Williams v. Smith

• Decision Date: 11 June 1909
• Citation: 72 A. 1093,29 R.I. 562
• Parties: WILLIAMS v. SMITH.
• Court: Rhode Island Supreme Court

72 A. 1093

29 R.I. 562

WILLIAMS

v. SMITH.

Supreme Court of Rhode Island.

June 11, 1909.

[Copyrighted material omitted.]

Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge.

Action by Hope T. Williams, by James N. Smith, as guardian, prosecuted after her death by James N. Smith, as executor, against Clarence A. Smith. There was a verdict for plaintiff, and defendant brings exceptions. Overruled, and cause remitted, with directions to enter judgment on verdict.

See 71 Atl. 841.

James Harris and Irving Champlin, for plaintiff. Marquis D. L. Mowry and Louis L. Angell, for defendant.

DUBOIS, C. J. This is an action of assumpsit for money had and received, brought by the plaintiff, now deceased, who was the great-aunt of the defendant, for money received by him in May, 1902, when she was nearly 90 years of age and sick in bed in his house. The circumstances surrounding the transaction were as follows: At that time the plaintiff had on deposit in the Mechanics' Savings Bank $1,010.50, in the People's Savings Bank $1,219.42, and in the Providence Institution for Savings $585.80; and she was the owner of five shares of the capital stock of the National Exchange Bank. The defendant filled out orders payable to himself upon the three banks aforesaid and a power of attorney for the transfer of said stock to him, and the plaintiff signed the same. The defendant then withdrew the foregoing deposits from the banks and sold the stock for $540, receiving in all the sum of $3,355.72. The plaintiff, claiming that the defendant converted to his own use the money so received for her, brought this suit, wherein her declaration reads as follows:

"Hope T. Williams, of the city of Providence, in said county, who sues by James N. Smith, of said Providence, as guardian of her person and estate, complains of Clarence A. Smith, of the town of Johnston, in said county, whose property has been attached and who has been summoned by the sheriff in an action of the case: For that the defendant on, to wit, the 16th day of May, A. D. 1902, at said Johnston, to wit, at said Providence, was indebted to the plaintiff in the sunt of $3,370.72, for so much money by the defendant before that time had and received to and for the use and benefit of the plaintiff; and, being so indebted, the defendant, in consideration thereof, there afterwards, to wit, on the same day, at said Johnston, to wit, at said Providence, undertook and then and there promised the plaintiff, to pay her said sum of money upon request. And the plaintiff avers that said defendant, at said Johnston, on, to wit, the 16th day of May, A. D. 1902, with force and arms, did fraudulently embezzle and convert to his own use, and take and secrete with intent to fraudulently embezzle and appropriate to his own use, and with intent to cheat and defraud said plaintiff, said sum of $3,370.72, in lawful money of the United States, of the value of $3,370.72, the same being the property of said plaintiff, the said defendant then and there being the agent, clerk, and servant of said plaintiff, said sum of money then and there coming into his possession and under his care and charge by virtue of such employment, against the statute and the peace and dignity of the state; and that on the 2d day of January, A. D. 1907, a complaint, under oath, was made in Cranston, in said county, by James N. Smith, for said crime of embezzlement to a proper magistrate, namely, Henry A. Palmer, Esq., justice of the district court of the Eighth judicial district of Rhode Island, and thereupon, on the same day, a warrant for said crime was issued at said Cranston by said justice against said defendant. * * * And also for that the defendant, on the day of the date of the plaintiff's writ, at said Johnston, to wit, at said Providence, was indebted to the plaintiff in the further sum of, to wit, $2,000, for so much money at that time due and payable from the defendant to the plaintiff for interest upon, to wit, the sum of $3,370.72, before then had and received by the defendant to and for the use and benefit of the plaintiff, and by the plaintiff forborne to the defendant for divers long spaces of time before then elapsed, and for other money at that time then due and payable from the defendant to the plaintiff for interest thereon; and, being so indebted, the defendant, in consideration thereof, to wit, on the day last aforesaid, undertook and then and there promised the plaintiff, to pay her said sum of $2,000 on request. And the plaintiff avers that said defendant, at said Johnston, on, to wit, the 16th day of May, A. D. 1902, with force and arms, did fraudulently embezzle and convert to his own use, and take and secrete with intent to fraudulently embezzle and appropriate to his own use, and with intent to cheat and defraud said plaintiff, said sum of $3,370.72, in lawful money of the United States, of the value of $3,370.72, the same being the property of said plaintiff, the said defendant then and there being the agent, clerk, and servant of said plaintiff, said sum of money then and there coming into his possession and under his care and charge by virtue of such employment, and that on the 2d day of January, A. D. 1907, a complaint under oath was made in Cranston, in said county, by James N. Smith, for said crime of embezzlement to a proper magistrate, namely, Henry A. Palmer, Esq., justice of the district court of the Eighth judicial district of Rhode Island, and thereupon, on the same day, a warrant for said crime was issued at said Cranston by said justice against said defendant. Yet, although thereunto duly requested, the defendant has hitherto refused, and still refuses, to pay to the plaintiff said sum of money, or any part thereof."

