
    HINE v. MANHATTAN R. CO.
    
      N. Y. Court of Appeals;
    
    
      Second Division, April, 1892.
    
      Evidence of value; offer i\ An offer made by a third person to a party for his real property, is not competent evidence in favor of the party, of the value of the property.
    
    
      Plaintiff brought this action to enjoin the construction •or running of an elevated road in front of his premises, and for damages.
    On the trial he was allowed against objection and exception, to testify, as relevant to the question of value, that he had in a previous year received a bona fide offer of a .specified price for the property.
    Defendants appealed.
    
      B. Tolles, for plaintiff, appellant.
    
      Wm. H. Arnoux, for defendants, respondents.
    
      
       There is in sound reason a distinction in this respect, between an offer as evidence against the party who made it, or refused it, and as evidence in his favor.
      It is a general principle that whatever a party has said about his demand or any element of fact involved in it, is competent against him ; but not in his favor.
      The cases agree with this distinction. See Dalrymple v. Hannum, 54 N. Y. 654 (holding that evidence that plaintiff had offered to reconvey the property in question to defendant for a trifling sum, was competent against defendant in mitigation of damages); and Thurber v. Thompson, 21 Hun, 472, where in an action by a creditor of a corporation against its stockholders on their individual liability for its debt, on the ground of an alleged fraudulent overvaluation •of property conveyed to it in payment of stock, it was held that the refusal of the corporation to sell at a specified price was competent as tending to negative the charge. So where .a witness has testified to value, he may be asked on cross-•examination as to offers made or refused by him (Clews v. Reilly, 6 N. Y. Supp. 640 ; s. c., 24 State Rep.
      
      If these cases are not distinguishable on this principle from the one in the text, they must be deemed overruled by it. See, .also, Jones v. Jones, 120 N. Y. 589, 603, where the court without alluding to the distinction, say that “a mere effort or offer to sell or to buy at any particular price, unless made by one who is a party to the litigation on the subject, is not legitimately entitled to any consideration upon the question of value.” See, also, Lawrence v. Metropolitan R. Co., 24 Abb. .N. C. 70.
      Where a witness has testified to his opinion as to value, statements of offers incidental thereto as showing the basis of his opinion are not necessarily incompetent. Ross v. Manhattan R. Co., 29 State Rep. 517 ; s. c., 8 N. Y. Supp. 495.
    
   Parker, J. [after stating facts]

The relief sought by plaintiff rendered it important that he should show the market value of the premises in controversy, prior to the "building of defendants’ railroad. Part of the evidence introduced for that purpose consisted of his own testimony, to the effect that he had received certain offers for the property.

We agree with the general term that the court erred’, in receiving it. It must be borne in mind that we are not considering the admissibility of an offer made in an open market, such as the Produce Exchange, for an article of recognized uniform character, constantly bought and sold in the market, and having a place in the daily reports of prices current, such as No. I wheat or corn, but that of an unaccepted offer for a piece of real estate, having a market value, it is true, but one not generally known in the market or to the public. Such market value may be shown by the testimony of competent witnesses, but not by an offer.

In the first place, the evidence adduced in this case is. objectionable, because it places before the court or jury an absent person’s declaration or opinion as to value, while depriving the adverse party of the benefit of cross-examination. The highest value at which an offer, standing alone, can be estimated, is that it represents the opinion of him who makes it as to the worth of the property. Nevertheless the assertion that he offered to part with his money might give to such hearsay opinion more weight with a jury than an opinion given by a witness before them, not thus supported. While, notwithstanding his opinion was backed by a promise to pay money, which was not enforceable, he may not have been competent, in a legal sense; to express an opinion on the subject. If he was, other reasons may have prompted the offer than an expectation of actually becoming the purchaser, or of obtaining it at its market value.

But we pass to the objection that, in such a case as we . have under consideration, offers may not be proven even by the party making them. The general term of the fourth department had the question before it in Keller v. Paine, 34 Hun, 167, 177. And in discussing the question the court said : It has been intimated in some cases that offers are some evidence of value. But it is a class of evidence which it is much safer to reject than to receive. Its value depends upon too many circumstances. If evidence of offers is to be received, it will be important to know whether the offer was made in good faith, by a man of good judgment, acquainted with the value of the article, and of sufficient ability to pay; also whether the offer was cash, for credit, in exchange, and whether made with reference to the market value of the article, or to supply a particular need or to gratify a fancy. Private offers can be multiplied to any extent for the purposes of a cause, and the bad faith in which they were máde would be difficult to prove.” The reasons thus assigned in support of the decision made we fully approve. That decision has been followed in Leale v. Metrop. R. Co., 61 Hun, 613 ; s. c., 16 N. Y. Supp. 419; Lawrence v. Metrop. R. Co., 24 Abb. N. C. 70; s. c., 8 N. Y. Supp. 326; 29 State Rep. 138 (N. Y. Com. Pl. re-argument ordered on another ground in 32 State Rep. 75). The proposition has been asserted in Ross v. Manhattan R. Co., 57 Super. Ct. 412; s. c., 29 State Rep. 517; 8 N. Y, Supp. 495 ; Kuh v. Metrop. Railroad Co., 31 State Rep. 406 ; s. c., 9 N. Y. Supp. 710 (N. Y. Super Ct.) It has also been applied to offers relating to personal property : Young v. Atwood, 5 Hun, 234; Linde v. Republic Fire Ins. Co., 50 N. Y. Super. Ct. 362; Weld v. Reilly, 48 Id. 531. It is so held in other jurisdictions: Fowler v. Commissioners, 6 Allen, (Mass.) 92-96; Whitney v. Thacher, 117 Mass. 523-527; Wood v. Fireman’s Insurance Co., 126 Id. 316-319; Louisville, etc. Railroad Co. v. Ryan, 64 Miss. 399-404 ; 8 South. Rep. 173 ; St. Joseph, etc. Railroad Co. v. Orr, 8 Kan. 419-424.

In the few cases which may be found holding the other way the question does not seem to have received much consideration from the courts rendering the decisions, and the absence of argument in their support renders "unnecessary any special reference to them. Respondent’s counsel insists that Harrison v. Glover, 72 N. Y. 451, is an authority against the position here approved ; but we do not so read it. There the plaintiff employed the defendants to sell blankets at a price not less than the manufacturing corporation of D. & Co. marketed blankets of their manufacture. The question was, what did the parties intend By this contract ? Did they intend to make the actual sales by D. & Co. of their blankets the test, or the price at which they held them? Judge ANDREWS said: “It was competent for the parties to provide that the price of D. & Co.’s blankets, as ascertained by the actual sales only, should govern the price of the plaintiff’s blankets. But the parties did not understand this to be the meaning of the contractand this statement is followed by an argument on the part of the learned judge to show that the contract which the parties intended to make, and did, was that the defendant should be governed by sales, or by ascertained bona fide offers to sell. The discussion had reference solely to the test which, the parties had established by their contract, and was not intended to and does .not affect the question before us.

While we agree with the general term in the view -expressed touching the question so far considered, we cannot indorse the position taken, that a reversal should not Be had because such testimony did not affect the result. We do not well see how this court can ascertain or determine what weight it had. The question of value was sharply contested, and if we cannot say that this testimony did not influence the decision of the court, the .appellant is entitled to have its admission declared to constitute reversible error. The presumption necessarily arises from the situation presented by the evidence and the decision of the court that the evidence was considered; .and it is strengthened by the fact that the trial court, after passing on the admissibility, of the testimony, and listening to the answer of the witness, asked the plaintiff how long before the building of the road the offer of $55,000 was made. The judgment should be reversed.

All the judges concurred.  