Tyndale v. Randall

Holmes, J. This is an action to recover the proceeds or value of certain coupons received by the defendant from Dama, the plaintiff’s intestate, to collect. The real difference between the plaintiff and the defendant, in their argument before us, is in their interpretation of the defendant’s evidence. The defendant testified, in different forms, that Dama, after delivering the coupons to him, told him to remit the proceeds to Dama, who was just returning to San Francisco, but if Dama never came back, to keep them in part pay for services. The plaintiff treats this as language looking only to the future, as in Fearing v. Jones, 149 Mass. 12. But it was at least possible for the jury to find that Dama purported to transfer a present right to the defendant, and that the case stood as if Dama had delivered the coupons to the defendant at the moment of the conversation as his property, whether by way of gift or payment is not material, on the condition, however, that, if Dama was alive when the coupons fell due, then the proceeds should be remitted to him. If the jury found that to be what happened, the defendant got a good title to the coupons not due at Dama’s death. This is what we understand the instructions to the jury to mean. See Davis v. Ney, 125 Mass. 590; Stone v. Hackett, 12 Gray, 227. Exceptions overruled.