Scott v. Bradford Nat. Bank

Decision Date07 May 1935
Citation179 A. 149
PartiesSCOTT v. BRADFORD NAT. BANK.
CourtVermont Supreme Court

[Copyrighted material omitted.]

Exceptions from Orange County Court; Walter H. Cleary, Judge.

Action by H. William Scott, administrator de bonis non of Laura B. Dickey, against the Bradford National Bank. Judgment for plaintiff, and defendant brings exceptions.

Judgment reversed and cause remanded, with directions.

Argued before POWERS, C. J., MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Superior Judge.

H. William Scott and Finn & Monti, all of Barre, for plaintiff.

Hugh W. Hastings, of Bradford, and Shields & Conant, of St. Johnsbury, for defendant.

POWERS, Chief Justice.

The plaintiff, as administrator de bonis non of Laura B. Dickey, brings this action to recover the amount of a deposit which the intestate once had in the defendant bank. The answer set up a general denial, payment, and estoppel. The trial below was by jury, and at the close of the evidence both parties moved for a verdict. The defendant's motion was overruled and the plaintiff's granted. Judgment was rendered accordingly, and the defendant excepted.

We agree with the defendant that the fact that both parties moved for a verdict did not alone warrant a directed verdict one way or the other. By claiming that the evidence was all its way, the defendant did not waive the right to claim that, at least, some of it was. Fitzsimons v. Richardson, Twigg & Company, 86 Vt. 229, 233, 84 A. 811; Seaver et al. v. Lang, 92 Vt. 501, 510, 104 A. 877; Mason v. Sault, 93 Vt. 412, 414, 108 A. 267, 18 A. L. R. 1426; Brattleboro v. Carpenter, 104 Vt. 158, 164, 158 A. 73. Unless it affirmatively appears that neither party wishes to go to the jury, either may do so, if there is a conflict of evidence on material facts in the case. So if any such facts are left in question by the record, the defendant's exception is well taken.

We also agree with the defendant that all the evidence received at the trial is for consideration here, though some of it was admitted upon the unperformed promise of the defendant to provide a foundation for its admission by giving evidence that O.P. Dickey was the agent of Laura B. Dickey in withdrawing the deposit in the defendant bank as hereinafter stated. The exigencies of a trial often require an exercise of the court's discretion over the order of evidence by allowing a fact, relevant only through its connection with other pertinent facts, to be admitted upon the assurance of counsel that such other facts will later be supplied. This practice is everywhere approved, though it sometimes results unsatisfactorily. But if the basis for its admission is not supplied and the objecting party considers it of sufficient importance to be prejudicial and wants it expunged from the record, he should move to have it stricken out. Otherwise, it stands for consideration. It is quite generally so held. Wright v. Woodward, 79 N. H. 474, 111 A. 494, 495; Stevens v. Chariton, 184 Iowa, 59, 168 N. W. 310, 312; Pittsburgh, etc., Ry. Co. v. Retz, 71 Ind. App. 581, 125 N. E. 424, 425; Phillips v. Haugaard, 135 Md. 427, 109 A. 95, 97; Burkett et al. v. Van Tine, 277 Pa. 567, 121 A. 498, 499; Fullerton Lumber Co. v. Hosford, 45 S. D. 1, 184 N. W. 975; Putnam v. Harris, 193 Mass. 58, 78 N. E. 747, 748; Hemmingway v. Cozzolino, 117 Conn. 689, 169 A. 621; Brady v. Finn, 162 Mass. 260, 38 N. E. 506. The practical importance of this rule is apparent. A trial judge should not be required to carry in his mind all the details of the evidence. Nor can this court reasonably be expected to search the transcript to determine what should be rejected. Counsel, who are familiar with the facts and the proof, should take this responsibility.

It does not necessarily follow, however, that the plaintiff has been seriously prejudiced by his omission. The question of Dickey's agency and the proof thereof remains for consideration if found to be important in the disposition of the case.

