
    *McCormick & Co. v. Hamilton, Wood, & Co.
    June Term, 1873,
    Wythevill.
    I. Contract of Sale — Personalty—Refusal to Accept. — H contracts to sell to M not less than 200 and not more than 300 good fat hogs, each to weigh not less than 180 lbs. gross; to be delivered at G by the 8th December, and to be weighed at the scales at G. And M binds himself to pay to H for the said hogs, when weighed, 1354 cents per pound gross weight, part cash and part in twenty days. H has at G on the 8th of December 241 good fat hogs, of which he gives M notice, but M declines to take them, and does not come to Gon that day. H on that day procures R, the weighmaster at the scales, and G to weigh the hogs; and they weigh them in 16 parcels of from 7 to 20 hogs in a parcel, showing from the aggregate weight of all and the weight of each parcel, that the average weight is much over 180 lbs. gross. Held;
    1. Same — Same—Same—Action for Damages. — H may maintain an action on the contract against M for the damages sustained by him for the failure of M to comply with his contract.
    2. Same — Same—Same—Same — What Seller Must Show. — To entitle H to recover from M, it is not necessary for him to prove that of the whole 241 hogs each weighed over 180 lbs. gross, and were “good fat hogs; ” but if he prove that any number of them over 200, were of such weight and duality, he is entitled to recover.
    3. Same — Same—Same—Same—Same.—It is not necessary that H should have had each hog weighed separately in order to entitle him to recover, but if he proves to the satisfaction of the jury, that 200 or more of them each weighed 180 lbs. that is sufficient.
    4. Evidence — Opinion of Witness — Allowed.'—An experienced drover of hogs accustomed to butchering and weighing them, who was present when the hogs were weighed, and saw them and attended to the weighing of them, may give to the jury his opinion as to the weight of each hog.
    *5- Same — Same—Original Evidence. —As the hogs had not been weighed separately, either at G or afterwards, the opinion of the witness is not substitutional, but is original evidence; and the best which under the state of facts is attainable.
    6. Same — Market Price. — There having been no market price for hogs at G, on the 8th of December, H may show by testimony, what was the market price at that time, and shortly before and afterwards, in the surrounding country.
    This was an action on the case in the Circuit court of Washington county, brought in January 1866, by Hamilton, Wood & Co. against McCormick & Co., to recover damages for the failure of the defendants to comply with a contract for the purchase of a number of hogs from plaintiffs. The declaration sets out, that the defendants on the 27th of November 1865 entered into a contract in writing with the plaintiffs, signed by- the parties, by which the plaintiffs agreed to deliver at the scales, near Glade Spring depot, which plaintiffs aver was in the county of Washington, not less than two hundred and not more than three hundred good fat hogs, and each hog not to weigh less than one hundred and eighty pounds gross, at the above scales where all the hogs were to be weighed; said hogs were to be delivered against the 8th day of December 1865. For and in consideration of which the said defendants McCormick & Co. bound themselves to pay to the plaintiffs, for 'the said hogs, when weighed, thirteen and a half cents per pound gross weight, in the following way and manner, to wit: one draft on the city of Baltimore, for two thousand dollars in currencjq five hundred dollars in currency, and as much as five hundred dollars more, if possible, on the day of delivery, and the balance in twenty days (all in currency) after the delivery of said hogs; and the plaintiffs aver that they in due time and manner proceeded to perform the said contract on their part, in all things to be done by them, and that they, in accordance with *the terms of said contract had, on the 8th day of December 1865 at the scales near the Glade Spring depot, in the county of Washington aforesaid, ready for delivery to the defendants, two hundred and forty-one good fat hogs, each not weighing less than one hundred and eighty pounds gross at the scales where all said hogs were, according to the said contract, to be weighed — of which the defendants had notice. And they further aver that the defendants did not attend at the said scales near the Glade Spring depot, to receive the said hogs, as by their contract they were bound to do. And the plaintiffs further aver that the defendants refused to perform their said contract at the time and place, and in the manner therein stipulated and provided; and that they did not attend to receive the said hogs on the 8th of December 1865 at, &c. as by their contract they were bound to do. And they then allege the breach of the contract in failing to pay the money, &c. Damages $5,000.
    McCormick & Co. appeared, and demurred to the declaration; but the court overruled the demurrer: and they then pleaded non assumpsit; on which issue was joined.
