
    Reed v. McConnell, survivor, etc.
    
      (Court of Appeals,
    
    
      Filed January 19, 1886.)
    
    Evidence—Witness must state facts, not opinion.
    Witness must state facts, not give opinions; and a question as to what, in the judgment of the witness, would he the value of a contract to tan sole leather at O., if certain conditions existed, which are detailed, is improper.
    
      M. D. Grover,, for appellant.
    
      A. Pond, for respondent.
   Earl, J.

So far as we are now concerned with this action, it was brought to recover damages for the breach of an agreement, on the part of the defendants, to take the plaintiff into a partnership in a. tannery. The material faóts, as found by the referee, are as follows : In the month of March, 1877, the plaintiff solicited the defendants to enter into the project of building a tannery at Oregon, in the county of Warren in this state. He, at the time, owned a contract for the purchase of a site for the proposed tannery, and also a refusal or option for the purchase of 50,0000 cords of hemlock bark on the tree, in the vicinity of the site. In the month of May, 1877, negotiations were entered into between him and the defendants for the pinchase of the tannery site and bark by the defendants, and the build. ing of the tannery, and about the middle of that month an agreement was entered into between him and them in re • gard to such purchase, the building of the tannery, and the tanning of hides thereat, as follows, viz.: The defendants, were to furnish to the plaintiff the money to purchase the tannery site, to erect a tannery thereon, and to supply the same with the necessary machinery, conveniences, tools, etc., to properly run the same so as to tan sole leather; the plaintiff was to negotiate such purchase, and superintend the building of the tannery, negotiate for the purchase of the bark (to be paid for by the defendants), and he was to receive from them for his services the sum of $1,000 per year. On the completion of the tannery and the purchase of the bark, the defendants were to stock the tannery with hides for tanning, and were to sell the leather tanned therefrom. On the completion of the tannery the plaintiff was to have the superintending of the same and conduct, the business of tanning sole leather thereat. The profits of such business were to be distributed as follows, viz.: After-all expenses in carrying on and running the tannery, interest on all capital invested at the rate of seven per cent per annum, five per cent commission for buying the hides, and six per cent commission for selling the leather tanned therefrom, had been taken out by the defendants, the balance of the profits, if any, were to be divided between the parties in the proportion of one-third to the plaintiff and two-thirds, to the defendants.

The plaintiff, in superintending the building and running the tannery, was to spend only one-half of his time, for which he was to receive from the defendants the sum of $1,000 per year, to be included in the running expenses of the tannery; and his board and the keeping of his horses while at the tannery were to be paid by the defendants as a portion of the expenses of building, and, after the erection, of running the tannery. The business was, by the terms and conditions of the agreement, to continue for the period of twelve years. Pursuant to the agreement ,the tannery site, bark, and bark contracts were purchased, thetannery was erected, and stocked with hides, and the business , of tanning sole leather thereat was commenced. The defendants furnished hides to stock the tannery, and the plaintiff conducted the business of tanning, and had charge of the tannery and business thereat, until on or about the 1st day of October, 1878, when the defendants, without cause or provocation, and in violation of their agreement, discharged and removed the plaintiff from the business and the superintendency of the tannery, and from all connection with the business, and then and ever since have declined and refused to employ and continue the plaintiff in the business, and to pay the plaintiff any profits arising from the business, and have claimed, and still do claim and insist, that, he" has no right or title in the tannery building, bark, or business, and refuse to carry out their agreement with the plaintiff, and the referee found that the value of the agreement to the plaintiff would have been, if carried out in accordance with its terms, the sum of $12,000, and that he was, by reason of the breach of the agreement, damaged in that sum.

Upon the trial of the action the plaintiff was allowed to prove the value of his agreement and the amount of his damages by the opinions of witnesses. He, as a witness on his own behalf, was asked this question: “ What, in your judgment, was the net value of your contract with the defendants, if carried out, to go into partnership with them, per annum, taking into consideration the rental value of the property, the expense of purchasing hides and sale of leather, and all the expenses connected with tanning?” To this the defendants objected, among others, upon the grounds that the court was to determine the value from the facts found; that such value could not be determined from the opinion of the witnesses. The referee overruled the objection, the defendants excepted to the ruling, and the witness answered: ‘ ‘At least $3,000 per year, besides my stipulated compensation of $1,000.” Another witness was asked this question: “What, in your judgment, is the value of a contract for tanning sole leather at Oregon tannery, as follows: You are to have one-third of the net profits of that tannery for twelve years from July or August, 1877, to be included, in addition to the ordinary expenses of the tannery, $1,000 per year for foreman and general supervision, the interest on $20,000 at seven per cent, cost of the tannery, and commissions for the purchase of leather and purchase of hides ?” There were the same objections, ruling and exception as before, and the witness answered: “I think from $3,000 to $4,000 per year.” Another witness was asked tins question: “ State whether oi not, in your judgment, tanning could be made profitable at Oregon tannery, the tannery to have the capacity of 400 tons a year; tanning by the non-acid process: tannery to cost $20,000; the usual commissions to be paid-five per cent for buying hides and six per cent for selling leather— the contract to continue twelve years, commencing in January or February, 1878. with a contract for 50,000 cords of bark, at fifty cents a cord, on the tree, on the (Griffin lands,'and roads built to land. If so, how profita ble ? ” The defendants objected to this as incompetent and not the proper measure of damages. The referee overruled the objection, and the witness answered that the tannery could be made profitable, and the profit would be at least $9,000 per year. Subsequently the same question was put to another witness, and objected to upon the same grounds, and the objection was overruled, and the witness answered that a profit of $12,000 per year could be made for twelve or fifteen years.

We think these opinions were improperly received. They violated the general rule of evidence that witnesses must state_ facts, and not give opinions, and they do not come within any of its exceptions. There is no certain or proper basis for such opinions, and that they are of little or no value as guides to a just result plainly appears. Several witnesses of the defendants testified that the tamiery, under the conditions mentioned in the contract, could make no profits, and the referee, upon the request of the defendants, found that no profits had been made in the tannery when the plaintiff left it, and that the running and operating the tannery in a proper and workman-like manner, and with bark received under the contract with Griffin, had actually resulted in a loss down to January 14, 1880, near the commencement of the trial. The necessities of the case are not ■such as to justify the opinions. All the facts of any value can be stated and placed before the court, and from them the disinterested triers of fact can draw the inferences and make up judgments better than witnesses generally friendly to, if not biased in favor of the party calling them. The defendants could evidently find as many witnesses to swear that no profits could be made as the plaintiff could to swear that profits could be made-, and thus the ultimate conclusion as to profits and damages would, after all, have to be based upon the facts stated. In this case all the facts ■should be proved, and with the aid of the light which subsequent events have shed upon the value of this agreement, the trial court will be able to reach a conclusion as to such value more reliable and satisfactory than the opinions of witnesses. Wo refer, for a fuller statement of our views as to the proof and rules of damages, to the case of Wakeman v. Wheeler & Wilson Manuf'g Co. (4 Northeastern Rep., 264, just decided by us). The opinion in that case is quite applicable to this, and sufficient authority for the conclusion we here reach.

The judgment should be reversed, and new trial granted; costs to abide event.

All concur, except Andrews and Miller, JJ., absent.  