People's Ice & Fuel Co. v. Serat

• Citation: 1915 OK 311,46 Okla. 762,149 P. 870
• Decision Date: 18 May 1915
• Docket Number: Case Number: 4451
• Parties: PEOPLE'S ICE & FUEL CO. v. SERAT.
• Court: Supreme Court of Oklahoma

1915 OK 311

149 P. 870

46 Okla. 762

PEOPLE'S ICE & FUEL CO. v. SERAT.

Case Number: 4451

Supreme Court of Oklahoma

Decided: May 18, 1915

Syllabus

¶0 1. SALES--Action by Seller--Verdict. A general verdict for plaintiff for the entire amount sued for in an action for the purchase price of chattel, where damages are claimed by defendant for breach of an implied warranty to deliver property of the quality contemplated by the contract, determined, primarily, that there was no such breach of warranty.

2. APPEAL AND ERROR--Harmless Error--Evidence--Instructions--Cure By Verdict. In such case, if there was error in admitting or excluding evidence, or in failing to give requested instructions, or in giving others improperly stating the law as to the measure of damages, such error is not prejudicial.

3. GOODS SOLD--Action for Price--Instructions. Instructions examined, and held to fairly state the law of the case.

Error from District Court, Oklahoma County; W. R. Taylor, Judge.

Action by Seth S. Serat, doing business under the name and style of Star Coal Company, against the People's Ice & Fuel Company. Judgment for the plaintiff, and defendant brings error. Affirmed.

Everest & Campbell, for plaintiff in error.

Harris, Nowlin & Singleton, for defendant in error.

BLEAKMORE, C.

¶1 This is an action commenced in the district court of Oklahoma county by the defendant in error as plaintiff, against the plaintiff in error as defendant, for the purchase price of certain coal. The parties are hereafter referred to as they appeared in the court below.

¶2 The petitioner sets forth the contract of sale as follows:

"Kansas City, Mo., 10--18--1910.

"Star Coal Company ship to People's Ice & Fuel Company at Oklahoma City, Okla.--A. T. S. F. R. R.--100 car Richmond Blk $ 2.75 mine. Ship 3 to 5 cars at once, and rest at rate of 1 to 2 cars per day until order is completed.

"Mr. Graves wants the hard coal same as we shipped him last year, and wants us to hold further shipments until he has chance to inspect first shipments.

"E. R. Dusky.

"John Graves, General Manager, People's Ice & Fuel Company, Oklahoma City, Okla."

¶3 And further alleges:

"Plaintiff further says he has complied with said contract in all respects, and said preliminary shipments were approved by the said defendant, and that the shipments of coal under said contract were continued until plaintiff had delivered to defendant sixty-six (66) cars of the 100 cars provided for in said contract; that there is a balance due the plaintiff from defendant, after crediting all payments upon said sixty-six (66) car loads of coal and pursuant to the terms of said contract in the sum of $ 1,371.61, and there is now due the plaintiff from defendant said sum with interest thereon at the rate of 6 per cent. per annum from the 2d day of January, 1911."

¶4 Defendant answered by way of general denial, and that:

"Said defendant admits that it entered into a contract with plaintiff substantially as pleaded in said amended petition on the 18th day of October, 1910, by the terms of which defendant agreed to buy from the plaintiff 100 cars of Richmond block coal, at $ 2.75 per ton at the mine. Defendant admits that 66 cars of coal were delivered to it by the plaintiff under said contract, and that there is a balance due from said defendant to plaintiff, on account of said 66 cars of coal, $ 1,371.61, as alleged by the plaintiff, except for the reasons and upon the account hereinafter stated."

¶5 It is then set forth that defendant was engaged in the business of a retail coal dealer and contracted for the coal in question for the purpose of reselling the same at Oklahoma City; that the kind contracted for was that produced by the plaintiff at its mine in Missouri, free from slack; that plaintiff failed and refused to comply with said contract, in that, after certain preliminary shipments of coal in compliance with the terms thereof, it shipped to defendant coal from other mines, not of the quality contemplated by the contract and which contained slack to an amount of 392 tons; that the reasonable market value of the coal agreed to be delivered under the terms of said contract was $ 6 per ton at Oklahoma City, but that the 322 tons of slack delivered in violation of said contract was only of the reasonable market value of 50 cents per ton there; that defendant suffered loss and damage in the sum of $ 1,773.95, and that by reason thereof plaintiff is Indebted to it in the sum of $ 402.30; that it notified plaintiff from time to time that he was not shipping the character of coal called for by the contract, and plaintiff promised to comply with the terms thereof by shipping the coal contemplated, but failed and refused so to do. There is prayer for judgment against the plaintiff for the sum of $ 402.30.

¶6 Plaintiff replied. The case was tried to a jury, and there was verdict and judgment for plaintiff for the entire sum prayed for in the petition.

¶7 Defendant assigns the following as error:

"(1) The trial court erred in entering judgment on the verdict of the jury for the reason that said verdict is not sustained by sufficient evidence and is contrary to law. (2) The trial court erred in the admission of incompetent, irrelevant, and immaterial testimony on behalf of defendant in error, over the objection of plaintiff in error, as appears from the record in said cause. (3) The trial court erred in the exclusion of competent, relevant, and material testimony offered by plaintiff in error, exceptions being saved at the time. (4) The trial court erred in refusing the special instructions offered by the plaintiff in error, numbered 1, 2, 3, and 5, shown in the record at pages 348 and 351, and fully set out in the abstract thereof. (5) The trial court erred in giving instructions Nos. 6, 8, 9, and 10, the same being fully quoted in the abstract of the record. (6) The trial court erred in overruling the motion of plaintiff in error for a new trial."

¶8 There is no specific objection urged in the briefs to the admission of any evidence on behalf of plaintiff.The assignment with reference to the exclusion of evidence...