Eaton v. Blackburn

Hr. JusTrcE Moore

delivered the opinion of the court.

1. M. S. Hughes, as plaintiffs witness, testified that he had managed a farm for 20 years; that he was familiar with the handling and selling of hay; and that he had minutely examined the hay in question, and was asked:

■'“Have you seen and observed hay selling in the market here iu Baker City this winter; do you know the kind of hay that is sold here by the stores?”

He answered:

“Yes; I have.”

Q. “State whether or not this hay you saw there is considered as marketable hay here in Baker City, compared with other kind that is sold here ?”

An objection to this question on the ground that it was incompetent, irrelevant and immaterial, and that the witness had not shown himself qualified, having been sustained, an excep *24 tion was saved and it is contended by plaintiff’s counsel that an error was thereby committed. It is argued by defendants’ counsel, however, that the question asked does not indicate who, if any person, “considered” the hay marketable; that an answer to the question would have permitted a comparison of the hay shipped with other hay claimed to have been sold in various places without attempting to show that such other hay was marketable, thereby permitting the witness to speculate as to what he believed other persons thought of the hay and excluding his own knowledge in relation thereto; and that no statement was made by plaintiff’s counsel of what he expected to prove by the witness; and hence no error was committed as alleged. The object of stating what fact is expected to be proved by a witness Avho is not permitted to answer a question is to advise the court thereof, so as to enable it to determine whether or not the testimony offered is relevant and material: Stanley v. Smith, 15 Or. 505 ( 16 Pac. 174 ); State v. Savage, 36 Or. 191 ( 60 Pac. 610 , 61 Pac. 1128 ). When the answer sought, however, is reasonably inferable from the question asked, it is not necessary to state what testimony is thus expected: Beers v. Aylsworth, 41 Or. 251 ( 69 Pac. 1025 ). The court was sufficiently advised, from the question asked, to determine whether or not the answer sought was material and relevant, and, this being so, plaintiff’s counsel was not required to state what the witness Avould say in response to the inquiry.

2. The defendants allege 'in their ansAver that the plaintiff agreed to sell to them good, No. 1, merchantable hay. The reply denies that the hay delivered Avas not good or merchantable, and further controverts all other allegations of new matter in the answer. This is equivalent to denying that plaintiff stipulated to sell No. 1 hay. As a witness in his OAvn behalf, he testified that the hay shipped to the defendants was mixed timothy that Avas good for feeding stock, but not first-class because it was bleached. This declaration under oath tended to show that the hay was “good” and the plaintiff had the right further to prove that it was “merchantable” — that is, salable in the market *25 because of its fitness to feed stock (Wood v. United States, 11 Ct. Cl. 680 ) — and thus confine the proof to the issue for which he contended.

3. An examination of the question to which objection was made will show that Hughes was asked to state whether or not the hay which the plaintiff shipped to the defendants was considered as “marketable” at Baker City when compared with the kind of hay which he knew had been sold therein in the winter of 1905-06. It will be remembered that the answer alleges that the plaintiff agreed to sell “merchantable” hay, and that the question adverted to specifies “marketable” hay. One of the definitions given in Webster’s International Dictionary of the word “marketable” is: “Wanted by purchasers; salable.” So that the term used in the question is sufficiently synonymous with the word “merchantable” as used in the answer to limit the inquiry to the issue. True, the witness was not asked to declare who “considered” the hay marketable, but it is reasonably to be deduced from the context of the question that it was so deemed by himself, and, inferentially, by the persons who purchased the kind of hay he had seen sold in Baker City that winter. Hughes’ examination disclosed that lie was qualified to testify in relation to the question asked, in refusing to permit him to answer which, we think, an error was committed, and, this being so, the judgment is reversed, and a new trial ordered. Reversed.