D. M. Osborne & Co. v. Case

Supreme Court of Oklahoma

D. M. Osborne & Co. v. Case

1902 OK 15, 69 P. 263, 11 Okla. 479, 1902 Okla. LEXIS 15

CourtSupreme Court of Oklahoma

DecidedJune 5, 1902

StatusPublished

Cited by13 cases

This text of 1902 OK 15 (D. M. Osborne & Co. v. Case) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

D. M. Osborne & Co. v. Case, 1902 OK 15, 69 P. 263, 11 Okla. 479, 1902 Okla. LEXIS 15 (Okla. 1902).

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Opinion

Opinion of the court by

Irwin, J.:

In this case the execution of the note being admitted, and the only defense made being a failure of con- *482 sidoration and a claim in the' nature t f a counter-claim for damages for breach of warranty, and the warranty being in writing and admitted by the plaintiff, jt presents purely and simply a question of fact; that is: Was there such a breach (of the warranty as would amount to a failure of consideration of the note; and what, if any, damage has defendant sustained thereby ?

If the jury were properly instructed by the court as to the • law, and there was evidence in the case which would reasonably tend to sustain the verdict, this court will not disturb it. It will be seen by an examination of the motion for a new trial that no complaint is therein made of the instructions to the court as to the law. Our statute provides specifically how exceptions to the instructions of the court must be saved, and the record in this case does not disclose that exceptions to the instructions were preserved in the manner pointed out by statute, or in fact any way, either general or special, and tb is court has repeatedly held, in fact it is tbe settled rule of this court, that alleged errors occurring during the trial not raised in the trial court, or set forth in a motion for a new trial, wiil not be. considered for the first time on appeal. (Hardwick v. Atkinson, 8 Okla. 608.)

Hence, the only assignment of error in the motion for new trial for us to consider is: Was illegal and improper evidence admitted on the trial over the objection of the plaintili in error?

We have carefully examined the record, and think that this objection is not well taken; and as on a full examination of the record we can see no error, the judgment of the probate court is affirmed, and the costs of the appeal taxed to the appellant.

*483 Beauchamp, J., who presided in the court below, not sitting; all the other Justices concurring.

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Opinion of the court by

Irwin, J.:

In this case the execution of the note being admitted, and the only defense made being a failure of con- *482 sidoration and a claim in the' nature t f a counter-claim for damages for breach of warranty, and the warranty being in writing and admitted by the plaintiff, jt presents purely and simply a question of fact; that is: Was there such a breach (of the warranty as would amount to a failure of consideration of the note; and what, if any, damage has defendant sustained thereby ?

If the jury were properly instructed by the court as to the • law, and there was evidence in the case which would reasonably tend to sustain the verdict, this court will not disturb it. It will be seen by an examination of the motion for a new trial that no complaint is therein made of the instructions to the court as to the law. Our statute provides specifically how exceptions to the instructions of the court must be saved, and the record in this case does not disclose that exceptions to the instructions were preserved in the manner pointed out by statute, or in fact any way, either general or special, and tb is court has repeatedly held, in fact it is tbe settled rule of this court, that alleged errors occurring during the trial not raised in the trial court, or set forth in a motion for a new trial, wiil not be. considered for the first time on appeal. (Hardwick v. Atkinson, 8 Okla. 608.)

Hence, the only assignment of error in the motion for new trial for us to consider is: Was illegal and improper evidence admitted on the trial over the objection of the plaintili in error?

We have carefully examined the record, and think that this objection is not well taken; and as on a full examination of the record we can see no error, the judgment of the probate court is affirmed, and the costs of the appeal taxed to the appellant.

*483 Beauchamp, J., who presided in the court below, not sitting; all the other Justices concurring.

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Bluebook (online)

1902 OK 15, 69 P. 263, 11 Okla. 479, 1902 Okla. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/d-m-osborne-co-v-case-okla-1902.

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