194 P. 458 | Or. | 1921
“In deciding a motion for nonsuit, the court should assume those facts as true which a jury could properly find under the evidence; and if in any view of the evidence, taken in its most favorable light, a verdict may be rendered for the plaintiff, or if there are questions of fact which may be determined for the plaintiff, and if determined in Ms favor will entitle him to recover, the case should not be .taken from the jury by a nonsuit.”
This language is equally applicable when ruling upon a motion for an instructed verdict. In the case at bar the motion for a directed verdict was oral, and was grounded upon the absence of proof of the market price of onions in Sacramento on the day of the arrival in said city of the carload of onions involved in this litigation, "We find from the record of evidence upon that subject, that there was sufficient competent evidence before the jury upon which to base a verdict for plaintiffs; that there was evidence which fairly, though indirectly, established the market price of onions in Sacramento. Plaintiff Bolter testified that the car was shipped from Brooks, Oregon, to Sacramento, on the 28th of February, 1919; that it would take five days to reach Sacramento, and that the market price of onions from February 28th to March 5th was $4 to $5 a hundred. Coplaintiff Collins testified, in relation to his under
“A. The market price was $4. $4.05 was the price I was offered at Brooks, f. o. b. Brooks. * * I explained to Harris [defendant’s agent] that if I didn’t get * * $4 or better for them onions, I wouldn’t let them move from Brooks station.
“Q. Your claim is you were to get the price of those onions when they arrived in Sacramento?
“A. Well, I was to get as good as the price in Brooks or better.”
Mallory E. Enos, produce merchant, testified upon the part of defendant that the United Brokers Company shipped this carload of onions through Sacramento to San Francisco; that fancy selected Oregon onions were worth $4 per hundredweight; choice onions, $3.50 to $3.75 per hundred; ordinary grade, $3 to $3.25 per hundred; that the equivalent prices to shipper's at Brooks, Oregon, of the various grades of onions on March 10, 1919, were as follows: Fancy selected Oregon onions, f. o. b. Oregon, $3.67%; choice, $3.17% to $3.42%; ordinary, $2.67% to $2.92%. Similar evidence was given by T. Pearson, produce broker; W. R.. Larzelere of San Francisco, commission merchant. E. P. Tate, salesman of Wm. A. Curtis & Co., testified that—
“This car was purchased by the Wm. A. Curtis & Co. February 20, 1919, and received at San Francisco
R. L. Phillippi, manager of United Brokers Company, Portland, testified that the car was sold by his company in advance of its shipment, subject to confirmation and inspection of onions at Sacramento. Mr. Phillippi wrote defendant's representative R. W. Faulkner, at Sacramento, concerning this carload of onions, as follows:
“Out of Brooks, Oregon, yesterday, the 28th, containing 311 bags, weight 31710 lbs., SFRD. 9758 for Wm. A. Curtis & Company, San Francisco. We understand the car is to be accepted in San Francisco, or rather Sacramento. We have but little doubt that the car will be accepted on account of the market being so. extremely high, we are forgetting about it. Incidentally, I wish that you and Mr. Myers could appreciate the trouble we have had getting this delivery. Naturally, the growers being offered 2% to 3 cts., it is like pulling teeth especially when you are handling them for their account. There may be some sprouts on these onions upon their arrival, but this is the last car of good onions out of Brooks. * * As we have written Mr. Ross, there has been 8 or 10 cars of those Brooks onions cleaned up at extremely high prices.”
“Judges, in viewing evidence in civil cases, * * ought not to disregard well-authenticated facts which they know as men.”
Evidence of the market interdependence existing between San Francisco and Sacramento is of record. The law relating to the admissibility of such evidence is correctly declared in the case of Wemple v. Stewart, 22 Barb. (N. Y.) 159, as follows?
“Where there is no evidence of the value of the goods at the place of delivery, evidence is admissible of their value at other places in the neighborhood of the place of delivery, and also at distant places where there is a market for the same articles, in connection with proof of the expense of transportation between such places and the place of delivery: 5 Denio, 56; 8 Wend. 435; 7 Barb. (N. Y.) 18. It is only where the evidence is clear and explicit as to the value of the article at the place of delivery, that evidence of value at other places is inadmissible: 8 Wend. 436.”
“Where the value of personal property cannot he fixed by the proof of local markets, it may be done by proof of value at the nearest point where similar property is bought and sold, with proper addition or deduction for costs of transportation and the hazard and expense incident thereto, according as the property is held for sale or for use.”
Abbott says:
“Evidence of the price at places not distant or in other controlling markets may be given, not for the purpose of establishing the market price of such other place, but for the purpose of showing indirectly, in the absence of direct evidence, the market price at the place of delivery; and hence, in connection with the market value at other places, evidence of the expense of transportation between such places is relevant”: 1 Abbott’s Trial Evidence (3 ed.), 808, 809. Also, see Bump v. Cooper, 20 Or. 527 (26 Pac. 848).
The court properly denied the motion for a directed verdict.
In the case at bar the court covered the points of the case as made by the pleadings and proof, and did not commit reversible error in refusing defendant’s request for additional instructions.
“Upon an appeal from a judgment, the same * * shall only he reversed or modified for errors substantially affecting the rights of the appellant”: Or. L. 556.
This case is affirmed. Affirmed.