Gerhauser v. North British and Mercantile Insurance Company. who can but ill understand them, it is clear that they ought not to be so framed as to perplex courts and lawyers, and so that no prudent man can enter into one without an attorney at his elbow to tell him what the true construction of the document is. And if a warranty, it has not been proven untrue. In common parlance, this was a "brick building"; and we must give to the language that meaning which plain and unlettered men usually attach to it. But the verdict can be supported on another principle. In 1 Smith's Leading Cases, pp. 789-791, it is said: "The better opinion would seem to be, that whenever the error of which the insurers seek to take advantage is occasioned by them or by those for whom they are responsible, they will be equitably estopped from setting it up as a defense, whether it occur in a representation or a warranty." If, then, plaintiff told Harvey of the wooden studding in the south wall, and if that amounted to telling him it was a wooden building, Harvey should have so described it in the policy. The company was responsible for his omissions, and cannot avoid liability by reason of any discrepancy between the facts as disclosed to him, and his presentation of them in the papers. It cannot saddle the blunder of its own agents on plaintiff, and thus take adMay v. May v. Buckeye, &c., 25 Wis. 291; 4 R. I. 141; 3 Keyes, 91; 50 Penn. 331; 40 N. H. 333–375; 29 Conn. 10; 50 Ill. 111. This harmonizes with the general rule that "when a purchaser is acquainted with the real nature of that which he purchases, he cannot rely on a failure to accord with the representation or description given of it by the vendor, as a breach either of a warranty or of the substance of the contract." vantage of its own wrong. The eleventh subdivision of the conditions, after providing that plaintiff should make proof of his loss, declares a forfeiture in case of fraud in the claim made for such loss, or false declaring or affirming in support thereof. In due time, plaintiff made a statement of his losses. In it he valued the furniture "at about $6,000 coin, having cost said sum within the space of four years anterior to the date of the hereinafter described fire." This statement also alleged that he was the holder of the policy on the building, as well as of that on the furniture. A few days after the fire, plaintiff was in the office of defendant in Virginia City. The agent of defendant sug Gerhauser v. North British and Mercantile Insurance Company. gested to plaintiff that a statement of his losses be made, and accordingly he made the statement referred to. The agent then told him it was all that was required, and was all right. In order to work a forfeiture under this subdivision, the false statement must be wilfully made with respect to a material matter, and with the purpose to deceive the insurer. Marion v. Great Republic, &c., 35 Mo. 148. Applying this rule of law to the testimony, I cannot say that the jury came to an erroneous conclusion on this point. The statement was evidently intended to embrace both policies; and if it was technically defective in this regard, fair dealing required the defendant to point out the defect. On the contrary, there is evidence that the agents of defendant expressly waived any further statement, and induced the plaintiff to rely upon that furnished. The law is well settled in this respect, and settled in accordance with the plainest dictates of reason and conscience. 14 Md. 295; 2 Ohio St. 476; 32 N. Y. 441; 20 Grattan, 312. Some of the authorities seem to hold that where the verdict finds the value of the property to be only one-third or one-half the valuation in the statement of loss, the verdict should be set aside as itself evidencing fraud, etc., in the statement. Here the verdict fixes the value of the furniture at $3,000, but the statement gives it as $6,000. But this cannot be law. The verdict is compounded of the varying estimates of twelve men, made on conflicting statements of witnesses; it is often the result of a mere compromise of opinions; it will stand, though based upon evidence evenly balanced by evidence corroborating the statement. To hold it conclusive, not only of an overestimate but of a fraudulent overestimate, is altogether too arbitrary and harsh a rule, especially where the same finding, as here, negatives the existence of actual fraud, and the valuation in the statement is not positive, but is in terms the expression of an opinion deduced from given facts. Of course, there may be cases where the overvaluation is so glaring that the disproportion will amount to proof of fraud; but it is every day's experience that honest men will honestly differ as to the value of such property as that here in question, to a greater extent than this verdict differs from the statement. The remaining assignments are of errors in law. The court al Gerhauser v. North British and Mercantile Insurance Company. lowed the witness Ritter to answer a question objected to by the defendant. But the statement fails to disclose what the answer was. So far as the record informs us it may have been harmless. 66 It is not sufficient to show that an improper question was asked a witness, unless it also appear that the answer thereto disclosed improper and illegal testimony, and to the prejudice of the party objecting." Mays v. Deaver, 1 Clarke, (Iowa) 222; 8 Iowa, 160; Johnson v. Jennings, 10 Grattan, 1. It appeared on the trial that this case was once before tried in the same court, judgment rendered, and reversed on appeal. That on the former trial a Mrs. Reed was examined as a witness for defendant, and cross-examined by plaintiff; and that at the time of the second trial she was residing in the state of California. Defendant proved by plaintiff's counsel, that the statement of the testimony of Mrs. Reed, as contained in the statement used in this court on the former appeal, was correct, and the substance of what she testified to on the former trial. It being conceded that said testimony was relevant and material, counsel for defendant asked