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act, or of distinguishing between right and charged, if you so find he did the act charged, wrong in relation to such act. It is not every and had sufficient reason and understanding to eccentricity of mind, however well established, know the nature, quality, and consequences of that will excuse the commission of an act oth the act he was doing, and to distinguish beerwise criminal.

tween right and wrong in relation to that act "If a party, notwithstanding some mental dis as I have heretofore defined it to you. ease or infirmity, still has reason enough to | “There have been a number of witnesses callknow the act which he proposes to commit ised to testify as medical experts to give their wrong and unlawful, knows the nature and qual- opinion, based upon hypothetical questions proity of the act, has the power of deliberation and pounded to them, and in that regard I instruct premeditation, the power to do or refrain from you that, before the opinions of such witnesses doing the act charged as a crime, such mental have any value whatever in determining the disease or infirmity will not avail as a defense. sanity or insanity of the defendant, or his In other words, while the law will not punish want of mental capacity, you must first find a person for an act which is the result of or that the hypothetical facts upon which such produced by mental disease or infirmity, it will opinions are based are true, and, if you find punish him for an unlawful act not the result them to be true, then you must consider such of or produced by or influenced by mental dis- opinions in connection with all of the other tes. ease, even though some mental unsoundness or timony in the case, and give to such opinions infirmity is shown to have existed. In its legal such weight and credit as you believe they are sense, insanity is a defect or disease of the entitled to receive. mind which renders a person incapable of en "The law of this state permits intimate actertaining a criminal intent.

quaintances to give their opinion concerning the "The law recognizes partial as well as gener

mental sanity of the accused, but they must al insanity-that is, that a person may be in

give their reasons for such opinion. All of the sane upon one or more subjects, and sane upon evidence introduced on the part of the defense others-but the same rule applies to both kinds

bearing upon the mental sanity of the defendof insanity. Whether insanity be general or

ant, giving defendant's actions, conduct, and appartial, the defendant must have been mentally

pearance before, at the time of, and after the diseased to such a degree that his reason was de- alleged homicide, and the circumstances of the throned at the time of the commission of the act alleged killing. in connection with all other tescomplained of. When reason ceases to have timony, is with a view of determining his mendominion over the mind proved to be diseased, tal sanity at the time of the alleged killing of a person reaches a degree of insanity where | William Dennis Russell. criminal responsibility, for the purpose of pun- ! "If. after an entire consideration of the eviishment, would no longer exist. The question Idence in this case, you are satisfied beyond a of insanity bas exclusive reference to the acts reasonable doubt that at the time of the comwith which the defendant is charged at the time

mission of the act charged in the indictment, of its commission, and it is his mental capacity

mental capacity | if it was so committed, as therein alleged, the at that time which the jury must determine.

ch the jury must determine defendant was laboring under a defect or disAfter all is said, the test of legal insanity is

ease of the mind which dethroned his reason, this: Did the defendant at the time of the

rendered him incapable of understanding or apkilling, if you believe from the evidence beyond

preciating the extent, nature, quality, and cona reasonable doubt that he did kill William Den

sequence of the act he was committing, or that nis Russell in the manner and form charged in by reason of mental disease he was unable to the indictment, know what he was doing, and distinguish between right and wrong in relathat he was doing wrong? If he did know what tion to such act, he should be acquitted on the he was doing, and that it was wrong, he was grounds of insanity, and, if you should find him legally sane, and amenable to the law. If he not guilty upon the ground of insanity, you did not know that what he was doing was must state that fact in your verdict." wrong, he was legally insane, and is excused from the commission of the act, and, in deter

· [12] This corers all phases of the question mining whether or not he was legally insane, of insanity as a defense and of the evidence you should accept the definition of legal in-necessary to establish it. It leaves the whole sanity which the court has just given you. matter to the jury upon all of the evidence,

