
    SISLER v. SAPULPA INDUSTRIAL FINANCE CORPORATION.
    No. 24590.
    May 14, 1935.
    
      Gbas. A. Holden and C. O. McDonald, for plaintiff in error.
    Karl E. Jones, for defendant in error.
   PER CURIAM.

Tbe plaintiff in error was tbe defendant below and tbe defendant in error was tbe plaintiff below. Tbe parties will be referred to as plaintiff and defendant for tbe sake of convenience. Tbe plaintiff instituted its action in tbe court of common pleas, Tulsa county, Okla., to re-plevin a radio of tbe alleged value of $432, claiming a special ownership in said radio ¡by virtue of. a conditional sales contract, of which plaintiff was tbe assignee. Tbe defendant answered by way of general denial, and further answering, denied that plaintiff was the owner and bolder of tbe conditional sales contract. Defendant further denied execution of tbe conditional sales contract and tbe note it secured, and further denied that plaintiff bad been damaged in any sum. To this answer, plaintiff bled a general reply. Upon tbe issues thus joined, tbe cause proceeded to trial before a jury, who returned a verdict for tbe plaintiff.

The defendant filed bis motion for new trial, setting up only general grounds. It is from tbe order overruling tbe motion for new trial that tbe defendant appeals, assigning' as error several general grounds, but only ' briefs one point,' to wit: That the court erred in overruling tbe defendant’s motion for new .trial. Thus, under tbe settled rule of this court, tbe defendant must be deemed to have waived bis other assignments of error. L. S. Cogswell Lumber Co. v. Manahan, 135 Okla. 174, 274 P. 871; Harrelson et al. v. Brown et al., 131 Okla. 267, 268 P. 731; Nolan v. Schaetzel et al., 145 Okla. 231, 292 P. 353; Miller v. Lester, 169 Okla. 344, 37 P. (2d) 261.

Tbe facts are relatively simple. Tbe plaintiff merely introduced tbe contract sued on and proved tbe execution of tbe note and conditional sales contract, tbe delivery of tbe radio to tbe defendant, and the nonpayment of tbe obligation. Tbe evidence of tbe defendant was that be admitted tbe execution of tbe conditional sales contract, but contended that be did so only to protect L. D. Hess, tbe plaintiff’s assignor, and that tbe radio was given to him in satisfaction of a debt that Hess owed to tbe defendant for a doctor bill, evidenced by a promissory note in tbe sum of $432, and evidence to tbe effect that Hess procured tbe note and conditional sales contract by fraud. The plaintiff introduced evidence to rebut this fact. Tbe court’s instruction fully and adequately covered tbe theory of tbe defendant. Tbe defendant does not complain of any error in tbe court’s instruction. No- rule is better settled than that which states that questions of fact are exclusively within tbe province of the jury in a jury trial, and where questions of fact are submitted to a jury and tbe instructions of the court applicable to tbe facts fairly state tbe law, this court will not disturb the verdict and judgment of tbe trial court. Rose v. First National Bank, 93 Okla. 120, 219 P. 715; Robinson v. Peru Plow & Wheel Co., 1 Okla. 140, 31 P. 988; St. Louis-S. F. R. Co. v. Jones, 78 Okla. 204, 190 P. 385; Selby v. Swindler, 124 Okla. 131, 254 P. 4; Chickasha Compress Co. v. Southern Burner Co., 159 Okla. 107, 14 P. (2d) 367.

A portion of tbe defendant’s argument, under tbe general proposition that the court erred in overruling bis motion for new trial, is to tbe effect that there is insufficient evidence to sustain tbe verdict. Tbe defendant demurred to plaintiff’s evidence, which demurrer was overruled. Tbe defendant did not elect to stand upon tbe demurrer, but introduced evidence. Nor did the defendant renew bis objection to tbe insufficiency of tbe evidence by moving for a directed verdict after tbe parties bad finally rested. Thus, tbe question of whether or not there is any evidence to support tbe verdict is not presented for review by tbe defendant’s motion for new trial. Amons v. Howard, 111 Okla. 195, 239 P. 217; Oklahoma State Bank of Ochelata v. Ward, 127 Okla. 45, 259 P. 644; Myers v. Hubbard, 80 Okla. 97, 194 P. 433; First State Bank of Vian v. Sharp, 151 Okla. 205, 3 P. (2d) 208.

We are cited to several cases to tbe effect that tbe defendant in a replevin action can set up any defense against the claim of an assignee of a conditional sales contract which be could set up against tbe original seller, which cases correctly state tbe law, but do not control any question presented by the appeal.

It appears from tbe evidence that tbe note of tbe defendant, signed by Hess, plaintiff’s assignor, was never introduced in evidence at tbe trial below; however, it is referred to throughout tbe trial by both parties. It appears from the evidence that the note was not due at the time the conditional sales contract was assigned to the plaintiff. Thus, even if the defendant had properly .pleaded a set-off and the note had been introduced in evidence, the defendant’s contention cannot he sustained. "

The case of McMann v. Wilcox Oil & Gas Co., 121 Okla. 167, 250 P. 780, holds as follows:

“The assignment of a demand or chose in action, which, when the conditions of the contract giving rise to the same are complied with, will sustain a cause of action in favor of the assignee, defeats and strikes down the right of the debtor to set off, as a cross-demand, a claim arising by virtue of a separate, independent, and distinct contract of the assignor, when the right of action had not accrued at the time of the assignment.”

Finding no error, the judgment of the trial court will be affirmed.

The Supreme Court acknowledges the aid of Attorneys Alfred Stevenson, R. J. Roberts, and Ohas, U. Orr in the preparation of this opinion. These attorneys constitute an advisory committee selected by the State Bar, appointed by the Judicial Council, and approved by the Supreme Court. After the anaylsis of law and facts was prepared by Mr. Stevenson and approved by Mr. Roberts and Mr. Orr, the cause was assigned to a Justice of this court for examination and report to the court. Thereafter, upon consideration, this opinion was adopted.

MeNEILL, O. J., and BAYLESS, WELCH, CORN, and GIBSON, JJ., concur.  