WILLIAMS v. SWAN

WILLIAMS v. SWAN
1930 OK 298
291 P. 103
144 Okla. 9
Case Number: 19820
Decided: 06/10/1930
Supreme Court of Oklahoma

WILLIAMS
v.
SWAN.

Syllabus

¶0 1. Appeal and Error--Review--Sufficiency of Evidence in Law Action Tried to Court.
A judgment rendered by a district court, in a law action, a jury having been waived, will not be reversed by this court where there is any competent evidence to support the same.
2. Trial--Evidence--Admission of Parol Evidence of Instrument not Reversible Error Where no Objection.
It is not reversible error for a trial court to permit parol evidence as to the terms of a written instrument where no objection is made thereto.
3. Appeal and Error--Denial of New Trial on Ground of Newly Discovered Evidence Reviewed Only Where Record States Evidence.
Where a motion for new trial is based upon the ground of newly discovered evidence, the same will be considered by this court only where the record contains a statement of the evidence alleged to have been discovered.
4. Same--Failure to Include Evidence in Record not Excused by Statement in Brief that Evidence Was Lost After Trial.
Failure to include evidence in the case-made cannot be excused by an allegation in the briefs that the court reporter lost the evidence after the trial.

Error from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by H. E. Swan against C. W. Williams. Judgment for plaintiff, and defendant appeals. Affirmed.

L. A. Justus, Jr., for plaintiff in error.
S. A. Horton, for defendant in error.

ANDREWS, J.

¶1 The record in this case shows that H. E. Swan, defendant in error, owned an option on certain real estate which was valuable for a deposit of limestone thereon and which he had had tested by engineers; that the value of the land was $ 1,400; that he had agreed to pay $ 1,400 for it; that he entered into a written contract with plaintiff in error whereby plaintiff in error agreed to pay for the land and to give the defendant in error a two-thirds interest therein; that plaintiff in error failed, neglected, and refused to perform the contract; that the defendant in error sued for a recovery of an amount equal to the value of that portion of that land that plaintiff in error had agreed to give to him; that a jury was waived, and that the trial court rendered a judgment in favor of the defendant in error for the amount sued for.

¶2 There is ample evidence to sustain the judgment of the trial court, and, applying the usual rule, the judgment must be affirmed.

¶3 The contract sued on was lost. The defendant in error testified as to the terms thereof without proper objection on the part of the plaintiff in error.

¶4 Plaintiff in error contends that the evidence fails to show a consideration for the agreement to purchase the land. The defendant in error owned the option on the land, and when the plaintiff in error entered into the contract he, in effect, agreed to purchase the option of the plaintiff in error. That was a valuable consideration.

¶5 Plaintiff in error attacks the sufficiency of the petition, but the record does not show a demurrer thereto.

¶6 A supplemental motion for new trial was filed based on the ground that a copy of the written contract had been discovered. The record does not show a copy thereof or its terms. Plaintiff in error says that the copy was lost. The fact that the copy was lost would not authorize this court to determine what was in the instrument. There is nothing in the record to show what the instrument contained.