172 P.2d 768 | Okla. | 1946
Plaintiff, the J. R. Watkins Company, sued defendant, D.P. Chapman, the guarantor upon a contract of sale entered into between plaintiff and one of its salesmen, Claude Bebout, to recover the price of goods sold to Bebout thereunder. The jury returned a general verdict for defendant, and from the judgment entered thereon, plaintiff appeals. Save for the question of whether the court erroneously refused to extend the time in which to make and serve the case-made (which is brought before us by bill of exceptions) the appeal is by transcript.
1. Plaintiff first contends that the court erred in overruling its demurrer to defendant's answer. A determination of this question requires an examination of the pleadings. Plaintiff, by its petition, alleged that pursuant to the contract of guaranty it had furnished merchandise to Bebout on various dates between August 23, 1940, and January 7, 1941, of the total value of $829.37. Of this amount, merchandise of the value of $365.06 was furnished to Bebout prior to November 8, 1940, and the balance thereafter. By answer, defendant alleged (among other defenses) that on November 8, 1940, he requested of plaintiff in writing that he be released from the contract and that plaintiff ship no further merchandise to Bebout, but that plaintiff ignored the request. He further alleged that shortly after February 14, 1941, pursuant to authority from plaintiff, he boxed merchandise *467
remaining in the hands of Bebout of the wholesale price of $537.66 and returned it to plaintiff, but that plaintiff credited Bebout's account with only $371.13 therefor. Since the contract sued on provided that it might be terminated at any time by either party upon written notice, and since it is the general rule that a guaranty of this kind may be revoked at any time by the guarantor, so far as future transactions are concerned (15 O. S. 1941 § 337; Central Surety Insurance Corporation v. Richardson,
The question, however, is not whether the answer stated a good defense, but whether the defects therein were amendable. It must be remembered that the judgment herein was based on a general verdict of the jury and that the evidence is not before us. Defects in pleadings may be cured by proof supplied at the trial without objection. Van Horn v. Van Horn,
It follows that we must presume that defendant offered proof at the trial that plaintiff was given such directions as to application of the credit at the time of the return of the merchandise, and that the jury so found.
2. Plaintiff next urges that the court erred in giving and refusing certain instructions. These instructions are not contained in the bill of exceptions, but are copied into the transcript of the record. Instructions are not part of the record proper and do not become so by being copied into the transcript. Sanderson v. Caldwell,
3. Plaintiff finally urges that it made a sufficient showing of accident or misfortune, under 12 O.S. 1941 § 962[
The result we have reached makes discussion of the other errors argued unnecessary.
Judgment affirmed.
GIBSON, C.J., and RILEY, OSBORN, and BAYLESS, JJ., concur.