Western Paper Co. v. Bilby
| Decision Date | 19 September 1989 |
| Docket Number | No. 2,No. 69757,69757,2 |
| Citation | 783 P.2d 980,1989 OK CIV APP 62 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
| Parties | 1989 OK CIV APP 62, 11 UCC Rep.Serv.2d 503 WESTERN PAPER COMPANY, a foreign corporation, Appellant, v. Gerald BILBY d/b/a Variety Press, Appellee. Court of Appeals of Oklahoma, Division |
Appeal from the District Court of Tulsa County, Oklahoma; Allen Klein, Trial Judge.
Plaintiff brought this action to collect on an open account. Defendant stipulated as to the amount due, but counterclaimed for nonconforming goods. Defendant further alleged breach of warranty. Defendant had substantially altered the goods, rendering them useless for commercial purposes. Trial court entered judgment for Plaintiff on the stipulated amount and judgment for Defendant on his claims for breach of warranty.
John A. Dunnery, Tulsa, for appellant.
M.D. Bedingfield, Chapel, Wilkinson, Riggs & Abney, Tulsa, for appellee.
Plaintiff appeals from the trial court's order which overruled its motion for new trial in this action to collect on an open account. Having reviewed the record and applicable law, we affirm.
Defendant Bilby is in the business of custom printing. In 1984, one of Bilby's customers, Advance Chemical, placed an order for 22,000 labels with permanent adhesive. Bilby ordered the appropriate amount of paper stock, Mactac Starliner Permanent, from Plaintiff Western Paper, which in turn ordered the paper from Mactac. In April 1984, Western Paper delivered fourteen sealed cartons of paper to Bilby. Each carton was labeled with the red Starliner label which indicated permanent adhesive backing.
The Mactac Starliner Permanent has red lines on the back to identify it as permanent adhesive. Mactac also manufactures a removable adhesive type paper which is identified by blue labels and blue lines on the back of the paper. Other than the lines on the back of the paper, the permanent and removable adhesives are not distinguishable from the front side.
The uncontroverted testimony was that all fourteen boxes which Western Paper delivered to Bilby were labeled with the red label. The testimony also showed that when the boxes were opened, the red label was found on top of the paper to show that it was permanent. In the process of manufacturing the labels for its customer, Bilby cut the paper into smaller pieces and printed it with three separate colors. Bilby's testimony was that during this process the paper was always loaded from the same side and was never turned over. The printers rely on the labeling on the outside and inside of the box to determine the proper paper.
Bilby delivered the printed labels to his customer, Advance Chemical. Shortly thereafter he was notified by Advance Chemical that the labels were not sticking to the drums. Bilby called Western Paper to complain and was told that a Mactac representative would help him determine the problem. He went to Advance Chemical with Mactac's representative to try to discover why the labels weren't adhering. The Mactac representative advised Bilby to use a higher grade of paper, and Bilby upgraded his order to replace the defective labels.
Bilby also retrieved the unsatisfactory labels from Advance Chemical. When he was putting the labels in the trash, he discovered that thousands of them had a blue line backing--an indication that the labels had been printed on removable adhesive paper. Bilby determined that approximately 2/3 of the order had been printed on the wrong paper.
Western Paper brought this action against Bilby for $6,924.60, the amount owed on his account. Bilby stipulated as to the amount due, but counterclaimed against Western Paper, alleging that the goods were nonconforming and further alleging breach of warranty of fitness for the intended purpose. At trial, the court entered judgment for Western Paper for $6,924.60, and for Bilby in the amount of $7,982.70. The court subsequently granted Bilby attorney's fees of $2,270.47. Western Paper has appealed.
Western Paper first argues that Bilby's evidence did not prove that the paper was nonconforming. It was undisputed that all the cartons delivered by Western Paper were sealed when delivered and marked with the red Starliner label. It was further uncontroverted that Bilby was working on only one job during this time. Bilby's testimony was that, when he examined the labels from Advance Chemical, at least 2/3 of them were printed on nonconforming paper with the wrong backing. Western Paper presented no evidence to dispute this....
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