Bagby v. Straub

Citations

• 105 Kan. 382
• 184 P. 716
• 1919 Kan. LEXIS 89

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>I. Contract- — Sale of Oil — Breach of Contract — Evidence — Findings. The evidence held sufficient to support a finding of the market price of fuel oil during a certain period.</p> <p>2. Same — Sale of Oil — Breach of Contract — Action for Damages — Re-referred to Trial Court for Further Proceedings. In view of the possibility that the judgment appealed from was affected by a misunderstanding of the purpose of this court in a former remand, it will be set aside or allowed to stand according to whether or not it was influenced by a belief on the part of the trial judge that the mandate required the making of a certain finding irrespective of his own judgment of the truth and weight of the evidence on which it was based, the trial court to apply this ruling according to its knowledge of the fact in that regard.</p> <p>3. Same — Sale of Oil — Breach of Contract — Measure of Damages. In an action against the seller for refusal to complete the performance of a contract to furnish at a stated price from 4,000 to 6,000 barrels of fuel oil per month for two years, a provision being added that the buyer must take the maximum amount if offered, the liability of the seller, where it is measured by the ordinary rule of the difference between the contract and market price, is based upon the nondelivery of the minimum amount only, although deliveries of an intermediate amount had been made while the contract was being carried out.</p> <p>4. New Trial — Motion Denied — No Error. The overruling of a motion for a new trial on the ground of newly discovered evidence held not to have been erroneous.</p>