— Plaintiffs sued defendant before a justice of the peace on an account of $106.25, for cutting and stacking defendant’s hay at $1.25 per acre. A balance of $56.25 was claimed. Defendant defended on the ground that the price agreed upon was $1.25 per ton, instead of per acre. Thát plaintiffs owed him $8.50 for the use of a sulky hayrake- and that the hay was so negligently .and carelessly put up and stacked that it moulded and spoiled, to defendant’s damage in the sum of $100, which amount he asked should be allowed against any claim of plaintiffs. There was evidence tending to support the theory of each party to the cause, and we have, therefore, only to look to the instructions and the action of the court in overruling the motion for a new trial. ' The instructions were prepared and given by the court of its own motion and are, in our opinion, unobjectionable. The first and second ones are complained of in that they assume that directions were given by defendant to plaintiffs in regard to putting up some portions of the hay. Ordinarily it is, of course, improper for the court to assume any portion of the evidence as an established fact in the case. Where, however, as in this case, the evidence as to such fact is not contradicted, (Schmitz v. Railroad, 46 Mo. App. 380), and where such evidence comes from the complaining party himself as given in his own testimony, it is not *178reversible error to assume it as a fact in an instruction. In this case the defendant testified that in more than one instance he gave directions to the plaintiffs while they were at the stacking.
The next complaint against the action of the trial court is that defendant’s- instruction number 6 was refused. This instruction was as to the measure of defendant’s damages if the hay was believed to have been improperly stacked by plaintiffs. The jury was directed in such case to allow to defendant the value of all hay thus rendered unfit for use not exceeding $5 per ton. This instruction was rightly refused since it had no proper evidence upon which to base it. The question of the value of the hay was asked of but one witness and he stated that he did not know what hay was worth, but that a fair price for it would be $5 per ton “this fall.” ' This laid no foundation for the measure of damages. The hay was stacked in the months of June and July. It does not appear when it was injured by wind and rains. Proving the value “this fall” is not sufficiently connected with the time the damage accrued to defendant; whether that time be fixed at the time the hay was stacked or at the time it was injured. So that in this view defendant was not entitled to any instruction on the measure of his damages.
The next complaint is that the court erred in not granting a new trial on account of surprise at the testimony of certain witnesses which defendant alleges. These witnesses testified as to the condition of the hay. This was one of the issues in the case. We can see no reason why defendant should be surprised, in a legal sense, at such testimony. A party must not expect that his views or theory of the facts of his case on the very points of dispute will be adopted or sustained by the witnesses of his opponent. The affidavit made by *179defendant in support of the motion has wholly failed to impress us in his favor. It discloses that he had no sufficient excuse for not being prepared to do in the first instance what he now wishes to do after an adverse verdict. The judgment will be affirmed.
All concur.