
    THOMAS M. TYNG, Appellant, v. PETER FIELDS and JAMES B. FIELDS, Respondents.
    
      Expert—what question map he ashed of—Payment—when conditional.
    
    Upon the trial of this action, in order to determine the value of services performed by the defendants in repairing an engine for the plaintiff, a witness, qualified to testify as an expert, was asked: Could the engine Gazelle, by any possibility, have been so damaged by wear and tear, or by accident, that, with the parts and materials as testified to by Mr. Fields, $20,000 would have been a reasonable charge for rebuilding her ? which question was excluded. Held, that the question was a proper one, and its exclusion was error.
    The agreement provided that the work should be done by day’s work, the prices to be ordinary shop prices, and the bills to be rendered monthly, fifty per cent to be paid when the bills were rendered, and the balance on the completion of the work. The defendants suspended work upon the engine because the plaintiff failed to pay fifty per cent of the bills rendered, after which the engine was accidentally destroyed by a fire, occurring on the premises of the defendant. Held, that, as the fire did not appear to have been in any way connected with or produced by the plaintiff’s alleged breach of contract, the fifty per cent to be paid on the completion of the work never became due.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee. The defendants were employed by the plaintiff to repair two engines for him. Upon the completion of one of them, the Gazelle, the defendants refused to deliver it until their bill was paid, payment being refused by the plaintiff on the ground that the bill was exorbitant and excessive.' Subsequently the Gazelle was, by agreement, sold for $11,000, which sum the defendants received and retained in the place of the engine. This action was brought to recover this sum and damages for breach of the contract to repair the engines. The defendants set up as a counter-claim a demand for services rendered and materials furnished in repairing the engines. Upon the trial it appeared that bills had been rendered to the plaintiff, which had been prepared by copying the items thereof from the books of the defendants. The defendants offered in evidence other bills, prepared in the same way, which the referee at first refused to admit, on the ground that, “ if the bills themselves had been copied, the copy would be evidence in connection with the testimony as to what the hills delivered were, but this paper appears to have been made from the books subsequent to rendition of those bills; the books are the standard, and it seems to me that a copy taken from them is hardly proper. I am inclined to think you cannot refer to a second copy from the books, as a copy of the account.”
    
      Wm. S'. Shepard and Marsh <& Wallis, for the appellant.
    
      A. P. Whitehead, for the respondents.
   Lawrence, J.:

I think that the judgment in this case should be reversed, and a new trial ordered for the following reasons:

I. It is admitted by the answer of the defendants, that the agreement between the plaintiff and defendants was, that the plaintiff should pay and the defendants should accept, for the work to be performed, a just and reasonable price and compensation. Much testimony was given upon the trial before the referee, as to what would constitute a reasonable price or compensation for the work actually performed by the defendants; and several experts in the business of building and repairing locomotives were examined on that point.

Among others, one Davis was examined on behalf of the plaintiff. It appeared that he was, at the time of his examination, the superintendent of the Lancaster Locomotive Works, and had been in business as a machinist for about thirty years, and was familiar with the cost of building, rebuilding and repairing locomotive engines, and also with the value of the materials and labor necessary for that purpose, in the years 1864 and 1865, being the period during which the engines, referred to in the pleadings in this case, were in the hands of the defendants. His testimony sufficiently shows that Davis was an expert, quite competent to testify as to the value of the work and labor performed and materials furnished by the defendant for the plaintiff; and, therefore, it seems to me that the following question, which was asked by the plaintiff’s counsel, was a proper one: “ Could the engine Gazelle, by any possibility, have been so damaged by wear and tear or by accident that, with the parts and materials as testified to by Mr. Fields, $20,000 would have been a reasonable charge for rebuilding her?”

This question was objected to by the defendants’ counsel; and, the objection being sustained by the referee, the plaintiff’s counsel excepted. I think this ruling was erroneous. Fields, who was referred to in the question, was one of the defendants, and he had, in his testimony, stated that certain portions of the engine Gazelle had been used in rebuilding or repairing the engine. It seems to me that it was competent to ask the witness, who was an expert and had seen the Gazelle, whether it was possible that such an engine could have required repairs that amounted in value to $20,000. It was a direct question, calculated to point out distinctly to the witness the subject to which his mind was to be directed, and I think a legitimate way of ascertaining from the witness what was the value of the defendants’ work and services. The question did not call for the mere opinion of the witness upon a hypothetical case, nor did it require him to speculate upon the value of repairs put upon the engine. He had seen the Gazelle after she was repaired; had heard the testimony of Fields; and the question required him simply to state whether, in any event or contingency, work of the value claimed by the defendants, could have been performed upon that engine.

