Youndts' Appeals. definition of a wholesale dealer, and has no such definition of a retail dealer, but with this contention we are unable to agree. The act specifically describes what constitutes a wholesale dealer, and goes on to say that all dealers who do not come within that definition are to be regarded as retailers, and a definition by such exclusion is certainly as comprehensive and definite as one by mere description. As we view the purpose of the distinction between the wholesaler and the retailer, if any such distinction is drawn in the cases cited, it is to meet the provisions of the Act of 1899, which imposes a different rate of taxation upon wholesalers and retailers, and it was, therefore, essential that it should be determined in which class the dealer came in order that the rate of taxation might be definitely fixed. And now, March 23, 1923, the appeal in each case is dismissed, at the costs of the appellants. From Wellington M. Bertolet, Reading, Pa Saridakis v. Ambridge Savings and Trust Company. Contract-Breach-Duty of party to mitigate damages-Renewal of bank certificate of deposit. 1. A party injured by a breach of contract must make reasonable exertions to render the injury as light as possible, and he cannot recover for any loss which he might have avoided with ordinary care and reasonable expense; and this is especially so where one of the contracting parties has acquired notice of the breach of contract and makes no reasonable effort to mitigate the damages. 2. Where a Greek owning a certificate of deposit issued by a Greek bank for pounds sterling, delivers it to a trust company with instructions to have it renewed in pounds, and the company has it renewed in drachmas instead of pounds on a falling market for drachmas, and the renewed certificate drawn to the order of the customer is tendered to him, he is entitled, in an action against the trust company, to recover, not the highest value of the face of the old certificate in pounds between the time of the trust company's default and the trial, but the difference between the value of the old certificate and the value of the new certificate at the time plaintiff had notice of the return of the new certificate and refused to accept it. 3. In such case, the plaintiff was bound to prove the value of the old certificate. 4. If it appears from the affidavit of defence and from proofs at the trial that defendant contended that plaintiff required the renewal of the certificate in drachmas and not in pounds, it is immaterial that the affidavit of defence did not touch on the question of the value of the old certificate. Such omission did not in any way relieve plaintiff from proving his damages. Motions for judgment n. o. v. and for new trial. C. P. Beaver Co., Sept. T., 1922, No. 165. W. A. McConnel and W. S. Maxey, for plaintiff. Hice, Morrison, May & Bradshaw, for defendant. BALDWIN, P. J., Aug. 25, 1923.—This is a singular case. No case very like it on the facts has been cited to us, and our research has disclosed none. The plaintiff (a Greek) was the owner of two certificates of deposit in the National Bank of Greece, one, No. E-309,375, for 4102 francs, and the other, No. 309,474, for 304 pounds, 14 shillings and 6 pence. On June 8, 1921, he took these certificates to the defendant bank, to be by it forwarded to the Bank of Greece for renewal. The bank took the certificates and gratuitously undertook to forward them as requested. The certificate for francs was not due, it seems, until July 6, 1922, while the certificate in English money was overdue. Saridakis v. Ambridge Savings and Trust Company. Plaintiff contends that he merely instructed the defendant to have the certificates renewed; while defendant contends that he further requested that they be converted into drachmas. Defendant forwarded both certificates, with instructions to the Bank of Greece to renew the same in terms of drachmas. According to Mr. Matthews, defendant's clerk, who handled the transaction on behalf of the defendant, the Bank of Greece refused to renew the certificate for francs unless plaintiff would consent to a certain discount thereon. At any rate, the certificate for francs was finally returned to the plaintiff, and is of no particular importance in the present controversy, except in so far as the fact that it was not due for more than a year corroborates the defendant's contention that the plaintiff desired it to be converted into drachmas. The Greek bank converted the other certificate, as requested, into drachmas and returned it to the defendant, who received it by mail early in November, 1921. Mr. Matthews then tendered it to plaintiff, but the plaintiff refused to accept it, saying that he had not authorized the conversion of same into drachmas. Mr. Matthews replied that the conversion was in accordance with plaintiff's instructions given when the certificates had been left for renewal. On the day this conversation occurred-fixed by Mr. Matthews as Nov. 7, 1921—the drachma had fallen in the market from $6.23 per hundred on June 8, 1921, to $4.25 per hundred. Both plaintiff and Mr. Matthews say that in this conversation of Nov. 7, 1921, the defendant, with the consent of the plaintiff, undertook to return the certificate (in drachmas) to the Bank of Greece, with the request that the old certificate be returned. Accordingly, the defendant later returned the certificate with such request. But in March, 1922, both certificates were returned by the Bank of Greece to the defendant, the Bank of Greece having refused to reconvert the certificate. It does not seem to be denied that plaintiff was informed of the refusal of the Bank of Greece to reconvert the new certificate or return the old certificate, and that he was requested to call and receive the certificates. It appears that he then visited the bank and examined the certificates. He testified that he refused them because he overheard a conversation between the president and vice-president of the bank, in which the president advised the vice-president to "get my receipt and give me a new receipt instead of that