CARLISLE v. DAWSON

CARLISLE v. DAWSON
1915 OK 877
152 P. 825
52 Okla. 115
Case Number: 5242
Decided: 11/02/1915
Supreme Court of Oklahoma

CARLISLE
v.
DAWSON.

C. W. McVickers and Jno. Bruce Cox, both of Nowata, for plaintiff in error.
W. D. Humphrey, of Nowata, for defendant in error.

RITTENHOUSE, C.

¶1 This is an action for damages for breach of contract of sale of 140 tons of hay, alleged to have been bought of the defendant, W. R. Dawson, by Charles D. Carlisle, sole owner of and doing business as Carlisle Commission Company. The right to damages arises upon the failure of the defendant to deliver said hay. Trial was had to a jury and resulted in a judgment in favor of the defendant. Motion for new trial was filed and overruled, and the cause brought here for review.

¶2 The grounds of the motion for new trial are: (1) That said verdict is contrary to the evidence; (2) that said verdict is contrary to the law in the case; (3) that said verdict is contrary to both the law and the evidence. These three grounds are, in fact, but one, coming under the sixth subdivision of section 5033, Rev. Laws 1910, which reads as follows:

"Sixth. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law."

¶3 The plaintiff assigns as error in this court the exclusion of evidence as to the market value of the hay at Kansas City, Mo., and also the giving of certain instructions. Neither of these questions come within subdivision 6 of the foregoing section, but would come under subdivision 8, which reads as follows:

"Eighth. Error of law occurring at the trial, and excepted to by the party making the application."

¶4 All the questions presented by the petition in error occurred during the trial on the admission of evidence and the giving of instructions, and therefore the assignments of error in this court are not available in the absence of a motion for a new trial embracing the errors complained of and decided by the trial court. This question is fully treated in the case of Glaser et al. v. Glaser et al.,

¶5 In the view we take of the case at bar, the grounds contained in the motion for a new trial are not sufficient to support the assignment of error relied on in this court. The cause should therefore be affirmed.

¶6 PER CURIAM.