Harris v. Cable
| Decision Date | 19 March 1895 |
| Citation | 104 Mich. 365,62 N.W. 582 |
| Court | Michigan Supreme Court |
| Parties | HARRIS v. CABLE. |
Error to circuit court, Saginaw county; Eugene Wilbur, Judge.
Action by Edward W. Harris, executor, against Martha L. Cable, for the conversion of a note for $5,000. From a judgment for defendant, plaintiff brings error. Reversed.
Humphrey & Grant, for appellant.
Hanchett & Hanchett, for appellee.
Jacob F. Batchelor died January 3, 1892, leaving a last will and testament, by which he bequeathed certain sums of money to his son, Henry A. Batchelor; made certain bequests to the defendant, Martha L. Cable, who had been a member of his household for many years; made certain minor bequests to other persons in his employ, and to public charities; and concluded by making his son and the defendant Martha L. Cable, his residuary legatees, to share in the estate equally after the payment of the specific legacies. This action is in trover, brought by the executor to recover for the conversion of a note of $5,000, made on the 6th of June, 1891, by McCausland & Co., payable to the order of W A. Avery, due one year after date, and indorsed by said Avery. There was evidence on the trial tending to show that after the funeral of the testator, in the presence of the executor and defendant, Henry A. Batchelor, mentioned the note in question, and the defendant bowed her head, and said "Yes; it is amongst his papers." It is also conceded by defendant that the note was worth its face "that McCausland & Co. paid the note at the bank; and that Miss Cable got the benefit of it, and that she (the defendant) got the proceeds." The executor was himself sworn for the plaintiff, and stated that he had seen the note in question; that Miss Cable handed it to him at the former residence of Mr. Batchelor, in Saginaw; that it was handed to him with certain bank books of Mr. Batchelor's; that he does not know whether he took the note in his hands or not that he does not know where she got the note, but that she went out of the room, and returned with the note and other papers; that, soon after he filed his bond as executor and qualified, he went to the house, and took whatever papers he though best of Mr. Batchelor's; that at that time a similar note to the one in suit was shown him; that he had it in his hands; that he handed the note back to defendant; that he never afterwards demanded it of her, or asked it of her in any way; prior to the commencement of the suit he had never made claim for the note. On cross-examination he testified that when she brought this note to him she told him about the note,-that it had been given to her,-and then stated: "We talked about that and the other matters, and I gave her back the note, and later on I went and got the bank books and other papers." And when asked if he did not state, when he handed the note back to her, that the note belonged to her, and not to the estate, and to keep it, answered: "In substance, I did; I cannot undertake to give the language." He was then asked, "Did you not, in an interview there at Port Huron, upon being asked by her about the note, tell her to collect the money, and deposit the money to her own account?" and replied: Defendant testified that on the occasion when the will was read Mr. Henry Batchelor asked her what his father ever did with the McCausland note, and she answered that the McCausland note was all right, and that that was all that passed; that she did not say that it was among the papers belonging to the estate. She testified that subsequently Mr. Harris called for Mr. Batchelor's books and some notes, and she then said to him, "Mrs. Harris, you remember Mr. Batchelor asking me what his father did with the McCausland note?" and stated, "This is the note"; and handed the McCausland note to him. That he (Harris) looked at it, and handed it back, and said: That subsequently, after the appointment of Judge Harris as executor, she mentioned the fact to him that the note would be due on the 3d of June, and asked if she should collect it, saying, "Have you any advice to give me?" and he answered, "No; collect it, and deposit it to your own credit, and go along about your business." There was also testimony offered by the defendant for the purpose of establishing that the note was given to her by the deceased in his lifetime. This consisted of an indorsement upon the back of the note by the deceased, not necessary, however, for the purpose of conveying title; and of proof tending to show that, as the interest money was collected, deposits were made by her on her bank account, corresponding in every instance to the amount of interest money paid, and also her own testimony that she had no other source of...
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