Columbia Truck Sales, Inc. v. Humphrey , 281 Or. 705 ( 1978 )

576 P.2d 373 (1978) 281 Or. 705

COLUMBIA TRUCK SALES, INC., an Oregon Corporation, Appellant,
v.
Jim N. HUMPHREY, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on Brief March 10, 1978. Decided March 28, 1978.

Keith D. Evans, Salem, on the brief for appellant.

No appearance for respondent.

Submitted on Appellant's Brief March 10, 1978.

PER CURIAM.

Plaintiff brought an action to recover money due on a promissory note. Defendant had executed the note in connection with the purchase of a truck-trailer unit from plaintiff. Defendant counterclaimed for damages resulting from an accident involving the truck-trailer. See ORS 16.305. The case was tried to a jury. The court directed a verdict for plaintiff on the note; the jury returned a verdict for defendant on his counterclaim. Plaintiff appeals from the judgment entered on the verdict, asserting the absence of evidence to support the jury's verdict on the counterclaim.

Plaintiff did not move for a nonsuit or for a directed verdict on defendant's counterclaim. Because plaintiff failed to test the sufficiency of the evidence in the trial court, it cannot raise the issue on appeal. Verret Construction Co. v. Jelco Inc., 280 Or. 793, 572 P.2d 1029 (1977); Wood Ind'l Corp. v. Rose, 271 Or. 103, 530 P.2d 1245 (1975); Shmit v. Day, 27 Or. 110, 39 P. 870 (1895); see Hendrix v. McKee, 281 Or. 123, 125 note 2, 575 P.2d 134 (1978).

Affirmed.