Turner v. Utah Title Insurance & Trust Co.

• Decision Date: 04 June 1894
• Docket Number: 420
• Citation: 37 P. 91,10 Utah 61
• Parties: MARTHA TURNER, RESPONDENT, v. UTAH TITLE INSURANCE & TRUST COMPANY, DEFENDANT, FRANK KIMBALL, SPECIAL ADMINISTRATOR, INTERVENOR, APPELLANT. [1]
• Court: Utah Supreme Court

37 P. 91

10 Utah 61

MARTHA TURNER, RESPONDENT, v. UTAH TITLE INSURANCE & TRUST COMPANY, DEFENDANT,

FRANK KIMBALL, SPECIAL ADMINISTRATOR, INTERVENOR, APPELLANT. ^[1]

No. 420

Supreme Court of Utah

June 4, 1894

APPEAL from the district court of the third judicial district, Hon Chas. S. Zane, Judge.

Action by Martha Turner against the Utah Title Insurance & Trust Company to recover on certain certificates of deposit. Frank Kimball, special administrator of the estate of Minnie Barton, deceased, intervened, and from a judgment for plaintiff he appeals. Reversed.

The instrument on which this action was based and also the two cases following, is as follows:

"Know all Men by these Presents: That I, Minnie Barton, of Salt Lake City, Utah, for and in consideration of the sum of one thousand dollars, gold coin, to me in hand paid by Martha Turner, of Chicago, Illinois, the receipt whereof is hereby acknowledged, have sold, assigned and set over and by these presents, do sell, assign, transfer and set over unto said Martha Turner, all my right, title and interest of, in and to the following described personal property, to-wit:

"All the furniture, hangings, trimmings, carpets, pictures and frames, fixtures and utensils of every sort whatever, situate and being in, at No. 243 South Main street, in said City of Salt Lake, in the rear of South Main street, and opposite the Walker House; also the piano, groceries, provisions, wines liquors, being in said houses, also all the jewelry I possess, consisting of a watch, chain, rings, earrings brooch, star-shaped pendant, bracelets, wearing apparel, two seal-skin sacques.

"Also all moneys I have on deposit at the following named banks in Salt Lake City, Utah, and all accounts with said banks to-wit: Union National bank of Salt Lake City, Wells, Fargo & Co.'s bank and the Utah Title Insurance & Trust Company. Also that certain leasehold interest to the property heretofore described as No. 243 South Main street. Also that certain insurance policy covering the within described property. To have and to hold.

"In witness whereof, I have hereunto set my hand and seal this 20th day of February, 1892.

[SEAL] MINNIE her x mark BARTON."

This action, with the two following, being based upon the above instrument, and involving the same questions, were tried together in the lower court, though not consolidated. The evidence was the same in each case. The same findings of facts and conclusions of law were made, but the judgments differed in amounts. The three cases were argued together in the supreme court upon one record, the briefs being the same in each.

Reversed and remanded.

Mr. E. W. Tatlock and Mr. W. C. Hall, for appellant.

In addition to the authorities cited in the opinion, appellant relied upon the following: First--On the question of the consideration stated in the contract. Schermerhorn v. Vanderheyden, 1 Johns. 139; Emery v. Chase, 5 Greenl. 232; Howes v. Barker, 3 Johns. 506; Cutler v. Reynolds, 8 B. Mon. 596; Mitchell v. Williamson, 6 Md. 210; Maigley v. Hauer, 7 Johns. 341; Winchell v. Latham, 6 Cowen, 690; Golpeck v. Blake, 19 Ia. 267; 2 Pom. Eq. Jur. 434, notes. Second--On account of the physical and mental condition of Minnie Barton, was there really any contract between her and the plaintiff? Howell v. McCrie, 36 Kan. 644; Marsh v. Tyrrell, 2 Flag. 122; Delafield v. Parish, 25 N.Y. 23; Tyler v. Gardiner, 35 N.Y. 595; Boyd v. Boyd, 16 E. P. Smith, 283, 295; Case v. Case, 26 Mich. 484; Brady's Appeal, 16 E. P. Smith, 277, 14 Ves. 299; Newhouse v. Gardiner, 17 Barb. 236; Harvey v. Sullens, 46 Mo. 147; Lake v. Ramsey, 33 Barb. 49; Picket v. Loggan, 14 Ves. 214; Parsell v. Macnamara, 14 Ves. 91; Dunn v. Chambers, 4 Barb. 376; 1 W. & T.'s Leading Cases in Equity, 825; Butler v. Hasket, 4 Dess. 625; Phillipson v. Kerry, 32 Beavan, 628; Russell's Appeal, 25 E. P. Smith, 269; Canant v. Jackson, 16 Ves. 335; Todd v. Grove, 33 Mar. 183; Muller v. Buyck, 12 Mon. 354; Howell v. Ransom, 11 Barb. 546; 2 Pom. Eq. Jur. §§ 926-7, 947, 951-5. Third--There are no findings of fact to support the conclusion of law that there was a valuable consideration for the assignment. Masters v. Lash, 61 Cal. 623. Fourth--The court erred in giving judgment against the intervenor for interest; the funds being in the custody of the court by consent of parties awaiting final action, neither party can recover interest against the other. Session Laws 1890, ch. 23; Washington v. Harmon, 147 U.S. 584. Fifth--The court erred in entering judgment for costs against the intervenor. 2 Comp. Laws 1888, § 3693.

Mr. Samuel McDowall, for respondent.

