Smith v. Gardner
| Decision Date | 04 April 1913 |
| Citation | 131 P. 538,37 Okla. 183,1913 OK 223 |
| Parties | SMITH v. GARDNER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a petition contains an allegation of facts which show that the plaintiff has been wronged, shows of what such wrongs consist, and the damage plaintiff has sustained thereby, and shows that defendant perpetrated such wrongs and is liable therefor, and asks judgment for the amount of damage sustained by reason thereof, such petition states a cause of action.
Commissioner's Opinion, Division No. 2. Error from District Court, Oklahoma County; George W. Clark, Judge.
Action by L. P. Smith against George E. Gardner. From a judgment sustaining demurrer to plaintiff's petition, he brings error. Reversed and remanded.
Wiley Jones, of Oklahoma City, for plaintiff in error.
In the early part of 1910 L. P. Smith brought this action against George E. Gardner, alleging, in substance: That on the 1st of October, 1909, the defendant, George E. Gardner, then doing a general mercantile business in what is known as the Lion Store in Oklahoma City, traded to E. P. Lea a certain line of goods, wares, merchandise, and fixtures, to be selected from his general stock, invoicing at $2,295.24, but that because Gardner refused to allow Lea to be present when such goods were selected from the general stock, and because Gardner selected same himself in Lea's absence, and refused to allow Lea to open the boxes and examine and inspect the goods, Lea declined to accept them, and left them in Gardner's possession. The controversy between Lea and Gardner continued until November 17, 1909, when upon condition that the plaintiff herein would take such goods Lea and Gardner agreed to settle their controversy. That on said date plaintiff, through his agent, agreed to take such goods, provided they were as represented, and provided Gardner would take out a certain line of goods invoicing $240, and substitute other goods to a like amount. That Gardner agreed to do this, and did pretend to do so, but that instead of substituting goods to the amount of $240 according to invoice, he substituted only $174.68 worth leaving a shortage of $65.32, for which plaintiff asked judgment. Further, that defendant agreed with plaintiff to substitute goods in first-class marketable condition whereas, in fact, the substituted goods were shoddy, old, out of date, out of style, shopworn, dirty, stained, faded, rusty, tarnished, broken, rat eaten, remnants, unsalable, and not worth more than 25 per cent. of their invoice value, or $43.67, instead of $174.68. That plaintiff was thereby damaged in the sum of $121.01, for which he asked judgment. Also, that in said trade plaintiff bought and paid for certain fixtures invoiced at $451, which defendant failed and refused to ship to plaintiff, but held same out at the time the other goods were shipped. That plaintiff had never received such fixtures, wherefore he was damaged in the sum of $451, and asked judgment for same.
Plaintiff further alleged: That defendant also refused to allow him to open the boxes and examine and inspect the goods on the ground that it would take too much time to open them up and examine them, but that he would guarantee them to be in first-class shape and all right, and that he had so guaranteed them. Whereupon plaintiff accepted such goods and paid for same relying upon...
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