Jones's Appeal , 62 Pa. 324 ( 1869 )

The opinion of the court was delivered,

by Sharswood, J.

The opinion of the learned judge below demonstrates so ably and conclusively that the contract between A. J. Jones and the appellant, in contemplation and consideration of marriage, and not pretended to have been fraudulent in fact, at least as far as she was concerned, was valid as against creditors, that it is unnecessary to add anything upon that subject.

The contract was broken on the death of the husband without having performed its stipulations. His obligation was to secure an annuity to his wife after his death. What should be the measure of damages which the appellant ought to recover, was undoubtedly a question of considerable difficulty — more especially as there is not, as far as the industry of the counsel has been able to discover, any authority which throws light upon it. But that is no reason for rejecting her claim altogether, or confining it, as the learned judge below thought it ought to be confined, to the arrears of the annuity due her at the time of presenting her demand or commencing her action. On that theory, if the husband’s estate had been sold and converted into money and a distribution made within a year from his decease, she would receive nothing or at most only a proportional sum for the time which had elapsed, considering the annuity as apportionable, which, as it was evidently intended for her support, would doubtless be the rule. But she might have commenced her action against her husband’s administrators immediately upon his death. She certainly could have recovered something, otherwise here would be an acknowledged right violated — and no remedy, which would be an anomaly. Had the annuity been to her absolutely for life, there would be no difficulty in ascertaining from the evidence of experts in the business of granting .life annuities what was its worth at the time of breach — in other words for what sum such an annuity could be purchased, taking into consideration the age an'd sex of the proposed annuitant, and other circumstances bearing upon the risk. But this was not an absolute annuity of $1500 for life, but subject to be reduced to $500 in the -event of her second marriage. The learned judge below appeared to think that this introduced such an element of uncertainty as precluded her from making any claim at all on that footing. But the recognised rule in cases of uncertainty of this kind is not to reject altogether but to assess the damages on the basis of the lowest sum. Thus if the plaintiff prove the delivery of goods, but give no evidence of their value, it will be presumed that the articles were of the lowest price of goods of that description: Clunnes v. Pezzey, 1 Camp. 8. Want of evidence of the value of services does not preclude a recovery on a quantum meruit, for the plaintiff is entitled to at least nominal damages : Bash v. Bash, 9 Barr 260. Certainly no prudent company in granting an annuity upon these terms would make any allowance for the chance of the reduction of the sum, that depending upon the voluntary choice of the annuitant, which she might never exercise and would be interested never to exercise. They would demand sufficient to cover the risk of the larger sum for the whole life. But there is a conclusive reason for not adopting that rule in the assessment of the damages; for immediately on the receipt of the amount she would be released from the condition and could enter into a second marriage with impunity. It is clearly a case therefore for the application of the principle just adverted to, which, where there is uncertainty or want of evidence, confines the claimant to the least sum. We think therefore that the appellant would be, entitled to recover the value to her of an annuity of $500 during her natural life. She might doubtless elect not to claim on the footing of damages for a breach, but treat the contract as subsisting and recover her annuity from time to time as it fell due from her husband’s estate. But it is very clear that she could not demand both- — the arrears and damages. That would be to claim in inconsistent rights, which a party is never permitted to do. A verdict and judgment in either action would be a bar to the other. The appellant then should have been put to her election.

We think the court below erred in setting aside the contract altogether for want of a stamp. We do not mean to decide the point, raised by the counsel of the appellant, and for which they cite Carpenter v. Snelling, 97 Mass. 452, that the Act of Congress does not apply to evidence in the state courts, because the decision of that question is unnecessary in this case. Whatever may have been the proper construction of the Act of July 1st 1862 (12 U. S. Stat. at Large 475), that act was superseded by the subsequent-Act of June 30th 1864, §§ 151, 163 (13 Id. 291, 295), as amended and supplied by that of March 3d 1865 (Id. 481), and of July 13th 1866, 14 U. S. Stat. at Large 143. These acts do not declare an unstamped instrument void, but simply that it shall not be admitted to record, or received in evidence in any court. Here the contract was offered in evidence before the auditor and received without objection. No exception was filed. It was too late then to set it aside when the report came up for confirmation. It would be wrong in any case to decide on the ground that incompetent evidence had been admitted by an auditor, where no objection or exception was taken, for the party might have supplied it by other competent testimony. It would be manifestly unjust here, because the effect was to deprive the appellant of the right which she had under the existing Acts of Congress on the payment of the penalty to have the instrument stamped by the collector of the proper district at any subsequent period, and thus remedy the defect. All just and reasonable stamp laws contain such a provision — they would work intolerable injustice without it. The court below erred, therefore, in confirming the report. It should have been set aside and recommitted to the same or another auditor, with instructions to hear evidence, and report the amount of appellant’s claim according to the principles set forth in this opinion, and the pro rata dividend which she with the other creditors will be entitled to receive of the fund in the hands of the administrators.

Decree reversed at the costs of the appellee, and record remitted for further proceedings.