II. I think the referee also erred in admitting in evidence the bills which are set forth at pages 275 to 297 of the printed case. The referee had previously refused to admit these bills in evidence. He finally received them for the purpose of showing what bills had been presented by the defendants to the plaintiff, as testified to by the witnesses. An inspection of the case fails to disclose any reason why the bills which had once been rejected, should have been finally received. Ho evidence had been given which cured the defect pointed out by the referee when they were first offered in evidence. It is quite evident that the referee was governed in his findings, as to the amount due from the plaintiff to the defendants, by the statements or entries in said bills, and that they were used by him in making up his report, for other purposes than that for which they were received in evidence. Whether I am right as to this, is, however, immaterial, inasmuch as the alleged bills never were compared with the bills of which they were alleged to be copies, and were not copied from them, and were not, therefore, admissible for any purpose.

III. A perusal of the testimony of the various witnesses, as to the value of the work and services performed and rendered by the defendants in and about the repairing of the Gazelle, seems to me to show that the amount allowed by the referee to the defendants, $21,603.48, as the value of such work and services, was far in excess of the real value. The witness Davis, who, from his experience as the superintendent of the Lancaster Locomotive Works, and from his general experience as a machinist and locomotive builder, was peculiarly qualified to speak on the question of value, testifies that a reasonable charge for rebuilding the Gazelle would be from $7,000 to $8,000.

Kichols, who also testifies to a very extensive experience in the business of building, rebuilding and repairing locomotives, testifies that the total value of the work done would have amounted, after allowing thirty-five per cent for profit, to $9,315.40.

This witness gives in tabular form, the items of repair and a specific statement of the value of each item, which bears the mark of accuracy and exactness; and he seems to me to he altogether the most reliable witness on the question of value produced before the referee. Dougherty testifies that he repaired more fully a larger engine than the Gazelle, in 1864, for $9,275 ; and McKay, that his charge for repairing a larger engine more completely, in 1865, was $8,400. The plaintiff himself testifies that a very liberal price for the work on the Gazelle would be from $7,000 to 8,000.

The witnesses for the defendant do not seem to me to have had the same amount of experience in the business of building or of repairing locomotives as those sworn for the plaintiff^ and I am of opinion that their estimates of value are clearly not entitled to the weight which should be given to the estimates of the plaintiff’s witnesses. The preponderance of evidence, therefore, seems to me to be so strongly in favor of the plaintiff, on the question of value, that the judgment of the referee should be reversed on that ground, if no other existed. The referee has allowed to the defendants, in adjusting the accounts between the plaintiff and defendants, the sum of $21,496, for work and services which, from the evidence, could not have exceeded in value, the sum of $10,000 or $11,000; and it is by this excessive allowance that the plaintiff is made to appear in debt to the defendants. I have less hesitation in arriving at this result, because the evidence shows that an entirely new engine, of the style and character of the Gazelle, could have been built in 1864 and 1865, for $12,500. It seems hardly credible, that the repairs to an old engine at that time, could have been of the value of $21,496. On this branch of the case I am convinced that the finding of the referee is not in accordance with the truth, and that justice demands a reversal of his judgment.

IY. Again. The referee has found that the agreement between the plaintiff and defendants, was, that the work should be done by the day’s work, that the prices were to be the ordinary shop prices; and that the bills were to be rendered monthly. That fifty per cent was then to be paid, and the balance on the completion of the engine. He also finds “ that the defendants performed work and furnished materials toward repairing the engine ‘ Quincy,’ amounting, according to bills rendered by the defendants and proved to be correct, to about April, 1865, in the aggregate to $2,714.40, upon which the plaintiff had up to that time made payments by cash and materials to $693.76, leaving a balance owing and unpaid to the defendants of $2,020.64,” which, with interest to the date of his report, the referee finds amounted to $2,737.55.

It is then found that the defendants suspended work upon the same engine, because the plaintiff made default in the payment of the fifty per cent of the bills referred to, after which a fire accidentally occurred to the premises of the defendants, by which the same engine ‘ Quincy ’ was burned and destroyed.”

The referee then proceeds to allow to the defendants the full amount, found by him to be due upon the Quincy at the time the fire occurred, forgetting, apparently, that only fifty per cent of the amount was due at that time by the agreement between the parties, and that the remaining fifty per cent was not to become due until the final completion of the engine — an event which never occurred. The fire was acidental, and does not appear to have been, in any way, connected with or produced by the plaintiff’s alleged breach of contract, and he cannot be compelled to do, in consequence of the fire, otherwise than his contract obliged him to do.

While, under ordinary circumstances, this error would not be regarded as a ground for an absolute reversal of the judgment, but one which could be remedied by a deduction of the excess allowed to the defendants, I am of opinion that, taken in connection with the other errors in fact above alluded to, it constitutes an additional reason for reversing the judgment.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., concurred ; Daniels, J., concurred in the result. 
      
       Finch v. Parker, 49 N. Y., 1; Townsend Manuf. Co., v. Foster, 51 Barb., 346; Thompson v. Menck, 22 How., 431.
     
      
       McConihe v. N. Y. & Erie R. R., 20 N. Y.,497, 498.
     