Lewis County v. State Bank of Peck

• Citation: 31 Idaho 244,170 P. 98
• Parties: LEWIS COUNTY, STATE OF IDAHO, a Municipal Corporation, and LUTHER T. MCCKEE, Treasurer of Lewis County, State of Idaho, Appellant, v. STATE BANK OF PECK, a Corporation, Respondent
• Decision Date: 07 January 1918
• Court: United States State Supreme Court of Idaho

170 P. 98

31 Idaho 244

LEWIS COUNTY, STATE OF IDAHO, a Municipal Corporation, and LUTHER T. MCCKEE, Treasurer of Lewis County, State of Idaho, Appellant, v. STATE BANK OF PECK, a Corporation, Respondent

Supreme Court of Idaho

January 7, 1918

GIFT OF PERSONAL PROPERTY-DELIVERY-NEGOTIABLE INSTRUMENTS-NECESSITY FOR DELIVERY-RIGHT TO POSSESSION-CLAIM AND DELIVERY.

1. In order to constitute a gift of personal property there must be an actual and complete delivery thereof made in execution of the gift, and for the express purpose of consummating it.

2. No obligation arises upon a promissory note until it has been delivered.

3. Delivery, within the meaning of Rev. Codes, sec. 3473 providing that, "Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto....," imports such a transfer of the instrument to another as will enable the latter to hold it for himself. If the maker or drawer has only put the paper into the hands of his agent to hold as such, he has not delivered it.

4. Held, that under the evidence in this case, the notes were never delivered to appellant county, nor to its treasurer the payee designated in the notes, nor to anyone else on its behalf, in trust or otherwise.

5. Held, that under such circumstances the appellant acquired no right or interest in the notes, nor to the possession thereof, and therefore its action in claim and delivery cannot be maintained.

[As to conveyances which must be regarded as gifts, see note in 65 Am.St. 798]

APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action in claim and delivery. Judgment for defendant affirmed as modified.

Judgment affirmed. Costs awarded to respondent.

S. O Tannahill, for Appellant.

In the absence of a statute prohibiting the receiving donations or gifts, the general rule is that the donations being for the benefit of the county and not creating a liability against it, the donation may be received. (2 Dillon's Mun. Corp., 4th ed., sec. 566.)

Eugene A. Cox, for Respondent.

"In order to constitute a gift of personal property, three things are necessary: (a) An intention on the part of the donor to presently give; (b) a subject matter capable of passing by delivery; and (c) an actual delivery at the time. (Hecht v. Shaffer, 15 Wyo. 34, 85 P. 1056; Jackson v. Lamar, 67 Wash. 385, 121 P. 857; Meyers v. Albert, 76 Wash. 218, 135 P. 1003.) The delivery must be such as will divest the donor of the present control and domination over the property absolutely and irrevocably and confer upon the donee the domination and control." (In re Slocum's Estate, 83 Wash. 158, 145 P. 204; Bliss v. Bliss, 20 Idaho 467, 119 P. 451; Bruce v. Squires, 68 Kan. 199, 74 P. 1102.)

The same general rules are applicable to voluntary subscriptions. (Twenty-third St. Baptist Church v. Cornell, 117 N.Y. 601, 23 N.E. 177, 6 L. R. A. 807; Butler University v. Scoonover, 114 Ind. 381, 5 Am. St. 627, 16 N.E. 642; Phillips Limerick Academy v. Davis, 11 Mass. 113, 6 Am. Dec. 162; Culver v. Banning, 19 Minn. 303; Albany Presbyterian Church v. Cooper, 112 N.Y. 517, 8 Am. St. 767, 20 N.E. 352, 3 L. R. A. 468; Johnson v. Otterbein University, 41 Ohio St. 527; Foust v. Cumberland Presbyterian Church, 8 Lea (Tenn.), 552; Broadbent v. Johnson, 2 Idaho 325, 13 P. 83.)

BUDGE, C. J. Rice, J., concurs. Morgan, J., dissents.

OPINION

BUDGE, C. J.

This is an action in claim and delivery for the possession of certain promissory notes, or the value thereof in case delivery cannot be had.

It is alleged in the complaint: "That on the 6th day of February, 1915 . . . ., the said plaintiff, the county of Lewis, . . . . was, and now is the owner of, and the said plaintiff, Luther T. McKee, treasurer of said Lewis county, Idaho, was, and now is entitled to the possession of for the use and benefit of the said plaintiff, Lewis county, Idaho, the following described promissory notes"; here follows a description of the various notes. The answer denies ownership in either of the plaintiffs or that either is "entitled to the possession of any of the promissory notes in the said complaint mentioned; and denies that any of the said notes were made or executed for the use or benefit of plaintiffs, . . . . or any of them, were ever delivered to plaintiffs, or either of them, in trust or otherwise." And it is affirmatively alleged that on the 18th day of April, 1914, the county, through its board of commissioners, let to Fike & Mitchell a contract for the construction of a public highway known as the "Central Ridge Grade," for the sum of $ 7,250; that thereafter the contractors completed the work, and that in the course of performance modifications were made at the instance of the commissioners, acting as individuals, which greatly increased the cost and value of the work, and that the contractors actually disbursed for labor and material the sum of $ 11,396.79; that the notes in question were given by certain residents and property owners who considered themselves benefited by the highway, to provide a sum sufficient to complete the work over and above the amount allotted by the county; that the notes were delivered to one Ringsage, one of their number, to be kept until the contractors should be through with their work, at which time the notes, or the proceeds, were to be delivered to the contractors; that while the contractors were engaged in the work they kept a banking deposit in a bank at Nez Perce, Idaho, and that for convenience checks for labor and materials were from time to time cashed by respondent bank, cleared through its correspondent banks and paid by the bank at Nez Perce upon which the checks were drawn. That on the 5th day of February, 1915, the contractors presented a claim to the county for extra work in the sum of $ 2,700, which the board allowed; that the contractors arranged for the delivery of the warrant to their bank at Nez Perce and arranged a credit with that bank upon the security thereof. That on the same day the contractors explained the situation to respondent bank; that during the day checks to laborers and materialmen upon the bank at Nez Perce amounting to $ 2,082.18 were cashed by respondent and cleared as usual. That afterward respondent learned that on the 6th day of February, 1915, the county, through its board, had refused to issue the warrant or pay the claim of the contractors. That after respondent had cashed the checks, Ringsage, with the consent of the maker of the notes, delivered them to respondent to be collected, respondent to be reimbursed out of the proceeds. The answer contains other affirmative matter not material here.

It appears that a petition, signed by certain of the interested residents of the county residing in the vicinity of Peck, was presented to the board of county commissioners requesting that the Central Ridge grade be built by the county; the commissioners decided to build the road and called for bids on the 14th of April, 1914, the bids were opened and the bid of Fike & Mitchell accepted. At the meeting of the board, Ringsage was present with certain subscription lists which had theretofore been circulated among and signed by various residents and property holders, who agreed to pay certain sums to help in the construction of the proposed road; these lists were not delivered to the county but were retained by Ringsage, who was advised by the county attorney to take out for circulation...