Sikes v. Paine, 32 N.C. 280, 10 Ired. 280 (1849)

Dec. 1849 · Supreme Court of North Carolina

32 N.C. 280, 10 Ired. 280

ASHEL SIKES vs. ROBERT T. PAINE & AL.

In an action for a breach of a contract for the repairing of a vessel, in not making the repairs according to the contract, after the plaintiff had given evidence of the condition of the vessel after she was returned to him, it was competent for him to introduce witnesses of skill in such matters to give their opinion upon the evidence first given, as to the difference in the value of the vessel as thus repaired, and what her value would have been» if repaired according to the contract. \

And it is not necessary that such witnesses should be regular ship carpenters, if they have occasionally worked on vessels, owned and sailed in them for a long time and possess the requisite skill to erutble them to judge.

The contract was to have the repairs effected by the 1st of- June. The plaintiff did not apply for the vessel until the 5th of July and the repairs were not then finished. Held, that he was entitled to recover wha •the vessel would have earned in freight from the 1st of June until she Was delivered, if that was a measure of damages.

The case of Beverly v. Williams, 4 Dev. tf- Bat. 236, cited and approved.

Appeal from the Superior Court of Law of Tyrrell ■County, at the Fall Term 1849, his Honor Judge Bailey presiding.

The defendant, on the 15th of February, 1847, entered into a written contract with the plaintiff to repair for him, at a stipulated price, a vessel — the work t® be done in a, workmanlike manner, and within all the month of May following. The work was not finished until the 17th of July. On the 5th of July the plaintiff went to Edenton, where the vessel was undergoing the repairs, for the purpose of receiving her. A witness, by the name of Hooker, proved, that neither the materials nor the work was such as the contract called for, and described minutely the deficiences. The plaintiff then called a witness, named Simmons, who stated, “he was not a ship,carpenter, but had worked in a ship a good part of a year and had owned vessels for many years ; and that he was well acquainted with their value.” He was then asked, “what, in his opinion, was the difference in value between such a vessel, as was stipulated for in the contract, and such an one as the witness, Hooker, had described this to be.” Another witness was then called by the plaintiff to the same point. He stated, that “he was not a ship-carpenter, but had been the master of a vessel for some fifteen years, and had worked considerably in the repair of old vessels.” He was then asked the same question as the witness Simmons. The testimony of both these witnesses was objected to by the defendant, but was admitted by the Court.

Meath, for the plaintiff, submitted the following arg oment:

The witnesses, Simmons and Carvor, were bo.th competent to testify as to the particular facts testified to: if “skill” were required, both had the requisite skill: both, had worked on vessels: one had owned “many vessels,” and the other had been for 23 years, the master ofa vessel ; and it is submitted, that a man may become “skilled’5in the construction, build, and material of a vessel, without his becoming a ship-carpenter.

The Judge’s charge, in relation to the damages, is right; the contract was for completing the work by the last of May at farthest; it was to be done, by a specific time, a day certain; and hence no demand was necessary; the plaintiff had a right to his vessel on that day: and not being then finished, was entitled to damages, for longer detention.

A. Moore, for the defendants.

Nash, J.

In the admission of this evidence, we perceive no error. In general, witnesses must speak to facts, and their opinions are not evidence. There are, however, exceptions to the rule. On questions of science, or trade, and others of a similar character, persons of skill are permitted to give their opinions in evidence. Medical men are suffered to give their opinion as to the state of a patient, whom they have seen ; and they are often called on to listen to a description, given by other physicians, of the symptoms of a patient, whom they have not seen, and then to give their opinion. In the case of Beckwith v. Sydebotham, 1 Camp. 117, ship-carpenters were permitted to state their opinion of the sea-worthiness of a vessel from examining a survey, made by others, at which they were not present. In Beverly v. Williams, 4 Dev. & Bat. 236, a witness was permitted to give his belief, as to, the identity of persons. In all these cases of science and skill, the opinion of the witness is admitted as evidence, upon the ground, that he is conversant with the business, to which he is called to testify, and has, therefore, peculiar knowledge concerning it. The Court must first be satisfied from the examination of the witness himself, or of others, that he stands in that situation, which renders his opinion in the case evidence — the degree of weight, to which it is entitled, belongs exclusively to the jury. In the present case we think the evidence was competent. Neither of the witnesses was a ship-carpenter, but one had worked part of a year in a ship-yard, and had been the owner of vessels for many years, and thought himself well acquainted with their value. The other “had been the owner of a vessel fifteen years and had worked considerably in repairing old vessels.” The Court judged rightly in permitting the testimony to go to the jury to be judged of by them as to its importance.

It was insisted by the defendants, that, as the plaintiff did not call for the vessel until the 5th of July, he was entitled to recover only what she was worth from that time until the 17th, when she was delivered; and that interest upon the value was a matter of discretion with the jury. His Honor instructed the jury, that, as by the contract, the repairs were to be finished by the 1st of June, if she was not then ready, the plaintiff had a right to recover what the freight of the vessel was worth from that time until the 17th of July, when she was delivered, with interest, <£-c. We concur with his Honor, as to the time, at which the plaintiff’s right to recover damages commenced. The defendants were bound by their contract to have her ready on the first of June. She was not then ready, and at that time the contract was broken, and his right of action accrued. As to the interest, we give no opinion, as the plaintiff has remitted it, and moved that the judgment be affirmed upon the payment of the costs of this Court. The defendants do not except to the rule stated by the Court, by which they were to be governed in assessing the plaintiff’s damages, to-wit: the freight of the vessel, but to the time. This objection has already been noticed.

Per Curiam.

Judgment affirmed.