Lead Opinion
PEE CUEIAM.
This is a motion to dismiss the appeal. On the twentieth day of February, 1925, the Circuit Court granted the appellant until April 1, 1925, within which to file its transcript. On the thirty-first day of March, 1925, another order was granted extending the time to and including May 1, 1925, within which to file the transcript. The motion calls attention to the fact that there was another order extending the time to June 1, 1925, but that such order was not filed in the office of the clerk of the Circuit Court of Jackson County, Oregon, or otherwise, until May 13, 1925, and therefore it never became effective. The order which was made on April 28, 1925, bears the filing mark of May 13, 1925, and therefore, upon the face of it, it would appear that the appellant is out of court; but the appellant’s counsel presents his own affidavit to the effect that on April 28, 1925, he made a special trip to Grants Pass, procured the order on that date, and presented it to the clerk, who received it for filing. If it was actually presented to the clerk on the twenty-eighth day of April, 1925, for filing and received by her for that purpose, it will be taken to have been so filed, even though the filing mark was not placed upon it at the time.
*75 The affidavit of counsel for the appellant is clear and emphatic that he procured the order on the twenty-eighth day of April, 1925, and actually presented it to the clerk for filing on that date. The affidavit of the clerk is to the effect that business in the office is very much congested and that there is an insufficient number of deputies in the office; that it might have been placed among the files of the case on the same day as the date it bears and inadvertently mislaid on the desk and the file-mark placed on it as May 13, 1925, through inadvertence.
The affidavit of Mattie Stevens, deputy clerk, is to the same effect, stating that there is great congestion in the clerk’s office with few limited conveniences for the conduct of the office and for the care of instruments that are presented; that often instruments and orders are mislaid; that it is entirely possible and probable that the particular order referred to in this case was, through inadvertence, mislaid at the time it was presented at the office without being formally filed; and that when asked to certify to the transcript, possibly at said time the order may have been found among the files and the filing mark then placed upon it as of the date when it was discovered. She states, however, that there is upon the order, inserted in the filing mark the words ££Apri.-28,” in the handwriting of another deputy.
In view of the affidavit of appellant’s counsel and the admissions by the authorities in the clerk’s office, and the possibility and probability of such a mistake having been made, we are inclined to hold that the order was actually presented to the clerk for filing and placed in her custody on the twenty-eighth day of April, 1925, as would seem the natural thing for ap *76 pellant’s counsel to have done after having taken the pains to make a special trip to an adjoining county in order to have it signed by the judge.
The motion to dismiss will be overruled.
Motion Overruled.
Addendum
On the Merits.
(
After the testimony of Mr. Cripps, secretary of the plaintiff, to the effect that Mr. Barr, defendant’s representative, had agreed not only that he would put the fruit in cold storage in Portland, hut would use every precaution to see that the pears arrived in marketable condition, counsel for plaintiff *83 moved to amend its complaint so as to allege that the defendant agreed not only to place the pears in cold storage upon their arrival in Portland, but also in addition agreed to use every precaution so that they would arrive in London in marketable condition. Counsel for defendant offered to accede to the motion of plaintiff, if plaintiff would consent that defendant withdraw the admission in its answer, to the effect that the pears were in excellent condition for the shipment to London when they arrived in Portland. Counsel for plaintiff declined to do this, and the court denied plaintiff’s motion to amend the complaint. Plaintiff assigns this ruling as error.
It is a well-settled rule in this state that the granting or the refusing to grant permission to amend a complaint during the course of the trial is a matter addressed to the discretion of the court and such discretion will not be reviewed except in case of its abuse:
Longfellow
v.
Huffman,
The proposed amendment to the complaint was not reduced to writing and it is difficult to determine just what it was intended to embrace. The offer to allege that the defendant agreed to use every precaution so that the pears would arrive in London in marketable condition, without any allegation as to wherein the defendants failed to use every precaution tending toward that event, would not, as far as we can see, add to the issues in the case. It is a statement too general for an allegation of the pleading, and the trial court evidently considered that the officers of the defendant were not in attendance upon the trial and had no notice of such an issue, as the amendment suggested, or any fair opportunity to meet the same. *84 We cannot say that the court erred or abused its discretion in the matter.
In order to avoid a misunderstanding it may be well to refer to a few general rules of law:
It was the duty of the defendant as a commission merchant, or factor, to whom the pears were consigned by the plaintiff, to transact the business of its principal in good faith, in accordance with the general usage and custom of the place in which he acts, unless he receives positive instructions to the contrary.
Subject to certain qualifications and exceptions, such as in case of an emergency, it is a well-settled general rule that a factor is bound faithfully to follow the directions of his principal, and that he will be liable to his principal for such loss and injury which may result from his failure to do so. Where a factor uses reasonable diligence to comply with his instructions and without any fault on his part is unable to do so, he is not liable to his principal for a failure to carry out the instructions. Inability to comply with such instructions will not justify a departure therefrom, except to the extent that it is justified by custom or usage, or by the emergencies of the particular case. Where by some sudden emergency or intervening necessity, or other unexpected event, it becomes impossible for the factor to comply with the exact terms of his instructions, he is not liable if in good faith he departs therefrom, although such departure turns out to the disadvantage of his principal. It is the duty of a factor to inform his principal of all facts and circumstances, relating to the consignment, which may make it necessary for the principal to take measures for the pro *85 tection of his interests. It is the duty of a factor, in the absence of instructions, to care for and protect the goods which have been consigned to him with a reasonable degree of prudence and diligence, that is, such care as a reasonably prudent man would take of his own property in a similar situation. Where a consignment is made without instructions, and the factor fails to exercise reasonable prudence and diligence in earing for the goods, he is liable for any loss or injury that results therefrom: 25 C. J., p. 357 et seq., §§ 32, 36, 38, 39, 43, 44.
