Othenin v. Theimer , 107 Okla. 38 ( 1924 )

This action was on account for material furnished and labor performed. A verdict was returned and judgment rendered for plaintiffs in the lower court. Defendant appealed the case here, assigning a number of errors, all of which, except one, relate to the admission of alleged improper evidence. Such assignments of error require an examination of all the evidence introduced at the trial. The case-made does not purport to contain all the evidence; therefore, these questions cannot be reviewed. Scottish Union Mutual Ins. Co. v. Chicago, R.I. P.R. Co., 38 Okla. 164, 132 P. 674.

The error assigned which may be reviewed is the action of the court in overruling defendant's objection to the introduction of evidence on the ground that plaintiffs' petition does not state a cause of action. Such objections are not favored in law and should not be sustained unless it is plainly evident that the pleading fails as to some element essential to recovery. Thorp v. St. Louis S.F.R. Co., 73 Okla. 123, 175 P. 240. The material part of the petition is as follows:

"The plaintiffs complain of the defendant and allege and state that said defendant is indebted to them in the sum of $241, for materials furnished and labor performed in and about the flat owned by the defendant at No. 727 East Sixth street, as more fully appears in the items hereto attached marked exhibit ``A' and made a part of this petition.

"That said work and materials were furnished to defendant within three years last past, and the full sum of $241 remains due and unpaid with interest at 6 per cent. from March 1, 1918."

The itemized statement of account was attached and judgment prayed for the amount of the balance shown. This petition of plaintiffs is good against the objection to the introduction of evidence. St. Louis S.F.R. Co. v. Leger Mill Co., 53 Okla. 127, 155 Pac., 599.

Judgment of the lower court affirmed.