Henry, P. J., 52nd judicial district, specially presiding,
This case is now before the court for the consideration of fifty-nine exceptions filed to the findings of fact, conclusions of law and the decree nisi entered by the chancellor.
The plaintiff submits that these exceptions involve the following four questions: (1) Can the court reverse the findings of a chancellor? (2) Wasi there a confidential relationship between the parties? (3) What was the bearing upon this relationship of the admissibility of the letter of July 18, 1910? (4) Did Welsh, in connection with his business of buying and selling bonds for his own account, have any special learning or means of knowledge not available to Harrison?
In support of the first question, authorities are submitted to the effect that the court in banc and the appellate courts will reverse the findings of a chancellor where they are not supported by evidence or where they are clearly ■erroneous, citing, among others, Deaver v. Slane, 271 Pa. 317, and Crick v. Paull, 287 Pa. 431, 435. We are fully in accord with the law as laid down in these decisions and might add that not only the appellate courts and the court in banc, but the chancellor himself, should reverse findings where they are not supported by the evidence or where they are erroneously made. It may be added, the judges who sat as a court in banc at the argument upon these exceptions are in accord with the conclusions now reached.
Upon a careful review of the evidence with the argument of the plaintiff in mind, we are convinced that the findings are not only supported by evidence, but by a preponderance of the evidence, and to a great extent by the testimony of the plaintiff himself, and that the findings were not erroneously made. If we read the plaintiff’s argument aright, then some stress is laid upon the fact that the plaintiff testified there was a confidential relationship [544]*544existing between himself and the defendant, that he relied upon the judgment and advice of the defendant, and that the defendant had knowledge of securities not possessed by or available to the plaintiff. It is true the plaintiff did make some such statements, but they were conclusions of fact which were for the court, and those conclusions were not sustained by the evidence in the case or by the testimony of the plaintiff, in that he testified, and with some degree of pride, that, although seeking advice, he exercised independent judgment in making investments and that he invested in securities against the express advice and reasoning of the defendant.
The second question involved in this argument is whether a confidential relationship existed between the plaintiff and defendant. There admittedly was no such relation of trust and confidence as arises out of the situation of lawyer and client, physician and patient, priest and parishioner, trustee and cestui que trust, among others; but the contention is that such relation arose out of the transactions and business relations between the plaintiff and defendant. Exception is taken to'the court’s findings and reasons therefor as being erroneous, because of the consideration of the length or period over which the dealings between the parties extended, the magnitude of these dealings and the comparatively infrequent advice or suggestion of any trust or confidence upon the part of the plaintiff. It is true that in reaching the conclusions on the facts the court did consider the whole period of time, covering about thirty years, and did not restrict the consideration of this question to a period of ten years or more over which certain letters passed between the parties or written requests were made by the plaintiff upon the defendant relating to investments and to advice given by the defendant to the plaintiff with reference to investments, much of which had no relation to the business of the defendant or the securities he sold or offered to sell to the plaintiff. The chancellor considered all the evidence bearing upon this question up to the time of the severance of business relations. Nor do we think the chancellor misconceived what was essential to establish the relation of trust and confidence when the seventh finding of fact was based upon a conclusion that no such relation of trust and confidence had been established as to indicate that the mind of Harrison was dominated by that of Welsh in the making of investments or that Harrison was subservient to or dependent upon Welsh.
In Frey’s Estate, 223 Pa. 61, 64, it was held that “if the vendor was thoroughly acquainted with every fact which it was necessary for him to know; if he was twenty-one years of age and of sound mind; if there were no circumstances which gave the vendee an improper control over him amounting to mental imprisonment; if the vendor behaved honestly and the vendee was able to go and look with a free mind, with his eyes open, then the one had a right to sell and the other to buy on any terms they saw proper to agree upon.”
In Leedom et al. v. Palmer et ux., 274 Pa. 22, it was held that the confidential relation “appears when the circumstances make it certain that the parties do not deal on equal terms, but, on the one side, from overmastering influence, or, on the other, weakness, dependence or trust justifiably reposed; in both an unfair advantage is possible;” and, again, on page 26 of the same opinion, “where undue influence and incompetency do not appear and the relation between the parties is not one ordinarily known as confidential in law, the evidence to sustain a confidential relation must be certain; it cannot arise from suspicion or from infrequent or unrelated acts.”
