Earley v. Johnson

• Decision Date: 10 October 1916
• Docket Number: Case Number: 7211
• Citation: 1916 OK 865,58 Okla. 466,160 P. 482
• Parties: EARLEY et al. v. JOHNSON.
• Court: Oklahoma Supreme Court

1916 OK 865

160 P. 482

58 Okla. 466

EARLEY et al. v. JOHNSON.

Case Number: 7211

Supreme Court of Oklahoma

Decided: October 10, 1916

Syllabus

¶0 1. APPEAL AND ERROR--Review--Questions of Fact--Sufficiency of Evidence. Where a verdict cannot be justified upon any hypothesis presented by the evidence, it will not be allowed to stand. The jury are not permitted to disregard the law and the evidence and decide a case merely upon their own whim or according to what their notion of equity between the parties may be.

2. SAME. It is only where the verdict cannot be justified upon any hypothesis presented by the evidence that it should be set aside on the ground that is is a compromise verdict.

3. SALES--Action for Price--Sufficiency of Evidence. Evidence examined, and held to support the verdict.

Error from County Court, Grady County; N. M. Williams, Judge.

Action by H. B. Johnson against Oscar Earley and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Riddle & Hammerly, for plaintiffs in error.

Bond, Melton & Melton, for defendant in error.

HARDY, J.

¶1 Johnson sued Earley and Brown to recover the purchase price of four head of cattle, amounting to $ 180, or $ 45 per head. The jury awarded plaintiff a verdict for $ 90, and defendants appeal.

¶2 All the assignments of error may be considered under the one proposition that there is no evidence to support a recovery on behalf of plaintiff for the value of two head of cattle, and that the verdict is the result of a compromise by the jury, to the prejudice of defendants. Defendants claim that under the evidence the verdict should have been either for the full amount, the value of four head, or for defendants, and that there was no evidence upon which the verdict could be based.

¶3 Where a verdict cannot be justified upon any hypothesis presented by the evidence, it would be unjust to permit it to stand. The jury are not permitted to disregard the law and the evidence and arbitrate the matters submitted to them according to their own theories of what may be right between the parties, which is in reality deciding it merely according to their own whim, and in disregard of the evidence given at the trial. 2 Thompson on Trials, sec. 2606; Thompson v. Burtis et al., 65 Kan. 674, 70 P. 603; Whitney v. Milwaukee, 65 Wis. 409, 27 N.W. 39; Gartner v. Saxon, 19 R.I. 461, 36 A. 1132; Schrader v. Hoover, 87 Iowa 654, 54 N.W. 463.

¶4 However, it is only where the verdict of the jury cannot be justified upon any hypothesis presented by the evidence that it should be set aside on the ground that it is a compromise verdict. Woolsey v. Zieglar, 32 Okla. 715, 123 P. 164.

¶5 Plaintiff's bill of particulars alleged that plaintiff had sold defendants 234 head of cattle at an agreed price of $ 45 per head, with the understanding that, in case plaintiff owned and delivered more than that amount, defendants would pay $ 45 per head for each additional head. Plaintiff's evidence showed that about April 1, 1914, he delivered to defendants 212 head, 210 of which were gathered and delivered at a certain pasture where they were counted by both parties; all agreeing that the count of 210 was correct. Two other head were at a farmhouse in the neighborhood, and were accepted by defendants.

¶6 El Anderson, a witness on behalf of plaintiff, testified: That he was acquainted with the ranch where the cattle were located and with the cattle in question. That he assisted in gathering them, when they were delivered, and that said cattle were driven through a hog lot and tallied into a grass pasture separate from the pasture in which they were...