    The cause came on for trial in September, 1871; and in the progress of the trial, the plaintiffs, after introducing the written agreement between the parties, which is correctly set out in the declaration, John Hamilton, one of the plaintiffs, was introduced as a witness, who proved that he delivered two hundred and forty-eight hogs at J:he scales near the Glade Spring depot, on the 8th of December, 1865, except seven which he sold ■ to Dr. Smith, these seven being the smallest of the lot, leaving two hundred and forty-one hogs: that he sent notice to McCormick, one of the defendants, that he was ready to deliver the hogs; and that McCormick failed or refused to attend. Witness then procured M. A. Robinson, the weighmaster, haying control of said scales, and‘*Dr. Smith, who weighed the said two hundred. and forty-one hogs, and they weighed fifty-six thousand and forty-two pounds; witness kept a memorandum of their weight; that the hogs were not weighed separately; they were weighed in lots of from seven to twenty. Witness was then asked by plaintiffs’ counsel, if in his opinion each hog would weigh one hundred and eighty pounds. The court declined to permit the witness to answer the question ; but ruled that if the plaintiffs could show by the witness that he was an expert, that he might be enquired of as to his opinion as to the weights. The witness thereupon in answer to a question by the counsel, said, that he had been dealing in hogs since he was fifteen, and he was then forty-three; that he had not driven hogs each year, but had bought and sold by weight, and tested his judgment by actually weighing the hogs, and that he considered himself a judge of the weight of the hogs offered to McCormick & Co. ; and that in his opinion, there was no one of said hogs that would not weigh more than one hundred and eighty pounds gross. To the opinion of the court in permitting the witness to testify that he was an expert, and that in his opinion no one of the hogs offered to McCormick & Co. would weigh less than one hundred and .eighty pounds, the defendants excepted.
    In the progress of the trial the plaintiffs introduced L. R. Johnson as a witness. This witness gave the distances of Bristol, Abingdon, and other places from the Glade Spring depot; and he was then asked by the plaintiff’s counsel to state what he knew about the market price of pork at Glade Spring, on the 8th of December,. 1865, and throughout the surrounding country, extending as far as Bristol, which he had stated was twenty-eight miles off; to which the witness replied that he knew nothing of the market price at Glade Spring; that in *the last week in November he bought a lot of hogs at his house in Bristol, at ten cents net; and that about the 15th of December, 1865, he bought another lot at $9.75 net. That ten cents net, according to the custom of the country, was about equal to eight cents gross.
    The defendants then moved the court to exclude so much of the evidence of the witness as referred to a market price of pork at Bristol, until and unless the plaintiff 'could show that there was no fixed market price at Glade Spring, or at anjr point in the surrounding country nearer to Glade Spring than Bristol.
    The plaintiffs’ counsel then stated that they expected, after enquiring as .to the market at Bristol, to introduce evidence as to Abingdon and other points mentioned by the witness; that they selected Bristol as the point at which they would begin the enquiry, because they expected to show it was a more extensive market than any other one of the designated points. The defendants still insisted on their objection to the evidence; but the court refused to exclude the evidence; and the defendants excepted.
    After all the evidence had been introduced, the defendants moved the court to give to the jury the following instruction:
    No. 1. Unless the jury believe from the evidence, that each hog of the two hundred and forty-one hogs in plaintiffs’ declaration mentioned, weighed not less than one hundred and eighty pounds gross, at the scales near Glade Spring' depot, on the 8th of December, 1865, they must find for the defendant.
    This instruction the court refused to give ; and instructed the jury as follows:
    Unless the jury believe from the evidence, that the plaintiffs had on the 8th day of December, 1865, at the scales near the Glade . Spring depot, ready for delivery to *the defendants, not less than two hundred good fat hogs, each weighing not less than one hundred and eighty pounds gross, at the said scales, they must find for the defendants. To which action of the court the defendants excepted.
    The defendants then asked the court to give the following instruction:
    No. 2. The words “good fat hogs” in the contract, mean hogs that were sound, merchantable and free from disease, as well as fat; and unless the jury believe from the evidence, that each of the two hundred and forty-one hogs on the 8th of December, 1865, when they were weighed and ready to be delivered to the defendants, was sound, merchantable and free from disease, they must find for the defendants.
