Lawton Ref. Co. v. Hollister

• Court: Oklahoma Supreme Court
• Writing for the Court: McNEILL, J.
• Citation: Lawton Ref. Co. v. Hollister, 1922 OK 19, 205 P. 506, 86 Okla. 13 (Okla. 1922)
• Decision Date: 24 January 1922
• Docket Number: Case Number: 10573
• Parties: LAWTON REFINING CO. v. HOLLISTER.

1922 OK 19

205 P. 506

86 Okla. 13

LAWTON REFINING CO. v. HOLLISTER.

Case Number: 10573

Supreme Court of Oklahoma

Decided: January 24, 1922

Syllabus

¶0 1. Sales--Breach of Warranty--Elements of Damage--Prospective Profits.

Profits or gains prevented may be recovered in an action for breach of warranty, where they can be rendered reasonably certain by evidence, and have naturally resulted from the breach.

2. Appeal and Error-- Review--Verdict--Sufficiency of Evidence.

In a civil action, triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal.

3. Same--Affirmance.

Record examined, and held, that there was no reversible error in the record, and ordered that the judgment of the trial court be affirmed. On Rehearing.

4. Sales--Breach of Warranty-- Latent Defects--Damages--Loss of Profits.

In the sale of goods, the rule that there can be no recoupment for consequential damages resulting from continued use after knowledge of defects does not have application as a rule of damages where the defects are not discoverable to the senses, in other words, patent, and can only be discovered upon use, and where the purchaser has received said goods without knowing said defects and upon discovering said defects notifies the seller and offers to return same at his own expense, and which return the seller refuses, and, besides, the seller knows that goods are bought for resale and has in addition thereto warranted the quality of the goods; under such circumstances the buyer may make disposition of said goods to the best of his advantage and that of the seller, and is entitled to recover, not only the difference in the value of the goods purchased and the value of the goods as delivered, but may also recover consequential damages resulting from the defective condition of said goods, among which may be loss of profits, and that is the proximate result of said defects and that may be reasonably ascertainable under the facts and circumstances.

Error from District Court, Jefferson County; Cham Jones, Judge.

Action by the Lawton Refining Company against S. L. Hollister for purchase price of gasoline; cross-petition by defendant for damages for breach of warranty. Judgment for defendant, and plaintiff brings error. Affirmed.

Parmenter & Parmenter, for plaintiff in error.

Bridges & Vertrees and W. D. Hereford, for defendant in error.

McNEILL, J.

¶1 This action was commenced in the district court of Jefferson county by the Lawton Refining Company against S. L. Hollister to recover the sum of $ 301.49, a balance due for a car of gasoline sold by the plaintiff to the defendant. The defendant answered, admitting purchasing the gasoline and having paid the sum of $ 850 thereon, and pleaded that the gasoline was purchased according to a sample that had been placed in defendant's car and represented as being a high grade gasoline, and the defendant had paid plaintiff more than the value of the gasoline, and the same was not a high grade gasoline. For cross-petition defendant pleaded being in the mercantile business at Addington, Okla., and engaged in selling gasoline at retail, and that the gasoline purchased from plaintiff was of such an inferior grade that it could not be used in automobiles, and defendant's customers refused to use said gasoline on account of being of such inferior grade, and the customers quit trading with defendant and defendant was obliged to sell said gasoline at a reduced price, and defendant had been damaged in the sum of $ 1,000.

¶2 To this answer and classification the plaintiff replied, first, by general denial; second, admitted the allegations of the answer which admitted the allegations of the petition; third, specifically denied the selling of the gasoline by sample, and alleged that the defendant knew the gasoline was of an inferior grade; fourth, that plaintiff had furnished a higher grade of gasoline than that contracted for. Defendant, to support her cross-petition and counterclaim and as a denial that there was anything due, produced evidence to support the allegations of the answer and cross-petition that the gasoline was of a very inferior grade and almost impossible to be used in running automobiles, and that her customers would not purchase the same, and she was unable to sell the same for a long time, and it was necessary to sell the same at a greatly reduced price. Several customers testified that they had been customers of the defendant, but the gasoline was of such inferior grade that they were unable to use it, and refused to purchase gas from the defendant and they purchased gas from other places.

¶3 The plaintiff introduced evidence regarding the grade of gasoline. With the issues thus framed the jury returned, a verdict in favor of the defendant, canceling the $ 301.49 due plaintiff and authorizing judgment in favor of the defendant in the sum of $ 200. From said judgment, the plaintiff has appealed. For reversal, plaintiff argues numerous assignments of error regarding the admission of testimony and the giving of instructions and the refusal to give certain instructions requested by the plaintiff. The court, after advising the jury, regarding the burden of proof in relation to whether there was a warranty in the fifth instruction, advised the jury in substance if the jury found the defendant had sustained damages by reason of the inferiority of said gasoline, her measure of damages would be the difference in the profits she would have received from the sale of the car of gasoline if the same had been of the grade and quality represented at the time of the sale and the profits she received from the car of gasoline by reason of its inferior quality, together with the amount, if any, by virtue of inferior quality defendant was forced to sell said gasoline below the purchase price. There is evidence in the record sufficient to support the finding that the gasoline was of an inferior quality. The evidence disclosed that it was contemplated by the parties that the defendant should resell the gasoline, and it was purchased for retail trade, and the only market was to users of automobiles. There was evidence to prove that parties who had purchased this gasoline refused to purchase more gasoline because of its inferior quality, and the defendant was required to sell same at a reduced price. Plaintiff relies upon the general rule as to the measure of damages announced in the case of Spaulding v. Howard, 51 Okla. 502, 152 P. 106 to wit: Damages for breach of warranty are:

"The difference between the actual value of the article at the time of the purchase and what its value would

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