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Argued February July reversed and remanded 1962 CLARIZO v. SPADA DISTRIBUTING INC. CO., 2d P. *2 argued appel- the cause for Snel, Portland, D. Dirk brief was Howard I. him on the Bobbitt, With lant. Portland. respondent. appearance for

No Before Chief and Justice, McAllister, Warner, and Justices. Sloan, Lusk, O’Connell J. McAllister, C. brought plaintiff,

The this action to Vito Clarizo, Spada Distributing Co., recover from the defendant, alleged an account of the Inc., on breach quality implied of three carloads vegetables purchased plaintiff from defendant. plaintiff produce The dealer Seattle, is a engaged in the same business with its the defendant is In the fall of 1958 office in Portland.

purchased from the defendant two carloads onions potatoes. plaintiff alleged The and a carload part vegetables un- carload were each thereby. damaged he merchantable and that general denial and counterclaim defendant filed *3 purchase price. unpaid portion of the for the jury $807.73, the in the sum of found for judgment verdict the based on said defend- and from appealed. ant has necessary it to consider certain

At the outset is brief—aggravating appellant’s aggravating in defects they court to waste much have caused because determining consequences, their and in time valuable slight they avoided with care. have been could because by Assignment They typified of Error No. 1, are follows: reads as “Assignment Error No. 1 denying defendant’s motion erred “The Court

notwithstanding and defendant’s motion the verdict new trial. for a judgment

“Paragraph not- B motion of the Paragraph (1) I withstanding and the verdict grounds motion the for new trial were based on the involuntary defendant’s motion for non-suit, that presented plaintiff’s at the close case-in-ehief, granted: should have been “ I ‘MR. like BOBBITT: would to move in be- involuntary half of the for an nonsuit defendant present at the time on the count we have and for following the reasons that on the count first or agreement they first on the No. onions, were purchased They f.o.b. at Brooks. were delivered they to Brooks at title time and that therefore took to Anything subsequent to them at that time. n thattime -as far as the condition of the onions responsibility buyers. were It’s their say particular, deteriorates that’s their property. let’s it’s their well, If it particular problem. “ point ‘Second in that there has never been any warranty of a indication notice of breach of particular point; claim on now, apparently trying question he is to raise the Oregon breach of and under our law— (Interposing)

“‘THE COURT: Notice under given. notice that 'Statute, has to I know you what mean. “ ‘MR. And in addition BOBBITT: that, merely they be not notice has to are defective going that there is to be a claim but made.

“ am ‘THE I familiar COURT: with that. paragraph foregoing assignment In the first appellant (1) court contends erred denying notwithstanding his motion for a denying (2) his motion for a verdict, new *4 paragraph examination of second trial. An assignment appellant reality discloses in is complaining the court denied because his motion for which is thereafter set out haec nonsuit, verba. judgment notwithstanding a motion for

If ground on the a motion for a verdict is based granted, per directed verdict should have been it is assign missible to as error the denial of the motion judgment Appendix Procedure, B, n.o.v. Rules of thereby nothing 'gained Illustration 3. is However, practice and the better is to the circuitous eschew directly by approach and to state the basic issue as signing error the denial of the motion for a as for a directed verdict. In either case the motion di rected verdict must be set out haec verba “so may we by reading a of the brief determine be enabled argued points presented to the whether the here were judge grounds as motion.” McCormick trial of such 255 P2d Williams, Jr., 66, 69, v. 199 Or 1071. a the denial of motion for nonsuit However, consequently ground judgment n.o.v., and not a is assignment in this ease for the no reason there was motion for n.o.v. error refer to the judgment n.o.v. not based motion for In fact the any grounds specified 18.140 on either in the court below no consideration deserved in this court. no case for the as was also reason this There signment for a new motion of error to refer Ordinarily, for a new denial of a motion trial. assigned may recent error. The most not trial be v. Petros, is contained Wills the rule statement (1960) as follows: P2d 394 122, 134, 225 Or repeatedly court that held “It has been upon trial for a new based a motion denial alleged on trial, committed errors may knowledge at the appellant time, had appeal. assigned Benson Birch, on as error (1932); P2d 1050 Shearer 466-467,

521 633); (210 supra Lantz, Or at Sherman v. (1959).” 274 P2d 771 Bankus, Or Alleged occurring on and errors the trial known to appellant assigned the at error the time must be as directly to trial. without reference the motion for new limited which circumstances under the denial may assigned of a for a motion new trial be error as are set in v. Birch, out Benson 459, 467, (1932), P2d 1050 as follows: *

