text:
    SECURITY DRILLING CO. v. RATHKE OIL CO.
    No. 12531.
    Court of Civil Appeals of Texas. Fort Worth.
    July 3, 1931.
    Rehearing Denied Sept. 19, 1931.
    Kilgore & Rogers, of Wichita Fálls, for appellant.
    Carrigan, King & Surles and Britain & Cheek, all of Wichita Falls, for appellee.
   BUCK, J.

On August 17, 1929, H. A. Rathke, president of the Rathke Oil Company, sent the following letter to the Security Drilling Company:

“Security Drilling Company, Wichita Falls, Texas.
“Gentlemen: This is to advise you that we will purchase from you for a total consideration of $75,000.00 payable as hereinafter set out all of the physical assets of the Security Drilling Company which includes all of its producing and non-producing oil and gas leases, all of its personal property thereon situated or used in connection therewith, all of its drilling tools, standard rigs, tanks, pipe, lease houses, automobiles, trucks, and any and all other property whether herein listed or not, including its interest in an oil and gas producing lease in Hutchinson County, Texas. Said purchase shall be subject to approval of titles to said properties, the same to be good and merchantable titles. You to furnish abstracts or other evidence of such titles within three days and we will have three days for examination and approval. When said titles •are approved and assignments, bill of sale or other evidence of title delivered to us we will pay said consideration as follows:
By cash on day of acceptance.$10,000.00
By drilling contracts hereinafter further referred to. 28,500.00
By assumption of notes payable.. 31,326.00
By transfer of stock owned by J. A. Rathke . 5,174.00
“The drilling contracts referred to above ■are with Fain-MeGaha Oil Corporation In Wilbarger County, Texas, worth $15,500.00; also with Duffey & Kaiser, et al. in Jack County worth $13,000.00. It is also understood and agreed that we will complete the well now drilling in Wilbarger County for Fain-McGaha Oil Corporation to its contract depth of 2,700 feet, providing the hole is in good condition at 7 A. M., August 19, 1929. We will also complete the Duffey & Kaiser well in Jack County by setting 6⅝" casing át 2950 feet with rotary tools and drilling same thereafter to 3,300 feet with cable tools, or such lesser depth as provided in your contracts. ■ Failure to complete either of said wells will of course make it necessary for us to drill other wells in lieu thereof or pay to you the sums provided for on each contract in cash.
“The notes payable referred to in above list are as follows:
Wichita State Bank & Trust Co... $ 8,000.00
Producers Supply & Tool Co. 17,726.26
Continental Supply Co. 4,000.00
Oil Well Supply Co. 1,500.00
Total. $31,326.26
“The stock referred to above is I-I. A. Rath-ke’s stock in your company.
“This transaction shall become effective at 7 A. M. August 19,1929, at which time we will be given the operation of said properties completely, including the responsibility for all bills or obligations thereafter incurred, and the collection of all revenue derived from such operation, thereafter.
“If the foregoing statement of our proposal is understood in full and agreed to by you, and if you will sell, and transfer to us all of said properties for the above consideration and conditions then please sign and return to us duplicate copy of this letter as evidence of your agreeing to all of its terms and conditions.
“Tours truly,
“Rathke Oil Company
“By:. H. A. Rathke, President.
“The foregoing sale subject to all of the terms, conditions, and considerations mentioned herein is hereby accepted and agreed to by the undersigned.
“Security Drilling Company
“By B. J. Shaw, Vice President.”

B. J. Shaw was the vice pz-esident and executive head of the Security Drilling Company and J. A. Rathke was the president and Chas. King was the secretary of the Rathke Oil Company.

When the time came for the casing to be furnished in drilling a well, the Rathke Oil Company tried to get the Security Drilling Company to furnish said casing, and later purchased and charged the cost thereof to the Se-ctzrity Drilling Company. On March 26, 1939, suit was filed for the alleged cost of the casing, alleged to be, together with the cost of pulling the casing out of well No. 1 and moving that part of the casing to well No. 2, and other expenses, in the total sum of $10,849.44.

Tin a rather lengthy pleading plaintiff sets hp its cause of action and claimed that, under /the contract as written and as accepted, the I defendant was liable for the cost of the cas-I ing. This claim was denied by the defendant vin a lengthy answer, consisting of some 29 pages of closely written matter. On September 29, 1930, plaintiff filed its trial amendment, in which it alleged that, if the contract on which it sued does not by its terms, expressly or impliedly, obligate defendant to furnish the casing for well No. 2, then, nevertheless, defendant is liable to plaintiff for the sums expended for said casing, less the reasonable value of the easing removed from well No. 1, for the reason that on October 5, 1929, and after plaintiff had commenced the drilling of said well No. 2, defendant then and there expressly agreed to furnish and pay for the necessary casing for drilling said well, and then and there authorized and empowered plaintiff to purchase same for its account, and then and there agreed to reimburse plaintiff for all sums expended therefor. Plaintiff further alleged that defendánt agreed to assign and deliver to plaintiff certain purchase letters for acreage around said well as security for the payment of the sums so expended. That in pursuance of said authority and said agreement, plaintiff purchased the 15½", 12½", and the 10'' casing described in its original petition and notified defendant of! such purchase, which was then and there ⅛<¾] mnesc^rrin ~hv_d<ffenda.nt. and that, by reason of said agreement to reimburse plaintiff for the sums so expended, said defendant became bound and liable to pay plaintiff the sums paid for the casing. '

Defendant filed an answer to the trial amendment, consisting of a general demurrer and a general denial. All exceptions by defendant to plaintiff’s first amended original petition and to plaintiff’s first trial amendment were overruled by the trial court.

