190 P. 151 | Or. | 1920
There was testimony to the effect that the wheat in question was grown on the farm of Luther Hind-man, and that it was stored in the defendant’s warehouse in a separate pile in sacks. The plaintiff called one Smith as a witness, asked him if he sowed any grain “this spring,” which being answered affirmatively, this question was propounded: “Upon your land — where did you get the seed?” The defendant’s objection that this question was immaterial was sustained. The plaintiff then made this offer of proof:
“I want to know where he got the wheat, to be followed by the question what kind of wheat it was, expecting to prove that he got it from the Elgin Warehouse Company; that he ordered Eed Chaff club wheat and sowed it as such, and that it sprouted up above' the ground, and there it died — ■ failing to produce a crop.”
On the other hand, in support of its case the defendant produced the testimony of witnesses to the effect that they got some of this same Hindman wheat which they sowed during the season of 1919, .and that it produced Eed Chaff club wheat.
“In all cases of this sort, very much must necessarily be left to the discretion of the trial court; but when it appears that the experiment or demonstra*408 tion has been made under conditions similar to those existing in the case at issue, its discretion ought not to be interfered .with. ”
“That the court erred in overruling the plaintiff’s objection to the question propounded by the defendant to the witness Harlan Huffman, as to how the warehouse company paid Hindman for the wheat sold by him to the warehouse ■ company. ”
Huffman was the foreman or manager of the defendant’s warehouse. The object of his testimony was to show that he purchased the wheat from Hind-man for the account of Kerr-Gifford Company, and it was permissible for him to narrate the manner in which the purchase was made.
“Submission of the particular question of fact to be answered by the jury in addition to their general verdict in the case at bar was a matter wholly within the discretion of the trial court, and will not be reviewed on appeal”: citing Swift v. Mulkey, 14 Or. 59 (12 Pac. 76); Knahtla v. Oregon Short Line R. Co., 21 Or. 136 (27 Pac. 91); Wild v. Oregon Short Line R. Co., 21 Or. 159 (27 Pac. 954); White v. White, 34 Or. 141 (50 Pac. 801, 55 Pac. 645); Palmer v. Portland R. L. & P. Co., 62 Or. 539 (125 Pac. 840).
“When a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter and the' court shall give judgment accordingly.”
The plain import of this section is that the general verdict must prevail unless the special finding of fact shall be inconsistent therewith. The jury might well have found in this case, as indicated by its special verdict, that the defendant dealt with the wheat in question as its own without revealing to the plaintiff that the property was that of another; and, notwithstanding all this, might have found that the defendant made no warranty respecting -the variety of the wheat or its fitness for seed.
“Q. You don’t remember him saying anything about that — that he did not have seed wheat for sale?
“A. Oh, well; now I know well enough they wouldn’t sell me what you would call seed wheat, if I had went, there to buy seed wheat. I would*411 have had to take it to the mill and had it cleaned. _ I went there to buy some spring wheat that was suitable for seed wheat. If it had oats, wild oats, in it, I expected to take it to the mill just as I did and have it taken out, and have it prepared for seed.
“Q. You knew they were not selling you (seed wheat?
“A. Well, I knew they were not selling it under the seed law.
“Q. And that they were not guaranteeing it as seed wheat, didn’t you?
“A: All I know, I went there and asked him if he had any little club, and he said he had none. I went there with the -expectation of taking my chances on the wheat as to whether it would grow or not — as to wkethér it was clean or not. I was going to avail myself of that, after I had this talk with him and have it cleaned; and when he said he didn’t have any little club, but he said he had some Bed Chaff club there that would be suitable for spring seed— spring wheat, that is.
“Q. You are familiar with the business of the Elgin Warehouse Company, and they told you they would not sell, or guarantee any wheat, seed wheat?
“A. I knew that they would not guarantee any wheat for seed under the laws of the state, what the law requires them to go through in order to sell seed wheat.
“Q. So you figured you were taking a large chance on your end of it, didn’t you?
“A. Yes, I had bought seed wheat there before.”
The jury was justified in believing that there was no warranty of the quality or variety of the wheat. It is instructive to consider the doctrine of Barnard v. Kellogg, 10 Wall. 388 (19 L. Ed. 987, see, also, Rose’s U. S. Notes), quoted thus by Mr. Justice Lord in Morse v. Union Stock Yard Co., 21 Or. 289 (28 Pac. 2, 14 L. R. A. 157); 34 Cent. L. J. 153:
“ ‘No principle of the common law,’ said Mr. Justice Davis, ‘has been better established, or more*412 often affirmed, both in this country and in England, than that in sales of personal property, in the absence of an express warranty, where the buyer has an opportunity to inspect the goods, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies.’ ”