Pitman v. Bloch Queensware Co.

• Decision Date: 02 January 1908
• Citation: 106 S.W. 724
• Parties: PITMAN v. BLOCH QUEENSWARE CO.
• Court: Texas Court of Appeals

106 S.W. 724

PITMAN v. BLOCH QUEENSWARE CO.

Court of Civil Appeals of Texas.

January 2, 1908.

Appeal from McLennan County Court; J. W. Baker, Judge.

Action by the Bloch Queensware Company against H. T. Pitman. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Jas. E. Yeager, for appellant. Sluder & Neal, for appellee.

KEY, J.

Appellee brought this suit against appellant in a justice of the peace court, but the case was appealed to and finally tried in the county court, where appellee obtained a judgment against appellant for $93.65. The suit was originally brought upon a verified account. The defendant filed a verified answer denying the justness and correctness of the account. It is stated in appellee's brief, though not otherwise made to appear, that in the county court appellee pleaded orally that the goods were sold to the defendant upon a written order. However, that is not material. According to the statement of facts agreed to by the parties and approved by the judge, the only testimony that was introduced was the plaintiff's sworn account, the defendant's denial under oath, and the original contract or written order for the goods and a price list accompanying said order.

We sustain the second assignment of error, which complains of the action of the trial court in sustaining an exception to the defendant's cross-action or counterclaim, wherein the defendant sought to recover as damages the loss of profits which would have been made upon the goods ordered from the plaintiff. According to the averments of the plea referred to, the goods were ordered for the Christmas holiday trade solely, and were not otherwise valuable to the defendant, and the plaintiff was aware of such facts. In such cases, loss of profits is recoverable as special damages. Jones v. George, 61 Tex. 354, 48 Am. Rep. 280; W. U. Tel. Co. v. Edsall, 63 Tex. 677; W. U. Tel. Co. v. Sheffield, 71 Tex. 574, 10 S. W. 752, 10 Am. St. Rep. 790; Watkins v. Junker, 4 Tex. Civ. App. 629, 23 S. W. 802; Chisholm v. U. S. Canopy Co., 111 Tenn. 202, 77 S. W. 1062. The latter is a Tennessee case quite similar to the one in hand, and in an elaborate opinion it was held by the Supreme Court of that state that the measure of damages included the loss of profits which would have been made if the goods had been delivered according to contract. However, the defendant was not entitled to recover anything for extra clerk hire. Such additional expense would have...