author: Mr. Justice Fell,

text:
    Commonwealth v. Kovovic, Appellant.

      Criminal law—Murder—-Degree—Province of court and jury.

    An imperative instruction which takes from the jury the right to ascertain the degree of murder is erroneous, but an instruction which points out to them their duty under the law, but leaves them free to act, is not.
    Where the trial judge properly instructs the jury as to their power and duty to determine the degree of the crime, he cannot be said to take away from the jury the determination of the degree by charging that if the jury found that the death of the deceased “ was a murder wilful, deliberate and premeditated by lying in wait, and in the perpetration of a robbery, it is a murder of the first degree, and if you find under all the evidence that the defendant committed that crime under these circumstances, your verdict should be murder of the first degree, or not guilty, and in making your return if you find that he is guilty of murder in the first degree you will so state in your verdict, and if he is not guilty you will so state.”

      Criminal law—Murder—Evidence—Circumstantial evidence.

    Circumstantial evidence is in the abstract nearly though perhaps not altogether as strong as positive evidence. In the concrete it may be infinitely stronger. A fact positively sworn to by a single eye witness of blemished character is not so satisfactorily proved as is a fact which is a necessary consequence of a chain of other facts sworn to by many witnesses of undoubted credibility.
    A long chain of circumstantial evidence was held in this case sufficient to support a verdict of murder of the first degree.
    Argued May 9, 1904.
    Appeal, No. 85, Oct. T., 1904, by defendant, from judgment of 0. & T. Washington Co., Feb. T., 1904, No. 25, on verdict of murder in the first degree in case of Commonwealth v. Milovar Kovovic.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Indictment for murder. Before Taylor, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder in the first degree, upon which judgment of sentence was passed.

      Errors assigned were (3) the statement quoted in the opinion of the Supreme Court, and (39) in instructing the jury in effect, that their verdict should be either “ guilty of murder in the first degree ” or “not guilty.”

      Harry Alvan Hall, with him James Erancis Burke and Alex. M. Templeton, for appellant, submitted no printed argument.

      Owen O. Underwood, district attorney, with him John Marrón, for the commonwealth.
    June 15, 1904:
   Opinion by

Mr. Justice Fell,

The appellant was convicted of murder of the first degree and the argument here made on his behalf has been in support of the third assignment of error, which is : “ The testimony in the case, in the absence of any direct proof of the defendant’s guilt was not such as to establish such a chain of circumstances as the law holds to be necessary for the purpose of conviction and under all the evidence in the case, the court should have directed a verdict of ‘not guilty.’” •

We find from the testimony that the facts established at the trial beyond all dispute were these: Samuel T. Ferguson, a member of a construction company engaged in building a railroad in Washington county, on a regular monthly pay day drew a large amount of money from a bank, placed it in a satchel, and accompanied by the company’s paymaster started to drive to a place where the men were working. At an unfrequented part of the road forty or fifty sticks of dynamite were exploded under the horses they were driving, killing Mr. Ferguson and seriously injuring the paymaster. The explosion was effected by means of an electric battery placed behind a tree on a bank at the side of the road, and connected by a wire with the dynamite. The battery and wire had been stolen the night before from the company’s tool house. A double barrel shotgun loaded and cocked was found near the battery. The satchel in which the money had been placed was found some distance from the scene of the murder, ripped open and the money gone.

The most important testimony tending to connect the appellant with the coiMmission of the crime was that he owned the gun found beside the battery and that it had been last seen in his possession; that though he was idle and shiftless and never known to save money, he was after the murder in possession of a large amount of money identical in bind and denomination and similar in appearance to that taken from the satchel; that he immediately left the locality and assumed another name. It was shown that he had a few months before worked for the construction company, knew the custom as to the payment of workmen, and was familiar -with the use of dynamite; that a few days before the murder he had appeared in the neighborhood ostensibly seeking work but idling around the camp; that he was seen at the tool house the day the battery and wire were stolen from it, and at the place of the murder the morning it was committed; that a few days later he was seen in the state' of Ohio and had in his possession a large roll of money; that with a companion who was arrested with him he Went after business hours to the foreign department of a Pittgburg bank with a large roll of money tied up in a handkerchief ; that he requested a clerk to count the. money for him and to exchange a part of it for Austrian money; that both men purchased steamer tickets under assumed names and desired to take the first steamer without regard to the greater expense ; that when the appellant was arrested at Southampton, England, he had Austrian and American money in his possession and that he denied that his name was Kovovic, that he had ever been in Washington county, and that he had known his companion until he had formed his acquaintance on the steamer. These and other inculpatory facts and circumstances testified to not only indicated the appellant’s guilt, but seem to be incapable of explanation on any other reasonable hypothesis. The commonwealth’s testimony while purely circumstantial was sufficient to warrant the verdict. “ Circumstantial evidence,” it was said by Chief Justice Gibson in Commonwealth v. Harman, 4 Pa. 269, “ is in the abstract nearly though perhaps not altogether as strong as positive evidence. In the concrete it may be infinitely stronger.- A fact positively sworn to by a single eyewitness of blemished character is not so satisfactorily proved as is a fact which is a necessary consequence of a chain of other facts sworn to by many witnesses of undoubted credibility.” The commonwealth’s testimony was sufficient, if believed by the jury, to warrant their verdict.

Only one other specification of error, the thirty-ninth, need be considered. This is : “ The court erred in instructing the jury in effect, that their verdict should be either guilty of murder of the first degree or not guilty.” No question of the degree of the crime was raised at the trial, and there was no ground on which it could be questioned. The learned judge carefully and properly instructed the jury as to the degrees of murder and distinctly told them that it was their province to ascertain the degree from the evidence and to state it in their verdict. The part of the charge on which this assignment is based is this r “We say, gentlemen of the jury, if you find from the evidence of the commonwealth that the death of Samuel Ferguson was a murder wilful, deliberate and premeditated by lying in wait and in the perpetration of a robbery, it is a murder of the first degree, and if you find under all the evidence in the case that the defendant, Milovar Kovovic, who is on trial for the crime, committed that crime under these circumstances, your verdict should be murder of the first degree, or not guilty, and in making your return if you find that he is guilty of murder in the first decree, you will so state in your verdict, and if he is not guilty you will so state.” If the words “ you will so state in your verdict,” could be considered an imperative instruction, error was committed. An imperative instruction which takes from the jury the right to ascertain the degree is erroneous, but an instruction which .points out to them their duty under the law but leaves them free to act is not. The distinction between a binding instruction and a proper statement of the law has been pointed out in Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 59 Pa. 371; Shaffner v. Commonwealth, 72 Pa. 60; McMeen v. Commonwealth, 114 Pa. 300; Commonwealth v. Sheets, 197 Pa. 69. The instruction complained of, taken in connection with the instruction as to the power and duty of the jury to determine the degree of the crime, was not imperative and therefore not erroneous.

The judgment of the court of oyer and terminer is affirmed, and it is directed that the record be remitted in order that the sentence of the court may be carried into execution.


source: Caselaw Access Project

author: Pee Cueiam,

license: Public Domain

text:
    Laporte, Appellant, v. Pittsburg & Lake Erie Railroad Company.

      Negligence—Railroads—Fellow servant—Act of April 4, 1868, P. L. 58— Nonsuit.

