Dеfendant contends that there was no competent testimony to show that Mrs. Green interfered with or prevented plaintiff from digging the potatoes at the proper season. With this we are unable to agrеe. We think the testimony tended to show that both her husband, Mr. Green, and Mr. Gibbons were acting on her behalf in the matter. As plaintiff testified, Mr. Green was present with Mrs. Green and plaintiff and took part in the negotiations for the lеase and showed plaintiff the land. Plaintiff dealt with the two Greens. After plaintiff’s helpers had been prevented from digging the potatoes by Gibbons, Mrs. Green’s employee, Laam.went
An agency when once proved may be presumed to continue until it is shown to be terminated: McLeod v. Despain,
Twice plaintiff was forbidden by Gibbons and Mr. Green to harvest the crop, and, as Mrs. Green held the chattel mortgage the terms of which she claimed had been broken, plaintiff could reasonably do nothing else but submit to her dominion over the property. The trial court, however, withdrew the consideration of the statements of Mr. Green from the jury, for the reason that his agency was not sufficiently proven.
Defendant proceeded to take possession of the crop according to the terms of her mortgage and to harvest the same or а portion thereof. The trial court instructed the jury to the effect that if Mrs. Green failed to dig the crop of potatoes carefully and in a husbandlike manner she was liable for such lack of care. Considerable testimony was introduced as to the amount of the crop raised on the land which was not harvested. Defendant complains for the reason that plaintiff’s witness Morris was permitted in his testimony to estimаte the crop grown on the 20-acre tract that season. Mr. Morris owned similar land adjoining the rented land, was acquainted with the land upon which the crop was raised and saw it frequently during the season of 1919. He hаd been a farmer for a number of years, and he raised a crop of potatoes on his adjoining land that same year. A portion of the crop not having been har
“Where the witness has had the means of personal observation, and the facts and circumstances which led the mind of the witness to a conclusion are incapable of being detailed and described so as to enable anyоne but the observer himself to form an intelligent conclusion from them, the witness may be allowed to add his opinion or the conclusion of his mind. ’ ’
The trial court properly ruled that the evidence offered was the best obtainable. The qualification of a witness to express an opinion is for the trial judge to determine, and will not be disturbed on appeal except for abuse of discretion: Multnomah County v. Towing Co.,
The weight of the testimоny is for the jury to determine: 11 R. C. L., p. 574, § 7.
Over defendant’s objection the court admitted in evidence the amended answer of defendant. A second amеnded answer was filed in the case. Therefore the first amended answer ceased to be a part of the record. The first amended answer was competent to show the taking possession of a portion of the crop under the terms. of the chattel mortgage which had been broken, according to the allegations contained therein. We fail to see any difference in this pleading admitted in evidence, and the second amended answer ■ on file in the case which the jury had a right to inspect and consider. There was no error in admitting such testimony.
The chattel mortgage introduced in evidence by the defendant provided that in case of default it should be foreclosed in the manner provided by law for foreclosure of chattel mortgages which do not within themselves provide their own method of foreclosure and the consideration of which is. less than $500. The defendant in her answer pleads the chattel mortgage on the crop, and that the conditions thereof had been broken by the plaintiff by a sale of some of the potatoes, but further claims that she
The statute provides that when the leasing or occupаtion is for the purpose of farming or agriculture the tenant or person in possession shall, after the termination of such lease or occupancy, have free access to the premises to cultivate and harvest or gather any crop or produce of the soil planted or sown by him before the service of notice to quit: Section 2436, Or. L.; Hostetler v. Eccles,
The defendant, when she accepted the chattel mortgage bound herself to foreclose in a lawful manner just as strictly as the plaintiff, mortgagor, bound himself to keep the covenants of the mortgage. Possession may be taken only in the manner provided by the terms of the mortgage itself or as provided by
When the mortgagee of chattels after condition broken secures possession of the mortgaged property the mortgagor’s title is not extinguished, but сontinues until the lien is foreclosed strictly according to the terms of the mortgage or in the manner provided by law: Backhaus v. Buells,
A conversion of a part of a chattel is a conversion of the whole when the circumstances evince a purpose to control or dispose of the whole of it: 38 Cyc. 2019.
The general rule for the measure of damages in an action by a mortgagor against a mortgagee for a conversion of the mortgaged property is the difference between the market value of the рroperty at the time of the conversion and the amount of the mortgage debt: Springer v. Jenkins,
The testimony submitted on behalf of plaintiff, although disputed by defendant, was sufficient to take the case to the jury, and there was no error in denying the motion for a nonsuit and the motion for a directed verdict.
Over the objection and exception of defendant the сourt correctly instructed the jury in accordance with the law above referred to. The court further charged the jury as follows:
“Before I proceed, I might state in reference to the employmеnt of this Mr. Gibbons that upon entering the premises to carry out the services for which he was hired by Mrs. Green he became in duty bound to exercise care in the same manner as good husbandry would require in such cases to dig the potatoes and to save the crop.”
Defendant predicates error upon the failure of the court to instruct the jury that “the burden of proof to establish his case is upon the plaintiff.” Thе court fairly submitted to the jury the issues raised. A portion of plaintiff’s case was set forth in defendant’s answer and it was not error to refuse to require plaintiff to bear the burden of proving facts admitted by defendant. Exсeptions were taken by defendant to all of the instructions.
After a careful examination of the record we find no prejudicial error therein. The main question in controversy in regard to the harvesting of the crop of potatoes was peculiarly for the jury. Two verdicts have been rendered favorable to plaintiff.
The judgment of the trial court is affirmed.
Affirmed. Rehearing Denied.