    This instruction the court refused to give ; and instructed the jury as follows:
    The words “good fat hogs” in the contract mentioned in the declaration, mean sound, merchantable fat hogs, free from disease; and unless the jury believe from the evidence, that the plaintiffs had, on the 8th day of December, 1865, at the scales near Glade Spring depot, ready for delivery to the defendants, not less than two hundred hogs, each sound, merchantable and free from disease, then .they must find for the defendants. And the defendants again excepted.
    The defendants then asked for a third instruction, as follows:
    No 3. The true construction of the contract between the parties in this case is: That the plaintiffs were to deliver to the defendants at the scales at Glade Spring, on the 8th of December, 1865, not less than two hundred and not more than three hundred good fat hogs, each weighing not less than one hundred and eighty pounds; and that the weight of each hog was to be ascertained *by weighing it separately. And if the jury shall believe from the evidence, that the plaintiffs did not weigh each hog separately of the lot of two hundred and forty-one hogs offered to be delivered, then they did not comply with the contract on their part, and the defendants are not liable to them in damages. But the court refused to give the instruction: and the defendants again excepted.
    The jury found a verdict in favor of the plaintiffs for $3,082.31 with interest from the 1st of January 1866; and thereupon the defendants moved the court for a new trial, because the verdict was contrary to the law and the evidence, and because the damages were excessive. But the court overruled the motion, and rendered a judgment on the verdict in favor of the plaintiffs. And the defendants again excepted.
    Although the bill of exceptions commences by saying the following were all the facts proved, it proceeds to set out separately the testimony of each witness, as well as the written evidence.
    It appears plainly from the evidence that the written contract between the parties is correctly set out in the declaration; that the plaintiff had on the morning of the 8th of December 1865, at the Glade Spring depot, two hundred and forty-one fat hogs, ready to be delivered to the defendants; that they gave notice to the defendant McCormick on the day before and on that morning, and that he declined to receive them; that neither of the defendants were at the place during the day of the 8th of December; that the plaintiffs procured M. A. Robinson, the weighmaster,. at the scales, and Robert ff. Smith, to weigh the hogs, which were driven upon the scales in sixteen different parcels, from seven to twenty in a parcel; that they kept a memorandum of the number of hogs in each parcel, and the weight, and that the *whole number weighed fifty-six thousand forty-two pounds; and this memorandum was in evidence before the jury: that the plaintiffs kept the hogs at the Glade Spring depot until Sunday evening following, when they drove them to Dr. Beatties, and there they slaughtered and packed them. There were several witnesses who expressed the opinion that each of the two hundred and forty-one hogs, would weigh at the time, one hundred and eighty pounds gross. Robinson and Smith expressed a confident opinion that two hundred of them would each have weighed one hundred and eighty pounds gross; and believe that the other forty-one would have done it, but they would not be positive in that opinion. These witnesses also, as well as the persons who drove the hogs to the place, spoke of them as good fat hogs. Some of the witnesses who saw the hogs after they were killed, spoke of two or three of them that had spots on their skin, and which were packed separately; but the others, according to all these witnesses, were sound and healthy. There was some evidence, on the other hand, that there was cholera among the hogs in East Tennessee, in which these hogs were purchased; and there was proof that two died, one on the way to Dr. Beatties and the other on the night after they got there; but there was no proof as to the cause of their death. One of the witnesses who helped to dry the lard said she was to receive some of it for her compensation, and what she received was not fit for use; and others spoke of the diseased appearance of some four or five of the hogs. Several witnesses were examined as to the market price of pork on and about the 8th of December 1865. It appeared that there was no market price at Glade Spring; and the witnesses gave the price at Bristol and Abingdon about that date. From these it would appear that shortly after that time, *the market price was about ten cents per pound net, equal to eight cents gross.
    Upon the application of McCormick & Co., a writ.of error and supersedeas to the judgment was allowed them.
