Keith v. Bliss

McAllister, J. In order to show loss suffered by the plaintiff below by reason of the alleged failure by defendants to furnish the quantity of materials to be manufactured by her into clothing for defendants, as required by their contract, the plaintiff, as a witness in her own behalf, was permitted by the court, against the objection of the defendant, to give her opinion as to the amount of profits she would have made, if the defendants had fulfilled their contract in respect to furnishing the materials to be manufactured by her into clothing for them. The defendants below, appellants here, assign that ruling for error. Was the opinion of the plaintiff, without any statement of facts, competent as evidence of her loss or damages? We think not. The general rule which pervades all our law, as respects evidence, is that the witness must testify to facts within his personal knowledge. A witness is not to testify to understandings, deductions, inferences or conclusions. It is the province of the jury to make deductions, draw inferences and conclusions from facts presented to them through the mediumship of witnesses. It is the opinion of the jury, based upon facts properly before them, which must form the verdict and decide the case. Sedg. on Dam. (6th. Ed.) 748 et seq. The general rule, with its principal exceptions, is recognized in Linn v. Sigsbee, 67 Ill. 75, and City of Chicago v. McGiven, 78 Id. 347. We apprehend that the circumstance that it was the plaintiff, and she the proprietress of the manufactory, instead of some other person, who was permitted to show her loss by her mere opinion only, can make no difference in the application of the rule. No matter how well informed the witness may be, or how intellectually competent he may be to draw inferences from facts, yet, in a matter of this kind, the law confines the -witness to the province of stating facts only, and confides to the jury the power and duty of drawing conclusions and forming opinions to be expressed in their verdict. The only legitimate way, therefore, for the plaintiff to prove her loss by showing what profits she might have made, was to give in evidence all the material facts bearing upon the question, and submit them to the jury for their determination as best they might. Masterton v. The Mayor of Brooklyn, 7 Hill, 62; Lincoln v. The Saratoga & Schenectady R. R. 23 Wend. 425; Linn v. Sigsbee, supra; Giles v. O’Toole, 4 Barbour, 261; Cook v. Brockway, 21 Id. 331. The first instruction given for plaintiff is, in substance, that if the plaintiff manufactured the material delivered to her by the defendants under the contract in evidence, in a manner which would have been satisfactory to a reasonable man, under like circumstances as the defendants then were, the defendants as a matter of law, were bound to be satisfied with the manner in which the plaintiff manufactured such materials. It was a material question on the trial, whether the plaintiff had not committed such a breach of the contract as justified the defendants to abandon it. In that view, it seems to us, the instruction does not declare the proper test. The contract was clearly one of bailment. The plaintiff, as workwoman for hire, was bound to apply a degree of skill equal to her undertaking. “ Every mechanic who takes any materials to work up for another in the course of his trade, as where a tailor receives cloth to be made up into a coat, or a jeweler a gem to be set or engraved, is bound to perform it in a workmanlike manner.” 2 Kent’s Com. *588. “ Where skill as well as care is required in performing the undertaking, there, if the party purports to have skill in the business, and he undertakes for hire, lie is bound, not only to use ordinary care and diligence in securing and preserving the thing, but also to the exercise of due and ordinary skill in the employment of his art or business about it; or, in other words, he undertakes to perform it in a workmanlike manner. In cases of this sort he must be understood to have engaged to use a degree of diligence and attention and skill, adequate to the due performance of his undertaking.” Story on Bailments (8th Ed.) § 431, and cases in notes. It follows, therefore, that a substantial failure on the part of the workman, in any of these particulars, will constitute a breach of his undertaking. It is true, that by the contract in this case, the defendants agreed to give the plaintiff a preference of all their work of the descriptions therein mentioned, so long as she did it in a prompt and satisfactory manner; and she agreed to manufacture the materials in a manner satisfactory to the defendants. If she were suing to recover the price of work done by her, it would be a sufficient performance of the condition precedent, to aver and prove that she had done the work with reasonable promptness and in a workmanlike manner. Butler v. Tucker, 24 Wend. 447. But if she were in any substantial degree wanting in the requisite skill, or if having it, she failed to exercise it, or failed in respect to the proper degree of diligence and attention required for the work so that, as a consequence, she returned to the defendants a substantial portion of said work done in a defective and unworkmanlike manner, we are of opinion that the defendants would be justified in repudiating the contract, and refusing to furnish her any more materials thereunder. It follows, from this view, that the modification by the court of the instruction asked by the defendant was erroneous. For the errors indicated, the judgment of the court below will be reversed and the cause remanded. Reversed and remanded.