"In this case evidence has been introduced re- l without selecting, as the request does, parlating to the mental capacity and condition of

ticular items of the evidence, and directing the defendant, Richard M. Brumfield, at the

the jury to consider them, a method always time William Dennis Russell is alleged to have been killed, and, if you are satisfied beyond a

objectionable and sometimes erroneous. The reasonable doubt that the defendant killed him

instruction upon this phase of the case taken in the manner and form alleged in the indict. as a whole, is admirable, and was quite as ment, or within the lesser degrees included favorable to the defendant as the law wartherein, then you are to consider the mental rants. capacity of the defendant at the time the homi- [13] It is last urged that there is no law cide is alleged to have been committed.

in this state authorizing the infliction of the "There is a legal presumption, gentlemen of | death penalty. This question was before this the jury, that a person intends the ordinary

court since defendant's brief was filed, and consequences of his voluntary act. This is a disputable presumption, and may be controvert

was decided adversely to defendant's contened or overcome by evidence, and, so far as the

tion. State v. Rathie (Or.) 199 Pac. 169; Ex capacity to form a criminal intent is concerned. / parte Kerby (Or.) 205 Pac. 279. it is sufficient to hold the defendant responsible Finding no reversible error in the record, under this indictment when he did the act the judgment is affirmed.

(209 P.)

: , accepted as a complete performance, not when F. C. AUSTIN Co., Inc., v. J, H. TILL. accepted under protest and objection that it .. MAN CO..

does not fulfill the contract. (Supreme Court of Oregon. July 25, 1922.)

7. Sales en 179(4)--If buyer keeps article de.

liyered or uses it inconsistently with seller's 1. Sales 426_Seller must deliver machine

ownership, without offering to rescind, seller

ownershin. without offering to`raer described before relying on buyer's failure to may recover contract price, less buyer's dam. return it.

ages, der a contract to deliver an asphalt , When the seller tenders an article unlike mixing plant as described on certain pages of that described in the contract, the buyer may the seller's catalogue, with certain changes in refuse to accept it or

| refuse to accept it, or return it within a reaspecifications as set forth in a letter from the sonable time after delivery and thereby rescind selle

s agent, the seller was obligated to de- the contract; but if he keeps it or uses it in liver a machine complying with such descrip- a manner inconsistent with the seller's ownertion before urging that the buyer was pre- ship, without rescinding or offering to rescind, cluded from claiming damages for a breach by the seller may recover the contract price less & provision for the return of the machine if the buyer's damages. defects developed which the seller was unable

8. Appeal and error e 1056(1)-Rejection of to remedy.

large pieces of stone alleged to have caused 2. Sales Cm 288(2)-Seller's delivery of article asphalt mixer to break down held not preju.

described not waived by buyer's failure to re dicial to seller in action for price. ject article delivered; where repudiation will

In an action for the price of an asphalt not afford complete remedy.

mixing plant, which frequently broke down and A condition precedent or warranty, impos- failed to produce the quantity of material waring on the seller the duty to deliver an article ranted, where plaintiff gave evidence that the like that described in the contract, is not waiv- breakdowns were due to the passage through ed by the buyer's failure to reject the article the machine of oversized particles of stone, rédelivered, when the contract is partly executed fusal to allow introduction of pieces of stone by him and he has been placed in a situation which a witness claimed he had seen pass where repudiation will not afford a complete through the machine was not prejudicial. remedy.

9. Appeal and error om 1058(1)-Exclusion of 3. Sales 426-Parties may provide exclu- testimony subsequently elicited not available. sive remedy of buyer for breach,

In an action for the price of an asphalt Parties to a contract for the sale of per- I mixer, which failed to produce the quantity of sonal property may stipulate the buyer's rem- material warranted, plaintiff could not complain edy in case of breach of warranty and make it

of the exclusion of testimony as to what effect exclusive.

wet material would have thereon, where the 4. Sales 426-Buyer agreeing to return prop witness and another later testified as to such

erty in case of breach cannot counterclaim effect.
for damages in seller's action for purchase Burnett, C. J., dissenting.
price.

Where the parties agree that, in case of Appeal from Circuit Court, Clatsop Counthe seller's breach of warranty, the buyer shall to.

ty; J. A. Eakin, Judge.

