16 Me. 283 | Me. | 1839
The opinion of the Court was drawn up by
The first inquiry is, whether among a variety of other evidence introduced, evidence of certain master builders, who had examined the house, and made an estimate of the expenses as to the probable expense of erecting the house, as erected by the plaintiff, was legally admissible. The action is assumpsit on account annexed for work and labor done, and materials furnished, and a quantum meruit.
The usual way in which proof is made upon accounts for moneys paid to the amount of six dollars and sixty-six cents, for services rendered, goods, wares, merchandize sold, or materials supplied, is by producing the original entries of the charges made, accompanied by the supplementary oath of the party making them, to such articles as are not of such bulk and value as to require other proof. If the entries were made by a clerk, and he be living, and within the process of the Court, his testimony is to be exhibited. Dunn v. Whitney, 1 Fairf. 9. But this is not the only means by which a demand of this character may be established. Receipts, signed by the party to be charged, may be introduced. However prudent and judicious it may be to keep day books, in which transactions of sale may be entered, no man is compelled to keep accounts in writing. With many, who are ignorant, it may be impracticable. If inability do not exist to keep the requisite memo-
Our statute for the relief of poor debtors, when one is to be arrested on mesne process, who is about to depart and establish his residence beyond the limits of the State, with property or means exceeding the amount required for his own immediate support, requires the oath or affirmation of the creditor, his agent or attorney, before a justice of the peace, of reasons to believe and actual belief of the fact, and that the demand in the writ is, or the principal part thereof due him. This measure does not avail to establish the justice of the claim on trial, but is only a security against the abuse of the process of the Court for the purpose of arrest. Whether further legislation be desirable must be left with the appropriate power to decide. In this case, no illegal course was adopted before the jury in attempting to prove the plaintiff’s claim in the absence of the book account. It is objected, that it was totally improper to receive evidence of the probable expense of building the house, of opinions which were merely rough guesses, miserable hearsay.
It was decided in Hathorn & al. v. King, Ex’r, 8 Mass. R. 371, on Mrs. Norris’ will, that physicians may be inquired of whether from the circumstances of the patient, and the symptoms they observed, they are capable of forming an opinion of the soundness of her mind, and if so, whether they from thence conclude that her mind was sound or unsound, and in either case, they must state the circumstances or symptoms, from which they draw their conclusions. So the subscribing witnesses to a will are permitted to testify their opinions respecting the sanity of the testator. Ware v. Ware, 7 Greenl. 42.
In Dickenson v. Barber, 9 Mass. R. 225, it was held, that although the opinions of professional gentlemen on facts submitted to them, have justly great weight attached to them; yet they are not to be received as evidence, unless predicated upon facts, testified either by them or by others.
In Davis v. Mason, 4 Pick. 156, a practical surveyor with long experience, was permitted to bo asked his opinion, whether certain heaps of stones put up, and certain trees were anciently marked, for the purpose of making them monuments of boundaries, because he would have acquired a skill in determining, whether they were so intended.
In a suit for breach of promise of marriage, a witness was permitted to be asked, whether, living with the plaintiff, and from an observance of her deportment, he was of opinion, that the plaintiff was sincerely attached to the defendant, because there are a thousand nameless things, indicating the existence and degree of the tender passion, which language cannot specify. The opinion of witnesses on this subject, must be derived from a series of instances, passing under their observation, which yet they could never detail to a jury. McKee v. Nelson, 4 Cowen, 355.
Whether particular facts, if disclosed to an underwriter, would in the opinion of a witness, conversant with the subject of insurance, as a matter of judgment, make a difference as to the amount of premium, was held to be admissible evidence. 2 Stark. Rep. 229.
In a question of settlement of a pauper, between the towns of Rochester and Chester, in 3 New-Hamp. Rep. 349, where a witness was called to testify to the value of a small lot of land, and a hut upon it, it was held, that the opinion of witnesses as to the value of property owned by the pauper was not admissible, although they were well acquainted with it, and had examined for the purpose of ascertaining its value, and with a view to purchase; on the ground, that the jury must be supposed competent to ascertain this without the aid of such assistance. The like decision was made upon a similar question, between the town of Peterborough and the town of Jaffrey, 6 New-Hamp. Rep. 462. Against this it is laid down by the late Judge Swift, in his digest of the Law of Evidence, 111, that “ in questions with respect to the value of any
In particular branches of trade or manufacture, we hold that the opinions of persons skilled in these respective matters should be received, as well as to the value, as the fidelity and excellence of the work. They are all open to cross examination, and the reasons of their opinion may be required. If opposing testimony be introduced, it is the office of the jury at last to judge which of them is entitled to most weight. We consider that there was no error in the Judge in admitting the testimony of the master builders as to their opinion and estimate of the probable expense of erecting the house as erected by the plaintiff. For it all resulted in helping the jury to determine how much he deserved to receive. And the amendment offered, after the trial had progressed, was within the discretion of the Court to permit.
The instructions given by the Judge, were, that if the Messrs. Haskins were not interested jointly with Parsons in the building of the house, they would not be liable, unless they expressly made themselves so, but if they were jointly interested in the house with Parsons, and had the benefit of it, they would be jointly liable, unless the work was done under a special contract. They were likewise directed, that if the contract was abandoned by the parties, it would furnish no regulation for the price of the work done subsequently. That if they found for the plaintiff, the amount of damages must be settled by the evidence, of which the jury were the judges. And that if they should find that the contract between Tebbetts and Parsons, had been abandoned by them, and that the two Haskins were interested in the building they would find for the plaintiff; but if both or either of the Haskins were not so interested, then they would find for the defendants, as the action could not be sustained, against the defendants, unless they were all jointly liable. This course of instruction we think altogether superseded the necessity of complying with the requested instructions sought for by the defendants. It was as favorable to the defendants as by law it ought to be.
Gibbs C. J. in Robson v. Godfrey & al. 1 Stark. Rep. 220, says, “ I have always understood the rule to be, that you may recover for work executed as for work and labor generally, if the
In the present case, it appears that the contract was abandoned. It is therefore to have no effect whatever in the estimate of the jury, for there is no pretence that any terms, contained in it, were to be binding on the parties. It must be considered as abandoned entirely. Chitty on Contracts, 169; Keyes v. Stone, 5 Mass. R. 391; Tuttle v. Mayo, 7 Johns. R. 132; Lenningdale v. Livingston, 10 Johns. R. 36.
It would seem that the defendant might give the special agreement in evidence, with a view to lessen the damages, and for that purpose it was used. The whole evidence was submitted to the jury, and by them determined.
The exceptions are therefore overruled, and there must be judgment on the verdict.