1. Appeal and Error <§=>237(5) — Review—Scope.

The federal court will not re-examine any fact tried by a jury, otherwise than according to the rules of the common law, and where plaintiff in error at the close of the testimony made no motion for a directed verdict. on the ground of the insufficiency of the evidence, only rulings of the trial court in excluding or admitting evidence, and in giving or refusing instructions, can be reviewed.

2. Saj.es <§=>440(1) — Acts of Agent — Evidence—Admissibility.

Where defendant’s sales agent testified that he sent an agent to plaintiff to overcome plaintiff’s difficulty with a milking machine bought from defendant, evidence as to the acts of such agent sent to plaintiff, as well as an agreement made by him, was admissible in action for breach of war-rainy of the machine.

3. Evidence <@=>123(3) — Res Gestie — Acts of Agent.

A report of an agent of defendant, which sold a milking machine, concerning the possibility of loss resulting from plaintiff’s continued use of the machine, held, admissible as part of the res gestee in an action by plaintiff based on a warranty.

4. Appeal and Eeeob <§=>1051 (1) — Review-—Harmless Error.

The admission of testimony is harmless, if erroneous, where the fact elicited was established by other competent evidence.

5. .Salks <§=>440(2) — Actions fob Breach — Evidence.

Where the guaranty under which defendant sold a milking machine recited that it was in all respects as represented in defendant’s printed matter, a pamphlet issued by defendant and delivered to plaintiff pending negotiations is admissible in an action for breach of the warranty.

6. Appeal and Error. <@=>204(4) — Presentation of Grounds of Review jn Co get Below.

The objection that certain pamphlets offered in evidence by plaintiff were not the identical ones handed him is not available in the appellate court, whore not raised below.

7. .Sales <§=>440(2) — Actions for Breach — 'Warranties.

Where the seller of a milking machine guaranteed the truth of certain pamphlets, and one of those; pamphlets asserted that it had enough experts to see that dairymen kept their machines in order, a purchaser, in an action for breach of warranty, may testify that the seller was to semi a demonstrator once a month to see that everything was working right.

S, Evidence <§=j14.o — Admissibility ™Remoteness.

Where the state dairy inspector testified plaintiff’s dairy was sanitary, teslimony that milk from the valley in which plaintiff carried on Ms business was excluded from a market as unsanitary held inadmissible to show the unsanitary condition of plaintiff’s dairy, which defendant asserted caused injuries to his cows, instead of the milking machine, as claimed by plaintiff.

9- Evidence <@=>130 — Comparisons- - -Res Inter Alios Acta.

In an action for brea'ch of warranty of a, milking machine, which plaintiff asserted injured his cows, evidence as to the condition of cows on which machines were used in other parts of the Country held, inadmissible as res inter alios acta.

10. Appeal and Error <§=>105(i(l): — Review—Harmless Ebror.

In an action for injuries to plaintiff’s cows, on which a milking machine purchased from defendant had been used, the exclusion of evidence as to the results of the use of milking machines in other dairies, etc., held not reversible error.

.©cssFoi other cases see same topic & KEY-NUMBBR in all Key-Numbered Digests & indexer

11. Appeal and Error <@=>231(6) — Objections—Sufficiency.

The propriety of a hypothetical question, objected to on the ground that it-assumed the existence of conditions not shown- by the. evidence, cannot be reviewed, where the objection did not point out any matter which was not pertinent to the case.

12. Appeal and Error <@=>1018(5) — Review—Harmless Error.

Where the answer was not unfavorable to it, defendant cannot complain in the appellate court of the allowance of a hypothetical question.