We adhere to the conclusion reached in the seventh finding of fact, which is, in effect, that where there is no such situation recognized as creates a confidential relation in law, there must be some evidence indicating that there was [545]*545some domination by one over the mind of the other or some subservience or dependence of the mind of one on that of the other.
The third question is whether the letter of July 18, 1910, was properly rejected. The conclusion of the chancellor was that letter books or copies of letters are inadmissible in evidence as prima facie evidence of their being received by the sendee, without some evidence indicating that they were deposited in the usual channels for transmission by mail. The authorities cited in the former opinion of the court amply sustain the position and conclusion of the chancellor. The plaintiff places some reliance upon Huckestein v. Kelly & Jones Co., 152 Pa. 631, in which there was evidence to prove that the letter was mailed or sent, and this decision must be taken in connection with that in the same case of Huckestein v. Kelly & Jones Co., 139 Pa. 201, in which one of the grounds of reversal was the admission of copies of letters without proof that the originals were received by the parties to whom they were addressed, or that they had been mailed to them; the court held that “they were not competent evidence for any purpose and their admission was error.”
Assuming, however, that letter books, or the custom of an office with reference to the sending out of mail, can be offered as prima facie evidence of such mail being received by the party to whom [it is] addressed, the evidence of the plaintiff fails, in that it is not established that there was an invariable custom with reference to the mail from the plaintiff’s office.
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Henry, P. J., 52nd judicial district, specially presiding,
This case is now before the court for the consideration of fifty-nine exceptions filed to the findings of fact, conclusions of law and the decree nisi entered by the chancellor.
The plaintiff submits that these exceptions involve the following four questions: (1) Can the court reverse the findings of a chancellor? (2) Wasi there a confidential relationship between the parties? (3) What was the bearing upon this relationship of the admissibility of the letter of July 18, 1910? (4) Did Welsh, in connection with his business of buying and selling bonds for his own account, have any special learning or means of knowledge not available to Harrison?
In support of the first question, authorities are submitted to the effect that the court in banc and the appellate courts will reverse the findings of a chancellor where they are not supported by evidence or where they are clearly ■erroneous, citing, among others, Deaver v. Slane, 271 Pa. 317, and Crick v. Paull, 287 Pa. 431, 435. We are fully in accord with the law as laid down in these decisions and might add that not only the appellate courts and the court in banc, but the chancellor himself, should reverse findings where they are not supported by the evidence or where they are erroneously made. It may be added, the judges who sat as a court in banc at the argument upon these exceptions are in accord with the conclusions now reached.
Upon a careful review of the evidence with the argument of the plaintiff in mind, we are convinced that the findings are not only supported by evidence, but by a preponderance of the evidence, and to a great extent by the testimony of the plaintiff himself, and that the findings were not erroneously made. If we read the plaintiff’s argument aright, then some stress is laid upon the fact that the plaintiff testified there was a confidential relationship [544]*544existing between himself and the defendant, that he relied upon the judgment and advice of the defendant, and that the defendant had knowledge of securities not possessed by or available to the plaintiff. It is true the plaintiff did make some such statements, but they were conclusions of fact which were for the court, and those conclusions were not sustained by the evidence in the case or by the testimony of the plaintiff, in that he testified, and with some degree of pride, that, although seeking advice, he exercised independent judgment in making investments and that he invested in securities against the express advice and reasoning of the defendant.
The second question involved in this argument is whether a confidential relationship existed between the plaintiff and defendant. There admittedly was no such relation of trust and confidence as arises out of the situation of lawyer and client, physician and patient, priest and parishioner, trustee and cestui que trust, among others; but the contention is that such relation arose out of the transactions and business relations between the plaintiff and defendant. Exception is taken to'the court’s findings and reasons therefor as being erroneous, because of the consideration of the length or period over which the dealings between the parties extended, the magnitude of these dealings and the comparatively infrequent advice or suggestion of any trust or confidence upon the part of the plaintiff. It is true that in reaching the conclusions on the facts the court did consider the whole period of time, covering about thirty years, and did not restrict the consideration of this question to a period of ten years or more over which certain letters passed between the parties or written requests were made by the plaintiff upon the defendant relating to investments and to advice given by the defendant to the plaintiff with reference to investments, much of which had no relation to the business of the defendant or the securities he sold or offered to sell to the plaintiff. The chancellor considered all the evidence bearing upon this question up to the time of the severance of business relations. Nor do we think the chancellor misconceived what was essential to establish the relation of trust and confidence when the seventh finding of fact was based upon a conclusion that no such relation of trust and confidence had been established as to indicate that the mind of Harrison was dominated by that of Welsh in the making of investments or that Harrison was subservient to or dependent upon Welsh.
