Sun Mfg. Co. v. Egbert & Guthrie

• Decision Date: 24 December 1904
• Citation: 84 S.W. 667
• Parties: SUN MFG. CO. v. EGBERT & GUTHRIE.
• Court: Texas Court of Appeals

84 S.W. 667

SUN MFG. CO. v. EGBERT & GUTHRIE.

Court of Civil Appeals of Texas.

December 24, 1904.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Action by the Sun Manufacturing Company against Egbert & Guthrie. From a judgment in favor of defendants on a counterclaim, plaintiff appeals. Affirmed.

Stuart & Bell, for appellant. Culp & Giddings, for appellees.

STEPHENS, J.

One E. L. Garvey seems to have invented a spring motor known as the "Garvey Motor," on which he obtained a patent, and, after assigning his rights under the patent to the appellees, Egbert & Guthrie, who resided at Gainesville, Tex., went to Greenfield, Ohio, seemingly in their interest, where he placed an order with appellant for the manufacture for them of 500 Garvey motors at $11.50 each, to be shipped as follows: 100 on March 1, 1900, 150 April 1, 1900, and 250 May 1, 1900. The date of this contract was December 27, 1899. Three days later Garvey entered into a written contract with appellant on his own account, in which he represented himself to be the owner of the patent, and which contained terms much more favorable to appellant in the manufacture of the motors than those specified in the order placed with it for appellees. In a letter to Garvey of same date, addressed to him at Gainesville, Texas, appellant promised Garvey $1 of the $11.50 charged appellees for the manufacture of each motor. Appellant undertook to manufacture the motors for appellees at the price named, and appellees undertook to sell them on the faith of appellant's agreement to furnish them as specified in the order, which undertaking on the part of appellees, appellant, as well as appellees, had in contemplation when it accepted the order. Appellant, though repeatedly urged by appellees to forward the motors according to contract, never sent any until the latter part of April, 1900, and then sent only a few—much less than the number to be delivered in March—and even these seem to have been somewhat defective in construction. Finally, after delaying appellees for several months with excuses and unfulfilled promises, appellant, finding that it could not manufacture the motors at the price named in the order without a loss, flatly refused to manufacture any more for appellees unless they would consent to add $2 to the price of each motor. This appellees declined to do, and, when appellant sued to recover the balance due for those delivered, pleaded in reconvention for damages and recovered $250 more than the amount of appellant's claim, for which they admitted liability in order to obtain the opening and conclusion. The damages claimed consisted of profits on sales of motors which appellees would have consummated if appellant had furnished the motors according to contract, they having obtained from various persons orders and received offers for motors which had to be rejected in consequence of appellant's default.

That profits are recoverable in such cases seems to be the law in this state as well as in many others. For a recent discussion of the question, with an extended review of the authorities, see the opinion of the Supreme Court of Tennessee in the case of Chisholm & Moore Co. v. U. S. Canopy Company, 77 S. W. 1062.

Various rulings are complained of in the admission of testimony tending to show what profits appellees lost in consequence of appellant's failure to furnish the motors, but we have been unable to sustain...