KEYSTONE STEEL & WIRE CO. v. KOKOMO STEEL & WIRE CO., 275 F. 794

AESCKIJLER, Circuit Judge (after stating die facts as above). [1] Practically the only proposition which plaintiff in error urges is the alleged error committed in overruling the demurrer to the second paragraph of the answer.

We are of the view that, in so far as in that paragraph the defense is rested upon the allegation that the rods contemplated by the contract were to be manufactured by the seller at its Kokomo factory, and were to be in quantity the surplus only over and above the seller’s requirements o£ rods in its own business, it would by parol import into the contract material terms and conditions which the written contract itself did not indude, and this the seller cannot be permitted to do.

Possibly so much of the paragraph as sets up unavoidable delays in manufacture would raise an issue, of fact as to whether or not the alleged occurrences would, under the contract, justify postponement of delivery to a time as late as the date the suit was begun. Manifestly, under the contract, such occurrences would not excuse, but would merely warrant, delay in making shipments. Jury was wáived, the cause was tried by the court, and a general finding made for defendant in error.

The District Court clerk certifies that the transcript shows all proceedings in that court, of record in the cause, and, no bill of exceptions appearing, we conclude there was none. Defendant in error contends that, even though the court erred in upholding the second paragraph of the answer, yet in the absence of bill of exceptions it will be presumed that there was evidence on the trial to sustain any proper theory of defense admissible under any other part of the answer. If paragraph '2 of the answer were merely an amplification of the general denial, a different question might be presented.

But paragraph 2 set up in defense a contemporaneous parol agreement between the parties, which would materially modify the written instrument. The general denial put in issue every allegation concerning the contract, but presented no issue as to any contract other than the one alleged in the complaint. The demurrer to paragraph 2 directly challenged the right of defendant in error to show by parol a contract different from the written instrument sued on, as a basis for the defense of fulfillment of the alleged modified agreement of the parties.

In overruling this demurrer the court necessarily held as the law of the case that such modification of the writing might lawfully be shown. It is true the judgment might have been wholly based on any one of several facts which, under the general denial, might have appeared —that there was no contract as alleged, that the contract had been fully performed by defendant in error, etc. But no special finding appears in the record to indicate that the judgment was so predicated, rather than on the untenable defense of performance of a contract different from the one sued on.

The record thus disclosing nothing from which it appears that the indicated error was harmless, it remains a substantial and reversible error in the record on which this judgment is based. Deery v. Cray, 5 Wall. 795, 18 L. Ed. 653; Moores v. Citizens' National Bank, 104 U. S. 625 , 26 L. Ed. 870; Miller v. Houston Ry. Co., 55 Fed. 366, 5 C. C. A. 134; Abdil v. Abdil, 33 Ind. 460; Pyle v. Peyton, 146 Ind. 90, 44 N. E. 925.

Defendant in error contends the complaint itself discloses that plaintiff in error was not entitled to recover, in that, as defendant in error maintains, the option as between 9,000 and 10,000 tons was in law with the seller, and that more than 9,000 tons appearing from the complaint to have been delivered, no cause of action was stated. A sufficient answer to this is found in the fact that the complaint also alleges a trade custom to the effect that in such contracts the option is with the buyer.

Even if the rule governing the option is as so claimed to be, the rule might not apply if such alleged custom were established by evidence. The judgment is reversed, and the cause remanded to the District Court for new trial, with direction to sustain the demurrer to the second paragraph of the answer.