NETTOGRAPH MACH. CO. v. A. J. BROWN & E. C. TRUEBLOOD Administrator of the Estate of JENNIE BROWN

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NETTOGRAPH MACH. CO. v. A. J. BROWN & E. C. TRUEBLOOD Administrator of the Estate of JENNIE BROWN
1907 OK 83
91 P. 849
19 Okla. 77
Decided: 09/04/1907
Supreme Court of Oklahoma

NETTOGRAPH MACHINE COMPANY
v.
A. J. BROWN AND E. C. TRUEBLOOD, Administrator of the Estate of JENNIE BROWN, Deceased.

Syllabus

¶0 1. WRIT OR ERROR--Brief--Failure to File--Reversal. Where the plaintiff in error has completed his record and filed it in this court and has served and filed a brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for such failure, the alleged errors will be taken as confessed and the judgment may be reversed without an examination of the record.
2. SAME--Rule 6 Invoked. By rule 6 this court, where the defendant in error in a civil cause fails to file a brief in support of the judgment attacked by the appeal, the court is given the discretion to either affirm or reverse the cause, and may reverse the judgment without examining the record.

Error from the Probate Court of Oklahoma County; before Ledru Guthrie, Special Judge.

Reversed and remanded.

Grant & McAdams, for plaintiff in error.

BURFORD, C. J.:

¶1 The Nettograph Machine Company, a corporation organized under the laws of the state of Missouri, brought its action in the probate court of Oklahoma county against the defendants, A. J. Brown and E. C. Trueblood, administrator of the estate of Jennie Brown, deceased, to recover judgment upon a promissory note in the stun of $ 500 executed by the defendants on the 24th day of September, 1903, to the Oklahoma Trust & Banking Company, due in ninety days from date, with six per cent. interest from maturity, and $ 50 attorneys fees, and by the payee assigned to the Nettograph Machine Company of St. Louis, the plaintiff in the action. The defendants set up by way of answer that the note was executed for 60 Nettograph machines and the right to use them in Oklahoma and Indian Territory, and alleged that the agent of the plaintiff made certain false and fraudulent representations by which the defendants were induced to execute the note, and they seek to either rescind and recover damages, or to recoup damages against the note if the sale is affirmed. It appears that the contract was in writing and is full and complete, but contains no warranty or representations as to the character of the machines or the work they can accomplish. On the trial the defendants were permitted, over the objection of the plaintiff, to introduce evidence tending to establish certain oral representations in the nature of warranties or of representations as to the qualities of the machines or the character of the work they were capable of performing, also of the earning capacity of the machines, which were operated by the "nickel-in-the-slot" device. The cause was tried to a jury, and verdict returned for the defendants. The plaintiff filed his motion for new trial, which was overruled, and judgment rendered in favor of defendants for the costs. The plaintiff brings the cause to this court by petition in error, and has filed a brief in which a number of specific errors are alleged and authorities cited in support of its position. The defendants have filed no brief and offered no excuse for their default.

¶2 The failure of the defendants in error to appear or file any brief must be taken as a confession of the alleged errors, at least sufficient to warrant a reversal of the judgment. Enc. Pl. & Pr. 729; Parson v. Haskell, 30 Ill. App. 444; Mattoon v. Holmes, 14 Ill. App. 392; Green v. Blalack, 25 Tex. 417; Richter v. Fresno Canal Co. (Cal.)

¶3 The judgment of the probate court of Oklahoma county is reversed, and a new trial ordered, at the costs of defendants in error

¶4 Irwin, J., absent; all the other Justices concurring.