Maney Export Co. v. Central Grain & Commission Co.

Opinion by BURFORD, C. This was an action brought by the plaintiff in error against the defendant in error to recover certain amounts for overcharge in weight and for loss by misgrading upon certain contracts for the sale of grain. The plaintiff in error has filed his brief in accordance with the rules of this court; the defendant in error has filed no brief, and under such circumstances we are not required to search the voluminous record in this cause, to find a theory upon which to support the judgment, provided the brief of the plaintiff in error reasonably supports ,his allegations of error in the trial court. The assignments by the plaintiff are directed almost wholly to the rejection of testimony by the trial court. Certain of this rejected testimony related to the customs prevalent among grain men. Upon an examination of this rejected testimony we are of the opinion that it was not competent under the state of the pleadings, inasmuch as, although the plaintiff had pleaded certain customs of the grain trade, it did not plead the particular custom, testimony in regard to which was rejected. This was necessary un *189 der the ruling of this court in Smith v. Stewart, 29 Okla. 26, 116 Pac. 182. Testimony as to the weights of the various cars delivered was rejected, upon the ground that the weighing had not been made within a reasonable time after the delivery of the ear. Upon this point we are not required to pass, inasmuch as there may be different pleadings and testimony upon a new trial. It does appear, however, that certain testimony, apparently competent and material, was rejected by the trial court. Among these instances appears the testimony in relation to the weighing of car No. 33577MP, which was rejected upon the ground that it did not appear when the car was weighed. Prom the testimony set out in the brief, it seems that there was a definite time fixed as to when the car was weighed. Whether there are other reasons which might justify the rejection of this testimony, we are unable to say, without the assistance of a brief from the plaintiff in error, or on examination of the record, which, in the absence of the brief, we are not required to make. The cause is reversed and remanded, with directions to grant a new trial. By the Court: It is so ordered.