The cause was tried before a jury, and, in answer to the special issues submitted, the jury found that (1) the defendant authorized plaintiff to purchase the necessary casing for drilling well No. 2 for its account, and agreed to reimburse plaintiff for all sums expended therefor; (2) that the reasonable value of all casing used by plaintiff in drilling said well No. 2 and the reasonable cost of unloading, drayage, and trucking expenses connected therewith was $16,690.20; (3) that the value of the easing lost, in said well No. 2 was $11,-671.84; (4) that the value of plaintiff’s services and the use of its tools in pulling the casing from well No. 2 was $547.50; (5) that it was necessary to pull the easing from well No. 1 in order to preserve the same; (6) that the cost to plaintiff in employing a casing crew to pull the casing from well No. 2 was $400; (7) that the amount so expended for paying said casing crew was a reasonable sum for their sei-vices; (8) that it was necessary to pull the casing from well No. 1 in order to preserve the same; (9) that plaintiff expended for pulling the casing from well No. 1 $2,437, and said amount was a reasonable sum for said work; (10) that the reasonable charge per day for shutdown time was $90; (11) that the reasonable rental value of the' casing used by plaintiff in drilling well No. 2 was $5,000; (12) that, under all the facts and circumstances then prevailing, it was not negligence for plaintiff to leave the tools in the hole, at the point, and for the time that such tools were so left.

Under the answers of the jury, the court rendered judgment in favor of plaintiff and against defendant for $9,752.86, together with interest, which aggregate amount is made up of a difference between the value of the casing use'd by plaintiff in drilling well No. 2 and the reasonable cost of unloading, drayage, and trucking expenses connected with the handling of such casing, and the value of certain casing after being removed from well No. 2, and the reasonable value of plaintiff’s services and the use of its tools in pulling the casing from well No. 2. From this judgment the defendant has appealed.

Opinion.

Appellant haS divided the alleged errors in three parts in its brief, and styled them substantive errors, procedural errors, and errors in rendition of judgment. On August 17, 1929, when plaintiff and defendant' entered into the contract above noted, defendant was under contract with Duffey & Kaiser to drill the Jack county well, and said contract provided: “In the drilling of said well ownersi (Kaiser & Duffey) agree to furnish on racks' at location all necessary casing needed by contractor in the drilling thereof and to have * same delivered at location any time to prevent any delay to contractor. * * * With1 the exception of casing so to be furnished’ by owners and with the further exception of such tubing rods, pumping equipment, storage for production, contractor agrees at its sole cost and expense to furnish every other necessary item in the drilling of said well.” ^

Although Duffey & Kaiser, the owners of the leases, who were having the well drilled, were under contract with defendant, the Security Drilling Company, yet the Rathke Oil Company did not agree to assume said contract, but merely agreed to drill the well. Plaintiff bought the assets of defendant, and agreed to drill the well, but did not assume the contract theretofore made by Duffey & Kaiser on the one hand and the Security Drilling Company on the other. The written proposal and the acceptance, for the proposal was accepted by the defendant company, does not expressly provide that defendant is to furnish the casing, nor that plaintiff is to furnish the casing. In fact it makes no refer, enee whatever as to who is to pay for said' casing. In its trial amendment plaintiff alleged that on or about October 5, 1929, after it had commenced the drilling of well No. 2, defendant then and there expressly agreed to furnish and pay for the necessary casing for drilling said well, and then and there authorized and empowered plaintiff to purchase same for its account, and then and there agreed to reimburse plaintiff for all sums expended therefor. That in pursuance of said authority and said agreement plaintiff purchased the 15½", 12%",’and 10" easing described in plaintiff’s amended petition, and notified defendant of such purchase, which was then and there acquiesced in by defendant.

Chas. King testified in part as follows:

