Earl F. Vinson sued the Lone Star Olds Cadillac Company to recover damages for the alleged breach of warranty in regard to the mechanical condition of a used car, purchased by plaintiff from the defendant. Plaintiff recovered below, from which the defendant appealed and, on original submission, we reversed the judgment below and rendered judgment for the defendant. On rehearing, the majority has reached the conclusion that error was committed in reversing and rendering, but rather that, the judgment below should have been affirmed.
In October, 1940, plaintiff purchased from the defendant a used 1939 model automobile, the price being $689.82 (being the reasonable market value of such make *674and model in good mechanical condition). The plaintiff was allowed a credit of $195 for a used car put in on the trade, and executed an installment negotiable note for $494.82 for the balance; but prior to the institution of suit, the note in question was transferred to General Motors Acceptance Corporation, an' innocent purchaser.
Plaintiff alleged that the defendant, acting through an agent conducting the sale, expressly warranted orally that the automobile was in good mechanical condition and would operate efficiently; that plaintiff relied upon such warranty, but for which, he would not have made the purchase; that the car was inefficient, defective, and not in good mechanical condition as warranted, resulting in plaintiff’s suffering the damages, for recovery of which the suit was instituted. Defendant denied that any of its agents had orally warranted the Oldsmobile car purchased by plaintiff, as alleged by him; but alleged that all terms and conditions of the sale are contained in a written sale contract signed by the parties, reciting, among other things, that no warranties, express or implied, representations, promises or statements have been made to plaintiff, unless endorsed on the contract in writing, and that no such warranties alleged by the plaintiff were ever endorsed upon the sale contract. In a supplemental petition, plaintiff admitted that he signed the sale contract, as alleged by the defendant, but was induced to do so through fraud and fraudulent representations of defendant’s agent, in this, that after the oral warranties, regarding the condition of the car, were made, defendant’s agent presented plaintiff with the written instrument in question, requested him to sign same, stating that it was not necessary that he read the instrument, that it was simply a paper the Loan Company wanted signed; that it contained nothing varying their oral agreement theretofore made concerning the guaranty on the car; that defendant’s said agent knew plaintiff was unversed in and ignorant of the-tenor and purport of the legal phraseology of the document; that plaintiff signed the written instrument, relying upon said representations, but for which, he would not have done so.
The statement above reflects the status of the pleadings on the pivotal issue involved in the case when trial was had. In response to issues properly submitted (after the court overruled defendant’s motion for an' instructed verdict), the jury found that, prior to the time plaintiff signed the sale contract, defendant’s agent conducting the sale warranted the car to be in good mechanical condition; represented, at the time the contract was signed, that it was not necessary for plaintiff to read same, as it contained nothing altering or varying the oral agreement warranting the car to be in good mechanical condition; and that plaintiff relied upon said representation when he signed the contract. The jury also found that, at the time of the sale, the car was not in good mechanical condition and that $300 was its reasonable cash market value at the time. Defendant’s motion to set aside the verdict and for a new trial being overruled, this appeal was perfected.
The propositions urged by the defendant for reversal are, first, that the court erred in predicating judgment upon an oral warranty in conflict with the terms of the written sale contract and purchase order, without any evidence of fraud vitiating the written contract; the second proposition urged is dual in nature, to the effect that, the court erred in submitting Issue No. 1, inquiring whether or not defendant’s agent warranted the car as alleged, without defining the term “warranted”; also erred in refusing defendant’s Issue No. 9, asking the jury to find whether or not the alleged representation of defendant’s agent as to the condition of the car, was merely his opinion; and, third, that the court erred in rendering judgment for the plaintiff, based on a breach of warranty, in that, plaintiff neither alleged nor proved ground for rescission; the contention seemingly being that plaintiff would first have to allege and prove ground for rescission before being permitted to recover for breach of warranty.
Mr. Whittaker, defendant’s agent who dealt with plaintiff, admitted that he told him the car was in good condition, all right, and that if not all right, defendant would make it so. Referring to the purchase order sighed by plaintiff, containing (stamped upon it) the following language: “50-50 guarantee for 30 days in our own shop,” witness was asked: “Q. Is that the only guarantee you give on all your cars or do you have others? A. No, that is the only guarantee unless it is just a verbal guarantee to keep a customer satisfied, like I made him.” Mrs. Vinson, present during *675the negotiations between her husband and Mr. Whittaker, testifying, was asked:
“Q. Was there a conversation between your husband, Whittaker and Dyson? A. Mr. Whittakér said it (the car) was in good shape, and they would guarantee it to be in perfect running condition, and all, you know, mechanical condition. He said it was in perfect shape, and that if it was not, he would make it good.
“Q. He guaranteed it as being — ? A. Yes, in perfect running condition, mechanically, in every way.” Testifying in his own behalf, plaintiff was asked:
“Q. Mr. Whittaker did not attempt to tell you what was in every one of these written agreements, did he? A. No, Sir, he said there was no need to bother with it. That it was just routine, and I figured that they were a big firm and reliable and would do the right thing — at first, I did — he said it was just a matter of routine, nothing there to hurt me, nothing against me, and I signed them.”; also testified that, before signing t.he sale contract, he did not drive the car or hear the motor, because Whittaker said it was useless, that they were behind it, and guaranteed it to be in first-class mechanical shape and that if there was anything wrong about it, they would make it good. At another place in his testimony, plaintiff was asked:
“Q. Did you read the papers you signed? A. No sir.
