| Dallmeyer v. Dallmeyer

• Citation: 16 A. 72
• Parties: Dallmeyer v. Dallmeyer
• Decision Date: 05 November 1888
• Court: Pennsylvania Supreme Court

16 A. 72

Dallmeyer v. Dallmeyer

Supreme Court of Pennsylvania

November 5, 1888

Oct 25, 1888. Error, No. 139 Oct. T., 1888, to C. P. No. 2, of Allegheny Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by Margaret L. Dallmeyer against Henry Dallmeyer, who survived Henry Dallmeyer, Jr. late partners as H. Dallmeyer & Son, at January T. 1888, No 77.

The affidavit of claim averred that the defendants, H. Dallmeyer & Son, were indebted to the plaintiff in the sum of $ 14,500 which she had loaned to the firm, and for which amount she had drawn two checks, one for $ 12,000, and another for $ 2500, both to the order of H. Dallmeyer & Son. Pleas, not given.

At the trial, before EWING, P. J., the plaintiff introduced in evidence the two checks referred to in the affidavit of claim. [The plaintiff also offered in evidence, without objection, a paper in the German language, marked Exhibit 3 and a translation thereof, as follows:

"I borrowed in 1886, of Mrs. Dallmeyer, for the firm of Henry Dallmeyer & Son, fourteen thousand five hundred dollars. [Signed.] Henry Dallmeyer, Sept. 1887."

Mrs. Dallmeyer testified that she found this paper the week after the death of Henry Dallmeyer, Jr., in the watch-pocket of the pantaloons he was wearing all last summer.

The defendant then moved the court to strike out Exhibit No. 3, and the translation thereof, for the reason that the testimony of Mrs. Dallmeyer clearly showed that it was incompetent. The court declined to strike out the evidence. Exception.]

Further facts appear in the charge of the court below, which was as follows:

"It is proven and admitted that Denry Dallmeyer, Sr., and Henry Dallmeyer, Jr., were partners engaged in the business of dealing in tobacco; that they had been partners for some years prior to these transactions, and that Henry Dallmeyer Jr., died September 26, 1887. It is also proven, and not in dispute, that the plaintiff, Mrs. Dallmeyer, was one of the residuary legatees of Thomas Donnelly, deceased, who died in 1885, leaving Henry Dallmeyer, Jr., as his executor. He settled up the estate, and, it is shown, by testimony, and admitted, that, in June, 1886, Mrs. Dallmeyer received from the estate of Thomas Donnelly nearly $ 45,000 on account of her share of that estate, and that it was deposited to her credit in the Fourth National Bank of Pittsburgh. It also appears that, on June 21, 1886, she drew a check on the Fourth National Bank for $ 12,000, payable to the order of Henry Dallmeyer & Son; that that check was taken, by Henry Dallmeyer, Jr., to the office of the firm and that it was there endorsed by the book-keeper of the firm in the presence and with the knowledge and consent of both partners, and was then deposited to their credit in the Third National Bank, where the firm kept its account; that the money was paid upon that check and went into the firm account.

"The ordinary presumption arising from that--if there was nothing more in the case--the ordinary presumption arising from the payment of money by one person to another, whether it be paid in coin, bank notes, or by check of the party paying it, is that it is simply the payment of a debt. It does not raise, of itself, a presumption of a loan. If one of the jurors should give to another a hundred dollars, and there was nothing else in evidence, the presumption would be that it would be simply the payment of a pre-existing debt; but if you go further, and show that there was no debt pre-existing, and that the money was given in that way, the presumption then would be that of a loan. Where there is the relation of husband and wife, however, as there was in this case, a different presumption arises from what there would be as between strangers. Where a wife gives money to a husband, or a husband to a wife, and there is nothing to explain the transaction, the presumptions are that it is a gift. The surrounding circumstances may change the presumption, and it may not require a very great amount of outside circumstances to change it, and it is for the jury to say whether that presumption was changed in this case.

"If that check had been drawn to the order of Henry Dallmeyer, Jr., alone, or Henry Dallmeyer, Jr., had been given the money by his wife, and there was no explanation of the transaction, even though he did afterwards give it to the firm, the presumptions would still be that it was a gift to her husband, or at least that there was some arrangement of that kind. It seems to me, however, that the form of the check is a very important circumstance in this case. It was not drawn to the order of the husband, but to the order of the firm of which he was a partner, and the presumption would be that it was for the firm and not for the husband--not a conclusive presumption at all, but the natural inference would be that it was intended for the parties to whose order the check was payable. We admitted testimony, as throwing some light on this transaction, that, at the time this check was brought to the office of the firm, both partners being present, Mr. Brown, the book-keeper, who was also present, was directed to credit the check to Henry Dallmeyer, Jr., and the books show that it was so credited. The book-keeper says it was credited as giving the son a third interest in the assets of the firm; that, before that time, he had only a third interest in the profits, and the books show this amount credited to Henry Dallmeyer, Jr. (I believe they do not show any "stock account," as such, of the partners.) This would be reconcilable either with the theory of a loan by Henry Dallmeyer, Jr., to the firm, or that it was--what the book-keeper says it was--a purchase of a third interest in the assets of the firm. It seems to me that, while this is evidence throwing some light on the transaction, yet if this was a loan made by Mrs. Dallmeyer to the firm through her husband, the fact that he had it placed to his credit on the books of the firm would not be a conclusive defense to her claim for it. The court admitted it simply as throwing some light on the question as to why this check was given. One especial reason why it would not be conclusive is this: If the original transaction between the wife and the husband was intended as a loan, the very face of the check, it appears to me, would be sufficient to put Henry Dallmeyer, Sr., on his guard, and upon inquiry as to what it was intended for.

"In addition to that, the plaintiff put upon the witness-stand W. C. Dallmeyer, a son of the defendant, who testified as to conversations had with his father, one in the spring of 1886, before this money was obtained, and another sometime in the fall of 1886, after it was obtained, in which the father told the son that when Mrs. Dallmeyer got her money from the Donnelly estate the firm would get some money from her; that they wanted to extend their business, etc., and that then in the fall the father said they had received the money; that there had been a division of the estate, and that Henry had borrowed it from Mrs. Dallmeyer, or words to that effect. Counsel on both sides have commented upon that testimony. What the father said is not absolutely inconsistent with the theory on either side, and it is for you to say what it did mean.

"You cannot, in this case, take any single piece of testimony as conclusive on either side. There are inferences which may be drawn either way, and the particular...