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Wilson v. Hays - 544 S.W.2d 833 (Tex. Civ. App. 1976)


The burden of proving the extent of loss incurred by way of consequential damages is on the buyer.


Plaintiff W. D. Hays was in the business of buying and selling used building materials. Defendant Bobby Wilson, doing business as Wilson Salvage Co., was in the business of wrecking or demolishing buildings. In March 1972, Defendant Wilson was in the process of wrecking some buildings in Midland, Texas. Plaintiff Hays became interested in buying the used, uncleaned brick from Defendant Wilson's demolition work. Hays and Wilson entered into an oral agreement whereby Wilson agreed to sell and deliver 600,000 used uncleaned bricks to Hays at a price of one cent per brick. Wilson, for some reason, could not deliver 600,000 uncleaned bricks to Hays but, instead, delivered only 400,000 bricks to Hays. The market value of used bricks in Midland, Texas in April 1972, was five cents per brick. Because of Wilson’s failure to deliver the remaining uncleaned bricks, Hays uffered lost profits in the amount of $6250. Subsequently, Hays instituted a complaint against Wilson for the return of the proportionate part of the purchase price paid for the bricks that he did not receive, plus damages. The trial court awarded $13,645 in damages to Hays. Wilson sought appellate review.


Was a buyer entitled to damages when the seller did not deliver the number of bricks as promised?


Yes, but the amount of damages should be modified.


On appeal, the Court affirmed in part, reversed in part, and remanded. The Court found that judgment was properly entered in favor of Hays. However, the Court modified the amount of damages awarded, finding that Hays was entitled to $2000 for the bricks that he did not receive plus $8000 in damages for non-delivery. The Court noted that there was no evidence in the record that Hays made any effort to cover or mitigate the loss resulting from Wilson’s non-delivery of the 200,000 bricks in question. The Court explained that Hays’ measure of damages was the difference between the market price of five cents per brick and the contract price of one cent per brick.

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