Hillebrant v. Wife

• Decision Date: 01 January 1851
• Citation: 6 Tex. 45
• Parties: HILLEBRANT v. BREWER AND WIFE.
• Court: Texas Supreme Court

6 Tex. 45

HILLEBRANT

v.BREWER AND WIFE.

Supreme Court of Texas.

1851.

At common law delivery is essential to the validity of a parol gift. Actual manual delivery, however, is not always necessary, but in certain cases the delivery may be symbolical or constructive. There may be circumstances, too, under which a gift may be complete and valid as between donor and donee without delivery; as where the donee of personal property was under the age of twenty-one years, and lived with his father, the donor, the possession of the gift by the donor was held to be consistent with the donee's right. (Note 8.)

Where a father procured a brand to be recorded in the name of his child and branded certain cattle with the brand so recorded, with the avowed object of making a gift of the cattle to the child: Held, That there was a sufficient delivery to consummate the gift.

It has been held that a gift by deed or writing is tantamount as between donor and donee to a gift by actual delivery.

Where property only is in question, the value of the article, as nearly as it can be ascertained, furnishes a rule of damages from which the jury cannot depart. In such a case the value of the property must be proved, or some data must be furnished by which its value can be ascertained; else the damages must be merely nominal.

Where a motion for a new trial was made on the ground that the verdict was contrary to law and evidence, and the motion was overruled: Held, That although the damages were excessive, yet, as that ground had not been specified in the motion for a new trial, the judgment would not be reversed for that cause.

Where infancy was relied on to take a case out of the limitation of two years, the evidence was “that in 1842 the plaintiff was a small girl,” “that two years ago”--that is, two years before the trial in the fall of 1850--“she was upwards of twenty-one years of age,” the suit having been commenced on the 27th of October, 1848; Held, That the evidence was insufficient to sustain the verdict on appeal.

Where the ground specified in a motion for a new trial was that the verdict was contrary to law and evidence, and the assignment of error was that the court erred in overruling the motion for a new trial: Held, That the plaintiff in error might show that the evidence did not sustain the allegation of infancy, which was relied on to take the case out of the statute of limitations; and the judgment was reversed on that ground.

Depositions which are not referred to in nor made a part of the statement of facts will not be considered by the Supreme Court.

Error from Jefferson. This suit was brought by the defendants in error against the plaintiff in error to recover the value of certain cattle, alleged to be the property of the plaintiff below, Caroline, acquired before her intermarriage with her coplaintiff, William Brewer, by gift from her father, the defendant below, and to have been sold and converted by him to his own use. The original petition was filed on the 6th day of April, 1850. The statute of limitations was pleaded, and the plaintiffs thereupon amended their petition, alleging that the plaintiff, Caroline, until within less than two years next preceding the commencement of the suit, viz, until the 27th day of October, 1848, was an infant under the age of twenty-one years.

Accompanying the petition was an account specifying the number of cattle charged to have been sold by the defendant, when sold, and their value. The alleged indebtedness, on all the items in the account, except two, amounting to the aggregate sum of three hundred and sixteen dollars, was charged as having accrued more than two years before the commencement of the suit.

At the Fall Term, 1850, there was a verdict for the plaintiffs for five hundred and eighty-six dollars and fifty cents. The defendant moved for a new trial upon the ground that the verdict was contrary to law and evidence. The court overruled the motion and gave judgment upon the verdict; and the defendant prosecuted a writ of error.

The facts were that in the year 1840 the defendant caused to be recorded in the county of Jefferson a brand, in the name of his daughter, Caroline, one of the plaintiffs; that he afterwards sold cattle in that brand, and said that he owed his daughter three or four hundred dollars for cattle of hers he had sold; that since the year 1840 he had sold thirty head of cattle in that brand; that the plaintiff, Caroline, was “upwards of twenty-one years of age two years ago;” that in 1842 the plaintiff was “a small girl;” that at the birth of each of his children the defendant had branded some cattle for them, and had their brand recorded, and that he branded the increase in the same brand; that he had had possession of the cattle since the year 1842, and had sold and disposed of them in like manner as of his own; and that in 1844 he had branded a number of cattle in the brand of his daughter Caroline.

The errors assigned were--

1st. The ruling of the court upon the exceptions to plaintiff's petition.

2d. The overruling of a motion for a new trial.

J. B. Jones, and H. N. & M. M. Potter, for plaintiff in error. The material error, assigned and that upon which this plaintiff mainly relies, is that the court below erred in overruling the motion for a new trial, the ground of which was that the verdict of the jury was contrary to the law and the evidence. The cause of action of the plaintiffs below was based upon a pretended gift of the cattle in controversy from the plaintiff in error to the defendant in error, Caroline Brewer. The proof does not show that there was ever such a gift, unless it is to be presumed from the custom of the plaintiff in error, mentioned in the statement of facts, which was to record brands in the names of each of his children at their respective births, or from his having had a brand recorded in the name of the defendant Caroline in the year 1840, and using it afterwards in branding his own cattle. But if there was a gift, we say it was by parol and not accompanied with a delivery of the possession of the cattle in dispute to the defendant Caroline. The defendants in error rely upon the record of the brand in 1840 to show that this was not a parol gift, and they urged that such record was a delivery of the possession of the cattle to the defendant Caroline. By reference to the statutes of Texas it will be found that in 1840 there was no law authorizing the record of brands or the use of such record for any purpose; and as all records derive their efficacy from statutory provisions, it follows that the defendants cannot use this record to establish any fact necessary to their success. And besides, the proof is clear and positive that the plaintiff had exercised complete control and dominion of the cattle since the year 1842, and that he had never parted with the possession of said cattle except when they were disposed of for his own individual benefit. In Chevallier v. Wilson and Wife (1 Tex. R., 161) this court so expressly declare that a delivery of the possession is essential to the validity of a parol gift of chattels that we deem it unnecessary to cite authorities to that point.

The defendant below, in addition to the general issue, pleaded the statute of limitations. The suit of the plaintiffs below was based upon an account; and such actions are barred, if not commenced within two years from their accrual. By reference to the account filed by them it will be seen that their action was barred, except as to the last two items of account; and they failed to show themselves within the statute as to those two items. The plea of the statute deprives them of all the benefit of the admission made by the plaintiff that he owed the defendant Caroline three or four hundred dollars, unless they show that admission was made within two years before the commencement of their suit; and the statement of facts does not show any such proof. But if the defendants are within the statute, so far as concerns the admission of Hillebrant that he owed the defendant Caroline three or four hundred dollars, still that admission of indebtedness did not warrant the jury to find a verdict for over five hundred and eighty-six dollars; consequently the verdict of the jury was excessive.

J. W. Henderson, for defendants in error. The second ground of error is that the court erred in not granting a new trial. When a controversy consists chiefly of facts, the objections to a verdict must be very cogent to induce a court to grant a new trial. (Briscoe v. Bronaugh, 1 Tex. R., 326.) It must clearly appear that the evidence will not support the verdict. (Briscoe v. Bronaugh, 1 Tex. R., 326.)

After verdict of twelve men, judgment shall not be stayed or reversed for the want of form. (Stat. of 1846, sec. 104, p. 392.)

Where there are several counts, and certain damages are given, the verdict shall be good, notwithstanding one or more of the several counts are bad. (Stat. of 1846, sec. 103, p. 392.)

The declarations of the donor, accompanied with the fact of recording the...