Verret Construction Co. v. Jelco Inc.

572 P.2d 1029 (1977) 280 Or. 793

VERRET CONSTRUCTION CO., an Oregon Corporation, Respondent,
v.
JELCO INCORPORATED, a Utah Corporation, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted November 8, 1977. Decided December 28, 1977.

DeMar L. Batchelor, of Schwenn, Bradley & Batchelor, Hillsboro, argued the cause and filed a brief for appellant.

Thomas A. Huffman, of Huffman & Zenger, Hillsboro, argued the cause and filed a brief for respondent.

Before HOLMAN, P.J., HOWELL and LENT, JJ., and GILLETTE, J. Pro Tem.

PER CURIAM.

Plaintiff brought an action to recover the reasonable value of the use of some heavy construction equipment. Defendant appealed from a judgment based upon a jury verdict for plaintiff. Defendant's only assignment of error is that there was no substantial evidence to support the jury verdict.

Defendant made no motion for a non-suit or for a directed verdict. In the absence of having tested the sufficiency of the evidence to sustain the verdict in the trial court, defendant cannot raise the issue on appeal. Wood Ind'l Corp. v. Rose, 271 Or. 103, 105-06, 530 P.2d 1245 (1975); Shmit v. Day, 27 Or. 110, 116-17, 39 P. 870 (1895).

Affirmed.