Foley v. Harrison

• Decision Date: 31 March 1911
• Citation: 136 S.W. 354,233 Mo. 460
• Parties: ELIZABETH FOLEY, Appellant, v. J. S. HARRISON
• Court: Missouri Supreme Court

136 S.W. 354

233 Mo. 460

ELIZABETH FOLEY, Appellant, v. J. S. HARRISON

Supreme Court of Missouri, First Division

March 31, 1911

Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.

Affirmed.

Guthrie Gamble & Street, Boyle & Howell and A. F. Smith for appellant.

(1) The new trial was not granted because of the weight of the evidence, but on account of the insufficiency of the evidence -- a demurrer. If there was any evidence to sustain the verdict, it was final. Dunn v. Bank, 109 Mo. 101. (2) No particular number of witnesses is required to prove a gift. One witness, credible or corroborated, is sufficient. Gifts have been sustained where the donee was the only witness, but the circumstances corroborated. These cases however, are rare, because the donee is in most jurisdictions an incompetent witness. Thomas v. Lewis, 89 Va. 1; Walsh v. Striddere, 2 C. & L. 423, 6 Ir. Eq. 161; McGonnell v. Murray, 1 Ir. 3 Eq. 460; In re Farman, 57 L. J. Ch. 637, 58 L. T. Rep. (N. S.) 12 Devlin v. Farmer, 16 Daly 98; Ward v Turner, 2 Ves. Sr. 431; Hatch v. Atkinson, 56 Me. 324; Delmotte v. Taylor, 1 Redf. Surr. (N. Y.) 417; Casnahan v. Grice, 7 L. T. (N. S.) 82. (3) No particular form of language is required to make a gift, if the intent be apparent from the words actually used. 14 Am. and Eng. Ency. Law, 1055; Shackelford v. Brown, 89 Mo. 549; Keniston v. Seva, 54 N.H. 24; Devin v. Farmer, 16 Daly 98; Vendor v. Roach, 73 Cal. 14; Deval v. Dye, 123 Ind. 325; Banking Co. v. Miller, 190 Mo. 662; Estate of Soulard, 141 Mo. 655. (4) Even where the language used is ambiguous, the jury may find a gift, by construing the language used in connection with previous declarations of intent, subsequent declarations as to the act done, and the general situation in relation of the parties. Smith v. Maine, 25 Barb. 33; Barnes v. People to use, 25 Ill.App. 136; Doty v. Wilson, 47 N.Y. 580. (5) While delivery is required, it may be either actual or constructive, appropriate under the circumstances, to evidence in a substantial manner the transfer of interest. Ten Brook v. Brown, 17 Ind. 413; Wing v. Merchant, 52 Me. 383; Lydale v. Randall, 154 Mass. 103; Caylor v. Caylor, 22 Ind.App. 673; Davis v. Kruck, 93 Minn. 292; Fletcher v. Fletcher, 55 Vt. 325; Ross v. Draper, 55 Vt. 404; Shackelford v. Brown, 89 Mo. 546; Estate of Soulard, 141 Mo. 642; Hillebrandt v. Brewer, 6 Tex. 45; Vogel v. Gast, 22 Mo.App. 107; Gartside v. Pahlman, 45 Mo.App. 164; Bates v. Vary, 40 Ala. 421; Straughan v. Tucker, 59 Ark. 93; Ebel v. Piahl, 134 Mich. 64; Trowell v. Caraway, 10 Heisk. 104; Grangiack v. Arden, 10 Johns. 293; Brown v. Brown, 4 B. Mon. 535; Waite v. Grubb, 43 Ore. 406. (6) The delivery of the keys was a sufficient delivery. Thomas v. Lewis, 89 Va. 1; Cooper v. Burr, 45 Barb. 9; Dubens v. Emmens, 158 Mass. 592; People v. Benson, 99 Ill.App. 325; Telford v. Patten, 144 Ill. 620; Reynolds v. Reynolds, 20 Misc. 254; Goulding v. Harbury, 85 Me. 227; Stevenson v. King, 81 Ky. 425; March v. Fuller, 18 N.H. 360; Sheekog v. Perkins, 4 Baxt. 281. (7) Even where there is no direct evidence of delivery at all, the fact of delivery may be gathered from other evidence tending to establish its probability. Blake v. Jones, 1 Bailey (S. C. Eq.) 136; Isaacs v. Williams, 3 Gill (N. D.) 278, 287; Caldwell v. Wilson, 2 Spears (S. C. Law) 63; Moray v. Wyley, 100 Ill.App. 75; Sanderlin v. Sanderlin, 24 Ga. 583. (8) The claimed rule of the safe deposit company requiring a written authorization to a deputy to secure access to the box, did not prevent the delivery of the keys from being sufficient. Thomas v. Lewis, 89 Va. 9; Ridden v. Thrall, 125 N.Y. 572; Candee v. Sav. Bk., 81 Conn. 372; Leyson v. Davis, 31 L. R. A. 429; Tidewater Co. v. Kitchenman, 108 Pa. St. 630; Comm. Co. v. Grumbles, 129 F. 291; Connor v. Root, 11 Colo. 183. (9) It was proper for the jury to consider the ill-will of the deceased toward his only natural heir as strongly tending to support the probability of a gift. Conners v. Root, 11 Colo. 183. (10) It was proper for the jury to consider the natural inclination towards bounty to the Foleys as strongly tending to support the probability of a gift. Schwendt v. Schwendt, 61 Kas. 377. (11) Where one prevents, by a successful objection, the introduction of competent evidence, he cannot on appeal deny the right to consider such evidence as if introduced. Randolph v. Railroad, 106 Mo.App. 651; Hind v. Kansas City, 120 Mo.App. 190. (12) The offer of proof of the nurse, Arletta Long, was an offer of competent testimony. Rosenwall v. Middlebrook, 188 Mo. 101; Heirmueller v. Scullin, 109 Mo.App. 193; Martin v. Jones, 59 Mo. 187; Eyermann v. Piron, 157 Mo. 107; 20 Cyc. 1238-1240.