“When they started moving the pipe from the well, we were drilling, and we had to have 15½" pipe immediately because you had to set it at about 350 feet, and I think we were about 175 feet down when they started moving the pipe, and so I made a request of Shaw that the pipe be arranged for and he told me that they had not yet secured it, and could not make arrangements, and that they did not have the money, and I made the suggestion that whatever bottom of the hole letters he had, or which the Security was entitled to, that the letters be assigned to the Rathke Oil Company as security for the purchase of the pipe to the Rathke Oil Company; the Security Drilling Company was liable and responsible to us for pipe to drill the well with, and that we could go ahead and purchase this pipe and use it and not delay the drilling of the well, and use the bottom of the hole letters as collateral with which to pay for it.
“Mr. Shaw said that would be the thing to do, go ahead and buy the pipe for the Security Drilling Company, and that the bottom of the hole letters would be assigned by him to us and — that was somewhere about the 10th of October, somewhere in that neighborhood, the day that I discussed this matter with Shaw, the time I talked to him about the assignment of the bottom of the hole letters [It is explained that the bottom of the hole letters means that, when a well is drilled and reaches a certain depth, other oil companies desiring to develop or test that locality agree to pay to the one drilling the well, or having it drilled, a certain amount, and that the drill■er of the well gets the benefit of said payments.] to us as security. He was figuring on leaving that day for an extended trip and my discussion was with him in the forenoon, and he said, now, I will have to see Kilgore as to how the letters can be assigned to you, these bottom of the hole letters, as to how they can be assigned to you, as security for the purpose of security for purchasing the pipe, and I will let you know as soon as I find out and he was supposed to have let me know that day and along in the afternoon I had not heard from him, and I called the office, and I was informed by the office that Mr. Shaw had left town, and I asked the man in the office if he had made any arrangements about delivery of the bottom of the hole letters to us, and so we could go ahead and purchase the pipe on behalf of the Security, and use the letters as collateral in paying for the pipe, and he said, so far as he knew Mr. Shaw had not left any letters and he did not know anything about it; I went down to talk to Mr. Kilgore about it, and told him that Shaw and I had agreed upon the matter, and that we had talked about these letters being assigned to us that day, and that Hr. Shaw had agreed to do it, and said that he was going to Mr. Kilgore and see about how it should be done, and Mr. Kilgore said, now, he has got. away, the only thing would be to wire him and get authority for someone else to assign them to you, and I went back and talked to the man in the Shaw Oil Company office, and he said he did not know where we could get hold of Mr. Shaw but he was expecting a telegram from him the next day or so, and Kilgore said we could find out where he was and wiye and explain and let him wire authority back for Kilgore to assign the letters back to us and so it rocked along about five or six days, before we heard from Shaw; he had gone East somewhere, and if his office had heard from him I did not find it out; anyway they told me they were not in touch with him. When five or six days had elapsed and they did finally hear from him they figured that he would be back in about ten days time, and I said we will let it go until he gets back, if he is not going to be gone over ten days, for more than half of the time has already elapsed. Mr. Shaw came back considerably after that, he was gone much longer than ten days. * * * „ During the course of time that he -was gone we had to purchase this pipe, and I think it was delivered to us some time during that time. Mr. Bonds happened in my office one day and I, in the course of our discussion and conversation about first one thing and another, this pipe question came up, and Mr. Bonds made some such statement, that I, of course told him that the Security was responsible to us for the pipe and Shaw was going — I would not say whether I told "him Shaw was going to assign those letters to us or not, but I talked to-and Mr. Bonds said that he did not understand that the Security was going to have to furnish this pipe, and when Shaw came back, I immediately went to the office, and I recalled our former conversation about the bottom of the hole letters being assigned to us, and he said, yes, he got away without doing that and he would go and see Mr. Kil-gore and arrange to have that done right away. * * * Mr. Bonds raised some question about whether the Security was responsible for the pipe and Mr. Shaw then said that he would do that — that Mr. Bonds did not know anything about the details of the trade; and that the Security was absolutely responsible to the Rathke Oil Company for the pipe and he would see we were paid for it.”

We think this testimony, and other testimony to the same effect, supports the conclusion evidently readied by the jury that the defendant authorized the plaintiff to purchase the necessary casing for drilling. It is this finding of the jury, based upon sufficient evidence, upon which the judgment rests. But appellant urgés that there was no consideration for this promise. A valuable consideration may be either a benefit to the promisor or a detriment to the promisee. Again, to constitute a consideration, either some benefit must flow to, or some injury must be received by, one or other of the par--jties. The promisor receives a benefit when, jin return for his promise, he acquires some Ilegal right to which he would not otherwise /have been entitled, and the promisee suffers /"detriment when, in return for the promise, he iorbears some legal right which he otherwise would have been entitled to exercise. 10 Tex. Jur. p. 122, § 71.

In 6 R. C. L. p. 654, par. 67, it is- said: “A long series of decisions has established the rule that a benefit^to'the promisor or a detriment to the promisee^ is a sufficient consideration for a contract.” See, also, 13 Corpus Juris, p. 315.

In Brannon v. Lancaster Bros., 8 S.W.(2d) 726, this court, in an opinion by the writer, upheld the consideration where, in the foreclosure of a deed of trust, adverse creditors stated that they would apply for receivership, certain ones claiming liens; the promise of the holder of a deed of trust to pay such debts was based on a sufficient consideration. See, also, McNeill v. Simpson (Tex. Civ. App.) 24 S.W.(2d) 485, and collation of numerous recent decisions in 3 R. C. L. p. 1782.

A forbearance of any legal right may be a consideration. Page on Contracts, vol. 1, p. 918, § 546. In Mayfield v. Eubank (Tex. Civ. App.) 278 S. W. 243, 246, attack was made on the consideration for the release of an heir o'f her prospective rights in her father’s eS-jtate. The consideration was upheld in the 'following language: “But it is not required, in order to constitute a valid consideration for an executory contract such as that involved in this controversy, that the promisor should receive a benefit. It is sufficient if the promisee has parted with some legal right, or has sustained a legal injury, as an inducement for the promise, which is sought to be enforced” — citing cases.

