119 F.2d 456 | D.C. Cir. | 1941
Appellee guaranteed, in writing, payment for materials which appellant sold to Huff. Huff defaulted, and appellant sued on the guaranty. Appellee defended on the ground that appellant failed to give prompt notice of Huff’s default. There was evidence that appellant agreed orally to give prompt notice,
We must assume that the court found all the disputed facts, including the making of the oral agreement, in appellee’s favor. As appellant does not question the validity of the oral agreement, its validity is not before us. Accordingly the agreement, to the extent of the injury which its breach inflicted on appellee, is a defense here. Cases like Kaufman v. Penn Mut. Life Ins. Co.,
Appellee did not plead the oral agreement, but he introduced, without objection, evidence that it was made. Appellant introduced contrary evidence. The Federal Rules of Civil Procedure, 23 U.S.C.A., following section 728e, provide that “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Rule 15(b). The Rules of the Municipal Court provide that “Pleadings in Class A shall be similar in form to those required by the law rules of the, District Court of the United States for the District of Columbia.” Rule 2, § 8.
62 App.D.C. 37, 64 F.2d 160, certiorari denied 289 U.S. 763, 53 S.Ct. 793, 77 L.Ed. 1506.