dissenting.
The majority simultaneously holds that the exception to the requested instructions is insufficient to preserve the question of the allocation of the burden of proof with respect to "appropriate preventative farming practices” and then decides the very issue it says is not preserved. I believe that the question is properly before us and that the instructions are inaccurate and misleading and constitute reversible error. Therefore, I dissent.
The majority notes that the exception is vague, and its lack of clarity appears to be exacerbated by poor reporting. The exception is as follows:
"For the plaintiff, Your Honor, just basically two exceptions and actually they are about the same thing. I would except to the Court giving that portion of the instructions which reads as follows: 'Could not have been prevented by appropriate preventive farming practices by plaintiffs.’
"That was given as part of two different instructions requested, by defendants.
"Our position would be it is beyond what the law is as far as what is required. Plaintiffs [contend — sic] that their *638burden would be to establish that they used the product[,] in this case, seed potatoes, in the normal manner that seed potatoes would be used[.] [T]o instruct the jury in that manner would call for speculation as to what is appropriate preventative farmer practices.
"What I think it [sic] brought out in the trial that could be inferred, one, by the Oregon State Professor who would say one thing [and] by [sic] an expert farmer of the Malin area could say something quite differently and I think it calls for speculation and could confuse the jury in that regard.”
To this the court responded:
"You have your exception. You know, I considered that as we went over the instructions in chambers and I had some doubt and trepidation about it and ultimately decided that had to have some place in the trial of this case, so I gave the instruction on the subject by [way of — sic] breaking ground. So be it.”
The question of what constitutes an appropriate fanning practice would properly be for the jury and plaintiffs’ exception on the ground that it requires the jury to speculate is erroneous, as the majority points out. Plaintiffs do not press this argument on appeal. Their sole contention is that the instructions incorrectly allocated to them the burden of proving that their loss could not have been prevented by application of a fungicide or other appropriate measure.
First, I believe the question is sufficiently preserved by the exception. It mentions specifically the exces-siveness of the burden of proof placed on plaintiffs. Coupled with the trial court’s response, which indicates that the matter had been discussed at some length in chambers and that the stated exception was a recap of objections made more fully at that point, I would give plaintiffs the benefit of the doubt.
The majority characterizes defendant’s central argument as follows:
" * * * [T]he essence of defendant’s contention is that if, notwithstanding the existence of rot, the seed may be grown successfully through the use of that accepted [preventative farming] practice, it passes in the trade as merchantable seed.”
*639The majority opinion next examines the second instruction to which error is assigned — the causation instruction. It acknowledges that a literal reading of the instruction would seem to require plaintiffs to prove, in order to recover anything, that they could not have mitigated damages and that such a statement of the law is erroneous. It then seems to say that plaintiffs were not seeking damages for the difference in value of the potatoes as represented and as delivered. The complaints, however, alleged damages for the purchase price of seed.1 If the seed is rotten, then it is worth nothing and the difference in value as warranted and as delivered equals the purchase price.
I am not persuaded that the majority’s characterization of defendant’s central contention with respect to the question of merchantability is correct.2 Assuming it is, however, the instructions given were nevertheless insufficient to apprise the jury of that view and, by állocating to plaintiffs the task of showing there was no appropriate means available by which the lot of seed potatoes could be made to produce good results, they erroneously removed from the jury the right to decide what constituted "merchantability” — i.e., whether the goods in this case would "pass without objection in the trade.” ORS 72.3140(2)(a).
As I understand it, plaintiffs’ evidence, which the jury was free to believe, is as follows: A small percentage of seed potatoes (perhaps as much as 5 percent) is ordinarily infected with tuber rot when delivered and the lot is not therefore unmerchantable. These potatoes are placed in a *640seed cellar for several weeks. It is possible that tuber rot may spread from the soil of cellars that are not sprayed beforehand with fungicide. If the jury were to conclude that the tuber rot in this case is the result of plaintiffs’ failure to spray, then the defect is caused by plaintiffs. The jury was instructed without objection, as the majority notes, that in the event the jury so found, plaintiffs could recover nothing.3 At the time of cutting the seed, plaintiffs stated they discovered approximately 20 to 25 percent tuber rot in the cut pieces and had to throw a substantial portion away. The purpose of the fungicide, as defendant’s evidence shows, is to prevent the spread of tuber rot to the good portions and permit germination of the seed. There was no evidence that application of a fungicide to the rotted pieces would render them usable.