In plaintiff’s trial amendment it was alleged that defendant was to furnish casing for the well in controversy, and further alleged that, if the contract did not in its terms so provide; nevertheless that was the intention of the parties to the contract, and alleged that the contract was ambiguous, and did not state the true agreement of the parties, and that the same was procured by accident and mutual mistake. It will be remembered that the casing from well No. I was already at the well at the time this contract was made between plaintiff and defendant, but was later removed when well No. 2 was begun. Some contract had been made by Duffey & Kaiser with a supply concern, and Duffey & Kaiser had authorized the concern to remove the easing. The contract as written provided that failure to complete either of said wells would make it necessary for plaintiff to drill other wells in lieu thereof or pay the amount agreed to be paid for a failure to drill. This meant, at most, that plaintiff should drill the well under the same circumstances required in the drilling of well No. 1, wherein all of the casing was furnished to the driller. Both parties evidently contemplated that plaintiff would have the right to use the casing from well No. 1 in the drilling of well No. 2. Something not within the contemplation of- either party arose. An unforeseen condition and hardship was encountered. The owners of the pipe, with the consent of Duffey and Kaiser, removed the casing from the location and left plaintiff without any casing whatever with which to drill the well. Both plaintiff and defendant knew that plaintiff Was not to furnish the casing. Defendant was contending that Duffey & Kaiser were to furnish the casing. All the facts show that plaintiff was contending that, so far as it was concerned, it was up to the defendant to furnish the easing to it. When the casing was taken away, plaintiff undoubtedly had the right to terminate the contract and pay the $13, with the right of reimbursement for what it, had already done in well No. 2, and in pulling the easing from well No. 1. The agreement alleged to have been made by the defendant company, and shown to have been made by the executive head thereof, B. J. Shaw, that plaintiff had the right to purchase for defendant the casing needed, was a decided benefit to defendant in complying with the contract with Duffey & Kaiser and relieved itself from the almost certain consequences of a lawsuit. As stated by A. J. Mixon, secretary of the defendant corporation: “As .to whether I would have had a law suit, I don’t know. I don’t think we could have got out of the contract. We had a contract to drill a well, and that well was to be completed.” Therefore, the element of benefit to the promisor is presented and the further element of detriment to the-promisee is present. The plaintiff, in pur-4 chasing the casing -for defendant’s account,’ waived its right or option to terminate the contract and to go on with the drilling, which, under the authorities, is an adequate consideration for defendant’s promise. Defend-, ant knew, both verbally and by repeated letters, that plaintiff was purchasing and provided the casing for defendant’s account, for more than three months up to November 21, 1929. Defendant did not even reply thereto, and never did deny its obligation thereon until December 20, 1929, when plaintiff had practically completed the drilling of said well.

We think that there was sufficient consideration to support the promise of defendant to allow plaintiff to purchase the necessary casing on defendant’s account.

Objection is leveled at the introduction of certain testimony of Ohas. King, secretary of plaintiff company, on the ground that it calls for a conclusion of the witness, and an interpretation of a written contract which is clear and unambiguous on its face. We do not think that this assignment should be sustained, inasmuch as Ohas. King only testified as to what the attitude of the plaintiff company was with reference to controversies that had arisen between the two corporations. We think that the evident finding of the trial court that the contract was ambiguous is sustained by the evidence.

We have examined the issues submitted and the objections made by the defendant below to the submission of said issues, but do not find any merit in said objections.

We have gone somewhat carefully over this ease and conclude that no reversible error is shown. Therefore all assignments of error are overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    STARK et al. v. R. B. GEORGE MACHINERY CO.
    No. 12513.
    Court of Civil Appeals of Texas. Fort Worth.
    June 27, 1931.
    Rehearing Denied Sept. 19, 1931.

      Adams & Jones, of Gainesville, for plaintiffs in error.
    Burgess, Burgess, Chrestman & Brundidge, of Dallas, W. D. Garnett, of Gainesville, and O. A. Fountain, of Dallas, for defendant in error.
   CONNER, C. J.

Appellant 'Stark, hereinafter referred to as plaintiff, instituted this suit on January 2, 1930, against R. B. George Machinery Company, hereinafter referred to as defendant, to recover damages aggregating $659.67. Briefly stated, the plaintiff alleged that on January 27, 1928, he purchased from defendant, through one Adlcinson, defendant’s sale agent, a Caterpillar tractor at the agreed price of $1,054, which plaintiff paid. Plaintiff alleged that Adkinson represented that the tractor was one that had only been used slightly as a demonstrator machine in and about the Fair Grounds at Dallas, Tex., and reconditioned and practically as good as new, agreeing at the time of purchase'to furnish for six months all such worn or useless parts as should be found to be necessary; and further representing that the previous use was so slight that the tractor had not been injured or worn in any respect and would last as long as if new.

