70 P. 811 | Or. | 1902
after stating the facts, delivered the opinion of the court.
Necessity generally renders opinion evidence admissible to prove the value of property, the character of which and the universality of its use determine whether a witness called to estimate its worth must possess special skill or experience or only a common knowledge in respect to such property to entitle him to appraise its value in the presence of the jury: Jones, Ev. §§ 365, 389. A person of ordinary intelligence generally has such a knowledge of property in common use as to enter
No rule of law can definitely prescribe the degree of information required to render a witness competent to express an opinion concerning value, but it must appear, however, that he has some acquaintance with, or knowledge of, the subject-matter, the court being the judge of his qualifications, and the jury of the weight to be given to his estimate: Bedell v. Long Island Ry. Co. 44 N. Y. 367 (4 Am. Rep. 688); Stillwell Mfg. Co. v. Phelps, 130 U. S. 520 (9 Sup. Ct. 601). As the worth of property may be proved by opinion evidence, so the value of its use may be established in the same manner: Lawson, Exp. Ev. (2 ed.) 488. Thus, in Brady v. Brady, 8 Allen, 101, it was held that in a controversy as to the sum to be paid for the use of a horse and wagon, a witness who had bought, sold, and used similar ones was competent to express an opinion of the value of such use. In Butler v. Mehrling, 15 Ill. 488, the court, commenting upon the legal principle thus announced,
Know All Men by These Presents: That, whereas, the party of the second part hereto has this day leased to the -first parties hereto certain personal property hereinafter described, J. C. and T. A. French, as French Brothers, and first parties thereto, agree to and with the second party hereto, R. D. Ruckman, that as soon as second party secures a full release of all existing claims or liens against said property, first parties will purchase the same and pay therefor the sum of ‡1.000.00, one third thereof at the time of release, any rents paid in excess of two months to be deducted from first payment ; one third in three months thereafter, and last payment of one third of said sum to be paid in three months thereafter, at which time title shall pass from second to first parties.
Said property consists of one boiler, one engine and all the other machinery and fixtm-es now used in operating the same, and located at what is commonly known as the “Ruckman Flouring Mill” site, at Summerville, in Union County, Oregon, and to be hereinafter used and possessed by first parties hereto under and by virtue of a certain lease of even date herewith, at a place in said county and state, about eight miles*238 from said town of Summerville, in operating a general sawmill business.
That first parties hereto hereby hold themselves, their heirs and legal representatives firmly bounden to second party, his heirs and legal representatives in the said sum of $1,000.00, all by the terms and conditions of the above contract, and in any failure upon the part of said first parties to fully perform all of said conditions, then, and in that event, this bond shall be in full force and effect, otherwise it shall be void and of no effect.
Dated at La Grande, Oregon, January 7, 1899.
In presence of French Brothers,
F. S. Ivanhoe. First parties by J. C. French.
R. D. Ruckman, second party.
It is alleged in the answer that the making of this agreement and the execution of the lease of the engine and boiler constituted but one transaction, and that at the time they were entered into it was understood and agreed that plaintiff would, within six months from January 7, 1899, secure a release of said liens, and transfer the property to French Bros. This averment is denied in the reply, wherein it is alleged that said liens amounted to nearly three times the value of the engine and boiler, and that plaintiff could not obtain their discharge without paying the sums due thereon, which fact French Bros., and those in privity with them at all times well knew. An examination of the agreement of French Bros., as herein-before quoted, will disclose that it contains no stipulation upon plaintiff’s part to discharge the liens upon the property, and, this being so, was the testimony sought to be elicited from J. C. French admissible under the issues detailed? The rule is universal that, as between the parties and their representatives and successors in interest, except where an alleged mistake is controverted by the pleadings, or in case the validity of the contract is the fact in dispute, parol contemporaneous evidence is inadmissible to vary or contradict the terms of a written agreement: Hill’s Ann. Laws, § 692; Hoxie v. Hodges, 1 Or. 251; Edgar v. Golden, 36 Or. 448 (48 Pac. 1118, 60 Pac. 2); Tallmadge v. Hooper, 37 Or. 503 (61 Pac. 349, 1127). But where there is a latent ambiguity in the writing, in respect
4. Plaintiff having never stipulated to discharge the liens upon the engine and boiler, there was no ambiguity in the agreement quoted, and the averment in the answer that there was a parol agreement to the contrary was demurrable, and, though issue was joined thereon, it could not be established by parol testimony, and no error was committed in refusing to permit the witness to answer the question propounded to him: Portland Nat. Bank v. Scott, 20 Or. 421 (26 Pac. 276); Wilson v. Wilson, 26 Or. 251 (38 Pac. 185).
Other alleged errors are assigned, but not deeming them important, the judgment is affirmed. Affirmed.