Harris v. Smith

52 A. 854, 71 N.H. 330, 1902 N.H. LEXIS 33

• Court: Supreme Court of New Hampshire
• Decided: April 1, 1902
• Status: Published

Opinion

Blodgett, C. J.

The plaintiff’s purchase from Merriam under circumstances strongly tending to show an estoppel, if not authorization and ratification, on the part of Clark, conferred upon her title to the wood in controversy; for even if Clark did not part with his interest in it by the sale to the plaintiff, the defendant show's no right or title to the wood derived from Clark. “ In an action of trover, the defendant cannot set up the defence of property in a third person without showing some right, title, or interest in himself derived from such person.” Harrington v. Tremblay, 61 N. H. 413.

Bean’s opinion of what was a fair price for hauling the wood was competent. The inquiry was not one calling for expert testimony in a matter of science, art, or skill, but one seeking information from the witness in relation to a subject as to which he had the means of information, and upon which knowledge may be attained by common observation and experience. Currier v. Railroad, 34 N. H. 498, 508; Nutter v. Railroad, 60 N. H. 483, 485; Wells v. Eastman, 61 N. H. 507, 508. An opinion under such circumstances is to be regarded as essentially a conclusion of fact derived from proper sources. Leach v. Bancroft, 61 N. H. 411, 413.

No error is discovered in the instructions of the court to the jury so far as they appear in the reserved case; and if, as is now claimed, the instructions assume the existence of facts of which there was no evidence, the defendant’s general exception is unavailing. “ In such a case there must be a specification of error, so that the attention of the court may he called to it and the error corrected before the jury retire, or the verdict will not be disturbed.” Emery v. Railroad, 67 N. H. 434, 435, and authorities there cited; Wheeler v. Railway, 70 N. H. 607, 615.

Exceptions overruled.

All concurred.