    In an action against a railroad company to recover damages for personal injuries it appeared that the plaintiff was employed by a coke company to shift cars on three side tracks of the coke company, the cars being placed on the side tracks by the defendant, the railroad company. The railroad company each morning placed empty cars on the three side tracks, and the plaintiff’s duty was to, shift the cars on all three side tracks into position for loading in front of the ovens. This could be done by gravity without the aid of an engine. On the morning of the accident the railroad employees delivered cars on one of the side tracks, and the plaintiff was advised by the freight conductor that no more cars were to come on that particular track. Plaintiff then proceeded to work. The switch of the track on which the plaintiff was working had, through the neglect of some one, been left open, and the cars which were intended for another of the side tracks ran through the open switch and started a car on which the plaintiff was working, severely injuring him. Held, that the plaintiff under the act of April 4, 1868, was a fellow servant of the railroad company’s employees by whose neglect the switch had been left open, and that he was not entitled to recover.
    Argued May 9, 1904.
    Appeal, No. 105, Jan. T., 1904, by plaintiff, from order of C. P. Fayette Co., Dec. T., 1902, No. 229, refusing to take off nonsuit in case of Mike Laporte v. Pittsburg & Lake Erie Railroad Company, operating the Pittsburg, McKeesport & Youghiogheny Railroad.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Umbel, J., filed the following opinion on motion to take off nonsuit:
    The plaintiff lived at Adelaide, a small coke town in Dunbar township, at the time of the accident which occasioned the injuries complained of in this case. He was employed by the H. C. Frick Coke Company in the capacity of car shifter in connection with the operation of their coke works at that place. This plant includes five double blocks of ovens, and the product thereof, which is considerable, is shipped out over the Pittsburg, McKeesport & Youghiogheny Railroad, which is operated by the defendant. The main line of the railroad is some distance from the ovens, apd the empty cars are supplied and the loaded ones removed by a branch, which for some distance from the main line consists of but a single track, but to serve all the five double blocks of ovens, some of which appear to be located parallel to each other, it is necessary that they have other lines off the main branch, and as a consequence the coke company maintains three tracks in connection therewith, known as “ front track No. 2,” “ back track No. 2 ” and “ back track No. 3.”
    It is not questioned but that these tracks, as well as the branch itself from the right of way of the main line of the railroad, are the property of, and maintained by, the H. C. Frick Coke Company, and the use of the railroad company is limited to moving in the empty cars and taking out the loaded ones.
    The switch tracks above designated are constructed on such grades that the use of an engine is not necessary in placing the cars to the points for loading along the coke yard; they are brought in by the engine and located in a bunch on each of the above named side tracks and then distributed along at the loading places or bridges by two men with the aid of gravity and crowbars. These men are called car shifters and such was the employment of the plaintiff and he was acting in discharge of his duties when he was hurt September 14,. 1901.
    At an early hour that morning he was around the works waiting for the railroad people to deliver the cars on the side tracks; and about four o’clock they brought in and left a number of cars on back track No. 2, and after being advised by the freight conductor that no more cars were to come in on that track the plaintiff proceeded to place them along that siding at the proper places for loading and the railroad crew withdrew their engine from back track No. 2 and proceeded to put empty cars in on the other tracks to supply the ovens that were not reached by back track No. 2. A few minutes thereafter while plaintiff was engaged between the rails on back track No. 2 at the end of the car from the switch connection, the car on which was loosened some kind of a hook in connection with the brake, suddenly started and the force operating to move it was of such character as to cause the car to knock him down and drive it over him, bruising and injuring him to such extent that the doctor who was at once sent for says, “ I considered the man dying when I saw him.” He was sent to the hospital, however, and, after lingering many weeks, in a measure recovered although he insists that his injuries, which were doubtless very serious, are of a permanent character and that in comparison with his previous self he is not a half a man.
    It was discovered that the car that ran over the plaintiff was started by being struck by some empty cars which were being pushed by the engine, intended for delivery on one of the other tracks but through the oversight and neglect of some one, the switch connecting back track No. 2 with the main siding or branch had been left open and instead of passing and going to the track for which they were intended, they ran in on back track No. 2, striking the cars as aforesaid and thereby occasioning the injuries to the plaintiff.
    These are the material facts in this case and on which the plaintiff insisted that he is entitled to recover damages for the .injuries inflicted, and in view of the authority of Spisak v. B. & O. R. R. Co., 152 Pa. 281, we are of opinion that the case is a rather close one.
    If when the conductor advised the plaintiff they were done on the track (back track No. 2), their work on the coke plant entire had been completed and the engine and crew had left the coke company siding and gone about other work on the main line or other' branches of the railroad and then later had returned with other empties or for the purpose of removing loaded cars before being advised that they were ready for removal, or for other purposes, and the accident had happened, we do not think there is any doubt but that the principles of the Spisak case would prevail and the case should have gone to the jury, but that is not this case here, even though the conductor had told the plaintiff they were done on back track No. 2, they had not completéd their work on that coke yard and the other tracks and until they were so done it was the duty of the plaintiff and all employees thereabouts to act accordingly until such time as the railroad crew had finished on all these tracks and left the premises. We are of opinion that under the circumstances of this case the act of 1868 applies and the railroad crew and car shifters are in legal effect coemployees while working on the yard together, each performing the duties incident to their several particular employments.
    We are largely influenced in arriving at this conclusion by the principles enunciated and applied in Cummings v. P. C. & St. L. Ry. Co., 92 Pa. 82, and the cases in which it has been distinguished and followed down to the present.
    In our opinion the facts in the Cummings case are almost exactly analogous to the facts of the case at bar. Cummings worked on a coal yard owned by McCue, the cars to which were delivered by means of abranch or side track and then by a switch and short track into the coal yard. The coal was brought from the mines by the railroad company and when cars got to the yard they were transferred from the main track to the side track and from the side track in on McCue’s track at the coal yard. A short distance from McCue’s track there was another coal yard track belonging to the National Coal Company on which cars were delivered in the same way. At the time in question the railroad company brought in twelve cars on the siding,- six for McCue and six for the National Coal Company. McCue’s were placed on his track and the plaintiff and another man proceeded to unload them; the locomotive then with the other six ran back on the side track and so far as McCue’s track was then concerned they were done until such time as they were to come for the empty cars but their work on the siding was not yet completed; the other six were to be put in on the National Coal Company track and for that purpose the engine with the said six ears, after having withdrawn from the McCue track, came ahead at a rapid rate intending to pass McCue’s coal yard and shove them in on the National Coal Company’s siding.
    When the locomotive and train drew back from McCue’s siding it was the duty of those in charge to change the switch connecting McCue’s track with the siding so as to direct and send the train on its return past McCue’s siding and upon the siding of the National Coal Company. This was neglected, the switch was not turned and when the train returned it ran back again upon McCue’s track and collided with the cars previously left there, injuring the young man Cummings who was one of the parties engaged on the cars on the McCue track in unloading, by which injuries he lost a leg.
    In the case at bar the train first passed from the mainline to the side track and from the side track by switch to back track No. 2 (corresponding to McCue’s track) and left cars (same as six left on McCue’s track) then pulled out again on the siding for the purpose of placing cars on siding further up past switch connecting back track No. 2 with the siding; when it pulled out from back track No. 2 those in charge failed to turn the switch, same as in Cummings’s case; and when engine returned to place cars on other track (corresponding to National Coal Company’s track) instead of passing by back track No. 2 the cars ran in on back track No. 2 colliding with cars previously left there and occasioned the injuries to the plaintiff as aforesaid.
    A nonsuit was entered in the Cummings case and on appeal was affirmed. If such were not error in that case we are of opinion that a nonsuit should stand in this.

      U. G. Highee, with him L. A. Howard, for appellant.
    The case is not within the act of 1868: Vannatta v. R. R. Co., 154 Pa. 262; Noll v. R. R. Co., 163 Pa. 504; Kelly v. Union Traction Co., 199 Pa. 322; Keck v. Phila. & Reading R. R. Co., 206 Pa. 501.
    TP. J. Sturgis, with him George D. Howell, for appellee.
    Laporte while employed by the Frick Company was yet employed for duties ordinarily those of a railroad employee, to wit: moving cars, and he was also so engaged upon the property of the railroad company, for while the title of the siding was in the Frick Company yet the siding was the road of the railroad company for the purpose of moving their trains, and that is sufficient to bring the case within the act of 1868: Mulherrin v. Del., etc., R. R. Co., 81 Pa. 366 ; Weaver v. Phila. & Reading Ry. Co., 202 Pa. 620 ; Cummings v. Ry. Co., 92 Pa. 82; Colvin v. B. & O. R. R. Co., 118 Pa. 230; Stone v. Penna. R. R. Co., 132 Pa. 206 ; Peplinski v. Penna. R. R. Co., 203 Pa. 52; Peterson v. Penna. R. R. Co., 195 Pa. 494.
    June 15, 1904:
   Pee Cueiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


author: Mr. Justice Potter,

text:
    Miskey’s Estate.

      Trust and trustees—Deed of trust.

    Where a settlor by a deed of trust gives to his wife certain real estate with the usual active duties of a trustee, and directs his wife during her lifetime to use the net income of the estate to and for the maintenance and support of herself and of two children, naming them, and to such other children as might thereafter be born to the settlor and his wife, the widow has the right to use the whole income at her discretion for the support of herself and children, and a child who has left the mother’s domicile has no standing to demand a portion of the income.
    Argued May 11, 1904.
    Appeal, No. 279, Jan. T., 1903, by Mary Y. Quay, from order of C. P. No. 1, Phila. Co., March T., 1902, No. 3657, dismissing petition for citation in estate of William F. Miskey, Jr.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Petition for citation.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the petition.

      W. Nelson L. West, for appellant,
    cited: Jacoby’s Est., 204 Pa. 188; Boyle v. Boyle, 152 Pa. 108; Cox v. Rogers, 77 Pa. 160 ; Paisley’s App., 70 Pa. 153 ; Biddle’s App., 80 Pa. 258 ; Cressler’s Est., 161 Pa. 427.

