Burke v. Steel

40 Ga. 217 | Ga. | 1869

McCay, J.

We see no serious difficulty in the first point made in this record, to-wit, that turning upon the death of Mr. Kay, and the assumed necessity that his estate be represented. Under the evidence, this money was for the use of Kay and his'wife and children, they took it, or were to take it, as a class, and the death of one passes the right to the survivor. Doubtless, the real use was intended only for the wife and children, Kay being only included as the head and trustee of the others.

The substance of the original transaction was simply this, Steel, as a gift, donation, without consideration passing to him from anybody, directed this money to be paid by Burke to the Kays. Burke failed to pay it. It is insisted, that, under such circumstances, the right to sue Burke is in the donees and not in Steel. We think not. It will be noticed that there is no evidence of any promise made by Burke to the Kays, and that no consideration passed from the Kays to any one.

In all the cases referred to by the ingenious and industrious counsel who argued this question, for the plaintiff in error, we do not find one that has not one of these features : either, a consideration has passed from the beneficiaries to one of the other parties, or the promissor has made some promise to the beneficiary which binds him to pay the money that way.

This case comes within the case of Howard College vs. Pace, 15th Ga. R., 486. This was a direction of Steel to Burke to pay Steel’s money to a third person. Before Burke does it, or puts himself in such a relation to the third person, as that he cannot draw back, Steel reasserts his own rights. It was a parol gift, without delivery, and revocable at Steel’s option. This suit is in Steel’s name, the beneficiaries are surplusage in the declaration; at any rate, it is at Steel’s option whether they be there or not.

Nor is it necessary that Steel should make a demand, before suit. Burke has broken Ms promise, and is not entitled to any indulgence. When Burke failed to pay, as he undertook with Steel, a right of action arose in Steel, if he choose to exercise it.

As we find no error in law, we do not feel disposed to disturb the judgment of the Court, on the motion for a new trial. The jury have found for the plaintiff, and we do not think the verdict is without evidence to support it.

Judgment affirmed.