1. APPEAL AND ERROR — Findings of Jury — Evidence. Where there is competent evidence reasonably tending to support the findings of the jury, the same will not be disturbed upon appeal.
2. APPEAL AND ERROR — Harmless Error — Judgment — Affirmance. If, after an examination of the entire record this court is unable to say that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, the judgment must be affirmed.
(Syllabus by Rittenhouse. C.)
Opinion by RITTENHOUSE, C.
This is an action to recover a balance of $136.50 due upon an oral contract to survey a part of the S.W. 1/4 of section 11, township 12 N., range 3 E. I. M. Issues were joined and the cause tried to a jury, resulting in a judgment in favor of the plaintiff.
It is argued that the verdict is not sustained by sufficient evidence. Upon an examination of the record we find that H.C. Adams testified to the terms of the oral contract; that the work was performed under such contract by surveying the tract of land and subdividing the same into lots, blocks, streets, and alleys; that it required the labor of four men for the space of 18 days to perform the work; and that certain material was furnished as provided by the terms of the contract. The defense was that the work performed under the contract was inaccurate and necessitated an additional survey, and for that reason defendants were not liable. The jury passed upon the question of the accuracy of the survey, which was the only defense offered, and, as there was competent evidence reasonably tending to support their finding, the judgment will not be disturbed by this court. McKemie v. Albright, 44 Okla. 405, 144 P. 1027.
The next question complained of is the giving and refusal of instructions. No reason is given as to why the refusal of the instructions requested was prejudicial to the defendant. Any objection, therefore, to the refusal of such instructions will be deemed waived. The defendant complains of instruction No. 9 on the ground that it presumes that some officer or representative of the defendant company directed the method of surveying the property, which presumption, it is claimed, was not borne out by the evidence. We have examined the record, and find that the evidence did not fully warrant so comprehensive an instruction, but, in view of all the facts in this case, it does not appear that the error has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. Producers' Oil Co. v. Eaton, 44 Okla. 55, 143 P. 9; City of Guthrie v. Snyder, 43 Okla. 334, 143 P. 8.
The cause should therefore be affirmed.
By the Court: It is so ordered.