Jackson v. Gallagher
Decision Date | 16 May 1907 |
Citation | 57 S.E. 750,128 Ga. 321 |
Parties | JACKSON v. GALLAGHER et al. |
Court | Georgia Supreme Court |
Syllabus by the Court.
A woman was competent as a witness to testify that she worked for her brother, and made an agreement with him to hold all her wages (except enough to pay board) for her child, to accumulate an estate for it, and that he reported to her that he had done so, and had deposited the money in a named bank in his name as agent for the child; the suit being by such child, after the death of the brother, against his administrator, to recover the money alleged to have been afterward withdrawn and used by him and his wife.
When the father of the child had died, leaving among other things certain stock, and it was issued to the uncle in his name as guardian, the certificate so issued was inadmissible in evidence; the stock being in no way involved in the litigation.
The facts stated in the first headnote above, together with evidence that the uncle did in fact deposit money in the bank to the credit of himself as agent of the child, made a prima facie case of a complete gift inter vivos from the mother to the child.
Where the uncle afterward drew the money so deposited, and redeposited it in his name as agent for his wife, by whom it was later drawn out and used, and the child brought suit for the money alleged to be thus used, it was error to grant a nonsuit.
Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.
Action by Mary Belle Cochran against Mary A. Gallagher administratrix, and another. Pending suit plaintiff married one Jackson. Judgment for defendants, and plaintiff brings error. Reversed.
A woman was competent to testify that she worked for her brother under an agreement to hold the wages for her child, and that he reported that he had done so and deposited the money in a named bank as agent for the child, in a suit brought by the child after the death of the brother against his administrator to recover the money alleged to have been afterwards withdrawn and used by him and his wife.
Mary Belle Cochran, a minor, by her next friend, brought suit against Mary A. Gallagher, as administratrix of Edward Gallagher, and also individually, seeking to recover the sum of $2,327.03, claimed to be money of the plaintiff which Gallagher had taken in his lifetime and delivered to Mary A Gallagher, who received it with knowledge and converted it. Pending the suit the plaintiff became of age and married one Jackson. An order was taken striking the next friend and allowing the suit to proceed in her own name. The evidence showed as follows:
On July 31, 1893, Gallagher had an account in the savings department of the Southern Bank of the State of Georgia, showing a deposit in his name of $1,600. On that day he closed out his individual account, drawing a check for the amount thereof, and redepositing it in the same bank to his credit as agent for Mary Belle Cochran. He made other deposits in the same way. On January 16, 1894, he thus deposited $150; on January 7, 1895, $100; on May 14, 1895, $160. These deposits were made by him in person. At the time of making them he said nothing as to the person to whom the money belonged. He wrote no letters in regard to the deposits, but transacted the entire matter personally. The interest on the account amounted to $317.03, making the total to his credit as agent for Mary Belle Cochran $2,327.03. On May 13, 1896, he drew against the account his check for $100. On June 17, 1897, he drew $500. On May 17, 1898, he drew a check for the balance of $1,727.03. This check he then deposited in the bank to his credit as agent of Mary A. Gallagher, his wife. Later he died. This last deposit, with the interest thereon of $62.82, making a total of $1,789.85, after his death was drawn out by Mary A. Gallagher by a check which was deposited in another bank, and this deposit in the second bank was afterwards drawn out by her. The accountant for the original bank testified that the deposit by Gallagher in his name as agent for his wife was a mere method of changing the account from himself as agent for Mary Belle Cochran to himself as agent for his wife.
The mother of the plaintiff testified that her husband, the father of the plaintiff, died, leaving seven shares of bank stock and several hundred dollars besides "that went to my daughter"; that this was taken charge of by Edward Gallagher, her brother; that she received the certificate of stock from his administrator after his death; that her husband gave her $1,400 before his death; that she used some of it, and loaned out some of it; that she loaned to Edward Gallagher $1,500; that she married again, but, the second marriage being unhappy, she left her second husband and went to live with Gallagher, who was at that time keeping a general merchandise store; that she performed services in the store; that he subsequently built another store, and she carried on business there, conducting a general business for the sale of dry goods, groceries, general merchandise, and millinery; that she had exclusive control of the little store where the millinery was sold, and did all the buying and selling for both stores, generally delivering all the money to him every Saturday night; that the little store was profitable; and that Gallagher died in 1898.
