Rehearing denied March 9, 1926. ON PETITION FOR REHEARING. (244 P. 83.) The defendant has presented a very earnest petition for rehearing alleging error in our opinion because we did not hold that defendant was entitled to damages for plaintiff's breach of his alleged contract to deliver 8,000 yards of rock. Defendant says in his petition:
"We do not care, as we said on oral argument, whether the contract is reformed or not. We offered parol evidence to prove the exact amount of rock that was to be delivered. The evidence was admitted without objections, and, under American ContractCo. v. Bullen Bridge Co. was not only admissible, but absolutely essential to Hagman's case. Therefore, there is now before this court of equity — omitting the reformation request — the question as to whether the court is going to permit Hagman to (a) recover on something which is not a contract, or (b) permit his alleged contract to stand alongside of a parol agreement which is necessary to make it a contract."
The defendant relies on American Contract Co. v. BullenBridge Co., 29 Or. 549 (46 P. 138), where the principle is thus expressed:
"But if the writings constitute a part only of an oral agreement entered into between the parties, parol evidence was admissible to prove the terms and conditions of that part of the agreement not embraced within or in conflict with the offer and its acceptance, and hence the judgment complained of was erroneous." *Page 356 See the compilation of authorities on this subject in the notes to Ferguson v. Rafferty, 128 Pa. 337 (18 A. 484, 6 L.R.A. 33).
The defendant, by asking that the contract be reformed so as to provide for the number of yards of rock to be delivered, conceded that in order for him to get the benefit of that alleged element of the contract it was necessary to have the contract reformed. Having submitted his case to the Circuit Court on that theory, he cannot now be allowed to proceed here under a different theory. He thereby caused the case to be tried in equity, thus preventing the plaintiff from having the benefit of a jury trial. This court has held in a number of cases that a litigant will not be allowed to present a case here on a different theory from the one employed in the Circuit Court. Having selected the forum below he must proceed to the end in the same forum.
Jones v. Waring, 101 Or. 403 (200 P. 908); Winn v.Taylor, 98 Or. 556 (190 P. 342, 194 P. 857); Wallace v.American Life Ins. Co., 111 Or. 510, 525 (225 P. 192, 227 P. 465).
Equity having taken jurisdiction in a cause will retain it and determine all the issues both at law and in equity. Therefore if defendant had proven to the satisfaction of the court that the contract required plaintiff to supply a definite quantity of rock, the court would have awarded him damages for a breach of that requirement by the plaintiff. The effect of the finding on that issue is that defendant failed to prove the allegation on that issue.
If defendant would justify himself by the fact that the contract was reformed in other particulars, and, therefore, he was proceeding here on the same theory he pursued below, then we answer, that he had the *Page 357 benefit of the evidence. Both the circuit and this court found against him on that issue. The effect of that finding is that the parties did not agree that the plaintiff should deliver a definite quantity of rock. They discussed the matter. The defendant testified that the contract was to the effect that the plaintiff should deliver the entire quantity of rock required for a particular job. The plaintiff testified that the defendant promised him that amount of work. The defendant prepared the contract omitting such provision. The omission was discussed before the contract was executed, and several different quantities and other jobs were mentioned by defendant. It was agreed to leave the quantity of rock out of the contract. The parties by deliberate choice left the quantity of rock to be delivered indefinite. The finding of both courts is therefore in effect that the parties did not agree that plaintiff should deliver a definite quantity of rock. For that reason the courts have refused to reform the contract in that particular. The plaintiff did not breach the contract by quitting before furnishing the quantity of rock as claimed by the defendant because the agreement did not require him to furnish any definite quantity of rock, nor sufficient rock for any particular section of the highway. Petition for rehearing is denied.
REHEARING DENIED.
McBRIDE, C.J., and BURNETT and RAND, JJ., concur. *Page 358