Egbert v. Payne

• Decision Date: 02 January 1882
• Citation: 99 Pa. 239
• Parties: Egbert <I>versus</I> Payne.
• Court: Pennsylvania Supreme Court

99 Pa. 239

Egbert versus Payne.

Supreme Court of Pennsylvania.

November 23, 1881.

January 2, 1882.

November 23d 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT, and GREEN, JJ.

ERROR to the Court of Common Pleas of Crawford county: Of October and November Term 1881, No. 318.

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J. B. Brawley (with him A. B. Richmond & Son), for the plaintiff in error.—There being no evidence in the case tending to show that the deposit was a gift by Egbert to Payne, either for a legal or illegal purpose, the court erred in submitting this irrelevant issue to the jury: Whitehill v. Wilson, 3 P. & W. 405; Sartwell v. Wilcox, 8 Harris 117; Evans v. Mengel, 1 Barr 69; Newbaker v. Alricks, 5 Watts 183; Stouffer v. Latshaw, 2 Watts 165; Musselman v. Railroad Company, 2 W. N. C. 105; Delaware & Hudson Canal Co. v. Torrey, 9 Casey 143. The defendant's point should have been affirmed without qualification. The answer, though nominally a qualified affirmance, virtually denies it.

C. Heydrick, for the defendant in error.—There was no evidence, which should have gone to the jury, to rebut the plaintiff's prima facie ownership. The attempted proof offered by the defendant falls short of that upon which the plaintiffs were nonsuited in Sims v. Bond, 5 Barn. & Ad. 389. The plaintiff being entitled, therefore, to binding instructions in his favor, it is immaterial whether the answer of the court to the defendant's point was right or wrong. But we contend it was not wrong. The evidence being that Egbert deposited the money in Payne's name, and there being no explanation of the transaction, the jury might well have found that it was a gift; and the instruction of the court complained of was simply to the effect, that if it was an executed gift, for any purpose, legal or illegal, it was irrevocable.

Mr. Justice STERRETT delivered the opinion of the court, January 2d 1882.

The single question of fact involved in this feigned issue was, whether the money deposited in the Second National Bank of Titusville, January 28th 1870, to the credit of Payne, the plaintiff below, belonged to him, or to Egbert, the defendant.

The deposit having been made in the name, and to the credit, of Payne, the money was prima facie his; and the burden was thus cast on Egbert of proving that it belonged to himself and not to the plaintiff below. He undertook to do this by proving that the money was deposited by himself, as was shown by the deposit slip in his own handwriting, and by introducing other testimony, tending to prove that the deposit was made, not for the individual use and benefit of Payne, but for the purpose of enabling him to use it in the business, either of Egbert himself, or of Egbert & Brown, of which firm Egbert was a member, and for both of which parties Payne was then acting as agent; and, that the money, having never been applied to the use of either Egbert & Brown, or Egbert, still belonged to the latter. A single question of fact, solely for the consideration of the jury, was thus presented.

There appears to have been no exception to the admission or rejection of testimony, at least none is urged here; but the complaint, is, that the charge of the court was calculated to prejudice and mislead the jury. In that portion of the charge which constitutes the first assignment of error the learned judge, referring to Egbert, the defendant below, says: "Has he explained to your satisfaction that it was his money? If he gave it to Payne for some purpose; if he gave it to Payne for any illegal or improper purpose, it would be an executed gift, and he could not take it back." This suggestion of a gift for an illegal or improper purpose, was unwarranted by anything that appears in the record, and was calculated to invite the jury to an inquiry in which their only guide was vague suspicion or conjecture. There was no testimony tending to prove a gift either for a proper or an improper purpose. It is scarcely necessary to cite authorities to show that this was error. In Stouffer v. Latshaw, 2 Watts 165, it is said: "To submit a fact,...