      George B. Van Basen, for appellee,
    cited: Paisley’s App., 70 Pa. 153; Cressler’s Est., 161 Pa. 427 ; Mazurie’s Est., 132 Pa. 157 ; Bowden v. Laing, 14 Sim. 113.
    June 15, 1904 :
   Opinion by

Mr. Justice Potter,

William F. Miskey, Jr., the father of the appellant in this case, executed a trust deed upon May 4, 1881, conveying certain property to his father, in trust to convey it to Mary Thomas Miskey, the appellee here. The property was duly conveyed to her the same day, upon the following trusts, “ that she, the said Mary Thomas Miskey, and her successors, in the trust, shall let the above described premises from time to time, manage and take care of the same, keep the same insured and in good order and repair, collect the rents, issues and profits thereof, and after paying thereout all necessary expenses, such as taxes, water rents, costs of repairs, insurance and incidental charges, shall during the lifetime of the said Mary Thomas Miskey appropriate and use the net income of the said estate to and for the maintenance and support of the said Mary Thomas Miskey and the maintenance, education and support of Mary V. Miskey and John A. Miskey, Jr., children of the said William F. Miskey, Jr., and of such other children as may hereafter be born to them, the said William F. Miskey, Jr., and Mary Thomas, his wife.” No children were born after the date of the trust deed, and the only parties interested are the widow, now Mary Thomas Early, and John A. Miskey, Jr., and Mary V. Quay, children of the settlor. The trustee accepted the trust and has managed and controlled the properties ever since. The grantor William F. Miskey, Jr., died March 28, 1882, and the widow and the two children seem to have lived together as a family until 1889, when the appellant was married. The defendant continued to share the income of the trust estate with her until 1898, when appellant was divorced from her first husband, and subsequently married A. G. C. Quay. Since then she has received no part of the income of this estate. On May 9, 1902, she filed her petition in the court below asking for an accounting. The defendant filed an answer stating that the petitioner had removed from the domicile of the trustee, and further that she was advised that under the terms of the trust deed, she was under no liability to account, and had the right to use and appropriate the income of the estate at her discretion. After hearing upon the petition and answer, the court below dismissed the petition, and from its decree this appeal was taken.

The duties imposed upon the appellee as trustee, under the terms of the deed are to manage the property, collect the rents, pay taxes, make repairs, and preserve the corpus of the estate. In this respect she discharges the duties which are common to trustees, and the fact that the title to the property is vested in her, and its management intrusted to her, does not in anyway affect her right to control the expenditure of the net income. That was given to her to be used for her own support, and the education and support of the children of the settlor. We feel that this case is properly controlled by the principles set forth by Sharswood, J., in Paisley’s Appeal, 70 Pa. 153. There the renting and management of the property was to be under the control of the executors, while here those duties are imposed upon the widow; but the income was as in the case now before us, given to the widow for her natural life, for her support and' the support and education of her children. It was held, upon most satisfactory reasoning, that the words of the will created no trust, either in the widow or in its executors, for the children: and that the widow could not be required to account for the expenditure of the income. In the present case the appellant in her petition claims that she is entitled to one third of the net income. But for the same reasons as were expressed in Paisley’s Appeal, we are unable to accede to this suggestion. We can find nothing in the language of the deed to indicate that any definite proportion of the income was to be set apart for appellant. It was settled, as long ago as Bowden v. Laing, 14 Sim. 113, that when the income of property is given, as it is in this case, to the mother, for the maintenance of herself and her children, that the intention is that she shall receive the whole of the income, and shall maintain the children out of it so long as they form part of her family. In the present case the widow not only supported the appellant while she continued in the family, but for years after she had left the parental home, and was entitled to the support of her husband. The amount of the net income from this estate is not shown, but it seems to be very modest, and it might work great hardship to the widow to hold, as is contended by appellant, that she is only entitled to one third of the net income, without regard to her position or circumstances. We see no intent upon the part of the grantor, as disclosed by the language of the deed, to require any supervision of the disbursement of the income by the appellee. He saw fit to commit its distribution to her discretion, and we think the court below was right in refusing to assume jurisdiction in the premises.

The assignments of error are overruled, the decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant.


author: Mr. Justice Thompson,

text:
    Brown, Appellant, v. Mentzer.

      Sale—Rescission—Fraud—Statements as to solvency.

    The solvency of a manufacturer or a merchant, who has debts and assets, unless the assets are of a fixed and stable character, and very largely exceed the liabilities, is quite an uncertain factor, and very much a matter of opinion.
    Unless there are convincing facts in evidence to show with clear certainty that the condition of insolvency was well known to the purchaser of goods when he asserted the solvency as a means of procuring the sale of goods to himself, his assertion does not have the aspect of fraud, or artifice or misrepresentation which is required to abrogate an executed contract. If an intending purchaser has a right to regard himself as solvent and firmly believes that he is so, and, therefore, asserts his solvency to an intended seller, who sells him goods, his assertion of his solvency is not fraudulent, even though insolvency actually arises before payment for the goods is made.
    In an action of replevin where the case turns upon the rescission of a contract of sale of tobacco, it appeared that the purchaser of the tobacco was engaged in the business of manufacturing cigars and had several different factories. While endeavoring to purchase a small quantity of tobacco the seller induced him to take a large one. He received the small quantity for which he gave his note, but did not call for the balance of the tobacco, and only took it at the urgent request of the seller. He gave his own notes for the tobacco, and also business paper which he owned to secure his notes. Neither his own notes nor the notes of the other parties were paid. There was evidence that at the time of the first purchase, the purchaser said that he was owing some money, but that he could clean up $10,000 or $12,000. Held, that the evidence was insufficient to justify a rescission of the contract of sale on the ground of fraud and misrepresentation.
    Argued May 16, 1904.
    Appeal, No. 135, Jan. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., Feb. T., 1900, No. 51, on verdict for defendant in case of John A. Brown, Ancillary Administrator of Walter Gr. Wilson, deceased, trading as Walter Gr. Wilson & Company, v. John F. Mentzer, Trustee of Harvey B. Bitzer.
    Before Mitchell, C. J., Dean, Brown, Potter, and Thompson, JJ.
    Affirmed.
    Replevin for seventy-three cases of leaf tobacco. Before Landis, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned among others was in giving binding instructions for defendant.

      A. S. Johns and H. M. North, with them Joseph T. Evans, for appellant.
    If the jury believe the defendant formed a deliberate plan to obtain the goods, intending that they never should be paid for, with a preconceived resolution to embezzle the money or to become insolvent, or to pass them over to a favored creditor, the defendant has been guilty of fraud and the property in the goods does not pass : Mackinley v. Mc-Gregor, 3 Wharton, 369 ; Bughman v. Central Bank, 159 Pa. 94 ; Neff v. Landis, 110 Pa. 204; Henderson v. Lauck, 21 Pa. 359; Krumbhaar v. Birch, 83 Pa. 426; Croyle v. Moses, 90 Pa. 250; Harner v. Fisher, 58 Pa. 453.

      W. B. Brinton and W. TJ. Sensei, with them W. H. Keller, for appellee.
    What will suffice to justify rescission has been pointed out in the line of cases which includes Neff v. Landis, 110 Pa. 204 ; Bughman v. Central Bank, 159 Pa. 94; Perlman v. Sartorius, 162 Pa. 320; Cincinnati Cooperage Co. v. Gaul, 170 Pa. 545; Wheeler v. Ahlers, 189 Pa. 138; Claster Bros. v. Katz, 6 Pa. Superior Ct. 487.
    What will not suffice to avoid the sale and rescind the contract, with like clearness and cogency, has been pointed out'in such cases as Smith v. Smith, 21 Pa. 367; Rodman v. Thalheimer, 75 Pa. 232; Ralph v. Fondersmith, 3 Pa. Superior Ct. 618; Wessels v. Weiss, 156 Pa. 591; Labe v. Bremer’s Sons, 167 Pa. 15; Greene v. Fondersmith, 200 Pa. 625.
    June 15, 1904:
   Opinion by

