Brightman v. Buffington

Boring, J. This is an action on a promissory note in the sum of $3,200, made by the defendants’ intestate payable to his mother. The only defence set up was payment for all but $1,987, and the facts relied on in support of this defence were also made the subject of a declaration in set-off. In the declara [403] tian in set-off the defendants counted on twenty-three payments of $50 each, for which the defendants produced receipts signed by the mother. These receipts stated in terms or in substance that the money had been received and was to be charged to her account. In addition, the defendants produced receipts, signed by a nurse or nurses who took care of the mother, for $85, the balance of the sum declared on in set-off. The plaintiff’s answer to the declaration in set-off was that these sums were paid to the mother by way of a gift. The case is here on two requests for instructions to the jury which were refused. One was a request that there was no evidence warranting a finding that any of the payments stated in the declaration in set-off were intended by the son as a gift, and the other was a request that there was no evidence warranting a finding that any of the payments made after June 27,1899, that is, any but the first five, were intended by the son as a gift. It is not necessary to state the case at length, as we are of opinion that there is one piece of evidence which is decisive of both requests. After the son’s death, one of his administrators tendered the mother, who was then alive but who died before this action was begun, the balance due on the note now in suit, after deducting the sums set forth in the declaration in set-off. This was refused by her on the ground (so one of the defendants testified) that she understood that the money paid to her by the son who signed the note was a gift to her. The contention of the administrators of the son is that this evidence as to what the mother understood is not evidence of what the son intended ; that the fact that the mother understood that the payments were made by way of gift, does not warrant a finding that the son intended to make them as a gift, and that except for this statement the uncontradicted evidence showed that the intent of the son was to be paid for these advances; that this was known to the mother and could not be defeated by this subsequent statement, made after his death, as to her understanding. No objection was made to this evidence of what the mother understood and thereby it became evidence, (Damon v. Carrol, 163 Mass. 404, Boyle v. Columbian Fire Proofing Co. 182 Mass. 93, Allen v. Fuller, 182 Mass. 202,) although it was not com [404] petent. If an objection had been made, it could not have been admitted. But the difficulty with the defendants’ argument is that although the testimony of the defendant Buffington was that the mother at that time said that she understood it was a gift, Mrs. Grouard, who was also present, testified that the mother then said that the $1,235 was a present; that she thought she did not owe Frank anything; that she had settled with him. She also testified that a number of times after that the mother said she was not indebted to him at all. However improbable the fact that the son intended these payments to he made by way of gift when other evidence in the case is considered, this testimony gave the jury the right to believe that it was so. Exceptions overruled.