1. Damages — Costs of Suit. — Where the purchaser of a machine executed his note therefor, he can not, in an action against the seller to rescind the sale because of failure of the machine to work, and for damages, recover the costs and attorney fees paid by him in a suit against him on the note by an endorsee to whom it was transferred before maturity.
2. Limitation of Two Years — Claim of Damages. — A claim of damages for the loss of a crop of oats caused by the failure of a harvesting machine to do work as the seller represented, is a debt such as will be barred by limitation if suit be not commenced within two years after the cause of action accrues.
3. Practice — Amendment — Error not Reversible. — An amended petition should state the date of filing the original petition, but it is not reversible error to overrule an exception taken for such failure, where defendant's answer itself alleges the date of filing such original petition.
4. Verdict not Responsive to Issues. — Where the purchaser of a machine sues the seller to recover the purchase money, alleging that he relinquishes all claim to, and tenders back the machine, a verdict in favor of plaintiff for a part of the purchase money only, and that he retain the machine, is not responsive to the issues made by the pleading.
STEPHENS, ASSOCIATE JUSTICE.
The judgment in this case must be reversed and the cause remanded for a new trial on the following grounds: The exceptions of appellant to that part of appellee's petition which alleged as items of damage the costs of the Dallas suit, including the attorney fee, should have been sustained, and these items should not have been submitted to the jury as part of the damage.
There was error also in sustaining the exceptions of appellee to appellant's plea of limitation against the claim of $250 for loss of the oat crop of 1888. When this suit was brought, July 26, 1890, more than two years had elapsed since this loss was sustained. If this damage was recoverable, it was for a breach of verbal contract, and hence a debt within the meaning of article 3203, Revised Statutes, section 4. Robinson v. Varnell, 16 Tex. 382 [ 16 Tex. 382]; Stiff v. Fisher, 2 Texas Civ. App. 346[ 2 Tex. Civ. App. 346]. Likewise, if construed to be an action of damages for deceit, two years, it seems, would be the limit. Bass v. James, 83 Tex. 110.
The exception to the amended petition, on the ground that it did not show the date of the original, should have been sustained; but this error would not require a reversal of the judgment, in view of the allegation of appellant in its answer of the date of the filing of said original petition.
The verdict of the jury was not responsive to the issues made by the pleadings and submitted by the charge, and hence a new trial should have been granted.
Under the issues developed, the court should have submitted the fifth charge requested by appellant, but should not have given some others that were requested and given, and especially in so far as they contained a repetition of the same proposition.
The charge given at request of appellee was also in some respects erroneous, as will be seen from the conclusions announced above.
The issue which should have been submitted to the jury in behalf of appellee, under the proof offered by him, was, whether in buying and retaining the machine he relied upon the promise of appellant's agent, if such a promise was made, that the machine should cost him nothing, but be returned, if it failed to do good work, in which event he had the right, within a reasonable time and after a fair test, upon its proving to be a failure, to relinquish the machine and recover the money paid for it, with interest. This alleged promise, however, is not satisfactorily alleged in the petition. In the absence of such a promise on the part of appellant's agent, if the machine was not what it was represented and warranted to be, the damage recoverable, if not barred by limitation, would be for breach of warranty, which would ordinarily be the difference in value between the machine in question and the kind it was represented to be.
We find no such evidence of fraud in the record of this case as to warrant the submission of that issue to the jury.
The judgment will be reversed and the cause remanded for a new trial.
Reversed and remanded.