Kitchin v. Oregon Nursery Co.

Mr. Justice Eakin delivered the opinion of the court. There are a great many assignments of error, but all may be included under a few points. 1. Objections were made to the introduction in evidence of several letters, written by the defendant to the plaintiff, for the reason that they contained printed on the letter-head, following the name of the defendant the words, “Growers of reliable nursery stock,” but the objections are rendered immaterial for the reason that defendant placed in evidence several statements of shipments of trees made out upon billheads bearing the same heading, and including the statement objected to. 2. Plaintiff offered in evidence a newspaper advertisement published over defendant’s name, the admission of which was excepted to by the defendant. Plaintiff testified that the advertisement came to his attention [24] before he purchased the trees, and that it influenced him to buy from the defendant.' The advertisement is in the nature of a representation of the matters stated therein to those who might thereafter deal with the company, and tends to establish an implied warranty to subsequent purchasers of the truth of such representation, and was competent evidence for that purpose: See Milburn Wagon Co. v. Nisewarner, 90 Va. 714 (19. S. E. 846). 3. Testimony as to the character and condition of the soil was not objectionable because reference is made therein to other trees thriving in similar soil, part of the defense being that the trees died for want of proper soil, cultivation, and care. 4. Error is assigned to the ruling of the court in permitting counsel for plaintiff to state, within the hearing of the jury, the matters sought to be deduced by the answer of the witness to a question to which an objection was sustained. If it appeared that such a statement might be prejudicial, defendant should have objected to the statement being made within the hearing of the jury, and, no doubt, the court would have required the statement to have been made in writing rather than orally; but, in the absence of such objection being timely made, no error was committed. 5. Exceptions are also taken to the instruction of the court as to special damages; but the verdict contains no special damages, except the item of freight, which is specially alleged, and properly allowed if plaintiff is entitled to recover, and an item of $1, mentioned as “personal damages.” We understand the term “personal damages” to mean special damages; but, as the amount allowed in the verdict was only nominal, the instruction could not be prejudicial error; and, as the plaintiff in his brief concedes that the special damages may be stricken out, that will be the order. [25] 6. Witnesses testified as to the effect and quality of the cultivation of the soil in which the trees were planted, and it is contended by defendant that this was expert opinion by nonexpert witnesses. We do not deem the matter sought to be established by this evidence as a matter requiring scientific knowledge or special skill or learning, but rather a matter of common observation from the appearance of facts. It is said in Graham v. Pennsylvania Co., 139 Pa. 158 (21 Atl. 152, 12 L. R. A. 295), and quoted with approval in National Bank v. Fire Assn., 33 Or. 181 (53 Pac. 11): “That the opinions of witnesses are in some cases admissible as evidence, even when not coming properly under the head of expert testimony, has long been established in practice.” In the case of National Bank v. Fire Assn., 33 Or. 181 (53 Pac. 11), Mr. Justice Wolverton says: “There are several reasons assigned which characterize its (nonexpert testimony) competency, among which may be enumerated its necessity as being the only method of proving certain facts essential to the due and proper administration of justice; that it is not a mere opinion, but a conclusion of fact to which the judgment and common knowledge of the observer has led him in regard to the subject matter; and that certain facts are of such a nature that whatever a witness may affirm touching them he asserts largely as an opinion, but so blended with knowledge and recollection that the line where opinion ends and fact begins cannot be distinguished, making it, in effect, a compound question of fact and opinion”: See, also, Farmers’ Bank v. Woodell, 38 Or. 298 (61 Pac. 838). The admission of the evidence could not have been prejudicial, and was not error. It is further contended that the price at which the trees were sold by plaintiff was not competent, but the evidence relating thereto was excluded, and the court in the instructions told the jury that the pur [26] chase price of the trees at Orenco should be the basis upon which to compute the damages. 7. Again, it is objected that damages cannot be predicated upon estimates. The number of dead trees in some of the orchards was arrived at by estimates, namely, actual count of dead trees in sections of 10 trees through á large part of the orchard', the number of dead trees in the balance of the orchard being computed in the same proportion. In many of the orchards it was determined by actual count, and the evidence was sufficient to enable the jury to ascertain the damages with reasonable certainty: Hoskins v. Scott, 52 Or. 276 (96 Pac. 1114). 8. The principal contention of plaintiff is as to the liability of defendant upon its implied warranty that the articles sold shall be suitable for the purposes to which they are to be applied. This rule is well recognized by this court: Gold Ridge Min. Co. v. Tallmadge, 44 Or. 34 (74 Pac. 325, 102 Am. St. Rep. 602); Lenz v. Blake, 44 Or. 573 (76 Pac. 357); Mine Supply Co. v. Columbia Min. Co., 48 Or. 395 (86 Pac. 790). However, in this ease it is not necessary to apply the rule because the plaintiff is not only contending that the trees were not suitable for the use to which they were to be applied, but that the trees were not sound. Defendant admits that it is bound by an implied warranty to that extent, namely, that the trees were sound and healthy, and the testimony strongly tended to establish the fact that the trees were not sound, but were unhealthy trees having an inherent defect which caused them to die; and the jury passed upon the question of the inherent defect, as well as the cause of the death of the trees. Defendant contends that it was not liable upon a warranty that the trees would grow, but only that they were live trees of the variety ordered. Defendant as a nursery company was producing and putting upon the market young fruit trees for fruit-rais [27] ing; and nursery fruit stock cannot be considered with reference to any other purpose. Hence there is an impliéd warranty that the trees are sound, healthy, and vigorous. Defendant states in its brief that “when a known and described article is purchased, and the plaintiff purchased what he got and got what he purchased, there is no implied warranty that it is reasonably fit for the use intended by the purchaser.” But plaintiff’s contention is that he did not get what he purchased, namely, sound, healthy and vigorous trees. Decided April 1, 1913. There are other errors assigned relating to the admissibility of the evidence and instructions to the jury, but we deem them unimportant. After careful consideration of the law applicable to the questions here involved, and a review of the evidence, we find no prejudicial error. The case was fairly presented to the jury, and, eliminating the $1 special damages, the judgment is affirmed. Affirmed: Modified on Rehearing.