Plaintiff further alleged that he knew nothing about tractors of the kind, and relying upon such representations, he received and paid for it and moderately used the same on his farm until about the 15th of September, 1929. That during the first six months after his purchase new parts for parts worn-out at the time of his purchase, of the value of $150, were furnished by defendant, and that during plaintiff’s continued use he was required to purchase new parts for old and worn parts for which he paid $244. Plaintiff charged that said representations were false but had been relied upon and he was thereby induced to make the purchase. That notwithstanding the new parts supplied, the tractor became worthless and could no longer be of use; that he thereupon began negotiations with defendant at its Dallas office with a view of trading the old tractor for a new one, when for the first time he learned that Adkinson’s said representations were false and that in fact ■the tractor sold to him had been previously used on the public roads of Damar county for two years, and that it was old and worn and not worth exceeding $400, the price at which defendant offered to take it on the sale of a new one.

Defendant answered by a general demurrer and a general denial, and specially pleaded that plaintiff’s purchase was under and by virtue of a written contract set forth in the answer, which only warranted the tractor for six months, and which provided that the instrument contained “all of the agreements between the parties thereto”; that plaintiff, after a demonstration, had freely accepted and paid for the tractor and later used the same for a long period of time without objection, and hence was estopped from claiming that it was not worth the amount he paid therefor. Defendant also pleaded over to recover $179.85 for unpaid parts furnished for the tractor at plaintiff’s request.

The plaintiff replied by supplemental petition that the instrument referred to by the defendant as the written contract of sale was but an order for the‘shipment of the tractor and did not present the true facts concerning the contract of sale and purchase, and that it was not so intended; that by its terms, as explained at the time, plaintiff understood that he was to get a reconditioned tractor, practically as good as new, and that he did not knowingly sign an instrument containing a provision that it contained all agreements as alleged by defendants, and that if the order did contain any such provision, it was fraudulently concealed from him at the time by defendant’s said agent.

The case was submitted to a jury upon special issues, which, together with answers thereto, are as follows:

“1. Did the defendant’s agent, A. R. Adkin-son, make false and fraudulent representations with reference to the age of the tractor in question and the use to which said tractor had been put at the time the order for said tractor was signed by the plaintiff? Answer: No.
“2. If you answer the question next above ‘yes’, then answer the following question: Did the plaintiff Stark believe said representations and did he sign the order for said tractor, believing said representations to be true? Answer: Yes.
“2a. If you answer the first question ‘yes’, then answer the following question: Did the defendant herein deliver to plaintiff Stark a tractor in accordance with and meeting the representations made to plaintiff Stark by said Adkinson? Answer: fes.
“3. If you have answered the first question ‘yes’ then answer the following question: Were said representations the cause and reason of the plaintiff Stark agreeing to buy said tractor and signing said order therefor? Answer: Yes.
“4. In view of all the facts and circumstances introduced in the evidence before you, what, in your judgment, was the reasonable market value of said tractor at the time it was delivered to the plaintiff Stark in Gaines-ville? Answer: $1,054.00.
“5. Do you find from a preponderance of the evidence that the plaintiff H. W. Stark after he knew or had reason to know the actual condition of the tractor in question, waited an unreasonable length of time before complaining about same to defendant? Answer: Yes.”

In addition to the findings of the jury, the court also filed conclusions, adopting the finding of the jury in response to special issue No. 1, and finding as a fact that Stark was indebted to the machinery company in the sum of $179.85 for unpaid parts, and thereupon entered judgment that the plaintiff Stark, and some interveners who showed no right of recovery, take nothing by reason of the suit and that the defendant recover said $179.85 and be discharged with its costs. From the judgment so rendered the plaintiff Stark has duly prosecuted this appeal.

Appellant’s first assignment of error is that: “The trial court erred in overruling the motion for a new trial because the answer of the jury to the first question propounded is not sustained by the evidence and is against the weight of all the evidence offered on the ttial.”

We have carefully read the statement of facts and have concluded that this assignment must be sustained.

The plaintiff testified, among other things, that Adkinson, defendant’s sales agent, having learned that plaintiff was desirous of purchasing a tractor, came to him and said: “I have got the very tractor you want. I’ve got a tractor that is as good as practically new, that has only been used on the Fair Grounds at Dallas as a demonstrator.”

Miss Cina Bartlett, an employee in the office of plaintiff, testified, among other things, that she was present in the office, at the time Mr. Adkinson came in and said: “I have a tractor that has been used on the Fair Grounds and worked over that I can sell you for $1,054.00 that is practically as good as new.” On cross-examination she said: “I mean to say that is all I heard Mr. Adkinson say. And my testimony is he said the tractor was practically as good as new and I am- positive about this. It is not a fact that Mr. Adkinson told Mr. Stark that he had a tractor that was as good a buy as a new one.”

