Constantin Ref. Co. v. Thwing Instrument Co.

• Decision Date: 13 January 1919
• Docket Number: Case Number: 8685
• Citation: 1919 OK 15,178 P. 111,72 Okla. 16
• Parties: CONSTANTIN REFINING CO. v. THWING INSTRUMENT CO.
• Court: Oklahoma Supreme Court

1919 OK 15

178 P. 111

72 Okla. 16

CONSTANTIN REFINING CO.

Case Number: 8685

Supreme Court of Oklahoma

Decided: January 13, 1919

Syllabus

¶0 1. Sales -- Action for Price--Notice of Defect--Instructions.

Instructions given and requested instructions refused examined, and held that the court did not err in instructing the jury in the respects, complained of.

2. New Trial--"Verdict Contrary to Law."

A verdict is contrary to law When it is rendered in disobedience or disregard of the court's instructions.

3. Appeal and Error--Insufficiency of Evidence--Presentation of Grounds of view.

Where the plaintiff in error (defendant below) acquiesced in the submission of the issues to the jury without either demurring to the plaintiff's evidence or asking an instructed verdict, or otherwise attacking the sufficiency of the evidence, he cannot in this court successfully claim the evidence does not support the verdict, even though assigned in the motion for new trial as grounds therefor.

Error from County Court, Tulsa County; John R. Ramsey, Judge.

Action by the Thwing Instrument Company, against the Constantin Refining Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Pat Malloy and E. M. Gallaher, for plaintiff in error.

Poe, Hindman & Lundy, for defendant in error.

SHARP, C. J.

¶1 On August 11, 1914, the Thwing Instrument Company sold the Constantin Refining Company of Tulsa a recording pyrometer and six thermocouples, the consideration therefor being $ 350, payable one-half in 30 days, the balance in 90 days from installation. As a part of the consideration the instruments were to be installed under the supervision of the seller, who guaranteed "the perfect working of the instrument" for two years. After installation, and on September 24th, the instrument company wrote the refining company, demanding payment of the first installment, which letter the refining company did not answer. Again, on October 21st, the vendor wrote the refining company, calling attention to the past-due installment, and asked for payment thereof. This letter likewise remained unanswered. On November 10th the vendor drew a sight draft on the refining company for the full amount of the purchase price, which draft was returned unpaid. On December 1st following a third letter was written the refining company, complaining of its action in failing to pay the draft drawn on presentation. On December 11th the president of the refining company wrote the instrument company, admitting the receipt of its letters, and stating that the account would have been paid had the president of the company, C. B. Thwing, "finished the installation of the same" (referring to the pyrometer and thermocouples), and in which letter it was further stated that the instruments were of no use because of a defect in the "registering Sheet riding over the roller." This letter, according to the evidence, was not mailed until December 21st. Immediately upon its receipt the instrument company wrote the refining company again, complaining of its action in not meeting its obligation, and informed it how the defect could be overcome, and at the same time sent a considerable number of extra charts for the use of the refining company. These charts or registering sheets, it was claimed at the trial, were not received by the refining company, and on January 5, 1915, 100 additional charts were sent by insured parcel post to the refining company. The defense of the refining company was a breach of warranty of the instrument sold it.

¶2 The first error assigned is the giving of instruction 4 and the refusal to give defendant's requested instruction No. 4. We have examined these instructions, in connection with proposition No. 2 of the plaintiff's brief, and are unable to see wherein the court erred in giving and refusing the respective instructions. The instruction given informed the jury that it was the duty of the defendant under the contract in evidence, to notify plaintiff of any defect in the instrument within a reasonable time after such discovery; but, if after a defect was discovered by defendant, and within two years (time limit of the guaranty) after the installation of the instrument, and before the commencement of the action, defendant notified plaintiff of the defect, and plaintiff endeavored to correct the same, then plaintiff waived its right to object to the sufficiency of the notice. This instruction was most favorable to the defendant company, which for more than months had failed to notify plaintiff of any defect in the practical operation of the registering instrument. Indeed this very point is made by the plaintiff in error in its argument of proposition No. 2,...