The principal underlying question on this appeal is whether the trial court abused its discretion in refusing to permit the defendant to amend his answer to state an affirmative defense at a point in the trial when the plaintiffs had presented their evidence and rested, had moved for a directed verdict, and had presented arguments in support of their motion. The trial court denied the request to amend, granted the motion of the plaintiffs for a directed verdict, and rendered judgment *239 against the defendant for the sum of $8,956.87. We affirm.
The plaintiffs in their petition alleged, among other things, that they, on August 3, 1973, entered into a contract in writing to sell cattle to the defendant. The petition incorporated the contract. They further alleged: “That the plaintiffs have duly, timely and fully performed all of their obligations set forth in said Livestock Contract,” and that the defendant had failed to pay the balance owing of $8,956.87. The written contract, insofar as it is necessary in this opinion to note its specific terms, provided for the sale by the plaintiffs to the defendant of: “. . . about 550 or 5 Loads Black Hfr. Calves, . . . and now located in Davis Ranch Pasture in Bryan County, Okla. near Durant, Okla. Said cattle to be good, well-bred Angus cattle with a no per cent cut back, after all unmerchantable cattle and apparent pregnant heifers have been thrown out; this cut to be made by the Buyer at Davis Ranch. The delivery is to be made free of encumbrances f.o.b. cars or trucks at Davis Ranch. Said cattle to be weighed at Davis Ranch, with 3% of Equivalent shrink, ... 3 Loads-Oct 1, 73, 2 Lds-Jan 1, 74. . . . The price agreed upon is $69.25 per cwt., per head. $5500.00 paid as part payment, receipt of which is hereby acknowledged, balance to be paid upon delivery of said cattle.”
The defendant’s answer admitted the identity of the parties and then stated: “This defendant admits that the plaintiffs and defendant entered into a livestock contract. . . . Further answering, defendant denies each and every other allegation of plaintiff’s Amended Petition except for those allegations specifically admitted above.”
The plaintiffs’ evidence established prima facie the contract and delivery of the cattle in accordance with the contract terms. It was then stipulated by the parties: (1) That the contract attached to the plaintiffs’ petition, exhibit A, which had been received in evidence, had *240 been entered into by the parties, (2) that five loads of cattle were delivered to the defendant by the plaintiffs; and (3) that of the total contract price, $8,956.87 had not been paid.
At that point the defendant moved for a directed verdict. The court denied this motion. The plaintiffs then moved for a directed verdict and also moved the court to deny the admission of any evidence by the defendant. The basis of these motions was that the answer of the defendant tendered no issue for the jury to decide. Oral arguments were heard and a brief was submitted by the plaintiffs. At the completion of the plaintiffs’ argument in support of their motion, the defendant made his motion to amend. It was as follows: “. . . for order amending the answer to allege that the terms of the contract or implied terms of the contract required that all five loads be even as to the cattle and that the defendant — and that the plaintiffs failed to comply with that implied term of the contract, assuming that that is necessary, but assuming that it is necessary this was — whole case was tried all throughout plaintiffs’ evidence on that theory. Certainly, if we were going to take plaintiff by surprise then perhaps it would be an abuse of discretion to allow us to amend the answer.”
In sustaining the plaintiffs’ motion for a directed verdict the trial court apparently relied upon decisions of this court cited by the plaintiffs which apply section 25-836, R. R. S. 1943. That section provides: “In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish on the trial the fácts showing such performance.”
