This assignment of error appearing to have been set forth in the motion for a new 4. Sales trial, and exceptions to the ruling of the court thereon properly saved, the grounds for reversal seem to be amply sustained. The trial court appears to have entered judgment for attorneys' fees in the sum of $200 against W. H. Allen, defendant below, plaintiff in error herein, in favor of F. A. Rittenhouse and Joseph Cerny, attorneys for plaintiff below, defendant in error herein, and we conclude that said attorneys' fees are probably reasonable, and, since allowed by the trial court, and it not being contended that they are unreasonable, the same should be upheld by this court as decreed by the trial court. On Petition for Rehearing. 288(2), 442(5)-Rule that there can be no recoupment for consequential damages held not applicable in case of hidden defects; buyer discovering hidden defects on seller's refusal of offer to return may dispose of goods and recover damages, including loss of profits. In the sale of goods, the rule that there can be no recoupment for consequential damages resulting from continued use after knowledge of defects does not have application as a rule of damages, where the defects are not discoverable to the senses, in other words, patent, and can only be discovered upon use, and where the purchaser has received said goods without knowing said defects, and upon discovering said defects notifies the seller and offers to return same at his own expense, and which return [2] It is in the power of this court to re- the seller refuses, and, besides, the seller verse and remand a judgment in part and knows that goods are bought for resale and has affirm the judgment in part where said judg-in addition thereto warranted the quality of ment is severable and the parts so separated the goods, under such circumstances the buyer not being so interwoven and their interests so united that the judgment affects all alike. See Davis v. Mimey, 60 Okl. 244, 159 Pac. 1112; Citizens' State Bank v. Strahan, 59 Okl. 215, 158 Pac. 378. The portion of the judgment awarding attorneys' fees as a part of the costs is upheld, and the judgment in all other particulars is reversed and remanded for a new trial. PITCHFORD, V. C. J., and JOHNSON, MCNEILL and NICHOLSON, JJ., concur. (86 Okl. 13) LAWTON REFINING CO. v. HOLLISTER. (No. 10573.) (Supreme Court of Oklahoma. Jan. 24, 1922. (Syllabus by the Court.) 1. Sales 442 (5)-Profits or gains prevented may be recovered in an action for breach of warranty. Profits or gains prevented may be recovered in an action for breach of warranty, where they can be rendered reasonably certain by evidence, and have naturally resulted from the breach. 2. Appeal and error 1001 (1)-Verdict not disturbed where supported by evidence. may make disposition of said goods to the best of his advantage and that of the seller, and is entitled to recover, not only the difference in the value of the goods purchased and the value of the goods as delivered, but may also recover consequential damages resulting from the defective condition of said goods, among which may be loss of profits, and that are the proximate result of said defects and may be reasonably ascertainable under the facts and circumstances. Appeal from District Court, Jefferson County; Cham Jones, Judge. Action by the Lawton Refining Company against S. L. Hollister. Verdict and judgment for defendant, and the plaintiff appeals. Affirmed. Parmenter & Parmenter, of Lawton, for plaintiff in error. Bridges & Vertress, of Waureka, and W. D. Hereford. of Oklahoma City, for defendant in error. MCNEILL, J. This action was commenced in the district court of Jefferson county by the Lawton Refining Company against S. L. Hollister to recover the sum of $301.49, a balance due for a car of gasoline sold by the plaintiff to the defendant. The defendant answered, admitting purchasing the gasoline and having paid the sum of $850 thereon, and pleaded that the gasoline was purchased In a civil action, triable to the jury, where according to a sample that had been placed there is competent evidence reasonably tending to support the verdict of the jury, and no prej in defendant's car and represented as being udicial errors of law are shown in the instruc- a high-grade gasoline, and the defendant had tions of the court, or its ruling on law ques-paid plaintiff more than the value of the tions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal. 3. Record held to show no reversible error. Record examined and held, that there was no reversible error in the record, and ordered that the judgment of the trial court be affirmed. gasoline, and the same was not a high-grade gasoline. For cross-petition defendant pleaded being in the mercantile business at Addington, Okl., and engaged in selling gasoline at retail, and the gasoline purchased from plaintiff was of such an inferior grade that it could not be used in automobiles, and defendant's customers refused to use said gaso For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (205 P.) line on account of being of such inferior users of automobiles. There was evidence grade, and the customers quit trading with