Allis Chalmers Co. v. Lamb
| Decision Date | 08 October 1935 |
| Docket Number | Case Number: 25392 |
| Citation | 174 Okla. 118,1935 OK 913,49 P.2d 1071 |
| Parties | ALLIS CHALMERS CO. v. LAMB. |
| Court | Oklahoma Supreme Court |
¶0 1. TRIAL--PROVINCE OF JURY--Credibility of Witnesses and Weight to Be Given Testimony.
In an action for the recovery of money it is for the jury to determine the credibility of the witnesses and the weight and value to be given their testimony in determining the issues of fact.
2. TRIAL--Motion for Instructed Verdict--Consideration.
On motion for instructed verdict the court cannot weigh the conflicts in evidence or determine the cause upon the credibility of the witnesses.
3. SAME--When Error to Instruct Verdict for Defendant.
It is error to instruct a verdict for the defendant if the evidence favourable to plaintiff, taken as true, with all reasonable inferences to be drawn therefrom, fairly tends to prove plaintiff's case or to show prima facie right of recovery.
4. SAME--Instructed Verdict for Fixed Portion of Sum Sought on Cross-Petition Where Evidence Conflicting Held Erroneous.
When the facts and circumstances shown by conflicting evidence are such that reasonable men might differ in their conclusion as to the ultimate facts in issue, and might reasonably differ as to the right to recover on cross-petition, or the amount of such recovery, it is for the jury to determine the issue, and it is error to direct a verdict for the defendant for a fixed portion of the sum sought by him on cross-petition.
Appeal from District Court, Kingfisher County; J. W. Bird, Judge.
Action by the Allis Chalmers Company against George W. Lamb. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.
T. R. Blaine and Ayres, Cowan, McCorkle & Fair, for plaintiff in error.
Clay O. Oakes, for defendant in error.
¶1 Plaintiff sued to recover $ 587 balance due on purchase price of farm tractor sold to defendant for $ 995.
¶2 The defendant answered admitting purchase of the tractor and nonpayment of the balance, and further answering, defendant alleged an implied warranty that the machine would function and do the work for which it was manufactured and sold in a satisfactory manner, and that said warranty was wholly breached; that the tractor was wholly worthless, or of the actual value of not more than $ 100, and by cross-petition he sought recovery of actual damages alleged to have been suffered in an effort to use the tractor, and judgment for the return to him of the down payment of $ 398.
¶3 Upon trial both plaintiff and defendant introduced testimony as to the efficiency of the tractor and as to its actual operation in farm work. There was evidence tending to show that the tractor operated with fair efficiency, and upon the contrary, there was evidence tending to show that the tractor did not function at all or was so faulty in operation as to be worthless or of scant value.
¶4 At the conclusion of the trial the defendant moved for a directed verdict for two reasons:
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...County, v. Montgomery, 177 Okla. 423, 60 P.2d 752; Highway Construction Company v. Shue, 173 Okla. 456, 49 P.2d 203; Allis Chalmers Co. v. Lamb, 174 Okla. 118, 49 P.2d 1071. ¶8 The plaintiff introduced no direct and positive proof as against the defendant, Fairmont Creamery Company, that at......
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Starmer v. Mid-West Chevrolet Corp.
...inferences to be drawn therefrom, fairly tends to prove plaintiff's case or to show prima facie right of recovery. Allis Chalmers Co. v. Lamb, 174 Okla. 118, 49 P.2d 1071. 4. PRINCIPAL AND AGENT--Ageney and Scope of Authority as Question for Triers of Fact. Where the question of agency is a......
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Mercer & Co. v. Port
...error for the trial court to have sustained the demurrer to plaintiff's evidence under the holdings of this court in Allis Chalmers Co. v. Lamb, 174 Okla. 118, 49 P.2d 1071. ¶8 On the second proposition plaintiff relied upon Vose v. U.S. Cities Corporation, 152 Okla. 295, 7 P.2d 132, which ......
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Fairmont Creamery Co. v. Rogers
... ... 423, 60 P.2d 752; ... Highway Construction Company v. Shue, 173 Okl. 456, 49 ... P.2d 203; Allis Chalmers Co. v. Lamb, 174 Okl. 118, 49 ... P.2d 1071 ... The ... plaintiff ... ...