Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-13
Ayer '. Moon, TIIIamOok Counts.
Declded. October 8. 1911.

/ OeClueu, OClOOeE D. lJll.
E. R. Aver, respondent, V. Seth F.
Moon, appellant. Appeal from the
circuit court for Tillamook county.
The Hon. VIM. Galloway, judge. Ar
gued and submitted Sept. ~, 1911.
] H. T. Bolts, for appellant Talmage
& Johnson, on brief, for respondent
| Eakin, c. ]. Affirmed.
This is an action to recover money.
The complaint alleges the delivery
of a certain quantity of milk to de-
/ fendant upon the express agreement
/ that he would manufacture the same
into cheese, sell it at market value
and pay such market value to plain
tiff after it was sold; that there were
| 129417 pounds of cheese manufac-
tured and sold at 14lsc per pound
viz: S16S.51, no part of which price
! has been paid to plaintiff,
The answer denies the agreement
as set forth in the complaint but al
/ leges that defendant agreed to man
ufacture the milk into cheese and to
| sell the same at market value, and to
| pay plaintiff therefor when the money
| should be collected; and that defen-
1 dant was to be allowed two cents per
pound for his services, in addition to
the expense of boxes and freight;
that $50 pounds of cheese, so manu-
/ factured, were sold to the Oregon
Cheese Company the price of which
has not been collected. An issue,
not involved in this appeal, as to the
amount of money paid by defendant
on the contract, is also raised by the
answer,
The bill of exceptions states that
| plaintiff gave positive evidence tend
ing to prove every allegation of the
| complaint, and that defendant like
wise gave positive evidence tending
to prove every allegation of the an
swer.
Upon the trial defendant requested
the court to give the following in
struction: "Unless you find from the
evidence that the defendant expressly
agreed with plaintiff that defendant
would be personally responsible to
plaintiff for the price of cheese sold
by defendant for plaintiff, whether
or not the defendant collected said
price, then you should not find
against the defendant for the price of
any cheese sold by him for plaintiff
and not collected by defendant" "
which the court refused to give The
bill of exceptions states that the
court gave the jury oral instructions
upon the issues made by the evidence
and the pleadings.
There was verdict in favor of
plaintiff for the full amount sued for,
and judgment was rendered thereon.
Thereafter $1,000 of the Judgment
was remitted by plaintiff and cred
tied upon the judgment to cover
plaintiffs commission and expense of
boxes and freight. Defendant ap-
peals.
Eakin, c. ]. The only alleged error
requiring consideration at this time
is the refusal of the court to give the
instruction requested by the defen-
dant. There was an issue rendered
by the complaint and answer as to
whether defendant was to pay to
plaintiff the market value of the
cheese when sold at all events or
only when the price thereof was col
lected by him. The bill of exceptions
states that there was positive testi-
mony that by the agreement such a
payment was to be made only when
the price should be collected by de-
fendant. This was defendants the
ory of the case and he was entitled
to have it presented to the jury in a
proper instruction, as stated in the
one requested. Plaintiff does not
question the applicability of the in
struction but says, that, if it was ap-
plicable, the court gave oral instruc-
tions upon the issues made by the
evidence and pleadings, and that the
requested instruction will be pre-
sumed to have been included therein.
The rule is that error will not be
presumed and if an instruction asked,
which correctly states the law, is re-
fused, 1t is the duty of appellant to
show by the bill of exceptions that
no instruction was given embodying
1t, or set out in the bill of exceptions
all the Instructions given by the
court, that it may appear whether
the refusal to give the instruction
was error.
The bill of exceptions states that
the court gave the jury oral instruc-
tions upon the issues made by the
evidence and pleadings, but such in
structions are not contained in the
record. In Davis v. Pogue, 18 Or, "a,
SO, Mr.. Justice Thayer says: ut
seems to be that it is the better rule
to require counsel to bring here the
instructions which the court did give,
or have the bill of exceptions state
what instructions were given, If any,
in reference to the matter covered by
the instructions asked and refused,
before they are allowed to complain
in consequence of such refusal"
In that case Mr.. Justice Lord sug-
gests that the above rule ought to be
confined to cases where the instruc-
tions given are written, but he re-
frains from deciding the question.
However. any difficulty arising from
the fact that the instructions are
oral would be easily avoided by a
statement in the bill of exceptions of
what was said by the instructions
given upon the matter covered by the
one asked, or that it was not includ-
ed in any oral instruction. The rule
stated by Justice Thayer seems to be
general See Moody v. Railroad Co.,