Olson v. Sullivan

Opinion by MAXEY, C. This class of cases has been before this court a number of times and the rule governing such eases is well established by the decisions of this court. There is no question from the testimony in this ease that the tractor wholly failed to perform the work that is required of a tractor to perform. It also shows that the defendant used a great deal of patience in trying to get the tractor to work, and that it was no fault of his( that it did not work. There is very little controversy about the testimony, and there is only one of the instructions of the court excepted to by plaintiff, and the exception only goes to a part of the instruction. We have read this instruction in its entirety and also the instruction given by the court, and we are of the opinion that the part of the instruction excepted to was fairer to the plaintiff’s theory of the case than he was entitled to have submitted, and therefore he cannot complain of that part of the instruction. This case is as near a counterpart of the case of Fairbanks Morse & Co. v. Miller et al., 80 Okla. 265, 195 Pac. 1083, as two; cases well could be. Each question involved in this case was involved in the Fairbanks Morse Case. Each question of law involved in this case was involved in that case and considered by the court. The facts in the Fairbanks Morse Case and the instant case are in all essentials identical. The verdict of the jury in that case was the same as in this ease, and we do not deem, it necessary to enter into a lengthy discussion of the facts and law in this case as they have all been decided by the Fairbanks Morse Case, and this case is, therefore, ruled by the ease of Fairbanks Morse & Co. v. Miller et al., supra. The following cases are all similar eases and the decision in. each is in harmony with Fairbanks Morse & Co. v. Miller, supra: Burgess v. Felix, 42 Okla. 193, 140 Pac. 1180; Gutenberg Mch. Co. v. Husonian Pub. Co., 54 Okla. 369, 154 Pac. 346, and the very recent case of G. M. C. Truck Co. v. P. M. Kelley, 105 Okla. 84, 23 Pac. 882. An examination of all these cases, and especially the Fairbanks Morse Company Case, will show that the rule governing this class of eases is too well established to require the citation of further authorities. Following the case of Fairbanks Morse & Co. v. Miller, supra, the judgment of the trial court in this case is affirmed. By the Court: It is so ordered.