Plaintiff offered to prove by her that in 1889, when she (the witness) went to live with her brother, after separating from her husband, she had a contract with her brother by which she was to go in and conduct one store, and do the bookkeeping and purchasing for the other store, the one he ran, and the marking of his goods, and that her wages, whatever they were reasonably worth more than her board, were to be by him each month held for the plaintiff, the daughter of the witness, so as to accumulate an estate for such daughter; that in pursuance of this contract she worked for her brother a little over seven years; that during this time her services were reasonably worth $300 per year over and above her board; and that during that time he advised her that he was depositing this money in the Southern Bank of the State of Georgia for the daughter and held it as agent for the daughter in pursuance of the agreement. To this testimony the defendant objected, on the ground that the witness was not competent to prove the agreement, because Gallagher, the other party to it, was dead. The court sustained the objection and ruled out the evidence. To this ruling the plaintiff excepted. The plaintiff also offered in evidence the certificate for seven shares of stock in the Citizens' Bank of Savannah, referred to in the testimony of the plaintiff's mother, and which was made out in the name of "Edward Gallagher, guardian of Mary Isabella Cochran, a minor." To this evidence the defendant objected, on the ground that the stock was not involved in the suit, and that the certificate was irrelevant. The objection was sustained, and the plaintiff excepted.
Upon the close of the evidence the court granted a nonsuit, and the plaintiff excepted.
Hardeman & Jones and Davis & Miller, for plaintiff in error.
W. J. Grace and John P. Ross, for defendants in error.
LUMPKIN, J. (after stating the foregoing facts).
1. The mother of the plaintiff was not an incompetent witness. She was not a party to the case, nor pecuniarily interested in the result. In the transaction between her and the deceased, she did not purpose to be acting as agent for the plaintiff; but her testimony tended to show that she was in effect making a gift to the daughter inter vivos. She is not suing to enforce the contract made with her deceased brother; but her testimony would tend to show that the contract was performed. The fact that her daughter may profit by her testimony will not exclude her. She falls within none of the classes of persons declared to be incompetent under section 5269 of the Civil Code of 1895, and section 5270 declares that "there shall be no other exceptions allowed under the foregoing paragraphs." Blount v. Beall, 95 Ga. 182, 22 S.E. 52 (2); Logan v. Logan, 108 Ga. 760, 33 S.E. 30; Reed v. Baldwin, 102 Ga. 80, 29 S.E. 140; White v. Jones, 105 Ga. 29, 31 S.E. 119.
2. There was no error in rejecting from evidence the certificate of stock. The only claim of relevancy seems to be that it was made out in the name of Edward Gallagher (the deceased), guardian of the plaintiff; that Gallagher received this upon the death of plaintiff's father, and after his death his administratrix delivered it to the plaintiff's mother. The stock was in no way involved in the litigation, and we fail to see how the mere fact that the certificate was made out in the name of Gallagher as guardian would throw any light on the question of whether he had a contract with the plaintiff's mother by virtue of which he deposited money in bank in his own name as agent for the plaintiff.
3, 4. Dealing with the case as if the excluded evidence were in was a prima facie case made out, or did the presiding judge correctly grant a nonsuit? The plaintiff's case cannot be supported on the theory of an express trust. Such a trust must be created or declared in writing, in this state. Civ. Code 1895, § 3153. Can it be sustained on the theory of a gift inter vivos by the mother to the child? According to the testimony of the plaintiff's mother, the plaintiff was about 22 years of age at the time of the trial, which occurred in February, 1906. In 1889, at which time the mother proposed to testify that she went to live with her brother and made the contract with him, the plaintiff must therefore have been about 5 or 6 years of age. The mother claims that her brother agreed that whatever her wages were worth, over and above her board, was to be by him each...
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