People v. La MacChia ( 1953 )

TRAYNOR, J.,

Concurring and Dissenting. — I concur in the judgment. Nevertheless I must protest the obsolescent rule, reaffirmed by the majority, that the value of real property cannot be proved by evidence of sales of comparable real property. Only a few courts follow it, and their number diminishes. The most recent to abandon the rule are the Court of Appeals of New York and the Supreme Court of Nebraska. (Village of Lawrence v. Greenwood, 300 N.Y. 231 [90 N.E.2d 53, 56] ; Langdon v. Loup River Public Power Dist., 142 Neb. 859 [8 N.W.2d 201, 206].) It has withered under the devastating attacks on it. (See Wigmore, Evidence [3d ed.], § 463, p. 503 et seq.; 174 A.L.R. 386; 118 A.L.R. 870; 32 C.J.S., Evidence, p. 444 et seq.; City of Los Angeles v. Cole, 28 Cal.2d 509, 517 [170 P.2d 928] [dissent] ; Heimann v. City of Los Angeles, 30 Cal.2d 746, 760 [185 P.2d 597] [dissent].) Why bolster it when it is doomed?

Admittedly such evidence, which everyone uses to determine value, is relevant; so relevant that it is hardly credible that it would be excluded. It is conceded that on cross-examination a witness may be questioned as to his knowledge of sales of comparable property. (City of Los Angeles v. Cole, supra, 28 Cal.2d 509, 518.) On redirect examination he may be questioned regarding such sales in relation to the valuation that he gave on direct examination. (See majority opinion herein disapproving Atchison, T. & S. F. R. Co. v. Southern Pac. Co., 13 Cal.App.2d 505 [57 P.2d 575].) Why is there no concern about collateral issues on cross or redirect examination and concern of phantom proportions on direct examination? The magnified risk of collateral issues must be balanced against the reality of inevitable confusion when jurors hear evidence of the greatest relevance and are then told that they cannot base the value of the property on that evidence.

The trial court has ample power to keep the trial under control. As the New York Court of Appeals noted in its opinion overruling earlier cases, “Instances there may be where proof of sales of comparable property may prompt a line of inquiry which will develop collateral issues likely to confuse the fact-finders and prolong the trial. We regard such disadvantages, however, as more than compensated by the benefit to be gained by the receipt of such evidence subject to the exercise, by the tribunal which fixes value, of its discretionary power to draw the line of exclusion wherever confusion is caused by collateral issues.” (Village of Lawrence v. Greenwood, supra, 90 N.E.2d 53, 56.)

In the present case the owner testified, not to an actual sale of comparable real property, but to an unaccepted offer to buy the property in question. Most courts that admit evidence of sales of comparable property hold that evidence of an unaccepted offer is not of sufficient probative value to justify admission. (See 7 A.L.R.2d 781.) Other courts, however, admit such evidence, if the offer is shown to be bona fide and a sufficient foundation is laid. (Chicago v. Lehmann, 262 Ill. 468, 474 [104 N.E. 829] ; Tharp v. Massengill, 38 N.M. 58, 62 [28 P.2d 502, 94 A.L.R. 726] ; see Union Nat. Bank v. Crump, 349 Pa. 339, 343 [37 A.2d 733].) It is my opinion that when, as here, the offer is bona fide and is for the identical property, and is by a purchaser able and willing to buy, evidence of the offer should be admitted. Accordingly, the trial judge ruled correctly that the witness could mention the offer for his property in giving the reasons for his valuation. (See Long Beach City H.S. Dist. v. Stewart, 30 Cal.2d 763, 773 [185 P.2d 585, 173 A.L.R. 249].)

Carter, J., and Schauer, concurred.