Bedirian v. Zorian
| Decision Date | 29 June 1934 |
| Citation | 191 N.E. 448,287 Mass. 191 |
| Parties | BEDIRIAN v. ZORIAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Essex County; W. L. Collins, Judge.
Action by Megerdich Bedirian against Philip Zorian. Verdict for plaintiff, and defendant brings exceptions.
Exceptions overruled.
M. L. Glazer, of Boston, for plaintiff.
P. A. Kiely, of Lynn, for defendant.
The plaintiff has brought an action of contract against his nephew, the defendant, to recover the sum of $5,000 which the declaration alleges was loaned by the plaintiff to the defendant. A jury returned a verdict for the plaintiff. The defendant's bill of exceptions presents his exceptions to the refusal of the trial judge to give certain requests for rulings, to the denial of his motion for a directed verdict, and to protions of the judge's charge.
Viewed most favorably to the plaintiff the evidence may be summarized as follows: The plaintiff in 1923 deposited in a savings bank $2,000 of his own money in his own name as ‘Trustee for * * * [the defendant], in case of death of Trustee amount to be paid to the beneficiary’ and said to the defendant: ‘When I * * * die you take the bank book.’ In 1924 the plaintiff made from his own funds a further deposit of $2,561.15 in that account. Shortly afterwardstheaccount was changed to a joint account in the names of the plaintiff and defendant ‘either to draw or the survivor’ and a written agreement to the same effect was made by the parties with the bank. At that time the plaintiff said to the defendant ‘When I die you take my money and pay my funeral expenses.’ On May 1, 1927, there having been no further deposits made and no withdrawals therefrom, there was by reason of interest accumulations, over $5,000 in the account. About that time the defendant asked the plaintiff for a loan of $5,000, suggested that such amount be withdrawn from the joint account, promised to pay the plaintiff 5% interest on the loan every six months, and said he would repay the $5,000 whenever the plaintiff wanted it. To this the plaintiff agreed and the two went together to the bank where a clerk suggested that, instead of withdrawing the sum of $5,000 on that day and thus losing the May divided, that amount be borrowed from the bank until the next dividend day. This was done and both signed a note to the bank. The plaintiff directed that the bank's check be made payable to the defendant and handed it to him. Some months later the plaintiff asked the defendant for interest on the loan and the defendant said that ‘the year was not up yet.’ Still later he asked the defendant for the payment of the $5,000 but payment has never been made.
The jury was warranted in finding that the rights of the parties in the deposit were only those fixed by the terms of the contract of deposit made with the bank and that there was not, as the defendant contended, also a gift to him of the deposit itself as distinguished from a gift of an interest in the deposit by virtue of the contractual right against the bank given him by the agreement of deposit. See Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N. E. 371. The contract creating the joint account gave each party the right to withdraw any part or even the whole of the deposit. It might have been found that the withdrawal of the sum of $5,000 was actually made by the plaintiff and not by the defendant and that upon withdrawal by the plaintiff that money became his sole property; or it might have been found that the sum of $5,000 withdrawn from the joint fund and by agreement of the parties became upon withdrawal, however that was effected, the money of the plaintiff. In any event there was ample evidence to justify the finding that there was a loan made by the plaintiff which the defendant was obligated to repay. The defendant's motion for a directed verdict and his request that if ‘the defendant drew money out from the bank the plaintiff cannot recover’ were rightly denied.
The defendant at the trial among other things contended that he had a greater right in the deposit than that given him by the terms of the agreement of deposit which the parties made with the bank. This contention was based on his testimony that after the original deposit in 1923 in the name of the plaintiff as trustee for the defendant and after the deposit in 1924 on a joint account, on each occasion the plaintiff handed the defendant the bank book and said in substance that he gave it to the defendant. The plaintiff did not admit this; his conduct...
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