Opinion
TC 98632, SC 25477
Submitted March 10, 1978.
Affirmed March 28, 1978.
In Banc
Appeal from Circuit Court, Marion County.
Duane R. Ertsgaard, Judge.
Keith D. Evans, Salem, on the brief for appellant.
No appearance for respondent.
Affirmed.
PER CURIAM.
Plaintiff brought an action to recover money due on a promissory note. Defendant had executed the note in connection with the purchase of a truck-trailer unit from plaintiff. Defendant counterclaimed for damages resulting from an accident involving the truck-trailer. See ORS 16.305. The case was tried to a jury. The court directed a verdict for plaintiff on the note; the jury returned a verdict for defendant on his counterclaim. Plaintiff appeals from the judgment entered on the verdict, asserting the absence of evidence to support the jury's verdict on the counterclaim.
Plaintiff did not move for a nonsuit or for a directed verdict on defendant's counterclaim. Because plaintiff failed to test the sufficiency of the evidence in the trial court, it cannot raise the issue on appeal. Verret Construction Co. v. Jelco Inc., 280 Or. 793, 572 P.2d 1029 (1977); Wood Ind'l Corp. v. Rose, 271 Or. 103, 530 P.2d 1245 (1975); Shmit v. Day, 27 Or. 110, 39 P. 870 (1895); see Hendrix v. McKee, 281 Or. 123, 125 note 2, 575 P.2d 134 (1978).
Affirmed.