Opinion
February 18, 1955.
Appeal from the Letcher Circuit Court, Letcher County, Courtney C. Wells, J.
Harry M. Caudill, Whitesburg, for appellant.
Emmett G. Fields and Stephen Combs, Jr., Whitesburg, for appellee.
This action was brought to recover an amount claimed due on a contract for the sale of mining machinery. The defendant counterclaimed for the sum of $1,070 allegedly due and a judgment in this amount was entered for it.
On this appeal plaintiff contends the trial court improperly submitted the case to a jury since neither party had made a demand therefor under CR 38.02. However, we are of the opinion the parties consented to a jury trial as provided in CR 39.03.
Plaintiff also contends the trial court improperly refused to instruct the jury concerning the question of fraud raised in plaintiff's reply. However, it is clear from the pleadings that the matter of fraud was only recited as a reason why the parties entered into a new contract alleged by the plaintiff. No cause of action for fraud was stated and it was not in issue in the case. Plaintiff's offered instruction neither conformed to the pleadings nor the proof.
It is unnecessary for us to pass upon defendant's motion to strike the plaintiff's transcript of evidence.
The motion for appeal is overruled and the judgment stands affirmed.
HOGG, J., not sitting