Miller v. New Amsterdam Casualty Co. 94 N. J. L. and shall also give immediate notice thereof to the public police authorities having jurisdiction." That proper notice was given to the police is not disputed, but it is insisted that notice should have been given by telegraph to the company. The agent at Newark was practically the defendant's alter ego at that city, and was constituted, it will be observed, the company's representative for the purpose of receiving such notice, by the provisions of the policy. Therefore, the insistence that proper notice as required by the policy was not sent to the insurer cannot be reasonably maintained, since the plaintiff complied with the optional procedure expressly provided in the policy. The main insistence, however, is, that there was no proper proof of the loss, and that a nonsuit or a direction should have been granted by the trial court, whereas judgment for the plaintiff was ordered, and that judgment was affirmed by the Supreme Court. Numerous cases from other jurisdictions are cited by the appellant in an effort to sustain the proposition that the burden of proving the fact of theft rests upon the plaintiff, as a condition precedent to defendant's liability upon the policy. This contention may be conceded as a fundamental rule of civil procedure, and yet the evidential facts may be of such a circumstantial nature as to raise a reasonable probability that the loss took place in the manner claimed. Proof of that presumptive character has been defined by Mr. Best as "a mere preponderance of probabilities, and therefore a sufficient basis. of decision." 1 Best Er. 135. Blackstone declares that when a fact cannot itself be demonstrated, that which comes nearest to proof of it, is proof of the circumstances necessarily or usually attending it; this proof creates a presumption which is relied upon till the contrary is proved. 3 Bl. Com. 371. In other words, the creation of the presumption shifts the onus to the party who contends otherwise. Thus, says Mr. Best, referring to such presumptions: "They not only form important links in a chain of evidence as to frequently render complete a body of proof which would otherwise be imperfect; 94 N. J. L. Miller v. New Amsterdam Casualty Co. but the concurrence of a large number of them may (each contributing its individual share of probability) not only shifts the onus probandi, but amounts to proof of the most convincing kind." 2 Best Ev. 577. * Further commenting upon the subject; Prof. Greenleaf remarks: "They depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections which are shown by experience, irrespective of any legal relations. * * These merely natural presumptions are derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind, without the aid or control of any rules of law whatever." 1 Greenl. Ev. 44. And, so, it has been declared that a greater or less probability leading on the whole to a satisfactory conclusion, is all they can be reasonably required to establish controverted facts. Devine v. Dilano, 272 Ill. 166; Ann. Cas. 1918 A. We may add that it is this preponderance of the aggregate probabilities juridically termed "the weight of the evidence" which furnishes the legal standard of proof in civil causes, as contradistinguished from the rigid rule applicable in the trial of criminal causes, based on circumstantial evidence, which requires as a basis for conviction the elimination of every other reasonable hypothesis which could afford a rational explanantion for the commission of the crime. People v. Sexton, 187 N. Y. 495; 13 R. C. L. 213, and cases. The difficulty inherent in the contention of the defendant in the case at bar is that it substantially invokes the application of the rule peculiar to criminal procedure to the facts of the case, and ignores the applicability of the rule peculiar to the civil forum. A resumé of the evidential facts in the case will evince this situation. The chain and locket were kept in a bag behind a picture in the wife's room, and the picture was standing on a shelf in front of a simulated window. The morning after the loss was discovered a servant, who had been in the plaintiff's employ for only two weeks, suddenly left the employment, stating, "I have got to leave; I can't give you any reason but Miller v. New Amsterdam Casualty Co. 94 N. J. L. I have to leave." During her sojourn at the house, the servant, exercising that prerogative of facile familiarity and studied nonchalance peculiar to the average modern household servant, frequently entertained her friends during the absence of the employer, and those friends at times entered the apartment where the jewels were kept. After the loss was discovered, the plaintiff and his wife made a thorough search of the house, in their efforts to locate the missing jewels, but the search was fruitless. They then notified the police, who also endeavored to locate the jewels, but their search was equally fruitless. The situation thus produced, evinced by a process of elimination, in an atmosphere permeated with criminal suspicion, points inductively to one rational conclusion, which the average mind draws intuitively by a process of reasoning akin to the inductive processes of the logician, and not dissimilar to the intuitive methods of mental and moral philosophy, which processes are recognized in jurisprudence as a sufficient basis for judicial determination, the distinct inquiry being, as Prof. Greenleaf observes, not whether it is possible that such testimony may be false, "but whether there is sufficient probability of its truth." 