To this declaration the defendant, who claims that he paid over to the plaintiff all the money received by him for her use, pleaded the general issue, non assumpsit, and upon the issue thus presented the case was tried in the superior court before a jury, who returned the following verdict, with special findings:

"The jury find that the defendant did promise in manner and form as the plaintiff has in her declaration thereof complained against him, and assess damages for the plaintiff in the sum of $4,578.36.

"And the jury further find specially that Hope T. Williams did sign the orders produced by or referred to in testimony of the representatives of the Mechanics' Savings Bank, the People's Savings Bank, and the Providence Institution for Savings, and the power of attorney for transfer of stock of the National Exchange Bank, which have been offered in evidence, or referred to in evidence, and did deliver the same to Clarence A. Smith.

"And the jury further find specially that, if the said Hope T. Williams did sign the three orders and the power of attorney referred to in the first issue, she did not at the time know and understand what said orders and power of attorney were at the time she signed them.

"And the jury further find specially that Clarence A. Smith, the defendant, did not pay over to Hope T. Williams the funds drawn by him from the Mechanics' Savings Bank, the People's Savings Bank, and the Providence Institution for Savings, and the money received from the sale of the stock of Hope T. Williams in the National Exchange Bank."

The questions submitted to the jury for special findings, with the answers thereon, are as follows:

"Special Findings.

"First. Did or not Hope T. Williams sign the order produced by or referred to in testimony of the representatives of the Mechanics' Savings Bank, the People's Savings Bank, and the Providence Institution for Savings, and the power of attorney for transfer of stock of the National Exchange Bank which have been offered in evidence, or referred to in evidence, and deliver the same to Clarence A. Smith? Yes.

"Second. If the said Hope T. Williams did sign the three orders and the power of attorney referred to in the first issue, did she or not at the time know and understand what said orders and power of attorney were at the time she signed them? No.

"Third. Did or not Clarence A. Smith, the defendant, pay over to Hope T. Williams the funds drawn by him from the Mechanics' Savings Bank, the People's Savings Bank, and the Providence Institution for Savings, and the money received from the sale of the stock of Hope T. Williams in the National Exchange Bank? No."

Each question was answered definitely by the jury, and the ambiguity apparent in the second special finding attached to the verdict evidently arose from a clerical misunderstanding. The same may well be considered as if it read as follows: "And the jury further find specially that said Hope T. Williams did not know and understand what said orders and power of attorney were at the time she signed them."

After the rendition of the foregoing verdict, and after the defendant's motion for a new trial had been denied by the justice of the superior court who presided at the trial, the case came before this court upon the defendant's bill of exceptions and the plaintiff's petition to establish the truth of the same, under Court and Practice Act 1905, § 494. The truth of the exceptions has been established in the first place by the correction of certain clerical errors contained in the defendant's motion to exclude from the consideration of the jury the deposition in perpetual memory of the plaintiff, which motion is contained in and forms a part of the bill of exceptions, and, secondly, by temporarily appending the said deposition, which was not transcribed by the court stenographer, although used at the trial of said case, but which had been duly recorded in the superior court under Court and Practice Act 1905, § 388, to the transcript of testimony, to be used as a part thereof during this consideration. The bill of exceptions, as allowed, corrected, and established, reads as follows:

"The defendant in the above-entitled case...