In Morearty v. City of McCook,
In Midland-Ross Corp. v. Swartz,
In support of his position that the request to amend should have been permitted, the defendant claims the plaintiffs knew what the specific defense would be and that they were, in fact, not taken by surprise; and that therefore the amendment was required in the furtherance of justice and consequently an abuse of discretion by the trial court is shown. Defendant cites sections 25-852 and 25-853, R. R. S. 1943, and numerous opinions of this court decided under the authority of those statutes. He relies especially upon Louis Hoffman Co. v. Western Smelting & Refining Co.,
The defendant asserts the plaintiffs would in no way have been prejudiced by the amendment in this case because the plaintiffs knew for a long time that the defense would be lack of “evenness” in the cattle. To support that contention the defendant made a showing before the trial court. His first claim is that there was a pretrial conference held immediately before trial at which that issue was defined. One of the defendant’s attorneys testified that the plaintiffs’ counsel had stated in substance at that time: “. . . you are not really disputing that the contract was entered into, you are not disputing that the five loads of cattle were delivered, you are disputing that the fifth load did not measure up to the terms of the contract.” He further testified: “. . . it was clear at the time that the defendant’s only
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defense to the contract was that the fifth load of cattle were not even. It was certainly clear at the time through the discussion between counsel and the Court that that would be the defense.” It is claimed that this conversation occurred in chambers in the presence of the trial judge just before the jury was to be empaneled. Defendant relies upon the proposition that issues joined in a pretrial conference supersede those joined by the pleadings and constitute the issues upon which the case is to be tried. Kresha Constr. Co., Inc. v. Kresha,
As a further showing of knowledge on the part of counsel for the plaintiffs, defendant also points to answers given by defendant to interrogatories put to him by the plaintiffs and filed in the transcript about 10 months before trial which disclose what the defense would be. The transcript discloses an answer which states: “A portion of the cattle . . . were not even.” There are, however, in these answers to interrogatories other answers which make defensive claims of various other kinds, viz, some of the cattle were yearlings and not calves; the cattle were never accepted; failure to deliver cattle as specified in the contract; the cattle were not as represented in the contract; the cattle did not meet contract specifications; inadequacy of con *244 sideration; the contract was changed or unfulfilled in unspecified ways without the defendant’s prior consent and ratification; and there were defects and discrepancies in the cattle not discovered until after delivery. If the answer stating “the cattle . . . were not even,” is to be given significance in defining the issues, then it would seem that all the other answers referring to a variety of possible affirmative defenses should be granted significance as well and defendant ought to be free to make other amendments. But to allow this in the middle of trial would effectively do away with the principle embodied in section 25-836, R. R. S. 1943, and the cases decided thereunder.
The defendant also claims that various discovery depositions taken by the parties disclose that the defense would be “evenness.” These depositions were not offered in support of the showing made in the trial court and are not included in the bill of exceptions before us, although they apparently were transmitted by someone for filing and are on file herein. Before this court can consider evidence bearing upon an issue of fact, the evidence must have been offered in the trial court and embodied in a bill of exceptions. Arla Cattle Co. v. Knight,
Two other considerations support the conclusion that the trial court did not abuse its discretion when it denied the defendant’s motion to amend. The first is that any tendered amendment ought to be well pleaded. The second is that the introduction of additional issues by amendment would entitle the plaintiffs to make responsive replies which could well have raised yet additional issues, all of which might well have required a delay of the trial. We will discuss each consideration in order.
The offered amendment to defendant’s answer was simply a legal conclusion that there was an implied term of the contract that each load be “even as to cattle” and that plaintiffs breached that term. The plead
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ing of legal conclusions is insufficient to raise an issue of fact. 77 C. J. S., Sales, § 362d, pp. 1275, 1276; Koch v. Grimminger,
The defendant’s theory is that there was a custom and usage among cattle dealers that each load be “even.” It is ordinarily incumbent upon one who relies upon a special custom as a basis of recovery or defense to allege the custom and to plead and prove the other party had knowledge of the custom and contracted with reference thereto. Shambaugh v. City Bank of Elm Creek,
The proffered pleading is also deficient for another reason. The purchaser must plead that he gave timely notice of the breach. § 2-607(3) (a), U. C. C. See Hrdlicka v. Allen,
If an amendment had been permitted the plaintiff would be entitled to meet the new pleading by appropriate responsive pleadings. If appropriate facts existed possible defenses are suggested by the following provisions of the Uniform Commercial Code: Section *246 2-316(3)(c), exclusion of implied warranties by usage of trade; and section 2-607(2), acceptance of the goods by the buyer.
The foregoing discussion of matters of pleading is not intended as any expression of opinion as to whether additional terms could, in fact, be added by custom and usage to the apparently complete contract here involved. See, § § 2-202 (a) (b), 2-208, 2-317 (c), U. C. C. See, also, Keene Coop. Grain & Supply Co. v. Farmers Union Ind. Mut. Ins. Co.,
One other contention of the defendant should be noted. He claims that the case was tried below upon the theory that the defense was “evenness” and that on appeal the matter will be considered upon the theory on which the case was tried in the trial court. That principle applies only where both parties have acquiesced in the theory and the case was submitted to the trial court on that basis. That principle has no application where, as here, the record shows the plaintiffs did not acquiesce and the trial court did not decide the case on the theory that a defense had been properly pled. See, Ford v. County of Perkins,
As we have noted earlier, the purpose of section 25-836, R. R. S. 1943, is to sharply define and limit the issues. The issues must be defined before trial starts if the purpose of the statute is to be served. Issues are made by the pleadings and not by inquiries made in discovery depositions taken or interrogatories put long before trial nor by informal conversation between counsel. For all the reasons given it appears clear that the trial court did not abuse its discretion in denying the defendant’s motion to amend.
Affirmed.