45 N.H. 222 | N.H. | 1864
Was the evidence of defendant’s settlement with Miss Haven, and the payment by her of a certain price for the plaintiff’s labor, competent in the way it was proved? If the question were as to the value of a horse for which the defendant was responsible, an actual sale of him', even after suit, might often be admissible for the defendant. Sales of other horses shown to be similar, by other persons, after suit, or by the defendant either before or after that time, might often be received, as are the sales at auction of goods by sheriffs, where they have been sued for the taking or conversion.
In these, as in every such case, the circumstances and the fairness of such sales maybe inquired into, for the purpose of showing what weight, if any, the jury should give to the evidence of the particular sale as tending to show the market price. Of course, the fact, that the sale was by a party interested to reduce the value, or to enhance it, would, in this as in every other case, go merely to the weight and not to the competency of the evidence.
It does not stand as the mere statement of the seller, for neither the statement of the seller or purchaser would in any such case be evidence for him. But such evidence is not received as a statement of one or both the parties to the sale,but as evidence of an independent fad — a sale actually made; and such sales if not too remote in time or situation are evidence tending to show the market price.
Nor does the question of " lis mota” arise in either case as to its competency, for,if the sale is to be regarded as the mere statement of a party in his own favor, it would be incompetent for him, whenever made, and if as a fact, its tendency to show the market value, if not too remote in time or other circumstances,is the same, whether before or after the " lis mota,” though the latter circumstance might in certain cases have an important bearing on the weight that should be given it by the jury. Carr v. Moore, 41 N. H. 133; Swaine v. Cheney, 41 N. H. 233; Cross v. Wilkins, 43 N. H. 332; French v. Piper, 43 N. H. 439.
In Gerrish v. Pike, 36 N. H. 518, where the value of certain land became material, and the plaintiff offered in evidence the fact, that, after suit commenced,he leased the land at a certain rent, as bearing upon the question of value, it was held that the evidence was properly rejected, because it was in the nature of a statement by the plaintiff himself as to its value; that it was the plaintiff’s valuation,made at a time when it was for his interest to reduce the value : that it was the plaintiff’s sayings as to the value. Now, if this evidence had been offered as the statement or sayings of the party, or as the valuation of the party offering to sell or lease it, it would, of course, have been incompetent wherever made. But if it was offered as a fact, as an actual sale or leasing at a certain price, as we understood from the ease that it was, then if the transaction was sufficiently near in point of time, it could make no difference whether it was before or after suit, as we have already seen, so far as its competency was concerned, and the motives that influenced the grantor or lessor, with all the other circumstances attendant upon the fact of leasing, were proper matters to be considered in weighing the evidence, but could not have rendered it incompetent.
The evidence, as to who were first class joiners and what wages'were paid to such, was objectionable in the form in which it was offered, either as involving the opinion of the witness, who was not an expert, or where the subject matter was not such as would admit of the opinions of any witness, or as mere hearsay. Leighton v. Sargent, 31 N. H. 133; see also Lowe v. Railroad, Coos Co. post. This evidence was, therefore, properly excluded.
How far the plaintiff, in rendering the services for which this suit is brought,had charge of the work is a matter of importance upon the question of the reasonable value of these services, and the presumption of Joseph G. Cate, that other directions in addition to the plans'were given him, was not evidence that such was the fact. Where a witness testifies to what he " understood” parties to say, he may mean to state what the parties in fact or in substance said, as he understood them, or merely to give his inferences, drawn from what was said. In the former case the testimony would be competent. Miles v. Roberts, 34 N. H. 252; Eaton v. Rice, 8 N. H. 378; Maxwell v. Warner, 11 N. H. 568. In the latter it would notv Braley v. Braley, 16 N. H. 433; Hibbard v. Russell, 16 N. H. 417.
So,the " impression” of a witness, if derived from recollection, is competent. But, if it be merely his belief, founded upon hearsay, or his mere inference, it is incompetent; but if his testimony is susceptible of the former construction, it is not to be excluded by the court merely because a different interpretation might be put upon it, which would render it incompetent. State v. Flanders, 38 N. H. 333. But the statement in question fails to come within that principle, for, with any tolerable regard to either the accurate or the colloquial use of language, we cannot hold that the presumption of a witness — what he assumes to be true, without actual knowledge, or examination as to the fact in the particular case, can in any event be competent as evidence of the fact presumed.
In this case, the witness made the statement in reply to a question of the plaintiff in the direct examination, and the plaintiff introduced his deposition and no objection was made or noted in the caption, and for this reason the evidence was admitted. The question was proper, asking for the knowledge of the witness and not for his presumptions, and
To be sure, no objection was noted in the caption of the deposition, and none need have been, for the objection is one of substance and not of mere form, and the nature of the case was not such as to require the attention of the adverse party to be called to the objection at the time, in order that he might be enabled to remedy some formal defect or irregularity. A party may often be compelled, on some point, to use an unwilling witness, who may insist upon making improper and incompetent statements in reply to the questions proposed, though not responsive to such questions and highly injurious to the party calling him. But if the question proposed is proper, no advantage would result to any one from his filling up the deposition with objections, which could not prevent the answers from being written down; and no one can be injured by the objections not being taken until the trial, when the evidence should be excluded. For this cause the verdict is set aside.
New trial.