The opinion
SIMMS, Justice,
dissenting:
I concur in Part II of the majority opinion that there is an absence of proof of fraud, however I must respectfully dissent from Part I of the opinion and remanding the cause for another trial.
In ruling upon Appellant’s motion for new trial, the trial judge made the following observation of record:
“Defendant’s Motion for New Trial overruled; the trial record was devoid of any evidence that established by implication from usage or trade that an operator’s manual was part of the “agreement” of the parties in connection with the sale of an electric generator; there was no request made by the defendant at trial for the Court to take judicial notice of this fact nor would the fact have been susceptible of proof by judicial notice if the request had been made; to the extent that the evidence suggests that the bargain of the parties in fact as found in their language called for the defendant to be provided with an operator’s manual, the jury apparently found that the Plaintiff complied with this obligation ...” [E.A.]
Addressing the issue of judicial notice, 12 O.S.1991 § 2202{C} provides: “A court may take judicial notice, whether requested or not.”, while § 2202{D} reads: “A court shall take judicial notice if requested by a party and supplied with the necessary information.” [E.A.] A page by page, line by line examination of the record made below reflects no request of the trial judge to take judicial notice of any custom or usage before or during trial. Neither was the court supplied with the necessary information as to the custom in the trade of supplying an owner’s manual with the *335 product, i.e., the generator. Appellant, in his reply brief directs our attention to pages eighty-one and eighty-two of the trial transcript as providing proof of the scope of trade usage. These pages of the transcript reflect only that a single manufacturer, Kawasaki, supplies a purchaser with such a manual, and not that this is common custom and usage in the trade.
Since the court was not requested to take judicial notice of trade custom, should the trial judge, nonetheless, have taken judicial notice of something which was not offered in evidence? I suggest the answer is no. Appellant’s first attempt to prove that a user’s manual was a necessary incident of the sale came only after the verdict and then by affidavits of two law school professors and a respected practitioner of law. These affidavits were untimely as well as being rank heresay. They came too late. Title 12A O.S.1991 § 1-205(2) provides that "... The existence and scope of such a usage are to be proved as facts... ” [E.A.] Moreover, as appellee points out, 12A O.S. 1991 § 1-205(6) provides: “Evidence of a relevant usage of trade by one party is not admissible unless and until he has given the other party such notice as the court finds sufficient to prevent unfair surprise to the latter.”
There is no dispute that appellant was tendered a document {Def. Ex. 9} titled “Self Regulated Alternators Single Phase — Operating and Maintenance Instructions”. Appellant contended before the jury this was not a user’s manual, appellee contended it was. Thus, it was for the jury to decide.
In the briefs filed in this appeal, controversy has arisen as to whether or not the failure to furnish the users manual was actually the reason appellant refused delivery of the generator. Appellant testified at one point that “I rejected it (the generator) because it was not a Kawasaki generator and he didn’t deny that.” In his other trial testimony, appellant said, “Well, I don’t think I can answer yes or no because I didn’t reject it solely on that basis (insufficiency of the manual). It was a major factor in determining that this was not what I ordered.”
Apparently, failure to deliver a satisfactory user’s manual was not the primary reason for rejection of the generator, but was only a factor used by appellant in deciding, at least in his own mind, the generator he was offered was not the one he had ordered. Thus, the issue regarding the user’s manual becomes less significant.
Finally, the record reveals that appellant’s lawyer at trial did not object to any of the court’s prepared instructions to the jury. However, appellant personally did object to certain jury instructions dealing with the right of rejection and recovery under that theory. At no time while the instructions to the jury were being settled, did appellant even suggest the court take judicial notice of trade usage or custom, nor did any of appellant’s requested instructions mention this theory.
Examination of the trial court’s instructions to the jury do not reflect any fundamental error. The fact issues were submitted to a jury of twelve citizens and the jury unanimously found adversely to appellant.
I would affirm judgment pronounced in accordance with the jury verdict.
I am authorized to state that Justice LAVENDER joins with me in the views expressed herein.