with the certificates." Mr. Matthews testified that on this occasion the plaintiff, having examined the certificates, returned them to the bank, saying that he would come back later and get them, and keep them in the bank. In the meantime, and also following the month of March, 1922, the drachma continued to drop in the market, until at the time of the trial of this case it had reached the low mark of $1.24 per hundred. In the same period the pound increased somewhat. As we see it, the relation between the plaintiff and defendant was not that of bailor and bailee, but that of principal and agent. Whether the certificates were to be renewed merely, as the plaintiff contends, or renewed and converted into drachmas, as the defendant contends, the original certificates were to be surrendered and new paper issued. If this was the case, there was no bailment. But in either case, as the defendant was acting gratuitously, we take it that it owed the plaintiff the duty of merely slight care in executing the commission. So it is, perhaps, immaterial that the case was tried on the theory that the defendant was a bailee of the property. But, assuming that plaintiff's contention is correct and that defendant negligently executed the commission, what was the measure of damages? Plain Saridakis v. Ambridge Savings and Trust Company. tiff's theory is, that the measure of damages was the highest value of the face of the old certificate (in English money) between the time of defendant's default and the time of trial. We adopted this theory, and the plaintiff was permitted to recover a verdict accordingly, and that without reference to the value of the new certificate (in drachmas). We think that this was wrong. The new certificate is neither transferable by endorsement, nor assignable. It is made out to the plaintiff and available to no one else. Hence, it seems clear that plaintiff could not, in any event, recover more than the difference between the value of the two certificates. Had the defendant appropriated the certificate to its own use, a very different situation would be presented, and the plaintiff would undoubtedly be entitled to recover the highest price reached by the certificate between the conversion and the trial: Musgrave v. Beckendorff, 53 Pa. 310. But there is a principle which we think is applicable here, the effect of which would be to limit the plaintiff's damages to the loss suffered by him at the time he had notice of the refusal of the Bank of Greece to return the old certificate. This principle is thus stated in 13 Cyc., 73: “A party injured by a breach of contract must make reasonable exertions to render the injury as light as possible; and he cannot recover for any loss which he might have avoided with ordinary care and reasonable expense. This rule is especially applicable where one of the contracting parties has acquired notice of the breach of contract and makes no reasonable effort to mitigate the damages claimed." The plaintiff in the case at bar had final notice in March, 1922, of the refusal of the Bank of Greece to return the old certificate. All the damage done by defendant's request to convert his certificate into drachmas had then been incurred. Hence, we do not doubt that reasonable care required him to accept the new certificate, which, as we have seen, was of no value to the defendant. His damages, therefore, would be assessable as of that date. One other matter requires consideration. We think it was incumbent upon the plaintiff to prove the value of the certificate, and that its value was not proved by proof of the value of the money in which it was expressed. The certificate was simply the declaration of the Bank of Greece that it owed the plaintiff the number of pounds, shillings and pence therein named, and its agreement to pay interest thereon according to the terms of the certificate. It is true that the affidavit of defence does not deny that its value was as plaintiff contends; but the plaintiff does not aver in his statement (nor did he prove at the trial) the value of the certificate. The statement simply avers plaintiff's ownership of the certificate, the delivery of same to defendant to be forwarded for renewal, and the neglect and refusal of defendant to return the same to plaintiff, to the damage of the plaintiff in the sum named in the statement. Inasmuch as the defence set forth in the affidavit of defence, and made at the trial, was that plaintiff expressly requested the conversion of said certificates into drachmas, it is of no importance that the affidavit of defence does not touch the question of the value of the certificate in controversy. We do not understand that this in any way relieved the plaintiff from proving his damages. These considerations require the granting of a new trial, and it will be so ordered. Order.-Now, Aug. 25, 1923, the motion for judgment n. o. v. is overruled. Rule absolute and a new trial granted. From F. H. Laird, Beaver, Pa. Peters v. Peters. Divorce Adultery - Evidence-Sufficiency-Testimony of physicianHusband and wife — Competency — Non-access April 21, 1915. - Acts of June 7, 1907, and 1. In a suit for divorce on the ground of adultery, testimony that the respondent was frequently in the company of a man, not her husband, that she went to his place of business, went out with him in his automobile and went to a club with hini, is not sufficient to establish that adultery was committed. While the circumstances are suspicious, they are consistent with innocence. 2. Testimony of a physician that the respondent in a suit for divorce showed him a foetus that she said had been expelled from her womb, is incompetent as evidence against her. The Act of June 7, 1907, P. L. 462, prohibits the giving of such evidence by a physician. 3. In a suit for divorce, non-access on the part of the husband cannot be established as a part of the proof of adultery upon the testimony of the husband or wife alone, or by their admissions. The Act of April 21, 1915, P. L. 154, amending the Act of June 8, 1911, P. L. 720, and providing that the libellant in divorce shall be fully competent to prove all facts, is not sufficiently explicit to justify extending its application to the abrogation of the well-known and long-established rules of evidence prohibiting such testimony. Divorce. C. P. Beaver Co., March T., 1923, No. 409. READER, J., June 6, 1923.