Denied January 8, 1918.
On Petition for Eehearing.
Department 2.
Mr. Justice McCamantdelivered the opinion of the court.
We have given mature consideration to the exhaustive petition for a rehearing which plaintiff has filed. It is directed to so much of our opinion as sustains the action of the trial court in rejecting plaintiff’s offer of proof on rebuttal. We held the offer was properly rejected because no witness was on the stand to whom appropriate questions were asked, and also because the offer was couched in general terms and failed to specify the facts to be proved.
10. Plaintiff claims that these grounds of objection are untenable because the offer in the lower court was objected to only on the general ground that the testi*293mony offered was incompetent, irrelevant and imma- ' terial. Many authorities are cited to the effect that when testimony is admitted over this general objection, the appellate court will not review an assignment of error based thereon unless the testimony is obviously inadmissible for any purpose. This principle is well established and is recognized by our own decisions: State v. Martin, 47 Or. 282, 292 (83 Pac. 849, 8 Ann. Cas. 769); Hildebrand v. United Artisans, 50 Or. 159 (91 Pac. 542); Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 222 (94 Pac. 181, 95 Pac. 498, 102 Pac. 175, 1016). In the case at bar, however, the testimony was excluded. The presumption is that there was no error and the burden therefor devolves on plaintiff to show that the testimony offered was admissible, and that plaintiff was prejudiced by its exclusion. In 1 Wigmore on Evidence, page 59, the rule is stated thus:
“When a general objection is sustained by the trial court, it may be presumed that the reasons were apparent to all parties without statement; and as the exception is here to be taken by the proponent of the evidence, it is fair to require him to make clear therein the basis of his claim for its admissibility, if he had rested on any specific ground; hence, the general objection will suffice, if on the face of the evidence and the rest of the case there appears to be any ground of objection which might have been valid (or, otherwise stated, if there is any purpose for which the evidence would conceivably be inadmissible).”
In 5 Jones on Evidence, 377, it is said:
“The rule that the objection should be specific has no application, however, where a general objection is sustained; in that case, the party against whom the ruling was made cannot urge that objection as too general.”
The text quoted is supported by the following adjudications: Tooley v. Bacon, 70 N. Y. 34; Baldwin v. *294Threlkeld, 8 Ind. App. 312 (34 N. E. 851, 35 N. E. 841); Leach v. Dickerson, 14 Ind. App. 375 (42 N. E. 1031); Haas v. C. B. Cones & Son Mfg. Co., 25 Ind. App. 469 (58 N. E. 499); Rosenberg v. Sheahan, 148 Wis. 92 (133 N. W. 645); Hurlbut v. Hall, 39 Neb. 889 (58 N. W. 538, 540); People v. Graham, 21 Cal. 261, 266; Spottiswood v. Weir, 80 Cal. 448 (22 Pac. 289). The industry of counsel for plaintiff has discovered some cases to tbe contrary, as McKinnon v. Johnson, 57 Fla. 120 (48 South. 910), and Rush v. French, 1 Ariz. 99 (25 Pac. 816, 824). These cases are out of harmony with the weight of authority and we are forbidden by our statute from following them. Section 556, L. O. L., provides that a judgment “shall only be reversed or modified for errors substantially affecting the rights of the appellant. ’ ’ The rights of an appellant are not injuriously affected by the exclusion of inadmissible testimony, even though the objection reserved thereto is too general or is otherwise inadequate.
11. .Several additional authorities are cited to the effect that when the trial court settles a bill of exceptions reciting the offer of proof, it will be assumed on appeal that the witnesses were present and the evidence was properly offered; for example, Biddick v. Kobler, 110 Cal. 191, 196 (42 Pac. 578), and Tathwell v. Cedar Rapids, 114 Iowa, 180 (86 N. W. 291). We do not think that the certification of a bill of exceptions should be given the effect contended for. It is the practice in this state to incorporate in a bill of exceptions the objections to questions and the offers of proof in language taken from the reporter’s transcript and a trial court refusing so to do would be regarded as unfair to the unsuccessful litigant. The certification of the bill does not import a waiver by the trial court of the calling of witnesses in connection with an offer of proof. The *295rule announced on the subject in the former opinion is supported by the following additional authorities: Eschbach v. Hurtt, 47 Md. 61, 67; Chicago City R. Co. v. Carroll, 206 Ill. 318, 328, 329 (68 N. E. 1087); Stevens v. Newman, 68 Ill. App. 549, 552; Robinson v. State, 1 Lea (69 Tenn.), 673. The reasons for insisting on the calling of witnesses and propounding suitable questions are stated in the first two cases cited.
There can be no doubt that the offer of proof was properly rejected on the ground that it was general in terms and did not specify the evidence available. In Reynolds v. Continental Ins. Co., 36 Mich. 131, 144, Mr. Justice Graves says:
“In submitting propositions of proof it is requisite that counsel should be distinct and clear. A proposition should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling if an adverse one. # # The facts proposed ought to be indicated with sufficient clearness in regard to identity and sense to enable the court and adverse counsel to judge intelligently concerning their admissibility.”
In 9 Enc. Evidence, 165, it is said:
“In making an offer to prove it is requisite that counsel should be distinct and clear. The offer should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled upon in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling, if adverse. A mere general proposition in so many words to make out the case set forth in the pleadings is not one that the court is bound to take into consideration and rule upon as an offer of proof.”
This rule is supported by the following authorities: Harmon v. Decker, 41 Or. 587, 592 (68 Pac. 11, 1111, *29693 Am. St. Rep. 748); Van Arsdale v. Buck, 82 App. Div. 383 (81 N. Y. Supp. 1017, 1019); Matter of Bateman, 145 N. Y. 623 (40 N. E. 10); Middleton v. Griffith, 57 N. J. L. 442 (31 Atl. 405, 408, 51 Am. St. Rep. 617); Lewis v. Nenzel, 38 Pa. St. 222, 225; Reeves v. McComeskey, 168 Pa. St. 571 (32 Atl. 96); Cole v. High, 173 Pa. St. 590 (34 Atl. 292, 294); Bland v. O’Hagan, 64 N. C. 471, 473; Carlton v. State, 8 Heisk. (55 Tenn.) 16; Dwyer v. Rippetoe, 72 Tex. 520 (10 S. W. 668, 673, 674); Russell v. Lake, 68 Ill. App. 440, 441; Lyon v. Batz, 42 Mo. App. 606, 618; Wolfard v. Farnham, 47 Minn. 95 (49 N. W. 528, 529); Pendleton v. Smissaert, 1 Colo. App. 508 (29 Pac. 521, 523); Palmer v. McMaster, 10 Mont. 390 (25 Pac. 1056, 1058); Kennedy v. Currie, 3 Wash. 442 (28 Pac. 1028, 1031); Johnson v. Merry Mount Granite Co., 53 Fed. 569, 571.
Note.—Supplemental petition for rehearing was denied February 5, 1918, without a written opinion. Reporter.12. An offer of proof should state facts rather than conclusions. Its language should be not vague, but distinct ; not general, but specific. It is not sufficient that it state the ultimate facts in language appropriate to a pleading; the evidentiary facts must be set out.
In the instant case plaintiff’s offer should have named the witnesses relied on; it should have identified the contracts of purchase surrendered as the result of the defendant’s interference; the acts of interference causing the surrender of each contract should have been specified and the parties responsible for these acts should have been named.
A departure from the’ principles announced in the former opinion would establish a dangerous procedure not justified by reason or authority. The petition for rehearing is denied. Affirmed. Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.