Joy v. Hopkins

5 Denio 84

Opinion

By the Court, McKissock, J.

There was no error in allowing the witness to state what the cow would have been worth if “ good and young.” The difference between the present value and what it would have been if as represented is the true measure of damages. (Voorhees v. Earl, 2 Hill, 288; Corey v. Gruman, 4 id. 625.) The rule that a witness must state facts and not opinions, does not apply to cases like the present. How else than by the opinion of witnesses could the difference between an article delivered and the sample by which it was sold be determined ? The value of personal property is constantly established by the opinion of witnesses; and so of facts in relation to many other matters. (Lincoln v. Saratoga R. R. 23 Wend. 433 ; Norman v. Wells, 17 id. 136; McKee v. Nelson, 4 Cowen, 355.) So also it was correct to allow the question put to the witness as to what the animal would be worth if it gave but four quarts of milk per day. " The question was, what that cow which the witness had seen and knew, was worth, giving four quarts; and not what an imaginary animal giving that quantity would be worth.

Judgment affirmed.