Martin H. Sullivan et al., as Executors, Appellants, vs. John Lear, Appellee, 23 Fla. 463

Mr. Justice Raney delivered the opinion of the court: Where an

article in question has a' market value, such value is usually taken as the actual value of such article. The proof of value is generally by the judgment or opinion of witnesses. Sutherland on Damages, vol. 2, p. 375. If the

article has no market value its value may be shown by proof of such elements or facts affecting the question as may exist. Recourse may be had to the items of cost and its utility and use. The opinions of witnesses properly informed on the subject maj' be given in respect to its value. Ib. 378. Lafayette B. and M. R. R. Co. vs. Winslow, 66 Ill., 219 ; Wemple, et al., vs. Stewart, et al., 22 Barbour, 154 ; Kirschman vs. Lediard & Ree, 61 Barbour, 573.

A franchise can not be said to have a market value, and when its value is necessary to be proven a resort must be had to the nearest relative facts and circumstances from which such value may be fairly inferred. The franchise or bare right to do a thing considered with reference to itself alone is of no value. It is only when it is considered relatively and in connection with its use that it can be said to be valuable. The wharf without the right to use it would be of no appreciable value.

It is the combination of the two—the wharf and the franchise— that mutually impart to each other, when combined, an estimable value. It is clear that Wittich’s opinion of the value of the franchise sold by the plaintiff to Sullivan is based in some degree upon the success of his own wharf business. He has so managed this business as to derive a revenue from it equal to the amount which $30,000, put at interest at the ordinary rate, would produce, and because he has done so he thinks that the franchise sold by plaintiff to be worth $5,000.

The value of anything'js to be guaged with reference to the practical uses to which it can be put, or the profit which by proper management can be made out of it.

That the witness could not state what was the value of the charter in itself and without reference to the improvements of which it was capable does not affect the admissibility of his testimony, because no franchise is of any value when considered without reference to its utility, and where it is of such a character as to render both an expenditure of money and the application of business judgment and skill in its mangement necessary to make it useful and profitable, its-value must be determined by a consideration of it in connection with such possibilities.

As a purchaser, we must' regard Sullivan as a person who would have the means of making the franchise useful, or as desiring to hold it with the expectation of selling to some one who did have suck means or to one who had similar expectations, or we must consider him as one whose interest it was (either to avoid competition or for other purpose) to hold the franchise unimproved ; and in either event the same principles obtain in fixing the value.

Whatever effect the poverty or other disabling circumstance of an owner of a franchise or other property may have upon him in fixing the price at which he may have sold, it has no effect upon the principles by which the value of anything sold, without fixing the price,is to be ascertained. Its value, whatever it may be, is to-be ascertained in the same manner and upon the same principles, whatever may be the condition, circumstances or purposes of the buyer. Wittich’s testimony shows him to be a person having such acquaintance with the character of the property in question as to entitle him to give an opinion.

It was proper for the defendant to develop on cross-examination the foundation of the opinion, but we see nothing in the development so made which calls for the exclusion of his. testimony. The testimony of Menefee was likewise admissible. His opinion is based upon the utility of the franchise and his business is such as to make his opinion competent testimony. Callaghan’s testimony was admissible. The price for which one thing actually sells is certainly some evidence of the value of another thing of the same kind.

It is a practical test of what persons dealing estimate things •of the kind as worth, and when a thing has no market value we think it may be proved upon very much the same principle that the price for which an article, having a market value, has been previously sold, may be proved. 2 Sutherland, 375, 376, 378. It is a fact bearing upon the question, and like the price for which the city granted the franchise, is a legitimate aid to the jury in arriving at a correct estimate of the thing’s value.

Ueither sale is conclusive upon the jury, who are to form their opinion from all the testimony affecting the question of value; yet we may say that it seems not at all unreasonable that a city government desiring the improvement of its wharves and the consequent development of the public interest would naturally •exact but' a nominal consideration from persons proposing such improvement, whereas the grantee of such privilege would in selling expect full compensation for it as the basis •of a profitable business.

In a case where the subject matter of the sale has no market value, the question of value is peculiarly one for a jury, and whatever fact seems naturally calculated to aid them in reaching a correct conclusion should be submitted for their consideration.

The Circuit Judge charged the jury in effect that if they were satisfied from the evidence that Sullivan received from the plaintiff a transfer of .the charter for or in consideration that the former should give to the latter the loading of one-third of the vessels to be consigned to him, Sullivan, then they must find for the plaintiff and assess his damages at .such a sum as the evidence may show would have been the profit, if any, which would have accrued to the plaintiff by the loading of the vessels consigned to Sullivan in his life ■time.

That if they were not satisfied that such a consideration for the transfer was agreed upon, but were satisfied from the evidence that Sullivan purchased from the plaintiff the charter and never paid for the same, they should ' find for the plaintiff and assess his damages at the price, if any, proved by the testimony to have been agreed upon as to be paid for the same, or if there was no price agreed upon they should assess the damages at whatever sum the testimony shows to have been its value at the time of sale.

The judge also charged that where a party conveys property to another, and in the deed of conveyance acknowledges that he makes the conveyance for value received, such acknowledgment is evidence that he has received the value of said property and must be taken as conclusive that he did receive such value, unless it is proved that such value was not actually received; and, therefore, if, in the case at har, the jury was satisfied from the evidence that the plaintiff executed a deed of conveyance of the wharf charter,, and acknowledged in such deed that he had received the value of such charter, and were further satisfied that there was no evidence to prove, notwithstanding such acknowledgment in the deed, that such value was not received, they must find for the defendant.

There was no exception to the judge’s charge. Hart’s testimony sustains the inference of the jury that the consideration was at least not an executed consideration. Sullivan’s promise, made under the circumstances related, is inconsistent with the theory that there was nothing more to be done by him in connection with the transaction represented by the deed, or the idea that the deed acknowledges solely an executed consideration.

Where a deed acknowledges the receipt of a consideration without specifying what it. is, parol evidence is, we think, admissible to prove its character, upon the principle that the deed is incomplete or does not show the entire transaction. Green-leaf’s Ev.,'sec. 284 a. ' Evidence may be given of a consideration not mentioned in a deed, even where one is-•mentioned, if the former be not inconsistent with the latter. Ibid, sec. 285. The only consideration of which we have any testimony of the character of, is the promise of Sullivan.

It was made when the deed was delivered, the time when considerations, whether executed or ex-ecutory, are delivered, and there is nothing in the deed from Lear to Sullivan inconsistent with the proof of such ■consideration. Such a promise, made under such circumstances, is to be taken as a consideration for the deed rather than as a gratuitous declaration. No prudent business man would have made it as a mere gratuity under the circumstances, particularly in view of its value, if performed. The evidence sustains the verdict and the motion for a new trial was properly overruled. The judgment is affirmed.