Cook County Liquor Co. v. Brown

• Decision Date: 12 March 1912
• Parties: COOK COUNTY LIQUOR CO. v. BROWN et al.
• Court: Oklahoma Supreme Court

122 P. 167

31 Okla. 614, 1912 OK 172

COOK COUNTY LIQUOR CO. v. BROWN et al.

Supreme Court of Oklahoma

March 12, 1912

Syllabus by the Court.

Where it is sought to introduce the admission of the principal in a suit against the surety, it should be remembered that the latter is only obligated for the principal's acts and not for his language. If, therefore, it does not appear in this court that the admission constituted part of the res gestæ the ruling of the court below sustaining an objection to such an admission will not be disturbed.

Error from Carter County Court; I. R. Mason, Judge.

Action by the Cook County Liquor Company against H. H. Brown and W C. Kendall. Judgment for defendants, and plaintiff brings error. Affirmed.

Sigler & Howard and Wm. Pfeiffer, for plaintiff in error.

W. F Bowman and Brown & Brown, for defendants in error.

KANE J.

This was an action commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendant below, as sureties on the bond of one Whittaker. The plaintiff was seeking to establish the delinquency of the principal by oral statements alleged to have been made by him to a third person, when the only question presented by counsel for plaintiff in error in their brief arose as follows: "On page 14 of the case-made will be found the following (the witness David Dreeben on the stand): Q. I will ask you to state the admission he (the principal) made at that time on the amount he had collected for you, and which he had failed to account for?" The defendants objected to this question and the objection was sustained by the court whereupon both plaintiff and defendant rested and the court upon motion of defendants' attorneys advised the jury to return a verdict for defendants, which was done. Rule 25 (95 P. viii) of this court provides, in part, that: "Where a party complains on account of the admission or rejection of testimony, he shall set out in his brief the full substance of the testimony, to the admission or rejection of which he objects, stating specifically his objection thereto."

There may be circumstances under which evidence of the kind sought to be elicited by plaintiff would be admissible, but the rule of the court has not been sufficiently complied with to advise us whether they existed in the case at bar, and we therefore presume that they did not and that the objection to the question was properly sustained....