Plaintiff assigns error in regard to the instructions given by the court to the jury and also requested a large number of instructions to the jury, many of which were covered by the charge given by the court. Plaintiff assigns error in the refusal to give requested instructions which were not given.
It will be noticed that the complaint is based upon the failure of the defendant to carry out the contract alleged, in regard to putting the pears in cold storage. After referring to the issues and the alleged contract, the court charged the jury as follows:
“If you find from the evidence that the loss of the fruit was due to the failure of the defendant, under such contract, to place the fruit in cold storage at Portland, Oregon, then you will find a verdict for the plaintiff for the amount prayed for in its complaint, to wit: $1,328.75. * * ”
Each of the parties at the trial of the cause gave their version of all that was said or done in relation to the consignment and shipment of the pears and the care that was bestowed upon them after they arrived in Portland, and expert testimony was introduced as to the effect it would have upon pears in putting them *86 into cold storage for a short time and then taking them ont.
There was something in the nature of an emergency existing in Portland when these pears arrived there late in the evening on Saturday and there was no cold storage facilities at the dock, or within about ten miles distance therefrom; and we think that the jury was competent to decide from the evidence under the instructions of the court, whether the loss of the fruit was due to the fault of defendant in failing to place it in cold storage at Portland or not. It is very doubtful if the jury believed from the evidence that the pears would have arrived in London in marketable condition, if they had been placed in cold storage in Portland, as the fruit was on the voyage from Portland to London for about seven weeks, after having been shipped during warm weather from Med-ford to Portland in common cars without refrigeration.
The plaintiff complains of an instruction of the court to the jury, to the effect, that if they found the contract was made between the parties on September 8, 1922, for the shipment of these pears and that at a later time either party made to the other a statement of his understanding of the terms of the contract, which statement was acquiesced in by the other party, the parties could in that manner modify the original agreement. The plaintiff contends that there was no evidence upon which to base such instruction.
This condition takes us to the question of the submission of all of the testimony relating to the preparation for, and the handling of the pears in Portland, which was minutely detailed in correspondence be *87 tween the defendant and Johnson, the forwarding agent, and as the testimony on behalf of defendant indicated, was submitted to the agent of the plaintiff in due time and he then made no objection thereto. The court by its instruction placed the whole of the testimony relating to the details and the conduct of the parties in shipping and caring for the pears before the jury, and we think properly so.
The plaintiff complains of the failure of the court to give requested instruction to the purport, “that the defendant in this case was bound to exercise that degree of diligence, in the care of the fruit, which the nature of its employment makes it reasonable to be expected.” And the want or failure to exercise such care and attention by the defendant is negligence, and if it causes loss then the party guilty of such negligence is liable for the full amount of such loss as the proximate result of such negligence.
The plaintiff was not entitled to the requested0 instruction for two reasons: First, the requested instruction is a departure from the issues made in the case; second, it wholly leaves out the question of whether or not the defendant followed the instructions of the plaintiff in the matter of caring for the pears, and does not apply to the negligence as to lack of cold storage only but to any negligence that might be thought of.
The plaintiff also requested the court to charge the jury, to the effect that if the ripening of such fruit, if they found from the evidence the fruit ripened while on the docks, could have been prevented by placing the same in cold storage at Portland, Oregon, and that placing the same in cold storage was reasonably necessary to prevent the ripening of the fruit *88 and the loss of the same, then it was the duty of the defendant, irrespective of any contract, to place the fruit in cold storage in order to preserve it for shipment to London. We repeat, there was no allegation in the complaint that the defendant failed to exercise reasonable care and prudence in caring for the pears, or that the exercise of reasonable care and precaution wonld have required the pears to be placed in cold storage in Portland. The charge, as requested, would warrant the jury in speculating afterward, as to what would have been the result of placing the fruit in cold storage, instead of finding from the testimony what the plaintiff’s agent should have done under the circumstances existing at the time, acting as a reasonably prudent man, and would have permitted the jury to find that it was the duty of the defendant to place the fruit in cold storage irrespective of any contract, and contrary to the instructions of the plaintiff, not to put the fruit in cold storage at Portland.
The instruction requested would not fairly submit the issues made by the pleadings to the jury, or the question developed by the evidence, and was properly refused.
We think the charge given by the court to the jury, read as a whole, fairly submitted the cause to the jury for their consideration. The charge given, referring to the contract between the parties, was due to the invitation and allegation of the plaintiff in its complaint in basing its cause of action upon a breach’ of the contract.
The jurors residing in a fruit country are better able to decide the question as to handling these pears than the court would likely be. The plaintiff com *89 plains that at the time the pears were loaded in the steamer they were not in suitable condition for shipment to London and that they should not have been shipped. Whether there was error of judgment in so shipping the pears is not made an issue in this case. The plaintiff’s complaint is not based upon that fact and the question is not before this court.
Finding no reversible error in the record, the judgment is affirmed.
Affirmed. Rehearing Denied.