A. R. Adkinson, the selling agent, testified for the defendant, among other things, that he was a traveling salesman for R. B. George Machinery Company; that he met Mr. Stark several days before the order was signed for the tractor in question; that he met him at ⅝⅛ place of business in Gainesville; that he told Mr. Stark he understood that he was iri the market for a Caterpillar tractor and he would like to sell him a tractor, and — “We talked of the merits of the machine and 1 gave him a price, as I remember, on a new machine; the price for the new machine at that time -was $1,980.00 plus $54.00 for belt attachment, that would be $2,034.00 for that size machine. Mr. 'Stark thought it was a higher price than he wanted to pay. * * * After ten days or two weeks I saw Mr. Stark in his office and told him I understood he would be interested in a second-hand rebuilt Caterpillar tractor. I told him I had one and it had only been used a couple of days— two or three hours a day — since it had been built, at the Dallas Fair Grounds, and that I considered it a good buy; he wanted to know the price and we agreed on $1,000.00 plus $54.00. ⅜ * * The words ‘second-hand rebuilt’ in the order is written in my hand writing ; with reference to my statement to Mr. Stark about the machine being rebuilt I told him it was a second-hand rebuilt tractor; I did not know at the time what amount of service the tractor had had up to the time it was rebuilt. I made no representations to Mr. Stark about the service the tractor had been put to. ⅜ .* ⅜ No, I don’t remember the one young lady, Miss Bartlett, that testified here this morning; I heard her testimony that I came there and said to Mr. Stark: T have a tractor practically as good as new that has been used on the Fair Grounds and that has been worked over and that I can sell you for $1,050.00.’ My best recollection as to whether or not I m.ade that statement, I told him I had a second hand rebuilt tractor selling at what I considered a bargain. It was a good price. In regard to what I told him of the use it had been put to, I told him it had been used at the Fair Grounds probably a couple of days altogether.”

The testimony quoted is all that we find in the statement of facts relating to what was said by Mr. Adkinson with reference to the tractor 'in question ánd its use. • There is further testimony tending to show that soon after plaintiff purchased the tractor and the use lie began to make of it, it became necessary to supply new parts for old and worn-out parts in the tractor, and that during this time new parts, at the price charged therefor by the defendant, aggregating about $600, had been supplied,' and that finally it' was found that the tractor could not be made to perform- its functions and was ‘worthless. There was further'uncontradicted testimony in behalf of plaintiff to- the effect that the tractor in • question previous to its sale to plaintiff-had been .used on the public .roads in ¡Lamar. county for some two. years in addition to its use on- the Fair Grounds at Dallas. We think the jury must have been misled by the wording of the court’s' special issue without an accompanying definition "of legal fraud. In that, issue they were'required to answer whether or not there was false and fraudulent representations. We think the jury must have concluded that the representations were made, but that the agent in making them did so without knowledge of their falsity,- and - hence with no intention to deceive.-

The answers to the succeeding issues seem to indicate this, for in answer to special issue No. . 2 ' the jury.' said that Stark believed “said, representations and he did sign the order for the tractor, believing said representations to be true.” The jury in answer to special issue No. 3 replied that “said representations were-the cause'and reason of plaintiff Stark agreeing to buy said tractor and signing said order therefor.” The jury could not have had in mind representations other than those to which we -have referred, for none others were alleged or proven. If in fact Adkinson made the representations as alleged and they were false in material particulars and plaintiff was induced to believe them and was thereby induced to make his purchase to his damage, it is immaterial that ¡the selling agent may have been without a corrupt purpose. The buyer of property may properly look to the owner for information of which he-has no knowledge relating to the ■quality and value of things sold and may rely upon the truth of the statements. See 'Mitchell v. Zimmerman, ■ 4 Tex. 75-76, 51 Am..Dec. 717; Dabbe v. Corbett, 69 Tex. 503, -6 S. W. 808; Buchanan v. Burnett, 102 Tex. .492,119 S. W. 1141,132 Am. St. Rep. 900, and cases cited in 33 ¿L. B. R. page 862, under title “False statements made without knowledge as to whether they are true or false.” Such statements when material and false, and when they operate to induce a purchase to the buyer’s prejudice, are undoubtedly fraudulent in a legal sense. So that, on the whole, ■we see no escape from the conclusion before announced that appellants’ assignments of 'error must be sustained.

The conclusion just announced is all that is necessary in fact to require a reversal of the judgment, but in view of another ,trial we will briefly notice other questions presented, by appellants’ assignments of error.

For instance, the sufficiency of the evidence to support the findings of the' jury in answer to the court’s fourth special issue was also questioned. In answer to that issue the jury found that the market value of the tractor in question at the time it was delivered was $1,-054. If plaintiff was entitled to recover at all, the measure of his damage was the difference in the market value, if any, of the tractor in the condition in-which it -was at the time of its purchase and what that value would have been had the tractor been in the condition it was represented to be. Article 4004, Rev. Stats. We find no evidence whatever in the statement- of facts relating to the market value of the tractor, if indeed it had a market value at the time of its sale to plaintiff. The question of its market val-r ue seems not to have been mooted in arfy question to any witness. There was evidence, however, tending to show that the defendant machinery company generally kept on hand for sale secondhand reconditioned tractors. If the tractor had a market value at the timé of its sale, it should have been shown; if not, then resort of course must be had to the evidence, if any, tending to show its intrinsic value.

