Care v. Moore , 41 N.H. 131 ( 1860 )

•Fowler, J.

It may be considered the well-established rule of law in this State, that the proper measure of damages in actions for fraud and deceit in the sale or exchange of property, real or personal, where it is retained by the purchaser, is the difference between the actual value thereof, and its value as represented to be at the time of the sale or exchange, the price paid being very strong, but' not absolutely conclusive evidence of the value of the property as it was represented to be. Fisk v. Hicks, 31 N. H. 535, and authorities; Cary v. Gruman, 4 Hill 625, and authorities; Page v. Parker, 40 N. H. 47.

In the case before us, the price paid for the colt, as it was represented to be, and thirty-five dollars, was the plaintiff’s mare. The value of that mare was the price paid for her, and that price was a horse given in exchange for'her. The age, appearance and qualities of that horse, and the price for which he sold, were therefore competent evidence tending to show tbe value of tbe mare, and in consequence tbe value of the colt, as it was represented to be, at tbe time of the exchange, upon tbe almost axiomatic principle, that things which are equal to the same thing, are equal to one another.

So, too, the age, appearance and qualities of the horse which the defendant obtained in exchange for the mare he had of the plaintiff, with the defendant’s admission of the cash value of that horse, had a manifest tendency to show the cash value of the mare at the time of the trade between the parties, and were admissible evidence to be weighed by the jury in determining the amount of damages which the plaintiff was entitled to recover. Of course, the evidence in both cases was entitled to greater or less weight as the jury might find the prices paid and estimated to be reasonable and fair, and the exchanges, by which the animals'in the one case or the other were obtained, to have been just and equal; but the evidence being competent, and admitted, it was for the jury to determine its importance, and the influence it should exert upon their judgments.

Since the decision in Whipple v. Walpole, 10 N. H. 130, it has been the uniform practice in this State, upon a question as to the value of property, to receive evidence of the price at which other property, of like character and condition, was actually sold in the vicinity, at or about the same time. White v. Concord Railroad, 30 N. H. 188; Beard v. Kirk, 11 N. H. 397.

The only question presented by the exception on this point is, whether, in the case of horses, the price, a year after the date of the contract in controversy, of horses of similar age and description, had any tendency to show the value of such horses at that time. We think it must have had. There have been for many years comparatively slight fluctuations in the value of these animals, and we think the price at which a horse sold at any given time, would be" strong evidence of bis value, in the same condition, a year before or a year afterward.

Nor do we perceive any valid objection to the question proposed to the witness on re-examination. The state of feeling and the relationship of a witness toward the party for or against whom he testifies, may properly be shown, to be weighed with his testimony. Thus it has been holden not irrelevant to the guilt or innocence of one charged with crime, to inquire of the witness for the prosecution, on cross-examination, whether he has not extreme feelings of hostility toward the prisoner. The like inquiry may be made in a civil action, and if the witness denies the fact, he may be contradicted by other witnesses.

In the case before us, the reexamination was in the nature of a cross-examination by the plaintiff as to the matters elicited upon the defendant’s cross-examination of the witness,- and we think it was clearly competent to show by it the relationship existing between the witness and the defendant, as tending to show the probable state of feeling subsisting between them. 1 Gr. Ev. sec. 450; Atwood v. Wilton, 7 Conn. 68; Thomas v. David, 7 C. & P. 350.

The exceptions being overruled, there must, be

Judgment on the verdict for the plaintiff.