Haskell v. Mitchell , 53 Me. 468 ( 1866 )

Appleton, C. J.,

The note in suit was sold and assigned by delivery before and indorsed after its maturity. Before it was indorsed, and up to the time of its indorsement, a suit to enforce its payment must have been brought in the name of the payee. If so brought, it would have been competent for the maker to show fraud or a failure of consideration by way of defence. The plaintiff, by his purchase, acquired only the rights of an assignee. The in-dorsement after maturity enables the plaintiff to maintain an action in his own name, but it does not divest the defendant of the defence to which he was entitled prior to such indorsement. Such is the well settled law of this State, though it may be otherwise in England. Calder v. Billington, 15 Maine, 398; Savage v. King, 17 Maine, 301.

An exception is taken that a witness was asked in substance to state the difference in value between the horse as represented and as actually existing.- No objection is taken that the witness, of whom the inquiry was made, did not know the horse or was not skilled to judge of its value. The question of value is necessarily one of opinion. In Shaw v. Charleston, 2 Gray, 109, it was held to be well settled law that the value of property, real or personal, when in controversy, might be proved by the testimony of witnesses personally acquainted with the subject, and who are sufficiently familiar with it, to give an opinion of its value. This decision was affirmed in Whitman v. Boston & Maine Railroad, 7 Allen, 313. Opinions are always admitted as to the value of domestic animals. Brill v. Flagler, 23 Wend., 354. In Joy v. Hopkins, 5 Denio, 84, it was held that a witness might be asked what the article would have been worth if it had been of the quality which it was warranted to be. The opinion of a witness who has seen the thing in question and is acquainted with the value of similar articles is competent to be submitted to a jury. Clark v. Baird, 5 Selden, 183.

No misconduct is shown on the part' of the foreman of the jury. The motion to set aside the verdict for alleged misconduct on his part was not relied upon at the argument, and may be regarded as abandoned.

Motion and exceptions overruled.

Cutting, Walton, Dickerson, Danforth and Tapley, JJ., concurred.