Williamson v. Johnson
| Decision Date | 21 July 1890 |
| Citation | 20 A. 279,62 Vt. 378 |
| Parties | CHARLES A. WILLIAMSON v. GUSTAVUS JOHNSON, ET AL |
| Court | Vermont Supreme Court |
FEBRUARY TERM, 1890
Action, general assumpsit. Plea, the general issue. Trial by court, at the May Term, 1889, VEAZEY, J., presiding. Judgment for the defendant. Exceptions by the plaintiff.
Judgment reversed and judgment for the plaintiff for both sums and interest from Nov. 30, 1878.
Hunton & Stickney, for the plaintiff.
It is a general rule of law that a gift by a competent party, made perfect by a delivery and acceptance, is irrevocable by the donor; that to constitute a gift inter vivos, the donor must deliver the property and part with all present and future dominion over it. It is a voluntary gratuitous transfer of personal property by one person to another. A true and proper gift or grant is always accompanied by delivery of possession, and takes effect immediately; as if A gives to B 100 pounds or a flock of sheep and puts him in possession of them directly, it is then a gift executed in the donee, and it is not in the donor's power to retract it, though he did it without any consideration or recompense, unless he were under a legal incapacity, as infancy, coverture, duress or the like, or if he were drawn in, circumvented or imposed upon by false pretenses, ebriety or surprise. 2 Black. Com 577.
In accordance with this rule it was held in Straufford v. Morgan, 39 La. Ann. 632 (2 So. 98), that a donation by a man to his intended wife, on the eve of their marriage, of a check on a banking firm was revocable at any time before actual collection by the donee; but after it had been presented and honored by placing the amount to her individual credit the donation was complete; that the locus penitentiae continued until the delivery was perfected. In the note to Drew v. Hagerty, 3 L.R.A. 230 (Me.), it is said that in order to render a gift of money by a grandmother to certain children and their father as their trustee effectual for any purpose it is not only necessary to show an intention to give, but also an actual delivery of the thing given; there must be a parting with the possession and all control over the property and a vesting of the possession in the donee or in a third person in trust for the donee.
A gift of personal property made with intent to take effect immediately and irrevocably and executed by complete and unconditional delivery, is binding upon the donor as a gift inter vivos. Love v. Francis, 6 Am. St. Rep. 290 and note. See also, in re Crawford, 5 L.R.A. 71 (113 N. Y.)
All the definitions come to this: That to constitute a valid gift it must be voluntary, gratuitous and absolute. Applying these tests to the facts relative to the gift of the $ 55, it is apparent that they fall short of showing a perfected gift of that money in the donee. The court below found the facts that the plaintiff let the defendant Caroline have both sums of money without any expectation that they would be refunded, which was certainly quite natural in the circumstances of the case; that both sums were intended as gifts and that no conditions were attached thereto. It is further found that the gifts were made in the expectation by both parties of marriage, and that they were given for specific purposes, the $ 275 for the purchase of the defendant's marriage wardrobe, and the $ 55 to defray her expenses in coming to this State to be married.
The court would have fully complied with the requirements of the act of 1888 if it had stated the facts in the case without denominating the transaction. That act requires that "in all cases hereafter tried in the County Court, where any question of fact shall be tried by the court instead of by a jury, and in which a jury trial might have been had by either party, before any bill of exceptions shall be allowed the facts found by the court, upon which judgment is rendered, shall be reduced to writing and signed by a majority of the members of the court and filed with the clerk." * * * If the plaintiff had given or sent these sums of money to the defendant without any direction or designation as to their use, as gratuities, they would have been perfected, irrevocable gifts upon delivery. In a general way they were gifts, but in a strict legal sense they were not gifts, though called so by the court, for the reason that they were made in expectation and under an arrangement that they were for specific purposes. The law is well settled that where money is delivered by one person to another for a particular purpose, to which the latter refuses to apply it, the depositor may recover it back in an action for money had and received. 2 Greenl. Ev. s. 119; DeBarnales v. Fuller, 14 East 590, note.
In a valuable note to Hassar v. Wallis, 1 Salk. 28, it is said: "If one man takes another's money to do a thing, and refuses to do it, it is a fraud; and it is at the election of the party injured either to affirm the agreement by bringing an action for the nonperformance of it, or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use."
In Berry v. Berry, 31 Iowa 415, a father gave to his son certain personal property upon the condition that he should keep sober and attend to his business. It was held that to entitle the donee to claim that the gift was irrevocable and invested him with a right to the property, it must be shown that he had complied with the...
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