82 F.2d 735 | 10th Cir. | 1936
This was a suit to recover damages on the part of appellee, plaintiff in the court below, growing out of the cancellation of contracts with the appellant, defendant in the court below, for sale and delivery of flour. The case was tried to a court and jury resulting in a verdict of $12,500 in plaintiff’s favor, upon which judgment was entered, and the defendant appeals.
In 1932 plaintiff and defendant entered into a number of contracts for the sale and delivery of flour, but those contracts
In 27 R.C.L. pp. 909, 910, the rule concerning waiver well supported by authority is laid down in the following language: “To make out a case of waiver of a legal right there must be a clear, unequivocal, and decisive act» of the party showing such a purpose or acts amounting to an estoppel on his part. A waiver, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition.”
In the case at bar it is apparent that there was no proof of consideration supporting the waiver contended for by plaintiff, so that reliance must be based upon the acts of the defendant being of such a nature as to estop it from canceling the contracts. An examination of the letters pleaded in the petition as the basis of the alleged waiver, together with the additional letter of April 22d, clearly shows that no waiver amounting to estoppel was established by virtue of these letters. When analyzed, the most that can be said of them is that the defendant was repeatedly calling attention to the failure of the plaintiff to give orders for the flour in amounts which would be reasonably sufficient to complete the contracts before the date of their expiration. The mention of July and August dates in the letters was to emphasize the slowness with which the orders were coming in and that at the rate
This brings prominently to the fore the significance of the admission of the oral testimony as a specific and independent basis for establishing waiver. It is apparent that under these circumstances the defendant must have been surprised and misled as it nowhere appeared in the pleadings that resort would be had to anything other than the written communication relied upon as the evidence of the waiver claimed. It is the plaintiff’s contention that the introduction of the conversations was at most a variance from the pleading and that under the Kansas statute, no showing having been made that the defendant was prejudiced or in what respect he had been misled, that there was no error on the part of the trial court in permitting this evidence to go to the jury. The Kansas statute, known as R. S., 60 — 753, reads as follows: “No variance between the allegations, in a pleading, and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just.”
There can probably be no dispute that so far as this statute is applicable, it is controlling in the Federal courts. Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69, 29 L.Ed. 393. The question of waiver and likewise the question of variance between pleading and proof both before and after the adoption of this statute, have been closely associated by reason of the fact that waiver has been frequently discussed by the Kansas Supreme Court in connection with variance between pleadings and proofs. As to the matter of pleading waiver when sought to be availed of as a basis of asserted right, the rule in Kansas would seem to have remained static under the decisions of the Kansas courts, in that it is held such pleas must be specific. In Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100, at page 102, the court uses the following language: “It is uniformly held that a waiver or estoppel must be specially pleaded before evidence to establish the same can be admitted. Under our Code the facts relied upon as a ground of action or defense must be clearly and concisely stated, and a definite issue presented, so that the opposite party may not be taken by surprise upon the trial, but may be fairly notified of what he is required to meet. The new matter introduced in this case was not put in issue by the pleadings, and the company may, as they allege, have been taken by surprise, and wholly unprepared with their proof to contest the new issue. Neither the evidence introduced nor the instructions based thereon are warranted under the pleadings as they exist, and before they can be properly received the reply must be amended.”
In connection with the question of estoppel, in Langston v. Hoyt, 108 Kan. 245, 194 P. 654, at page 657, the court says: “If it was a contract material to the issue, it should have been pleaded, and, if an estoppel, it likewise should have been specially pleaded, and a definite issue presented so that the defendant could have made preparation to meet it. Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100;
In Johnson v. People’s National Bank, 130 Kan. 379, 286 P. 214, at page 216, a comparatively recent case decided in 1930, the court says: “To be available as estoppel, it is settled that acts, representations, and conduct relied on as an estoppel must be specially pleaded. Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100; Palmer Oil & Gas Co. v. Blodgett, 60 Kan. 712, 57 P. 947; Langston v. Hoyt, 108 Kan. 245, 194 P. 654.”
