Watriss v. Trendall

Tyler, J. This action was brought to recover the amount of certain items claimed by the plaintiff to be due him from the defendant. The controversy seems to have been over the defendant’s account in offset, items of which were for board of the plaintiff himself, his daughter and her husband, which the plaintiff was liable for, though the price had not been agreed upon. The question was, what was a reasonable price per meal and by the week? H. E. Marcey was called as a witness, and in answer to questions by the defendant’s counsel testified, without objection, that he lived a mile from the Watriss place where the board was furnished, and that he knew the price of board in district No. 6. The question was then repeated if he knew the price of board in that district, when the plaintiff’s counsel objected, and the answer was admitted, under his exception, that it was worth 25 cents a meal “if they were to run in by odd jobs.” The witness being told to answer the question directly, the following was asked: “Suppose he was there every meal, * * * what was the price of board in that neigh [57] borhood ?” and the witness answered, under plaintiff’s general objection and exception, that it was worth $3.00. Mrs. Marcey, called by the defendant, testified, without objection, that she lived three-fourths of a mile from the Watriss place; that she had kept boarders, and knew the price of board in that neighborhood. . The witness then being asked what the price was, answered, under the plaintiff’s objection and exception, that it was worth $3.50. On cross-examination she said that she kept boarders twenty-five years ago, and that she based her answer upon the price of board at that time. The trial court evidently found that the witnesses lived in the vicinity of the place where the board was furnished, and knew the price. These facts were testified to without objection, and the witnesses were competent to> give their opinions, within the rule in Kelsey v. Kelley, 63 Vt. 41, 22 Atl. 597, 13 L. R. A. 640; Stone v. Tupper, 58 Vt. 409, 5 Atl. 387; Cavendish v. Troy, 41 Vt. 108. It was the right of the plaintiff’s counsel to1 insist, before the witnesses were asked to give their opinions, that they had not shown themselves competent; but this was not done; only a general exception was taken to the questions and answers in respect to the price, and objection to the competency of the witnesses was therefore waived. No objection having been made at this point, it was in the court’s discretion to1 receive the opinions. The preliminary question whether a witness offered as an expert has the necessary qualification is for the court to decide, and it is largely in its discretion, and unless it appears that there was no evidence of such qualification, the admission of the evidence will not be revised in this court. Perkins v. Stickney, 132 Mass. 217; 1 Greenl. Ev. 573, notes. In the present case, there was evidence that the witnesses had such-knowledge upon the subject that their opinions might [58] be received, and, no objection being made as to their competency, it was clearly in the discretion of the court whether to receive them or not. An item in the defendant’s account in offset was $1.50 for cleaning a drain in the cellar of the house leased by him of the plaintiff. The defendant testified that he did the work at the plaintiff’s request, and upon his promise to pay for it, which the plaintiff denied. On cross-examination he said he dug out the ditch to clean the cellar, and he was then asked, “Did you care enough about the health of your family to dig it out without he asked you to?” which question was excluded, and the plaintiff excepted. The degree of care the defendant had for the health of his family was immaterial. If'he had been permitted to answer, and had said that he did or did not care, the answer would have thrown no> light upon the question whether he did the work at the plaintiff’s request and upon his promise to pay. Therefore the question was properly excluded. Judgment affirmed.