it to my location at 903 Barton Springs Road; then I got hold of Bob Marshall’s heavy equipment mechanic and had him check the tractor, other, than the — 499 — motor, the rollers; the rails, and he came up with a list of stuff to put the tractor up in condition to where it would go out and do a day’s work. It needed new rollers, new rails, and new drag bolts. I ordered all of those from San Antonio, and he put them in. “Q Who did that, who put them in? “A This mechanic. “Q Do you remember his name? "A No, I don’t, but I could find out from Bob Marshall. I paid him. “Q By cash, or by check? “A I can’t remember, but I am sure I give him a check, a company check, and Mr. Reed reimbursed me. “Q After he did that, then what happened? “A Then, when he got through with that, I had Mr. Green in this heavy equipment, shop on the Dallas Highway order a motor kit, and put a complete motor kit in. “Q What is a motor kit? “A That consists of rings, your pistons, your sleeves, and everything inside the motor. A kit costs you around $800, so I spent a little over $1,000 on this tractor. “Q What was the cost of the other repairs the fellow from Marshall’s did? “A I believe the rails cost $700, the bolts cost $74.00; I remember that, because I like to went through the ceiling when I got the bill, and the rollers — I have forgotten now exactly how many — all of them wasn’t bad — I would say we paid in the neighborhood of $1800, or $2,000.00 on parts alone that the mechanic of Bob Marshall’s installed, plus the motor, complete overhaul by this Green equipment company that used to be out on the Dallas highway. “Q To your best recollection is that it was between $2,000 and $2500 on parts— “A Parts and labor. “Q —after you brought it back from West Texas? “A Around $4,000 altogether.” Regarding the model of the tractor, Stel-fox testified: “Q Do you know what year model it was? You know the— “A I don’t remember. “Q —model number was HD-14? “A That’s right'. “Q And the serial number was 1669? “A That’s right. “Q But you don’t know what year model or what its’ manufacturer was? “A I could find out very easily. “Q Did you ever know it? “A I don’t remember anything ever being said about the year model. In fact, I can’t remember anything being said about it, other than referring to it as HD-14, which is equivalent to D-6. * * “Q Did you ever know what the year of manufacture this particular tractor was? “A I don’t believe I can answer that and be truthful, because it has been so long ago that it could have been at that time I did or I didn’t know, and I don’t know why I would need to know the year model, because a serial number is all you order parts by, ordinarily.” — 500 — Stelfox told of the salé to Shine as follows: “Q What did you tell Shine? “A I told him the hills I had spent for repairs on it, and I told him to go out there, both of them, and both of them try it. “Q You told Shine the tractor had just been repaired?, ' “A I told him what had been spent on it. .. - , , “Q What had been done in your shop and what had been done in the other shop ? “A ' I would say around $4,000. “Q What did you tell him , about the condition? “A You dont’ have to tell a man that if he owns heavy equipment.- It had new rollers, and new rails, and everything there for him tc. see. Of course, the inside of the motor, you couldn’t see. They come back and agreed it'was in good shape; “Q Did they run it there at the time? “A They started it and spun it around on the back lot. “Q Did you tell them anything' about its condition, other than about the ■ repair, bills ? “A I told them who did the motor work, and there' was a- motor kit put in it, which I had proof — it was because the parts were bought from this equipment place out on Lamar. “Q What did you tell them about the tractor ? "A I will go through it again. I told them I put new rollers in, and new rails and new track bolts. * * * “Q Did you tell Shine what year model this tractor was? “A I don’t believe I did. “Q By that, you. mean you don’t recall.? “A I don’t know. “Q You say you didn’t,-or you-'may have ? “A So far as that goes, a year model in a tractor, you can’t do that like ' you do a cari You don’t say. !1960 Model D-8’, you-say ‘D-8 tractor, . Serial Number so-and-so.’ “Q Did you tell them this is a tractor that is only'two years old? “Á I did not. “Q Or three years old? “A I did not. ‘ “Q You are sure? “A Yes, and I am sure that at that particular time, Mr. Shine arid Mr. Buck was in a better position to . ■ know heavy equipment than I was;. ■ “Q Did you tell Mr. Shine .or Mr. Buck what year model that tractor was ? ..... “A I can’t .recall it if I did. “Q You may have, b.ut you just don’t-recall it ? “A I just can’t recall it. “Q Then if either or both of them recall that, you did tell them what year the model , number was, of the year of its manufacture, you are not in a position to dispute that other than you can’t remember one way or the other? “A No, because it was immaterial. They both of them knew heavy equipment, and they worked with it, and operated it, and it didn’t make any difference if it was a 1919 or 1950 model, because it was there for itself, and they knew equipment * * * — 501 — “A * * * We were talking in my office about it, and getting together on the price, so T. W. said, ‘Well, Shine, drive the tractor. If it is in good shape, we can see about it/, and I said, ‘It ought to be, the amount of money I spent/ so he said, ‘How can we deal?’ and I said, ‘I don’t know/ and so we talked on, and T. W. said, ‘It is going to be about thirty days before Shine can go to work with the tractor — ’ . , “Q When you talked about those repairs, did you tell them as a result - of those repairs, it was in as good- • . as brand new condition? ■“A I said as good as new, not new, but in reconditioned shape. Just like you buy a reconditioned . engine, but that doesn’t make it as good as new. “Q You -Jiought that with all those re- . pairs that had been made, it was , in about as good as new condition ? “A I thought it was in good working ¡ order, and wouldn’t give any trouble, except on heavy equip- ■ ment, you do break something now, and then.” When questioned about the execution of the $9300.00 note," Stelfox testified: “Q . At that time, when you were talking about making that note, didn’t Shine tell you; didn’t Buck tell you about the fact this tractor had been constantly under repairs over there ? “A The only time I heard anything about any repairs at all, they had to weld something up, he was talking about welding something on it. “Q That is the day you made the second note? "A That’s right “Q But as you recall, they said they had to weld something? “A It wasn’t anything serious, I know. “Q You do not recall that they said it ' had been constantly under repair since they had it? “A I will take a paralyzed oath they didn’t say it had been constantly : under repairs. “Q Did they say it had been frequently under repairs ? “A Well, you are always going to have that with heavy equipment “Q But it. is possible that they told you .they were having it very frequently under repair ? “A That is to be expected with heavy equipment — I don’t know if they told me that. “Q ' Was there any complaint made . about this tractor having to be repaired frequently? “A Not a bit. “Q Do you recall something having been said by Shine in relation to some'bolts that were not properly put- in; which caused it to break down?- '■ “A I don’t remember, but of course a . • bolt can break on a tractor. ’ “Q Do you recall that when some complaint was made that they found that one of their breakdowns had been because of the improper placing of bolts when it was being repaired, you said, ‘Now that is fixed, the rest of it ought to be in good shape?’ “A I wouldn’t say I didn’t say it, but I don’t remember it. I do remember him saying he was doing something to the tractor, and I can’t recall what he said, because it was immaterial; because the tractor — 502 — was sold, and you buy 'it with' your eyes wide open. When you buy a used car, the dealer isn’t going to come back ninety days or six months later and do any repairs to your car for nothing. I didn’t sell it to him with a guarantee of anything, he bought the tractor as it was. “Q Wasn’t this agreement you and he had, when you and he were talking, wasn’t there an agreement that because the man had lost a great deal of time when he wasn’t able to work, and because of the repair expense to this tractor, that he had to go in making repairs to this tractor, that you agreed to knock off $700 on the price of that tractor? “A Knock off what? “Q Knock off $700 of the price of the tractor, to make up for that, and you said you would take a note for $9300? “A No, sir.” It is our opinion that the findings of facts, copied above, are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The judgment of the Trial Court is reversed and this cause is remanded for another trial. Reversed and remanded. Footnotes [1] P. 365, Acts 1st Leg. 1846