#### Swann Bros. & Moore v. P. W. Lowe.

(No. 3392.)

Appeal from Dallas County.

Geo. H. Plowman, counsel for appellants.

No counsel appeared for appellee.

Opinion by

White, P. J.

§ 303. *Contract; evidence of breach of held insufficient.*This was a suit brought by appellants on two notes of hand, for $125 each, to be due December 1, 1888, and August 1, 1889. The consideration for these notes was certain machinery sold by appellants to appellee, Lowe, and, as a part of the contract of sale and purchase of said machinery, the appellants warranted that said machinery, with the proper management, would perform work well; that if, upon setting it to work,, the purchasers were not able to make it operate well, a written notice, stating wherein it failed to conform to the warranty, was to be given to the appellants, and a reasonable time allowed them to remedy the defects, if any; that, if they were not able to make it operate well, the purchaser^ rendering friendly assistance, and the fault was in the machine, then it was to be taken back by the appellants, and another substituted in its place; that the use of said machine, after ten days’ trial without such notice, should be conclusive of satisfaction and the fulfillment, of the warranty. The defendants in their answer pleaded general demurrer, general denial, and specially pleaded that the machine was worthless, and that the consideration for the notes had failed. They further pleaded that they had already paid $100 upon the contract of purchase, for which they prayed judgment in reconvention, as well as $500 damages for loss of profits in failing to get the machine to work.' Plaintiffs demurred, and specially excepted to the answer of defendants, setting out eleven grounds of special exception to the answer. The court *527overrated the plaintiffs’ special exceptions, save two, as to the loss of profits and custom, which were sustained, and these two pleas stricken out. The jury returned a verdict for appellee against appellant for $100, for which judgment was rendered, with costs. There was no proof of any fraud or deceit in the sate of the machinery. The machinery wTas delivered to defendant on September 11, 1888. In October, 1888, he broke a portion of the machinery, and the plaintiffs repaired it. Nothing more was heard from him until after his December note became due, when he writes to the appellants as follows: “In reference to the note due you, I am sorry that I could not* pay it wrhen due. I will try and see you this week.” Appellants testified that no complaint was heard from defendant until he was sued for his December note, when he came up to see them, and complained of short crops and hard luck, and offered to pay the notes if plaintiffs would dismiss the suits, and give him time, which they did, and extended the December note until August, 1889. Nothing more was heard from the defendant until June, 1889, just prior to the time his two notes became due; when he writes: “When can you come down and fix the gin? I think it can be fixed all right here, without sending it to Dallas, ” etc. In June or July, 1889, defendant sold the machinery to one Sims. Prioi to this last sate he had used the gin from October, 1888, to June, 1889. We are of opinion that the judgment of the court below is erroneous. Appellee never gave notice, as he was required by the contract, of any imperfection in the machinery. He never requested appellants to take it back because it was .worthless, and substitute good machinery in its place. He used the machinery for a year, and then sold it to a third party, and, at his instance, the time for the payment of his notes was extended; and in the face of these facts, when sued upon his notes, pleads a rescission of the contract, because the machinery was worthless, and claims that he is entitled to recover back *528the $100 which he had paid in part payment of the purchase-money. We cannot give our sanction to the judgment rendered under such circumstances,

March 19, 1892.

Reversed and remanded.