Pollock & Pollock and L. L. Twitchell, for appellants.
Engerud, Divet, Holt & Frame, on the brief.
The court erred in refusing to permit the defendants to show by expert testimony that the cattle were afflicted with tuberculosis at the date of their purchase and in restricting the use of Exhibits H and I. State v. McKone, 31 N. D. 547; Bixby v. Omaha Ry. Co. 75 N. W. 182 (Ia.) and cases cited therein.
An expert is not confined to his own examination or observation in expressing an opinion of an expert nature. State v. Reilly, 25 N. D. 355; State v. Moeller, 24 N. D. 168; State v. Moeller, 20 N. D. 122; Edington v. Aetna Life Ins. Co., 77 N. Y. 564; Eckles & Brown v. Bates, 26 Ala. 655; Lush v. McDonald, 57 Am. Dec. 566.
A party will not be permitted to pick out parts of a document favorable to himself and exclude that which is unfavorable relating to the same subject. Guild v. Moore, 32 N. D. 458; 1 Jones Commentaries on Evidence, (1913 ed.), 171 and 294.
The reason for this rule is most cogently stated in Ah Doon v. Smith, 34 Pac. 1093. The record shows that the defendants stated that they wanted a nice clean herd and asked him if they were a clean, healthy herd and his reply was that they were "all right."
This statement by Walters was a warranty of quality, that the cattle were "sound." Smith v. Justice, 13 Wis. 60o; McClintock v. Eurick, 7 S. W. 903 (Ky.); Kemp v. Mays, 127 N. E. 156 (Ind.); Van Hoesen v. Cameron, 20 N. W. 609; Kenner v. Harding, 28 Am. Rep. 615; 35 Cyc. "Sales" 422.
Lawrence, Murphy & Nilles, for respondent.
"Copies of instruments or records must be properly authenticated in order that they may be admitted in evidence. It is a familiar rule that a copy must be authenticated in a mode provided by the statute, and the statute must in this respect be strictly pursued." 10 R. C. L. 1104; Reynolds v. Rowly, 38 Am. Dec. 233; State v. Kniffen, 44 Wash. 485; 87 Pac. 837.
"In the case of records or copy of transcript must be certified by the official custodian of the records." 10 R. C. L. 1104; Anderson v. Blair, 48 S. E. 951; Weeks v. Lumber Co., 133 Ga. 472; 66 S. E. 168; Thompson v. Gallard, 45 Am. Dec. 778.
