Winter & Co. v. Burt

STONE, J. — The bill of exceptions shows that John Burt had not the requisite knowledge to enable him to speak nnclerstauding’ly of the value of the machinery; and be should not have been allowed to give his opinion. 1 Greenl. Ev. § 440; Whipple v. Walpole, 10 N. Hamp. 130; Robertson v. Starke, 15 N. Hamp. 109. The question propounded to the witness Gotbell, was also improper. It asked him to draw a conclusion from premises not justified by the law. Neither the cost of the machinery, nor the representations made as to its performance, could, in the form in which the question arose i n this case, be considered by the witness in fixing its actual value. Its value -was dependent on other considerations; and hence these should not have been made, to any extent, the basis of his opinion. There are decisions of this court which hold, that the contract price may he considered in ascertaining the damages. — Milton v. Rowland, 11 Ala. 732. That principle has nothing to do with this case. The record does not inform us by whom the witness Gotbell was introduced. Ifhewason his direct examination, wTe are not able to perceive the pertinency or relevancy of the question, which inquired of him “if he had ever knorvn theories to fail.” On the other hand, if this question was propounded on cross examination, we cannot say, from anything apparent in this record, that it was improper. In Stoudenmeier v. Williamson, 29 Ala. [38] 564-65, we employed the language, in reference to this subject, that “much must be left to the enlightened discretion of the presiding judge.” See, also, Hopper v. Ashley, 15 Ala. 457. These rules will enable the presiding judge to rightly dispose of this question, should it arise on another trial. The 4th and 8th assignments of error present substantially one and the same question. Both Warner and Lamb seem to have been, at most, agents of Gindrat & Co. The business of the former, so far as we are advised by the bill of exceptions, was “to correspond for the corporation, on such matters as shipments of machinery, and accounts due.” We are not informed that he had any authority to make or alter contracts. In writing the letter which was read in evidence, he was engaged in no act, which will let in the declaration he made in relation to Hoyle, as part of the res gestae. We are not informed that Lamb’s agency extended beyond the mission to ascertain if the machinery were correctly put up. This was not such an act as allowed the declaration of the agent to come in, in explanation of it. — See 1 Greenl. Ev. § 113; Brown v. Harrison & Robinson, 17 Ala. 774. The 5th assignment of error is not well taken. The question was asked on cross examination; and under the authority of Stoudenmeier v. Williamson, supra, we cannot say the circuit court erred in allowing it to be answered. The 6th assignment of error arises out of statements in the bill of exceptions which are made in terms so meager, and so entirely without the surrounding circumstances, that we prefer not to pass upon it. The 7th assignment seems to be well taken. We are not informed that Smith was an engineer or machinist, or under whose employment he was acting. How the fact that he took out the saw and put it back, and the result, to-wit, that the saw did not then work as well as it did before, can legitimately be brought to bear on the issue formed in this case, we are left entirely to conjecture. The judgment of the circuit court is reversed, and the cause remanded.