Wells v. Kelsey.

actual value of the property. On both these questions there was a conflict of evidence; and the jury found adversely to the defendant.

The plaintiff having obtained judgment on the verdict, the defendant appealed to the general term, when the judgment was affirmed. The proceedings on that hearing are reported (38 Barb., 242; and 15 Abb. Pr., 53). The defendant now appealed from the judgment of affirmance.

The questions raised upon the present appeal related to rulings of the court on the trial excluding questions put by the defendant concerning the value of the property.

Upon the trial the plaintiff was sworn as a witness in his own behalf, and testified, among other things, that he bought the property in question on October 1, 1860; that, in his own opinion, the two boilers, at the time of the alleged conversion, were worth as much as if they were new, and were of the value of $800; that the boiler-front was worth at least $50 more; that the boiler-bolts were worth at least $40, and the brick at least $155; thus making an aggregate of $1,045, as the value of the property converted.

To weaken the force of this evidence, the defendant, on his cross-examination, called for the production of his bill of sale. This evidence was excluded, and the defendant excepted.

It afterwards appeared, by the testimony of Durkee & Case, that they had been some weeks endeavoring to sell the property, before they effected a sale to the plaintiff; that the boilers had been two years in use by them before the fire; that the part of the building in which they were was not much injured by the fire, but was afterwards unOccupied; that the boilers were second-hand when they bought them, and that they were lying on a vacant lot at the time of the original purchase.

The defendant, on the cross-examination of Durkee, interrogated him as to the price they paid for the boilThe evidence was excluded, and the defendant ex

ers.

cepted.

Wells v. Kelsey.

He then introduced the testimony of several boiler manufacturers, tending to show that the boilers, when new, were not worth (to exceed) $550, and that in their condition at the time of the alleged conversion, they were worth only from $160 to $350.

Britton & Ely, for the appellant.

A. N. Weller, for the respondent.

PORTER, J.-The principal issue on the trial was as to the value of a pair of boilers, at the time of their conversion by the defendant; which was three days after they were sold to the plaintiff. They were second-hand boilers two years before, when they were bought by Durkee & Case, and they had been exposed to injury from disuse as well as from use.

The plaintiff testified, as a witness in his own behalf, that their value was $800, and that they were worth as much as if they were new. This was competent evidence of value, but it was inconclusive in its nature. It was an estimate resting upon the opinion of a party subject to bias; and it related to second-hand articles, having no certain and definite market value. The statement carried with it no absolute assurance of verity; and even if he made it in perfect good faith, the accuracy of his judgment might be open to question, in view of facts unknown to the jury, but within his personal cognisance. It was the right of cross-examining counsel to elicit these, if they were inharmonious with his evidence. They were at liberty to show that he bought the boilers three days before, on credit, at a fair and open sale, from parties who had used them, and knew their value, for half the sum at which he now assessed them. This seems to be conceded in the opinion delivered, in the court below; but it was held that a different rule prevailed where, as in this case, the injury involved the value of other articles included in the same sale. We do not think such a distinction well founded, nor do we find it recognized in the authorities. The objection, if it has any force, goes to the facility of

Wells v. Kelsey.

proving the fact, and not to its admissibility as legal evidence.

The particular form of the transaction made it necessary to ascertain the relative value of the articles included in the bill of sale. If the plaintiff had testified, in answer to the inquiry, that the other articles embraced in the $1,200 purchase were worth twice as much as the boilers, it would be a reasonable inference that his present valuation of the latter considerably exceeded their cost. It is true that the price which he paid for them would be indecisive as to their actual value; but it might well have a material bearing on the degree of weight to which his estimate of that value was entitled.

But even if this inquiry was properly disallowed, the court erred in excluding proof of the price paid specifically for the boilers, on their purchase by the vendors of the plaintiff. It is assumed, in the opinion delivered at the general term, that if evidence of this kind had been offered, it would have been admissible within the rule, and the fact, disclosed in the printed case, that such proof was tendered and rejected on the trial, seems to have been overlooked. The authorities on this subject are decisive and uniform, and we think the rule they establish is sound in principle (Campbell v. Woodworth, 20 N. Y., 499; Dixon v. Buck, 42 Barb., 70; Crounse v. Fitch, 23 How. Pr., 350; Suydam v. Jenkins, 4 Sandf., 628).

While the law admits the opinions of those competent to judge the application in this, as in other cases, of the usual tests of truth, on the cross-examination of the witness it is legitimate to ascertain his means of knowledge, to scrutinize the grounds of his judgment, and to elicit such specific facts as may aid in applying and weighing the evidence. Such facts are often at variance with the opinions expressed by the witness, which, from the nature of the case, are usually founded on data unknown to the court. On questions of value there is generally room for wide diversity of judgment; and when estimates are loosely made, they should be subject to all reasonable scrutiny. In this instance the inquiries were within the

Sowarby v. Russell.

range of fair and legitimate cross-examination, and we think they should have been allowed by the court. A knowledge of the prices actually paid for the boilers, on two business sales, both ante litem motam, might well aid the jury in weighing the conflicting estimates, and in reaching an intelligent and just conclusion.

The judgment should be reversed, and a new trial should be ordered.

All the judges concurred, except HUNT and Grover, J. J., who took no part.

Judgment reversed, and a new trial ordered.

SOWARBY against RUSSELL.

New York Superior Court; General Term, May, 18CS. FORECLOSURE OF MORTGAGE.-Burden OF PROOF UNDER THIRTY DAYS' CLAUSE.

On trial of an action to foreclose a mortgage, brought under a clause providing that when interest has remained in arrear for thirty days, the whole principal sum shall, at the option of the mortgagee, &c., become due and payable, the mere production of the bond and mortgage is sufficient, the thirty days appearing to have elapsed since a day named in the mortgage for a payment of interest,-to entitle the plaintiff to a decree.

It is not necessary for the plaintiff to prove that the interest has not been paid.

Appeal from a judgment of foreclosure.

This action was brought in October, 1867, to foreclose a mortgage for $800, falling due March 9, 1869.

The mortgage, however, contained a provision in the following terms:

"And it is hereby expressly agreed that, should any

Sowarby v. Russell.

default be made in the payment of the said interest, or of any part thereof, on any day whenever the same is made payable as above expressed, and should the same remain unpaid and in arrear for the space of thirty days, then and from thenceforth, that is to say, after the lapse of the said thirty days, the aforesaid principal sum of $800, with all arrearages of interest thereon, shall, at the option of the party of the second part, his administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired," &c.

The complaint alleged that the mortgagor had failed to comply with the condition, "by omitting to pay any interest thereon, and that more than thirty days have elapsed since the interest became due; by reason whereof, the whole principal sum, with the arrearages of interest, have become due and payable."

The answer substantially denied that the interest was due or unpaid.

Upon the trial, which took place before Chief Justice ROBERTSON, at special term, the plaintiff offered and read in evidence the bond and mortgage, and rested.

The defendant then moved to dismiss the complaint, and for judgment in favor of the defendant, upon the ground that the plaintiff had made no proof of default in payment of interest, rendering the mortgage due.

The court denied the motion, and rendered judgment for the plaintiff; from which the defendant appealed.

W. J. Foster and Elbridge T. Gerry, for the appellant.-I. There was no evidence of any default in the payment of interest. 1. All the evidence offered by the plaintiff was the bond, mortgage and assignment to him. There was no legal presumption of default in payment of interest, from the mere fact that these instruments were in the possession of the plaintiff. The principal of the bond not falling due until 1869, the plaintiff would still retain possession of it to that time, even if the interest was paid regularly, and the presumption is that it was paid regu