where the court allowed a 6% deviation in cooling capacity of an air-conditioning system since such deviation was acceptable in the trade
How later courts described this case
- where the court allowed a 6% deviation in cooling capacity of an air-conditioning system since such deviation was acceptable in the trade
- a case which, though involving Article 2, interprets Section 1-205 of the U.C.C.
Written by the judges who cited it.
The opinion
ON REHEARING
All parties have filed motions for rehearing and we have given careful consideration to each motion. Being convinced that our original determination was correct, the motions for rehearing filed by School District, Modine, and LFH are each overruled and refused.
Jud’s motion for rehearing contains a single assignment: This court erred in reversing the judgment in favor of Jud against School District, there being no appeal from said judgment by School District. The point is well taken and is sustained.
Based upon adequate pleadings, sufficient evidence, unassailed jury findings, and a judgment from which School Dis *846 trict did not appeal, Jud recovered judgment against School District and Modine, jointly and severally, for $61,000. School District was given judgment for indemnity against Modine; but only Modine has appealed from Jud’s judgment. School District’s liability to Jud was primary and independent and in no manner dependent upon Modine’s liability for breach of the alleged contract. Cf. Adams v. Houston Nat. Bank, 1 S.W.2d 878, 881 (Tex.Comm.App., 1928, holding approved). Jud was and is entitled to only one recovery for the damages and it has a final judgment against School District therefor.
School District’s claim for indemnity against Modine is not dependent upon Jud’s presence in the new trial which we have ordered. School District’s liability to Jud has been established in an adversary trial in which Modine participated. Nor are the claims of School District, Jud, and Modine so interwoven as to require a reversal of the whole judgment. This facet of the case is controlled by the rule of law announced in Lockhart v. A. W. Snyder & Co., 139 Tex. 411 , 163 S.W.2d 385, 392 (1942):
“It is the general rule that where one party appeals from a judgment, a reversal as to him will not justify a reversal against the other nonappealing parties. This rule, however, does not apply in cases where the respective rights of the appealing and nonappealing parties are so interwoven or dependent on each other as to require a reversal of the whole judgment where a part thereof is reversed.”
See also, Dairyland County Mut. Ins. Co. of Tex. v. Martinez, 484 S.W.2d 785, 788 (Tex.Civ.App., El Paso, 1972, error ref. n. r.e.).
Jud’s motion for rehearing is granted; the cause of action of Jud against School District which was merged into the judgment against School District is now severed from the remainder of the case and Jud’s judgment against School District alone is now affirmed. Our prior judgment is amended and modified in this respect only.