À Fakin Judge return the property and recover the purchase price, the buyer cannot counterclaim for dam- Action by the F. C. Austin Company, Inages in action for the purchase price, but will corporated, against the J. H. Tillman Combe confined to the remedy agreed on, unless he pany. Judgment for defendant, and plainhas tendered a return of the property and it | tiff appeals. Affirmed. has been refused; but, where the buyer's special remedy refers to particular breaches only, G, L. Buland, of Portland (Anderson & Sethe may sue for damages for breaches as to ters, of Astoria, on the brief), for appellant, which no special remedy is agreed on.

G. C. Fulton, of Astoria (Edw. C. Judd 5. Sales O 426–Requirement that buyer re- and G. C. & A. C. Fulton, all of Astoria, on

turn defective machine did not limit remedies the brief), for respondent. for failure to furnish machine described.

A provision, in a contract for the sale of MeCOURT, J. This is an action by the an asphalt mixing plant, that the buyer should plaintiff to recover a balance alleged to be return the machine and recover the freight du

due on the purchase price of an asphalt mixpaid if the seller was unable to remedy defects

ing plant delivered by plaintiff to defendant developed in testing the machine, did not restrict the buyer's remedies for the seller's fail

and used by it. Defendant by its answer deure to furnish a machine like that described. nied that plaintiff performed the terms and

conditions of the contract of sale necessary 6. Sales C 288(2)-Buyer's use of article un

to be kept and performed bŷ plaintiff before like that described in contract does not constitute waiver of performance by seller, where

it was entitled to recover the purchase price accepted under protest.

named in the contract of sale. Defendant The buyer's use of an article unlike that alleged affirmatively that the plant deliverdescribed in the contract constitutes a waiver ed was incomplete, defective, and old, and of performance by the seller only where it is was not the one described in the, contract,

For other cases see'same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and did not correspond to the description or 142 inches in thickness, upon a concrete base; specifications of the plant which plaintiff in order to lay such pavement with profit, agreed to furnish defendant, and was of in the same must be mixed by an asphalt mix. sufficient strength and capacity in many of er, of which there are several kinds manuits parts to do the work which plaintiff had factured; that plaintiff is a manufacturer represented and warranted it would do; of road machinery, including mixing plants that when the machine was assembled, it pro- for various kinds of pavement; a representtested and objected that the machine did not ative of plaintiff, knowing that defendant conform to the contract; that it was worth-had the contracts mentioned, solicited deless as then constructed, and that the failure fendant to purchase from plaintiff an asphalt of plaintiff to supply the plant contracted mixing plant with which to complete its confor was causing defendant large damages; tracts, representing that plaintiff manufacthat thereupon the plaintiff admitted that tured a plant entirely suitable to defendant's the plant was not as ordered, and undertook needs, one of which it had on hand at its to alter, enlarge, strengthen, and equip the factory in Chicago, Ill., ready for delivery, plant so that it would produce the quantity pursuant to which solicitation, defendant on of material daily which the plant plaintiff February 1, 1919, gave to plaintiff an order had contracted to furnish was warranted to in writing for an asphalt mixing plant as folproduce, in which undertaking plaintiff fail-lows: ed after efforts exerted by it for a period or “F. C. Austin Company, Inc., Chicago, Illimore than 40 days; that although defendant noiecentlemen.

nois-Gentlemen: Please enter order and ship had used upon its road contracts the materi

to our address, Astoria, Oregon, one Austin al produced by the machine while plaintiff portable asphalt mixing plant, as described on was endeavoring to make it conform to the pages No. 32 and 33 of your catalogue and for contract, and had used the machine to com which we agree to pay eighty-seven hundred plete its contracts after plaintiff had aban

dollars, f. o. b. Astoria, Oregon, payment to doned all attempts to rebuild the machine

be made in cash within ten days after plant and make it operate, it did so through neces

is in operation. And in accepting this order it

is with the understanding that you guarantee sity and in order to keep down its damages ; |

the outfit to be well made, of good material and and alleged further that it did not accept the

free from defects and should any defective part machine as corresponding to the require or parts develop in six months after arrival at ments or description in the contract, but un- destination you are to furnish the new part or der protest that it did not correspond or con- parts free f. o. b. your factory and you are to form to the contract, and with express reser- guarantee the machine when properly opervation of its right to claim such damages as at

sated capable of laying 750 to 1200 square yards defendant might suffer as a consequence of

up of 2" asphalt top in ten hours; you further

agree to send a man at your expense to put the the failure of the machine to correspond

machine in operation and teach us to operate with the contract.

