
    CHARLES R. TOWNSEND and THEODORE E. TOWNSEND, Plaintiffs and Respondents, v. THE MERCHANTS’ INSURANCE COMPANY OF PROVIDENCE, R. I., Defendant and Appellant.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.
    
      Decided May 31, 1873.
    I. Evidence.—Presumption.
    1. Fraud.
    
    
      a. When a tradesman is accused of fraudulently overstating the amount of goods destroyed by a fire—such over-statement being mainly in one particular article—evidence as to the quantity of that article kept on hand by other tradesmen in the same line of business in his own neighborhood, and in the best portion of a much larger business centre, doing a business four or five times larger than that of the accused tradesman, is inadmissible.
    1. It cannot be presumed, nor can it be legitimately argued from
    the fact that such other tradesmen keep on hand a vastly smaller quantity of the article, that the accused did not have he quantity he claimed, and that he fraudulently overstated the amount he did have. ' '
    2. Such evidence is inadmissible to discredit the testimony of the tradesman so accused.
    2. Offer of settlement.—Insurance ease.
    
    1. Evidence of such offers is competent to prove the sufficiency of the proofs of loss.
    2. Offers of settlement are admissible in evidence, unless they appear to be confidential overtures of pacification, or are expressly stated to be made without prejudice.
    Appeal from judgment.
    
      This action is brought on a policy of insurance issued by defendant, insuring plaintiff against loss or damage by fire upon the stock of groceries, teas, and other merchandise, store furniture and fixtures of plaintiff in building No. 19 Newark Avenue, Jersey City, running through to Montgomery Street.
    At the time of the issuing of the policy, which was on December 7th, 1867, the plaintiffs were carrying on in said building the business of a tea, sugar, and general grocery store. The building was about 84 feet in length, 16 feet in width, on Newark Avenue; 13 feet in width on Montgomery Street, and 19 feet wide in the middle.
    A fire occurred in the store on the 23d of December, 1869, and caused substantially a total destruction of the property. The plaintiffs claimed a total loss of $7,404.22, and that there was also $1,207.12 worth of stock damaged to the extent of $842.75, making total amount of stock claimed to have been on hand at the time of the fire of $8,611.34, on which the claimed loss was $8,246.97.
    The defendant resisted payment on the ground, among others, that the claim was fraudulent, in that the amount of stock claimed to have been on hand and totally destroyed was grossly exaggerated, and exceeded the amount actually on hand by at least $3,500.
    To establish the fraudulent character of the claim it was shown, among other things, that the receipts of plaintiff had for the last year and half been constantly decreasing, so that during the last six months they were only one-fourth of what they had been a year and a half previously ; that nearly one-half of the stock claimed to have been destroyed consisted, as was claimed, of eighty-five half chests of tea, containing fifty pounds each, of the value of $1 a pound, amounting to $4,250 ; that plaintiffs claimed to have had forty-five of. these eighty-five half chests on hand for about two and a half years, and also claimed that these forty-five half chests contained different varieties of black tea; it was further shown that plaintiffs had, notwithstanding this, been during those two and a half years in the habit of making constant purchases to a considerable extent of the same varieties of tea as was contained in the forty-five half chests. There was also evidence that tea deteriorates by being kept, and if kept two and a half years would deteriorate from five to ten cents a pound. It also appeared that the plaintiffs had given three different statements, under oath, as to number of half-chests they had on hand.
    The proofs of loss showed that during the seven months preceding the fire plaintiffs’ purchases had been $14,711.71, and their sales $18,147,49.
    In this state of the evidence defendant’s counsel called as a witness William A. Parshall, who, being duly sworn, testified as follows:
    I am salesman for H. K. Thurber & Co. Their business was wholesale grocers and tea dealers. Have in behalf of that firm made sales of tea to various retail grocers in the city, and visited the retail stores. Know the line of teas which the retail grocers in this city carry.
    Q. What is the line of teas which retail grocers carry ?
    Objected to as incompetent and immaterial.
    Objection sustained. Exception.
    I have also sold to retail grocers in Jersey City, and been in their stores also, and know the line of teas which those retail grocers carry according to their stock.
    Defendant’s counsel—I now offer to prove by this witness the line of teas which retail grocers carry in Jersey City according to their stock.
    Objected to as'incompetent. ’
    Objection sustained.
    Q. What is the line of tea that groceries between Fourteenth Street, in this city, on the south of Forty-fourth Street, Third Avenue on the east, and Eighth Avenue on the west, occupying stores 25 feet "by 100, and doing a business of $100,000 a year, carry %
    
