Opinion by
Rice, P. J.,
The plaintiff alleged in her statement of claim that she loaned the defendant $1,000, payable on demand. By amendment a claim for money had and received was added. The defendant pleaded the general issue.
. On the trial the plaintiff put in evidence a check for $1,000 drawn by J. N. M. Shimer to the plaintiff’s order, indorsed by her to the order of the defendant, and indorsed by C. R. H. Cunningham, treasurer of the •company, which check, thus indorsed, was deposited in bank to the credit of the company and was paid. This alone did not establish the plaintiff’s right to recover. But she testified to the effect' that she borrowed $1,000 from J. N. M. Shimer, her father, giving him her bond therefor, and that thereupon he gave her this - check which, after indorsing it, she handed to C. R. H. Cunningham, the treasurer of the company, who was her husband, and that she owed the company nothing. This, in brief, was the plaintiff’s evidence as it stood when the case was submitted to the jury. On the other hand, the defendant alleged and gave evidence tending to show that it received the money, not as a loan, but in part payment of shares of capital stock of the company for which C. R. H. Cunningham subscribed, and that a few months later when the balance of the subscription was paid, a certificate for these shares was issued to him upon which he drew dividends for several years.
It is thus seen that the pivotal question in the case was, whether the company received the money as the plaintiff’s. This question was submitted to the jury with the instruction that if they found the company so received it, there was an implied promise to repay it and the plaintiff was entitled to recover, but if they found that the company received it as either belonging to or under the control of the husband — if the company received it as his — then there was no implied promise to repay it to her, and the verdict should be for the [580]*580defendant. The plaintiff, certainly, has no just ground for complaint that the question was not determined by the court as a matter of law but was submitted to the jury.
■ Nor was there any error in the manner of its submission. Amongst the negative facts, of which there was evidence, and which were referred to in the charge of the court as tending to give probability to the defendant’s contention are these: that the plaintiff neither received nor asked for any obligation for or other acknowledgment of the alleged debt; that she neither received nor demanded interest, although she knew from the receipt of very large dividends on her own stock through several years that the company was well able to pay; that balance sheets showing the indebtedness of the company, and to whom owing, but omitting her name as a creditor, were from time to time presented and read at meetings of the stockholders at which she was present, and no question was raised by her as to the omission; that no demand was made by her on the company or notice given by her of the claim until suit brought, which was about five years after the date of the alleged loan. Neither in his general charge nor in his answers to the defendant’s points did the trial judge treat any one of these facts, or all of them together, as conclusive against the plaintiff’s claim or use language which reasonably could be so interpreted by the jury. They were pertinent circumstances, especially in view of the meager and uncertain evidence to support the inference that the transaction was a loan by the plaintiff to the company. Unexplained, the plaintiff’s evidence to which we have alluded would, perhaps, warrant that inference, but when it appeared that her husband was a subscriber to the stock of the company and that the proceeds of the check were accepted and applied by the company in part payment of his subscription, it became just as reasonable to infer that the plaintiff indorsed the check to the company and put it in her husband’s hands for that very purpose. It has [581]*581been decided repeatedly that it is often permissible, and sometimes desirable, for the judge in his charge to express an opinion upon the facts, provided he does this fairly and does not give a binding direction. Upon the same principle, it is permissible and sometimes advisable for the judge to marshal and call to the jury’s attention and consideration the pertinent circumstances, whether of an affirmative or a negative character, which, though not conclusive, tend to lend probability to the one side and the other of the main issue, and to point out to the jury the true bearing and significance of such circumstances. If he does this fairly and without infringing upon the jury’s province to decide the main issue, as well as all subordinate questions of fact (as was done here), it is not ground for reversal that the judge’s opinion as to the weight of the evidence is thereby conveyed to the jury. Viewing the assignments of error to the charge and to the answers to points in the light of these general principles and the evidence, we conclude that none of them is sustained.
The fourth assignment of error is to the admission of the testimony of Mr. Bloodsworth, an officer of the company who had charge of its books of account, that the check for $1,000 was entered by him on the cash book of the company on July 29, 1905.
