Berry v. Hill

Berry v. Hill
1894 OK 50
37 P. 828
6 Okla. 7
Case Number: ___
Decided: 09/08/1894
Supreme Court of Oklahoma

BERRY
v.
HILL

SYLLABUS

¶0 Unless manifest error appears in the record of a case before this court on appeal from the judgment of a district court affirming the report of a referee, the judgment must be affirmed. Appeal from district court, Cleveland county; before Justice Frank Dale. Action by Hill, Fontaine & Co. against Thomas E. Berry and A. A. Berry, on account. Judgment for plaintiffs. Defendants appeal. Affirmed.

Appeal from district court, Cleveland county; before Justice Frank Dale.

Action by Hill, Fontaine & Co. against Thomas E. Berry and A. A. Berry, on account. Judgment for plaintiffs. Defendants appeal. Affirmed.

Thomas E. Berry and Amos Green & Son, for appellants.

Ross & Caruthers, for appellees.

SCOTT, J.

¶1 This is an action on account, for the sum of $391.02, against Thomas E. Berry and A. A. Berry, partners doing business as Berry Bros. at Norman, Cleveland county, Okl. T. On the 23d day of May, 1892, the appellees (plaintiffs below), Hill, Fontaine & Co., filed their complaint, attaching thereto a duly-verified account in the sum stated. The appellants (defendants below), on the 5th day of Octobe r, 1892, filed an answer, first denying each and every allegation of the complaint, except such facts alleged as might be admitted in such pleading; then, as a further defense, setting up a counterclaim of $2,062.20. The allegations of the counterclaim were, in substance, that in the month of September, A. D. 1890, the appellants, at the special request of appellees, consigned cotton to appellees, and were authorized to attach bills of lading and draft for not to exceed 80 per cent. of the market value of said cotton, as quoted to them daily by the price current furnished by appellees; that the agreement implied and understood was that the parties should continue said business through the cotton-shipping season of 1890, 1891, and 1892; that in pursuance of said agreement the appellants did consign and ship to appellees, during such period, 249 bales of cotton, worth at the time of delivery in St. Louis, after deducting freight, storage, commissions, etc., the sum of $12,375.58, and that appellees agreed to hold or sell said cotton subject to the order of appellants; that appellants directed and ordered appellees to sell their said consignment of cotton promptly upon arrival at St. Louis, Mo., but that they willfully and fraudulently, and in violation of their said agreement, failed, refused, and neglected to sell said cotton, holding a large portion of it for some two or three months, and thereupon charged said appellants storage to the amount of 75 cents per bale per month; that during said time cotton gradually declined in price, to the amount of two cents per pound. After stating debits and credits, appellants allege appellees were indebted to them in the sum of $2,062.20, with interest at the rate of 7 per cent. per annum from the 7th day of October, A. D. 1891, and prayed judgment accordingly. On the 15th day of October, 1892, by agreement, Sidney Denham was appointed by the court as referee to take the testimony in the case, and state therefrom an account between the parties, and make due report thereon to the court. The referee, thereupon, after hearing the testimony of all the parties, submitted his findings of fact and conclusions of law to the court; reporting in favor of the appellees in the sum of $391.02, as prayed for in their complaint. On the 25th day of December, 1893, the court (Judge Frank Dale presiding) rendered judgment affirming the referee's report, except an allowance of $40 by him as attorney's fees. The appellants thereupon prayed an appeal, which was granted; and the case was signed and settled by the court on the 18th day of November, 1893, and the record filed here on the 5th day of December, 1893.

¶2 The appellants present several assignments of error for the consideration of the court, all general in their character, but have filed no brief in support thereof; and the court is guided in the consider-ation of the case only by the record, as presented. The court has fully and carefully examined the record, and feels entirely convinced that the findings of the referee's report, and the judgment of the court rendered thereon, are fully justified by the evidence in the case. The appellants fail to bring up the entire evidence considered by the referee. However, unless the record does contain all the testimony taken and considered in this case, the court cannot consider any part of it. Smith v. Gill, 10 Kan. 74; Gallober v. Mitchell, Id. 75; Clark v. Hall, Id. 81; O'Brien v. Creitz, Id. 202; Insurance Co. v. Duffy, 2 Kan. 347; Cooper v. Armstrong, 4 Kan. 30; McGrew v. Armstrong, 5 Kan. 284; Topeka v. Tuttle, Id. 425; Hale v. Bridge Co., 8 Kan. 466; Turner v. Hale, Id. 38; McIntosh v. Commissioners, 13 Kan. 177. From all we have before us, we are unable to see that there was any error in the proceedings in the court below, and unless manifest error does appear the judgment must be affirmed. It is so ordered.

¶3 All the justices concurring.