Opinion by
Mr. Chief Justice Eakin.1, 2. The only alleged error requiring consideration at this time is the refusal of the court to give the instruction requested by the defendant. There was an issue tendered 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 collected by him. The bill of exceptions states that there was positive testimony that by the agreement such a payment was to be made only when the price should be collected by defendant. This was defendant’s theory 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 instruction, but says, that, if it was applicable, the court gave oral instructions upon the issues made by the evidence and pleadings, and that the requested instruction will be presumed to have been included therein. The *602rule is that error will not be presumed, and if an instruction asked, which correctly states the law, is refused, it is the duty of appellant to show by the bill of exceptions that no instruction was given embodying it, 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 instructions upon the issues made by the evidence and pleadings, but such instructions are not contained in the record. In Dawson v. Pogue, 18 Or. 94, 99 (22 Pac. 637, 639: 6 L. R. A. 176), Mr. Chief Justice Thayer says:
“It 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 suggests that the above rule ought to be confined to cases where the instructions given are written, but he refrains 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 included in any oral instruction. The rule stated by Chief Justice Thayer seems to be general. See Moody v. Railroad Co., 41 Iowa 284; Kennedy v. Anderson, 98 Ind. 152; Commissioners v. Roberts, 22 Kan. 762; Elliott v. Rosenberg, 17 Mo. App. 668. Therefore error in refusing the. instruction asked is not shown.
From the record the error in the verdict and judgment clearly appears to have been an oversight of the jury in *603not crediting to the defendant an item admitted by plaintiff, but that error was rectified by the credit being made upon the judgment, and defendant has no cause to complain.
The judgment is affirmed. Affirmed.