it and stay with the outfit not less than two Defendant also alleged that it had suf

endant also alleged that it had sur weeks and we agree to notify you when we fered both general and special damages by are ready to have the machine put in operation, reason of such failure, and prayed that it said notice not to be longer than fifteen days have judgment therefor. A trial resulted in after machine arrives at destination, we to fura verdict and judgment in favor of the denish all the necessary help to operate the out. fendant in the sum of $10,145.47. Plaintiff

fit and all material including fuel.

"If for any cause, when testing the machine appeals.

| defects should develop, you are to have a reaNumerous errors are assigned, which are

are sonable length of time to remedy defect, but grouped and presented by plaintiff under limited to ninety days and if you are not able two propositions: (1) That the contract of to remedy the defect and make machine deliver sale provided a remedy in case of breach, to the amount of material as herein provided, we wit: A return of the machine and cancella- are to return the machine to you and the tion of the order, which was imperative and amount we have paid for freight from your not permissive in form, and the remedy thus ta

thus factory to Astoria, Oregon, is to be refunded provided was exclusive, and it was not op

and this order canceled.

| "Yours truly, The J. H. Tillman Company, tional with the defendant to pursue other by J. H. Tillman, Mgr. Hammond, Oregon, or remedies. (2) That plaintiff was entitled to 931 C. of C., Portland, Ore. [Signed] D. I. show in rebuttal, contrary to the ruling of Cooper, Sec. the trial court, that the asphalt mixer was "Witness: W. F. Looker substantially as warranted.

"Accepted: A summary of the evidence will assist in the determination of the questions thus pre

Concurrently with the execution of this sented. Deferidant had entered into three or order and as part thereof, the following writmore contracts with the county of Clatsop. / ing was addressed to the plaintiff by its repwhereby it had undertaken to construct about resentative and forwarded with the order four miles of paved roads, which improve-above set forth: ment included the laying of approximately "F. C. Austin Company, Inc., Chicago, Ill.36,685 square yards of asphalt top pavement, Gentlemen: On order for asphalt mixing plant (209 P.) from the J. H. Tillman Co. make the following, that prevented it from carrying out its conchanges:

struction contracts without incurring heavy "Omit air compressor but leave agitator pipes losses, plaintiff undertook to alter, add to, in kettle so that they may be connected to

to rebuild, and equip the machine so that it boiler if so desired and substitute Kinney or

would operate in such a manner as to proany other good asphalt pump and pipe so that pump agitates or delivers to mixer controlled

duce the quantity and quality of material by three way valve on operating platform piping which the machine contracted to be sold was to be steam jacketed.

guaranteed to produce, and in order that de"Substitute revolving screen %4 and 14 mesh. fendant might be enabled to complete its Make bin capacity not less than 442 yards, 5 tracts with the least delay. To this end, exyards preferable, two compartments.

perts representing the plaintiff exerted them"Howard Cooper Corp.

selves continuously from about June 5, 1919, "By [Signed] D. I. Cooper.

to July 17, 1919, in which they were actively "Expense of these changes are included in

| and energetically assisted by defendant, the selling price."

latter having expended in that behalf, by the On April 26, 1919, plaintiff accepted defend

