Wells v. Kelsey

*Wells v. Kelsey. Evidence. Where, in an action of trover, the plaintiff has testified as to his opinion of the value of the property converted, it is competent for the defendant to show, by the cross-examination, the price for which it was actually purchased ; and also the value of other articles included in the same purchase. Wells v. Kelsey, 38 Barb. 242, reversed. Appeal from the general term of the Supreme Court, in the second district, where a judgment entered upon a verdict in favor of the plaintiff had been affirmed. (Reported below, 38 Barb. 242.) This was an action in the nature of trover, by Thomas J. Wells against Charles Kelsey, for the conversion of two boilers and a quantity of brick, and some other articles of minor value, which had been put in a building, on the defendant’s premises, in the summer of 1858, by his tenants, Durkee & Case, to be used by them in their business—the manufacture of soda, saleratus and drugs. _ The building was destroyed by fire, on the 80th August 1860, which terminated the demise, under a provision embodied in the lease, and a question arose, whether the articles, thus introduced by the tenants, belonged to the plaintiff, to whom they sold them after the fire, or to the defendant, who claimed them, in whole or in part, as fixtures annexed to his freehold. On the trial of the cause, the plaintiff made clear proof of title, and the jury found the fact of a conversion on conflicting evidence, and the only questions raised in this court related to the exclusion of certain evidence as to the value of the property. The plaintiff was sworn as a witness in his own behalf, and testified, among other things, that he bought the property in question, on the *lst October 1860; that, in his opinion, the. two boilers, at the time of the alleged conversion, were worth as much as if they were new, and were of the value of $800; that the boiler front was worth, at least, $50 more; that the boiler bolts were worth, at least, $40, and the brick, at least, $155; thus making an aggregate of $1045 as the value of the property converted. To weaken the force of this evidence, the defendant, on his cross-examination, called for the production of his bill of sale, which was read in evidence, and showed that he paid Durkee & Case only $1200 for all the property it included. Besides the property in question, the bill of sale embraced a steam-engine, a steam-pump, and all the connecting shafting, pulleys, pipes, cocks and tools, none of which were detained from the plaintiff. He was then asked by the defendant’s counsel, for the obvious purpose of showing that his valuation of the articles converted was disproportionate and extravagant, what was the value of the other articles embraced in the bill of sale. This evidence was excluded, and the defendant excepted. It afterwards appeared, by the testimony of Durkee & Case, that they had been for some weeks endeavoring to sell the property, before they effected a sale to the plaintiff; that the boilers had been for two years in use by them, before the fire; that the part of the building in which they were, was not much injured by the fire, but was afterward unoccupied; that the boilers were second-hand, when they bought them, and that they were lying on a vacant lot, at the time of the original purchase. The defendant, on the cross-examination of Durkee, interrogated him as to the price they paid for the boilers. The evidence was excluded, and the defendant excepted. He then introduced the testimony of several boiler manufacturers, tending to show that the boilers, when new, were not worth over $550, and that, in their condition at the time of the alleged conversion, they were worth only from $160 to $350. At the time of the trial, th.ey were not in use, but were still lying on an unoccupied lot of the defendant. *The jury rendered a verdict in favor of the plaintiff for $751.44; and the judgment entered thereon having been affirmed at general term, the defendant appealed to this court. Britton, and Ely, for the appellant. Weller,for the respondent. Also reported in 4 Abb. Pr. (N. S.) 234. [MAJORITY — Porter, J.] Porter, J. The principal issue on the trial was, as to the value of a pair of boilers, at the time of their conversion by the defendant, which was three days after they were sold to the plaintiff. They were second-hand boilers, two years before, when they were bought by Durkee & Case, and they had been exposed to injury from disuse as well as from use. The plaintiff testified, as a witness in his own behalf, that their value was $800, and that they were worth as much as if they were new. This was competent evidence of value, but it was inconclusive in its nature. It was an estimate, resting upon the opinion of a party subject to bias ; and it related to second-hand articles, having no certain and definite market value. The statement carried with it no absolute assurance of verity; and, even if he made it in perfect good faith, the accuracy of his judgment might be open to question, in view of facts unknown to the jury, but within his personal cognisance. It was the right of cross-examining counsel, to elicit these, if they were inharmonious with his evidence; they were at liberty to show, that he bought the boilers, three days before, on credit, at a fair and open sale, from parties who had used them and knew their value, for half the sum at which he now assessed them. This seems to be conceded, in the opinion delivered in the court below; but it was held, that a different rule prevails where, as in this case, the inquiry involved the value of other articles included in the same sale. We do not think such a distinction well founded, nor do we find it recognised in the authorities. The objection, if it has any force, goes to the facility of proving the fact, and not to its admissibility as legal evidence. :;:The particular form of the transaction made it necessary to ascertain the relative value of the articles included in the bill of sale. If the plaintiff had testified, in answer to the inquiry, that the other articles, embraced in the $1200 purchase, were worth twice as much as the boilers, it would be a reasonable inference, that his present valuation of the latter considerably exceeded their cost. It is true, that the price which he paid for them would be indecisive as to their actual value, but it might well have a material bearing on the degree of weight to which his estimate of that value was entitled. But even if this inquiry was properly disallowed, the court erred in excluding proof of the price, paid specifically for the boilers, on their purchase by the vendors of the plaintiff. It is assumed, in the opinion delivered at the general term, that, if evidence of this kind had been offered, it wouldi have been admissible, within the rule; and the fact, disclosed iii the printed case, that such proof was tendered and rejected on the trial, seems to have been overlooked. The authorities on this subject are decisive and uniform, and we think the rule they establish is sound in principle. (Campbell v. Woodworth, 20 N. Y. 499; Dickson v. Buck, 42 Barb. 70; Crounse v. Fitch, 23 How. Pr. 350; Suydam v. Jenkins, 3 Sandf. 628.) While the law admits the opinions of those competent to judge, as evidence of the value of property, it permits the application, in this, as in other cases, of the usual tests of truth. On the cross-examination of the witness, it is legitimate to ascertain his means of knowledge, to scrutinize the grounds of his judgment, and to elicit such specific facts as may aid in applying and weighing the evidence. Such facts are often at variance with the opinions expressed by the witness, which, from the nature of the case, are usually founded on data unknown to the court. On questions of value, there is generally room for wide diversity of judgment; and when estimates are loosely made, they should be subject to all reasonable scrutiny. In this instance, the inquiries were within the range of fair and legitimate cross-examination, *and we think they should have been allowed by the court A knowledge of the prices actually paid for the boilers, on two business sales, both ante litem motam, might well aid the jury in weighing the conflicting estimates, and in reaching an intelligent and just conclusion. The judgment should be reversed, and a new trial should be ordered. Judgment reversed, and new trial awarded. Harrison v. Glover, 72 N. Y. 451; Hoffman v. Conner, 76 Ibid. 121; More v. Deyoe, 22 Hun 222.