Poucher v. . Scott

*424 Finch, J. The referee was able to find from the evidence, that the two checks payable to bearer, and the money they represented, were, on the fifth of June, the property of Childs, and on the next day were in the possession and apparent ownership of Scott. There was no evidence showing the manner or consideration of this change of ownership. No proof warrants a finding that they passed directly from Childs to Scott, and upon some consideration moving between them. The most that can be said is that such transfer, in view of the brief interval between the ownership of one and the possession of the other, the intimacy of the parties, and the ability of the one combined with the need of the other, was somewhat more probable than that the transfer was made through other business channels, while nothing in the evidence excludes the latter possibility. But if that difficulty is not insuperable, another at once arises. If the transfer was direct, it proves not a loan, but a payment, in the absence of other and modifying facts* We cannot presume a fraud or a felony, and if the transfer was direct we must deem it a voluntary delivery, and in payment or discharge of an existing liability rather than as a loan. (Koehler v. Adler, 78 N. Y. 290.) That proposition is not denied, but the argument here is that there were modifying facts which fairly tended to rebut the legal presumption. The answer of Scott, sworn to and served in his life-time, denied wholly the alleged loan or advance, and set up counter-claims for which judgment was asked. One of these was for medical services, stated in a bill of particulars furnished, and running back twenty years. Another was for board and lodging from December, 1874, to March of the next year. A third was for the payment of a note to one Alexander, one-half of which was the debt of Childs. And a fourth was a receipt by Childs of moneys upon a land contract, which moneys belonged to Scott. The argument is that these counter-claims indicate no other indebtedness of Childs. That they tend to the conclusion that there was no other unpaid or undischarged liability of Childs to Scott is quite true, but they fail utterly to show that there was not a debt of $2,000, which the checks discharged. So far as *425 the counter-claims pleaded go they indicate varied business relations and transactions between the two men, and advance us not a step toward the desired inference of no debt to which the checks could have been applied. On the whole case there was a clear failure of proof. There may have been adequate. cause of suspicion, but no loan was proved. We agree with the General Term that no error was committed in the rejection of evidence to which exceptions were taken. The judgment should be affirmed, with costs. All concur. Judgment affirmed.