MORROW, Circuit Judge
(after stating the facts as above).’ [1] 1. It is assigned as error that the court permitted Ross H. Wood, called as a witness on behalf of the plaintiff, to answer the following question on cross-examination:
“Q. What you men mean to get at is the general average of the crop?”
The witness answered:
“A. Well, yes. There was some of them green in each sample, and some of them were ripe' — mixed—as you were talking a while ago about wherfe those were dumped off the kiln floor.”
This witness had testified that he had bought these hops and received them, arriving at the valuation of the hops on the samples that he had of the crop out of the different bales. The witness was referring to his purchase of the hops in March, 1913, for H. L. Hart, after they had been rejected by IClaber, Wolf & Netter (plaintiff’s predecessors in interest) in the previous October as a delivery under the terms of the contract. The objection is that the question and answer related to the color of the hops, and it is said that no1 one could possibly tell, describe, or even guess what the average color of this crop of hops was.
This witness was testifying for the plaintiff as to the overripe and •underripe condition of the hops as indicated by their color, and if it was true, as the plaintiff now contends, that the witness Gould not testify as to the average color of the crop, then manifestly it was proper for the defendant to obtain from the witness on cross-examination the admission, that he was testifying to a fact he could not possibly know. It was plainly proper cross-examination.
[2] 2. It is next assigned as error that the court permitted the defendant Edmunson to answer' the following question on his direct examination :
“Q. Now, what is your experience with hop inspectors, as to their being uniform in their judgment as to the quality of hops?”
To this question the witness answered:
“A. I find that they vary considerably. One will call a hop prime, and' the other medium, etc. They will vary as much as one grade, and some vary two grades.”
This witness had testified that, at the time of this transaction, he had been in the hop business for 22 years, had raised hops for a long time,, and for the last 10 or IS years had been mixed up with the dealers in one way or another, sampling and inspecting hops. He was testifying; [57]*57to a fact within his experience as a hop producer and dealer. The evidence was plainly competent, relevant, and material.
[3] The objection now urged is that the court, in overruling the objection, said:
“I think that is an inquiry about the quality in effect of the hops.”
The court was right. The inquiry was for the purpose of determining the value of the inspectors’ testimony as to the quality of the hops, which was the issue to be determined. However, as there was no objection to this statement by the court when it was made, and no exception taken to it at the time, it must be treated as wholly without merit.
[4] 3. It is next assigned as error that the court permitted the defendant Edmunson to answer the following question:
“Q. Now, what do you say as to whether, at the time that Mr. Hinkle inspected these hops on the 31st of October, that you had 30,000 pounds of hops there of the quality described in that contract?”
The objection to this question was that it was incompetent, irrelevant, and immaterial, and as calling for a conclusion of the witness. It was calling for the conclusion of the witness only in the sense that he was asked to state the quantity of hops he had on hand; and as to the quality, he had already furnished evidence of his qualification to testify as to the quality of the hops. The witness answered this question:
“A. I considered that I had more than enough hops, of the quality that would be sufficient, that would go on the contract. There was perhaps 50 bails, or 60, between 50 and 60 bales, hops extra, besides enough. I had over 40,000 pounds, according to my recollection, in the whole crop.”
The objection now made to the answer is that it was nothing more than an estimate, and not a positive statement; that the witness said he “considered” that he had more than enough, etc. (probably using a provincialism); but the question called for the statement of a, fact. If it was not responsive to the question, the plaintiff should have insisted that the witness make it responsive, or that the court strike it out. As no objection was made to the answer, and no exception was taken to "it, and no effort made to have it made responsive or struck out, we must treat this assignment as without merit.
[5] 4. The next five assignments of error relate to the testimony of Bert Pilkington, a witness called on behalf of the defendant. This witness testified that he resided at Corvallis, Or., and was employed in the State Agricultural College at that place; that his occupation was that of a chemist; that one of the particular features of his work was a revision of the methods for the chemical examination of hops, the object being to obtain a process of chemical analysis whereby hops would be given examination according to their worth. This process had for its purpose the determination of the chemical constituents of hops with respect to their brewing qualities. Among these constituent elements were certain resins and lupulin, or pollen. The objection urged by the plaintiff against this testimony was that it was an attempt to introduce a standard for inspection different from that used by the hop men. The method of the hop men appears to be, from the evi[58]*58dence, the “rubbing nose method,” and consists in the use of the senses of smell, touch, and sight. Netter v. Edmunson, 71 Or. 604, 613, 143 Pac. 636.
The testimony in this case concerning the chemical elements of hops came first from the witnesses for the plaintiff. The witness H. A. Hinkle, called by the plaintiff, testified that he had been in the hop business about 21 years, and had been inspecting and. grading hops about 18 years. He was employed by the plaintiff in October, 1912, to inspect the hops in this case for him; that the grades of hops were choice; prime, and medium. On cross-examination, he testified that a. choice hop was bright and flaky, free from mold, good, even color, fully matured, not damaged by vermin or anything like that, full of lupulin, and of good flavor; that a prime hop was a grade lower than a choice hop; that a prime hop need not be so fat, nor quite so bright, as the choice hop. When asked what he meant by “not quite so fat,” he answered, “Not quite so much lupulin in it.” He was then asked, “What is the lup'ulin in a hop ?” He answered, “It is the pollen on the inside. It is the powder substance of a hop; the main qualifications of a hop.” This witness admitted that he told Edmunson that, if these hops would come up to prime, he. would take them.
