Young v. Anthony

Williams, J.: The judgment and order should be reversed, with- costs to the appellant to abide event. The action was brought to recover money alleged to have been loaned by plaintiff’s intestate to the defendant: The deceased died July 18, 1903, at the age of eighty-six years seven months. ' He left his wife and one daughter by a former marriage. The' defendant was his nephew. The money alleged to [613] have been loaned defendant was advanced May 15, 1903, upon a check directing the Trust and Deposit Company of Syracuse, FT. Y., to pay to the defendant or order $4,000, signed by deceased and indorsed by the payee to .0. F. Williams or order. This money was concededly used to pay Williams for the construction of a building for the Caughdenoy Creamery Company, of which the defendant was the president.- The questions of fact litigated were: 1. Whether this advance of ■ money constituted a loan to the defendant or .to the creamery company. 2. Whether at the time the advance was made or - thereafter, prior to the death of-deceased, the money of the indebtedness of the creamery company was given to the defendant.' There was, of course, difficulty on the part of the defendant in showing the real nature of the transactions between defendant and deceased by reason of the incompetency of the defendant as a witness to testify to what took place between them. . The check was turned over to Williams and he received the money thereon. As to the first question above suggested, Frank Wiley, the secretary of the creamery company, was a witness for the plaintiff on the trial, and testified, among other things, that defendant told him he could get the money of deceased to pay for the building; that he was willing to advance the money provided defendant would do the business for him. Wiley further testified that the creamery company ivas to give notes for the money advanced, and did give them to defendant. The notes were not , produced on the trial, and it did not appear whether they were, made payable to defendant or deceased. Wiley further testified as follows: “ I did understand that the loan was to be made to the Creamery Company, and that that was the only condition attached; that he, Anthony (defendant), should-^e permitted to do the business for the man who furnished the money; that is the way 1 understood it; that was practically the...conversa$'pn, * * * That is about the time that the money was paid, or shortly before that.” Rice, who worked deceased’s farm, was also a witness produced by the ‘ plaintiff, and he testified to a conversation between deceased and defendant about going to the city and getting the money to pay the creamery company indebtedness; that defendant said he would get a mortgage, and deceased said that would be good enough. Upon [614] this evidence, which was substantially all that bore upon this question, it would seem that the jury should have concluded that the original -transaction was a loan' of the money to the creamery company, the defendant to transact the business for deceased, and not a loan to defendant himself. ■ But they must have concluded that the loan- was to defendant and not the creamery company, because the court charged, in answer to requests of counsel, that there could be no recovery if the advance of the money by the deceased was a loan to the creamery company, and there could be no' recovery if the deceased Tcniew, when he advanced the money, that it was to'be turned over to .Williams to pay for the^construction of the building of the creamery company. The plaintiff had the burden of proof • as to this issue. There seems to be no doubt but deceased understood the money was to be furnished to pay for the construction of the creamery company’s building, and we fail to see how it was satisfactorily shown that the loan was not to the creamery, defendant to do the business for deceased, but. was a loan to defendant personally, he alone being liable to deceased. The form of the check would not aid much in determining the question, because it may well have been payable to defendant’s order, whether the loan was to the creamery company or to himself. The check having come into defendant’s hands, it was at once indorsed over to Williams to pay for the creamery company building, and Williams . received the money. The creamery company gave notes for the money, but to whose order payable does not appear. The plaintiff could have proved how this was, but did not see fit to do so.. If they had been payable to the order of deceased, that fact would have been quite important as bearing .upon the issue we are considering. If they had been given payable to the order of defendant, that fact would not necessarily show that, the. loan was to him and not to the creamery company,- because he may have taken them in that form though doing the business for the deceased and making the loan for him to the creamery company. Certainly, if aiiy force is to be given to the'testimony of the secretary of the creamery company as to defendant’s statements at or about the time the money was advanced, they would seem to show the loan was to the creamery company and not to the defendant personally. And it will be remembered this evidence as to the statements of [615] defendant was given by the plaintiff. -It would not have been competent as coming from the defendant. . It will not answer to charge the defendant with this $4,000 merely because he received the check and has not accounted for the money. If he was acting as agent for the deceased, and has not accounted for the notes received for his principal, he can be made to do so, but the case was not tried or submitted to the jury upon this theory, and this verdict cannotz be upheld upon suclra claim now. The court made the right to a verdict to depend on a finding that the loan was to the defendant and not to the creamery company. Upon this theory we regard the verdict as contrary to the evidence given on this trial. In view of these suggestions there is not much occasion for con-" sidering the second question suggested, whether there was a gift by deceased.to defendant. This question would only be important if the loan was made to the defendant. He might then attempt to defeat a recovery by claiming a gift. If, however, the loan was to the creamery company, n.o recovery could be had against the defendant whether there was a gift or not. If we are wrong in these suggestions, and the question as to whom the loan was originally made was for the jury, and the question of a gift was also for the jury,, then it must be said that the court erroneously excluded evidence offered by the defendant bearing upon these subjects. The offer was to show that for a number of years prior to the death of deceased, the defendant had assisted him from time to time; that he bad called upon him very fre- • quently at his home, and had done favors for him at his request. This evidence would tend to show that defendant would very likely do this business for deceased, and would thus tend to confirm defendant’s claim that the loan was not to him, but to the creamery company, defendant doing the business for deceased as his agent. It would also tend to confirm defendant’s. claim that there was a gift, he being the favored nephew of deceased, and one who had done deceased many favors, and thus entitled himself to consideration in the disposition of his property. Certainly, in view of what we have said, the motion for a new trial on account of newly-discovered evidence was entitled to serio.us consideration. There should be a new trial, and very likely the facts will be more fully developed, and the rights of the parties can then be [616] more satisfactorily determined, It is unnecessary to discuss the appeal from the order denying the motion for a new trial on the ground of newly-discovered , evidence. That order should be reversed. .McLennan, P. J., and Kruse, J., concurred in result on the ground of error in the exclusion of evidence, pointed out in the opinion; Spring and Bobson, JJ., dissented in an opinion by Spring, J.