leave to read to the jury a portion of said Reed's testimony from the transcript thereof used on said first appeal-which portion is set forth in the record now before us. Plaintiff objected, and the objection was sustained. All the cases agree that the testimony of a deceased witness, given on a former trial of the same cause, may be proved as secondary evidence-as the best evidence of which the nature of the case admits. But there is a decided and irreconcileable conflict of authority on the question whether, as a foundation for the admission of such secondary evidence, the absence of the witness from the state is equivalent to his death. In Lightner v. Wike, 4 S. & R. 204, Chief Justice Tilghman said that the rule of admitting evidence of what a deceased witness swore is founded upon necessity, and is an exception from the general rule, which demands the examination of a witness viva voce, and must be extended no further than necessity requires. In Magill v. Kaufman, Ib. 319, the same judge extended the exception to the case of a witness absent from the state. He admitted that he could find no express decision on the point, but held that as the handwriting of an absent subscribing witness may be proved, to Gerhauser v. North British and Mercantile Insurance Company. preserve consistency, the absence of a witness from the state should be considered the same thing as his death; and that, if the adverse party desires to prevent the use of the secondary evidence, he should send a commission to examine the witness. Soon after, in Wilbur v. Selden, 6 Cowen, 164, the contrary was held, and it was said that the rule as to a subscribing witness was not at all analogous in principle. And the same ruling has been made in other states. 17 Ill. 427; 5 Rand. (Va.) 708; 14 Mass. 234; 2 Blackf. (Ind.) 308. In Cowen & Hill's notes, and in the text of Greenleaf, a decided preference for the Pennsylvania doctrine is expressed, and it has been established in other states either by statute or judicial decision. With all deference to such authority, we think it the safer and better rule, that where the residence of the witness is known, or can be discovered by the exercise of due diligence, and his testimony can be taken by commission, evidence of what he swore on a former trial should be excluded. It will not be denied that his deposition is the primary and best evidence the necessity for a resort to secondary evidence does not then exist, as in the case of death, and we can see no reason why, in order to escape from the dangers and abuses incident to the use of the secondary evidence, the duty of suing out a commission should be cast upon the adverse party, rather than upon the party seeking to avail himself of the testimony of his own witness. The analogy relied on by Judge Tilghman is by no means perfect. In a late English case, where it was pressed as an argument in favor of the admission of secondary evidence of the contents of a document beyond the jurisdiction, Creswell, J., said: "It is not on the ground that his is the best evidence, that the attesting witness, if procurable, must be called; but because he is the witness agreed upon between the parties." The rule requiring proof by a subscribing witness has long been regarded as a useless formality, adhered to only because courts had no power to dispense with settled rules of law. But that requiring the production of the best evidence is one of substance and wise policy. The former is to be extended no further than strict precedent requires the latter is dispensed with only in case of necessity, and in the absence of precedent is to be applied to all cases falling within its reason. Gerhauser v. North British and Mercantile Insurance Company. Even in Pennsylvania the analogy is not always followed. Thus, they reject the testimony of a witness given on a former trial in case of supervening interest, which, however, they admit will enable the party to establish the execution of a document by proof of the handwriting of a subscribing witness. So if the attesting witness has forgetten the facts or refuses to testify, this will let in proof by other witnesses. 1 Starkie Ev. 510. But such forgetfulness or refusal is not a sufficient foundation for the introduction of testimony given on a former trial. 43 N. H. 297. If admissible, the whole of the testimony of Mrs. Reed should have been offered; and it seems it should have been shown that Mr. Mitchell had forgotten what her testimony was. 48 N. H. 282; 17 N. Y. 138; 9 Rich. Eq. 429; 15 N. Y. 485; 22 N. Y. 462; 46 Barb. 410. Perhaps, too, the rejection of the transcript may be justified on the ground that it was not a memorandum made by the witness Mitchell, nor one made at or near the time when he heard Mrs. Reed testify. It is rested, however, on the first ground, for the reason that it is claimed that the objection made by the plaintiff in the court below was so limited, and the argument on the point made by the appellant, that he cannot take a different position in this court, has been altogether ex parte. "It is not sufficient The first instruction given reads: "A." to aver that, when the application for insurance was made, the insured concealed a fact material to the risk, and which would have increased it if known. It must also appear that the insured knew of the existence of the fact. It is not every fact within the knowledge of the insured that he is bound to disclose, and if such facts as the law or the policy will require him to disclose are within the knowledge of the insurers, or so connected with the property insured that its knowledge may be fairly inferred, a failure to inform the company thereof will not avoid the policy." The defendant excepted generally to the giving of this instruction, and each part thereof, and especially upon the ground" that so much of said instruction as held that it was not the duty of the plaintiff to communicate to defendant all matters material to the risk, was not law; and also to that portion of it which referred both to the knowledge of the plaintiff and the defendant, because the same was not perti |