Booth Lumber & Loan Co. v. Sewell Paint & Glass Co. of Texas

Fifth Circuit

Booth Lumber & Loan Co. v. Sewell Paint & Glass Co. of Texas

24 F.2d 104, 1928 U.S. App. LEXIS 1975

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 10, 1928

DocketNo. 5163

StatusPublished

Cited by1 cases

This text of 24 F.2d 104 (Booth Lumber & Loan Co. v. Sewell Paint & Glass Co. of Texas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Booth Lumber & Loan Co. v. Sewell Paint & Glass Co. of Texas, 24 F.2d 104, 1928 U.S. App. LEXIS 1975 (5th Cir. 1928).

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Opinion

FOSTER, Circuit Judge.

Defendant in error brought suit on an open account for certain paints sold and delivered to plaintiff in error, amounting to $5,800. The amount of the bill was not disputed, but it was alleged in the answer that the paint sold was of such poor quality that a number of buildings had to be repainted, and the cost of doing said work was pleaded in set-off. The answer then set up a cross-aetion, and prayed in reconvention for a recovery of various items of damages, to wit, the cost of repainting certain buildings, what might be expended in the future for similar work, for loss of profits to the business in general, loss occasioned by closing a lumber yard, damages to a trademark, and exemplary damages. On exceptions to the answer, those claims were stricken out, but one of them, the loss occasioned by repainting some buildings, approximately a duplication of the same item pleaded in set-off, was submitted to the jury. The result was a verdict of only $1,635.51. There, was no exception to the charge of the court, and the only errors assigned run to the maintaining of the exceptions to the parts of the answer above set out. There were no special circumstances pleaded that would show the damages claimed could possibly have been within the contemplation of the parties, and it is evident that the claims were too remote and speculative to have been allowed.

We find no error in the record. Affirmed.

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FOSTER, Circuit Judge.

Defendant in error brought suit on an open account for certain paints sold and delivered to plaintiff in error, amounting to $5,800. The amount of the bill was not disputed, but it was alleged in the answer that the paint sold was of such poor quality that a number of buildings had to be repainted, and the cost of doing said work was pleaded in set-off. The answer then set up a cross-aetion, and prayed in reconvention for a recovery of various items of damages, to wit, the cost of repainting certain buildings, what might be expended in the future for similar work, for loss of profits to the business in general, loss occasioned by closing a lumber yard, damages to a trademark, and exemplary damages. On exceptions to the answer, those claims were stricken out, but one of them, the loss occasioned by repainting some buildings, approximately a duplication of the same item pleaded in set-off, was submitted to the jury. The result was a verdict of only $1,635.51. There, was no exception to the charge of the court, and the only errors assigned run to the maintaining of the exceptions to the parts of the answer above set out. There were no special circumstances pleaded that would show the damages claimed could possibly have been within the contemplation of the parties, and it is evident that the claims were too remote and speculative to have been allowed.

We find no error in the record. Affirmed.

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24 F.2d 104, 1928 U.S. App. LEXIS 1975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booth-lumber-loan-co-v-sewell-paint-glass-co-of-texas-ca5-1928.

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