Harrell v. . Tripp

Stacy, C. J., after stating the case: The validity of the trial is called in question by a number of exceptions and assignments of error, but consideration of them seriatim is omitted, as we deem it necessary to award a new trial for error in the following instruction on the issue of ownership, which forms the basis of one of the defendants’ exceptive assignments of error: “The court further charges the jury that if the jury shall find from the evidence that the plaintiff permitted Mr. Tripp to drive the car to his home, but that he did not either by words or by unequivocal conduct, authorize the father to deliver the said car to his daughters, and that *428 tbe said car was not immediately upon tbe surrender of tbe same to Mr. Tripp, placed in tbe possession of or control of tbe daughters, then tbe jury will answer tbe first issue, Yes.” Tbe vice of tbis instruction lies in tbe fact tbat it requires an undue immediacy of delivery on tbe part of Mr. Tripp to bis daughters, and further deprives tbe defendants of tbeir contention, based on tbe testimony of Estelle Tripp, tbat delivery of tbe car was made direct to tbe feme defendants by tbe plaintiff himself. Tbe position of the defendants tbat tbe instruction is unduly restrictive of tbeir evidence would seem to be well taken. Tbe decisions in this jurisdiction are to the effect that, to constitute a valid gift of personal property inter vivos, there must be an actual or constructive delivery of the thing given witb the present intent to pass the title to the donee. Handley v. Warren, 185 N. C., 95, 116 S. E., 168; Patton v. Heath, 190 N. C., 586, 130 S. E., 500; Thomas v. Houston, 181 N. C., 91, 106 S. E., 466. “To constitute a valid gift inter vivos there must be an intention to give and a delivery to the donee, or to some one for him, of the property given.” Harris Banking Co. v. Miller, 1 L. R. A. (N. S.), 790. See, also, Parker v. Mott, 181 N. C., 435, 107 S. E., 500 and cases there cited. It' would also seem that the form of the judgment as pointed out in Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466, should be “for the possession of the property, or for the recovery of the possession, or for the value thereof in case a delivery cannot be bad, and damages for the detention” (C. S., 610), plus costs, with the further provision that the plaintiff recover of the surety on the defendant’s replevy bond the full amount of such bond, to be discharged, first, upon the return of the property and the payment of the damages and costs recovered by the plaintiff; or, second, if a return of the property cannot be bad, upon the payment to the plaintiff of such sum as may be recovered against the defendant for the value of the property at the time of its wrongful taking and detention, with interest thereon as damages for such taking and detention, together with the costs of the action, the total recovery against the surety in no event to exceed the penalty of the bond. Polson v. Strickland, 193 N. C., 299, 136 S. E., 873. For the errors, as indicated, a new trial must be awarded; and it is so ordered. New trial.