to prove that parties who had purchased this defendant, and defendant was obliged to sell gasoline refused to purchase more gasoline said gasoline at a reduced price, and de- because of its inferior quality, and the defendant has been damaged in the sum of $1,- fendant was required to sell the same at 000. a reduced price. Plaintiff relies upon the general rule as to the measure of damages announced in the case of Spaulding v. Howard, 51 Okl. 502, 152 Pac. 106, to wit: To this answer and cross-petition the plaintiff replied: First, by general denial; second, admits the allegations of the answer which admits the allegations of the petition; third, specifically denied the selling of the Damages for breach of warranty are "the gasoline by sample, and alleged that the de- difference between the actual value of the arfendant knew the gasoline was of an in- ticle at the time of the purchase and what its ferior grade; fourth, that plaintiff had fur-value would have been if it had been as repnished a higher grade of gasoline than that resented" contracted for. Defendant to support her cross-petition and counterclaim, and as a de--and the further proposition that profits nial that there was anything due produced cannot be recovered. The plaintiff simply evidence to support the allegations of the announces the general rule. There is, howanswer and cross-petition that the gasoline ever, an exception to the general rule, and was a very inferior grade and almost im- we think this case comes within that exceppossible to be used in running automobiles, tion. The rule is announced in 24 R. C. L. and that her customers would not purchase par. 538, as follows: the same, and she was unable to sell the same for a long time, and it was necessary to sell the same at a greatly reduced price. Several customers testified that they had been customers of the defendant, but the gasoline was of such an inferior grade that they were unable to use it, and refused to purchase gas from defendant, and they purchased gas from other places. The plaintiff introduced evidence regarding the grade of gasoline. With the issues thus framed the jury returned a verdict in favor of the defendant, canceling the $301.49 due plaintiff, and rendered judgment in favor of defendant in the sum of $200. From said judgment the plaintiff has appealed. "Profits or gains prevented, as well as losses sustained, may be recovered as damages for a breach of contract, where they can be rendered reasonably certain by evidence, and have naturally resulted from the breach, and this rule is applied as to damages for breach of a warranty." [2, 3] To the same effect is the holding of this court in the case of Muskogee Co. v. Yahola Sand Co., 60 Okl. 196, 159 Pac. 898. Defendant produced sufficient evidence to show the damages sustained were not speculative nor uncertain. Defendant admits receiving the gas and placing the same in tanks for the purpose of sale, that after customers had used a portion of the same they complained to de [1] For reversal, plaintiff argues numerous assignments of error regarding the admission of testimony and the giving of instructions fendant regarding the same being of such and the refusal to give certain instructions requested by the plaintiff. The court, after advising the jury regarding the burden of proof in relation to whether there was a warranty in the fifth instruction, advised the jury, in substance, if the jury found the plaintiff had sustained damages by reason of the inferiority of said gasoline, her measure of damages would be the difference in the profits she would have received from the sale of the car of gasoline if the same had been of the grade and quality represented at the time of the sale, and the profits she received from the car of gasoline by reason of its inferior quality, together with the amount, if any, by virtue of inferior quality, defendant was forced to sell said gasoline at less then the purchase price. There is evidence in the record sufficient to support the finding that the gasoline was of an inferior quality. The evidence disclosed that it was contemplated by the parties that the defendant should resell the gasoline, and was purchased for retail trade, and the only market was to inferior quality that they could not use the same. Defendant states this fact was called to the attention of the plaintiff, while the plaintiff denies this. Defendant produced evidence that after trying to sell the gasoline and being unable to do so, it was necessary to reduce the price. Defendant produced one customer, who purchased a great deal of gasoline each month, and the profits on that gasoline were three cents per gallon, and this customer quit purchasing for the reason this gas was of such an inferior quality that he could not use it. No demurrer was filed to the cross-petition, but simply an answer thereto. We think under the pleadings there was no prejudicial error in the instruction, and there was sufficient evidence to support the verdict of the jury. A determination of this question makes the other assignment of error regarding the introduction of evidence and regarding the other instruction immaterial. For