Mr. Justice Thompson,

Appellant’s claim for a rescission of the contract for the purchase of the tobacco involved in the present action of replevin was based upon an alleged fraud, which it was contended arose from certain representations made by H. B. Bitzer, of whom the appellee in this case was the trustee in bankruptcy to the vendor, the decedent of whom, the appellant, was the administrator under ancillary letters, and which representations it was alleged were false and fraudulent. These representations were an assertion of solvency and the ownership of certain real estate, by reason of which it was contended the vendor, Mr. Wilson, was induced to make the sale of the tobacco in question to Mr. Bitzer. The former was a dealer in leaf tobacco and engaged in that business in the city of Philadelphia ; the latter was a manufacturer of cigars and conducted his business in factories located in Lancaster county. A traveling salesman of the former met the latter on one occasion and made a small sale of leaf tobacco to him. Subsequently, on May 1, 1899, Mr. Bitzer and his foreman saw Mr. Wilson in regard to a further purchase of leaf tobacco. He desired to purchase a small quantity of tobacco for manufacture, but Mr. Wilson refused to sell such quantity. Mr. Bitzer having examined samples was induced to agree to purchase sixty cases of what is lmown as Zimmer, Spanislvand Wisconsin tobacco. Subsequently he made another purchase of what is known as Connecticut wrapper, amounting to twenty-one cases. At the time of the first purchase, a conversation took place with Mr. Wilson as to Mr. Bitzer’s financial condition. The salesman testified that Mr. Bitzer then stated that he was worth $20,000 over and above his indebtedness; that he was owing some money but that he could clean up $10,000 or $12,000. Mr. Bitzer also stated that he had a house at Ephrata, but it appears that he gave the deed of this property as collateral to secure a debt to a Mr. E. Wiedman. He continued to collect the rent for the same and to pay the taxes. The first ten or twelve cases of tobacco Avere accordingly shipped on May 1, 1899, and a note payable in four months’ time was given in payment for it. No more tobacco was shipped prior to September 1, 1899. About that date Mr. Wilson called on Mr. Bitzer in regard to the.payment for the sixty cases. Mr. Bitzer then stated that he did not want the Avhole of it, and did not desire to have the same shipped. Mr. Wilson persuaded him to take it, and as a result it was arranged that it was to be shipped to Mr. Bitzer, who was to give four months’ notes in payment for the same. The balance of the tobacco was accordingly shipped to Mr. Bitzer. Upon the maturity of these notes given by Mr. Bitzer, the same not having been paid, Mr. Bitzer delivered to Mr. Wilson certain notes he had received in payment from his customers, purchasers of cigars, amounting to over $6,000. These, however, were not paid at maturity. In January, 1900, Mr. Bitzer was unable to make any payment, and during the latter part of the month a writ of replevin was issued by appellant for seventy-three cases of tobacco, and under it some forty-one were delivered. The original purpose of Mr. Bitzer was the purchase of a small quantity of tobacco, Avhich he then required in his business, but that purpose, at the instance and suggestion of Mr. Wilson, was changed to the purchase of a larger quantity. In pursuance of the original intention but a small quantity Avas shipped to Mr. Bitzer, and subsequently, when the note for the first shipment of ten or twelve bales became due, he expressed a disinclination to take the balance, and finally agreed to do so after considerable pressure brought to bear upon him by Mr. Wilson. Mr. Bitzer also, after the first purchase, made one of Connecticut tobacco and gave for the same his notes. He also gave Mr. Wilson business paper for the purpose of securing the notes given in payment for the tobacco. It is clear that from the date of the purchase up to the time that he was unable to make the payment of the first note when it became due, nothing indicates a trick or an artifice or a fraudulent purpose. Appellant however undertook to prove that Bitzer was insolvent at the time of the first purchase, and that the representations made by him as to his financial condition were fraudulent. He testified that upon paying his debts he thought that he could clean up $10,000 or $12,000. It does • not appear by the evidence, however, what his assets then were, and therefore there is no substantial basis for the conclusion that he was then insolvent. He was engaged in the leaf tobacco business and that of manufacturing cigars, and had different factories in the conduct of his business. While so engaged he received considerable amounts of business paper, given him by his customers in payment for cigars purchased by them from him. The proofs indicate that in a great measure his failure was due to the nonpayment of such paper. The evidence does not show that at the time he made the purchase of the tobacco involved in this suit he was insolvent, or that he knew that he was so. It follows, therefore, that there was nothing in the evidence to warrant the conclusion that he intended to defraud Mr. Wilson by fraudulent representations or by trick or device, or that lie resorted,to any false pretence to obtain the tobacco in question. He was then actively engaged in the manufacture of cigars, and in the first instance intended to purchase a small quantity of material for the conduct of his business. While endeavoring to buy such small quantity Mr. Wilson induced him to take a larger one. He received the small quantity, to wit: ten or twelve bales, and gave his note payable in four months. He did not call for the balance of the tobacco, but in September, when Mr. Wilson called upon him in regard to the payment of the note that then became due, he still expressed a wish not to take such additional quantity of tobacco. At the instance of Mr. Wilson he agreed to take it and gave his paper for the same. That last paper became due, and he endeavored to secure it by additional paper which he believed to be good at the time.

Appellant contends that Bitzer was insolvent at the date of the purchase and therefore he was entitled to rescind the contract in question. There was no evidence however that such was the case at such date or that he had any knowledge then of his insolvency. He expressed an opinion as to his financial condition and that was to the effect that after he had paid his debts he would be able.to clean up $10,000 or $12,000. The learned trial judge therefore committed no error in directing to find for the defendant.

In the case of Greene v. Fondersmith, 200 Pa. 625, Mr. Justice Potter cites with approval Wessels v. Weiss, 156 Pa. 591, as follows:

“The language of the court in Wessels v. Weiss, 156 Pa-591, is appropriate to the case in hand: * The solvency of a manufacturer or a merchant, who has debts and assets, unless the assets are of a fixed and stable character, and very largely exceed the liabilities is quite an uncertain factor and very much a matter of opinion.’ And again in the same case: ‘ Unless therefore there are convincing facts in evidence to show with clear certainty that the condition of insolvency was well known to the purchaser of goods when he asserted solvency as a means of procuring the sale of goods to himself, his assertion does not have the aspect of fraud, or artifice or misrepresentation which is required to abrogate an executed contract. If an intending purchaser has a right to regard himself as solvent, and firmly believes that he is so, and, therefore, asserts his solvency to an intended seller, who sells him goods, his assertion of his solvency is certainly not fraudulent, even though insolvency actually arises before payment for the goods is made.’ ”

It may therefore be said that even if subsequent events developed that Mr. Bitzer was mistaken in regard to his solvency, at the time of the purchase, that unless there was some artifice, trick, false pretence or bad faith with intent to defraud Mr. Wilson, the law affords no warrant for the rescission of. the contract for the purchase in question. . . •

An optimistic opinion as to solvency may deserve criticism; bnt if it turns out to be erroneous, a fraudulent intent does not necessarily follow from its expression.

As there was no error in giving binding instructions to find for the appellee, this judgment is affirmed.


author: Mb. Chief Justice Mitchell,

text:
    Herr v. Reinoehl, Appellant.

      Married women—Assignment of personal property—Surety for husband— Acts of April 11, 1848, P. L. 536, and June 8, 1893, P. L. 344.
    A married woman may assign a policy of life insurance on her husband’s life for the purpose of securing her husband’s debt.
    The provision in the Act of June 8, 1893, P. L. 344, which forbids a married woman from becoming “ accommodation indorser, maker, guarantor, or surety for another,” applies only to the technical contract of indorsement, guaranty or suretyship included in the words of the act.

      Insurance—Life insurance—Assignment of policy.