Among other things, there was evidence -introduced in behalf of plaintiff to show that after repeated efforts to secure satisfactory performance of the trac'tor in question during the years of 1928 and 1929, an application was finally made to the defendant company to send a man out to inspect it; that in answer to this request a Mr. Jordan, a mechanic, came, inspected the tractor, and made an examination of it, tore it down, and then and there made the following statement about it, to wit: “That it ought to have been junked when it was sold to Mr. Stark; that it was worn out when it was sold to Mr. Stark, and .should have been junked.” Defendant objected to this statement on the ground that it was hearsay, immaterial, irrelevant, and only an opinion and conclusion of the witness, without preliminary proof of his qualification to give opinion, and for the further reason that the evidence showed that said Jordan was only a mechanic and not a representative or officer of the defendant, and whose opinion, conclusion, and statement would not be binding upon the defendant; and because the same, if made, were made by a mere mechanic who had no authority to make said statement or give said opinion, and defendant was not, and could not be, bound thereby; and because said statement and opinion, if made and given, were controverted and contradicted by the testimony of plaintiff and his ■witness, Earl Taylor, to the effect that saifi tractor had done satisfactory work for some months on plaintiff’s farm after its purchase, a portion of which time it was run both day and night.

The court sustained the objections and excluded the testimony, and error is assigned to this action of the court.

We think the evidence tended to sufficiently show that the mechanic Jordan was such an agent or representative of defendant company as authorized proof of the result of his examination. Application was made to the company for an expert to examine and to determine what was wrong with the tractor, why it would not satisfactorily perform, and defendant is in no attitude to' complain that the man sent by it was not qualified to perform the service requested. Jordan’s statement, therefore, after having taken the machine apart and made the examination, that it was “worn out,” was certainly admissible and part of the res gestas of that transaction. In McGowen y. McGowen, 52 Tex. 657, it is said that the doctrine of res gestse is based on the presumption that declarations made at the same time with the principal act — evoked by it without premeditation, and giving it color and character as explanatory of the mind and purpose of the actor — are as reliable as the act itself, of which it is a part, and can be proved along with it, without the oath of the party. In that case a suit had been instituted by the husband for divorce, on the ground of abandonment. The wife alleged that the abandonment was not voluntary, but was by the procurement and consent of the husband. A witness at the trial testified that a few days before the separation the wife came to him weeping and in great distress, and informed him of trouble between her husband and herself, but he was not permitted by the court to testify as to what she then said in regard to her being permitted by her husband to stay at his house, or her leaving by compulsion; nor was she permitted, to state what she said in that regard immediately after separation, on reaching her mother’s home. It was held that her declarations • should have been admitted, as they were so much a part of the final act of separation and explanatory of its cause as to have been proper for the jury. to consider.

In Standefer v. Aultman & Taylor Machinery Co., 34 Tex. Civ. App. 160, 78 S. W. 552, a contract for the sale of a threshing machine required the seller to send an expert to put the machinery in operation, and the seller’s general state agent and manager was sent, and, after making an ineffectual effort to make the machinery operate properly, he admitted that it was a worthless outfit, and was not the' machinery he had represented it to be to the buyer, ñor the machinery ordered, but. that the machinery plaintiff had ordered was torn up in a railroad wreck. It was held that the admissions were admissible against the seller in an action by the buyer for breach of warranty..

. The. trial court may have excluded the statement of Jordan on the theory that part of the statement was not admissible, to wit, that the tractor ought to have been “junked when if was sold to Mr. Stark,” and that no effort in behalf of plaintiff had been made to sepárate the admissible from the inadmissible part of Jordan’s statement, as required by the rules announced in the case of M., K. & T. Ry. Co. v. Washburn (Tex. Civ. App.) 184 S. W. 580, 582. It is there said, supported by the weight of numerous authorities, that: “Where'evidence is admitted over an objection to the same as a whole [as in the case before us],, a part of such'evidence being admissible' and.a part not, no reversible error is committed.” '

But that “where evidence is offered as a whole, only a part of which is admissible, the court does not commit error in sustaining an objection to such testimony. In such case it is not the duty of the court nor of the party objecting to the same to separate the admissible from the inadmissible,” citing numerous authorities. See, also, Magee v. Paul (Tex. Civ. App.) 159 S. W. 325.

Some of us, the majority perhaps, are inclined to the view that Jordan’s .statement that the tractor should have- been junked at the time it was sold to the plaintiff was in substance but the witness’ method of express^ ing his conclusion that, from his examination of the machine and defects then appearing, it must have been practically worthless at -the date of plaintiff’s purchase, and, therefore, admissible together with the rest of the statement. The writer, however, entertains some doubt at this particular point, being inclined to the view that the question of whether the tractor should have been “junked” at the time of plaintiff’s purchase was a conclusion necessary for • the jury and one which the witness was incompetent to state. However, this question is not mooted in the briefs of the parties, and we will leave it undetermined for further consideration should plaintiff upon another trial insist upon an introduction of the entire statement.

