Barco Machine Products Co. v. Turner Printing Machinery Co.

OPINION

Per CURIAM:

We are of the opinion that the trial court erred in excluding plaintiff’s exhibits G, H, I and J, from the consideration of the jury. These exhibits were competent and relevant upon the subject of damages. They tend to reflect the attitude of the parties on the subject of damages after the alleged breach and are competent as bearing upon the damages supposed to have been within the contemplation of the parties at the time the contract was made.

We hold also that the trial court was in error in its answer to the question propounded by the jury, relating to paragraph 6 of the Quote Sheet. The jury’s inquiry was directed to the question whether paragraph 6 of the quote sheet might be considered as a qualification of plaintiff’s promises to perform the contract within the time claimed by the defendant. The quote sheet was received in evidence and the jury ought to have been instructed that paragraph 6 thereof was competent as bearing upon the time of performance and the agreement of the parties with reference thereto.

We hold further that it was error for the trial court to refuse to examine and consider the deposition offered by plaintiff in support of its motion for a new trial.

The court’s error in failing to make reference to “consideration” as an element of a contract is one of omission.

We find no other errors.

Judgment reversed and cause remanded for further proceedings according to law. Exc. Order see journal.

SKEEL, PJ, HURD, J, McNAMEE, J, concur.