2 authority of plaintiff, more than $3,000. In ant's order and undertook to fill the same,

spite of the efforts of both the defendant and and on that date shipped from Chicago to de

plaintiff, the machine continually broke down, fendant at Hammond, Or., the unassembled

and did not, except upon three or four days, parts of a machine, which reached defend

produce the minimum quantity of material ant about May 15, 1919. Upon its arrival

called for by the contract. The efforts of defendant paid the freight thereon, amount

plaintiff to conform the machine to that or

dered discloge that numerous parts thereof ing to $1,466.75, and proceeded to assemble and put together the several parts, many of

were of insufficient strength or insufficient which did not fit and appeared to be rusty

size, and that yet others were faulty in conand to have been used. Plaintiff sent an ex

struction or equipment. For instance to de pert, with directions to assist defendant in

| termine the weight of material placed in the

bins, it was necessary to multiply the weight assembling the machine and to put it in op

which the scales indicated by 3.74. eration. On assembling the parts, it was

Such discovered that the machine did not conform

material as plaintiff and defendant were toto the description and specifications of the

gether able to make the machine produce contract in many important particulars,

was utilized by defendant in carrying out its

road contracts. among which were the following: (1) The machine was not new, but appear

On July 17, 1919, plaintiff abandoned its ed to be old and to have been used.

efforts to convert the machine shipped into (2) Oil-heating burners were not placed on

the one ordered, or into a machine that would the side, but had been at one time, and were

do the work required by the contract of sale, changed to rear corners of machine.

and demanded that defendant either accept (3) Screw conveyor under pug mill not fur

or reject the machine. Defendant declined to nished.

do either, whereupon plaintiff, as a coercive (4) Tailing chute would not fit and had | measure, ordered the machine shut down, and never been in place.

placed a watchman in charge thereof. De(5) Chute from hot elevator to screen

fendant, however, made some alterations and would not clear chain driving screen.

additions to the machine while plaintiff's (6) Agitation pipes were not left in kettles.

watchman was in charge, and about July 29, (7) Kinney asphalt pumps did not fit to

1919, undertook to operate it again, and final. machine.

ly on August 5, 1919, plaintiff took its watch(8) Pipe with three way valve omitted, and

man off the machine and left it in charge of piping not steam jacketed.

defendant, and on August 9, 1919, commenced (9) Bin capacity only 14 yards, instead of this action. Defendant then continued to 4 or 5 yards.

use the machine under difficulties similar to The defects mentioned and the absolute de those mentioned until September 17, 1919, partures enumerated rendered the machine upon which date it completed its road conincapable of producing the quality and quan- | tracts. tity of material that plaintiff had agreed the During the time that plaintiff's experts machine furnished by it would produce; were endeavoring to make the machine operplaintiff was unable to furnish another ma- ate, the defendant procured, at their direcchine to replace the one sent; it was impos- tion, numerous parts therefor and made sible for the defendant to secure an asphalt many alterations, changes, and additions, mixer elsewhere; and its contracts imposed thereto, all of which were necessary in order a penalty of $25 per day for delay beyond to make the machine operate at all. September 1, 1919.

Defendant throughout protested that the Upon the complaint of the defendant, machine did not conform to the machine ormade when the machine had been assembled dered, either structurally or in producing with the assistance of plaintiff's expert, that capacity, and at no time expressed an intenplaintiff had placed defendant in a position tion of accepting it as in conformity to the

contract, and protested that such use as it “Substitute revolving screen 84 and 14 mesh. made of the machine, or of the material pro Make bin capacity not less than 412 yards, 5 duced by it, was occasioned by the necessity yards preferable, two compartments," which it was under to complete its contracts

The pages of the catalogue, which were and keep down its damages, and with reservation of its right to call upon the plaintiff

made a part of the contract, contained two to compensate defendant for such damages

large drawings or views of the plant, and as it might suffer from the failure of the

set forth the dimensions and specifications of plaintiff to supply the machine it had. con

the machine, the character of material of

which it was made, and the manner of its tracted to furnish.

