Frost v. Haley , 63 Okla. 19 ( 1916 )

On February 6, 1913, W.D. Haley, defendant in error, sued O.C. Frost, plaintiff in error, in the county court of Greer county in damages to recover $300 alleged to have been procured from him through fraud. The petition substantially states: That while partners they agreed to purchase a certain pool hall in the city of Mangum from one Renard; that defendant, acting as agent for the partnership, represented to plaintiff that the purchase price of said property was $1,800; that plaintiff paid one-half of said purchase price, or $900, to said Renard; that thereafter plaintiff, desiring to discontinue his relations with defendant, and believing that defendant had paid a like sum as his part of the purchase price of said property, as represented by defendant, purchased the interest of said defendant in said property, paying him therefor $300 cash and taking up two notes of $300 each given by said defendant to Renard as his part of the purchase price of said property; that thereafter plaintiff learned that defendant had in fact paid only $600 for his part of the purchase price, instead of $900 as represented, and plaintiff was thereby induced by fraud and said misrepresentation to part with 900 for the interest owned by said defendant in said property. Defendant, for his answer and cross-petition denied all the material allegations contained in plaintiff's petition, and asked for $65, as his part of the profits of said business during the term it was operated as a partnership business, and in his amended answer and cross-petition asked for $37.50 more for services rendered in said business. Plaintiff filed his reply thereto, consisting of a general denial. Upon the issues thus joined, the cause proceeded to trial to a jury, and verdict rendered as prayed by plaintiff, except as to the amount of the above set-offs, which were allowed and judgment was entered accordingly.

To reverse this defendant urges four assignments of error: (1) Error in admitting incompetent evidence; (2) error in refusing to give certain requested instructions; (3) error in giving instruction No. 55; (4) error in overruling his motion for new trial.

Defendant error has not filed a brief in this case or offered any excuse for such failure. The brief of defendant appears reasonably to sustain the assignments of error, and, under the well-settled rule of this court, we are not required to search the record to find some theory upon which the judgment below may be sustained, but may reverse the judgment in accordance with the prayer of the petition in error. Security Ins. Co. v. Droke, 40 Okla. 116, 136 P. 430; J. Rosenbaum Grain Co. v. Higgins, 40 Okla. 181, 136 P. 1073; Purcell Bridge Transfer Co. v. Hine, 40 Okla. 200, 137 P. 668; First Nat. Bank of Sallisaw v. Ballard, 41 Okla. 553, 139 P. 293; De Hart Oil Co. v. Smith, 42 Okla. 201. 140 P. 1154.

The judgment of the trial court is reversed and the cause remanded.