“* * Where a motion for a new trial is based upon jury the misconduct of the did knowledge party making the come to a motion for new trial until after the verdict had newly been or where has returned, there been dis- covered evidence which was not known at time presented and the trial the matter has been to the trial court a motion new in trial, proper overruling cases where the of the motion always was an abuse of discretion, this court has right pass upon reserved to consider and such * * *” ruling upon appeal. Although Assignment defendant’s of Error No. 1 prepared has been in violation letter of our attempt comply there is evident an rules, with the 19 ‹ spirit provides thereof. Our ar Rule rangement wording assignments and of error shall Appendix Turning conform the illustrations B. appendix assign to the we find that one who wishes to ‹ “Rule 19. “Appellant’s Brief—Assignments of Error in at Actions Law assignment clearly succinctly “Each shall error be and separate headings. appropriate stated under and Where several assignments present essentially legal question, of error same they practicable. shall combined so far as arrangement together wording, applicable, far “The so page transcript statement, with reference narrative Appendix shall conform to illustrations B.” as error the denial of motion for nonsnit should do so as follows:

“Illustration 2 denying (sustaining) “The court erred motion for nonsnit or directed verdict: Set out motion haec ** *” verba, requirement is *6 the The critical that motion for nonsuit be set haec verba. out by ap appellant

The mistake made was to by by proach subject a circuitous route instead of his denying stating simply erred in de that the court the for nonsuit. the essential However, fendant’s motion a requirement a the rule—that motion for nonsuit of the complied with. the in full—has been Since be set out spirit appellant complied the of our rule we with has penalized be be that he should not have concluded assignment introductory portion of the con cause the unnecessary to the motion for reference tains an n.o.v. › judgment and the motion new trial assignments error set of are out Since all the on considered them all their we have fashion, similar merits. goods accepted plaintiff the

In at bar the case whether there was evidence case turns on and the jury find that within could from which the gave to defendant of al notice the a reasonable time 75.490 ﬁ warranty. provides leged of ORS breach › exception point there no also wish to out without is We right appeal the a motion for trial. from denial of appeal new every from must be taken 19.010. In case denying distinguished a motion for from the order new trial. as The properly judg appeal taken from the in the case at bar was ment. ﬁ express agreement implied or “In the absence of ORS 75.490 goods by buyer acceptance parties, shall not dis-

523 in the 'absence of notice “the seller shall such not be for such liable” breach.

This court held in Maxwell v. So. Co. Ore. Gas Corp., 158 74 P2d 114 ALR 175, 9, Or 75 P2d 168, 594, requirement (1938) that “the to be notice, by given charging warranty, the vendee breach of is imposed precedent right as a condition re giving pleaded cover, and the of notice must by proved party seeking to recover for such Miller, breach.” Israel v. Accord, (1958). P2d plead, original

Plaintiff did either his complaint, alleged amended that notice of the breach given to defendant. However, permitted plaintiff court trial to cure this defect in by pleading proof, his an amendment to conform the parties made interlineation after both had rested. assigned The allowance of amendment is error, assign- but the reasons hereinafter set forth this ment lacks merit. *7 plaintiff’s

At the close of case defendant moved ground, among plain for a nonsuit on others, the that giving prove had failed tiff to of notice of breach warranty by required of 75.490. ORS Since upon did defendant not rest its motion for nonsuit including we must consider all of the evidence, by offered The denial of the defendant. nonsuit trial court will be reversed if the record as a whole contains sufficient evidence take the case liability damages charge legal remedy the seller from in other or any promise warranty for the sale. of or in contract to breach sell or acceptance buyer goods, But if after fails to give any promise warranty notice to the seller of the breach of or buyer ought knows, within reasonable time after know breach, of the seller shall not be liable therefor.” such 524 Gum, Adm. v. Wooge,

to the 211 Or jury. 149, 155, Underwood, Johnson v. (1957); 315 P2d 119 102 Or v. (1922); Cornely Campbell, 680, 203 P 879 95 688, (1920). Or 186 P 563 345, 365, This court has construed ORS 75.490 to require buyer must the seller not notify only breach but also he intends claim for such breach. Howard-Cooper Corp. v. Co., 148 Or P2d Umpqua 36 590 582, 585, (1934); Feed Western v. Co. Heidloff, 370 324, P2d 612. have (March 1962). courts 28, adopted Other Jessup, v. similar 31 826, construction. Cal2d Whitfield Inc., Fulle, Truslow & v. Diamond 4 1, (1948); 193 P2d Corp., 112 Conn Atl 71 ALR Bottling 181, 187, 492, 151 Stores, Hazelton v. First Nat. 88 NH 1142 (1930); Tire & Rubber Henderson Co. A 280 409, (1937); 190 Son, P. NY NE v. K. Wilson & 583, 139 586 489, 235 Co., I. & Magnin v. 39 Wash 2d Ringstad 923, (1923); Brockman, Simonz v. 249 Wis 50, 239 P2d (1952); 848 Ltd., & Judge Dolph, Charles 464 (1946); 23 NW2d Motor Texas law]; Cir (7th 1959) [Ill. 263 F2d 864 Co., Motors v. A. C. F. (3d F2d 94-95 coaches 91, Co. v. Mfg. American United ; law] Cir 1946) [Penna. Corp., E. F. F2d Cir Board (2d Shipping States 462; at Annotation: Void, § 95 Law 1925); Sales, is rec interpretation A different 270, 277. 53 ALR2d for a similar the Uniform provision ommended Code. ﬂ Commercial ﬂ 49 of the Uniform an enactment Section 75.490 was of that section has now been included The substance Sales Act. Code, Uniform Commercial turn 2-607 of the

