Forbes v. Jason

• Decision Date: 30 June 1880
• Parties: ISAAC B. FORBES, Adm'r,v.MAGDALENA JASON, Adm'x.
• Court: United States Appellate Court of Illinois

6 Ill.App. 395

6 Bradw. 395

ISAAC B. FORBES, Adm'r,

v.MAGDALENA JASON, Adm'x.

Appellate Court of Illinois, Second District.

June Term, 1880.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Marshall county; the Hon. JOHN BURNS, Judge, presiding. Opinion filed June 17, 1880.

Messrs. BARNES & MUIR, for plaintiff in error; as to what constitutes a conversion, cited 2 Hilliard on Torts, 97, 108; Brown v. Boyce, 68 Ill. 294; Wellington v. Wentworth, 8 Met. 548.

Generally upon what is necessary in a gift causa mortis: 3 Redfield on Wills, 326; Martin v. Frank, 18 Alb. Law Jour. 451; Hill v. Stevenson, 63 Me. 364; Grymes v. Hone, 49 N. Y. 17; Session v. Moseley, 4 Cush. 87; Constant v. Schuyler, 1 Paige, 316; Borneman v. Sidlinger, 8 Shep. 185; Wells v. Tucker, 3 Binn. 366; Hunter v. Hunter, 19 Barb. 931; Gardner v. Gardner, 22 Wend. 525; Blaisdell v. Locke, 52 N. H. 238; Hillebrant v. Brown, 6 Tex. 45.

Parol testimony is admissible to show what was adjudicated upon in a former suit: Zimmerman v. Zimmerman, 15 Ill. 84; 2 Smith's Lead. Cas. 767.

The instructions as to a conversion were improper and misleading: Owens v. Weedman, 82 Ill. 409.

Messrs. SHAW & EDWARDS, for defendant in error; that there was a conversion of the fund, cited 2 Hilliard on Torts, 254; Johnson v. Howe, 2 Gilm. 342; Ring v. Billings, 51 Ill. 475; Bane v. Detrich, 52 Ill. 19; Mead v. Thompson, 78 Ill. 62.

There was no valid gift causa mortis, there being no actual delivery: Pennington v. Gittings, 2 Gill & J. 208; Ward v. Turner, 2 Ves. 431; Bowers v. Hurd, 10 Mass. 426; Blanchard v. Williamson, 70 Ill. 647; Parish v. Stone, 14 Pick. 198; Hassell v. Chaney, 11 Chicago Legal News, 58; 3 Redfield on Wills, 326; Grover v. Grover, 24 Pick. 261; Sessions v. Moseley, 4 Cush. 87; Cosnahan v. Grice, 15 Moore, 215.

PILLSBURY, P. J.

Action of assumpsit, brought by the defendant in error against the plaintiff in error, upon a promissory note for $250, made by William T. Orr, in his lifetime, to John Jason, in his lifetime, and also for money had and received by said Orr to and for the use of said Jason. The contest between the parties arises out of the claim upon the common counts. The claim of defendant in error for a recovery against the plaintiff in error, is that her intestate, the said John Jason, had on deposit in the First National Bank of Lacon, the sum of seven hundred and fifty-four dollars and fifty cents, evidenced by two certificates of deposit, one for $500, and one for $254.50, dated, respectively, May 17 and May 30, 1877; and that on the day before he died, he, at the time being at the house of Orr, indorsed the said certificates and delivered the same to said Orr, with directions to go to the bank, draw the money and bring the same to him. That Orr took the certificates, went to the bank, drew $104.50, and upon surrendering the two certificates, received one for $650 in his own name, and afterwards drew all the money and never accounted to the defendant in error therefor.

On the other hand, plaintiff in error, while not denying the indorsement of the certificates, and the presentation of them to the bank by Orr, claims that upon Orr's return from the bank and telling Jason what he had done, Jason told him to give the money to Mrs. Orr, who was a daughter of Jason, and had nursed him in his then last sickness, for her services to him, Jason, during such sickness; and that in obedience to such request of Jason he then delivered the money and certificate to his wife, Mary Orr. It is further claimed, that in a suit brought by Mary Orr against the estate of her father for twelve year's labor for him after she became of age, that this transaction was relied upon as a set-off by the appellee, and was allowed to her in reduction of the amount claimed by Mary Orr as due her for such labor. In answer to the last position, the defendant in error denies that she urged the same as a set-off, or that the same was allowed the estate in that suit; and as to the other defense, she claims that Jason, if he ever gave any directions to Orr to deliver the money to his wife, that he, Jason, was mentally incapable of so disposing of his estate; and he being in such condition, his direction to Orr would be no justification to Orr in delivering the same to his wife; and such disposition of the money under the circumstances would render Orr liable in this action.

The parties upon the trial below gave testimony to the jury tending to establish their respective theories of the case, and upon the first branch of the defense relied upon, the evidence is in such condition that we would not be disposed to disturb the verdict, upon the ground that it is not sustained by the evidence, if the case had been submitted to the jury in accordance with our views of the law applicable to it.

The idea that if Orr took the certificate for $650 in his own name, and brought that to Jason instead of all the money, then he was guilty of converting the money to his own use by that act, appears to pervade the instructions as a series, and especially is it noticeable in the various modifications by the court of those given for the defendant.

While it is true that such act would be a technical conversion by Orr, it should be remembered that this action is an equitable one, and depends upon the fact whether the defendant has in his hands money that in equity and good conscience should be returned to the plaintiff. Therefore if he had the certificate instead of the money, no fraud appearing in the record as properly attributable to him, and he delivered the money that he had and the certificate, that represented the residue as being in the bank subject to the order of the...