    John W. Johnston, Jno. A. Campbell and J. T. Campbell, for the appellants.
    I. The demurrer to the declaration should have been sustained.
    XI. It was error to permit the plaintiff Hamilton to give his “opinion” as an expert of the weight of each hog.
    1st. Because this is not a case in which expert testimony can be heard. Hew England Glass Co. v. Lovell et al., 7 Cush. R. 319; 1 Greenl. Ev. R to § 440; 1 Smith’s E. C. 772; Norman v. Wells, 17 Wend. R. 136.
    2d. The opinion of Hamilton was merely substitutionary for the positive evidence ■which could have been obtained by the scales, and therefore inadmissible. 1 Greenl. Ev. § 82.
    III. The Court held that the measure of damages in this action was the difference between the contract price and the market price, on the day and at the place of delivery. And if there was no market at the place of delivery, then the price of the nearest market was to be taken. Shepherd et al. v. Hampton, 3 Wheat. R. 200; Gilpins v. Consequa, 3 Wash. C. C. R. 184; Shaw v. Nudd, 8 Pick. R. 9; Gordon et ais. v. The Vaughan, &c., 1 Am. Eaw T. R. 9.
    It -was error, therefore, to receive such evidence as Jonas Kelly’s and E- E. Johnson’s, when objécted to.
    IV. The court erred in giving “Courts Instructions, No. 1 and No. 2, ’ ’ instead of • “Instructions, No. 1 and 2.” 6 Gratt. 285; 11 Gratt. 587; 15 Id. 230; 17 Id. 472.
    *V. This is an action brought on a written contract of dependent covenants, to recover damages for the failure of the defendants in the court below to receive and pay for a lot of hogs. To entitle the plaintiffs below to recover, they must have shown a performance by them of all precedent conditions. This they failed to do. It was error to refuse to give instruction No. 4, asked for by plaintiffs in error. See Cutter v. Powell, 6 T. R. 320; Brocken-brough v. Ward’s adm’r, 4 Rand. 325; Notes to Pordage, v. Cole, Saund. R. 319, a. b. cf ; Thorp v. Thorp, 12 Modern R. 455; Holdipp v. Otway, 2 Saund. R. 102; 14 Gratt. 460, Moncure, J. ; 9 Gratt. 154, Daniel, J.
    VI. The verdict of the Jury should be set
    1st. It is contrary to the law as charged by the court in instruction No. 3.
    2d. It is.manifestly contrary to the evidence.
    B. R. Johnston and James W. Sheffey, for the appellees.
    1. There is no error in the ruling of the Circuit, court, or in the verdict and judgment, or in the refusal to set aside the verdict and grant a new trial. The judgment was just upon the merits and right upon principle.
    The judgment appears from the whole record to be substantially right, and ought to be affirmed, according to repeated decisions of this court. Davis v. Miller, 1 Call 127; Norvell v. Wood, 1 Munf. 555; Hilb v. Peyton, 22 Gratt. 550; Calbreath v. Va. Porcelain & Earthenware Co., 22 Id. 697.
    2. The contract on the part of Hamilton, Wood & Co. to deliver the hogs, imposed upon McCormick & Co. the correlative obligation to receive them at the time and place designated. White’s adm’x v. Ton-cray, 5 Gratt. *179, 188, Baldwin, J. : “There can be no contract without mutual obligation.” Innis v. Roane, 4 Call 379.
    3. The case is one of entire readiness on the part of Hamilton, Wood & Co. to comply with the' contract and to deliver the hogs according to contract at the time and place specified, and an absolute refusal on the part of McCormick & Co. to receive them, or even to be present, though notified before and after they were weighed of such readiness. When notified- that the hogs were ready to be weighed and delivered, McCormick said he wanted to have nothing to do with them; and when notified that they were weighed and ready to be delivered, he said he would have nothing to do with them. The only reason for refusing to take them ever assigned by him, was, that hogs had declined; and the true reason was, that they had declined heavily. The action, therefore, was for breach of the contract, and for refusing to attend to receiving the hogs and to pay for them, as the defendants were bound to do. The measure of damages was that adopted by the jury and the court, the difference between the contract price and the market price at the time and place of delivery. Merryman v. Criddle, 4 Munf. 542; Chitty on Contracts 766; Enders v. The Board of Public Works, 1 Gratt. 364, 389; 2 Greenleaf on Evi. ü 261.
    4. “The jury are the proper judges of the damages; and where there is no certain measure of damages the court, ordinarily, will not disturb their verdict, unless on grounds of prejudice, passion or corruption in the jurjT. ” 2 Greenleaf S. 255. But, in this case, the market'price at the time and place was proved, and the verdict of the jury, so far from being contrary to the evidence, was fully sustained by the facts proved, as certified. A conflict of testimony cannot disturb the verdict. Peterson v. Ayre, 76 Eng. Com. E. R. 351, 369, note; 2 Parsons *on Contracts, 647-8-653 ; 3 Id. 209-10; Cost v. Am-bregate Railway Co., 79 Eng. Com. E. R. 126, 140 to 147; 4 Rob. Pr. 294-5, 303-4.
    