The fact that the company got the check and its proceeds was essential to the plaintiff’s case, and the entire effect of the specific ruling embraced in this assignment, was to permit the officer who kept the books to testify as to the date. We see no valid objection to permitting him to testify to this fact, even though he refreshed his recollection by referring to entries he had made in the defendant’s books. It is true, counsel for plaintiff did make a general objection that the entries in the defendant’s books could not affect his client, and this objection would have been well taken, if it were undisputed that the check was delivered to, and accepted by, the company as a loan, through an officer lawfully author[582]*582ized to borrow money on its behalf. Of course, in such case, the plaintiff would not be bound to see to the application of the money, and therefore could not be affected by the acts of the company in that regard. But whether the check was delivered to and accepted by the company as a loan was the very question at issue and in that view we cannot say that the evidence referred to in the fourth, fifth and sixth assignments of error was incompetent. The idea was thus expressed by the court in overruling the objection: “It does present this view to me as a contemporaneous act in connection with this check. You show a check made payable to the order of the company. She says sh¿- didn’t owe the money. She puts that check in the hands of her husband, who becomés her messenger to the company. Now the act of the company in receiving that check from her messenger it seems to me to be an evidential fact for the jury to pass on — to consider. It seems to me we will have to overrule your objection unless you have something further to say.”
It is to be observed further with regard to the fifth and sixth assignments of error that the admissibility of the defendant’s books was not brought directly in question. On the contrary, immediately before the rulings therein referred to, when the witness was testifying in elucidation and explanation of certain things that appeared in the books, the learned counsel said: “I have no objection to these books, just what they show; but a calculation is not’ evidence.”- Again, when the- defendant’s counsel formally offered the books in evidence no objection was made.
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Opinion by
Rice, P. J.,
The plaintiff alleged in her statement of claim that she loaned the defendant $1,000, payable on demand. By amendment a claim for money had and received was added. The defendant pleaded the general issue.
. On the trial the plaintiff put in evidence a check for $1,000 drawn by J. N. M. Shimer to the plaintiff’s order, indorsed by her to the order of the defendant, and indorsed by C. R. H. Cunningham, treasurer of the •company, which check, thus indorsed, was deposited in bank to the credit of the company and was paid. This alone did not establish the plaintiff’s right to recover. But she testified to the effect' that she borrowed $1,000 from J. N. M. Shimer, her father, giving him her bond therefor, and that thereupon he gave her this - check which, after indorsing it, she handed to C. R. H. Cunningham, the treasurer of the company, who was her husband, and that she owed the company nothing. This, in brief, was the plaintiff’s evidence as it stood when the case was submitted to the jury. On the other hand, the defendant alleged and gave evidence tending to show that it received the money, not as a loan, but in part payment of shares of capital stock of the company for which C. R. H. Cunningham subscribed, and that a few months later when the balance of the subscription was paid, a certificate for these shares was issued to him upon which he drew dividends for several years.
It is thus seen that the pivotal question in the case was, whether the company received the money as the plaintiff’s. This question was submitted to the jury with the instruction that if they found the company so received it, there was an implied promise to repay it and the plaintiff was entitled to recover, but if they found that the company received it as either belonging to or under the control of the husband — if the company received it as his — then there was no implied promise to repay it to her, and the verdict should be for the [580]*580defendant. The plaintiff, certainly, has no just ground for complaint that the question was not determined by the court as a matter of law but was submitted to the jury.