It appears from the evidence that Laura B. Dickey, the intestate, who was the first wife of O. P. Dickey, had a deposit in the defendant bank, which on April 23, 1917, amounted to $730.69. Mrs. Dickey was then ill, and died about a month later. On the day named, the deposit was paid over to Dickey, and he gave the defendant a receipt therefor which he signed, "Laura B. Dickey, by O. P. Dickey." No other withdrawal of the deposit was ever made. Dickey was later appointed administrator of his wife's estate, and rendered his final account to the probate court. This account omitted any reference to this bank deposit or its avails, and showed a balance for distribution of $2,620.95. This was balanced by a credit thereon of that amount as paid to "O. P. Dickey, husband and only heir"; the quoted words being written by the judge of probate, but no formal decree was ever made thereon. It turned out, so it is claimed, that Mrs. Dickey left a surviving brother, Albert Butterfield, an inmate of a Soldier's Home in Maine. Dickey finally resigned as administrator, and in due time the plaintiff was appointed administrator d. b. n.

When, at the trial, the plaintiff had shown that Mrs. Dickey had this deposit in the defendant bank, it devolved on the latter to show its valid withdrawal. It then assumed the burden of establishing its plea of payment, which is an affirmative defense with the burden of proof on him who alleges it. Rutland, etc., Co. v. Williams, 90 Vt. 276, 278, 98 A. 85. The defendant attempted to satisfy this burden by proving a payment to Dickey as agent for the depositor. Agency is a question of fact, and the defendant carried the burden of proof on the issue. Camp v. Barber, 87 Vt. 235, 240, 88 A. 812, Ann. Cas. 1917A, 451. The fact that one assumes to act for another is not enough to establish an agency. Livingston Co. v. Rizzi Bros., 86 Vt. 419, 423, 85 A. 912; Gomez & Co. v. Hartwell, 97 Vt. 147, 153, 122 A. 461; Conn Boston Co. v. Griswold, 104 Vt. 89, 97, 157 A. 57. Indeed, standing alone, it is not admissible as evidence of agency. Nor does the fact that the bank was dealing with the husband of the depositor affect the situation. The law indulges no presumption that a husband acts for his wife by her authority, and the fact of their coverture does not, of itself, warrant an inference of such authority, though it is a circumstance entitled to consideration in connection with other circumstances tending to show an agency. Chadwick v. Wiggin, 95 Vt. 515, 517, 116 A. 74.

It is agreed that upon a distribution of Mrs. Dickey's estate, Dickey would be entitled to all of it if she left no other heirs; and that, in case she left a brother, Dickey would be entitled to $2,500 and one-half of the remainder. The evidence disclosed that Dickey received all of the deposit and $120.95 in excess of the $2,500 which the law gave him. So that, at most, the amount required to satisfy the brother's interest in Mrs. Dickey's estate would be one-half of $120.95, plus one-half of $730.69, omitting reference to interest and costs. It is perfectly apparent, therefore, that the recovery below, which was for $1,400, if sustained here, would result in an unjust enrichment of the estate of O. P. Dickey at the expense of the defendant, to the amount of $700 or more, unless there is some unexplained way that the latter sum could be decreed back to the defendant. On the plainest principles of right and justice, such a result should be averted, if possible.

The defendant seeks to avoid this result by a reversal of the judgment on the ground that the plaintiff is in the wrong court. Its position is that no suit in the common-law courts can be maintained until the probate court has been resorted to. That the jurisdiction of that court over the matters here involved has not been exhausted is plain enough. In re Fisher's Estate, 104 Vt. 37, 156 A. 878. That it is adequate in all respects, except that it cannot issue final process, is equally plain. If and when that court has found that funds for a brother's share must be supplied, and the amount required is there determined, the aid of the common-law courts can be invoked to obtain the money. Boyden v. Ward, 38 Vt. 628, 638.

An administrator de bonis non, as his official designation implies, is an officer of limited authority. His title and jurisdiction extend to and over unadministered assets only. When these exist in specie, he may sue for and recover them from whomsoever wrongfully withholds them. If Dickey drew this deposit without authority, and held it separate and apart from his own money until this administrator was appointed, the latter could, if needed for administration, sue for it. But if, prior to Mrs. Dickey's death, Dickey had converted the money to his own use, it had lost its identity, had ceased to be an asset, and this administrator could not recover it. Yancy's Adm'r v. Yancy (Farmers' Bank & Trust Co. v. Fidelity & Deposit Co.), 183 Ky. 512, 209 S. W. 858, 3 A. L. R. 1249, 1251, and note. When, after such conversion, Dickey was appointed administrator of his wife's estate,...

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