234 P. 634 | Okla. | 1925
This class of cases has been before this court a number of times and the rule governing such cases is well established by the decisions of this court. There is no question from the testimony in this case that the tractor wholly failed to perform the work that is required of a tractor to perform. It also shows that the defendant used a great deal of patience in trying to get the tractor to work, and that it was no fault of his that it did not work. There is very little controversy about the testimony, and there is only one of the instructions of the court excepted to by plaintiff, and the exception only goes to a part of the instruction. We have read this instruction in its entirety and also the instruction given by the court, and we are of the opinion that the part of the instruction excepted to was fairer to the plaintiff's theory of the case than he was entitled to have submitted and therefore he cannot complain of that part of the instruction. This case is as near a counterpart of the case of Fairbanks Morse Co. v. Miller et al.,
By the Court: It is so ordered.