    Where a policy of life insurance on the life of a husband is payable to the wife “ for her sole use, if living, and if not living to the children,” and the wife during the life of her husband assigns the policy, her assignee takes a defeasible title, which upon the death of the husband, the wife surviving, becomes absolute. Brown’s App., 125 Pa. 303, and Entwistle v. Ins. Co., 202 Pa. 141, distinguished.
    Argued May 16, 1904.
    Appeal, No. 187, Jan. T., 1903, by defendant, from judgment of C. P. Lancaster Co., May T., 1901, No. 94, on verdict for plaintiffs in case of Elizabeth Hager Herr, Executrix of' M. L. Herr, deceased, and John H. Baumgardner v. Lucy D. Reinoehl.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Affirmed.
    Feigned issue to determine the ownership of the proceeds of two policies of life insurance.
    On a rule for a new trial Landis, J., stated the facts to be as follows:
    On May 10, 1901, suit was commenced in the name of Lucy D. Reinoehl, to the use of Dr. M. L. Herr and John H. Baumgardner, transferees, against the Washington Life Insurance Company of New York, to recover the amount of two policies of insurance of $1,000 each, upon the life of Adam C. Reinoehl, the husband of the said Lucy D. Reinoehl. Thereupon the defendant presented its petition, whereby, admitting that it had issued the said two policies it averred that on May 11, 1901, Lucy D. Reinoehl, the beneficiary named in the said policies, had also brought an action of assumpsit, to June term, 1901, No. 1, to recover the identical moneys, and as the said company had no interest therein, and was liable to be put to the expense of defending two actions, and to be subjected to the risk of being compelled to pay the money twice, it prayed the court to order the said M. L. Herr, and John H. Baumgardner, transferees, and the said Lucy D. Reinoehl to inter-plead. Thereupon, the court having granted a rule to show cause, subsequently, to wit: on July6,1901, ordered the said Lucy D. Reinoehl to be made a party to the present suit; that the said parties should interplead, Dr. M. L. Herr and John H. Baumgardner, transferees, being plaintiffs and Lucy D. Reinoehl, defendant, and that the said Washington Life Insurance Company should be granted leave to pay the money claimed into court, with interest to the date of its payment, and costs. This was accordingly done.
    The main facts out of which this controversy arises are as follows : On June 12, 1879, the said life insurance company, in consideration of $15.70, duly paid to it by Lucy Reinoehl, wife of Adam C. Reinoehl, issued a policy numbered 36,618, on the life of Adam C. Reinoehl for the sum of $1,000, and the said company thereby promised and agreed “ to pay the amount of the said insurance .... to the said assured (Lucy D. Reinoehl), for her sole use, if living, and if not living, to the children of Lucy and Adam C. Reinoehl, or their guardian, if under age, for their use, or if there be no such surviving children, then to the executors, or administrators of the said Adam C. Reinoehl.” On June 12, 1881, a similar policy was issued, numbered 40,227, upon the life of said Adam C. Reinoehl for a like amount. The words of the covenant contained therein as to the beneficiaries are exactly the same as those contained in the first recited policy.
    On October 20, 1900, Adam O. Reinoehl and Lucy D. Reinoehl, his wife, executed assignments of their interests in said policies to the plaintiffs. The said assignments are attached to each of the said policies, and read as follows: “For one dollar, to me in hand paid, and for other valuable considerations (the receipt of which is hereby acknowledged), I hereby assign, transfer and set over all my right, title and interest in policy No. 36618 on the life of Adam C. Reinoehl, issued by the Washington Life Insurance Company of New York. The Washington Life Insurance Company assumes no responsibility as to the validity of this assignment to Dr. M. L. Herr and John H. Baumgardner, of Lancaster city, Pa., and for the consideration above expressed, I do also for myself, my executors and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above named assignees, their executors, administrators or assigns, and their title to the said policy will forever warrant and defend. Dated at Lancaster, Pa., this 20th day of October, 1900. (Signed) A. C. Reinoehl; Lucy D. Reinoehl, wife. In presence of Mary Acheson MacFarren.” To each of the assignments was pasted or pinned a paper, which read as follows: “ Collateral security to M. L. Herr and John H. Baumgardner as sureties on note of $1,000, First National Bank, October 3, 1900, 90 days and any renewals, and secondly, for any other indorsements. (Signed) A. C. Reinoehl.”
    The said Adam C. Reinoehl died the latter part of the year 1900. Prior to his death, to.wit: on October 3,1900, he gave his note to the order of M. L. Herr and Jolm H. Baumgardner, payable at First National Bank of Lancaster, for the sum of $1,000. This note was indorsed by M. L. Herr and John H. Baumgardner, and being subsequently protested for nonpayment, was paid by the plaintiffs on May 10, 1901, by giving their joint note to the bank. On October 24, 1900, the decedent gave his note to the order of M. L. Herr, payable at the Fulton National Bank of Lancaster, for $1,175. M. L. Herr indorsed it, but Major Reinoehl got the benefit of it and Dr. Herr paid it after Reinoehl’s death. On May 2, 1900, Major Reinoehl and J. H. Baumgardner had given their joint note for $1,000 to the Peoples’ Building, Loan & Deposit Company, payable in six months after date. Reinoehl got the money for the note and Mr. Baumgardner paid it on December 31, 1900, to the building association.
    At the trial the court gave binding instructions for plaintiffs.
    Verdict and judgment for plaintiffs for $2,200. Defendant appealed..

      Error assigned among others was in giving binding instructions for plaintiffs.

      T. B. Holahan and B. F. Davis, for appellant.
    A married woman cannot become an indorser, guarantor or surety for another: Act of June 8, 1898, P. L. 344; Brayton v. Dunne, 2 Monaghan, 94; Patrick v. Smith, 165 Pa. 526; Wiltbank v. Tobler, 181 Pa. 103; Henry v. Bigley, 5 Pa. Superior Ct. 503; Abeles v. Powell, 6 Pa. Superior Ct. 123; Harper v. O’Neil, 194 Pa. 141; Weigle v. Mercer, 1 Pa. Superior Ct. 490; Dusenberry v. Ins. Co., 188 Pa. 454.
    We contend that at the date of the assignments, Lucy D. Reinoehl, the defendant, being a married woman, and the beneficiary in the policies, provided she outlived her husband, and if not the children had a vested interest in the same, and the assignment made by Lucy D. Reinoehl, the defendant, she not being the absolute owner, was null and void, and would have to be ratified after the death of the husband: Entwistle v. Ins. Co., 202 Pa. 141; Brown’s Appeal, 125 Pa. 303.

      W. ü. Hensel and O. F. Hager, for appellees.
    Mrs. Reinoehl could unquestionably transfer her interest in these policies to secure her husband’s creditors: Lytle’s Appeal, 36 Pa. 131; Selden v. Bank, 69 Pa. 424; Haffey v. Carey, 73 Pa. 431; Corcoran v. Ins. Co., 179 Pa. 132; Kulp v. Brant, 162 Pa. 222; Kuhn v. Ogilvie, 178 Pa. 303 ; Adams Paper Co. v. Cassard, 206 Pa. 179 ; Dusenberry v. Ins. Co., 188 Pa. 454.
    The children of deceased never acquired any interest in the policies ; they make- no claim and the widow can make none for them.
    June 15, 1904:
   Opinion by

Mb. Chief Justice Mitchell,

It has long been settled that a married woman may mortgage her real estate for her husband’s debt or for future advances to him. The basis of the rule is stated in Kuhn v. Ogilvie, 178 Pa. 303. The question of her transfer of her personal property for the same purpose did not arise at common law, as by marriage her goods and chattels became the husband’s. But after the Act of April 11,1848, P. L. 536, by which “ every species and description of property ” continued to be hers “ as fully after marriage as before,” it was held in Lytle’s Appeal, 36 Pa. 131, that an assignment by husband and wife of the latter’s chose in action was valid, though made to indemnify the indorser of the husband’s note. And in Kulp v. Brant, 162 Pa. 222, it was said by our Brother Dean, “ It has so often been decided that a married woman may assign her personal property as security for her husband’s debts .... that it is useless to again cite the authorities.”

The Act of June 8,1893, P. L. 344, has not changed the law in this respect: Kuhn v. Ogilvie, 178 Pa. 303; Dusenberry v. Ins. Co., 188 Pa. 454; Adams Paper Co. v. Cassard, 206 Pa. 179. That act is an enabling act, and is not to be construed as narrowing a married woman’s contractual capacity, except where the intent to do so expressly appears. The provision in which such intent is claimed to be found, is in section second, which after authorizing her to make any contract in furtherance of the general power granted in the preceding section, enacts “but she may not become accommodation indorser, maker, guarantor or surety for another.” This has been held to apply only to the technical contract of indorsement, guaranty or suretyship included in the words of the act, Dusenberry v. Ins. Co., 188 Pa. 454, though it will be held to cover a manifest device to evade the prohibition, such as was before the court in Patrick v. Smith, 165 Pa. 526. But what the statute prohibits is the incurring of a personal liability for the forbidden purpose, a liability which carries the risk of a general judgment. This clause was “ a cautionary provision against too liberal a construction of the very large powers conferred by the first part of the section, a saving of the previously existing disability so far as it covered the particular class of contracts specified : ” Kuhn v. Ogilvie, 178 Pa. 303. The pledge of specific property whether real or personal was within her previously existing powers, and these, as heretofore said, were not narrowed by what was intended as an enabling statute to enlarge them.