operation and its capacity, together with Witnesses for the plaintiff testified that de

other descriptive details. The description of fendant on August 5, 1919, when pressed by

the machine to be furnished was followed in representatives of plaintiff to declare wheth

the contract by the express warranties set er he would accept or reject the machine,

forth therein and the provision for the restated: “I have accepted the plant. The

turn of the machine, upon which plaintiff replant is mine." This was denied by defend

lies to defeat defendant's right to recover ant. Defendant gave evidence that the ma

damages. chine had no value except as junk, for which

Plaintiff was under obligation to deliver it was probably worth $100 or $500; that he

to defendant a machine that complied witb had expended, with the authority of plain

the description in the contract; performance tiff, $3,203.51 upon the machine in materials

of that obligation was a condition precedent, and labor furnished for replacing defective

having the force of a warranty after acceptparts and repairing and altering the machine; that he had paid upon the purchase

ance, with which plaintiff was bound to comprice, in the form of freight charges, $1,466.

ply before it was entitled to urge that defend

ant was precluded from asserting the ordi. 75; that if plaintiff had supplied the ma

nary remedies available to it for breach of chine it agreed to furnish, defendant could

such contract. Case T. M. Co. v. Smith, 16 have performed his contracts in 36.68 days

Or. 381, 18 Pac. 641; Morse v. Union Stock at a cost of $8,867.39; that it required de

Yard Co., 21 Or. 289, 293, 28 Pac. 2, 14 L. fendant 15 days to lay the pavement called

R. A. 157; Wadhams v. Balfour, 32 Or. 313, for by hiu contracts, which actually and rea

326, 51 Pac. 642; Puritan Mfg. Co. v. Westsonably cost defendant $23,947.11. Plaintiff

ermire, 47 Or. 557, 84 Pac. 797; Mine Supdid not offer any evidence to contradict de

ply Co. v. Columbia Mining Co., 48 Or. 391, fendant's evidence of damages.

86 Pac. 789. Noticing first the observation with which

[2] The condition precedent or warranty in plaintiff introduces the argument in its brief,

the contract for the sale of personal propto the effect that the verdict of the jury ex

erty, which imposes upon the seller the duty hibits å startling result to plaintiff, it may

to deliver to the buyer an article corresbe said, aside from the actual cash outlay

ponding to the description in the contract, is expender, by the defendant on the purchase

not waived by failure of the buyer to reject price of the machine, and repairs and addi

the article when the contract is partly extions thereto, less the value of the plant as

ecuted by the buyer, and he has been placed shown by the evidence, the jury allowed ap

by the nonperformance of the seller in a sitproximately $6,000 for the excess cost of

uation where repudiation will not afford him laying the pavement, or between 16 and 17

Ja complete remedy. Morse v. Union Stock cents per square yard, which does not appear

Yard Co., 21 Or. 289, 293, 28 Pac. 2, 14 L. R. excessive, in view of the evidence of the dif

A. 157, and cases cited therein; Northwestficulties incident to preparing the paving

ern Cordage Co. v. Rice, 5 N. D. 432, 67 N. mixture with the machine furnished by plain

W. 298, 57 Am. St. Rep. 563; Mechem on titi.

Sales, $ 1393, [1] A contract for the sale of personal

[3, 4] The parties to a contract for the property between the plaintiff and defendant

sale of personal property may, by express was created by the order which defendant

stipulation in the contract, provide the remgave, and its acceptance by the plaintiff. By

edy that shall be pursued by the buyer in that contract the plaintiff engaged and un

case of breach of condition or warranty, and dertook to furnish and deliver to defendant

make such remedy the only one available to at Astoria, Or., one Austin portable asphalt

the buyer. Where the remedy agreed upon mixing plant, as described on pages 32 and

is the return of the property and recovery of 33 of plaintiff's catalogue, with the following

the purchase price, the buyer will not be perchanges and substitutions :

mitted to maintain a counterclaim for dam "Omit air compressor but leave agitation

air, compressor but leave agitation ages in an action brought against him by the pipes in kettle so that they may be connected

seller to recover the purchase price, but the to boiler if so desired and substitute Kinney or

buyer in such case will be confined to the other good asphalt pumps and pipe so that pump agitates or delivers to mixer controlled

exclusive remedy agreed upon, unless he has by three way valves on operating platform pip-tendered a return of the property, and the ing to be steam jacketed,

same has been refused by the seller. Feeney

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