    Objected to as immaterial and incompetent.
    Objection sustained. Exception.
    • Q. What line of teas do groceries in the city of Hew York, occupying stores of 25 feet by 75, and doing a business of $100,000 a year, carry ?
    Objected to as incompetent and immaterial.
    Objection sustained. Exception.
    Q. What line of teas do grocery stores in Jersey City doing a business of $120,000 a year carry ?
    Objected to. Objection sustained.
    Exception.
    Q. What line of teas do grocery stores in Jersey City doing a business of $75,000 carry.
    Objected to as immaterial and incompetent.
    Objection sustained. Exception.
    Q. What line of teas do grocery stores in Jersey City doing a business of $25,000 a year carry %
    
    Objected to. Objection sustained.
    Exception.
    Q. By line of teas I mean how many chests of tea do they carry at one time and keep on hand at one time %
    
    In the course of the direct examination of one of the plaintiffs, the following questions were put, objections raised, responses made, exceptions taken, and evidence given:
    Q. Did you have a conversation with Mr. Heins during these negotiations about settlement, and if so, what ?
    Objected to.
    Q. State the first conversation, if you had one, when he spoke to you on the subject of settlement %
    
    Objected to as incompetent to prove offers of settlement.
    Objection sustained. Exception taken.
    Q. Did you have conversation with Mr. Heins ?
    
      A. Yes, sir.
    Q. About your stock % A. Yes, sir.
    Q. And about a settlement ? A. Yes, sir.
    Q. And did you answer any questions that he chose to put to you on that subject % A. Yes, sir.
    Plaintiffs’ counsel—I desire to prove, first, that with all the knowledge that the defendants could obtain, and all the knowledge they did obtain, they tried to get us to settle for a nominal reduction ; second, that with the same knowledge they tried to coerce us with an offer of $500 or moonshine.
    Defendant’s counsel—We object to that distinctly.
    Objection overruled. Exception taken.
    Q. State what conversation you had with Mr. Heins %
    
    The Court—I accept the testimony as bearing upon the question whether the plaintiffs did furnish the company sufficient memorandums, and data, and accounts " of loss to lay the foundation for their action looking towards an adjustment of the claim.
    Q. State the first interview you had with Mr. Heins in relation to any settlement.
    A. After the proofs of loss were rendered.
    Q. How long after, do you remember ?
    A. Some three or four days, I suppose.
    Q. Did he have your books of account at that time ?
    ' A. Hot at that time.
    By the Court:
    Q. Was this before the books of account had been given to him \ A. Yes, sir.
    Q. That this conversation was % A. Yes, sir.
    Q. (By defendant’s counsel.) And before your examination before the notary %
    
    A. Yes, sir, the first conversation.
    By the Court :
    Q. State whether at that time he made any objection to your claim, and if so, what %
    
    A. I do not know that he made any objection.
    
      Q. What did he say %
    
    Objected to. Objection overruled.
    Exception taken.
    Q. State the conversation %
    
    A. I saw Mr. Heins when he came over to my store with the proofs of loss, and examined the goods that were left. He asked me if I wanted to settle; I told him “yes.” He told me to come over to his office, and next day I went over and saw him. He asked me if I told, him “yes.” Well, he says, “I will give you $500 to settle.” Says I, “ What! ” Says he, “ I will give you $500 to settle, won’t you take it? Says I, “Of course I won’t take it.” Says he, “If you don’t take it I will make you see moonshine before I am done with you.” I just turned round and left him.
    Defendant’s counsel objected to last answer of the witness, and moved to strike out.
    Motion denied.' Exception taken.
    Q. Had you had any conversation with him prior to that %
    
