Wm. Brown & Co. v. Duda

JOHNS, J. 1, 2. The action was brought and tried upon the theory that the contract between the defendant and Morley was in fact made with the plaintiff; that at the time of its execution the defendant knew Morley to be the agent of the plaintiff and that in the execution of the contract he was dealing with the plaintiff. The right to prove such a fact by parol testimony is sustained by the opinion of this court in Barbre v. Goodale, 28 Or. 465 (38 Pac. 67, 43 Pac. 378). It appears from the bill of exceptions that the plaintiff offered testimony tending to prove this fact and that the defendant denied any knowledge of Mor [406] ley’s agency or that he received any consideration for the execution of the agreement with Morley. Under the general denial the burden was on the plaintiff to prove the execution of the agreement, and the defendant would have a right to show that it was without consideration. There was no error committed in giving instruction “A.” • 3. It is contended by the plaintiff'that “submitting to a jury * * a question on which there was no evidence is reversible error” and that for such reason instruction “B” should not have been given; but it is stated in the defendant’s brief that: “The defendant’s evidence, however, showed that during the original negotiations with Morley he was acting in his own behalf, and the memoranda actually signed bound the defendant to sell tUe hops to Morley personally.” The plaintiff could become the ownjer of the contract in but one of two ways: First, as principal in the original contract; or, second, by an assignment of Morley’s interest. We do not have the testimony which was before the trial court and it does not appear from the bill of exceptions that there was n<j) evidence of an assignment from Morley to the plaintiff produced at the trial. We have no right to assume that there was prejudicial error in giving instruction “B.” 4. The bill of exceptions shows that: . “No evidence was introduced in this action as to the market value of hops of the kind and quality of those of defendant, as aforesaid, at Mt. Angel, Oregon, the place of delivery, or the market price of such hops at any other place.” ! Instruction “C” has to do with the measure of damages. Without some evidence ¡tending to show that the plaintiff was damaged by reason of the failure [407] of the defendant to carry ont the alleged contract, the plaintiff would not be entitled to recover, and it appears from the record that there was no such evidence. The judgment is affirmed. Affirmed. Benson, Bean and Bennett, JJ., concur.