A second question is raised by appellant on the clause in the policies that they were payable to the assured (appellant) “ for her sole use, if living, and if not living to the children of Lucy and Adam 0. Reinoehl, or their guardian if under age,” etc. It was claimed that as the children had an interest, the assignment by appellant and her husband in which the children did not join, was invalid, and for this are cited Brown’s Appeal, 125 Pa. 303, and Entwistle v. Ins. Co., 202 Pa. 141. But in both those cases the assignment of the policy was called in question during the continuance of the insured life. The interest of the wife, assignor, was contingent on surviving her husband, and the assignee took only a defeasible title. In Brown’s Appeal, the death of the wife during the husband’s life had defeated the assignee’s title as against the children, and in Entwistle v. Ins. Co., his title being still contingent, during the husband’s life, the assignee was not allowed to surrender the policy and take its cash value. In the present case the facts are essentially different. The husband having died the contingent interest of the wife vested and the defeasible title of her assignee became absolute.

A third question relates to the notes for which the policy was to be security. The assignments were absolute on their face, but to each was attached a paper reading as follows: “ Collateral security to M. L. Herr, and Jolin H. Baumgardner as sureties on note of $1,000 First National Bank, October 3, 1900, 90 days and any renewals, and secondly for any other indorsements.” The learned judge below rightly construed this to mean that the policies were to secure first, the note described, next any renewals of it, and finally any other indorsements for the benefit of Reinoehl, made by Herr or Baumgardner, either jointly or severally.

Judgment affirmed.


author: Mb. Justice Thompson,

text:
    Wells Whip Company v. Tanners Mutual Fire Insurance Company, Appellant.

      Insurance—Fire insurance—Evidence—Witness.

    In an action by a corporation on a policy of fire insurance for a total loss of a stock of goods and a building containing the goods, it appeared that about a year before the fire plaintiff had caused an inventory to be made of the stock then on hand. Plaintiff’s secretary then testified that he knew of the value of the goods on hand at the time of the inventory; that the inventory was made under his direction by bookkeepers and clerks, and that he, the treasurer, and manager of the plaintiff had subsequently verified it. There was evidence as to the value of the goods during the year after the inventory was made and also as to the value of the goods taken out. In order to reach the value of the goods at the time of the loss it was necessary to ascertain and deduct the percentage of gross profits represented in the manufactured product. For this purpose comparisons with the previous year were necessary. Held, that the secretary was competent to testify as to the accuracy of the inventory, and to refresh his memory from it in order to show in his opinion what was the percentage of net profits.

      Insurance—Fire insurance—Covenant—Production of books—Bequest for performance of covenant—Bight to sue.

    Where a policy of fire insurance contains the usual covenants in regard to an examination under oath, production of books of account, bills, vouchers, invoices and certified copies at a place designated by the insurers, and the insurers have made no request for the performance of these'conditions, they cannot at the trial successfully raise a question as to the right of the insured to bring the suit because of a violation of the covenant.
    Where an insurance company calls upon the insured to produce at the trial stock and sales books and also bills for goods and it appears that the original bills and invoices were destroyed, the plaintiff cannot be convicted of neglect in refusing properly to answer the call, because he did not produce certified copies or duplicates of the bills.
    Argued May 16, 1904.
    Appeal, No. 265, Jan. T., 1903, by defendant, from judgment of C. P. York Co., Aug. T., 1902, No. 62, on verdict for plaintiff in case of Wells Whip Company v. Tanners Mutual Fire Insurance Company.
    Before Mitchell, C. J., Dean, Bbown, Potteb and Thompson, J J.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before W. F. Bay Stewabt, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial when J. Milligan, secretary of plaintiff, was on the stand, the following offer was made :
    Mr. Niles: Now I propose to ask the witness what was the value of the goods in this building covered by the item under consideration, at the time of the fire, and consumed by the fire November 15, 1901, for the purpose of sustaining the issue on the part of the plaintiff, and showing the amount due from the defendant to the plaintiff.
    Mr. Wanner: This is objected to, that the witness has not shown such personal knowledge either of the cost of materials, finished products, or anything covered by the items in this policy, as entitles him to give an opinion as to the gross sum of the plaintiff’s damages caused by this fire. It appears already from the witness’s testimony that his knowledge is not derived from purchasing or selling or personally superintending the manufacture of the articles, but solely from his inspection as secretary of the books and accounts of the company passing through his hands. The evidence is inadmissible for the purpose for which it is offered, and the witness is incompetent to make the desired estimate.
    The Court: Q. Who kept these books? A. We had bookkeepers and clerks who assisted me in the keeping of the books.
    Mr. Niles: Q. Were they under your control ? A. Entirely.
    Q. Had you anything to do with the checking up of the receiving of the goods, or goods when they were received ? A. No, sir; our receiving clerk checked up the goods that came in. The bills checked up by him came into my hands before we paid for them.
    The Court: I have some doubt about the admissibility of this evidence, but I will admit it, and give the defendant an exception.
    Mr. Niles: Q. What was the value of the goods destroyed at that fire covered by this $15,000 item ? A. $47,000.
    Mr. Wanner: Defendant renews the objection to,the witness as not competent to make this estimate and give this opinion.
    The Court: I will admit the answer, and give the defendant an exception. [2]
    The witness. $47,988.55.
    ■ Mr. Niles: The witness having stated that the value of the goods destroyed was $47,988.55, and having partially completed his explanation of the method by which he arrived at the result, we propose to ask him to go on and finish his explanation. He has stated that the total value that went into the building, and the item in question, from the time of the inventory, and including the inventory, up to the time of the fire was $140,373.10; and that during that period there was received for goods sold out of that building, and net receipts, in all $136,350.55. We propose to show that the $136,350.55 was in addition to the cost of the goods, the net cost, which was taken into consideration by him on the other side, and in-eluded in the $140,373.10, included the profit of thirty-three and one third per cent; and, in order to arrive at the value of the goods on hand in the building at the time of the fire, it is necessary to deduct that profit from the total sales in order to ascertain the exact cost and the value of the property left, the amount of the property left at the time of the fire.
    The Court: Well, it seems to me very clear that, having given the gross receipts, he must now show what the charge off was against those gross receipts, in order to arrive at the value of the property destroyed.
    Mr. Wanner: It is objected, that the witness has shown no personal knowledge whatever of the cost of any of the finished products, or of the cost of labor and material entering them,' or any such personal knowledge at all entering into the manufacture and sale of them, as entitles him to give an opinion of the general percentage of profits on the whole mass of the various kinds of goods contained in that factory at . the time of the fire.
    The Court: I will overrule the objection. I do not see it at all in the light mentioned by counsel for defendant. This man was the secretary of the company, and had charge of the books of the company, and knew what was bought and what was sold. What he is trying to do now is to show what the company had on hand. He has shown the gross receipts, and he must now make the proper charging off in order to arrive at what they had on hand. Exception to the defendant. [3]
    Defendant made the following offer:
    Mr. Wanner: Here is the call served on the other side: “ You are hereby notified and required to produce at the trial of the above cause any and all books of account, stock books, sales books, and other books, bills of goods, merchandise and materials, purchased by said plaintiff during the years 1900 and 1901, and all other papers and memoranda which the said plaintiff has in its custody, possession or control, showing the cost and value of the property insured by the defendant and destroyed by fire at the factory of the said plaintiff in November, 1901.”
    * * # * - * * * *
    Mr. Niles : There were a few duplicate bills obtained since the fire by officers of the plaintiff company. These are not present in court, for the reason that they were not covered, in the opinion of counsel for the plaintiff, by the call, not being original papers, and not being complete, nor being a part of their records of their case.
    Mr. Wanner: To which the defendant’s counsel replies that the answer is not sufficient to the call, and admits the fact that there are in the plaintiff’s possession bills of the very kind of purchases about which the witness is being examined, and which the defendant has a right to see, and has asked to see; and the court is respectfully asked to direct that the plaintiff shall get and produce in court under that call these bills showing finished goods and raw material purchased in 1901, which they have in their possession.
    ********
    Defendant’s counsel further proposes to show to the court in connection with this matter, by the expert himself, who is in court, to whose figures the witness has been referring, that the plaintiffs did have in their possession the books and bills and accounts showing purchases before the fire, and before the inventory, and the subsequent sales of both, the bills giving the materials about which the witness has been testifying, and about which defendant desires to cross-examine further, in connection with these books and papers.
    The Court: The offer on the part of the defendant is overruled as being irregular and out of order. The answer made by the plaintiff is sufficient under the call, the papers in possession of the plaintiff being duplicate bills, not being in the call; and papers which would not be admissible in evidence if offered by the defendant.
    Exception for the defandant. [7]
    Mr. Wanner : Your honor seemed to have some doubt about our right to call for duplicate copies of bills. I wish to read a clause from the policy:
    “ The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examinations under oath by any person named by this company, and subscribe the same ; and as often as required, shall produce for examination all books of account, bills, invoices, and other vouchers or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.”
    I take it that the parties to the contract have had copies made as accurate as originals ; and in view of the testimony of the witness on the stand as to the existence and production of them, defendant’s counsel again asks the court to direct that the plaintiff furnish to the defendant’s counsel the duplicate bills and other accounts and papers which were submitted to the expert who has testified to his adjustment of this loss, and the making up of the expert account already testified to by witnesses on both sides in this case.
    The Court: The motion is refused for the reasons assigned when it was made before, and for the additional reason that there were no certified bills called for in the written call which I presume was served upon the plaintiff. That was a matter that the counsel for the defense had before them, and they could have called for certified bills if they had seen fit.
    Exception for defendant. [8]
    Defendant presented this point:
    4. The policy upon which the suit is founded requires the insured, as often as shall be required, to produce for examination all books of accounts, bills, invoices and other vouchers, or certified copies thereof, if originals be lost, at such reasonable price as may be designated by the defendant, or its representative. The plaintiff having failed to produce such bills, invoices and other vouchers, or certified copies in cases in which the originals were lost,.in court, under the call of the defendant, exhibited to the court and offered in evidence in this case, the plaintiff has not performed its duty under the contract, and therefore cannot recover in this cáse. The verdict of the jury must therefore be for the defendant. Answer: This point is refused. It is drawn under this provision of the policy: “ The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examination under oath by any person named by this company, and subscribe the same; and, as often as required, shall produce for examination all hooks of accounts, bills, invoices and other vouchers, or certified copies thereof, if originals be lost, at such reasonable place as may be designated by this company, or its repre
      sentative, and shall permit extracts and copies thereof to be made.”
    Waiving the question of whether or not that provision in the policy applies to a proceeding in court such as this, where the method of requiring the production of papers stands upon a different footing, namely, upon the law itself, and not upon the private contract of the parties, the plaintiff was bound to furnish these things called for, aiid as specifically called for, but there was no call for any certified copies of any of these bills mentioned in the defendant’s call, and the plaintiff cannot be turned out of court on a sharp technicality like that, because he did not produce things that were not specifically called for. [12].
    Verdict and judgment for plaintiff for $16,187.50. Defendant appealed.

