Ebel v. Piehl

Carpenter, J. Defendant is plaintiff’s brother. In 1895 their father, who lived in Hanover, Canada, transferred to defendant property consisting of a house, two lots, notes, and cash, of the aggregate value of $1,500. According to plaintiff’s testimony, defendant, on his return, said he would pay her $400 at their father’s death. Subsequently the three — the father, the plaintiff, and defendant — had a conversation about the matter at plaintiff’s residence. At this time defendant asked his father: “What do you want me to give Kate [the plaintiff] when you are dead?” The father replied: “I told you you were to give her $400 at my death. That was understood. * * * I want you to give her writings.” The defendant thereupon said: “I didn’t think you told me, but I should have done it anyway. * * * That will be all right, father. I will see to that,” — and, turning to plaintiff, said in English (the former conversation having been in German): “I don’t see what you want to bother father about that money for. I am good for it; I am worth the money; and I told you I would pay it.” After the father’s death, defendant discharged a mortgage of $196 which he held against plaintiff’s property, and refused to pay the balance. Plaintiff brought this suit on the common counts in assumpsit, to recover the balance claimed to be her due. Defendant testified that neither he nor his father ever agreed that plaintiff should be paid as she claims. The case was submitted to the jury, who found for the plaintiff. Defendant contends that, on the case made by the plaintiff, a verdict should have been directed in his favor, and that the court erred in charging the jury as hereinafter stated. We think plaintiff made a case for the consideration of [66] the jqry. If it is true that, when the defendant made the promise testified to by plaintiff, he had already received the property under an agreement which imposed no other obligation upon him than to “furnish his father with money for his own personal use as long as he lived,” there was no consideration for defendant’s promise, and it could not, for that reason, be enforced. But, if the testimony of plaintiff is credited, defendant received the property upon a promise that, on his father’s death, $400 should be paid to plaintiff. This ci’eated a chose in action, — a chose in action which, it is true, belonged to the father. Though intended for plaintiff’s benefit, it could not be enforced by her. Pipp v. Reynolds, 20 Mich. 88. The father might, however, transfer it to her; and, if so transferred, she could, as his assignee, enforce it. In our judgment, a fair construction of the conversation which occurred between the parties to this suit and the father after the property was received by. defendant warrants, if it does not compel, the conclusion that the father did transfer to plaintiff this cause of action. This is not the case of a gift in futuro, and therefore is not subject to the law governing such gifts. Between the defendant and his father, it was an existing cause of action. Between the father and the plaintiff, it was a gift, — a gift of a promise to pay money in the future, of an existing cause of action; but the gift itself was a gift in prcesenti. When the defendant, who had promised to pay the money (a promise evidenced by no writing), at the request of the father, to whom the promise was made, agreed with the sister, for whose benefit the money was to be paid, that it should be paid to her, there was all the delivery possible under the circumstances, and a delivery sufficient to answer the requirements of law. See article on “Novation,” by Prof. J. B. Ames, 6 Harv. Law Rev., at page 189; M’Fadden v. Jenkyns, 1 Phillips, 153; Meert v. Moessard, 1 Moore & P. 8. It is true that the learned circuit judge, in charging the jury, treated the gift as a gift in futuro, and said that it was revocable by the father. This, we think, was error; but it was prejudicial to the plaintiff, and not to the defendant. [67] We think, however, the court erred in charging the jury as follows: “Was the property turned over to Dan with the express understanding between Dan and his father that, at the old man’s death, Dan should pay the plaintiff $400 ? * * * If you find that there was such an understanding as is claimed by the plaintiff, and old Mr. Piehl, until his death, continued of that mind,' — that is, the desire to provide and give $400 to Catherine at his death, — your verdict will be for $204 * * * and interest.” According to this charge, plaintiff is entitled to a verdict ■even if her father did not assign to her the cause of action against defendant. This, as we have already shown, was •error. The error in this part of the charge is not corrected •elsewhere. We cannot assume that this error was not prejudicial, for, if defendant’s.testimony was believed, the •assignment did not take place as plaintiff claimed. The defendant insists that the plaintiff could not recover for this cause of action under the common counts in assumpsit. The record fails to show that this objection was made in the trial court, either during the taking of testimony or afterwards. The only exception that appears to have been taken until after the jury was charged is to the refusal of the court ‘ ‘ to direct a verdict for the defendant of no cause of action.” For this reason, we must •decline to consider the objection in this court. For the error pointed out, the judgment of the court below will be reversed, and a new trial granted. The other Justices concurred.