Hal V. Bolam, a witness for the plaintiff,' had been in the hop business for 26 years, and a hop buyer and inspector for 20 years.
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MORROW, Circuit Judge
(after stating the facts as above).’ [1] 1. It is assigned as error that the court permitted Ross H. Wood, called as a witness on behalf of the plaintiff, to answer the following question on cross-examination:
“Q. What you men mean to get at is the general average of the crop?”
The witness answered:
“A. Well, yes. There was some of them green in each sample, and some of them were ripe' — mixed—as you were talking a while ago about wherfe those were dumped off the kiln floor.”
This witness had testified that he had bought these hops and received them, arriving at the valuation of the hops on the samples that he had of the crop out of the different bales. The witness was referring to his purchase of the hops in March, 1913, for H. L. Hart, after they had been rejected by IClaber, Wolf & Netter (plaintiff’s predecessors in interest) in the previous October as a delivery under the terms of the contract. The objection is that the question and answer related to the color of the hops, and it is said that no1 one could possibly tell, describe, or even guess what the average color of this crop of hops was.
This witness was testifying for the plaintiff as to the overripe and •underripe condition of the hops as indicated by their color, and if it was true, as the plaintiff now contends, that the witness Gould not testify as to the average color of the crop, then manifestly it was proper for the defendant to obtain from the witness on cross-examination the admission, that he was testifying to a fact he could not possibly know. It was plainly proper cross-examination.
[2] 2. It is next assigned as error that the court permitted the defendant Edmunson to answer' the following question on his direct examination :
“Q. Now, what is your experience with hop inspectors, as to their being uniform in their judgment as to the quality of hops?”
To this question the witness answered:
“A. I find that they vary considerably. One will call a hop prime, and' the other medium, etc. They will vary as much as one grade, and some vary two grades.”
This witness had testified that, at the time of this transaction, he had been in the hop business for 22 years, had raised hops for a long time,, and for the last 10 or IS years had been mixed up with the dealers in one way or another, sampling and inspecting hops. He was testifying; [57]*57to a fact within his experience as a hop producer and dealer. The evidence was plainly competent, relevant, and material.
[3] The objection now urged is that the court, in overruling the objection, said:
“I think that is an inquiry about the quality in effect of the hops.”
The court was right. The inquiry was for the purpose of determining the value of the inspectors’ testimony as to the quality of the hops, which was the issue to be determined. However, as there was no objection to this statement by the court when it was made, and no exception taken to it at the time, it must be treated as wholly without merit.
[4] 3. It is next assigned as error that the court permitted the defendant Edmunson to answer the following question:
“Q. Now, what do you say as to whether, at the time that Mr. Hinkle inspected these hops on the 31st of October, that you had 30,000 pounds of hops there of the quality described in that contract?”
The objection to this question was that it was incompetent, irrelevant, and immaterial, and as calling for a conclusion of the witness. It was calling for the conclusion of the witness only in the sense that he was asked to state the quantity of hops he had on hand; and as to the quality, he had already furnished evidence of his qualification to testify as to the quality of the hops. The witness answered this question:
“A. I considered that I had more than enough hops, of the quality that would be sufficient, that would go on the contract. There was perhaps 50 bails, or 60, between 50 and 60 bales, hops extra, besides enough. I had over 40,000 pounds, according to my recollection, in the whole crop.”
The objection now made to the answer is that it was nothing more than an estimate, and not a positive statement; that the witness said he “considered” that he had more than enough, etc. (probably using a provincialism); but the question called for the statement of a, fact. If it was not responsive to the question, the plaintiff should have insisted that the witness make it responsive, or that the court strike it out. As no objection was made to the answer, and no exception was taken to "it, and no effort made to have it made responsive or struck out, we must treat this assignment as without merit.
[5] 4. The next five assignments of error relate to the testimony of Bert Pilkington, a witness called on behalf of the defendant. This witness testified that he resided at Corvallis, Or., and was employed in the State Agricultural College at that place; that his occupation was that of a chemist; that one of the particular features of his work was a revision of the methods for the chemical examination of hops, the object being to obtain a process of chemical analysis whereby hops would be given examination according to their worth. This process had for its purpose the determination of the chemical constituents of hops with respect to their brewing qualities. Among these constituent elements were certain resins and lupulin, or pollen. The objection urged by the plaintiff against this testimony was that it was an attempt to introduce a standard for inspection different from that used by the hop men. The method of the hop men appears to be, from the evi[58]*58dence, the “rubbing nose method,” and consists in the use of the senses of smell, touch, and sight. Netter v. Edmunson, 71 Or. 604, 613, 143 Pac. 636.