the reasons stated, the judgment of the court is affirmed. PITCHFORD, V. C. J., and KANE, JOHNSON, ELTING, and NICHOLSON, JJ., con cur. On Petition for Rehearing. ELTING, J. Opinion was heretofore filed in this case on January 24, 1922, in which the judgment of the trial court was affirmed, and the plaintiff in error filed a petition for rehearing herein, in which it strenuously objects to what it calls a "rule of damages," which this court recognizes in said opinion in upholding the trial court in this, to wit: That the plaintiff, after selling to her customers the inferior grade of oil, was permitted to prove injury to her trade by reason thereof and recover the same as damages against the defendant company and which rule of damages it claims to have been in contravention of the principle laid down in 35 Cyc. 547, in the following lan guage: "Consequential damages resulting from continued use after knowledge of defects cannot be recovered." And then the plaintiff in its brief says, if the court will say that this is a correct rule of law, then the plaintiff in error will abide by the results and enter no complaint. The court has no objection to this rule of damages, and it is, no doubt, good law when applied to a proper state of facts. The rule of law announced by the plaintiff in error applies where the defects are discoverable to the senses and upon inspection, and where at the time of the attempted delivery the purchaser has the option of refusing to take the goods. Under such circumstances he cannot recover consequential damages such as a loss of profits if he does accept them, but that is not this case. The attorneys for the plaintiff in error in quoting the above provisions from 35 Cyc. only give a portion of the paragraph. The whole paragraph or section has application | in this case, and the same in full is as fol lows: "Defendant may also in such an action plead damages due to a default in the performance of the contract by the seller, as, for example, a failure to deliver the goods contracted for, or delay in delivery, or deficiency in quantity, or quality, fitness, and condition, even when the goods have been accepted and used, especially if the defects are discoverable only by use. There can, however, be no recoupment for consequential damages resulting from continued use after knowledge of defects. The fact that there has been a partial payment does not affect the right to recoup." [4] The correct rule of law applicable to the facts in the instant case is stated as follows in 35 Cyc. 617, 618, together with the authorities shown in the notes, and is as follows: "Delivery of inferior goods. If the goods tendered or delivered are not of the kind or qual ity contracted for, the buyer may refuse to receive them and sue for damages for breach of the contract; but if the goods are delivered and accepted there is a direct conflict of authority as to the right of the buyer to recover damages on the ground that they do not conform to the contract. In some cases it is held that it is the duty of the buyer to inspect the goods at the time of delivery, or within a reasonable time, according to the circumstances of the case, and that in the absence of fraud or warranty he cannot subsequently recover damages for breach of contract on the ground the time of delivery, or are returned or tenderof defects, unless the goods are rejected at ed as soon as the defects are discovered. The rule is, however, subject to certain exceptions, and is more particularly applicable to cases where no part of the purchase price has been paid and the buyer is in a position to reject the goods without sustaining any loss other than what might grow out of the difference between the contract and market prices. In the application of the rule a distinction is also to be made according to the character of the defect and the opportunity of the buyer to discover it; and, while the buyer cannot ordinarily recover for defects of which he knows or which he could have ascertained by inspection, he may recover for defects which could not be ascertained upon ordinary inspection at the time of delivery, or which are not apparent until the goods are applied to some use which precludes a return thereof, such as a defect in paint, not apparent until it is applied upon a house, or in coal, not apparent until the coal is burned. In other cases, however, it is the defective goods would preclude a rescission, held that while an acceptance or retention of the buyer may accept and retain them and sue for damages because of such defects, and that the acceptance is without effect except as evidence that the goods were not defective or that the defect was waived." In the instant case, the quality of the product sold, the gasoline, was not discoverable to the senses and upon mere inspection, and the defects were only discoverable after the gasoline was received and tested by use. The facts show that the defendant in error, plaintiff below, upon discovery of the defective quality of the gasoline, notified the seller, and offered to return the gasoline at her expense, and this was refused. What else was the purchaser to do except to either pour