Welch v. Cotton

KANE, J. This was an action upon a promissory note, commenced by the defendant in error, plaintiff below,, against the plaintiffs in error, defendants below. Hno-after, for convenience, the parties will be designated “plaintiff” and “defendants,” respectively, as they appeared in the trial court. The petition was in the short form provided for by statute, and admittedly stated a cause of action. The answer of the defendants admitted the execution of the note and its delivery to the Arkansas Vallpy Breeding Company for the purchase price of a stallion, purchased by one of the makers, and by way of defense alleged, in substance, that one W. H. McMurray, as agent of ihe Arkansas Valley Breeding Company, represented to the purhaser of the stallion that said stallion was a Perdieron stallion, duly and officially registered in the stud books of the American Perdieron Horse Breeders’ Association under registry No. 40681, and was designated therein by the name of “Robert”; that such representations were material consideration for the execution of said note; that said representations were false, in that the said stallion was not duly and officially registered upon the stud books of the American Perdieron Horse Breeders’ Association, as represented and stated, or registered therein under the name or number; • that the plaintiff, the present holder of the note, well knew the facts hereinbefore set out, and knew the consideration for which said note was given, the representations made. to procure said note, and that the same were false, and that he took said note under such circumstances as should have charged him with knowledge of the same: that said stallion was purchased for breeding purposes only, and without proper and official registry said horse was wholly worthless for said purposes, and because of’ the 'failure of the warranty aforesaid, the horse so purchased was worthless to defendant, and the consideration for said note has wholly failed, wherefore, premises considered, *325 the defendants pray judgment for tneir costs in tHis action expended. Tire reply of tbe plaintiff was a general denial. At. tbe close of the evidence tbe count instructed the jury to return a verdict for the plaintiff which was done, and upon this verdict judgment was rendered for the defendant for the sum of $716, to reverse which this proceeding in •error was commenced. The grounds for reversal, as stated by counsel in their brief, are as follows: (1) The court erred in overruling the demurrer of the plaintiffs in error to the evidence of the defendant in error, to which action of the court the plaintiffs in error excepted; (2) the court erred in refusing to allow evidence offered by the plaintiffs in error, and objected to by the defendant in error, to which action of the court the plaintiffs in error excepted; (3) the. court erred in instructing the jury to return a verdict for the defendant in error, to which action of the court the plaintiffs in error excepted ; (4) the court erred in overruling the motion of the plaintiffs in error for a new trial of the cause below ; (6) the court erred in rendering judgment in this case in favor of the defendant in error and against these petitioners. At the threshold of the case we are met by the contention of counsel for plaintiff that, on account of the failure of counsel for defendants to comply with rule 26 of this court (47 Okla. x, 165 Pac. ix), it is impossible for this court to have a full understanding of the questions presented for decision by the foregoing assignments of error without an examination of the record itself. The rule provides in effect that the brief of the plaintiff in error shall contain an abstract or abridgment of the transcript, setting forth the material parts of .the pleadings, proceedings, facts, and documents upon which he relies. together with such other statements from tire record as are necessary to a full understanding of the questions presented to this court for decision, without an examination of the record itself in this court. There, was no attempt whatever to comply with this rule, but, on the contrary, counsel for defendants ignores their specific assignments of error, and contents himself by merely stating in his brief that: “The only question for review is. Was the note upon which this action was based a negotiable instrument?” The brief does not, as required by the rule, contain a sufficient statement of the record to warrant this court in saying that the court below directed a verdict against tbe defendants because he believed that the note sued upon was a negotiable instrument. The trial court, as we have seen, heard all the evidence, and, for aught we know, may have been of the opinion that the note was non-negoliahle, as counsel contends it is, and directed a verdict in favor of the plaintiff upon the ground that the evidence was wholly insufficient to establish the defensive matter set up by the defendants in their an. swer. Or it may be, as counsel for plaintiff say in their brief, that, even if the court excuses noncompliance with rule 26 and examines the record, it will disclose that: “No proof was offered showing or tending to show that the horse for which the note was given was never delivered to the seller or tendered back to the seller, and it is not pleaded, and no offer was made to prove any facts excusing the failure to return or offer to return the horse.” It may be that it was upon this ground that the court below directed a verdict. On account of noncompliance with rule 26 of this court, we are unable to say, without an examination of the record, what the views of the trial court were on any of these aspects of the case, nor are we in position to say whether or not such views were erroneous. Compliance with this rule has been held to be mandatory many limes by this court, and we know of no good reason for departing from' these decisions in the case at bar, especially as it appears that the record is not available for examination by the court, if it desired to do so, it having been withdrawn from the files by counsel for the defendants after the submission of the case and not returned. Seavers v. Rulison, 29 Okla. 128, 116 Pac. 802; Dickson v. Lowe, 38 Okla. 216, 132 Pac. 354; Board of Med. Examiners v. State ex rel. Cherry, 45 Okla. 575, 146 Pac. 443; New Vinita Hdw. Co. v. Porter, 45 Okla. 470, 146 Pac. 14; Kelly v. State, 40 Okla. 355, 138 Pac. 167; St. L. & S. F. R. Co. v. Shepard, 40 Okla 589, 139 Pac. 833; Collier v. Gannon, 40 Okla. 275, 137 Pac. 1179; Avants v. Bruner, 39 Okla. 730, 136 Pac. 593. Por the reason stated, the judgment of the court below is affirmed. All the Justices concur.