Fairley v. Smith

• Citation: 42 Am.Rep. 522,87 N.C. 367
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 October 1882
• Parties: J. M. FAIRLEY v. B. R. SMITH & CO.

87 N.C. 367

42 Am.Rep. 522

J. M. FAIRLEY

v.B. R. SMITH & CO.

Supreme Court of North Carolina.

October Term, 1882.

CIVIL ACTION for damages tried at Fall Term, 1881, of UNION Superior Court, before Avery, J.

Defendants appealed.

Messrs. Wilson & Son, for plaintiff .

Messrs. Burwell & Walker, for defendants .

SMITH, C. J.

In the trial of the issue of damages it became material to ascertain the market price of cotton in Boston between the 1st and 13th days of February 1876, and to prove the value, one Townsend, a clerk and book-keeper in the plaintiff's employment during that period, and who had usually assisted in weighing the cotton bought and sent off, was introduced as a witness on his behalf. He testified to a knowledge of the market value of cotton in Boston at the date mentioned, and that he derived his information from reading the market reports in the Charlotte Observer, a daily newspaper published in that city, but that his present recollection of the price was only from having consulted the files of that paper to refresh his memory, the day before.

This testimony after objection was permitted to go to the jury and the exception to its admission constitutes the only matter for consideration on the appeal.

While the witness speaks of refreshing his memory by reference to the telegraphic reports in the columns of the Observer, and recalling what had faded from his recollection, it is plain the evidence is but that what is thus supplied. The witness does not profess to derive, from this and other accessible sources of information, the means of forming an estimate and opinion of his own, for in such case the testimony would be competent; but he manifestly depends upon a single newspaper report alone of the condition of the market and the value of the commodity in a distant city. The witness thus becomes the medium of communication of the published report to the jury, and does not testify as an expert practically conversant with the cotton trade, and giving the results of his own inquiry and examination obtained from such reliable sources as were within reach, and confiding in which prudent men would act in the daily transactions of business.

Is evidence derived as this was from reading the reports of the Boston market contained in the columns of a single daily paper issued at Charlotte, competent to go to the jury in proof of the value of cotton in Boston in February, 1876?

This question we proceed to consider, and to examine the more important of the many adjudications to be found in the reports.

In Sisson v. Cleveland and Toledo R. R. Co., 14 Mich., 489, the exclusion of evidence of the state of the market as derived from reports in newspapers was held to be error; and in the subsequent case of Clev. and Tol. R. R. Co. v. Perkins, 17 Mich., 296, the introduction of the papers themselves was sustained to show the market price of an article, COOLEY, J., who delivered the opinion in both cases, stating in the first, the general rule to be, “to admit market reports of such newspapers as the commercial world rely on, as evid ence of market values.” Mr. Justice STORY in Alfonzo v. United States, 2 Story, 421, designates one thus testifying, as an expert, and ruled that a witness residing in Boston could testify to the price of sugar at Matanzas, from which place it had been imported, (as could merchants in the latter place,) when he had equal facilities from his actual trade and business in Boston in obtaining knowledge of the market.

None of these cases recognize the competency of such testimony from one who derives his information from the reports in a single newspaper published at a remote point, and in the absence of any proof of the source from which it was obtained, or that it was accepted and acted upon as reliable by prudent business men.

In Lawrent v. Vaughn, 30 Verm. 90, a witness was heard to speak of the market price of peas in Albany, on its appearing that he was engaged in the produce business in that place, as well as in Vermont, and received his information from those with whom he then had business relations.

Similar testimony was received in Lusk v. Druse, 4 Wend., 313, the witness being qualified to speak of the market price of wheat from an examination...