183 Ky. 354
Court of Appeals of Kentucky.
Feb. 21, 1919.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by the Trosper Coal Company against the R. C. Tway Mining Company. From a judgment in favor of defendant, plaintiff appeals.

Appellant instituted this action to recover $4,625.11 for coal alleged to have been sold and delivered to appellee under a written contract of date May 25, 1916, filed with and made part of the petition. The contract provides for the delivery by appellant to appellee of 156 cars of nut and slack at 60 cents a ton, deliveries to be made at the rate of three cars a week, beginning June 1, 1916, and that, "if at any time the credit of the buyer [appellee] should become impaired, unsafe, or unsatisfactory to the seller [appellant], it should have the privilege, at its option, without further notice, to terminate this contract and to be immediately relieved from all obligations hereunder."

For answer and counterclaim appellee, admitting the contract, denied the delivery thereunder of $4,625.11 worth of coal, or of coal of any value, for which payment had not been made, in excess of $202.15, and in a second paragraph alleged appellant had failed to ship it, as the contract required, 52 cars of coal during the months of August, 1916, to January, 1917, inclusive, to its damage in the sum of $8,500, and 48 cars of coal in the months from February to May, 1917, inclusive, to its further damage in the sum of $5,184; a total of $13,684, for which it prayed judgment against appellant, less $4,625.11, the amount sued for, which was in this paragraph admitted to be due appellant.

In addition to a traverse of the allegations of the counterclaim, appellant in a second paragraph of its reply pleaded as an affirmative defense thereto that "the credit of the defendant did become unsatisfactory to it at the time of the alleged failure to ship coal, and that because of that fact this plaintiff then and there refused to ship further coal to the defendant," as under the terms of the contract it had a right to do without notice.

The court having overruled its motion to strike this second paragraph of the reply, appellee, according to an undated order, found upon page 21 of the clerk's transcript of the record, filed a rejoinder, which is not copied into the record appellant has brought here. The record also shows that a jury was waived, the case submitted to the court, and "the official stenographer was then called to take down the testimony in the case," while the judgment, adjudging that plaintiff recover of defendant $4,625.11, and that defendant recover of plaintiff $4,625.11 and its costs, recites that "the court has heard all the evidence, argument of counsel, and being advised adjudges," etc.

Appellant did not file a motion for a new trial, and has not brought up any of the evidence heard, nor the appellee's rejoinder, which may have, and probably did, put in issue or avoid the affirmative allegations of appellant's reply; hence, since the appellant must exhibit in the transcript so much of the record as will show affirmatively that the decision complained of is erroneous, there is nothing before us but the conclusive presumption that the omitted pleadings and evidence sustain the judgment.

But appellant also seeks to make the point here that the contract was absolutely void for lack of mutuality, contending that, as it had the absolute right to cancel at any time without notice, it was never bound thereby. This contention, however, comes too late when first presented in this court. Appellant declared on the contract in both its petition and its reply, and presented in the lower court only the issue of fact that it was annulled after its partial observance for a time by both parties, and that after its cancellation appellant was not liable for a failure to comply therewith.

As the parties not only treated the contract as binding until actually canceled in their transactions with each other, but also upon the trial in the lower court of their disagreements arising thereunder, we must accept here that construction, as this is a court of errors, and without original jurisdiction in such matters.

Wherefore the judgment is affirmed.

Ky.App. 1919.


209 S.W. 58, 183 Ky. 354


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