      Errors assigned among other were (1, 2, 3, 7, 8,) rulings on evidence, quoting the bill of exceptions; (12) above instruction, quoting it.

      Frank R. Savidye, for appellant.
    The plaintiff should have produced the original and duplicate bills in its possession or which were procurable, as the best evidence and in answer to the call, and in conformity with the contract of insurance: Stevenson v. Hoy, 43 Pa. 191; Seibel v. Lebanon Mut. Ins. Co., 198 Pa. 106 ; Langan v. Royal Ins. Co., 162 Pa. 357; O’Brien v. Commercial Fire Ins. Co., 63 N. Y. 108.
    The plaintiff did not produce a single witness competent to testify to the correctness of the inventory, or to the cost of materials purchased, or to the cost of the manufactured product or to the gross profits possible in the business or earned.

      Henry G. Hiles, with him George E. Heff, for appellee,
    June 15, 1904 :
   Opinion by

Mb. Justice Thompson,

The main element in determining the value of the property destroyed by the fire for which appellant Under its policy became liable to pay appellee, in consequence of a-total loss, was the percentage representing what is known as gross profits to be deducted from the book or sales valuation of the manufactured goods taken from the factory during the year just previous to the fire. Appellee’s factory was destroyed by fire on November 15, 1901, and the result of the fire was the total destruction of it and its contents. Appellee on November 30, 1900, made an inventory containing the value of the goods that were then in the factory and its aggregate was $47,848.17. Between such date and that of the fire there went into the factory for materials and other charges the sum of $95,524.33. Thus in the factory the total valuation of the property represented as being there within the period specified was an aggregate of $140,373.93. But during such period the product manufactured there, after deducting discounts, returns and allowances, represented a book or sales valuation of $136,350.55. In such valuation however was included what is designated “ gross profits,” gross profits being the difference between the sum named and certain costs and expenses of production, the actual net profits being such profits as finally remain after deducting all costs and incidental charges and expenses of every kind and description. Therefore in order to ascertain the value of the goods taken from the factory during the year of the fire and represented in such manufactured product it became necessary to deduct the percentage that represented the gross profits from the book valuation of sales, and so deducting, the residue left, together with the aggregate represented by the inventory as being there at the commencement of the year, would indicate the value of the property destroyed by the fire.

The appellee contended that such percentage was thirty-three and one third per cent and amounted to the sum of $45,450.18. That with this deduction from the book or sales valuation, to wit: $136,350.55, there was thus shown that $90,900.37 was the actual amount of material, etc., taken out of the factory during the year of the fire and represented by the manufactured product. That deducting this latter sum from the aggregate of $140,373.93 which represented valuation which had gone into the factory up to the date of the fire, the residue represented the actual valuation there at the time of the fire, to wit: $49,472.13, and allowing a deduction from this of three per cent for depreciation, etc., the actual value became $47,988.55, and therefore the property destroyed by fire was $47,988.55, The aggregate of appellee’s insurance in different companies was $44,238.18, a sum somewhat less than the above loss and consequently appellee’s claim for loss was the sum above indicated, and such being the case it was entitled to recover in this action the full amount of its policy.

Appellant’s contention was that appellee’s proofs in support of such claim were not sufficient to establish it and was directed especially to the quality of the proofs relating to the inventory and to the percentage of gross profits. The evidence does not warrant the conclusion that there was any bad faith shown or any misrepresentation made by the appellee. Soon after the fire an expert accountant representing the insurance companies, including appellant’s representative met the officers of the appellee, and made a careful examination with them for the purpose of ascertaining the extent of the loss occasioned by the fire. He states that appellee furnished him with such books, papers and accounts as had not been destroyed and that he examined them and they were sufficient for him to make up a statement of the loss. His figures representing the amount of the loss were substantially the same as those of appellee except the amount to be deducted for percentage to represent gross profits. If he had made the deduction of thirty-three and one third per cent as claimed by appellee they would have been substantially the same. The extent of the loss by fire therefore practically turned upon such percentage. If the same was a smaller percentage, that would indicate a larger amount of materials taken out during the year, but if the percentage was larger that would represent a smaller amount of goods taken out as represented in the manufactured product, and therefore a larger amount on hand at the time of the fire. Appellant claimed that such percentage should not exceed twenty-six per cent while appellee contended that it was in fact not less than thirty-three and one third per cent. The secretary of the company testified that he had been twenty-two years in the business and that he knew that' the value of the goods in the factory in November, 1901, was $47,988.55. He testified that he had personal knowledge of it derived from the books of the appellee and from an inventory made by the company at that date. That he had such knowledge from his bookkeepers and clerks who assisted him in keeping the books that were entirely under his control. That when the inventory was made that he and the treasurer and manager of the company verified the figures and were satisfied they were correct and he positively testified that the amount of goods were in the factory as represented by the inventory. It is evident from his own knowledge and from that based upon the books under his control and from that possessed at the time the inventory was made, he was competent to testify to the value of the property destroyed. Certainly while testifying he would have been warranted in refreshing his memory by a reference to the inventory made up under his supervision and by his direction, as to the accuracy of which there was not the slightest question and so demonstrated upon cross-examination. Appellant’s objection that this proof was secondary, because the men who actually counted the articles and weighed the materials were not called lacked substance, for the reason that the inventory was made under the directions of the witness and was duly verified by him. It accordingly represented the value of the goods on hand at the date in question and it was clearly made for that distinctive purpose only. With the inventory before him to refresh his memory, with his personal knowledge that the figures therein contained were true, his evidence as to the value of the property was competent aiid the accuracy and truthfulness of it were for the determination of the jury.

With goods to the value as testified by him as being there at that time and with the subsequent value added during the year, there was a total representing a sum of $140,373.10, but there was represented in the manufactured product as taken out of the factory during the year, a book or sales valuation amounting to $136,350 55, but in order to reach the exact amount of materials, etc., so taken out of the factory, and represented in the manufactured product, the percentage < f gross profits must necessarily be deducted. Because in the year previous to the fire the percentage was twenty-six and a fraction per cent, such percentage was relied upon by the appellant as the proper basis for the year of the fire, but appellee’s witnesses testified that the percentage of gross profits was larger during the year in which the fire occurred, because during the year previous the prices were cut the greater part of the year, and during the year of the fire, there was a fixed basis for them, and salesmen were not allowed to sell below that price and orders were not accepted below a certain price; that there was an organization known as the Whip Manufacturers’ Association which fixed the prices and appellee was not allowed to sell for less; that it made a minimum selling price and appellee made its own maximum selling price; that this minimum selling price was in excess of the price of the year before; that the year preceding the fire there was quite a portion of the year where orders were filled at low prices, owing to the fact that customers had placed their orders in anticipation of. this advance.

