Clark v. Zeigler , 85 Ala. 154 ( 1887 )

SOMERYILLE, J.

When this case was last before us, we held that the measure of the plaintiff’s damages, for the alleged breach of the defendant’s covenant of warranty, would be the diminished value of the whole tract of land by reason of the incumbrance created in favor of Wadsworth; or, in other words, the difference between the value of the whole tract, if the title were good, and its value as depreciated by' the incumbrance. — Clark v. Zeigler, 79 Ala. 346. To this rule we adhere, not on the ground that its application will work exact justice in all cases, but it seems to go as far in that direction as is practicable from the application of settled principles of law relating to cases of this nature. — Chipman v. Hibberd, 6 Cal. 162.

So, we held that the value of the trees cut by Wadsworth from the incumbered portion of the land, under his license, would be admissible as a fact relevant to show what damage was occasioned by this incumbrance.

The rulings of the Circuit Court are in accord with these principles. It was permissible to prove how many trees Wadsworth cut, under the contract, from the forty-acre tract covered by the incumbrance complained of, and also their value, but not the number or value of trees cut from the other part of the land. As to these trees he was a trespasser, and would be liable to Clark as such, if they were cut prior to October 10th, 1883, the date of Clark’s deed to Zeigler; or to Zeigler himself, if cut after that date. Their value was foreign to any issue involved in this case.

The court properly refused to allow the witness Estes to be asked, what good farming land was worth in the neighborhood of the land in controversy. This question would necessai’ily raise a further inquiry, involving a compai'ison between tlie relative merits of these and the other neighboring lands referred to, which would tend to di’aw away the minds of the jurors from the true point in issue, and thus mislead them.

The court erred, however, in refusing to allow the plaintiff to be asked, on cross-examination, whether he had not been offered as much as one dollar per acre for the land, which he had testified was worth only ten cents per acre. Whether it be permissible to prove the value of the property by showing that a solvent person had made a bona fide offer of a cex’tain sum for it, is not the precise point of inquiry.presented by the case before us. The question here is one propounded on cross-examination, where the range of inquiry is of greater latitude. The testimony of the witness as to value was a„ mere matter of opinion, liable to be influenced by prejudice in his own behalf. The inquiry has a tendency to test the extent of this bias of the witness, and should have been allowed for.this purpose at least. If such an offer had been made, and refused without a sufficient excuse, it would tend to impeach the fairness of the witness’ depreciated estimate of value placed on tbe land, and to call for some explanation of tbe reasons upon wbicli it was founded.

We have examined tbe other rulings objected to, and find tbem to be free from error.

Reversed and remanded.