Decisions in regard to estoppel are pertinent and controlling in view of what has heretofore been said, that a waiver in order to be effective must be founded upon a valuable consideration or must be of such a character as to estop a party, and in the case at bar, there being no evidence of consideration, the plaintiff must necessarily rely upon the doctrine of estoppel to enforce his contention of waiver. Thus it would appear that the rule laid down in Insurance Co. v. Johnson, supra, many years before, is yet adhered to by the Supreme Court, as shown by repeated citations of that case in later decisions. Only in the sense, perhaps, that its strict interpretation may be somewhat relaxed by virtue of the statute on variance, can there be said to have been any change in the rule covering the pleading of waiver by estoppel. One of the cases relied upon by the defendant as indicating that the rule has been changed since the adoption of the statute concerning variance, is Allen v. Gheer, 98 Kan. 228, 158 P. 17, at page 18, where the court says:
“While the cases cited by appellant (Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100; Insurance Co. v. Thorp, 48 Kan. 239, 28 P. 991; Walker v. Insurance Co., 51 Kan. 725, 33 P. 597; Gillett v. Burlington Insurance Co., 53 Kan. 108, 36 P. 52) all hold that a waiver must be pleaded, yet they were all decided before the promulgation of the new Code. Moreover, the dissenting opinion in Insurance Co. v. Thorp, supra, decided in 1892, clearly foreshadowed the modern tendency,' and the one which, at least with the aid of the new Code, may be now said to have been crystalized into established law. It was there said:
“ ‘Of course, if the question of waiver was a matter of dispute, and the plaintiff relied on the waiver to maintain his action, it must be pleaded before testimony of such waiver can be received over the objections of the company. Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100. ‘Where no objection is made to the introduction of evidence, no material error is committed by permitting its introduction.’ Grandstaff v. Brown, 23 Kan. 176.’ ”
The language in this case was used in the consideration of the waiver of a default in a contract, and the court observes in the opinion, which is at least a compelling basis for the decision rendered, that no objection was made to the evidence concerning waiver at the time it was offered.
In De Bus v. Life Insurance Co., 115 Kan. 773, 225 P. 91, cited by plaintiff’s counsel, the court considered the variance statute in connection with an alleged waiver of a proof of death in an insurance policy, holding that it was not necessary to plead waiver of proofs of death where there was a specific denial of liability under a policy, which denial in itself constituted a waiver of such proof, and after quoting the variance statute the court stated that the defendant insurance company could not have been misled by the evidence. This is probably the law in insurance cases independent of statute. Other Kansas cases might be reviewed but enough has been indicated from these reports to lead us to the conclusion that it is the law of Kansas as interpreted by the courts, that waiver to be relied upon must be specifically pleaded as to the facts and circumstances constituting that waiver, but that by virtue of the statute, variance between the pleading and proofs shall be deemed material only when it misleads the adverse party to his prejudice in maintaining his defense upon the merits and whether that situation exists is only determinable under the particular facts and circumstances of each individual case.
It remains to be considered whether or not there was a compliance with the remainder of the statute in requiring proofs to the court in respect to the fact and manner in which he had been misled. In this respect it is urged that the defendant offered no proofs in compliance with this provision of the statute.. Only the suggestion of the situation in which the defendant then found itself as shown by the record itself was needed to make apparent both the act and manner of misleading. Certainly it would have been a vain and useless thing for the defendant to have offered the pleadings of the plaintiff together with the oral conversations testified to by the plaintiff, as evidence of the manner in which the defendant had been misled. The defendant was left in the situation of being unprepared to meet an issue of independent evidence of waiver not relied upon in plaintiff’s pleading. In equity and good conscience we think that it was thereby placed at a distinct disadvantage and soundly prejudiced in presenting its defense on the merits. Even though a motion had been made attempting to make the pleadings conform to the proof, as stated in the Hoyt Case, supra, its allowance would not have been in furtherance of justice.
In view of what has been stated, other alleged errors need not be considered. It must be held that the trial court erred in admitting the oral conversations in evidence and submitting the case to the jury. The judgment of the trial court will be reversed and the case remanded for a new trial.
It is so ordered.