3 Or. 435 | Or. | 1869
The plaintiff appeals from a verdict and judgment in his favor for an amount less than that claimed by Mm, and assigns as error :
1st. The ruling out of evidence in relation to the delivery of barley at Camp Watson.
2d. Buling out the plaintiff’s testimony concerning the profits he could have made by hauling the barley to Camp Watson.
3d and 4th. In instructing the jury on the same points.
The first and third assignments of error present but one point. Without examining the question whether the facts stated in the pleadings in regard to the contract for the delivery of barley, and its non-fulfillment, are a sufficient foundation for special damages — it seems, from the record, that the evidence rejected did not correspond with the allegations of the complaint. The allegation was, that the plaintiff had actually contracted to a sale of the grain, but the rejected evidence was, that he had a conditional promise —a promise, that, upon a certain contingency, the buyers would consent to take the grain, and that that contingency afterwards happened. If the evidence would have laid a
«Judgment is affirmed.