      
       Evidence — Opinion—Non-Expert.—in Tyler y. Sites, 90 Va. 542, 19 S. E. Rep. 174, the court said: “Undoubtedly there are questions npon which non-experts may give their opinions, as, for example, questions of identity, velocity, distance, and the like, because such questions usually depend upon a variety of circumstances which are incapable of being- presented with their proper force and significance to any but the observer; and hence this court has held such evidence admissible on the question of insanity, its value depending- upon the intelligence of the witnesses, their means of knowledg-e, and the reasons they give for their opinions. Cropp v. Cropp, 88 Va. 753, 14 S. E. Rep. 529. But opinions are never re_ ceived if all the facts can be ascertained and made intelligible to the jury, or if the matter is such as men in general are capable of comprehending and understanding. 7 Am. & Eng. Ency. of Law, (1 Ed.) ‘Expert and Opinion Evidence,’ p. 493.”
      That non-professional evidence is admissible to prove insanity seems well settled in Virginia, see Cropp v. Cropp, 88 Va. 759, 14 S. E. Rep. 529; Fishburne v. Ferguson, 84 Va. 87, 4 S. E. Rep. 575.
    
   BOUEDIN, J.,

delivered the opinion of the court.

The first error assigned in this case, both in the petition and in the brief of the plaintiffs in error, is that the demurrer to.. the declaration was overruled; when it should have been sustained. We understand, however, that this objection has been waived by the counsel in this court; and we think properly. The contract under consideration does not present the case of a condition precedent, to be strictly performed by the defendants in error before any liability would rest on the plaintiffs in error; but it is rather a case of concurrent promises, where the acts to be done are simultaneous, imposing' correlative duties on both parties. In such cases “either party may sue the other for a breach of the contract on showing either that he was able, ready and willing to do his act at the proper time, and in the proper way, or that he was prevented from doing it — being so ready to do it — by the act or default of the other contracting party.” 2 Parsons on Contracts, Sth ed., p. 677 ; 4 Rob. Practice, pp. 300 to 304, and cases cited.

Indeed, even1' in cases of conditions strictly precedent, it has been held by this court, that “whenever the defendant, by his own act or neglect, prevents the performance of the condition precedent, he thereby excuses it; and the plaintiff may recover, as if he had performed the condition.” J. Moncure, delivering the opinion of the court in the case of The Baltimore & Ohio Railroad Company v. Polly, Wood & Co., 14 Gratt. 447, 462.

We think that the plaintiffs below sufficiently averred in the declaration their ability, readiness and willingness to perform their part of the contract at the proper *time and in the proper way, and that they were prevented from completing it by the default of the defendants. We are therefore of opinion that the demurrer was properly overruled.

