Hawk v. Maxler

Opinion by Mr. Justice Moschzisker, The plaintiff sued the defendant estate to recover on a promissory note payable to her order for two thousand dollars, dated May 9th, 1905, and executed by the decedent, C. W. Hawk. The trial occurred June 7, 1910. The note was offered in evidence and the signature of the maker proved. The defense then called the plaintiff for cross-examination. She testified that the maker was her son and that he gave her the note about two years before the date of the trial; that it was a gift to her; that there was nothing said between her and the donor as to when the note was to be [340] paid, but that she “understood” and “just supposed” that “after his death it was to be paid out of his estate.” The trial judge submitted the case to the jury and charged: “If you are satisfied from the evidence in this case, that C. W. Hawk executed and delivered this note to his mother with the intention of making her a gift of $2,000, then you will return a verdict in favor of the plaintiff for the sum of $2,000, with interest from November 9,1907. If you are not so satisfied or believe that the note was executed and delivered to her for some other purpose, and that she was not to collect it from him, then you will return a verdict for the defendant.” The verdict was for' the plaintiff. The defendant has appealed and assigns' the charge of the court for error. While this is a close case, we are not satisfied that error was committed in sending the issue to the jury or in the manner of its submission. The note itself was in the usual form; it was actually delivered to the plaintiff, and there was nothing in the testimony that required a finding that its payment was contingent upon the donor’s death. The plaintiff’s declaration is upon the note and sets forth a copy of the instrument, but the affidavit attached thereto contains a statement that the money was advanced and loaned to the decedent. The appellant now contends that, since the testimony showed a gift of the note, the allegata and probata fail to agree. The point of variance was not raised at trial, there was no plea of surprise, and there is no assignment of error properly bringing it before us; but we will say, since the allegation of a loan occurs in the affidavit attached to the statement of claim and does not constitute an essential averment in the declaration, that we are not impressed with appellant’s contention. The assignments of error are overruled and the judgment of the court below is affirmed.