Bernard v. Fee's Estate

Grant, J. (after stating the facts). The case was left to the jury to determine whether the check was a loan by claimant to Mr. Fee, and they found that it was. The [432] check, standing by itself, imports a payment, and not a loan. Downey v. Andrus, 43 Mich. 65, 69 (4 N. W. 628), and authorities there cited. But it is urged that there were circumstances surrounding the transaction indicating that it was a loan, and that the testimony is sufficient to raise a question of fact for the determination of the jury. Here are two persons, each having books of account. After one is dead, a check is produced by the other to prove a loan by the living against the estate of the dead. No record is made upon the books of either party to the transaction. Neither party is shown to be an habitual borrower or lender. The testimony of Joseph Fee that he borrowed small amounts of money from his brother and his brother of him does not make the deceased such an habitual borrower of money as to lead to the presumption that he on one occasion borrowed money of the claimant. Probably there are few men who, in the course of a lifetime, do not occasionally borrow money, especially of a brother. Under the theory of the claimant, all that it is necessary to do in order to turn a check into a loan is to find somebody of whom the deceased during his lifetime borrowed some money. Such a doctrine finds no support either in reason or authority. None of the cases cited by the counsel support it. He cites Dougherty v. Deeney, 45 Iowa, 443. The suit in that case was brought by the administrator of Patrick Deeney against his son upon a promissory note executed.by the son. The payee of the note was Kerndt & Bro. Kerndt & Bro. had received the money on the note It was conceded that the money paid to Kerndt & Bro. was furnished by the father to the son. The son paid the money to Kerndt & Bro., took the note, and says he put it in his bureau drawer, without cancellation or any indorsement thereon to indicate payment. It was found among his father’s papers. The court held that, upon these facts, the jury might reasonably infer that the note had been bought by the deceased, and was not paid by his son. The case of Stimson v. Vroman, 99 N. Y. 74 (1 N. E. 147), is no stronger. [433] It is not customary for business persons of ample means, and who keep books, to allow transactions of this kind to rest in parol for more than five years. Claimant testified that she paid her debts sometimes in cash and sometimes by check. If, some day after banking hours, or on some holiday, or when it was not convenient to go to the bank, she wanted some money to pay debts, it would be a very natural proceeding for her to borrow money of Mr. Fee, or some other friend, to pay them, and afterwards give him a check in payment therefor; or to take a check to Mr. Fee, and obtain from him the money on it for the same purpose. In either case, obviously no record, of the transaction would be made, for none would be necessary. Such transactions are of daily occurrence. A memorandum slip may be made and put in the cash-till as cash, and when it is paid the slip torn up. The fact that Mr. Fee indorsed the check and drew the money on it is no evidence that it was a loan. He would do precisely the same thing if he received it in payment. The circumstances proven have no tendency to show that this was a loan and to rebut the presumption that it was a payment. Judgment reversed, and new trial ordered. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.