(after stating the facts as above). [1] So far as the representations were actionable, they were express warranties, and as such became a part of the contract between the parties; and we think the suit should have been predicated on them as warranties, and not as misrepresentations of fact constituting fraud. But if it had been appellee would not have been entitled to a rescission on the case made by the testimony, for there was no provision in the contract authorizing appellee to rescind it if the car was found to be defective in respects covered by the warranties. The representations having been made in good faith, and not fraudulently, and the parties having failed in their contract to provide for a rescission thereof if the warranties were breached, the case in its facts was within the rule adopted by the Supreme Court in Wright v. Davenport, 44 Tex. 164. In that case the buyer of an engine sought a rescission of the contract on the ground that the seller had guaranteed the engine to saw 4,-000 feet of lumber a day, whereas it was not capable of sawing more than 2,000 feet a day, and for that reason was wholly useless to the purchaser. -In reversing a judgment rescinding the contract as prayed for by the buyer, the Supreme Court approved, as correctly announcing the rule it adopted, the statement in Sedgwick on Damages, 286, that:
“Where there is no fraud and no agreement to return the vendee cannot, at his own option, rescind the contract, but has only an action on the warranty”
—the statement in Stovey on Contracts, §’ 850, that:
“If the warranty goes to the degree of fitness or to quality, and it proves to be of an inferior quality or fitness, the goods cannot be returned, and the remedy is by action for damages, the measure of which is the difference between the value of the article as it is and as it was represented to be. Thus, if a machine is sold for a particular purpose, and it will perform none of the functions, it may be returned; but if it only perform them badly 'the remedy is by action for damages”
—and the statement in 2 Smith’s Leading Cases, 276, that:
A “mere breach of warranty, unattended by fraud, does not entitle the vendee to rescind the contract or return the goods.”
And see Organ Co. v. Thomas, 36 Tex. Civ. App. 78, 80 S. W. 1063; Fetzer v. Haralson (Tex. Civ. App.) 147 S. W. 290; Silo Co. v. Alley (Tex. Civ. App.) 180 S. W. 621; 1 Black on Rescission and Cancellation, §§ 23, 185, 212; 5 Elliott on Contracts, § 5110.
Other questions presented by assignments are not likely to arise on another trial, and need not be determined.
The judgment is reversed, and the cause is remanded for a new trial.
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