McNamara v. McDonald

69 Conn. 484 | Conn. | 1897

Baldwin, J.

The plaintiffs stated a sufficient cause of action in their first count. According to that, a depositor in a savings bank executed and delivered a written order, properly addressed to it, and of which it afterwards had due notice, for the transfer of the deposit on its books to the plaintiffs, subject to the right of one Bryan McDonald to draw from it so much, if any, as should be found necessary for his proper support; and delivered the deposit-book to him to be delivered to the plaintiffs at his death; the plaintiffs accepted the gift; he needed nothing and drew nothing for his support during his life, but did draw out $800, in order to defraud the plaintiffs, and gave it to the defendant, a party to the fraud; and after his death the defendant refused to return the money, to the plaintiffs on their demand, but has converted it to his own use.

The delivery of such an order, with the deposit-book, to one of the donees, who was to take a beneficial interest for his life, followed by due notice to the bank, upon the acceptance of the gift by the other donees would invest them immediately, and before any actual transfer upon the books of the bank, with the equitable title to the deposit, subject only to such drafts as might be made upon it for the proper support of the party having a life interest. If he fraudulently drew upon it for other purposes, gave the money to a confederate, and then died, the latter would be liable to account to the plaintiffs, and guilty of a conversion if he failed to return it to them on demand. The demurrer to this count should therefore have been overruled.

It is also assigned for error that, although several grounds of demurrer were specified, no memorandum was filed by the court stating upon which its decision was based. This omission was in violation of Public Acts of 1895, Chap. CLV, p. 523; but so trivial a defect of procedure, due probably to mere inadvertence, can constitute no cause of appeal. Atwater v. Morning News Co., 67 Conn. 504, 527. Application might have been made to this court,-if necessary, to enforce the statutory duty by the issue of appropriate process, in the exercise of its general appellate and superintending powers. Sikes v. Ranson, 6 Johns. 279; Ex parte Crane, 5 Peters, 189.

The parties went to trial upon a second count, which charged the defendant, Michael McDonald, with having drawn $800 of the plaintiffs’ money from the same bank, well knowing whose it was, through the aid of Bryan McDonald, who then had in his possession the plaintiffs’ bankbook. The bank-book and order, which were, at the time of the trial, in the defendant’s possession, were produced at the plaintiffs’ request, and they laid them in in evidence, together with a receipt given to the bank for the $800. The bankbook was the original one, in favor of Ann McDonald, by her maiden name of McCuen; but over her name the bank had entered “ Michael McDonald, executor of Bryan McDonald, administrator.” The order read as follows:—

“ To the Connecticut Savings Bank: Please transfer all the balance due me on Deposit Book No. 28356, being nine hundred dollars, with a year’s interest, nearly, to ‘Brian McDonald, to be drawn by him during life. After his death the remainder to be divided equally among Susan McNamara, Kate McGuinness, Ann McKeon, Ellen McKeon and Mary Callan.1

her

“Ann X McCuen.”

“ In the presence of marlc-

William S. Pardee.

New Haven, July 17th, 1894.”

The receipt was-signed by “Bryan McDonald, administrator,” and proof was also introduced that he had been appointed, a few months previously, administrator of the estate of Ann McDonald, who was his wife, and had filed a probate certificate of that fact with the bank. Evidence was offered that the order, upon its execution, was delivered, with the bank-book, to Bryan McDonald; but none that he did or said anything indicating that he received them, in any way, in the. plaintiffs’ behalf, or to show that the bank ever knew that any order-had been drawn, or was informed that the plaintiffs had or claimed any interest in the deposit, or to show that Bryan McDonald ever had any communication with them in respect to it.

Under these circumstances, the nonsuit was properly granted. The order not having been delivered to the bank, or brought to its knowledge before Mrs. McDonald’s death, was revoked by that event. So far as the evidence disclosed, the bank-book, though delivered to her husband, was not accepted or held by him in behalf of the plaintiffs, nor did they even know that it had been put in his possession. Their claim rested upon an inchoate gift which never became of effect, either in law or equity.

If they had been able to show that Bryan McDonald accepted the bank-book and the accompanying order in their behalf as well as his own, the order, while inoperative, as such, for want of -deliveiy or notice to the bank in her lifetime, might have been effectual to define the terms upon which he received the book, and to constitute a declaration of trust, by virtue of which her administrator might be bound to cause a transfer to be made upon the books of the bank, in conformity with its directions. Even in that case, however, the only trust with which the administrator would have been chargeable in favor of the plaintiffs, would have been to cause the transfer to be made on the books of the bank, in the manner indicated by the order, and thus to clothe himself individually with power to draw out any or all of the deposit at his pleasure, from time to time, during his life, for his own use. Such was the legal effect of the form of transfer directed, by Mrs. McDonald. She imposed no limitations whatever on his right to resort to the fund, except that it must be exercised by himself, and would not survive him. The plaintiffs were to be entitled merely to] what, if anything, he might choose to leave untouched.

It was not claimed by the appellants in their argument before this court that Mrs. McDonald ever had any other deposit in the Connecticut Savings Bank, or ever gave any other order upon it than that produced upon the trial in the Superior Court, and as to all the facts relevant to these, they were then fully heard. In view of the evidence on which they relied, it is plain that there could have been no recovery under the first count, had the demurrer been overruled. The order did not purport to limit Bryan McDonald’s right to draw from the deposit to such amount as might be found necessary for his proper support. Notice to the bank of the gift to the plaintiffs, and of the order by which it was to be accomplished, was never given. Bryan McDonald did not draw the $800 in his individual capacity, by virtue of the order but as the administrator of his wife’s estate. If it was part of that estate, the plaintiffs had no concern with it; if it has appeared that, in equity, it was not a part, because the legal title was held upon a trust sufficiently constituted and declared, the beneficial title to it, when withdrawn, would have become absolute in Bryan McDonald, for thus the trust would be substantially fulfilled.

The second count, as originally drawn, claimed the full amount left on deposit at the decease of Mrs. McDonald, but the bill of particulars limited the plaintiffs’ recovery to the $800 which was actually withdrawn. Their rights in remainder were therefore not in issue.

The real case made out by the plaintiffs at the trial was essentially different from the case alleged. A meaning was attributed to a written document which it cannot bear, and a cause of action made out by pleading as facts what had no existence. It may be assumed that the framing of such a fictitious complaint was due to misstatements made to counsel; nor is it necessary to suppose them made with knowledge of their falsity. It is decisive of the case that the complaint was one which, could not be supported by proof. The plaintiffs, therefore, were not injuriously affected by the erroneous ruling on the demurrer. The law was against them, and they could not have held a verdict under either count.

To avoid any seeming sanction of the duplication of counts in the complaint, it is proper to observe that the second was made to fulfill an office for which it was not adapted or designed. Under the Practice Act, the form known as “the common counts” can be used only as an entire complaint for the commencement of an action. It can never follow a special count. Practice Book, p. 12, Rule II, § 1; New York Breweries Corporation v. Baker, 68 Conn. 337, 342.

There is no error.

In this opinion the other judges concurred.