Myers v. Malcom

Caton, C. J. The first item of set-off claimed in this case, is satisfactorily answered by the fact, that the intestate Malcom loaned the money to Albert to bear the expenses to Missouri, and for that money the note was given, upon which this action was brought. This circumstance conclusively shows, that it was the understanding of the parties, that Albert was to bear those expenses. As to. the items for board of Malcom and wife, and transporting his goods from Chester, the question was fairly put to the jury by the instructions of the court, whether those services were intended by Albert as a gratuity to his father-in-law or not, and they have found that they were so intended, and we think that finding warranted by the evidence. We do not deem it necessary to review the evidence in the case at length, which leads to this conclusion. The relationship between the parties prepares the mind at once to believe, that Albert was extending towards his step-parents, when taking care of them in their old age, a gratuitous and grateful hospitality, rather than keeping them for the mercenary consideration of dollars and cents. The declaration made by Malcom, while there, that he intended to give this note to Albert, shows that a sense of the relationship between them, and the kind attention and hospitality which he was enjoying from, his son-in-law and daughter, were present to Ms mind, and of itself rebuts the idea that he supposed he was there as a boarder. We may regret that the old gentleman died before he executed this intention, but that cannot alter the legal question presented. Such declared intention created no legal claim in Albert to have the note given up to him, and no defense against the note in the hands of the administrator. The judgment of the Circuit Court must be affirmed. Judgment affirmed.