Davidson Oil Country Supply Co., Inc. v. Klockner, Inc.
| Citation | 917 F.2d 185 |
| Decision Date | 02 November 1990 |
| Docket Number | No. 89-2221,89-2221 |
| Parties | DAVIDSON OIL COUNTRY SUPPLY CO., INC., Plaintiff-Appellant, v. KLOCKNER, INC., Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeal from the United States District Court for the Southern District of Texas.
ON PETITION FOR REHEARING
(Opinion August 15, 1990, 5th Cir., 1990, 908 F.2d 1238)
Before BROWN, WILLIAMS and JONES, Circuit Judges.
In our opinion, dated August 15, 1990, 908 F.2d 1238 we reversed the judgment of the trial court in part and remanded for a new trial, all issues and claims of Appellant, Davidson Oil Country Supply, Inc., ("DOCS"), related to question of product defect and liability for Appellee, Klockner, Inc.'s ("Klockner") breach of warranty. We also reversed the summary judgment granted to Klockner regarding the unpaid purchase price of the 8 5/8" material (referred to as "Ferrotubi") and remanded those issues for trial. We affirmed the trial court's holding that DOCS take nothing by virtue of its usury claims against Klockner.
Klockner's petition requests the Court to affirm the interlocutory summary judgment. We deny Klockner's petition for rehearing. The summary judgment should not have been granted. So there can be no confusion as to our ruling, the interlocutory summary judgment is reversed and remanded in its entirety for a retrial of the issues of liability and damages pertaining to all of the 8 5/8" material.
The attack on the reversal of summary judgment is that the Court overlooked Sec. 2-717 comment of the U.C.C. which states:
To bring this provision into application, the breach involved must be of the same contract under which the price in question is claimed to be earned.
We reject, as unfounded, the contention of any distinction between a "claim" and "damages"; the evidence to be offered as reflected in DOCS' response showed, at the least, substantial controversy as to the knowledge by Klockner of the deficiencies of the product and its unmerchantability and the downgrading of the materials which under Sec. 2-717, entitled the buyer to exercise the right of non-payment, see Sec. 2.607 and comments 1 Tex.Bus. and Com.Code, Sec. 2.714 and Sec. 2.607, comments 4 and 6.
All these were issues triable to the jury. Summary judgment was wrong. Reversal was correct.
Klockner's Petition for Rehearing is DENIED.
DOCS has requested a rehearing regarding the disposition of its usury claims. In our original opinion, we held that, pursuant to jury findings, New York law governed the usury claims and precluded usury as a defense.
DOCS points out that early in the trial of the case, the district court, after extensive briefing by both sides, held that Texas law applied to the transactions. The court never changed this ruling and the trial proceeded accordingly.
Klockner in response asserts ample evidence was elicited by both parties regarding the terms of the contract in issue. Extensive testimony was introduced by both sides establishing the normal manner in which contracts were formed between the parties as well as the timing and sequence of the purchase order and confirming contract documents.
Consequently, the contract being governed by New York law, DOCS is not entitled to raise the defense of usury. N.Y. General Obligations Law Sec. 5-521 (McKinney 1989).
Notwithstanding the arguments advanced by Klockner, in the exercise of our wide but essential discretion we conclude that the usury claims should be remanded in the interest of justice because the conduct of the trial created an atmosphere of severe prejudice against DOCS and its witnesses. Our original opinion reflects the exclusion of a substantial volume of relevant evidence which created an atmosphere of disbelief for the claims and defenses of DOCS. This atmosphere of disbelief permeated the entire trial and tainted the jury findings regarding choice-of-law and usury.
The voluminous record reflects that the really critical issue for jury decision turned on the credibility of DOCS and Klockner and their respective witnesses. Not only was it raised as a continuous critical factor by the evidence, but also by the attacks made on it by the respective adversaries. The subject of credibility was almost the sole issue discussed by either of the parties in the jury argument which we have read with interest.
As the jury was able to see this case it was the simple one of not more than two down-hole failures of the tubing. And even as to these there was substantial doubt on connecting the failure with Ferrotubi through...
To continue reading
Request your trial
-
Folks v. Kirby Forest Industries Inc.
...a sound and acceptable reason." Davidson Oil Country Supply v. Klockner, Inc., 908 F.2d 1238, 1245 (5th Cir.1990), on rehearing, 917 F.2d 185 (5th Cir.1990). "All relevant evidence is admissible in a jury trial, unless its Kirby contends that the terms of the sale tend to establish Hood's l......
-
Brazos River Authority v. Ge Ionics, Inc.
...Viazis v. Am. Ass'n of Orthodontists, 314 F.3d 758, 767 (5th Cir.2002) (citation omitted). In Davidson Oil Country Supply v. Klockner, Inc., 917 F.2d 185 (5th Cir.1990) (per curiam) (on petition for rehearing), we held that exclusion of evidence of similar occurrences was not harmless, so a......
-
Finesse Wireless LLC v. AT&T Mobility LLC
... ... GbR v. Eli Lilly & Co. , 276 F.Supp.3d 629, 643 (E.D ... Tex ... 1985); see also Laxton v. Gap ... Inc. , 333 F.3d 572, 586 (5th Cir. 2003) (“A new ... (Dkt. No. 297 at 6-7 (citing Davidson Oil Country Supply ... Co. v. Klockner, ... ...
-
Admiral Ins. Co. v. Brinkcraft Development, Ltd.
...642 F.2d at 751. See also Davidson Oil Country Supply v. Klockner, 908 F.2d 1238, reversed in part on rehearing on other grounds, 917 F.2d 185 (5th Cir.1990). Woods-Tucker compels us to conclude that New York bears a reasonable relation to the note now held by Admiral. First, both of San An......