Dopman v. Hoberlin

MURRAY, C. J. — This was a suit instituted in the court below to recover the value of the plaintiff’s services as agent of the defendant in the management of an estate in California. On the trial of the cause the plaintiff introduced two wit[10]nesses to prove the value of his services in going twice to Europe to negotiate the purchase of the estate, etc. It was not shown that the plaintiff had undertaken these .voyages at the request of the defendant or in what capacity he went. The question was hypothetical and assumed a certain state of facts not in proof. As this was one of the principal items of the plaintiff’s demand, it must result that the testimony induced part of the verdict rendered by the jury. The court below, in delivering its opinion upon the motion for a new trial, admits that the question thus asked is objectionable, both in form and substance, but seems to consider it admissible, by a misapprehension of the decision of this court in the case of Innes v. Steamer Senator, 1 Cal. 459, 54 Am. Dec. 305.

An examination of that case will show that, there is no analogy between it and the one before us, and that the question asked of the witness was neither speculative or hypothetical. For these reasons the judgment is reversed and the cause remanded.

I concur: Bryan, J.