Louis Berkman Co. v. Unger Metals Corp.

• Decision Date: 20 January 1942
• Docket Number: 29948.
• Citation: Louis Berkman Co. v. Unger Metals Corp., 121 P.2d 606, 1942 OK 20, 190 Okla. 101 (Okla. 1942)
• Parties: LOUIS BERKMAN CO. v. UNGER METALS CORPORATION.
• Court: Oklahoma Supreme Court

121 P.2d 606

190 Okla. 101, 1942 OK 20

LOUIS BERKMAN CO. v. UNGER METALS CORPORATION.

No. 29948.

Supreme Court of Oklahoma

January 20, 1942

Syllabus by the Court.

1. "An instruction is not reviewable on appeal unless the action of the court in giving or refusing same and the exception thereto and the signature of the judge are noted thereon, as provided by the statute." Wayne Tank & Pump Co. v. Harper, 118 Okl. 274, 247 P. 875.

2. A party may not try his case in the trial court on one theory and seek a reversal of judgment on a different theory not presented to the trial court nor raised by the pleadings.

3. As a general rule, waiver is affirmative matter which must be pleaded and is not open as a defense under a general denial.

Appeal from District Court, Muskogee County; Enloe V. Vernor, Judge.

Action by the Louis Berkman Company against Unger Metals Corporation for alleged breach of two contracts for the purchase of personal property, wherein the defendant filed a counter action. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Allen H. Berkman, of Pittsburgh, Pa., and Nathan A. Gibson, Jr. and C. Fred Bullard, both of Muskogee, for plaintiff in error.

Joseph C. Stone and Charles A. Moon, both of Muskogee, for defendant in error.

RILEY Justice.

This is an appeal from a verdict and judgment denying recovery by plaintiff in an action to recover for the alleged breach of two contracts for the purchase of personal property.

On August 15, 1936, plaintiff and defendant entered into a written agreement whereby defendant, Unger Metals Corporation, therein called the seller, agreed to sell, and plaintiff, the Louis Berkman Company, therein called the buyer, agreed to buy, five carloads of heavy milling steel, three carloads to be No. 2 steel and two carloads to be No. 1 unprepared steel, to be delivered within 30 days, with rights of buyer to order shipment at any time within said 30 days.

On September 5, 1936, a similar agreement was entered into calling for the sale and delivery of 200 gross tons No. 2 heavy melting steel, at $16.50 per gross ton, delivery to be within sixty days.

Both agreements provided that buyer reserved right to order shipment at any time within the delivery period, and if material was not shipped as ordered, buyer reserved right to cancel without further obligation, time to be regarded as the essence of the agreement. The first contract is numbered and referred to in the record as No. 712 F, and the other one as No. 522 F.

Plaintiff's amended petition set up separate causes of action. Under the first cause of action, plaintiff alleged breach by failure to deliver two carloads of the No. 2 steel called for in contract 712 F; that the market price of such steel advanced $7 per ton whereby plaintiff was damaged in the sum of $900.

Defendant filed its answer wherein it admitted the corporate existence of both parties and execution of the contracts, and denied all other allegations in the petition. It further alleged that plaintiff gave several different orders for the material in contract No. 712 F, but changed same after defendant had shipped three cars of No. 2 steel; that plaintiff acquiesced in failure to make the shipments on time and requested delay in shipment thereof whereby defendant was released from the obligation of said contract.

As to the second cause of action, defendant alleged that plaintiff never gave defendant any shipping order whatever within the sixty day period; that such orders as were given were changed and that plaintiff itself requested delay of such shipments whereby defendant was released from such contract.

Defendant filed its counter-action wherein it is alleged that it was at all times, during the shipping period covered by contract No 522 F, able, ready and willing to make shipment as and when shipping order was given by plaintiff; that plaintiff never at any time during said period issued or delivered shipping order, so that defendant lost the sale of said material under said contract and that in the meantime the market value of such steel changed to defendant's detriment whereby it was damaged in the sum of $600 for which sum it prayed judgment.

Plaintiff replied by general denial of all allegations inconsistent with the pleadings of plaintiff.

A jury was impanelled to try the issues thus formed. But during the course of the trial, defendant appears to have admitted liability in some amount under the first cause of action. At the close of plaintiff's evidence, defendant demurred thereto as to the second cause of action. The demurrer was at that time, taken under advisement. At the close of all the evidence, the court sustained defendant's demurrer to the evidence as to the second cause of action. Thereupon plaintiff demurred to the evidence of defendant as to its counter-claim. This demurrer was overruled, and the cause was submitted to the jury on plaintiff's first cause of action and defendant's counter-claim.

The jury returned the following verdict: "We, the jury in the above action duly impaneled and sworn, upon our oaths, find the issues in favor of neither plaintiff or defendant that either take anything one from the other and tax the costs against plaintiff."

Plaintiff filed a motion for new trial, which being overruled, judgment was entered in accordance with the verdict, cost being...