Govin v. Miranda

• Decision Date: 22 December 1893
• Citation: 35 N.E. 628,140 N.Y. 662
• Parties: GOVIN v. DE MIRANDA.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 662

35 N.E. 628

GOVIN

v.DE MIRANDA.

Court of Appeals of New York.

Dec. 22, 1893.

Appeal from supreme court, general term, first department.

Replevin by Luz Diaz Govin against Luciana Govin de Miranda, individually and as executrix of Felix Govin y Pinto, deceased. From a judgment of the general term (24 N. Y. Supp. 1140) overruling defendant's exceptions, modifying the verdict, and directing judgment for plaintiff, defendant appeals. Reversed.

PAYMENT-EVIDENCE.

In replevin by L. for bonds, under a declaration written in Spanish, signed by decedent, and found in an envelope in his office safe, the declaration was translated: ‘There is in my safe $29,000 in bonds, and out of them $10,000 belong to L., for covering a note for the same sum subscribed by me.’ There was evidence that ‘vale,’ translated ‘note,’ meant ‘any general obligation,’ rather than ‘a promissory note,’ for which ‘pagare’ would be the proper woud; and it was shown that L. had recovered word; and it was shown that L. had recovered signed by decedent, that ‘L. has given me $10,000 in currency as a deposit.’ Held error to direct a verdict in the absence of satisfactory proof of the existence of a note to L. for $10,000, since it should have been assumed that the certificate of deposit represented the obligation mentioned in the declaration.

Stearns & Curtis, (Edward C. James, of counsel,) for appellant.

Abram Kling, for respondent.

FINCH, J.

We have just determined in another case, founded upon the same general facts, that the plaintiff is prima facie entitled to recover the bonds claimed, by force of the admission of ownership contained in the paper which the decedent executed before his death. 35 N. E. 626. That conclusion, however, does not reach the further question here involved, and raised by the defendant's answer, whether such ownership has become divested and extinguished by the act of the plaintiff in suing and recovering upon the certificate of deposit for $10,000 signed by him, and which was produced from the possession of the plaintiff. The language of the certificate, as translated from the Spanish, was this: ‘Let it be known that Mrs. Luz Diaz y Sanchez has given me ten thousand dollars in currency as a deposit. New York, 25th Oct., 1870. Felix Govin.’ This was the only paper produced, which imported a liability of $10,000 due to the plaintiff from the decedent, and if, in fact, there was no other, it must be deemed the one to which Govin referred in the declaration, which admits the ownership of the bonds, and which would establish the defense. Whatever may be the true and accurate translation of that document, which was written in Spanish, and about which the witnesses differ, one thing, at least, is true of it, and that is that the decedent admitted the plaintiff's ownership of the $10,000 of bonds as an extinguishment and satisfaction of some corresponding liability evidenced by a paper in her possession. He did not mean to give her the bonds. The declaration effects no such gift. It operates clearly as a satisfaction of some corresponding debt due to the plaintiff, which would be at once extinguished upon the acceptance by the creditor of the bonds applied to the intended payment. The certificate of deposit represented just such an outstanding debt of identical amount, and naturally and reasonably the reference would be to that obligation, which had been used upon and paid, and left the ownership of the bonds in the estate of Govin, as the defense claimed, unless there are further facts to the contrary. That the decedent received from Mrs. Sanchez in 1870 $10,000 as a deposit; that he invested it for her, and paid her the interest earned; that in 1883 it was represented by the bonds in question; that he deemed it prudent to so declare; and that in so doing, and to avoid a double liability, he described the bonds as for an obligation of his to an equal amount held by her, harmonizes the language with the facts, and is an extremely probable inference. But there is claimed to be, and there is, proof tending to the contrary, and upon which the trial court held, as matter of law, that the plaintiff was entitled to recover, and no defense existed. It is first said, and one or more witnesses so testified, that the Spanish word ‘vale’ means a promissory note, and cannot mean a certificate of deposit, and so the reference was not to the latter. The words are, ‘para un vale de igual suma firmado por mi.’ The drift of the evidence is very strong that where a promissory note, specifically and as distinguished from any other obligation, is meant, the proper word in Spanish to describe it is ‘pagare,’ but that where some general obligation is intended the appropriate word is ‘vale.’ The authority referred to by the witnesses as standard favors that contention, and a little reflection upon the probable origin and derivation of the word ‘vale,’ and the multitudeofits definitions, points to the same result. A correct translation of the words of reference might justly be found by a jury to be ‘for an obligation of equal amount signed by me;’ and, so read, the reference could be, and naturally would be, to the outstanding certificate of deposit. Indeed, the use of the general word ‘vale,’ instead of the specific term ‘pagare,’...