■ Nor was there any error in the manner of its submission. Amongst the negative facts, of which there was evidence, and which were referred to in the charge of the court as tending to give probability to the defendant’s contention are these: that the plaintiff neither received nor asked for any obligation for or other acknowledgment of the alleged debt; that she neither received nor demanded interest, although she knew from the receipt of very large dividends on her own stock through several years that the company was well able to pay; that balance sheets showing the indebtedness of the company, and to whom owing, but omitting her name as a creditor, were from time to time presented and read at meetings of the stockholders at which she was present, and no question was raised by her as to the omission; that no demand was made by her on the company or notice given by her of the claim until suit brought, which was about five years after the date of the alleged loan. Neither in his general charge nor in his answers to the defendant’s points did the trial judge treat any one of these facts, or all of them together, as conclusive against the plaintiff’s claim or use language which reasonably could be so interpreted by the jury. They were pertinent circumstances, especially in view of the meager and uncertain evidence to support the inference that the transaction was a loan by the plaintiff to the company. Unexplained, the plaintiff’s evidence to which we have alluded would, perhaps, warrant that inference, but when it appeared that her husband was a subscriber to the stock of the company and that the proceeds of the check were accepted and applied by the company in part payment of his subscription, it became just as reasonable to infer that the plaintiff indorsed the check to the company and put it in her husband’s hands for that very purpose. It has [581]*581been decided repeatedly that it is often permissible, and sometimes desirable, for the judge in his charge to express an opinion upon the facts, provided he does this fairly and does not give a binding direction. Upon the same principle, it is permissible and sometimes advisable for the judge to marshal and call to the jury’s attention and consideration the pertinent circumstances, whether of an affirmative or a negative character, which, though not conclusive, tend to lend probability to the one side and the other of the main issue, and to point out to the jury the true bearing and significance of such circumstances. If he does this fairly and without infringing upon the jury’s province to decide the main issue, as well as all subordinate questions of fact (as was done here), it is not ground for reversal that the judge’s opinion as to the weight of the evidence is thereby conveyed to the jury. Viewing the assignments of error to the charge and to the answers to points in the light of these general principles and the evidence, we conclude that none of them is sustained.
The fourth assignment of error is to the admission of the testimony of Mr. Bloodsworth, an officer of the company who had charge of its books of account, that the check for $1,000 was entered by him on the cash book of the company on July 29, 1905.
The fact that the company got the check and its proceeds was essential to the plaintiff’s case, and the entire effect of the specific ruling embraced in this assignment, was to permit the officer who kept the books to testify as to the date. We see no valid objection to permitting him to testify to this fact, even though he refreshed his recollection by referring to entries he had made in the defendant’s books. It is true, counsel for plaintiff did make a general objection that the entries in the defendant’s books could not affect his client, and this objection would have been well taken, if it were undisputed that the check was delivered to, and accepted by, the company as a loan, through an officer lawfully author[582]*582ized to borrow money on its behalf. Of course, in such case, the plaintiff would not be bound to see to the application of the money, and therefore could not be affected by the acts of the company in that regard. But whether the check was delivered to and accepted by the company as a loan was the very question at issue and in that view we cannot say that the evidence referred to in the fourth, fifth and sixth assignments of error was incompetent. The idea was thus expressed by the court in overruling the objection: “It does present this view to me as a contemporaneous act in connection with this check. You show a check made payable to the order of the company. She says sh¿- didn’t owe the money. She puts that check in the hands of her husband, who becomés her messenger to the company. Now the act of the company in receiving that check from her messenger it seems to me to be an evidential fact for the jury to pass on — to consider. It seems to me we will have to overrule your objection unless you have something further to say.”
It is to be observed further with regard to the fifth and sixth assignments of error that the admissibility of the defendant’s books was not brought directly in question. On the contrary, immediately before the rulings therein referred to, when the witness was testifying in elucidation and explanation of certain things that appeared in the books, the learned counsel said: “I have no objection to these books, just what they show; but a calculation is not’ evidence.”- Again, when the- defendant’s counsel formally offered the books in evidence no objection was made. In view of what occurred on the trial the plaintiff is not in position to question the admission of the books in evidence or the admissibility of the testimony of the officer who made the entries singling out and explaining for the convenience of the court and jury those that were pertinent. These assignments are not sustained.
In addition to giving the testimony to which reference [583]*583has been made, the plaintiff was permitted, under objection and exception, to testify to conversations between her and her husband previous to, in connection with and after her giving to him the check. The substance of her testimony on this subject was, that her husband told her the company was short of money and asked her for the loan of $1,000 to the company; that thereupon she got the check from her father, as above stated, and handed it to her husband “acting as treasurer of the Crucible Steel Casting Company”; that her husband said: “as soon as they got on their feet I would get the money back”; and that later in the year she spoke to him about it, whereupon, “He said they were building, they were getting lots of orders, I would soon have my money back, they would soon pay it back, they were getting on their feet.” After it had been shown by the defendant that the check, which she says was given to her husband to be turned over as a loan by her to the company, was used by her husband and accepted by the company for his own benefit,, that is, in part payment for shares of capital stock for which he had subscribed, the court, on the defendant’s' motion, struck out the plaintiff’s testimony as to these conversations. This, ruling is the subject of the seventh assignment of error. It raises a question of much importance in the case and of considerable general • importance.
