Wade v. Amalgamated Sugar Co.

132 P. 710 | Or. | 1913

Mr. Justice Burnett

delivered the opinion of the court.

1. It is claimed by the defendant that the court erred in admitting evidence of the opinions of witnesses who claimed they were skilled farmers and who testified that it would cost from $10 to $12 per acre to exterminate the weeds and put the land in good condition. The defendant contends that this establishes the expense as the measure of damages. We do not understand from the record that the court declared that to be the measure of damages, but that the testimony was admitted as tending to illustrate the situation whereby the jury might determine, using that as one element of their consideration, what would fairly compensate the plaintiff for the injuries suffered, if the same should be proven. The ultimate object to be attained is compensation for the damage resulting from a violation of the cpntract. What would be the reasonable cost of restoring the property to its original state is one element which would be entitled to consideration by the jury, and we think no error was committed in receiving this testimony.

2. The second error is predicated upon the admission of declarations of one whom the plaintiff claims was the agent of the defendant. The lease was for a term of three years, and the grievance complained of happened, if at all, in the third year of the term. The plaintiff testified that the lease was made by Mr. Bramwell as manager, but that he did not manage the business during the last year of .the term; that during the autumn of that year Bramwell. said he was managing the company’s business in Wallowa County, but one Kerr had been superintending for him there. The witness then, in response to questions, testified to what Bramwell said about Kerr’s connection with the company, including the latter’s agency, and afterward testified that Bramwell said that a man named Eckles put Kerr in as managing the business. The plaintiff then further testified to what Kerr said about sowing the seed long after it had been sown. In brief, we have the declarations of Bramwell that he, himself, was agent, and based upon this the testimony is admitted to show what Bramwell said about what Eckles did in appointing Kerr as agent of the company, and upon this foundation is admitted the declarations of Kerr against the defendant. In Harding v. Oregon-Idaho Co., 57 Or. 34 (110 Pac. 412) it is held that: “The authority of the agent cannot be shown by the alleged agent’s own statement or acts unless it be shown that the principal knowingly acquiesced therein.” The authorities are there collated by Mr. Justice Slater.

3. Moreover, there is no showing of the extent of the authority conferred upon Bramwell or Eckles or Kerr, if in fact either of them was the agent of the defendant company. The declarations imputed to the so-called agent were made long after the sowing of the foul seed mentioned in the complaint and were narratives of past occurrences. Such declarations are not admissible in evidence unless it shall appear that at the time the agent was authorized to make the admission against the interest of the party against whom they are offered: Adkins v. Monmouth, 41 Or. 266 (68 Pac. 737); Alden v. Grande Ronde Lumber Co., 46 Or. 593 (81 Pac. 385). There was no sufficient foundation laid for the introduction of the declarations of the alleged agents of the company.

4. The only remaining error assigned is that the court refused to allow the jury to have a view of the premises where the seed is said to have been sown to determine from the stubble whether foul plants had grown there. Section 133, L. O. L., provides that: “Whenever, in the opinion of the court, it is proper that the jury should have a view of real property which is the subject of the litigation, or of the place in which any material fact occurred, it may order the jury to be conducted in a body in the custody of a proper officer, to the place, which shall be shown to them by the judge or by a person appointed by the court for that purpose. * * ” By the terms of this statute it is within the discretion of the court to allow the jury to view the premises or not, and we cannot see that the court abused this discretion. There was no error in the refusal of the view of the premises.

However, for the error in admitting the declarations of the alleged agents on the showing made, the judgment must be reversed, and it is so ordered.

Reversed.