Blair v. Blair

39 Md. 556 | Md. | 1874

Stewart, J.,

delivered the opinion of the Court.

There is not that precise and specific statement and embodiment of the testimony in the bills of exception, usual, but as the commission containing the deposition of the witness Culbertson, with the accompanying exhibits appears in the record ; and there is no averment that they are not the same referred to in the exception; we think there is a sufficient- identification of the evidence to support the exceptions.

It would be rather too technical a proceeding to refuse the review of the first, second, third, fourth, fifth and seventh exceplions, for the reasons assigned by the appellee’s counsel under such circumstances.

These exceptions, as also the letter, may be considered together, and we find no error in the rulings of the Circuit Court in regard thereto.

Exhibit B being a copy of the Constitution of the Insurance Company, of which John Blair, (as appears by Exhibit A referred to in the second exception,) was a member, was, with Exhibit A, admissible as part of the plaintiff’s testimony, to show that she, as the widow of said Blair, was entitled upon his death intestate, to a certain amount of money, according to the terms of the contract between him and the company. Exhibit E, being a letter from Nones, Secretary, addressed to Livingston, then Secretary, and Exhibit D, referred to in the seventh exception and fourth interrogatory to Culbertson, the witness, purporting to be the receipt for money, executed by the appellant, wore admissible to show in what way the money came to be paid to the appellant.

This testimony was explanatory of the transaction, and was not irrelevant, nor obnoxious to the rule of inter alios, and the appellant had no right to have it excluded.

The testimony objected to in the fourth exception, being part of the answer of Culbertson to the sixth interrogatory, (who, it appears was the Grand Secretary and Treasurer of the Conductors’ Lile Insurance Company, and the custodian of all the records and proceedings,) was admissible, to show there was no other contract with the Company except that furnished by Exhibit A. In the absence of any evidence to prove any other contract, this testimony was unnecessary; but we do not see in what way the appellant could be prejudiced thereby. There was no error in the ruling in this exception.

Exhibit Gc, referred to in the fifth exception purported to be the letter of the President of the Insurance Company, and was properly admitted, for the purpose of showing the measures taken to raise the money upon the death of John Blair.

It was incumbent on the plaintiff in this action, to show by any relevant testimony, the foundation and character of her claim to the money, accruing under the contract with her husband John Blair, and the Insurance Company.

It was necessary to prove the nature of the contract between these parties, showing that upon his death without will, she, as the widow, became entitled to the money. This was not within the rule of res inter alios acta, but indispensible to the establishment of her demand. The plaintiff was obliged further to show that the defendant received the money belonging of right to her. This letter, G-, is an acknowledgment of the Company that Blair was dead, and that the money must be raised for his family, in this case by the terms of the Association, where there was no will, for the benefit of his widow.

The plaintiff’s action is one for money had and received, and under it she was entitled to recover from the defendant any money belonging to her, obtained by him through mistake, misunderstanding, fraud or deceit, on his part; and if without her authority, or consent, he had received the money due to her, she could recover it in this form of action ; and the defendant under the general issue could rely upon any just ground of defence, with scarcely an exception, that would show that he was not ex aequo et bono bound to pay the money to the plaintiff. Murphey vs. Barron, 1 H. & G., 265; Kennedy vs. Insurance Co., 3 H. & J., 370.

If John Blair, the husband of the plaintiff, was, in his lifetime, a member of the Insurance Company, and the certificate affords any evidence of that fact, upon his death, intestate, his widow became entitled to $1 from each member ; and if the money was collected and paid over to the defendant, representing himself as the administrator of John Blair, when in fact he was not; or upon any other representation, he is bound in this action to pay it over to her, unless he can offer some valid defence, showing that in good conscience he is to be excused from doing so. This was proof of a circumstance going to establish the justice of her-claim, and there was no error in admitting the testimony objected to in the fifth exception.

(Decided 20th February, 1874.)

If the defendant had been allowed to introduce all the proof he tendered in the sixth and seventh exceptions, it would not have established a sufficient defence to the claim of the plaintiff, in the absence of further proof, to show that Nones was authorized by the Insurance Company to make the arrangement with the defendant, contained in the offer; and unless further followed up by showing that the amount mentioned in the receipt of the defendant was paid, by the individual members of the Company, for the purpose of being paid to the defendant under the alleged arrangement.

The Court committed no error in rejecting the proposed testimony, in these exceptions. The defendant’s prayer in the eighth exception, was too general, and properly refused. Hatton vs. McClish, 6 Md., 407; Casey vs. Suter, 36 Md., 1.

Judgment affirmed.