UNITED CLAY PRODUCTS CO.
v.
LINDER
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A defendant may assert a defense based on an oral agreement even if not pleaded, provided the issue is tried by consent and the breach caused injury.
Appellant sold materials to Huff, who defaulted. Appellee had guaranteed payment in writing. Appellant sued on the guaranty, and appellee defended bas…
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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,1 *broke this agreement, and thereby injured appellee. There was also contrary evidence. The case was heard without a jury. The court made a “Trial Finding for Defendant” (appellee), without more, and entered judgment accordingly.
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.,2 in which there was no agreement to give notice, are not in point. But appellee received notice of Huff’s default in time to withhold, and he withheld accordingly, $68.70 which he would otherwise have paid to Huff. To this extent, as he concedes, he was not injured by lack of notice and is liable on his guaranty. _ The judgment should be modified accordingly. Judgment modified.