out the gasoline and let it run to waste or dispose of it if she could? and this she did at a greatly reduced price. The seller was at fault in the first instance in selling the defective gasoline, the quality of which was warranted by such seller, and the seller knew, besides, that it was purchased for the purpose of resale. The second fault of the seller was in refusing to receive back a return of this oil or make disposition of it satisfactory to the plaintiff after plaintiff had discovered the defective (205 P.) quality and made offer to return the gaso-county jail one day for each one dollar of line. This court sees no reason to reverse the former opinion in this case and the petition for rehearing is therefore overruled. HARRISON, C. J., PITCHFORD, V. C. J., and MCNEILL and NICHOLSON, JJ., con cur. CLAYMAN v. CITY OF BARTLESVILLE. (No. A-3781.) (Criminal Court of Appeals of Oklahoma. March 29, 1922.) (Syllabus by Editorial Staff.) Municipal corporations 636-County court, may not try municipal offenses. A county court is without jurisdiction to try municipal offenses. Appeal from County Court, Washington County; Robert D. Waddill, Judge. S. C. Clayman was found guilty of violating a city ordinance and sentenced to jail in default of payment of a fine of $5 and costs, and he appeals. Reversed. Arthur Fitzpatrick, of Bartlesville, for plaintiff in error. PER CURIAM. This is an appeal from a conviction in which L. U. Gaston made com plaint in the municipal court of the city of Bartlesville, charging that S. C. Clayman, the plaintiff in error, on the 3d day of August, 1919, violated amended ordinance No. 580 of said city by operating a picture show on Sunday. On the same day a warrant was issued for the arrest of the plaintiff in error, upon which he was arrested and forthwith brought into the municipal court and there entered his plea of not guilty. On the day following, August 4, 1919, plaintiff in error was brought into court and placed upon trial. A jury was demanded, and the cause was thereupon ordered sent to the county court, where the cause was entered and docketed as case No. 1383. such fine and costs. From this judgment and sentence plaintiff in error appeals, alleging, among other things, that amended ordinance No. 580 of the city of Bartlesville is unconstitutional and void. This ordinance pro vides for a fine in any sum not more than $50 nor less than $5, together with the costs of the action. It was recently held by this court in the case Ex parte Mrs. Chas. Daugherty and J. R. Reed, 204 Pac. 937, that a justice of the peace or county court is without jurisdiction to try municipal offenses. Adhering to the doctrine announced, and discussed at length, in the Daugherty-Reed Case, 204 Pac. 937, not yet officially reported, the judgment of the trial court is reversed, with instructions to discharge the plaintiff in error. ANDERSON v. STATE. (No. A-3694.) * (Criminal Court of Appeals of Oklahoma. Feb. 6, 1922. Rehearing Denied April 17, 1922.) (Syllabus by the Court.) 1. Criminal law 1144 (3)-Where information is first objected to on introduction of evidence or on appeal, it should be sustained if possible. Where defendant goes to trial, and for first time objects to the information when state attempts to introduce testimony thereunder, or upon appeal, the objection should be overruled, if by any intendment or presumption the information can be sustained. 2. Banks and banking ~62 Information charging cashier with making a false report to bank commissioner and state banking board held sufficient. For information held sufficient to charge an offense under section 269, Rev. Laws 1910, and reasons therefor, see statement of the case and body of the opinion. 3. Banks and banking 62-Evidence held to support a conviction of a bank cashier for making false reports to state officers. Evidence examined and held sufficient to support the verdict and judgment. 4. Banks and banking 62-Instruction following statute held not erroneous. Instruction, defining offense which substantially follows the language of the statute, is held not to be erroneous. On December 9, 1919, the cause came on for hearing in the county court, where it was tried to a jury of six men, resulting in a verdict of guilty, in which the punishment was fixed at a fine of $5 and costs in both courts. Judgment was rendered upon the verdict, assessing a fine of $5 against plaintiff in error, and that in default of payment of the fine he should be confined in the county jail of Washington county until the fine and costs should be paid, or until plaintiff in error should have been confined in said appears. 