The testimony in this case concerning the chemical elements of hops came first from the witnesses for the plaintiff. The witness H. A. Hinkle, called by the plaintiff, testified that he had been in the hop business about 21 years, and had been inspecting and. grading hops about 18 years. He was employed by the plaintiff in October, 1912, to inspect the hops in this case for him; that the grades of hops were choice; prime, and medium. On cross-examination, he testified that a. choice hop was bright and flaky, free from mold, good, even color, fully matured, not damaged by vermin or anything like that, full of lupulin, and of good flavor; that a prime hop was a grade lower than a choice hop; that a prime hop need not be so fat, nor quite so bright, as the choice hop. When asked what he meant by “not quite so fat,” he answered, “Not quite so much lupulin in it.” He was then asked, “What is the lup'ulin in a hop ?” He answered, “It is the pollen on the inside. It is the powder substance of a hop; the main qualifications of a hop.” This witness admitted that he told Edmunson that, if these hops would come up to prime, he. would take them.
Hal V. Bolam, a witness for the plaintiff,' had been in the hop business for 26 years, and a hop buyer and inspector for 20 years. He testified that he examined four samples of hops from the Edmunson yard in 1912; that the grades of hops were choice, prime, and medium; that the Edmunson hops were immature, lacking in good lupulin, flavor was poor, either from faulty curing or other defect, and partly, probably, from the immature nature of the hops. On cross-examination, he said that the hops did not.have sufficient lupulin to make them a mature hop; ^hat “a hop may not be large, but it must contain lupu-lin. The lupulm is the pollen, which you find in the center of the hop cone. There is a powder or pollen in the center of the cone of the hop.”'
James Hayes, a witness for the plaintiff, had been a hop grower and buyer for about 15 years. In 1912 he was the buyer for Klaber, Wolf & Netter. He inspected the Edmunson hops in October, 1912, with the witness Hinkle. He testified that the hops were of poor quality. Upon cross-examination, he was asked what constituted “the material part of a hop for brewing purposes.” He answered, “The lupulin, Í suppose.” He testified further that hops sell according to their color and appearance, etc.; that they should be rich in lupulin;. if they do not have lupulin, he supposed they would be worthless; he did not think it would be possible for a hop to have good color, etc., unless it had lupulin in it. He did not think, however, that the lupulin made the color.
The witness Ross H. Wood, who was called.by the plaintiff, testified that some of the hops were immature. When asked how he arrived at that judgment, he said:
“Because they were of green color and thin. There was not very much lupulin in them — in other words, much pollen.”
[59]*59All this testimony was given without objection, and was before the' jury when the witness Pilkington was called by the defendant. When the objection was made to the testimony of Pilkington upon the chemical elements of the hops, the court said:
“There lias Been testimony here, coming from the witnesses produced by the plaintiff, touching the amount of resin, or pollen, as it has been described, or lupulin, that is contained in these hops, some saying that it had more and some less, and that seems to be the prime quality of the hop: If this witness is competent to testify concerning the quantity of that lupulin in the hops, or the specimens that he examined, I think that would be proper to go to this jury.”
We think this evidence was admissible on the part of the defense. The contract called for a first-class hop, and specified as one of the elements that the hop should be “fully matured.” The evidence on the part of the plaintiff tended to show that the defendants’ hops were immature, lacking good lupulin, and that lupulin was the main qualification of a good hop. Manifestly the defendants were then entitled to show, if they could, that the Edmunson hops contained a sufficient percentage of lupulin to make' them first-class hops; and this iyas the purpose of the Pilkington testimony — that is to say, to show the percentage of lupulin in the hops by chemical analysis. But the witness stated that he'did not know what a choice hop was, measured by the commercial rule. The court was careful to advise the jury in its instructions that the chemical value of the hop was not a controlling test. These instructions carefully defined the questions presented by the pleadings; the terms of the contract as entered into between the parties; the elements of quality and quantity of the hops constituting the subject of the contract; referred to the testimony concerning the same, and the action of the parties in complying or attempting to comply with the contract. In these instructions there was a paragraph which, we think, correctly and clearly submitted to the jury the real question of fact for their determination, and, at the same time, they practically disposed of all the objections to the testimony which we find in this record. The paragraph related to the merchantable quality of the hops according to the custom of the hop trade. The court said:
“I will state further, in this connection, gentlemen of the jury, that these hops were raised for the market, and the contract was made with the market value in view, and, in considering the quality of these hops, you will consider them as merchantable, as the parties themselves desired that the hops should be sold in the market and should be so treated, so that the merchantable value is the thing you are to consider, and not, strictly speaking, the real inherent or chemical value.”
To these instructions no objections were taken; indeed, they submitted the case to the jury with .such clearness, fairness, and precision that objections, so far as we can see, were out of tire question. •
[6] 5. The refusal of the court to grant a new trial presents no question for review.
The judgment of the District Court is affirmed.