Burkhardt v. Harris

• Decision Date: 19 February 1947
• Docket Number: No. 9612.,9612.
• Parties: BURKHARDT v. HARRIS et al.
• Court: Texas Court of Appeals

Page 445

200 S.W.2d 445

BURKHARDT v. HARRIS et al.

No. 9612.

Court of Civil Appeals of Texas. Austin.

February 19, 1947.

Rehearing Denied March 19, 1947.

Appeal from District Court, Williamson County; Roy C. Archer, Judge.

Action by Carl Burkhardt, as administrator of the estate of Mrs. Christina Gruenwald Burkhardt, against Sam Harris and others to recover an amount alleged to have been due by them to decedent at the time of her death. Judgment for defendants, and plaintiff appeals.

Reversed and remanded as to defendant named and otherwise affirmed.

W. H. Nunn and W. K. McClain, both of Georgetown, for appellant.

W. C. Wofford, of Taylor, for appellee.

BAUGH, Justice.

Appellant, as administrator of the estate of Mrs. Christina Gruenwald Burkhardt, sued appellees for $2,000 alleged to have been due by them to Mrs. Christina Gruenwald Burkhardt at the time of her death. Trial was to the court without a jury; and at the close of plaintiff's evidence, upon motion of defendants, judgment was rendered that plaintiff take nothing; hence this appeal.

Suit was against Mrs. Fannie Harris, her husband, Sam Harris, and their son Sam Harris, Jr., on three counts:

First, that Fannie Harris, acting for and on behalf of herself and the other named defendants, borrowed from Mrs. Burkhardt on August 8, 1940, the sum of $2,000, upon a promise that the defendants would execute to her a note for $2,000, bearing 6% interest; that having secured said money under such promise, they failed to execute and deliver same, and converted the funds to their own use.

Second, that when Mrs. Burkhardt delivered said $2,000 to Mrs. Fannie Harris, she did not then have sufficient mental capacity to know, understand and appreciate what she was doing; which mental condition was well known to Mrs. Fannie Harris, who took advantage of it.

Third, in the alternative, that if defendants were not guilty of tortuous conversion of said money, then that said transaction was intended as a loan to Fannie Harris, acting as agent for the other defendants who well knew the manner and purpose for which Fannie Harris obtained said money, ratified her acts in doing so, and accepted and used said money for their own benefit, and were estopped to deny her agency in the premises.

Each of the defendants filed separate answers wherein they, in addition to general denials, pleaded the coverture of Mrs. Fannie Harris; denial by the husband and son of her right to act as their agent; or that said loan was made to Mrs. Fannie Harris for necessities or for the benefit of her separate estate. Mrs. Fannie Harris further answered by special plea that said transaction was intended as a gift by Mrs. Burkhardt to her, on condition that Mrs. Burkhardt be paid 6% interest per annum on said sum as long as the donor lived, which payments were made.

The check in question was dated August 8, 1940, signed by Mrs. Burkhardt, payable to cash. The president of the bank on which it was drawn testified that Mrs. Fannie Harris first presented same for payment, which was declined. Shortly thereafter Mrs. Burkhardt and Mrs. Harris returned to said bank together and presented the same or a similar check, which was paid in cash without any indorsement. Witness did not know whether it was paid to Mrs. Burkhardt or Mrs. Harris. W. H. Nunn, attorney for appellant in the administration proceedings on the estate of Mrs. Burkhardt, testified that in collecting the assets of said estate he found the check in question, took it with him to the place of business of Sam Harris, where the following occurred: "I told him that I had this check—well, I told him I was representing Mrs. Burkhardt's estate and I had this check and I understood that the money that was paid on this check was received by them and put in the business in buying out Mrs. Johnson and asked him if that was so. He said, yes, it was so, that it was put in the business."

Said witness, upon being recalled to the stand later, testified further: "There was a little more to the conversation than what I said, which was this—after stating what I said, I asked him about the payment of the check and told him that we wanted to clear up the assets and I asked...