Chase v. Perley

• Decision Date: 03 January 1889
• Parties: CHASE v. PERLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 289

19 N.E. 398

CHASE v. PERLEY.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1889

January 3, 1889

HEADNOTES

COUNSEL

Niles & Carr, for plaintiff.

H.F Hurlburt, for defendant.

OPINION

KNOWLTON J.

An express trust in personal property may be created and proved by parol. Davis v. Coburn, 128 Mass. 377. There was evidence from which the jury might find that the defendant received the money from his father upon a trust for the plaintiff and others. There was also evidence that the trust had been so far performed that nothing remained to be done but to pay the plaintiff and her brother William H. Perley certain ascertained sums. Upon this evidence the plaintiff could maintain an action at common law, and was not obliged to seek relief in equity. Johnson v. Johnson, 120 Mass. 465. The defendant's requests for instructions to the jury were therefore rightly refused.

The only remaining exceptions relate to the admission and exclusion of evidence. In the suit between the defendant and his brother, William H. Perley, the matter in controversy was the ownership of $1,000 of the money that the defendant received from his father, which he contended was given him to be his own, after the payment from it of certain debts and the funeral expenses. It was competent for the plaintiff in the suit at bar to present to the jury anything in the conduct of the defendant in reference to the money and to the $1,000 which was a part of it, that tended to show his recognition of his brother's right in it. As bearing upon the defendant's claim of ownership of the entire fund including the $1,000 delivered to his brother, the fact that he paid his brother $200 in cash for real estate, when, if his assertion was true, his brother owed him an unsecured debt of $1,000, was a circumstance proper for the consideration of the jury; and it was competent for the plaintiff, either before or after the cross-examination, to show that he made the purchase and paid the money on his own account, and said nothing about Mrs. Newhall, or anybody else but himself, as the purchaser.

There being no question as to the mental condition of the defendant's father, his declarations, made to the witness Ramsdell two or three days after the transaction was completed, were incompetent.

The defendant's son, Frank S. Perley, having testified that he heard a conversation between his father and grandfather in which it was said that the money was given to his father, it was competent to show by his cross-examination that he was the owner of the note upon which suit was brought against his uncle, William H. Perley, and that he did not testify in that...