Defendant pleaded and here insists that by the plaintiff’s long use and long failure to repudiate the same, he is estopped from claiming a recovery of the damages, sought. In 10 R. C. L. p. 692, par. 21, it is said: “Mere silence will not work an estoppel. It must be some other element connected with the transaction and the silence to prevent a person from asserting his rights or claim.” Again on page 697 the same authority says: “The final element of an equitable estoppel is that the person claiming it must have been misled into such action that he will suffer injury if the estoppel is not declared. That is, the person setting up the estoppel must have been induced to alter his position, in such a way that he will be injured if the other person is not held.to the representation or attitude on which the estoppel is predicated.”

See, also, state decisions relating to the same subject, cited in volume 6 of Encyclopedic Digest of Texas Reports, p. 1026 et seq., under title “Equitable Estoppel or Estoppel by Misrepresentation or Conduct.”

We fail to find any evidence that defendant has been misled to its injury or induced by plaintiff’s delay in complaining to alter its condition, and conclude that the issue of es-toppel as a defense is not in the case. It is true plaintiff’s long use of the tractor and the character of that use, together with his delay in abandoning it, was relevant and is to be considered on the issue of whether or not at the time of plaintiff’s purchase it was in fact substantially of the value and condition it was represented to be.

Nor do we think defendant's plea that the order for the tractor, signed by the plaintiff, “contains all the agreements between the parties hereto,” is of weight as showing that plaintiff is estopped from maintaining his action. While the order contains the terms quoted, plaintiff’s suit is not for the breach of any agreement evidenced by the order. The only agreements thus evidenced is that of defendant to sell upon the terms stated, and -that of plaintiff to purchase and pay the price stated. Both of these have been fully performed and plaintiff’s suit is not one to rescind or set aside either., On the contrary, plaintiff’s suit is in effect an affirmance of the contract of sale. He only seeks to recover damages resulting from false representations which induced him to purchase. Plaintiff’s delay may affect the weight to be given his complaints, but it does not estop him from maintaining his suit if, as is true here, it was instituted within the limitation period.

The judgment against the interveners will be left undisturbed, but in all other respects tSe judgment below will be reversed, and. the cause remanded for another trial not inconsistent with this opinion.

On Motion for Rehearing.

The defendant in error, R. B. George Machinery Company, presents a vigorous motion for a rehearing based principally upon the contention that inasmuch as the court’s special issue No. 1, which we held to be unsupported by the evidence, was an issue requested by the plaintiff in error Stark, he is estopped and precluded from contending that the evidence failed to sustain the answer of the jury to the issue. The following cases are in accord with this contention: Poindexter v. Receivers of Kirby Lumber Company, 101 Tex. 322, 107 S. W. 42; Sanford v. Nueces River Valley R. Co. (Tex. Civ. App.) 143 S. W. 329; Crowley Mercantile Co. v. Brenard Mfg. Co. (Tex. Civ. App.) 287 S. W. 127; Commerce Farm Credit Co. v. Torrance (Tex. Civ. App.) 7 S.W.(2d) 1110; and other cases of like effect.

The charge on its face appears to be that of the court, but by reference to a bill of exception contained in the record (bill No. 7), which escaped our attention "on original consideration, it appears that this together with other issues was in the form requested by the plaintiff in error Stark and interveners, and hence if it is our duty to apply the rule of the decisions cited, we perhaps improperly considered the assignment we sustained.

Article 2190, Rev. Civ. Statutes of 1925, has been amended by act of the 42d Legislature, approved April 25, 1931 (see Gen. Laws 42d Leg. Reg. Session, page 120, c. 78 [Vernon’s Ann. Civ. St. art. 2190]). The amended act thus reads:

“Section 1. That Article 2190 of the Revised Civil Statutes of the State of Texas of 1925 be and the same is hereby amended so as to read hereafter as follows:
“ ‘Article 2190. When the Court submits a case upon special issues, he shall submit all the issues made by the pleading and evidence. Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or Writ of Error, an issue not submitted and not requested is deemed as found by the Court in such manner as to support the judgment if there is evidence to sustain such finding. A claim that the evidence was insufficient to warrant the submission of any issue may be complained of for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party.’
“See. 2. That all laws and parts of laws in conflict herewith be and the same are hereby repealed.
“Sec. 3. The importance of simplifying Court procedure and the near approach of the end of the Session of the Legislature create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and said Rule is suspended and this Act shall take effect and be in force from and after its passage, and it is so enacted.”

The act is remedial in character and contains no saving clause, and, if effective, undoubtedly is to be followed, as it relates to a mere matter of court procedure.in which appellant has no vested right. See Mexican National Railway Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642. And the fact that the amendment is in opposition to prior decisions of the court is immaterial. See Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 35 L. R. A. 666. The amendment manifests the legislative purpose to depart, from the rule of the cases above cited, and we are in accord with that purpose. Inasmuch, 'therefore, as we are in accord with the rule indicated by the legislative enactment, we will not now at this late day follow the decisions so clearly deprived of authority by the legislative enactment. We are the more inclined to thus dispose of the question by reason of the fact that the answers of the jury to issues other than issue No. 1 are at least apparently in conflict with the answer which we have held unsupported by the evidence, thus leaving the judgment to rest upon an uncertain basis suggestive of a possible miscarriage of justice.

Defendant in error’s motion for rehearing is overruled.