Mr. Justice Bean,
after stating the facts in the foregoing terms, delivered the opinion of the court.
1. The questions of fact on the trial were whether the O. S. L. car sent by the defendant to the plaintiff in 1900 to be loaded with beets was intended by the parties to be used as a substitute for the O. B. & N. car specified in the agreement, and whether the test cars were loaded in the same manner as cars of the same class were loaded the previous year. The admission of Turner Oliver’s testimony as to the condition of the scales upon which the cars loaded with beets were weighed during the season of 1899 is assigned as error. The plaintiff alleges that the scales “were so grossly inaccurate and out of order that the weights made thereon were of no use in determining how many tons of beets were actually contained in said 33 car loads so delivered or any of them.” This averment is denied by the answer, and the evidence objected to was therefore within the issues. It was competent also for the purpose of showing that the difference in the weight of the cars loaded with beets in 1899 and of the test cars in 1900 was due to a defect and inaccuracy in the scales, and not, as defendant would seem to contend, to the manner in which .they were loaded.
2. It is said that the inaccuracy of the scales is admitted by the compromise agreement of 1900, and therefore the proof objected to was immaterial. The .pleadings of neither party seem to have been framed on this theory, but, even if true, the admission of the testimony was harmless error.
3. The second assignment of error relates to the overruling of defendant’s objection to the reading of the deposition of one Toinby. The objection is that the deposition was hot taken “in compliance with the stipulation for taking the same,” but in what respect it differed from the [82] stipulation cannot be ascertained from the bill of exceptions. Neither the deposition, nor any portion thereof, is made a part of the record. The bill of exceptions contains nothing but the objection', a statement that it was overruled, and defendant’s exceptions, together with what appears to be a copy of a stipulation that the deposition of the witness should be taken at any time previous to March 15, 1903, before Benjamin Pope, a notary public for the State of Illinois, residing at Duquoin-, upon interrogatories and cross-interrogatories attached. There is nothing therefore in the bill of exceptions upon which to base the assignment of error.
4. Objections to the ad mission in evidence of adeposition on a ground going only to the time or manner of taking the same must be presented by a motion to suppress, and cannot be made for the first time at the trial: Sugar Pine Lum. Co. v. Garrett, 28 Or. 168 (42 Pac. 129); Foster v. Henderson, 29 Or. 210 (45 Pac. 899).
5. In the absence of a showing to the contrary, we must assume, in support of the ruling of the court below, that the objection in this case was of the character indicated.
6. The remaining assignments of error arise upon objections to instructions given, and are practically two — first, in submitting to the jury the question as to whether the O. S. L. test car furnished to the plaintiff by the defendant in 1900 in pursuance of the compromise agreement was intended by the parties to be used as a substitute for the O. R. & N. car specified in the agreement; and, second, in instructing the jury that if plaintiff loaded the test cars “substantially in the same manner and with substantially the same number of wagon loads as they were respectively loaded in 1899, viz., full, with the sides built up with rows of beets, and rounded off as full as the cars would hold,” they should find for the plaintiff.
The ground .for the first objection is that the instruc[83] tion as given was outside the evidence. The entire testimony is attached to and made a part of the bill of exceptions ; and, from the statement already made as to the evidence of the plaintiff and the defendant on this point, it is apparent that it was a disputed question, and therefore one properly for the jury. The plaintiff testifies that near the close of the beet season of 1900 he called at the factory of the defendant to see about the test cars, and that he and Mr. Stoddard, the defendant’s superintendent, went out into the yard to look for them; that the 0. it. & N. car was the only one they could find ; that it was loaded with beets, and standing on the track with other cars similarly loaded ; that he told Stoddard that it did not matter to him whether he received that particular car, and that, if he (Stoddard) could furnish other cars of the same capacity, it would be satisfactory; that he did not refuse to accept the car, and nothing was said at the time about its being small; that the next day Stoddard sent down, without any explanation, án O. S. L. car and a U. P. car to be loaded with beets, and they were so loaded; that the O. S. L. car was of about the same capacity as the O. R. & N. car named in the contract. This testimony is controverted in some respects by Stoddard, but it was sufficient to justify the court in submitting the question to the jury. The recital in the bill of exceptions that there was no evidence offered tending to show that there was any agreement between the plaintiff and the defendant that the test cars sent down should be used in lieu of the O. R. & N. car, other than the mere fact of sending them down, is, as defendant seeks to interpret it, a conclusion not warranted by the evidence. It was probably intended by the court as a statement that there was no evidence on that point other than that attached.
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Mr. Justice Bean,
after stating the facts in the foregoing terms, delivered the opinion of the court.
1. The questions of fact on the trial were whether the O. S. L. car sent by the defendant to the plaintiff in 1900 to be loaded with beets was intended by the parties to be used as a substitute for the O. B. & N. car specified in the agreement, and whether the test cars were loaded in the same manner as cars of the same class were loaded the previous year. The admission of Turner Oliver’s testimony as to the condition of the scales upon which the cars loaded with beets were weighed during the season of 1899 is assigned as error. The plaintiff alleges that the scales “were so grossly inaccurate and out of order that the weights made thereon were of no use in determining how many tons of beets were actually contained in said 33 car loads so delivered or any of them.” This averment is denied by the answer, and the evidence objected to was therefore within the issues. It was competent also for the purpose of showing that the difference in the weight of the cars loaded with beets in 1899 and of the test cars in 1900 was due to a defect and inaccuracy in the scales, and not, as defendant would seem to contend, to the manner in which .they were loaded.