Jacob L. Lorie for respondent.

(1) Before there can be a valid gift there must be notice to and acceptance by the bailee. Castle v. Persons, 117 F 835; 2 Kent's Comm. (11 Ed.) 567; Hooper v. Goodwin, 1 Swanst. 485; Picot v. Sanderson, 12 N.C. 309; Sanborn v. Goodhue, 28 N.H. 48; Bond v. Bunting, 78 Pa. St. 210. (2) Where the subject of a gift is in the hands of the bailee, it is essential to the validity of the gift that the bailee be notified, otherwise there can be no constructive delivery. Vogel v. Gast, 20 Mo.App. 104; Gartside v. Pahlman, 45 Mo.App. 160; Holderman v. Tillington, 63 Mo.App. 212; Worley ex rel. v. Watson, 22 Mo.App. 552; Allgear v. Walsh, 24 Mo.App. 134; How v. Taylor, 53 Mo. 592; Irwin v. Arthur, 61 Mo. 287. (3) A deposit of money in the hands of a third person for safe keeping gives the owner a mere right of action therefor, and an assignment or some instrument equivalent thereto is necessary to perfect the delivery. Hawn v. Stoler, 208 Pa. St. 610; Bond v. Bunting, 78 Pa. St. 218; 2 Kent's Comm. 439; Castle v. Persons, 117 F. 841; Story's Eq. Jur., par. 607c. (4) Where the subject of the gift is in the hands of the bailee, the owner's order of transfer should be acted upon, in order to complete the gift; for the general rule is to require the utmost delivery of which the thing is actually capable. 2 Schouler's Personal Property, par. 75, p. 81; Delmott v. Taylor, 1 Red. (N. Y. Surr.) 417. (5) No right of action accrues in any case against the bailee unless there has been some wrongful conversion or some loss by gross negligence on his part, until after a demand made upon him, and a refusal by him to redeliver the deposit. Story on Bailments (9 Ed.), par. 107; Boone v. Savings Bank, 84 N.Y. 88. (6) The gift must be completed and take full effect during the lifetime of the donor. Yancey v. Field, 85 Va. 760; Basket v. Hassell, 107 U.S. 602; 2 Kent's Comm. (14 Ed.) 448; 2 Schouler's Personal Property, par. 163, p. 166; Keepers v. Fidelity Company, 56 N. J. L. 302; Hewitt v. Kaye, L. R. 6 Eq. 198; In re Beeks' Estate, L. R. Eq. 489; Bank v. Milliard, 154 U.S. 656; Bank v. Williams, 13 Mich. 382; Bromley v. Brunton, L. R. 6 Eq. 275; 2 Schouler's Personal Property, par. 75, p. 81. (7) A safe deposit company is a bailee for hire and has all the rights and is subject to all the duties as such. 19 Am. and Eng. Ency. Law, 481; 2 Am. and Eng. Ency. Law, 756; Jones v. Morgan, 90 N.Y. 4; Roberts v. Safe Deposit Company, 123 N.Y. 57; Story on Bailments (9 Ed.), par. 107. (8) Where the subject-matter