Morrow v. Frankish

Boyce, J., charging the jury: Gentlemen of the jury:—This is an action in assumpsit, brought by Joseph W. Morrow, administrator of Joseph Morrow, deceased, against Albert Frankish, executor of Beatrice A. Frankish, deceased, to recover the sum of two thousand dollars, alleged to have been loaned by Morrow, the deceased, to Mrs. Frankish, on the twenty-sixth day of April, A. D. 1910, a short time before his death. Mrs. Frankish has likewise since died. [1] If the plaintiff is entitled to recover all or any part of the claim sued for, you may allow interest on such sum from the twenty-sixth day of April, A. D. 1910. [536] It is conceded that Mrs. Frankish received the proceeds of the check in evidence, drawn for two thousand dollars. This fact is, therefore, established. The plaintiff claims that the proceeds of the check were loaned to Mrs. Frankish, and that the loan has not been paid. The defendant claims (1) that the check was given by Morrow, the deceased, to Mrs. Frankish, in payment of services rendered, the nature and character of which you have heard; (2) that if the check was not given in payment of the alleged services, the defendant is entitled to set off against plaintiff’s claim the reasonable worth or value of such services. [2] The check in evidence is not in itself prima facie evidence of a loan from Morrow, the deceased, to Mrs. Frankish. Whether the check was, in fact, given to Mrs. Frankish as and for a loan of the amount for which it was made, you must determine from all the evidence. If you find that the check was passed between the parties as a loan, then the plaintiff’s right of recovery, subject to any right of set-off which the defendant has, is established. So that the first thing for you to determine is whether the check was delivered as a loan. If you should find that it was not so delivered, but in payment for past personal services, you need not proceed further, except to return a verdict for the defendant. If, however, you should find that the check was delivered as a loan, then you should determine whether or not Morrow at the time of his death had paid Mrs. Frankish in full for the personal services claimed to have been rendered. If Morrow had, from time to time, fully paid for such services, then you should not give consideration to any claim of set-off, but return a verdict for the full amount of plaintiff’s claim. [3] In the absence of testimony to the contrary, the payment of a fixed sum of money by Morrow, from month to month, to Mrs. Frankish during the period he lived with her, creates a presumption that such payments were in full of all liability to the time of each payment. Of course,1 this presumption may be rebutted by evidence. Whether there is evidence before you to overcome such a presumption, we leave you to determine from all the evidence in the case. [537] [4] If you find that the evidence does rebut the presumption of payment as we have stated, then you should determine from the evidence what the unpaid services, if any, are reasonably worth, and this sum, whatever it may be, if any amount, the defendant is entitled to have set off against the claim of the plaintiff. Briefly, when you retire to your room for deliberation, you should first determine whether the check was delivered as a loan, and if you find it was, then you should determine whether Morrow, from time to time at regular intervals, or otherwise, paid Mrs. Frankish all he owed her. If so, your verdict should be for the plaintiff for the full amount of his claim. If you find the loan was made, but Morrow did not pay Mrs. Frankish in full, then whatever balance there is reasonably owing to her estate should be allowed, and your verdict should be determined accordingly. If you should find that the check was not delivered as a loan but in payment, or as a gift, for care and attention, your verdict should be for the defendant. Verdict for defendant.