5. Criminal law 1151-Refusal of continuance disturbed only for abuse of discretion. Applications for a continuance are addressed to the discretion of the trial court. The trial court's action on such an application will not be disturbed, unless a manifest abuse of discretion For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes only the sum of $83,336.57, and the amount of warrants amounted only to $28,824.89; that the difference in the amount of loans and discounts and the amount of warrants, 6. Criminal law 593-Absence of counsel not a statutory ground for continuance, but If denying continuance prevented a substantial defense, a conviction will be reversed. Absence of counsel is not made one of the as shown by said report and as actually exstatutory grounds for a continuance. If, how-isting, was due to the fact that among the ever, the trial court's action in overruling an application based on this ground resulted in depriving defendant of the benefit of counsel, or even if it appeared from the record that defendant had a substantial defense to the charge which he was unable to present by reason of the absence of counsel, this court would unhesitatingly set aside a conviction for failure to grant a reasonable continuance. 7. Criminal law 614(1)-Where defendant secured continuance for one day for absence of counsel, refusal of further continuance held not abuse of discretion. Where defendant has employed two counsel, one of whom is present in court and asks a continuance in order that the absent counsel may have an opportunity to present a "technical defense," without stating in the application what such defense is, and the trial court continues said cause until the following day in order to give defendant an opportunity to make further arrangements for trial, we find no abuse of discretion in overruling a further motion for continuance presented on the second day, still based on the absence of leading counsel. loans and discounts and warrants included in said report were certain notes and warrants that were forged and counterfeit instruments, which said fact was then and there well known to the defendant. A list and copy of said notes and warrants are set out in the information. The information charges that said report was by the defendant made with the willful and felonious intent to deceive the Bank Commissioner and the Banking Board of the State of Oklahoma, and other persons to the informant unknown, as to the true financial condition and property of said bank, as of said 12th day of May, 1919. No demurrer was filed by the defendant to this information but, upon arraignment to same, the defendant entered his plea of "not guilty," and upon the issues so joined and on the 4th day of November, 1919, said cause was called for trial in the district court of Custer county, Okl. On said date the de fendant filed an application for a continuance, and the court made an order continu'ng the case to November 5, 1919, at which Appeal from District Court, Custer Coun- time the defendant filed an additional apty; Thomas A. Edwards, Judge. J. H. Anderson was convicted of the crime of willfully and knowingly making a false report, with intent to deceive, as to the condition of the bank of which he was cashier, and appeals. Affirmed. plication for a continuance, which application was overruled, and the case proceeded to trial, resulting in a verdict of conviction and the imposition of a punishment of imprisonment in the state penitentiary for a period of three years. The evidence in this case shows that the On the 18th day of October, 1919, an information was filed in the district court of Custer county, Okl., charging the defendant, J. H. Anderson, with the crime of willfully, knowingly and feloniously subscribing to and making a false written report of the affairs, financial condition, and property of the Farmers' State Bank of Weatherford, Okl., with intent to deceive the State Bank Commissioner, the State Banking Board, and other persons to the informant unknown. The information alleges, in substance, that said defendant, being cashier of the Farmers' State Bank of Weatherford, Okl., prepared and signed a written report showing the financial condition of said bank as of the close of business of the 12th day of May, 1919; that said report discloses that the loans and discounts of said bank owned by it on said date amounted to a sum equal to the value of $107,258.74, and that certain warrants owned and held by it were of the value of $37,352.59; that said defendant then and there knew that said report was false and untrue, in that the loans and discounts of said bank on said date amounted to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes defendant, J. H. Anderson, on the 12th day of May, 1919, and for several years prior thereto, was cashier of the Farmers' State Bank of Weatherford, Okl., and was during all of said time the active managing officer of said bank. That Roy A. Cooper, an Assistant Bank Commissioner of the State of Oklahoma, in the month of July, 1919, made an examination of said bank, and from said examination found there were included in the bills receivable of said bank certain notes aggregating the face value of $23,922.17, which were forged and counterfeit instruments; that among the warrants held by said bank were five warrants of the face value of $8,527.70, which were forged and counterfeit instruments. That at the time of the examination of said bank there were present the defendant, J. H. Anderson, Walter Anderson, brother to the defendant, A. A. Gray, and Wm. A. Umbach, and J. S. Wilks. The witness Cooper testified: "Q. Now, I will ask you, Mr. Cooper, whether as an Assistant Bank Commissioner of the |