“Q. Why did you not read them? A. He said it was unnecessary; there was a lot of writing and printing on them, and I made the remark that if everything was all right, there was no use reading them; it would take a Philadelphia lawyer to understand them anyway. * * *
“Q. Is that the reason you did not — because he said there was no use to read them ? A. Yes.
“Q. Did you know anything — did you know there was anything in any paper you signed which said that the car was not guaranteed? A. No sir, I did not notice any.
“Q. Did you know there was anything in one of those papers you signed to the effect that there were no warranties or guaranties other than what was set forth in them? A. No sir.
“Q. If you had known it, would you have signed them? A. No sir, I would not.”
That the car was not in good mechanical condition at the time plaintiff made the purchase, as verbally guaranteed by Mr. Whit-taker, was abundantly established by the evidence. It was shown that the car had to be taken back to the defendant for repairs within two or three days after the sale, and within the first two months, was returned at least 12 times; and during that period, was also taken to other garages for repairs; it was also shown that, attributable to its defective condition, the car consumed an undue amount of oil and gas, and generally gave unsatisfactory service. Neither the value of the car at the time of sale, as found by the jury, nor the amount for which judgment was rendered, is called in question.
In view of the testimony set out somewhat at length, we do not think it can correctly be insisted that the verdict was not authorized by evidence, or that the judgment rendered did not follow logically the findings of the jury. The applicable doctrine, we think, was announced in Bankers’ Trust Co. v. Calhoun, Tex.Civ.App., 209 S.W. 826, writ refused, opinion by Chief Justice Rainey, who said: “The rule that parol evidence is inadmissible to vary the terms of a written contract does not prevent the use of extrinsic evidence to attack its validity by showing fraud in its inception, notwithstanding the written contract provides that ‘no conditions, representations, or agreements other than these’ contained therein could be considered.” Syllabi 4. The rule that a person who signs a written instrument without reading it, when he has the ability and opportunity to do so, cannot afterwards complain that he did not know its contents, has no application where the signature of the party signing is obtained without his reading it, by reason of any actual fraud, artifice or representation upon which the party signing has a right to rely, and does rely, as in the instant case. Bell v. Gaines, Tex.Civ.App., 237 S.W. 346, and authorities there cited.
The defendant relies, among others, on Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47, 48, as an authority. We do not think that case is in point, in that, the parol evidence rule invoked in the instant case was not involved. This is perfectly apparent from the language of Judge Hickman, who said: “There are no allegations whatever on the part of plaintiffs, nor proof, to the effect that by reason of fraud, accident or mistake the written contract contained anything not agreed to by the parties, or that any promise, representation or war*676ranty was omitted therefrom. Nor is there any allegation or proof that by any fraudulent representation, artifice, or conduct the parties were induced to sign the contract, or that at the time it was signed they did not know or were prevented from knowing what it contained. Under these circumstances, it is plain that defendant was not bound by any promise or representation made by Nordyke and Hamm, not contained in the written contract. J. I. Case Threshing Mach. Co. v. Manes, Tex.Com.App., 254 S.W. 929; Bybee v. Embree-McLean Carriage Co., Tex.Civ.App., 135 S.W. (203), 205.” The language just quoted indirectly supports plaintiff’s contention.
The defendant cannot complain of the failure of the court to define the term “warranted,” employed in Special Issue No. 1, because no request therefor was made, as contemplated by Rules 273 and 279, Texas Rules of Civil Procedure; nor do we think the court erred in refusing defendant’s requested Issue No. 9, in that, there was no evidence supporting the theory that defendant’s guaranty in regard to the good condition of the car was merely the expression of the opinion of defendant’s representative; on the contrary, what was said was an unequivocal statement of fact in regard to the then condition of the car.
Defendant’s third proposition seemingly is that, before plaintiff could recover damages for breach of warranty, he was required to seek and obtain a rescission of the sale contract. To this proposition, we cannot agree. Where, as in the instant case, the buyer claims that the sale was induced by the seller’s fraud or artifice, and that the commodity sold did not come up to the warranty given, the buyer has the choice of remedies; that is, may rescind the contract entirely, or affirm, and seek damages for breach of warranty; but cannot pursue both. See 37 T.J., p. 514, § 235. However, in the instant case, plaintiff was precluded from rescinding, because, before the institution of suit, the negotiable note given for the unpaid purchase money had passed into the ownership of an innocent purchaser. See 37 T.J., pp. 516, 517, § 236; also, Texas & N. O. Ry. Co. v. Thompson, Tex.Com.App., 12 S.W.2d 963.
For the reasons stated, we think the Court erred in reversing- and rendering judgment for the defendant, therefore, plaintiff’s motion for rehearing is sustained; the former judgment of this Court is set aside and judgment is now rendered for the plaintiff, affirming the judgment of the court below.
Affirmed.
BOND, C. J., dissents.