El Reno Wholesale Grocery Co. v. Keen

• Decision Date: 13 November 1923
• Docket Number: Case Number: 14368
• Citation: 1923 OK 953,220 P. 653,93 Okla. 198
• Parties: EL RENO WHOLESALE GROCERY CO. v. KEEN.
• Court: Oklahoma Supreme Court

1923 OK 953

220 P. 653

93 Okla. 198

EL RENO WHOLESALE GROCERY CO. v. KEEN.

Case Number: 14368

Supreme Court of Oklahoma

Decided: November 13, 1923

Syllabus

¶0 1. Pleading -- Pleading and Proof -- Variance.

"It is a general rule in actions at law that in order to enable plaintiff to recover or defendant to succeed in his defense, what is proved or that of which proof is offered by the party on whom lies the onus probandi must not vary from what he has previously alleged in his pleadings; and that is not a mere arbitrary rule, but is one founded on good sense and good law."

2. Trial -- Instructions -- Pleadings to Support.

"It is error to admit testimony in support of facts not put in issue by the pleadings, and, as a logical corollary, it is error to instruct the jury upon issues not raised by the pleadings." Chambers v. Van Wagner, 32 Okla. 774, 123 P. 1117.

T. W. Jones, Jr., and Eugene Forbes, for plaintiff in error.

E. L. Mitchell and W. P. Keen, for defendant in error.

THREADGILL, C.

¶1 The plaintiff in error, plaintiff below, on April 3, 1922, brought suit in the district court of Custer county, against the defendant in error, defendant below, to recover the sum of $ 501.08, with six per cent. interest from February 24, 1921, on an open account. The defendant answered, admitting the account and pleading as an affirmative defense breach of written contract for 200 sacks of cane sugar for future delivery at $ 17.50 per sack, The answer stated that the contract was made by the duly authorized agents of the parties at Weatherford, Okla., February 19, 1920; that it was mutually agreed between the parties that the plaintiff should sell and deliver to the defendant and defendant should receive and accept at an agreed price of $ 17.50 per sack 200 sacks of cane sugar to be delivered as stated in the contract; that the plaintiff had delivered 50 sacks under the contract and had failed to deliver the balance, being 150 sacks, the same being worth, at the time of delivery, $ 30 per sack; but because of this failure to deliver said sugar he was damaged in the sum of $ 1,875, and he offers to set off from this amount the $ 501.08, claimed by plaintiff and asks for judgment against the plaintiff over and above the set-off in the sum of $ 1,373.93, with interest at six per cent. from July 15, 1920. as damages. The order upon which this affirmative relief was based was as follows:

"El Reno Wholesale Grocery Co.

Terms: Net 2% El Reno, Oklahoma. Date sold: 2-19-20 (Signed) Dated Billed. Salesman George. Journal Folio No. Sold to Keens Store. Town and State: Wford. Shipped by --. 2 per cent.

Shippers Check. Quantity. Article. Weight. Price.

50 Sx. Cane Sugar May 15 $ 17.50

50 Sx. Cane Sugar June 15 $ 17.50

50 Sx. Cane Sugar July 15 $ 17.50

Net Cash ( Signed ) Keens Store, W. P. Keen"

¶2 To this answer the plaintiff filed a verified reply, which, omitting the caption, was as follows:

"Comes now the plaintiff above named and for its reply to the answer of the defendant filed herein denies each and every material allegation contained in the defendant's claim of set-off.

"T. W. Jones, Jr.,

Attorney for Plaintiff.

State of Oklahoma,

County of Canadian

"S. S. Macy being first duly sworn upon oath deposes and says that he is secretary of the plaintiff corporation aboved named and as such is authorized to make this affidavit; that he has read the above and foregoing reply of the plaintiff to the defendant's answer, and that the statements therein made are true as he verily believes.

"S. S. Macy. Subscribed and sworn to before me this 21 day of November, 1922. "R. B. Strong, Court Clerk. By Mona Whitesil, Deputy."

¶3 With the issues thus joined, the cause was tried to a jury November 22, 1922, the defendant assuming the affirmative, and resulted in a verdict and judgment in favor of the defendant over and above the set-off in the sum of $ 766.42, and the plaintiff brings the cause here by petition in error and case-made for review, alleging the following errors:

"1. Overruling the objection to the following question on page 17 of the case-made: 'I will ask you to state whether or not any of this sugar was shipped.' 2. In overruling plaintiff's objection to the introduction of Exhibit A. 3. In permitting the defendant to answer questions as to the market value of sugar without specifications as to what market, over the objection of plaintiff. 4. In permitting witness Hawk to testify as to the market value of sugar without specification as to the place, over the objection of the plaintiff. 5. In permitting witness to testify as to market value of sugar at Weatherford over the objection of plaintiff. 6. In permitting witnesses to testify as to value of sugar at Clinton, Oklahoma,over the objection of plaintiff. 7. In permitting witness to testify as to value of sugar, over the objection of plaintiff. 8. In failing to sustain motion of plaintiff to strike testimony of witness as to market value of sugar at page 51 of case-made. 9. In refusing to sustain the motion of plaintiff made at the conclusion of defendant's case to strike defendant's testimony. 10. In refusing to sustain the demurrer of plaintiff to the evidence of defendant. 11.In refusing instruction No. 1, requested by plaintiff. 12. In refusing instruction No.2, requested by plaintiff. 13. In giving instruction No. 2, 14. In giving instruction No. 3. 15. In giving instruction No. 4. 16. In giving instruction No. 5. 17. In overruling motion of plaintiff for a new trial."

¶4 It appears from the record that the principal contention of plaintiff in error is that the material allegations of the answer as to the contract relied on were not proven. If this contention is upheld by the record and the authorities it will be decisive of this appeal without going into the other questions raised by the petition in error. The answer describes a certain contract executed at Weatherford, Okla., by the duly authorized agents of the parties. The testimony shows that what the defendants alleged to be a contract was an order for the future delivery of cane sugar signed by "W. P. Keen," manager of the retail store, and near the top was the name of "George" after the word salesman. There was no...