Accordingly appellee’s witnesses testified that the percentage to be deducted was thirty-three and one third per cent. The question therefore upon the proofs was one of fact for the jury and the learned trial judge so left it. The evidence warranted its submission to them and a refusal to do so would clearly have been error. The jury having found that the percentage established by the proofs was thirty-three and one third per cent, the appellee was entitled to a verdict for the full amount of its policy.

The policy contained the usual covenant in regard to an examination under oath, production of books of account, bills, vouchers, invoices and certified copies at a place designated by the insurers. Prior to the trial appellant made no request for the performance of these conditions and hence it follows that no question could have been successfully raised as to the right to bring the present suit in consequence of the neglect or refusal of appellee to comply with a request to perform these conditions when made by appellant. When there has been a neglect or refusal to compty with such conditions, they being made an essential to the right to sue, such refusal or neglect has operated to defeat recovery, but in the present case no such question of right to sue can be raised. After suit was brought and before trial the usual notice was served upon appellee to produce upon such trial stock books and sales books, also bills for goods purchased by the appellee during 1900 and 1901. The original bills and invoices were destroyed. • Appellee entered in its merchandise account simply the amounts of purchases without the names of the vendors and such duplicates as they had were submitted to the accountant. The learned trial judge very properly ruled that the call had been complied with and that it did not apply to duplicates. There was no refusal or neglect in the first instance such as would operate to defeat the right of recovery and there was none in the second instance that could in any manner affect the same.

In view of the conclusion that there was no substantial error in the ruling of the learned trial judge in regard to the main questions involved it becomes unnecessary to discuss the subordinate assignments of error.

The assignments of error are not sustained and the judgment is affirmed.


text:
    Ranck v. Brackbill, Appellant.

      Marriage—Contract—Breach of promise—Evidence.

    In an action by a woman against a man to recover damages for breach of promise of marriage, the fact of a long standing engagement to marry was not disputed. The controversy was as to who was at fault for the breach of the contract Plaintiff testified that after a day had been set for the marriage, she overheard the defendant say to his mother that he proposed to study over it, before he would marry her. She was then permitted to testify that shortly after hearing the declaration by the defendant, she told her father and aunt of it. The father and aunt were then permitted to testify to what the plaintiff had told them that she had overheard. Held, that the evidence of the father and aunt was mere hearsay and inadmissible.
    Argued May 16, 1904.
    Appeal, No. 16, Jan. T., 1904, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1901, No! 1, on verdict for plaintiff, in case of Elizabeth Ranck v. Preston E. Brackbill.
    Before Mitchell, C. J., Dean, Bbown, Potteb and Thompson, JJ.
    Reversed.
    Assumpsit for the breach of promise of marriage. Before Endlich, J., specially presiding.
    At the trial it appeared that there was no controversy as to the fact of an engagement to marry. The dispute turned on the question as to which party had broken the contract. Plaintiff testified that July 2, 1901, had been set for the marriage, but that on the evening of June 26, 1901, she overheard the defendant say to his mother that he proposed to study over it, before he would marry her. Plaintiff’s counsel then made the following offer:
    Mr. Davis : I offer to show that she narrated to her father and her aunt the conversation that she heard between the defendant and his mother downstairs.
    Objected to by the defendant as incompetent and irrelevant.
    The Court-: You do not propose to ash her what she told her father and her aunt, but simply to ask her whether she repeated to her father and to her aunt the conversation which she overheard without going into the terms of it?
    Mr-. Davis: Yes.
    Objection overruled. Defendant excepts. [1]
    Q. State whether or not you told your father and your aunt on that same evening, after you went upstairs, of the conversation you heard between the defendant and his mother. A. I did.
    Mr. Hensel: John D. Ranck and his sister both being on the stand, it is assumed, as I understand, to ask them a- question, whether or not this woman told them of a certain conversation which she heard, and the contents of that conversation. Your honor will see that I get an objection.
    The Court: What is your objection ?
    Mr. Hensel: If it is understood that the court has already ruled and said it will admit that offer of the gentlemen to prove, by John D. Ranck and his sister, I want an objection to it as incompetent, irrelevant and immaterial.
    Bill of exceptions signed, sealed and filed for the defendant. [2]
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned among others were (1, 2) rulings on evidence, quoting the bill of exceptions.

      W. U. Hensel, with him O. R. Kline, for appellant.
    It was error to admit the testimony of the witnesses to the effect that plaintiff repeated to them what she alleged she heard defendant tell his mother: Ogden v. Penna. R. R. Co., 1 Monaghan, 249.

      When declarations are not incident to the act, but merely narrative of a past transaction, this, and not proximity of time, is the true test: 1 Wharton on Evidence, sec.n 259; Waldele v. R. R. Co., 95 N. Y. 274; R. R. Co. v. Mara, 26 Ohio St. 185; Patterson’s Railway Accident Law, 417, 418 : Mullan v. Steamship Co., 78 Pa. 25; Stern v. Ry. Co., 1 W. N. C. 531.
    Declarations only become a part of the res gestm when made contemporaneous with the act done : Grim v. Bonnell, 78 Pa. 152; Hanover R. R. Co. v. Coyle, 55 Pa. 396; Mullan v. Steamship Co., 78 Pa. 25; Mason Fruit Jar Co. v. Paine, 166 Pa. 352.

      T. B. Ilulahan and B. F. JDavw, for appellee.
    The essential fact of the woman’s consent to defendant’s proposal of marriage nmy be shown by her own acts and declarations to third parties : Moritz v. Melhorn, 13 Pa. 331; McCormick v. Robb, 24 Pa. 44; Leckey v. Bloser, 24 Pa. 401; Ogden v. Penna. R. R. Co., 1 Mona. 249.
    June 15, 1904:
   Opinion by

Mr. Justice Potter,

This was an action for damages for breach of promise of marriage. The verdict was for the plaintiff and the defendant- here complains chiefly of the admission of certain testimony. The plaintiff, having testified of a very long courtship and that July 2, 1901, had been set for the marriage, said that on the evening of June 26, 1901, she overheard the- defendant say to his mother that he proposed to study over it, before he would marry her. Against the objection of the defendant, she was permitted to testify that, shortly after hearing the declaration by the defendant, she told her father and aunt of it. They were then permitted to testify to what the plaintiff had told them that she had overheard. The fact of a long standing engagement to marry was not disputed. The inquiry was as to who was at fault for the breach of the contract. The defendant denied that he had used the language in question, in conversing with his mother, and said that he had never refused to marry the plaintiff. The conversation between the defendant and his mother was not an important or essential element in the case. It may have been some indication of his mental attitude toward the plaintiff, but it was not evidence that he had broken or resolved to break bis contract. The important fact to be established was the breach of the promise of marriage. It may be that the direct testimony bearing upon the question, and obvious inferences from the undisputed evidence, would have been sufficient to. satisfy the jury that the defendant broke the engagement. But the plaintiff was not satisfied with these. She was permitted without objection to testify to the fact of the conversation itself, and to what she heard the defendant say to his mother. She had the full benefit, before the jury, of her statement in that respect and with that she should have been content. As to whether or not she repeated what she had heard, to two persons or to ten persons, made no difference. It was nothing more than her own narrative'of a transaction then past and could not be considered as part of the res gestse. We can only regard the calling of the father and the aunt to testify to what the plaintiff said to them, as an attempt to introduce hearsay evidence, not justified under any exception to the general rule which forbids it. To permit it in this case would be to open the door to a dangerous facility for increasing the number of witnesses, by the easy process of admitting all those to whom the plaintiff in her grief and indignation might have seen fit to rehearse her version of what had occurred. We are unable to see in this instance any exceptional circumstances such as must be found in order to justify the admission of proof of prior unsworn statements of the witness. It is true that the testimony was conflicting, but that of itself was not sufficient. It was not alleged that the plaintiff had herself made any inconsistent statements, nor was there any attempt to impeach her general character for truth, or to show that she had recently fabricated the statement as to the conversation which she had overheard. We are not able to justify upon any sound principle the introduction of the testimony of the’father and the aunt, as to facts about which they had no personal knowledge.

In the eye of the jury they gave to the case of the plaintiff, the apparent strength of three witnesses instead of one. The result could hardly have been other than prejudicial to the defendant. The first, second and third specifications of error are sustained, and the judgment is reversed, with a venire facias de novo.