explaining that the “implied duty of good Order Page 3 of 5 22-CV-03928 Kingsbury Companies, LLC v. Winton Goodrich et al and workmanlike performance has been applied . . . as an affirmative defense . . . or offensively . . . to collect damages proximately caused by unskillful and deficient work”
How later courts described this case
- explaining that the “implied duty of good Order Page 3 of 5 22-CV-03928 Kingsbury Companies, LLC v. Winton Goodrich et al and workmanlike performance has been applied . . . as an affirmative defense . . . or offensively . . . to collect damages proximately caused by unskillful and deficient work”
- holding “breach of the implied warranty was plainly within the common knowledge of laymen and did not require expert testimony” because “jurors had sufficient knowledge to find that the failure to connect a washing machine drain would not be considered good and workmanlike”
- holding the implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner may not be waived and overruling Robichaux "[t]o the extent that it conflicts with this opinion"
- upholding finding of breach of implied warranty when the plaintiffs discovered that the sink in their prefabricated home had not been connected to the drain in one of the interior walls, resulting in a continual leak that caused damage to the home, and attempted repairs by the seller caused additional damages
Written by the judges who cited it.
The opinion
MAUZY, Justice,
concurring.
I concur in all respects with the majority opinion. My only objective in this opinion is to take issue with the concurring opinion.
Both the Senate sponsor and the House sponsor of House Bill 417 wanted to include breach of implied warranties in the *362 bill when it was being considered by the legislature in 1973. However, the Attorney General of Texas had entered into a political agreement to not include implied warranties in an effort to have the legislature enact a “consensus” bill. I was the Senate sponsor of H.B. 417 and I am well aware of the compromises and political horse trading engaged in by the Attorney General of Texas at the time the bill was passed. I fail to see how those political compromises that were so necessary to achieve a worthwhile result in the legislative process 14 years ago can in any way be construed as “an improper excursion into the legislative arena.”
The concurring opinion asks how this case is any different from Dennis v. Allison, 698 S.W.2d at 94. The answer to that question is that the makeup of this court has changed. Predictability and stability in our law is not to be maintained at the cost of being wrong. Two wrong decisions do not make a right decision. ■ The simple truth of the matter is that the dissent was right in 1985 and the majority was wrong. The people, speaking through the elective process, have constituted a new majority of this court which has not only the power but the duty to correct the incorrect conclusion arrived at by the then-majority in 1985 on this question. “Law must be stable and yet it cannot stand still.” Roscoe Pound, Interpretations of Legal History 1 (1923).
Finally, not even the author of the concurring opinion can dispute that this court must be amenable to the needs of our citizens. We must be willing to expand or limit the law dependent upon the perceived ills of a changing society. We must also be able to review even the most recent of decisions to determine if the rationales contained therein are still appropriate. Any other policy would be to insure a stasis in the laws of this State and would eventually deny the rights of the people whom we represent. It requires a great deal of intestinal fortitude to overrule decisions as recent as Dennis v. Allison, 698 S.W.2d 94 (Tex.1985), and G-W-L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex.1982). We as a court, however, cannot swerve from our ultimate duty as arbiters of legislative intent. Arguments that seem logical and unassailable in one case are not always applicable or desirable under different facts or after time has passed. So it is today. Our decisions in Dennis and Robichaux were arguably correct when made, but do not reflect the rights which this court believes merit protection from unwarranted intrusion at this time. To follow the concurring opinion here would only aid those persons who are shoddy and slovenly in their work and would limit the rights of our citizens for redress under the law.
“Cessante Ratione Legis cessat ipsa Lex.” (Co.Litt. 70 b.). “Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.” 7 Rep. 69; per Willes, C.J., Davis v. Powell, Willes, 46, cited arg. 8 C.B. 786 , (E.C.L.R. 65).
It is a well settled rule that the law varies with the varying reasons on which it is founded. This is expressed by the maxim, “cessante ratione, cessat ipsa lex.” This means that no law can survive the reasons on which it is founded. It needs no statute to change it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons, which in the progress of society gain a controlling force, the old law, though still good as an abstract principle, and good in its application to some circumstances, must cease to apply as a controlling principle to the new circumstances.
Loomis, J., Beardsley v. City of Hartford, 50 Conn. 529, 541 (1883).