As the majority opinion correctly recites, the appellees not only plead the waiver of the so-called 30-day provision both as to the specified time and as to the return of the machine vel non, but the jury also found on sufficient evidence that such waiver occurred. We therefore, it seems to me, have a case presenting the very question the Commission of Appeals expressly did not decide in Nunn v. Brillhart. 242 S.W. 450, the sole citation in support of this *Page 230 decision. There the action upon appeal was only between the surety on the bond of the contractors for the heating system and the owner of the premises where it was installed. This owner was the defendant in error, and in response to his effort to interpose against his opponent in the litigation, such surety, the defense that the contractors had waived the provision for removal of the system and return of the consideration by their mere failure to comply with it, the court, applying the rule of strictissimi juris as to the liability of sureties, held:
"Defendant in error contends that the provision for removal of the heating system and return of the consideration paid was waived by the contractors' failure to comply therewith, and that because of such failure he is entitled to maintain an action for damages. We have carefully examined the authorities cited in support of this contention. In some of the cases so cited a subsequent mutual agreement was held to have modified or superseded the original stipulation. The remedy sought in nearly all of the other cases cited was a rescission and the recovery of the purchase price, and it was merely held that the stipulated return of the article purchased as a condition precedent to such rescission and recovery had been waived. However, it is not necessary to decide thequestion. Plaintiff in error is a mere surety. He is entitled to stand on the very terms of his contract, and his liability cannot be extended by implication or otherwise beyond such terms. Mere knowledge on his part that his principals had failed to remove the heating system and return the purchase price would not defeat such right. Smith v. Montgomery,3 Tex. 199, 209; Ryan v. Morton, 65 Tex. 258, 260; May v. Chicago, Crayon Co. (Tex.Civ.App.) 147 S.W. 733." The underscoring is my own.
To hold, notwithstanding the actual waiver of it so pleaded and proved by the parties entitled to interpose that defense in the present case, that "this provision in the contract for trial and return being mandatory, appellees cannot maintain their suit for damages for breach of the alleged warranty," is to go beyond any cited authority and to make of this recitation in the contract a hard and fast thing like unto the law of the Medes and Persians, "Which altereth not;" not only that, but intrinsically, too, it neither appears to require such construction nor to import the same thing as that class of warranties under review in the Brillhart Case, that is, where the parties have expressly agreed that the remedy of rescission is to accrue only upon a breach of the warranty; there is no such agreement here, nothing is said about what the remedy shall be in event of an accomplished breach by the seller of the warranty, but the provision simply is:
"In case of rejection of the property forwarded, or failure to pay as stated herein undersigned the purchaser shall at once return and deliver the property in good order to consignor f. o. b. cars at Beloit, Wisconsin, that a retention of the property forwarded after thirty days from date of shipment shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made by or for the consignor and void all its contracts of warranty, express or implied."
The reasonable meaning of this seems to be, as the inserted italics indicate, that if the purchaser should reject the machine on arrival, or should fail to pay as stipulated, he should return it; that if he uncomplainingly retained it for more than 30 days, he should then be bound to keep it without complaint at all — not that he agreed in advance to restrict his remedy to a return of the machine, in case the seller should breach its warranty to him by failing, after trial on his complaint, to make it do the work it was sold to do. Nothing in the contract indicates that there was any such mutual contemplation or understanding between its makers. The provision is plainly one for the benefit of the machinery company, which it not only could waive, but which also, since the entire writing was prepared by it, will be construed most strongly against its interest. But if it does not clearly on its face import that, it becomes ambiguous and the acts of the parties themselves, done in carrying out their engagement, are especially pertinent in determining what they understood their agreement to be. These, too, strengthen the view of it just expressed; in brief, they were: On August 15, 1922, that is, well within the stipulated 30 days, appellees by letter notified appellant that the machine was not as represented, would not do the work it was sold to do, was ruining all the material they put through it, and adding:
"We have ruined considerable material already, and must now have some relief from you in one way or another; if the molder is properly equipped for doing this work, and you can turn out accurate well manufactured material with it, we want you to show and prove this at the earliest possible moment under your promise. Would like to have Mr. Simmons come here at once and put the machine in proper condition to do the accurate and satisfactory work that this machine should do. Please act immediately on this matter and advise us by wire when your man will be here."
To this appellant replied on August 18th, by both telegram and letter; the telegram being:
"Machine should do what represented to do. Representative on way to see you."
The letter, after reciting the substance of the telegram, continues:
"There is no reason that you cannot make, without any trouble, flooring or your cedar lining. Of course, this machine is not a flooring machine, as yon know, but when it comes to running this class of stock, which you mention in your letter, you should have no trouble whatsoever. And I believe you will get *Page 231 straightened out next week to your entire satisfaction."
Again, on August 24th, the appellees wrote appellant, complaining that its promised man, for whom they had been waiting since the 18th at heavy expense and serious damage, had not arrived. Appellant responded by letter on August 28th, explaining that sickness had prevented its first representative from attending to the machine, and then saying:
"I am sending tonight from here, direct to Houston, a first-class demonstrator and flooring man, whom will get you out of your troubles I am sure."
