Birmingham Steel & Supply, Inc. v. Smithco Manufacturing Co. , 1965 Okla. LEXIS 292 ( 1965 )

BERRY, Justice

(concurring specially) :

I agree that the trial court should be affirmed. I feel, however, that the instructions complained of by the plaintiff in error concern the decisive issue in this case; therefore, this Court should examine these instructions, as well as all the instructions, to determine whether or not the jury was sufficiently advised in this respect and if not, then fundamental error would have occurred and failure to properly except is not fatal.

The decisive issue, in my opinion, was whether or not by mistake the invoice for $2,280.91 was omitted and not considered in the settlement between the parties

The defendant’s position was that plaintiff’s claim was barred by reason of the asserted accord and satisfaction. The plaintiff pleaded that no such accord and satisfaction could have taken place because the settlement negotiations leading up to this neither included nor considered the invoice in question. Thus plaintiff presented an issue relative to a mistake of fact which, if supported by evidence and determined by the jury, would have negated the defense relied upon. This was a decisive issue in the case, and the trial court’s failure to instruct thereon would have constituted fundamental error. For such reason it is my opinion that this Court is required to examine the instructions given, even though not excepted to to ascertain whether fundamental error might have existed.

It is my opinion the instructions given sufficiently apprised the jury upon the issues, and that no fundamental error resulted from the form and substance of the instructions given.