## Facts

- W.D. Hays was in the business of buying and selling used building materials.
- Bobby Wilson, doing business as Wilson Salvage Company, was in the business of demolishing buildings and salvaging materials.
- Hays and Wilson made an oral agreement for Wilson to sell and deliver 600,000 used, uncleaned bricks to Hays at $0.01 per brick.
- Hays paid $6,000 to Wilson in advance.
- Wilson delivered bricks to an area designated for Hays, where Hays arranged for workers to clean and stack them.
- Wilson delivered fewer than the 600,000 bricks contemplated by the agreement.
- Hays sued for breach of contract, seeking recovery tied to the undelivered bricks and additional damages claimed as consequential damages.
- Hays did not present evidence that he attempted to obtain substitute bricks (cover) or otherwise reduce his losses after Wilson’s short delivery.
- Hays did not present independent evidence of lost profits, but the jury nevertheless found (1) $6,250 in lost profits, (2) $2,605 in expenses saved, and (3) net lost profits of $3,645.
- The jury also found that Bobby Wilson personally made the oral agreement; it additionally made findings about an employee/cousin (Orville Wilson) and authority, but the trial court entered judgment against Bobby Wilson.
- The trial court awarded Hays $13,645 total: $10,000 for nondelivery (measured by market price minus contract price) and $3,645 as net lost profits.

## Issues

1. Whether legally sufficient evidence supported the jury’s finding that Bobby Wilson personally entered an oral contract to sell and deliver 600,000 bricks to Hays at one cent per brick.
2. Whether the buyer’s direct damages for nondelivery were properly measured as the difference between market price at the time and place for tender and the contract price.
3. Whether Hays could recover consequential damages labeled as lost profits where he offered no evidence of cover or other reasonable steps to reduce loss and no independent proof of lost profits.

## Decision

- The appellate court held the evidence supported the jury’s finding that Bobby Wilson himself made the oral agreement, establishing Wilson’s liability for nondelivery.
- Because Wilson was found to have personally contracted, the additional jury findings concerning Orville Wilson’s authority did not change the result.
- The court affirmed the $10,000 award based on the market-price-minus-contract-price measure for the undelivered bricks, finding the evidence sufficient to support that direct-damages figure under the UCC.
- The court reversed and rendered as to the $3,645 net lost-profits award, concluding the record did not support consequential damages where Hays showed no attempt to cover or otherwise reduce loss and did not provide adequate proof of lost profits.
- The judgment was modified to award Hays $10,000 plus applicable interest and, as modified, affirmed.

## Legal Principles

- A jury finding that the defendant personally made the contract can make disputes about an employee’s authority non-dispositive for liability.
- Under the UCC, a buyer’s standard measure of direct damages for a seller’s nondelivery is the difference between the market price at the time and place for tender and the contract price, together with allowable incidental and consequential damages, less expenses saved.
- Consequential damages such as lost profits are not recoverable on this record when the buyer presents no evidence of reasonable efforts to obtain substitute goods (cover) or otherwise reduce loss and does not supply a sufficient evidentiary basis for the claimed profits.
- A jury’s lost-profit calculation cannot stand where the underlying record does not support recovery of consequential damages under UCC standards, including the buyer’s duty to reduce loss.

## Conclusion

Wilson v. Hays enforced an oral contract for the sale of bricks and allowed the buyer to recover direct, market-based damages for nondelivery, but it removed the jury’s lost-profits award because the buyer did not show cover or other reasonable steps to reduce loss and did not provide adequate proof supporting consequential lost profits.


Wilson v. Hays, 544 S.W.2d 833 (1976)