The court is further of opinion, that there was no error in the refusal of the court below to give the first and second instructions, in the form asked by the defendants below, or in giving them as modified by the court. The first instruction asked for was as follows: “Unless the jury believe from the evidence, that each hog of the 241 hogs in plaintiffs’ declaration mentioned, weighed not less than 180 pounds gross at the scales near Glade Spring depot, on the 8th of December 1865, they must find for the defendants.”

The contract set out in the declaration, allowed the plaintiffs below, the option of delivering not less than 200 nor more than 300 hogs of the prescribed weight. Under that contract they clearly had a right to deliver 200 or 300, or any intermediate number of their proper weight; yet the instruction asked for would entirely deprive them of that option, and would defeat their action altogether, notwithstanding 240 of the 241 hogs tendered, might exceed the minimum weight. The court refused to give the instruction in that form, but modified it so as to make it conform to the contract of the parties. In this, there was no error.

The second instruction, as asked by the defendants below, affirmed the same principle, and very properly received at the hands of the court the same modification.

The fourth instruction moved by the defendants below, affirmed two propositions, neither of which were sanctioned by the contract of the parties.

The first was, that it was incumbent on the plaintiffs below, in order to sustain their action, to show that each *hog of the 241 mentioned in the declaration, was separately weighed at the time and place of delivery. The contract contains no such unreasonable stipulation. It only required that the hogs should be all weighed at the scales near Glade Spring depot, and that none of them should weigh less than 180 pounds. They were all weighed at the scales aforesaid in 16 lots, ranging from 7 to 20 in a lot, and the lots averaging from 209 to 249 pounds for each hog, and but two of the lots weighing less than 220 lbs. to the hog. Taking these weights into consideration with the other facts in the cause, it is apparent that there could not have been many of the hogs, if any, which would not obviously exceed the minimum weight; and had the defendants been present, as it was their duty to be, they would have seen at once that it was unnecessary and unreasonable to weigh 241 such hogs separately. They would at once, we doubt not, have said to the plaintiffs, let them be weighed in lots; and if they felt at all doubtful about the weight of any one or more of them, as they were driven on the scales, they could have required a separate weighing of those about which the doubt existed. But they chose deliberately to violate their contract, and did not attend ; and now seek to punish the plaintiffs below with onerous and unreasonable requirements as a consequence of their own default. We think the court did not err in refusing to give that branch of the instruction.

The second branch of the instruction affirmed the same proposition which had already been twice rejected by the court, viz: If any one of the 241 hogs weighed less than 180 pounds, the jury should find for the defendants. Such not being the true meaning of the contract, nor the effect of the declaration, we are of opinion that the entire instruction was properly refused.

The court is further of opinion that there was no error *in allowing the witness, Thomas Hamilton, to express his opinion as to the weight of the hogs. Such testimony, in the state of things existing at the trial of the issue between the parties, was the best that could be then adduced, and was not secondary but primary evidence. It was direct testimony to a fact. The hogs had not been weighed separately at the time and place mentioned in the contract, but as we have seen were weighed in 16 lots or parcels, ranging from seven to twenty in a lot. They were slaughtered afterwards without being separately weighed, and the exact weight of each hog could not then be known. In this state of facts, Hamilton, an experienced drover, who saw the several lots on the scales, after being- examined by the court as to his experience as a drover, and his capacity to form a correct opinion, was allowed to state whether, in his opinion, any hog would weigh less on that day than 180 pounds; and he expressed the opinion that no hog in the entire parcel of 241 would on that day come under that weight. This evidence was' objected to, 1st, because the witness was allowed to express his opinion as an expert; and secondly, because the evidence itself was merely substitutionary for the positive ‘-‘evidence which could have been obtained by the scales. ’ ’

To sustain the last mentioned objection, reference has been made to 1 Greenleaf on Evidence, § 82. The general rule is there laid down, “that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had.” This rule plainly implies the substitution of weaker in the place of other a.nd “original” evidence which was at the time in existence and accessible, and evidently applies to cases of written testimony,in which there is an attempt to use in the place of the “originals” either copies or parol propf of their contents. In such cases the “originals,” if in existence, must be produced.