of a gift is deposited, as here, in a safe deposit vault and can be withdrawn by no one but the depositor, except by the compliance with the rules and regulations of the safe deposit company, no person other than the depositor can gain access to the thing deposited, or can obtain any title to such thing except by showing a prior compliance by the original depositor, with such rules and regulations. Ward v. Turner, 2 Ves. Sr. 431; Beak v. Beak, L. R. 13 Eq. 489; Pennington v. Gittings, 2 Gill. & J. 208; Moore v. Moore, L. R. 18 Eq. 474; Coleman v. Sarel, 3 Bro. Ch. 12, 1 Ves. Jr. 50; Milroy v. Lord, 4 De G. F. & J. 264; Searle v. Law, 15 Sim. 95; Beech v. Keep, 18 Beav. 285; Morawetz, Corp., par. 501; McGonnell v. Murray, 3 Ir. R. Eq. 460; Lewin, Trusts (2 Amer. Ed.) 136; Pringle v. Pringle, 59 Pa. St. 281; Bond v. Bunting, 78 Pa. St. 210; Scott v. Lauman, 104 Pa. St. 593; Fross's Appeal, 105 Pa. St. 258; Baltimore Co. v. Mali, 65 Md. 93; Nutt v. Morse, 142 Mass. 1; Eaves v. Savings Bank, 27 Conn. 229; Heath v. Savings Bank, 46 N.H. 78; Sullivan v. Savings Bank, 56 Me. 507; Wall v. Savings Bank, 3 Ala. 96; Doubleday v. Kress, 60 Barb. 181; Allen v. Savings Bank, 69 N.Y. 314; Smith v. Savings Bank, 101 N.Y. 58; Boone v. Savings Banks, 84 N.Y. 83. (9) It is presumed as a matter of law, that the depositor had actual notice of the terms upon which the depositary received and would deliver the thing deposited. Bank v. Hughes, 17 Wend. 94; Bank v. Page, 9 Mass. 155; Mill v. Bank, 11 Wheat. 431; Smith v. Whiting, 12 Mass. 5; Raborg v. Bank, 1 H. & G. 239; Hays v. Bank, 1 M. & Y. 179. (10) There can only be a constructive delivery of the subject of a gift when such delivery is a delivery of the thing which in itself and alone is the means of using and enjoying a thing given. There is no such thing as a symbolical delivery except in the sense of a constructive delivery. Newman v. Bost, 122 N.C. 528; McGrath v. Reynolds, 116 Mass. 566; Harris v. Clark, 3 N.Y. 113; Val Fleet v. McCarn, 2 N.Y.S. 675; 3 Pomeroy's Eq. Jur., par. 1149, p. 2241; Debinson v. Emmons, 158 Mass. 592. (11) The transaction must show a completely executed transfer to the donee with the present right of property and the possession. The donee must become the owner of the property given and the donor must part with all his right in and dominion over the subject of the gift which must take effect immediately and absolutely, leaving nothing essential to be done in the future. Thomas v. Thomas, 107 Mo. 459; Allen-West Com. Co. v. Grumbles, 63...