American Jobbing Ass'n v. James , 24 Okla. 460 ( 1909 )

The original contract was in writing and was signed by both parties. All transactions between defendant and plaintiff since the execution of the contract have been by means of letters and telegrams. No oral communication has occurred between them. The defendant's first contention, that the question whether the correspondence between them constituted a contract independent of the original contract, and superseded it, and that the construction of the same should have been submitted to the jury, is without merit. Where the transaction between two parties consists wholly of letters and telegrams, it is for the court to determine whether such correspondence constitutes a contract. Lea Beaman v. Henry, 56 Iowa, 662, 10 N.W. 243;Ranney v. Higby, 5 Wis. 62. The construction and interpretation of a contract made entirely by letters and telegrams, where they contain no technical words or terms of art, and their effect depends merely upon the construction and meaning of the instruments, and not upon extrinsic facts and circumstances, are wholly for the court, and a submission, under such circumstances, of such question to the jury, would be error. Falls Wire Mfg. Co. v.Broderick et al., 12 Mo. App. 378; Van Valkenburg et al. v.Rogers, 18 Mich. 180; Goddard v. Foster, 17 Wall. 123, 21 L.Ed. 589. And this rule obtains although the language of the correspondence is obscure and inconsistent in its different parts, making it difficult to understand. Russel v. Arthur,17 S.C. 477.

Nor do we think the trial court erred in construing the effect of the correspondence between plaintiff and defendant as being a modification of the original contract to the extent that it changed the rates of commission, but that it did not in any manner otherwise effect the terms of the contract or supersede it. In the letter of June 6th, defendant states that plaintiff had reached the $5,000 mark, and, under the contract, that he was entitled to 2 per cent. more commission on all future orders. At this time, under the provision of the contract, the commission on each class of orders would have been increased 2 per cent. and the rates of commission would have ranged from 7 per cent. to 22 per cent. Plaintiff states in his letter that, if defendant preferred a straight 16 per cent. rate on all future orders in lieu of the commission set forth in the contract, he would be pleased to make the change for him. The language used by him is that the straight 16 per cent. will be allowed in lieu of the commission set forth in the contract, not in lieu of the terms and agreements of the entire contract; nor did he state, if plaintiff desired to make a new contract providing a flat rate of 16 per cent. on all orders, that such contract would be made by defendant in lieu of the original contract. The clear import of the language appears to us to be that by this letter defendant proposed to substitute for the graduated scale of commissions on the various classes or orders, ranging from 7 to 22 per cent., a uniform rate of 16 per cent., and that such was the intention of defendant in accepting the proposition. There is nothing in the correspondence to indicate that the contract was to be abandoned or its terms changed in any other respect.

A second defense relied upon by defendant was that plaintiff had failed to comply with the terms and conditions of his contract, in that he failed to make weekly reports as provided therein. Upon this defense the court instructed the jury that plaintiff had not complied with the terms of the contract and had given it no concern, but if they should find from the evidence that for a considerable length of time plaintiff furnished reports upon blanks that had been previously furnished him by defendant, and that the reports complied with the terms and conditions of the contract, and that afterwards the company refused or failed to furnish him with any more blanks for the purpose of making these reports, and for that reason he made no further reports, then they might find from that fact that the company had waived that part of the contract. He also instructed them that, although the reports made by plaintiff did not comply with the terms and conditions of the contract, in that they failed to give the names of the merchants to whom he did not sell goods and the reason he did not sell them, if they found that the reports were received by the company without objection as to the manner in which they were made out or as to their contents, the jury was at liberty from these circumstances to find that the defendant waived the terms and conditions of the contract to that extent. Defendant's letter of September 26th changed the uniform rate of 16 per cent. on all orders to a uniform rate of 20 per cent. No other change in the contract is made by this letter. Other matters are referred to and insisted upon; but such matters are provisions of the original contract. Plaintiff, in his petition, alleges the execution of the original contract and avers a full performance by him of the terms and conditions therein for a period greater than 12 months. Defendant by his answer admits the execution of the contract; but, in addition to alleging that the same had been superseded by subsequent contracts, he denies that the original contract had been fully performed by plaintiff. He further avers matter constituting a counterclaim against plaintiff. To this answer plaintiff replied, denying the allegations constituting the counterclaim, and also denying that he had in any way breached the contract. The uncontroverted evidence is, however, that plaintiff did not fully perform the terms and conditions of the contract requiring him to make weekly reports to the defendant. Over the objection of the defendant, he was permitted to introduce evidence tending to show that defendant had waived this condition of the contract, and the court instructed the jury that, if they found certain facts, they were at liberty to find that defendant had waived the terms of the contract requiring the weekly reports. This action of the court was error. Under our Code, the facts relied upon as a ground of action or defense must be clearly and concisely stated in the pleadings, so that the opposite party may not be taken by surprise upon the trial. The new matter introduced to establish the waiver by which defendant would be estopped from claiming a forfeiture of the contract by reason of the violation thereof was not put in issue by the pleadings and evidence to sustain the same, and the instruction of the court based thereon is unwarranted under the pleadings as they now exist. A waiver cannot be proved unless it is within the issues made by the pleadings, and, where facts constituting a waiver are relied upon as an estoppel, they must be especially pleaded. Dwelling-House Ins.Co. v. Johnson et al., 47 Kan. 1, 27 P. 100; Western HomeIns. Co. v. Thorp, 48 Kan. 239, 28 P. 991. If plaintiff desires to present the issue of waiver as part of his cause of action, he should amend his pleadings accordingly.

For this error, the judgment is reversed, and the cause remanded.

Dunn and Turner, JJ., concur; Kane, C. J., not sitting; Williams, J., disqualified and not sitting.