Lee v. Haizlip

Heretofore, by an opinion by this court on the 10th day of September, A.D. 1908, the judgment of the lower court was to be modified and the costs divided equally between the parties.

The plaintiff below, in his amended petition, alleged that the defendant "was indebted to him in the sum of $1,036.41, for goods, wares, and merchandise, consisting of lumber which he sold and delivered to said defendant between the 15th day of November, 1902, and the 19th day of October, 1903, of the value of $3,894.00;" an itemized account thereof being attached to said petition, showing the price of each separate item.

Afterwards on the 20th day of March, A.D. 1905, the defendant filed his amended answer, denying each and every allegation in plaintiff's petition, except as hereinafter appears. Defendant affirmatively pleaded that he was a general building contractor doing business in Oklahoma City, Oklahoma, and as such he did, on or before the 21st day of November, A.D. 1902, have a contract for the erection and completion of the Epworth University in the city of Oklahoma City; that one Frank Butts was a lumber dealer and broker, and the agent of the said plaintiff, J. T. Haizlip, doing business as a lumber broker, etc.; that on the 21st day of November, A.D. 1902, the said Frank Butts as such lumber broker and agent of the said plaintiff, and with full knowledge of all the terms, conditions, and covenants by the said defendant, L. F. Lee, to be performed in the building and erection of said Epworth University, contracted and agreed with the said defendant L. F. Lee, to furnish and supply to said defendant, f. o. b. cars at Oklahoma City, Oklahoma Territory, a certain bill of lumber and certain extras, a full, true, and correct copy of the memoranda of said contract being attached to said answer; that said Butts covenanted with said defendant to supply and furnish the same at such time and in such manner as might be required for the erection of said building, at the agreed price of $3,650.00; that the said bill of lumber and extras the said Butts, then and there acting as the agent of the said plaintiff, agreed to furnish and supply, all listed in said bill except certain items, at the agreed price of $3,032.97, and the extras in said bill as itemized, aggregating the additional amount; that the said defendant, relying on said contract so made and entered into, proceeded with the erection of said university, but that plaintiff failed, neglected, and refused to furnish and supply the said defendant with certain items of lumber specified in said contract at such times as the same were needed in the construction of said building, though demand was made for same, and that said defendant was compelled, in order to carry out and fulfill his contract for the building of said university, to purchase certain items of said lumber at local yards at advanced prices, amounting in all to $673.65, the difference between the agreed price on the part of the plaintiff and the reasonable local price paid by defendant; that said contract embraced the furnishing and supplying to said defendant by the plaintiff of 35,000 feet of 1x10 shiplap, and that said plaintiff furnished the defendant instead thereof, 1x6 shiplap, and that the difference in the value and the cost of laying the said shiplap so furnished by said plaintiff to defendant and that contracted and agreed to be furnished by said Butts, as agent of said plaintiff, is the sum of $257.25; that said defendant was compelled to use said shiplap so furnished in order to complete said building.

Defendant further alleges that he paid to said plaintiff and to his agent, and for freight on said lumber, the total sum of $2,827.80, and has paid out as above stated the additional sum of $673.65, and the further sum of $257.25, for and on account of said plaintiff as aforesaid, making the total sum of $3,758.70; that said plaintiff is entitled to a credit for the contract price of said lumber of the sum of $3,032.97, and for extras so furnished by said plaintiff to defendant under said contract, making the total sum of $3,706.68, to which plaintiff is entitled to take credit, and that there is now due and owing to said defendant from said plaintiff a balance of $52.02, — it being further specially pleaded with reference to said shiplap that the said Frank Butts, acting as agent for said plaintiff, agreed and contracted with said defendant at the time that, if defendant would receive and accept said shiplap so delivered by said plaintiff and use the same, said plaintiff would allow said defendant the difference of $4 a thousand feet on account of its inferior quality, amounting to $140.00, and that the difference between the value in quantity of the 1x10 shiplap agreed to be furnished and the 1x6 shiplap actually furnished was $117.25. Then follows a prayer for judgment for $52.02.

The plaintiff filed reply to said amended answer and the cause was referred to a referee. On the 15th day of May, A.D. 1905, the cause came on for hearing before the referee. From the report of the referee we quote as follows:

"Prior to the introduction of any evidence in said matters, the parties, by and through their attorneys and in the presence of your referee, made and entered into the following stipulation, to-wit: 'It is admitted that the plaintiff, under the pleadings, will be entitled to a judgment of $879.68, with interest at the rate of seven per cent thereon from October 25, 1904, unless defendant herein can establish matters of affirmative defense and counterclaim set up in his answer.' Whereupon defendant assumed the burden of proof and the trial proceeded."

From the referee's findings of law, we quote as follows:

"First. That if it is admitted as a matter of fact that the parol agreement between Mr. Butts and Mr. Lee with reference to the allowance on the shiplap, and the credit to be allowed for purchase in local yards, were in fact made and entered into, as testified by Mr. Lee, still, as a matter of law, Haizlip cannot be held to have ratified the same, for the reason that said parol agreements were not brought to his knowledge and he was not cognizant of them at the time of the transaction of June 17, 1903. Therefore defendant has failed to establish his affirmative defenses.

"Second. That by not confining themselves to the issues presented by the matters of affirmative defense plead by the defendant, and having disregarded the stipulation entered into at the beginning of the trial, the parties are deemed to have waived said stipulation."

These data do not appear in the opinion in this case formerly delivered by this court. In that opinion the court found that the $133.16 allowed plaintiff by the referee, in addition to the amount admitted, being not within the issues as joined by the pleadings and contrary to the stipulation of the parties, must be set aside; but the defendant was allowed a credit of $292.10 for freight.

In view of the fact that said $292.10 could not have been allowed except as being proved as a part of an affirmative defense, and the referee having specifically found that the defendant had failed to establish his affirmative defense, whilst the court technically would be justified in rendering judgment here, yet as it appears from the record that the plaintiff was, as a matter of fact, entitled to the $133.16, and the referee found that the defendant had failed to establish his affirmative defense, the inference would be that the $292.10 was sustained by the evidence introduced, under the theory of the parties not confining themselves to the issues presented by the matters of affirmative defense pleaded by the defendant. Whilst we adhere to the rule as announced in the syllabus (paragraph number 2) in the former opinion as an abstract proposition, yet in view of the status of the record in this case we determine that the ends of justice may be more certainly subserved by reversing and remanding this case for another trial. Let the costs of this appeal be taxed against the defendant in error.

Cause reversed and remanded for a new trial.

Turner, Dunn, and Hayes, JJ., concur; Kane, C. J., dissents.