—The ground upon which a divorce is sought in this case is adultery. While the husband testifies that his wife was consorting with two men since August, 1922, the only evidence tending to connect the wife with either of these men is that concerning her relations with Charles G. Stadler. The evidence shows that the respondent was frequently in the company of Stadler. On several occasions she went to his place of business in the Borough of Ambridge. This, however, was a place of business, and not a place of such character that their mere presence there together requires the conclusion that adultery was committed. The respondent was also shown to have been with Mr. Stadler on several occasions in his automobile, and on one occasion was with him at the Americus Club in Pittsburgh. On most of these occasions, however, another person or persons were present. It seems also that when the respondent was sick, probably suffering from the effects of a miscarriage, Stadler rendered her a service in securing an ice-pack for her. Giving all of the evidence as to these relations with Stadler an interpretation most unfavorable to the respondent, we are of the opinion it does not establish the fact of adultery between them. Suspicious as the circumstances undoubtedly are, they are consistent with innocence of this crime. The circumstances which most strongly point to the guilt of the respondent are connected with the fact that on or about Jan. 8, 1923, she suffered a miscarriage. The physician who was called to see her that day, and who visited her twice, testified that on the second visit, in the evening, respondent showed him the foetus which she said she had expelled from her womb. He testified that it was of the age of about three and one-half months. We are of the opinion that this testimony of the physician was incompetent, in view of the provisions of the Act of June 7, 1907, P. L. 462, which provides as follows: "Section 1. Be it enacted, etc., That no person authorized to practice physics or surgery shall be allowed, in any civil case, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except Peters v. Peters. in civil cases brought by such patient for damages on account of personal injuries." This seems to be the view of the act in question taken by the Court of Common Pleas of Allegheny County in the case of Wiemer v. Wiemer, 70 Pitts. L. J. 511, and 71 Pitts. L. J. 397. The same view was taken by the Court of Common Pleas of Allegheny County in the case of Reid v. Reid, 50 Pa. C. C. Reps. 601. It seems to us that in the present case the testimony of the physician is such as comes within the prohibition of the act. Even if the testimony of the physician be considered, however, we think there is not sufficient other testimony, taken in connection therewith, to establish the fact of adultery. The presumption of the law is that this child was the child of respondent and her husband, the libellant. Evidence was offered, however, on behalf of libellant to prove that libellant and respondent had not had sexual relations for a period of about seven months prior to the time when the miscarriage took place. This evidence consisted in the testimony of several witnesses as to declarations made by the wife as to her relations with her husband, and the testimony of the libellant as to such relations. Three witnesses testified that the respondent stated to them, or in their hearing, at different times in the month of January, 1923, that her husband had not had sexual relations with her for seven months. The libellant testified that he had not had sexual intercourse with his wife, the respondent, since Aug. 1, 1922. It is thus apparent that the only evidence that libellant was not the father of the child prematurely born on Jan. 8, 1923, as presumed by law, is the statements of the libellant and respondent as to their not having had sexual intercourse within a period which would have made it possible for libellant to be the father. This at once raises the question as to the competency of the husband and wife to prove such non-access. The general rule is, that neither the husband nor the wife is competent to prove non-access for the purpose of proving the illegitimacy of offspring. There must be evidence from other sources to establish non-access. Where such evidence is present, their acts and declarations may be received in corroboration of it. In the case of Janes's Estate, 147 Pa. 527, the rule is thus stated: “A presumption of legitimacy attaches to birth in wedlock, and it cannot be rebutted by the testimony of the mother or of her husband. It may be overcome by proof of non-access of the husband, but they are not competent to establish it. The proof must come from another source. But the mother is competent to prove the fact and time of her marriage and when her child was born. The rule on this subject is thus stated in 2 Greenleaf on Evidence, § 151: "The husband and wife are alike incompetent witnesses to prove the fact of nonaccess while they lived together. But they are competent to testify in cases between third parties as to the time of their own marriage, the time of the child's birth, the fact of access, and any other independent facts affecting the question of legitimacy.' In Taylor on Evidence, 817, the learned author, referring to the same subject, says: 'But this rule does not prevent the parents from proving that the supposed marriage was either invalid or valid, or that their children were born before or after its celebration, though the effect of such evidence is, in the first and third case, to bastardize the issue, and in the others, to establish its legitimacy. For this purpose, too, their declarations, or their old answers in chancery, are admissible evidence.' An examination of the decisions on the point under consideration discloses the |