Winthrop Products Corp. v. Elroth Co.
| Decision Date | 27 January 1954 |
| Citation | 331 Mass. 83,117 N.E.2d 157 |
| Parties | WINTHROP PRODUCTS CORP. v. ELROTH CO., Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arthur W. Cook, Northampton, & Robert H. Doran, Holyoke, for plaintiff.
Charles S. Walkup, Jr., Boston, for defendant.
Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and COUNIHAN, JJ.
In this action for the conversion of thirty-seven items of personal property, the jury returned a verdict for the plaintiff in the amount of $9,350.19. The only evidence of value came from one Fein, the president of the plaintiff, which conducted a wood working plant at Turners Falls in a building owned by the defendant to which it was indebted for rent. One issue at the trial was whether the defendant converted the plaintiff's property in the defendant's building on April 28, 1948, by an attachment made on a writ which was never entered.
Fein, called as a witness by the plaintiff, testified that he lived in New York; that on April 28, 1948, he was in New York and was informed by telephone by the plaintiff's foreman that a writ of attachment had been served; that he came to Turners Falls early in June, entered and plant, and made an inventory of everything in it; and that he found all the articles listed in the declaration except a linoleum cutting table and 797 gross of number 7 screws. 1 'I only found a small portion of that although I knew it had been intact originally.' He testified that all the items were in the plant when he was there the week before April 28; and that he had an opinion as to the fair market value of the items on that date.
The following colloquy occurred.
'Counsel for the defendant: I object.
'
'Counsel for the defendant: Has your Honor ruled that he may answer, that he is qualified?
'The judge: Yes.
'Counsel for the defendant: I haven't heard----
'The judge: Not as an expert, no, but as an officer of the corporation.
'Counsel for the defendant: Well, I don't think a mere officer of a corporation has a right to testify as to that.
'The judge: Not any mere officer, no, but some officers can.
'Counsel for the defendant: You have got to find, havent's you, that they have knowledge, expert knowledge, really, of value?
'The judge: Yes.
'Counsel for the defendant: Does your Honor find that there is evidence here of expert knowledge?
'Counsel for the defendant: And will your Honor note my exception?
'The judge: Yes.
This was the total amount given in the declaration.
Fein then testified that he purchased the items listed in the account annexed to the declaration. Later the judge said: 'On the basis of this witness's testimony just before recess about his being the one who bought all this property and his knowledge of it on that ground, I shall leave it to the jury to determine whether he is an expert and whether his opinion as to its value is that of an expert, too.' To this ruling the defendant excepted.
In the charge the judge said that, with respect to the converted property, Fein
The rule which permits an individual owner to testify to the value of real or personal property does not rest upon his holding the legal title, but is based upon his familiarity with the characteristics of the property, his knowledge or acquaintance with its uses, and his experience in dealing with it. Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 503, 189 N.E. 839. Whether such a witness is qualified is a preliminary question of fact to be decided by the trial judge. Rubin v. Town of Arlington, 327 Mass. 382, 384, 99 N.E.2d 30.
When the question relates to similar testimony by an officer of a corporation, the mere holding of office, as the judge correctly stated in admitting the...
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...that this failure means that the determination was left to the jury, which is reversible error. Winthrop Prods. Corp. v. Elroth Co. Inc., 331 Mass. 83, 84--86, 117 N.E.2d 157 (1954). Willey v. Cafrella, 336 Mass. 623, 624, 146 N.E.2d 895 (1958). However, it is evident from the transcript th......
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