2. It is said that the inaccuracy of the scales is admitted by the compromise agreement of 1900, and therefore the proof objected to was immaterial. The .pleadings of neither party seem to have been framed on this theory, but, even if true, the admission of the testimony was harmless error.
3. The second assignment of error relates to the overruling of defendant’s objection to the reading of the deposition of one Toinby. The objection is that the deposition was hot taken “in compliance with the stipulation for taking the same,” but in what respect it differed from the [82] stipulation cannot be ascertained from the bill of exceptions. Neither the deposition, nor any portion thereof, is made a part of the record. The bill of exceptions contains nothing but the objection', a statement that it was overruled, and defendant’s exceptions, together with what appears to be a copy of a stipulation that the deposition of the witness should be taken at any time previous to March 15, 1903, before Benjamin Pope, a notary public for the State of Illinois, residing at Duquoin-, upon interrogatories and cross-interrogatories attached. There is nothing therefore in the bill of exceptions upon which to base the assignment of error.
4. Objections to the ad mission in evidence of adeposition on a ground going only to the time or manner of taking the same must be presented by a motion to suppress, and cannot be made for the first time at the trial: Sugar Pine Lum. Co. v. Garrett, 28 Or. 168 (42 Pac. 129); Foster v. Henderson, 29 Or. 210 (45 Pac. 899).
5. In the absence of a showing to the contrary, we must assume, in support of the ruling of the court below, that the objection in this case was of the character indicated.
6. The remaining assignments of error arise upon objections to instructions given, and are practically two — first, in submitting to the jury the question as to whether the O. S. L. test car furnished to the plaintiff by the defendant in 1900 in pursuance of the compromise agreement was intended by the parties to be used as a substitute for the O. R. & N. car specified in the agreement; and, second, in instructing the jury that if plaintiff loaded the test cars “substantially in the same manner and with substantially the same number of wagon loads as they were respectively loaded in 1899, viz., full, with the sides built up with rows of beets, and rounded off as full as the cars would hold,” they should find for the plaintiff.
The ground .for the first objection is that the instruc[83] tion as given was outside the evidence. The entire testimony is attached to and made a part of the bill of exceptions ; and, from the statement already made as to the evidence of the plaintiff and the defendant on this point, it is apparent that it was a disputed question, and therefore one properly for the jury. The plaintiff testifies that near the close of the beet season of 1900 he called at the factory of the defendant to see about the test cars, and that he and Mr. Stoddard, the defendant’s superintendent, went out into the yard to look for them; that the 0. it. & N. car was the only one they could find ; that it was loaded with beets, and standing on the track with other cars similarly loaded ; that he told Stoddard that it did not matter to him whether he received that particular car, and that, if he (Stoddard) could furnish other cars of the same capacity, it would be satisfactory; that he did not refuse to accept the car, and nothing was said at the time about its being small; that the next day Stoddard sent down, without any explanation, án O. S. L. car and a U. P. car to be loaded with beets, and they were so loaded; that the O. S. L. car was of about the same capacity as the O. R. & N. car named in the contract. This testimony is controverted in some respects by Stoddard, but it was sufficient to justify the court in submitting the question to the jury. The recital in the bill of exceptions that there was no evidence offered tending to show that there was any agreement between the plaintiff and the defendant that the test cars sent down should be used in lieu of the O. R. & N. car, other than the mere fact of sending them down, is, as defendant seeks to interpret it, a conclusion not warranted by the evidence. It was probably intended by the court as a statement that there was no evidence on that point other than that attached.
The other instruction complained of is within the rule announced on the former appeal of this case: 42 Or. 279 [84] (70 Pac. 902). It was there said : “ The controlling feature of the agreement is that the cars shall be loaded by the plaintiff in 1900 in substantially the same manner as they were loaded the previous year, in order that a fair, reasonable, and just basis may be obtained from which to ascertain the number of tons actually delivered in that year. This was the manifest object of the agreement, and it should be given such a construction as will accomplish the intention of the parties.” This is not an action on the contract of 1900, and therefore the doctrine as to when a plaintiff may recover by proving substantial compliance with his contract has but little application. The action is for beets sold and delivered in 1899 under another contract. The' agreement of February, 1900, was intended merely as a basis for settling a dispute as to the quantity of beets delivered. It provided, in effect, that the defendant should furnish plaintiff three cars during the beet season of 1900 — one each of the three classes of cars used in 1899; that plaintiff should load them in the same manner as they were loaded the previous year, and the weights thereof should be used as a basis for determining the dispute. The important question, then, was whether the cars loaded by the plaintiff in 1900 contained the same quantity of beets as similar cars loaded by him- the previous year. The agreement says that they were to be loaded in the same manner and “with the same number of wagon loads,” but contains no statement as to the size of a wagon load, or the quantity of beets which it contained. The mere loading with the same number of wagon loads, therefore, would' furnish no satisfactory standard by which to determine whether the cars were loaded with the same quantity of beets. The question was not so much as to the number of wagon loads put upon the cars in 1900, as it was whether the cars, after they were loaded, contained substantially the same quantity of beets as the cars loaded [85] in 1899, and that question was, we think, fairly and clearly submitted to the jury.
It follows that the judgment of the court below must be affirmed, and it is so ordered. Affirmed.