Christensen v. Reid

CO SHOW, J. The assignments of error are sixteen in number. The first nine are based on alleged erroneous rulings of the court in admitting testimony. The tenth is based on the remarks of the attorney and the others on alleged erroneous instruction and failure to give requested instructions. It is not deemed necessary to dispose in detail of the assignments of error in regard to admitting the testimony. The contention of defendant is that the evidence objected to was not direct and specific, but was an attempt to prove plaintiff’s cause by generalities. Only one ruling of the court is considered even doubtful. The testimony was given by 0. E. G-ale in behalf of the plaintiff to the effect that a heifer bought at the same [557] public auction and bred thereafter disclosed symptoms of having the disease referred to. This testimony was too remote, bnt all of the other witnesses testified to facts tending to show that cattle bought by them at the same public sale from the same herd were infected. The evidence is to the effect that the disease is both contagious and infections. The evidence of the witnesses who bought at the same sale and from the same herd was admissible for the purpose of showing that the herd was ‘infected. This may have been the very best evidence obtainable. For that reason the testimony of the witness, Gale, is not reversible error. It was merely cumulative and was to the same purport as the evidence given by the plaintiff and three other witnesses.. If the remarks of the attorney for plaintiff, in making the opening argument to the jury, were objectionable, the matter is not properly here for review. Following the remark the attorney for the defendant stated: “We want an exception to that.” The court answered, “You may take an exception.” There was no' ruling by the court on the objection, if one can be considered to have been made: Gary Coast Agency, Inc., v. Lawrey, 101 Or. 623, 626 (201 Pac. 214). No request was made to instruct the jury regarding it. The remarks of the attorney for the plaintiff were regarding matters of fact. The court properly ruled that the jury must disregard all matters outside the record and stated: “I do not want the jury to understand I am holding the evidence discloses the fact that all purchasers complained,-or that it does not so disclose. That is for the jury to determine from the evidence on that phase of the case.” [558] Exception No. 12 is based upon the refusal of the court to give an instruction to the effect that if it was within the power of the plaintiff to prove the elements of his complaint, including the damages which he claims to have suffered, by stronger and more satisfactory evidence than that adduced, that the evidence adduced should be viewed with distrust. The court gave that instruction, substantially. The only difference between the instruction given by the court and that requested by the defendant is that the court applied the rule to both plaintiff and defendant. It was not error to refuse to give the instruction requested by the defendant. The other exceptions tó the instructions given by the court are not well taken. The court correctly stated the law as to the effect of a warranty made by the seller to the buyer of personal property: Feeney & Bremer Co. v. Stone, 89 Or. 360 (171 Pac. 569, 174 Pac. 152). The expressed warranty relied upon by the plaintiff was made at the time of the sale. It was a statement of fact. The plaintiff testified that the defendant said he would guarantee that the cows were in good health and free from the disease of contagious abortion. This constituted a warranty by the defendant. The evidence discloses that the plaintiff relied upon that warranty in making the purchases. These same instructions also correctly state the measure of damages. It appears that the certificate of registration of one of the cows purchased by the plaintiff could not be produced by the defendant. The plaintiff complained to the defendant on that account whereupon the defendant claims to have given the plaintiff credit on the note given by plaintiff for part of the purchase price of the cows. It is contended by [559] the defendant that the jnry should have been instructed to deduct from the amount of damages they should find for the plaintiff the amount of $260 credited upon the note. Considering that the defendant set up a counterclaim and demanded judgment against the plaintiff for the amount of the note and that the court correctly instructed the jury upon the question of damages, it seems clear that the jury in awarding judgment to the plaintiff must have allowed the defendant credit for the $260 credit upon the note. The plaintiff claimed that he was damaged in the sum of $5,567. The verdict was for the sum of $1,500. While it would have been proper to have called attention to this item in his charge to the jury, it was not reversible error not to do so, because the instructions taken as a whole as given by the learned circuit judge correctly informed the jnry the proper method of ascertaining the true amount of damages in case they should find for the plaintiff: 3 C. J. 56, § 157; 35 Cyc. 368d; McKelvey on Evidence (2 ed.), 171, § 103; 2 Sedgwick on Damages (9 ed.), 1612, § 769; 1 Thompson on Negligence, §§ 854, 920; Shinn et al. v. Reutter et al., 135 Mich. 57 (97 N. W. 152, 106 Am. St. Rep. 384, 63 L. R. A. 743); Joy v. Bitzer, 77 Iowa, 73 (41 N. W. 575, 3 L. R. A. 184); Morgan v. Bross, 64 Or. 63 (189 Pac. 118); Fitzhugh v. Nirschl, 77 Or. 514 (151 Pac. 735). The judgment is affirmed. Affirmed. McBride, O. J.', and Burnett and Eand, JJ., concur. [560] Por the motion, Mr. W. C. Winslow. Contra, Messrs. Smith & Shields.