Eyerman v. Sheehan
| Decision Date | 31 March 1873 |
| Citation | 52 Mo. 221 |
| Parties | GOTTLIEB EYERMAN, Respondent, v. JOHN SHEEHAN, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Davis, Thoroughman & Jones, for Appellant.
Witnesses must give facts and not opinions. (Dickinson vs. Johnson, 24 Ark., 251.) The exceptions to the rule are confined to cases where from the nature of the subject of inquiry, facts disconnected from opinions cannot be so presented to the jury as to enable them to pass upon the question presented with the requisite knowledge and judgment. (Newmark vs. Liverpool Fire Insurance Co., 30 Mo., 160.)
The opinions of these witnesses were not receivable simply because they had seen the work at intervals while it was going on. (Robertson vs. Starke, 15 N. H., 109; New England Glass Co. vs. Lovel, 7 Cushing, Mass., 319; Newmark vs. Liverpool Fire Insurance Co., 30 Mo., 160.)
Henry D. Laughlin, for Respondent.
Estimates made by witnesses based upon actual observation and great familiarity with the work. (Fitzgerald vs. Hayward, 50 Mo. 516)
This was an action to recover a balance of $1,959.40 for stone sold and delivered by the plaintiff to the defendants at the water-works reservoir on Compton Hill in St. Louis, an account of which is set forth in the petition.
The defendants in their answer deny that plaintiff delivered stone in the quantity or of the quality alleged in the petition. They allege that they made a contract with the plaintiff by which he agreed to deliver stone of a quality, quantity and of dimensions particularly set forth in the answer, and which should pass the inspection of the engineer. They allege a breach of this contract, and that they were compelled to expend large sums of money in preparing the stone furnished by the plaintiff, so as to fit it for the purpose intended. They set up, by way of counter-claim, an alleged indebtedness of plaintiff to them in a large sum of money for goods sold and delivered, and for material furnished.
The plaintiff in his reply denies the material allegations of the answer.
There was a verdict and judgment for plaintiff for $2,027.20, which being affirmed at general term, the cause is brought to this court by appeal.
The ruling of the court assigned for error related to the admission of evidence, and the refusal to give the instructions asked by the defendants. The original contractors for the work on the reservoir, Murphy and Henderson, before completing it sub-let a part thereof, being the northern half, to the defendants, and the plaintiff, who had previously entered into a contract with M. and H. to furnish stone of the description and dimensions stated in the petition, commenced the performance of their agreement, and continued to furnish the materials after the transfer to the defendants as before.
The Court permitted several witnesses against the objection of the defendants, to give their estimate of the average depth or...
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