Reversed and remanded on petition for rehearing January 22, 1924.
On Petition for Rehearing.
(222 Pac. 294.)
McBRIDE, C. J.This is a petition for rehearing, in which the correctness of the opinion published in 219 Pac. 802, is challenged.
*163We there held that in cases of this character, in order that a counterclaim could be pleaded under Section 74, Or. L., it should be one existing at the time of the commencement of the action. The opinion was rendered by the writer of this opinion and, the case not being thoroughly briefed, it was there held that, in order to constitute a valid counterclaim, the cause of action arising under the counterclaim should have existed at the time of the commencement of the action. Upon a petition for a rehearing the case has been thoroughly briefed and carefully examined, and the writer now finds that the cases there cited by him in support of his opinion were cases arising under subdivision 2 of Section 74, and were not applicable to cases arising under subdivision 1, and that he was wrong.
The great weight of authority under statutes similar to ours is to the contrary: 23 Standard Ency. Procedure, 707; Slaughter v. Machine Co., 148 N. C. 471 (62 S. E. 599); Caspary v. Hatch, 157 App. Div. 679 (142 N. Y. Supp. 785); Howard v. Johnson, 82 N. Y. 271; Californicm Canneries Co. v. Pacific S. Metal Works, 164 Fed. 978 (91 C. C. A. 106); Smith & Bro. v. French, 141 N. C. 1 (53 S. E. 435). Therefore we are constrained to hold that the alleged counterclaim was properly pleaded and should have been considered by the court, as, in fact, it was.
The only error that we find was the refusal of the court to allow the testimony of the defendant Moyer to the effect that he knew the value of the goodwill of the business, and to testify to such value. It is very difficult to approximate the value of goodwill, and while we are still of the opinion that the conditions being shown, — the situation of the prem*164ises, the amount of patronage, and the general conditions existing at the time, — are stronger evidence than the opinion of a so-called interested expert, yet the authorities seem to be generally to the effect that such testimony is admissible for what it is worth: White v. Jones, 79 App. Div. 373 (79 N. Y. Supp. 583, 587); In re Randell’s Estate, 8 N. Y. Supp. 652, 657; Mueller’s Estate, 190 Pa. St. 601, 602 (42 Atl. 1021).
While the refusal of such testimony in the particular case, and especially from a person who did not seem to have been able to so conduct the business, even while he had all the benefits of the goodwill transferred to him by his grantors, as to be able to do anything toward the payment of the property he had purchased, yet it was technically admissible and might have had some effect upon the jury in increasing to some extent the deductions which the jury allowed the defendants. But that was a question for the jury, and not for the Circuit Court or this court.
It may be added that the data for estimating the value of the goodwill of a business are always more or less uncertain. It depends very much upon the personality of the parties engaged in the business. One man by his personality, his adroitness in conducting his business, his geniality in attracting customers, and his wide acquaintance with his customers, may be capable of doing a profitable business where another, lacking some or all of these qualities, may fail, or at least not succeed to the extent his predecessor had attained. Of course, the fact that the business had been long established, and the habit of customers who have been used to dealing at a particular place to continue to go there, and the fact that there may be some other attraction, such as the location of the postoffice in the same building, were elements not *165to be overlooked; but, after all, it is a question for the jury, taking all the circumstances, including tbe testimony of persons familiar therewith, into consideration. But we are not justified in saying that the testimony of the defendant Moyer, who had been connected with the business some time, was not of some value, even if small, and for these reasons our former opinion in this case is set aside and the case remanded to the Circuit Court for a new trial.
Reversed and Remanded. Rehearing Denied.
Mr. Justice Harris having resigned and Mr. Justice Coshow having been appointed since this case was submitted, neither took part in this decision.