in Section Oregon by chapter 726, adopted the enactment has been Oregon September Since the Uniform 1963. effective Laws *8 only applies by to transactions entered its terms Code Commercial com that evidence record contains the vegetables quality to defendant plained as However, except defendant. by himto shipped which find no evidence we onions, carload of to one the defendant notice to to constitute construed can be any for claim damages intended to that plaintiff As of said vegetables. the sale breach of as testified onions the plaintiff one carload of to follows: carload of condition of this was the

“Q What ? onions wet pretty damp,

“A was kind of They damp, culls. They and off the was grade. ? onions did do with those

“Q “A you What don’t them but he sell going We ‘Take said, an He to come to agreement. want I them.’ I still don’t want ‘No, off’ and said, $230 I want no culls,’ them. don’t I ‘You can have said, take them.’ I said, he ‘You finally said, got and I lay there They just ‘I don’t want them.’ the dump.” take them to anticipate September 1, 1963, reason to its we see no

into after note, however, that one at bar. We effect on a case such 2-607, con- recommends a different 4 under Section comment given by majority that this and a than struction for section Act. Comment 4 49 of the Uniform Sales to Section the courts part as follows: reads merely need be sufficient content of the notification “The transaction is still troublesome to let the seller know require that no reason to There is and must be watched. buyer’s rights under this section saves the notification objections that will of all the include a clear statement must covering buyer, the section state- as under relied on be rejection (Section 2-605). upon Nor is there of defects ments requiring to be claim the notification reason for remedy. litigation any other resort threatened or of buyer’s rights under saves The notification which only trans- informs the seller such as Article need opens way breach, and thus involve a claimed to action is negotiation.” through normal settlement *9 Although question, plaintiff’s it ais close we "thinkthat rejection proposal flat of defendant’s to reduce the price adequate warning sale was that unless a more by favorable offer was made defendant, would claim what he considered to be the full amount damages of for the breach. The intent to claim dam- ages may any language ap- be found in sufficient to prise buyer’s purpose damages the seller of the to seek arising out of the breach. go jury

Since there evidence was to the as to part plaintiff’s properly of the trial court claim, denied the nonsuit. sepa

At the close of the case defendant made by rate motions to withdraw from consideration jury plaintiff’s damages claim for as to each vegetables ground that there three carloads of on the any proof damages as to was no of intention to claim The denial of these motions is as of said carloads. signed pointed our we have examina out, as error. As complete prove discloses a failure to tion the record potatoes by required the car of statute as to notice In view of carloads of onions. one of the and as to proof think court erred re we failure jury fusing from consideration withdraw each of said two cars. as to the claim larger than the amount claimed was the verdict Since proper proof as to which there the one car judgment erroneous. is notice, remaining assignment of error Defendant’s any in the trial that was raised raise issue not does here. no consideration and deserves court and remanded for further reversed is opinion. with this proceedings inconsistent

m n SLOAN, dissenting. J., assignments in this made of error are four

There the refusal is directed at each one court but and for a trial for new a motion allow trial court to judgment n.o.v. of a right appeal the denial from

There is no Macartney v. 19.010. trial, for new motion Geinger, P White Shipherd, 814; Or 1911, 60 133, 117 subject to the This rule is P 572. *10 139 Or exceptions Birch, 1932, in Benson stated al, v. Bankus et and in P2d Sherman 1050, 467, 459, which P2d none of 771, 274, change any application It does not to this case. have grounds in the motion were stated that the the rule urged during the trial. those grounds motion for stated defendant’s within the statute included n.o.v. were not may specifies which the motion the causes court could Therefore, 18.140. allowed, motion.

not have allowed the decide court, than a trial should no less court, This brought At here. most made and a case on the record judg- only a new trial. The allow the court should affirmed. ment should be J., joins dissent.

Warner,