This was the Mr. Lanius, referred to in the majority opinion, but its recitation that he manufactured 6,500 feet of flooring and offered to manufacture more, etc., is incomplete, as the jury in answer to special issue No. 9 found that this 6,500 feet was not properly machined into merchantable flooring; this finding is not attacked. Furthermore, there was sufficient evidence to justify a further finding that Mr. Lanius never could make the machine work properly, so admitted, and gave up the effort, or to quote the testimony of appellee J. W. Groce:
"Mr. Lanius never was able to turn out merchantable flooring out of that stock with that machine. As well as I remember, Mr. Lanius talked practically every day, and several times a day, and he said that it was not a flooring machine, and would never give satisfaction, could never be made a flooring machine, that he had done everything he could do, that he had changed the pressure bars and had done practically everything he knew to do and he was ready to go. That machine never was worth anything to us in our business; it was a great injury to us."
Within a few days after Mr. Lanius left, appellees, by letter of September 18th, reiterated to appellant that the machine still would not work, and the latter replied by letter of September 22d, expressing surprise and regret at the information, promising its best attention, and concluding:
"You may rest assured we will do the very best we can to get the matter adjusted to your entire satisfaction."
Yet again, on November 6th, appellees by letter continued their complaints against the machine, and the appellant, evidently in the meantime having contrary reports about it from its Mr. Lanius, replied on November 9th as follows:
"We are very much surprised to receive your letter of November 6 regarding the No. 111 molder. We are somewhat at a loss to understand the situation because Mr. Lanius has submitted samples of the work done on this machine which was at 75 feet per minute, and which are certainly fine.
"We shall be very much disappointed indeed if this machine is returned to Beloit, and might say that we have asked our Mr. Lovell to call upon you in connection with this matter. You will undoubtedly hear from him shortly."
Appellees responded on December 1st, with this final letter:
"In regard to your No. 111 Yates molder. On Nov. 9th we received a letter from your Beloit office to the effect that you would be here soon to make some disposition of this machine, but nothing has been done yet.
"We have sold our planing mill to a Houston concern and they will take possession soon, and it is necessary that you come and remove your molder and take care of same at once.
"Inclosed you will find our bill of costs against this machine, which amounts to $691.40, and this must be paid before the molder is removed from the plant. Let us hear from you promptly."
The litigation then ensued, in the manner stated in the majority opinion.
So that, in the light of the circumstances surrounding the parties, the inference to me from the terms of the contract and this course of dealing alike is that appellant, at least by plain implication of law, warranted the machine as being capable of making merchantable flooring and recognized an obligation to make that assurance good, save only in event appellees received and simply kept it for more than a month, despite the presence in their agreement of this so-called 30-day provision; but if that conclusion as a whole is not sound and it should be held with the majority that appellant reserved the right to require the return of the machine as the sole consequence of a breach of the contract on its part, then I think these acts alone conclusively show that it waived that right and undertook to so stand behind its machine, as the jury found, irrespective of the number of days involved; and if it did this "subsequent mutual agreement modified or superseded the original stipulation," for the breach of which it became liable to the appellees for such damages as reasonably flowed to them in consequence.
Beginning with appellees' first-quoted letter of complaint, which was written within about half the required time, there was a virtual refusal to keep the machine unless appellant would make it turn out merchantable flooring, and the latter not only promptly accepted the gauge thus thrown down, but continued its efforts to comply with it, with full knowledge of the consequences in waste of material, expense, and loss of time to the appellees, until advised by them on December 1st that it must be removed and the expenses they were out on it first paid.
As a corollary, it seems obvious that the provision in the contract against a modification unless by written memorandum attached thereto does not prevent the proof of a subsequent agreement altering the terms of the contract, even though oral. Braden Co. v. Seng (Tex.Civ.App.)179 S.W. 1103. *Page 232
Under these considerations, I cannot agree to the rendition against the appellees of their cause of action for damages; but I think they were permitted to recover improper elements, and that this court should have on that account remanded the cause; for instance, the charge of $65 for labor in installing the machine, incurred during the week ending July 29, which was before it arrived, cannot be sustained; neither does the evidence seem to me to indicate that all of the $657.87 allowed as pay roll for efforts to operate the machine from August 1st to September 16th was incurred for that purpose; under the undisputed evidence, also, the item of $581.81 expenses contracted in the purchase from and return to the Southern Pine Lumber Company of a car of white oak lumber, alleged to have been made necessary by the failure of this machine to work, appears to have been too remote, since the purchase was made more than 15 days after the contract in suit was signed, and no special circumstances showing that it would even be needed were brought home to the appellant.
There are probably other items subject to like criticism, but what have been pointed out are enough to require a remand, since the record is such that this court could not separate the wheat from the chaff. In other respects than are herein indicated, I do not differ with the majority.