Denied conditionally October 6, 1908.
On Petition for Rehearing.
Opinion by
Mr. Chief Justice Bean.9. The court- instructed the jury, in substance, that if the plaintiff agreed to sell and deliver to defendants 50 tons of good -merchantable hay, and failed to do so, the defendants would be entitled to a verdict for the market value of such hay at the place of delivery, less the contract price, with freight added. The jury, found a verdict in favor of defendants, and assessed their damages at $10.
The attention of the court is called to the fact, by a petition for rehearing, that the instruction was erroneous, because it is admitted that the failure of the plaintiff to deliver the hay, except the car load in dispute, was by the consent and at the request of defendants, and therefore they are not entitled to recover damages for such failure. The error in giving the instruction referred to, however, did not affect the real controversy between the parties, and, as the amount of damages allowed by the jury can be segregated from the rest of the verdict, the error does not call for a reversal of the case, if the defendants will, within 10 days, remit the amount of such damages; otherwise, a new trial will be ordered. Mackey v. Olssen, 12 Or. 429 (8 Pac. 357) ; Cochran v. Baker, 34 Or. 555 (52 Pac. 520: 56 Pac. 641).
The other points made in the petition were all considered by' the court on the former hearing, and need not be further alluded to at this time.
Affirmed: Rehearing- Conditionally Denied.