1 Greenl. 4. We think, therefore, the facts thus adduced upon the principles of evidence to which we have adverted, present a basis from which a rational mind in the light of every-day experience (the credibility of the witnesses being conceded) might legitimately and logically infer that the jewels had been removed from the plaintiff's possession by theft. Such was the inference deduced by the trial court, and again by the Supreme Court from this congeries of fact; and, under the rule applicable to such a situation, under our adjudications, this court recognizing a substantial basis of fact to support the judgment, will accord to it such a status of finality dispositive of the factual questions involved, as we would accord under like circumstances to the verdict of a jury upon a writ of error. Lapat v. Erie Railroad, 71 N. J. L. 377; Defiance Fruit Co. v. Fox, 76 Id. 482. 94 N. J. L. Interstate Chemical Co. v. James Leo Co. Finding no legal error in the record the judgment will be affirmed. For affirmance-THE CHIEF JUSTICE, TRENCHARD, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 12. For reversal-None. INTERSTATE CHEMICAL COMPANY, APPELLANT, v. JAMES LEO COMPANY, RESPONDENT. Submitted March 22, 1920-Decided June 14, 1920. Where there was no attempt to prove that an agent had authority to change the terms of an original contract or that the agent had been held out by his principal as having authority to do so, or that the principal had any knowledge of an alteration in the original contract until an attempt was made to deliver the goods made in accordance with such alleged change, a judgment based upon a finding that there had been a ratification was erroneous. On appeal from the Supreme Court. For the appellant, Frank G. Turner. For the respondent, Robert Carey. The opinion of the court was delivered by KALISCH, J. The appellant, who was the plaintiff in the District Court, sued the defendant to recover $500 for a breach of contract, in writing, by which the defendant obligated itself to deliver to plaintiff ten thousand folding boxes, six by eight by eleven, for Key Dry, two-color printing, as per sample submitted, at $47.50 per one thousand. Delivery Interstate Chemical Co. v. James Leo.Co. 94 N. J. L. to be made within four weeks, which time was subsequently extended by the contracting parties to six weeks. The plaintiff, by its state of demand, claimed that by reason of the failure of the defendant to deliver the boxes to the plaintiff, as ordered, printed in two colors, the plaintiff was obliged to go elsewhere in the public market to purchase the boxes at a price $212 higher than that fixed by the contract, and that it sustained a further loss of $250 by reason of the failure of the defendant to carry out its contract and make delivery of the boxes, The defendant filed a set-off for the value of the labor performed and materials furnished in and about the boxes, and gave notice in writing that it would seek to recoup damages, and which notice, in effect, set up that on August 17th, 1918, plaintiff and defendant modified the original contract, by the plaintiff agreeing to take the boxes in one color instead of two, the defendant to furnish the plate, and that the plaintiff refused to accept the boxes under the modified contract. The case was tried without a jury and the trial judge gave judgment for the defendant on its counter-claim. From that result the plaintiff appealed to the Supreme Court, which tribunal affirmed the judgment. There was a double theory upon which the trial judge gave judgment for defendant, and which appears to have been followed by the Supreme Court, and that was, firstly, that the original contract, which required the job to be done in two colors, was subsequently modified by Ribakoff, a sales agent of the plaintiff, who it was alleged agreed with the defendant that if it would go to the expense of procuring certain plates, or stamps, it should be recouped the expenses thereby incurred, by being allowed to print the boxes in one color instead of two; and that the testimony justified an inference that Ribakoff was held out by the defendant through a course of dealing as authorized to make this change in the original contract. And, secondly, that Mr. Rose, president of the plaintiff company, ratified the change as to color by putting his O. K. on one of the proofs, thereby indicating that the boxes were to be printed in one color. |