    
      A. After that I saw Mr. Alliger and Mr. Heins together. That is about the time the money was due. They claimed some sixty days, I think it is, after the proofs of loss were rendered to pay the money.
    Defendant’s counsel objected to the witness stating the conversation with Mr. Heins and Mr. Alliger.
    Objection overruled. Exception taken.
    Q. Proceed.
    A. I saw Mr. Alliger and Mr. Heins. I had employed a man to make out my proofs of loss for me, and when I went to go to collect the money, I says to this friend I took with me—
    Objected to.
    Witness—Mr. Heins and Mr. Alliger agreed to leave it to Mr. Heins, and myself, and Mr. Tompson to settle. Then Mr. Heins, I went there several days before I could have an interview with him, and I sat down there and explained everything to him about my books and my papers I had rendered, and everything else, and it appeared all satisfactory. Then he asked me—
    Objected to.
    Q. State what was said.
    
      A. He asked me then if I would take any less. I told him no, I would not take any less. I asked him why he wanted me to take any less. “ Well,” says he, “you had better take a little less and go into business again.” I told him “no.” Says he, “I will see the company and let you know; come over to-morrow.” I went over there the next day, and he asked me if I was willing to submit to a private examination under oath. I told him, “Mr. Heins, I have told yon everything in regard to my papers and proofs of loss ; I am willing to submit to any examination.” So then he told me, gave me notice to go to Mr.—-
    Q. You were in good health at that time \
    
    Objected to as immaterial. Objection sustained.
    Defendant’s counsel moved to strike out that portion of this conversation in which he testified he was asked if he would not take a little less.
    Motion denied. Exception taken.
    The case went to the jury, who found a verdict for plaintiff for the full amount, from the judgment entered, on which verdict the defendant appealed.
    
      Howard Ellis and Samuel-Jones, for appellant.
    
      Osborn E. Bright, for respondents.
   By the Court.—Freedman, J.

This is an action upon a policy of insurance, and the appeal is from the judgment only. The case appears to have been ably, fully, and fairly tried, and to have been submitted to the jury under an elaborate charge to which no valid exception will lie. There seem to be but two exceptions which deserve to be specially noticed.

The first relates to the exclusion of certain testimony offered by defendant with a view of showing the line of teas which other retail grocers than the plaintiffs carry in Jersey City and in certain parts of the city of Yew York, according to their stock and the size of their stores. The object was to thereby discredit the testimony of one of the plaintiffs as to the amount of tea claimed to have been on hand at the time of the fire. The proposed inquiry, therefore, was not as to the existence of a general, uniform, and unvarying custom, with which to charge the plaintiffs, assuming that such could be done, but as to the business habits of a limited number of third parties engaged in a somewhat similar business. Such evidence is incompetent. Phoenix Fire Ins. Co. v. Philip (13 Wend. 81), is an express authority upon this point.

The other exception relates to the reception in evidence of an offer of compromise by defendant. Yo question was raised as to any want of authority in the agent who made it, but defendant objected solely upon the ground that it is incompetent to prove offers of settlement. The testimony was admitted as bearing upon the question of the sufficiency of the proofs of loss, and such sufficiency was a controverted question in the case. The policy provided that until such proofs be furnished, the loss should not become due and payable.- Upon this point the evidence was admissible. Yor did it appear that the offer was made without prejudice, or upon the faith of the success of a pending negotiation. It is only confidential overtures of pacification, and offers or propositions expressly stated to be made without prejudice, that are excluded on grounds of public policy (1, Greenl. on Ev. § 192). Yo error was therefore committed in admitting said evidence for the purpose referred to, and no harm can have accrued from its reception to the defendant for the reason that upon the other branch of the case the jury were expressly instructed to render a verdict for the defendant absolutely, in case they found that plaintiffs had been guilty of any fraud. Upon this latter point the charge was emphatic, and if it was not explicit enough to suit the views of defendants’ counsel, the court might and should have been requested to specifically cover the point alleged to have been left in doubt. But no such request was made as regarded the said offer.

The judgment should be affirmed with costs.

Barbour, Ch. J., and Sedgwick, J., concurred.  