Thorn v. Couchman — 28 How. Pr. 95

Majority

p. 95

COUNTY COURT.

Thomas Thorn agt. Hiram Couchman.

Headnote

Witnesses cannot testify to the value of an article without knowledge of it. Thus* if witnesses testify that they have no personal knowledge of the qualities of a cow, they cannot he permitted to testify as to the value of her use for a given time. Assuming that she was an ordinary cow does not authorize the testimony.

Schoharie County Court,

October, 1864.

This action was brought in a justice’s court of Schoharie county, for damages on breach of warranty on the sale of a cow by defendant to plaintiff, whereby the plaintiff was deprived of the use of a new milch cow, which, by the terms of defendant’s contract, was to become a new milch cow in the month of April, 1863. On the trial, the plaintiff put the following question to Willis Thompson, and other witnesses : “ What would be the value of the use of the cow in question during the month of May, and up to the 10th of June, from the last of April, if she had come in, in the latter part of April ?” This was objected to by defendant, 1st. That the witness was incompetent to judge of the value of the use of the cow. 2d. The witness had not been shown to know anything of her qualities or goodness.

The justice overruled the objection; the question was allowed to be asked of three witnesses. The justice ren

p. 96

dered judgment in favor of the plaintiff for ten dollars and eleven cents. The defendant appeals to this court.

L. & N. W. Falk, for appellant.

Mr. Baldwin, for respondent.

This action is sought to be maintained because the plaintiff was deprived of the use of a cow, which, by defendant’s contract, was to become a new milch cow in the month of April, 1863. The contract and breach were established.

The question put to Willis Thompson, and other witnesses, as to the value of the use of the cow, was improper. They testified they knew the cow, but there is no evidence that they had any knowledge of her qualities. Two of the witnesses base their opinions upon what does not appear to be established by evidence, viz.: Upon the assumption that she was an ordinary cow.

The law allowing opinions as to value, has not yet gone so far as to allow witnesses to speak to such things without knowledge. In this case, Hover and Layman, two of the witnesses, testify that they had no personal knowledge of the qualities of this cow. Without knowledge of her qualities, they cannot testify as to the value of her use. For this reason I think the judgment of the justice should be reversed.