might be enough to say in this case, that the evidence required by the objection was not only not in existence at the date of the trial, and therefore could not be produced, but in point of fact never 'existed. The hogs were not weighed separately, and it was no longer possible to weigh them, and if it were necessarj- to show the separate weights of any of-them, it could only be done by such proof as was offered; being the best, that could then be had. It will be seen, however, from the section cited, that “the rule excludes only that evidence which itself indicates the existence of more original sources of information. But, where there is no substitution of evidence, but only a selection of weaker instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed.” 1 Greenleaf on Evidence, ? 82, citing Tayloe v. Riggs, 1 Peter’s R. 591-596; United States v. Reyburn, 6 Peters’ R. 352-367; and Minor v. Tillotson, 7 Peters’ R. 99.

To make the rule apply to Hamilton’s testimony, then, it should have appeared that the hogs had been in fact separately weighed, and a list of weights kept; and that this original list of weights had been withheld without explanation, and a mere copy offered. Such was not the case. The best original testimony of which the case admitted was adduced; and the rule, therefore, is not infringed, nor did the court err in allowing the witness to express his opinion as an expert.

The nature of the testimony was such that i-t could only be given as his opinion: It did not admit of absolute certainty. Eike questions of identity, handwriting and the like, the opinion and belief of the witness was the only proper form of testimony, the only kind of testimony that could at that time be offered touching the fact in question. It was not properlj' speaking the testimony of an expert, but was evidence of a *fact. Experts are generally called to express an opinion on testimony already before the jury; for instance, to say whether on a given state of facts a man was sane or insane; was diseased or not; whether a wound examined or described; was sufficient to cause death, and so in like or analogous cases. But here the witness testified to a fact in the cause as to which he was entirely competent to testify; and his being called an expert, and being previously examined by the court as such, did not render him the less competent; indeed that examination only showed more plainly his capábility to testify intelligently and satisfactorily on the point in question; for we all know that an experienced drover befcomes wonderfully accurate in estimating- the weight of hogs; when required to cut off a lot of hogs of a given weight each, they very rarely commit a serious error. We are of opinion, therefore, that the testimony was legal and proper.

And we are further of opinion, that the testimony of Kelly, Johnson and others as to the market price of hogs at other places than Abingdon, in the vicinity of the place of delivery, was, under the circumstances, proper and admissible to show the value of the hogs at the time and place of delivery. It was not a case for trammelling the plaintiffs who were in no default with rigid requirements. There being no market for hogs on the day and at the place of delivery, it was competent to show their actual value at that time and place, which is the true point of enquiry, by “comparison of such prices and sales,” (in the vicinity at or about that time,) as can be shown, and by reference to the reasonable probabilities of the case; and ‘ ‘in such case, recourse may be had to the sales which were made nearest in time and in the nearest market. ’ ’ But this is a means merely of ascertaining the value at the time and place of delivery when ’x‘there is no market value there, or but an uncertain one, but not the only means. It may often be eminently proper to examine the sales and prices immediately preceding and succeeding the time of delivery, and at other places in the vicinity than the nearest market. See Sedgwick on the measure of damages, 4 edition, ch. 10, commencing at p. 294, but more especially p. 316, note 1, and cases there cited. We think this case, in which the plaintiffs below have not been in default, a proper one for indulging the widest latitude of investigation, and there was no error in admitting the testimony.

•The only remaining questions arise on the motion for a new trial. Without going into an examination of the evidence, we will content ourselves with saying that the case was fairly submitted to the jury; that there was testimony in the cause to sustain the verdict; and that it was approved by the judge who presided at the trial. Under such circumstances it is not the practice of this court to interfere with a verdict approved by the court of trial, although this court might be inclined to differ to some extent with the judge.

Upon the whole case we are of opinion that there is no error in the judgment of the Circuit court, and that the same be affirmed, with costs and damages to the appellees.

Judgment affirmed.  