In Frey’s Estate, 223 Pa. 61, 64, it was held that “if the vendor was thoroughly acquainted with every fact which it was necessary for him to know; if he was twenty-one years of age and of sound mind; if there were no circumstances which gave the vendee an improper control over him amounting to mental imprisonment; if the vendor behaved honestly and the vendee was able to go and look with a free mind, with his eyes open, then the one had a right to sell and the other to buy on any terms they saw proper to agree upon.”
In Leedom et al. v. Palmer et ux., 274 Pa. 22, it was held that the confidential relation “appears when the circumstances make it certain that the parties do not deal on equal terms, but, on the one side, from overmastering influence, or, on the other, weakness, dependence or trust justifiably reposed; in both an unfair advantage is possible;” and, again, on page 26 of the same opinion, “where undue influence and incompetency do not appear and the relation between the parties is not one ordinarily known as confidential in law, the evidence to sustain a confidential relation must be certain; it cannot arise from suspicion or from infrequent or unrelated acts.”
We adhere to the conclusion reached in the seventh finding of fact, which is, in effect, that where there is no such situation recognized as creates a confidential relation in law, there must be some evidence indicating that there was [545]*545some domination by one over the mind of the other or some subservience or dependence of the mind of one on that of the other.
The third question is whether the letter of July 18, 1910, was properly rejected. The conclusion of the chancellor was that letter books or copies of letters are inadmissible in evidence as prima facie evidence of their being received by the sendee, without some evidence indicating that they were deposited in the usual channels for transmission by mail. The authorities cited in the former opinion of the court amply sustain the position and conclusion of the chancellor. The plaintiff places some reliance upon Huckestein v. Kelly & Jones Co., 152 Pa. 631, in which there was evidence to prove that the letter was mailed or sent, and this decision must be taken in connection with that in the same case of Huckestein v. Kelly & Jones Co., 139 Pa. 201, in which one of the grounds of reversal was the admission of copies of letters without proof that the originals were received by the parties to whom they were addressed, or that they had been mailed to them; the court held that “they were not competent evidence for any purpose and their admission was error.”
Assuming, however, that letter books, or the custom of an office with reference to the sending out of mail, can be offered as prima facie evidence of such mail being received by the party to whom [it is] addressed, the evidence of the plaintiff fails, in that it is not established that there was an invariable custom with reference to the mail from the plaintiff’s office. The evidence in this respect was that some mail, not all, was deposited on a table where some of it, not all, was taken by the mail carriers, and what was not so taken was deposited in the mail-boxes by either the plaintiff’s secretary, Frey, or by the typewriter, Huddat, who is now dead. Some letters addressed to the defendant were not sent through the mail, but were delivered personally either by Frey, the secretary, or by Huddat, the typewriter, who was not living at the time of the trial. There was no evidence showing, or tending to show, how this letter of July 18, 1910, was sent, whether by messenger or through the mails, or that it was ever received by the defendant. On the other hand, the defendant testified that he never received it. We think the letter was inadmissible and properly rejected.
The fourth question involved in the argument is whether Welsh, in connection with his business of buying and selling bonds for his own account, had any special learning or means of knowledge not available to Harrison. The evidence disclosed that the defendant, Welsh, made a special study of, the securities which he offered for sale and suggested to the plaintiff such special study and the knowledge derived therefrom. He testified as to his examination of the records of mortgages as bearing upon the conditions attached to securities he sold and as bearing upon their security or value; but there was nothing in the case to indicate that the means of knowledge or the sources of information from which the defendant acquired this knowledge were- not as open to Harrison as to Welsh; and this being so, the one with such special knowledge as affecting values was not bound to disclose it to the other, who had neglected to avail himself of the. means of information which were open to him.
All of the questions involved in the argument upon these exceptions must be determined adversely to the plaintiff and the exceptions must be overruled and a final decree entered.
Final decree.
And now, to wit, April 12, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:
[546]*5461. All the exceptions of the plaintiff taken to the findings of fact and conclusions of law and to the decree nisi entered by the chancellor, being numbered from 1 to 59, both inclusive, are overruled and dismissed.
2. The bill of the plaintiff is hereby dismissed.
3. The costs of this proceeding are directed to be paid by the plaintiff.
4. The prothonotary is directed to notify the parties, or their counsel of record, of the entry of this final decree.