Cited First--On signatures by mark and delivery of instrument. Harris v. Harris, 59 Cal. 620; 2 Comp. Laws 1888, § 4371, subd. 8; 2 Wharton on Ev. (2 ed.) § 889; Basket v. Hassell, 107 U.S. 602; Rothrock v. Rothrock, 30 P. 453. Second--Undue influence. Any degree of influence over another acquired by kindness and attention never constitutes undue influence within the meaning of the law. 1 Redfield on Wills, 522; In re Carrol's Will, 50 Wis. 437 (7 N.W. R. 434); Sack. Inst. to Jur. 603; Conley v. Nailor, 118 U.S. 127; Woernor on Adm. § 31. Mere advice or persuasion is not undue influence. Webster v. Sullivan, 58 Ia. 260 (12 N.W. R. 319). Undue influence means influence destroying free agency. Woernor, supra; Barnes v. Barnes, 66 Me. 285; Mitchell v. Mitchell, 44 N.W. R. 85; Goodwin v. Goodwin, 59 Cal. 561; 1 Jar. Wills, Perkins' notes, 41; 2 Pom. Eq Jur. § 943; Baldwin v. Dunton, 40 Ill. 188; Sackett's Ins. Jur. 146. Third-- Fraud is never presumed but must be affirmatively proven. Schroeder v. Walsh, 120 Ill. 410; Sackett, 232; Woernor on Adm. 116; Vandor v. Roach, 15 P. 354. Fourth--The testimony introduced to prove a different consideration from that stated in the assignment was competent. Peck v. Vandenberg, 30 Cal. 57; Bennett v. Solomon, 6 Cal. 135; McCrea v. Purmont, 16 Wend. 460; Ballard v. Briggs, 7 Pick. 537; Hinds v. Langsmith, 11 Wheat. 199; Coles v. Soulsby, 21 Cal. 50; Flecheiner v. Trounstine, 24 P. 883; Pique v. Arendale, 71 Ala. 91; Brown v. Sumner, 91 Ind. 151; Goodspeed v. Fuller, 46 Me. 147; Saunderson v. Broadwell, 23 P. 36; Stone v. Pennock, 31 Mo.App. 544; Clark's App. 57 Conn. 565; Hall v. Smith, 8 How Pr. 281; Gary v. Aid Assn., 53 N.W. R. 1086; Barnett v. Ellis, 52 N.W. R. 368. Fifth--Prior declarations. The evidence regarding prior declarations of deceased was competent. Wharton on Evidence (2 ed), § 1011-1012; Coulam v. Doull, 4 Utah, 276; Potter v. Baldwin, 133 Mass. 427: Woernor on Adm's. 490. Where a case is tried by the court without a jury, and there is sufficient competent evidence to justify the findings and judgment, the case will not be reversed on account of the admission of incompetent testimony. Victoria Copper Mining Co. v. Haws, 7 Utah, 515. Sixth--The court did not err in failing to find that there was valuable consideration for the assignment. The finding, if made, would have been adverse to appellant. Hutchings v. Castle, 48 Cal. 156; Schroeder v. Johns, 27 Cal, 282; McCourtney v. Fortune, 57 Cal. 617. This fact is found among the conclusions of law and is a good finding of fact. Hayne on New Trial, § 242; DeMartin v. DeMartin, 24 P. 595; Monterey County v. Cushing, 23 P. 700; Stephenson's Adms. v. King, 81 Ky. 433. Seventh--The assignment is a good bill of sale and the delivery of the personal property was complete. Benj. on Sales, 651, 657, 659; Philbrook v. Eaton, 134 Mass. 400; Ridden v. Thrall, 125 N.Y. 572; Stephenson's Adms. v. King, supra; Kingham v. Perkins, 105 Mass. 111; Pierce v. Bank, 129 Mass. 425; Taft v. Bowker, 132 Mass. 277. Eighth--The delivery of the property to plaintiff under the circumstances was good as donatio mortis causa. Stephenson's Adms. v. King, supra; Ellis v. Secor, 31 Mich. 185; McCarty v. Kernan, 81 Ill. 291; Basket v. Hassell, 107 U.S. 614; Crook v. Bank, 52 N.W. R. 1138; Thornton on Gifts, 227, 473. In re Mondorf's Will, 256, 18 N. E. R.; 2 Woernor on Adms. 1144-47.

MERRITT, C. J. MINER and SMITH, JJ., concur. BARTCH, J., concurs in the conclusion reached.

OPINION

MERRITT, C. J.:

This action was brought by Martha Turner, respondent, to recover from defendant the sum of $ 2,500 upon three certificates of deposit issued by defendant to Minnie Barton, bearing date September 9, 1891,--two for $ 1,000 each, the other for $ 500, all bearing interest from date at 5 per cent. per annum and payable to the order of said Barton six months after date; also another certificate of deposit between the same parties for $ 500, dated October 19, 1891, with like interest, payable three months from date; also another certificate of deposit between the same parties for $ 1,000, dated November 16, 1891, with like interest, payable six months after date; and also for a balance of $ 36.67, upon deposit with defendant to the credit of said Barton. The respondent bases her right of recovery upon an assignment which she claims was made to her by Minnie Barton, February 20, 1892. The consideration expressed in the assignment is $ 1,000, United States gold coin, in hand paid by Martha Turner to Minnie Barton, for which it is stated in the assignment, and claimed by the respondent, Minnie Barton sold, assigned, and transferred to respondent, not only the said certificates of deposit, and deposit of credit, but $ 2,500 cash on deposit with the Union National Bank, and $ 3,350 on deposit with Wells, Fargo & Co to the credit of said Barton, and also all her household goods, etc., which were afterwards sold by respondent for $ 2,500. The defendant answered the plaintiff's and intervenor's complaints, and by cross complaint set up the adverse claims of plaintiff and intervenor, to the subject-matter of this action, and upon...