Scoville Et Ux. v. Powell , 33 Okla. 446 ( 1912 )

On April 8, 1909, the Farmers' Supply Company, one of the defendants in error, commenced a proceeding in the district court of Nowata county against the plaintiffs in error, B. J. Scoville and his wife, Lena Scoville, and W. J. Powell, F. F. Clough, F. E. Noel, G. W. Noel, and H. L. Noel, defendants in error in this proceeding.

The said W. J. Powell, as contractor, on March 25, 1908, entered into an agreement with said plaintiffs in error to erect and construct a building for them on a certain lot in Nowata, Okla., for and in consideration of the sum of $2,998. The said F. F. Clough, F. E. Noel, G. W. Noel and H. L. Noel did some of the tinning and plumbing work on said building. After said contract was entered into, said Powell procured certain material from the said Farmers' Supply Company for the construction of the said building, in amount in the sum of $1,150.19, which bears interest from August 24, 1908, at the rate of 6 per cent. per annum.

On September 22, 1908, the said the Farmers' Supply Company filed a lien as required by law. On October 6, 1908, the said F. F. Clough filed a lien on the same property in the sum of $100 on balance due. On September 23, 1908, the said F. E. Noel, G. W. Noel, and H. L. Noel, as the Noel Plumbing Company, filed their lien in the sum of $85 for balance due.

Under proper petition, cross-petition, and reply, the issues were made up and a trial had.

The jury, under proper instructions, returned the following verdict:

"We, the jury impaneled and sworn in the above-entitled cause, do on our oath find:

"(1) That defendant W. J. Powell is indebted to plaintiff, Farmers' Supply Co., in the sum of $1,235.48.

"(2) That defendant W. J. Powell is indebted to defendant F. F. Clough in the sum of $107.38.

"(3) That defendant W. J. Powell is indebted to defendants F. E. Noel, G. W. Noel, and H. L. Noel in the sum of $91.37.

"(4) That defendant W. J. Powell is indebted to defendant B. J. Scoville in the sum of $2,023.81.

"(5) That plaintiff, Farmers' Supply Co., is entitled to a lien on lot 3, block 34, Nowata, Oklahoma, in the sum of $1,235.48.

"(6) That F. F. Clough is entitled to a lien on lot 3, block 34, Nowata, Oklahoma, in the sum of $107.38.

"(7) That F. E. Noel, G. W. Noel, and H. L. Noel are entitled to a lien on lot 3, block 34, Nowata, Oklahoma, in the sum of $91.37.

"(8) * * *

"(9) * * *

"(10) * * *"

Plaintiffs in error moved for a new trial, alleging (a) error in the assessment of the amount of recovery; (b) verdict not sustained by sufficient evidence; and (c) evidence improperly admitted.

Counsel for plaintiffs in error insists that in paragraph 4 of the verdict B. J. Scoville, one of the plaintiffs in error, was given judgment against the defendant in error W. J. Powell in an excessive amount, to wit, $589.58; but W. J. Powell neither filed any motion for a new trial in the lower court, nor does he present any cross-assignments or specifications of error in this court. The fact that an error may have been committed against W. J. Powell by the jury cannot avail the plaintiffs in error in this proceeding.

As to the contention as to the improper admission of evidence, that appears to have been abandoned in this court, as no specifications as to the rejection of such evidence have been made by plaintiffs in error, as required by rule 25 of this court (20 Okla. xii, 95 Pac. viii).

Under the record as it is presented to this court by the brief of counsel for the plaintiffs in error, the cause having been submitted to the jury under proper instructions, and there being evidence under which the jury could reasonably return its special findings, the same will not be disturbed on review in this court. First Bank of Hoffman v. Harrison, 29 Okla. 302,116 P. 789.

In Seward v. Casler et al., 24 Okla. 275, 103 P. 740, this court said:

"Where a case is tried * * * and special findings of fact are made, and those findings are based upon oral testimony, such findings are conclusive upon this court upon any disputed and doubtful questions of fact."

Under these authorities, under the facts as disclosed by this record, this court would not be justifiable in disturbing the verdict, so far as it pertains to the plaintiffs in error.

It follows that the judgment of the lower court must be affirmed.

TURNER, C. J., and HAYES, KANE, and DUNN, JJ., concur.