Plaintiffs and defendant agree that plaintiffs’ burden to show the potatoes as delivered were unmerchantable requires proof of a defect — namely, that the percentage of tuber rot was beyond that which would normally be encountered. The jury could have concluded on plaintiffs’ evidence that the mere presence of an inordinate amount of tuber rot was objectionable in the trade. Plaintiffs would be entitled to recover at least the value of that portion of the lot which had to be thrown away. The fact that plaintiffs did not revoke the lot does not prejudice their right to recover on breach of warranty; it only makes them liable for the purchase price. ORS 72.6070(2). To the extent plaintiffs used the remaining seed potatoes, which were likely to contain some tuber rot, without application of a fungicide which would have permitted germination, plaintiffs are not entitled to recover their consequential damages (reduced yields and costs of replanting). But that is a matter in mitigation which will not preclude recovery for the worthless portion of the lot and defendant, as the majority concedes, must shoulder the burden of proving that damages could have been mitigated.4 Hardwick v. *641Dravo Equipment Company, 279 Or 619, 569 P2d 588 (1977).
As the majority makes out defendant’s contention, plaintiffs would also have to show, as an adjunct of proving unmerchantability, that, in addition to containing a high degree of rot, there existed no way to render the entire lot usable, at least to the point that the average potato farmer would not object to the quality of the lot. In my view, in the absence of proof of a means of permitting the rotted pieces to be used, such a contention is dubious. More fundamentally, however, allocation to plaintiffs of the burden of proving the nonexistence of such a means denies plaintiffs the right to have the jury determine which standard of merchantability, defendant’s or plaintiff’s, is correct. The jury should have been instructed that, if it found that such a means existed, it could find that the goods were merchantable and plaintiffs could not recover unless they proved either (1) that the means they selected for using the balance of the lot (i.e., manual winnowing and application of gypsum) was appropriate;5 (2) that failure to employ the available means of counteracting the rot (in this case, a fungicide) was otherwise justifiable; or (3) that the goods were nevertheless objectionable in the trade.
The instructions fall short of informing the jury even of the majority’s version of defendant’s contention with respect to what constitutes merchantable seed potatoes. That the majority must resort to "construction” to sort out the instructions is sufficient indication of that fact. The instruction given on merchantability merely recites the factors listed in the statute (ORS 72.3140(2))6 and says *642nothing about appropriate farming practices. This phrase is mentioned only in connection with causation. The jury twice requested reinstruction on the issue of implied warranty and debated into the wee hours of the morning before rendering its verdict. It is clear that the instructions were confusing.
For the foregoing reasons, I respectfully dissent.
The complaints do not make clear whether this element of damages constitutes the cost of replacement seed or the reduced value of the original shipment or both. There was no motion by defendant to make this allegation more definite and certain. Plaintiffs requested an instruction, which was given, on the measure of damages for diminution of value at the time of delivery.
The instructions objected to were those requested by defendant. The overview instruction quoted in its entirety by the majority requires that the breach of warranty cause the damage:
" * * * in the extent of Fusarium Tuber Rot in the potato seed exceeds the merchantability standard when delivered to the plaintiff by defendant and to the extent that the failure of the seed to germinate and come up when planted due to the infestation of the seeds could not have been prevented by an appropriate preventative farming practice by the plaintiffs.”
This instruction assumes a "merchantability standard” independent of whatever farming practices exist to salvage infected seeds. It therefore allocates the burden to plaintiffs, as the majority concedes it seems to, to show they could not mitigate, i.e., there was no extent to which a fungicide could not have prevented their loss.
On appeal, we are not free to speculate whether this theory was the basis of the jury’s conclusion.
If defendant is contending that plaintiffs unreasonably used goods they knew to be unmerchantable, that again is a matter in mitigation as to which defendant has the burden and only cuts off consequential damages. ORS 72.7150(2)(a); Karlen v. Butler Mfg. Co., 526 F2d 1373, 1379 (8th Cir 1975); see Western Feed Co. v. Heidloff, 230 Or 324, 338-41, 370 P2d 612 (1962) (applying the mitigation rule under the Uniform Sales Act, former ORS 75.010 et seq).
Plaintiffs testified they obtained good results in prior years without use of a fungicide.
ORS 72.3140(2):
"(2) Goods to be merchantable must be at least such as:
"(a) Pass without objection in the trade under the contract description; and
"(b) In the case of fungible goods, are of fair average quality within the description; and
"(c) Are fit for the ordinary purposes for which such goods are used; and
*642"(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
"(e) Are adequately contained, packaged and labeled as the agreement may require; and
"(f) Conform to the promises or affirmations of fact made on the container or label if any.