Nelson Morris & Co. v. Columbian Iron Works & Dry Dock Co.

Bryan, J., delivered the opinion of the Court. The Columbian Iron Works Company sued Nelson Morris & Co. for a balance alleged to be due for work and materials. Evidence was offered tending to prove that the work was done and the materials were furnished by the plaintiff at the request of the defendants, and that the prices charged were reasonable and proper." The defendants offered to prove by a competent witness that they had shown the said work and materials to two persons of knowledge and experience, and asked them what their price would he for similar work and materials, and that they made estimates in writing, and that such estimates were much less than the prices charged by the plaintiff; upon objection by the plaintiff, the Court refused to admit the estimates in evidence, and the defendants excepted. If the witnesses who made these estimates had been produced and sworn, it would have been competent for them to testify to the value of the work and materials; hut the inquiry in the case was not what the witnesses would have charged for them, and it would not have been admissible to prove this even by the witnesses themselves on the stand.

The defendants were responsible for what the work was fairly worth; and the usual price paid at the' time and place would he evidence of this value, hut not what two or more persons would charge for doing it. A question analogous to this was decided in Chesapeake & Potomac Telephone Company vs. Mackenzie, 74 Md., 50 , where damages were claimed for the erection of a telegraph pole in the footway in front of the plaintiff’s premises. It was held that it was not competent to prove by witnesses the amount which, if they owned the property, they would give not to have the pole placed where it was, or the ³⁵⁷ amount they would give to have it taken away; or by another witness, that he would be willing to pay more rent for the property, if the pole were removed, than he would pay if the pole remained. The Court said: “The true measure of damages in such a case as this is not what a particular individual would be willing to charge for having the pole put up or remain; nor the amount some other person might consider the rental value was depreciated for the purposes of his business; but where the land of the plaintiff is not taken, nor his soil actually invaded, the measure of damages, as adjudged in many cases, is, either, first, the extent to which the rental or usable value of the particular property has been diminished by the trespass or injury complained of; Baltimore & Ohio Railroad Co. vs. Boyd, et al., 67 Md., 41 ; Wood, &c., vs. State, use of White & Co., 60 Md., 61 ; or, secondly, the difference in the value of the property before the construction of the pole, and its value afterwards, if the depreciation in value has been caused by the erection and maintenance of the pole.

Shepherd vs. Baltimore & Ohio Railroad Co., 130 U. S., 426 .” No reason was shown why the persons who made the estimates were not produced to testify as witnesses. The evidence offered was clearly hearsay; it was an attempt to show that two persons had made certain statements in writing. We have no purpose to criticise or review the cases which were cited in the argument from other jurisdictions. We are content to say that this evidence is not admissible under the larv of Maryland.

We have held that entries made in the regular course of business, where the person making them had at the time no interest in stating an untruth, are admissible after his death; and the principle has been extended to a case where he has become insane; and, in Reynolds, Adm’r vs. Manning, Stimpson & Co., 15 Md., 510 , it was applied to the case of a clerk who was a foreigner, ³⁵⁸ and who had gone to Australia, and had not been heard of for more than three years. We have acknowledged and applied the rule of evidence