With some -exceptions not necessary to be noticed here, the common-law rule as to the incompetency of husband and wife to testify against each other has been preserved in the legislation of this commonwealth and is thus expressed in sec. 5 of the Act of May 23, 1887, P. L. 158.
“(b) Nor shall either husband or wife be competent or permitted to testify to confidential communications made by one to the other, unless this privilege be waived upon the trial.
“ (c) Nor shall husband and wife be competent or permitted to testify against each other? except,” etc,
[584]*584However it may be elsewhere, in Pennsylvania the rule is not confined strictly to cases in which the marital relation exists between the person offered as a witness and a party to the record. It is true in Musser v. Gardner, 66 Pa. 242, which was replevin by a feme sole trader for goods which the defendant. had purchased from her husband, it was held that the plaintiff was competent to testify in her own behalf under the act of April 15, 1869, P. L. 30. Chief Justice Thompson, who delivered the opinion of the court, said:
“She was on record as a feme sole, so far as the right of action was concerned, and her testimony went only to sustain title to the property in question. The husband was no party, and that he might possibly be called on at some time or other to answer on an implied warranty of title to the property he had sold and now claimed by the wife, was too remote and contingent to bring her within the prohibition of the statute from testifying against her husband. In fact, a decision in this issue in her favor would by no means be necessarily conclusive in a contest between her husband and the defendant on the implied warranty.”
But in the later case of Pleasanton v. Nutt, 115 Pa. 266, which also was an action of replevin by a married woman, the plaintiff was held incompetent under these circumstances: The defendant pleaded specially that she, the defendant, acquired title by purchase from the plaintiff’s husband, and that he was at the time of the purchase owner of the property. The plaintiff was permitted to testify, under objection and exception, that .the title was in her under a gift from her husband before the alleged sale to the defendant. It was held upon writ of error that the objection should have been sustained. Justice Sterrett said:
“She was incompetent to thus prove title in herself, because in so doing she was testifying against the interest of her husband. While he was not a party to the .record, he was nevertheless interested in the result, in [585]*585that his wife’s testimony, to the effect that the furniture was not his but hers, at the time he sold it to defendant below, tended to make him liable for breach of his implied warranty of title in the sale of the furniture as his own.”
In that case, it is true, the question arose on the pleadings, but there can be no doubt that the controlling principle is the same where it arises on the real issue as presented by the testimony, for Justice Sterrett said: “If she had testified without objection, and in the course of her examination her incompetency had been disclosed, defendant would have had a'right to demand that her testimony be stricken out.” We refer also as to the question of practice to Saylor v. Walter, 30 Pa. Superior Ct. 370. Here the objection was made in limine, and was renewed when it appeared that the plaintiff’s testimony was in antagonism to her husband’s interest. Therefore it cannot be insisted that the defendant waived it. Allusion is made in the argument of appellee’s counsel to the fact that the affidavit of defense was made on behalf of the company by the plaintiff’s husband and that this clearly shows that he was on the side of the defendant in the controversy, but as the affidavit was not in evidence, or strictly part of the pleadings, we leave this out of consideration. It is proper, however, to notice, that the plaintiff did not call her husband as a witness and when defendant’s counsel proposed to examine him, her objection to his competency was sustained. There is, therefore, no ground for implication from his silence, that her testimony was not in antagonism to him, as it plainly appeared to be when the defense was disclosed on the trial. It appeared then, if it had not before, that her testimony tended to show that her husband was guilty of fraud, not only upon her but upon the company, in misappropriating the check to his own benefit, and we cannot agree with counsel that if that were the fact, his liability over to the company would be remote and speculative. [586]*586When it is considered further, that the fact of his fraudulent misappropriation of the check was to be proved by conversations between him and his wife, the conclusion is irresistible that in giving such testimony she was testifying against her husband within the meaning of the words of the statute, as .well as within the principle of public policy, upon which the rule is founded. It follows that the court did not commit error in striking out the testimony or in stating the reason for so doing in plain and vigorous language, though in the presence of the jury.
The remaining assignments of error are covered by what has already been said and need not be separately discussed.
All the assignments of error are overruled and the judgment is affirmed.