SMITH, Judge.
This suit started as an attachment suit on the ground that the defendant was a nonresident of the state of Missouri. The defendant entered his appearance and answered. The attachment suit was dissolved, and the case was tried on the merits.
The petition was as follows, caption and signature omitted:
"Plaintiff states that it is a corporation organized under the laws of Missouri; that the defendant, W. J. Jarratt, is a sole trader and doing business under the name and style of Safety Vulcanizer Company, and that said W. J. Jarratt is not a resident of Missouri and cannot be served with the ordinary process of law in this state.
"Plaintiff states that it has been and is engaged in the business of retreading automobile tires. That the defendant, at all times herein mentioned, was and is engaged in the business of selling tire retreading equipment and cement for tire retreading.
"Plaintiff states that the defendant, well knowing that plaintiff was in the business of repairing and retreading automobile tires, sold to plaintiff several lots of cement for use in retreading automobile tires. That the defendant warranted said cement to be fit for its intended use in the retreading of automobile tires and that the prices at which said lots of cement were sold to plaintiff were fair prices; that said sales of cement occurred in the months of May and June, 1933. Plaintiff states that in reliance upon defendant's warranty concerning said cement it proceeded to use the same in the retreading of automobile tires. Plaintiff states that all of the cement so sold by defendant to plaintiff was defective, unfit for use in automobile tire retreading and wholly worthless for any purpose. That plaintiff has been compelled to replace numerous truck and automobile tires retreaded by it because the customers found said cement would not vulcanize, permitting the tread to come loose and causing blow-outs where cement had failed to vulcanize.
"Plaintiff states that on account of the defective and unsatisfactory condition of tires retreaded by it, it has lost the good will of the public and has sustained large losses by being compelled to replace defective tires; that plaintiff has suffered a loss of profits and will continue to suffer such loss in the future, all to plaintiff's damage in the sum of $5,000.00.
"Wherefore, plaintiff prays judgment against the defendant for said sum of $5,000.00 and for an attachment against the property of the defendant."
The defendant filed an answer and counterclaim, caption and signature omitted, as follows:
"Comes now the defendant in the above entitled cause and for his answer to the petition of the plaintiff filed herein, denies each and every allegation therein contained.
"Further answering, this defendant denies that he made any warranties to the plaintiff with respect to the cement sold by him to the plaintiff, and further states that the cement so sold to the plaintiff was reasonably fit for the purposes for which it was designated and that it was of good quality.
"Further answering, defendant denies there was any lack of quality or fitness of
said cement, and alleges that if any damage resulted from the use of cement the same was caused by and resulted from the wrongful or improper application and curing of said cement or to the use of defective carcasses.
"Wherefore, having fully answered, defendant prays to be discharged with costs.
"Further answering, and by way of counterclaim, defendant alleges that during the months of May and June, 1933, he sold a certain lot of cement and rubber to the plaintiff for the sum of $300.00, which the plaintiff agreed to pay; that no part of said sum has been paid to the defendant, although the same is long overdue and demand therefor has been made.
"Wherefore, defendant prays judgment against the plaintiff in the sum of $300.00 with costs of this action."
To this answer the plaintiff filed a reply, as follows:
"Comes now the plaintiff and for reply to defendant's answer, denies that the damage resulting to plaintiff from the use of the cement sold by defendant to plaintiff was caused by or resulted from the wrongful or improper application and curing of said cement, and denies that the cement sold by defendant to plaintiff was reasonably fit for the purposes for which it was designed and denies that it was of good quality.
"Wherefore, having fully replied plaintiff demands judgment according to its petition herein.
"Further replying and for answer to defendant's counter-claim herein, plaintiff admits that during the months of May and June, 1933, the defendant sold certain lots of cement and rubber to the plaintiff for the sum of $300.00 which the plaintiff agreed to pay for; that no part of said sum has been paid to the defendant, and denies each and every other allegation in said counter-claim contained.
"Further replying to said counter-claim plaintiff avers that the cement referred to in said counter-claim was part of the cement referred to by plaintiff in its petition herein and that said cement and rubber was sold by defendant to plaintiff herein for use in the retreading of automobile tires with the express warranty that said cement was fit and proper for such use; that said cement was defective and wholly unfit for use in the retreading of automobile tires and that plaintiff, being ignorant of the unfitness thereof did use the same in combination with the rubber mentioned in said counter-claim in the retreading of automobile tires and that the tires so retreaded were subject to blow-outs and did blow out and were wholly valueless. Plaintiff states that defendant knew that said rubber and cement was to be used by plaintiff in retreading automobile tires when he sold the same to the plaintiff and that due to the defectiveness of said cement the rubber and cement in combination were utterly worthless for any purpose so that the consideration for the account mentioned in said counter-claim wholly failed.
"Wherefore, plaintiff prays that the defendant take nothing by its counter-claim and that said counter-claim be dismissed with costs."
Trial was had to a jury, and on January 19, 1934, verdict was had for $5,000 damages on plaintiff's petition, and verdict in favor of plaintiff on defendant's counterclaim, and judgment was entered accordingly.
Motion for new trial was filed, as well as motion in arrest of judgment.
On April 14, 1934, the trial court sustained the motion for new trial, and the plaintiff appealed to this court.
There were several grounds numbered and set out in the motion for new trial, and the trial court sustained the motion and granted a new trial upon the grounds numbered 6, 8, 12, 14, 15, and 17 of said motion, and because of failure of the court to give, at request of defendant, instructions numbered 7, 8, and 9.
We shall set out these assignments and consider them in the order submitted to us, with such statement of the facts in connection therewith as we may deem necessary.
The first point presented by appellant under its points and authorities is that the court properly gave plaintiff's instruction 3 and properly refused defendant's instructions 7, 8, and 9.
The trial court had evidently become convinced that it had erred in giving plaintiff's instruction 3 and in refusing the three requested by the defendant, and this is one of the grounds for sustaining defendant's motion for new trial. These were raised under grounds 7 and 8 of defendant's motion for new trial.
Plaintiff's instruction 3 is as follows:
"If you find the issues in favor of the plaintiff you may take into consideration the following items:
"(1) Plaintiff's pecuniary loss, if any, in replacing defective automobile tires, if you
find it did replace defective tires and if you find that their defective condition, if any, was due to defective condition of cement, if it was defective, furnished to plaintiff by defendant.
"(2) Plaintiff's loss, if any, of profits on sales of retreaded tires, if you find that plaintiff did lose profits on account of defective condition of retreaded tires due to defective condition of cement, if it was defective, furnished to plaintiff by defendant.
"(3) Plaintiff's loss, if any, of profits on retreading tires for its customers, if you find that plaintiff did lose profits on account of defective cement used in retreading customer's tires and if such defective cement, if any, was furnished to plaintiff by defendant.
"(4) Plaintiff's loss, if any, of future profits from reasonably probable future sales of retreaded tires and from retreading tires for its customers; provided that, under the evidence, you find such profits, if any, to be definite and reasonably susceptible of ascertainment; and provided you find that plaintiff has lost such future profits, if any, by reason of having been supplied with defective cement, if it was defective, by defendant.
"(5) The word `profits' as used herein, means net profits after all items of cost and overhead are deducted.
"(6) After considering all the foregoing items under the evidence in the case, your verdict, if for plaintiff, will be for such sum as you believe from the evidence will reasonably compensate plaintiff for its loss or losses, if any, not exceeding however the sum of $5,000, being the amount demanded in the petition."
The defendant contends here that plaintiff's...
