Bower-Venue Grain Co. v. Smith
| Decision Date | 24 January 1922 |
| Docket Number | 10568. |
| Citation | 204 P. 265,84 Okla. 105,1922 OK 14 |
| Parties | BOWER-VENUS GRAIN CO. v. SMITH. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the breach of a contract of sale of goods consists in the failure of the seller to deliver the goods, the measure of damages is ordinarily the difference between the contract price and the market price of the goods at the time and place of delivery. The damages are, however, subject to deduction for any expenses saved to the buyer by the nondelivery.
Where a demurrer to plaintiff's evidence is overruled, although on account of some omission in the testimony it should have been sustained, if thereupon the defendant introduces testimony, and in so doing supplies the omission, the error in the ruling on the demurrer is cured; and if, upon all the testimony in the case, the judgment is properly rendered, it will not be disturbed on appeal.
A party cannot complain of the admission of evidence over his objection, where he permits evidence of the same tenor to be admitted without objection.
Where B. and V. sold two carloads of hay to S. to be delivered at W. at a stipulated price per ton, and shipped the same to themselves, consigned to their order, held, that the carrier was the agent of B. and V. for the delivery of said hay, and they were liable to S. in damages for the failure of the carrier to deliver.
Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.
Action by Sam J. Smith, doing business as the Central Texas Grain Company, against the Bower-Venus Grain Company, a partnership composed of J. W. S. Bower and H. J. Venus. Judgment for plaintiff, and defendants appeal. Affirmed.
Vilas V. Vernor, of Muskogee, for plaintiffs in error.
S. E Gidney, of Muskogee, for defendant in error.
This action was brought in the superior court of Muskogee county by Sam J. Smith, doing business as Central Texas Grain Company as plaintiff against Bower-Venus Grain Company, a partnership composed of J. W. S. Bower and H. J. Venus as defendants, to recover the sum of $300.80, damages alleged to have been sustained by the plaintiff because of the failure of the defendants to deliver two certain carloads of hay sold to plaintiff by defendants. The court instructed the jury to return a verdict for the plaintiff and assess his damages at the difference between the contract price for the hay delivered at Waco, Tex., and the reasonable cash market value of hay of similar quality at that place at the time the hay should have been delivered to the plaintiff in the ordinary course of business, but in no event should the verdict exceed the amount claimed by plaintiff. A verdict was returned for the plaintiff for the sum of $231, upon which judgment was rendered, and to reverse which this proceeding in error was instituted. The parties occupied reverse positions in the trial court, and we will refer to them as they appeared there.
The evidence shows that on September 17, 1917, the plaintiff purchased of the defendants two carloads of No. 1 prairie hay at the price of $20.50 per ton delivered at Waco, Tex.; that the defendants shipped said hay from Muskogee, Okl consigned to their order at Waco, mailed invoices of said hay to the plaintiff, and attached the original bills of lading to drafts on the plaintiff and forwarded the same through a bank. These drafts were received by the Central Texas Exchange National Bank at Waco. It appears that between the 24th of September and the 10th of October, 1917, the plaintiff frequently inquired at every railroad in Waco, in an effort to locate said cars, but without avail; that on October 8, 1917, the defendants wrote the plaintiff that the railroad company advised them that one car of said hay was still on hand at Waco, undelivered; that upon receipt of this letter the defendant telephoned one Henry Fields, an employee of the Missouri, Kansas & Texas Railway Company at Waco, and the man to whom the plaintiff always went for information desired in regard to the cars, and Fields informed him that said cars were lost in a wreck about 200 miles north of Waco that the plaintiff then, on October 10, 1917, instructed his bank to return the drafts.
At the close of plaintiff's case in chief the defendants demurred to the evidence for the reason that the same failed to show that the plaintiff suffered any loss by any purported breach of the contract, or that the plaintiff was compelled to and did go into the open market and purchase hay at the prices recited in the testimony. This demurrer was overruled, and of this ruling the defendants complain, and insist that, while the evidence of the plaintiff shows that hay of the character of that in question was worth on the market at Waco, Tex., $28 or $29 per ton at the time this hay should have been delivered, there is no evidence showing that the plaintiff was damaged because of going into the market and buying hay on account of the defendants, because of their alleged failure to deliver the hay.
The evidence is undisputed that the defendants agreed to deliver this hay to the plaintiff at Waco at the price of $20.50 per ton, and neither is there any dispute as to the market value of said hay at Waco.
It is the...
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