Lloyd Ligon and Ralph Cannon, d/b/a Master Burglar Alarm, Appellants, v.
Chas. P. Davis Hardware, Inc., Appellee
Court of Civil Appeals of Texas, Third District, Austin- 492 S.W.2d 374;
1973 Tex. App. LEXIS 2102; 12 U.C.C. Rep. Serv. (Callaghan) 447
March 14, 1973
PRIOR HISTORY: From the District Court of Travis County, 53rd Judicial
District No. 192,732, Honorable Herman Jones, Judge
PROCEDURAL POSTURE: Appellant burglar alarm company challenged the judgment
from the District Court of Travis County, 53rd Judicial District (Texas),
which was entered in favor of appellee hardware company in appellee's suit
for breach of implied warranty and breach of contract.
OVERVIEW: Appellant burglar alarm company installed a burglar alarm system
for appellee hardware company. Appellee paid an initial installation fee and
agreed to pay appellant a monthly fee to keep the system in proper working
condition. Appellant agreed to service and monitor the equipment and keep it
operational. After the installation, a thief broke into appellee's store and
stole four shotguns. Appellee sued appellant for breach of implied warranty
and contract. Appellant claimed that the alarm system was not defective, but
that the equipment was turned down to a low level, at appellee's request to
keep bats from tripping the alarm. The trial court entered judgment in
appellee's favor. Appellant challenged that judgment. On appeal, the court
affirmed. The trial court's findings were not contrary to the great weight
and preponderance of the evidence. One of appellant's owners testified that
had the alarm system worked properly, there was a 90 percent chance that the
thief would have been caught, and the loss averted. Appellee's loss was
reasonably foreseeable and was fairly and reasonably within the
contemplation of the parties at the time they entered into the service
OUTCOME: The court affirmed the judgment entered in favor of appellee
hardware company in appellee's suit against appellant burglar alarm company
for breach of implied warranty and contract. Sufficient evidence supported
the trial court's findings that appellant breached its service agreement and
that the breaches of the implied warranty and the service agreement
proximately caused appellee's loss.
JUDGES: Bob Shannon, Associate Justice.
OPINION: [*374] Appellee, Chas. P. Davis Hardware, Inc., sued appellants,
Lloyd Ligon and Ralph Cannon, doing business as Master Burglar Alarm
Company, in the district court of Travis County for breach of implied
warranty and contract. Appellee claimed, in general, that it sustained a
loss resulting from a defective burglar system installed by appellants. Upon
trial to the court, judgment was entered for appellee for $1,520.63. We will
affirm that judgment.
[*375] On June 1, 1971, appellants installed a burglar alarm system for
appellee's Congress Avenue store. For that installation appellee paid
$827.00 and agreed to pay appellants $15.00 each month to keep the system in
proper working condition. Under the agreement, appellants would service and
monitor the equipment and "keep it going." The alarm system was
characterized as "ultrasonic", and if functioning properly, would detect the
presence of a person in the store and register an alarm in appellant's
office. The appellants, or their agents, would then [**2] telephone the
police who, depending upon the circumstances, could arrive at the store
within four to six minutes.
During the evening of August 29, 1971, appellants' alarm system suffered a
bold thief to break through an old elevator shaft at the back of the store
building, enter and steal four shotguns, and pass back without sounding any
Appellee pleaded that appellants breached an implied warranty that the alarm
system was fit for its particular purpose, and also that appellants breached
an express contract to keep that device functioning properly. Appellants'
primary defense to appellee's allegations was that the alarm equipment was
not defective, but rather the equipment was turned down to a low level, at
appellee's request, to keep bats from causing the alarm to be given.
Upon request, the court filed findings of fact and conclusions of law, and
determined that appellants had a duty to furnish and maintain a burglar
alarm system which would perform the function for which it was supplied by
appellants and received by appellee.
Appellants assail the judgment by three points of error, the first being
that court's finding that the burglar alarm system was defective [**3] and
not fit for the purpose intended was contrary to the great weight and
preponderance of the evidence. Points of error two and three complain of the
court's findings that appellants breached the service agreement, and that
the breaches of the implied warranty and the service agreement proximately
caused appellee's loss, were contrary to the great weight and preponderance
of the evidence.
Charles P. Davis, the president and majority stockholder of appellee, was
appellee's principal witness. He testified that the place of entry of the
thief was about two hundred and eighteen feet from the gun department. A
sensing device of the alarm system was a bare ten feet from the gun display
counters. When Davis tested the system the morning after the burglary, he
said, "It done nothing." According to Davis, appellants told him that the
alarm "faded away", and, "that it just went down on its own accord and lost
Ligon admitted that the alarm equipment "did fade down some". This was so,
he said, because Davis' employee, Claude Jackson, had insisted that it be
turned down "way too low, trying to get rid of the bat problem."
The bat population in the store garrett became a "problem" [**4] because
their flight at night near the sensing devices, on occasion, caused the
alarm to be sounded. According to Cannon, Claude Jackson became irritated
after having been aroused several times by the bats tripping the alarm, and
required that the equipment be turned down to the lowest capacity to prevent
the movement of the bats to cause the alarm to be given. Cannon said that he
warned Jackson that the equipment, at that level, was operating in a "danger
zone". Jackson contradicted Cannon's testimony.
When asked if the alarm system would have detected any burglars on August
29, had it been operating properly, and had it been properly adjusted,
appellants' employee, Lyle Duncan, replied, "It would have definitely --
yes, sir, very definitely."
Findings of fact by the court are comparable to a jury verdict upon special
issues, and when supported by some competent evidence those findings will
not be [*376] disturbed on appeal. 4 McDonald, Texas Civil Practice, §
16.05 (Rev.Ed. 1971). We are satisfied from an examination of the statement
of facts that the findings complained of in point of error one and two are
supported by competent evidence.
The evidence detailed above [**5] is applicable to appellants' third point
of error relating to their claim that the court's finding that the breaches
of the implied warranty and service agreement caused appellee's loss was
contrary to the great weight and preponderance of the evidence. In addition
to the previously reviewed evidence, appellant Ligon, on cross examination,
testified that had the alarm system been working properly, there was a
ninety percent chance that the thief would have been caught and appellee's
loss thereby averted.
Tex.Bus. & Com.Code § 2.714 (c) and § 2.715 (b) provide that, in a proper
case, the buyer may recover for consequential damages proximately resulting
from a breach of warranty. Ordinary contract law, at least from the time of
Hadley v. Baxendale, 9 Ex. 341 (1854), has provided that losses are
recoverable which were fairly and reasonably within the contemplation of the
parties at the time of the formation of the contract.
Appellants furnished the alarm system and entered into the service agreement
to protect appellee from a burglar being in appellee's store undetected. It
is undisputed that the system did not sound an alarm on August 29. Had the
alarm system worked properly, [**6] appellant Ligon's testimony was that
there was a ninety percent chance that the thief would have been
apprehended, and the loss averted.
With respect to foreseeability, there is evidence to support the view that
appellants could have reasonably foreseen that, if the alarm system did not
operate properly, a burglar could enter and leave appellee's store
unmolested and that appellee, on that account, could suffer loss. We are of
the further opinion that the evidence supports the view that the loss
suffered was one which was fairly and reasonably within the contemplation of
the parties at the time they entered into the service agreement.
The judgment of the trial court is affirmed.
Lloyd Ligon and Ralph Cannon, d/b/a Master Burglar Alarm, Appellants, v. Chas. P. Davis Hardware, Inc., Appellee
Lloyd Ligon and Ralph Cannon, d/b/a Master Burglar Alarm, Appellants, v.