254 Pa. 333 | Pa. | 1916
Opinion by
This is an action of replevin to recover possession of certain negotiable coupon bonds of the par value of $45,-000, being nine groups of .five thousand dollars each.. The Colonial Trust Company is a banking institution located at Reading, of which the defendant, John S. Thompson, was the active man in charge'as' secretary and'treasurer.
In March, 19.11, E. W.. Alexander, the deceased, rented
Then this suit was brought and plaintiffs filed a declaration claiming said bonds as the property of the estate, to which defendant filed an affidavit of defense de- • nying the taking of bonds, but stating inter alia, “The defendant admits that E. W. Alexander was, in his lifetime, possessed- of the bonds described in the declaration up to about October 8 or 9,1912, but the defendant denies that he, the said S. W. Alexander, was possessed of said bonds after about October 8 or 9,1912.”
The affidavit then avers an oral gift of said bonds by Alexander to defendant, accompanied by a delivery to him of possession of the same, giving the alleged reason therefor and details thereof.
At the trial, plaintiffs offered evidence tending to show, the ownership and possession of said bonds by Alexander, and that they were placed by him with his other securities in said box in the vault, and that he collected coupons thereon down to and including those maturing October 1, 1912. None of which matters was denied in; the said, affidavit or at the trial. Defendant practically offered np evidence, his own testimony being excluded-because of Alexander’s death, and that of a Mr. High,. called by him,, and by whom he offered to prove that some six months before his death the ..deceased said, “I must take care of John Thompson, he has taken care of me,” ,as
In disposing of defendant’s motion for a new trial, the court below says inter alia, “There being no evidence whatever to establish defendant’s allegation of title by gift to these bonds, and a prima facie case having been made out for the plaintiffs by the pleadings and our rules of court thereon, it was not necessary for plaintiffs to submit any oral evidence, and the case was in a position to require an affirmance of plaintiffs’ request for binding instructions.”
The affidavit of defense substantially admits the ownership and possession of these bonds in Alexander about six weeks prior to his death. The only title which defendant sets up is an alleged parol gift at that time, and, under the circumstances of this case, the burden was upon him to make proof thereof. The general rule is that possession is prima facie evidence of ownership of negotiable securities: Maxler v. Hawk, 233 Pa. 316.
But it is there held that (p. 322) “The defendant setting up a gift inter vivos as a defense, the burden was upon him to prove it. The burden of proof is on the one claiming to be the donee of property to establish all the facts essential to the validity of such gift: 20 Cyclopedia of Law & Proceedure, 1219.”
Where the alleged donee has had opportunities to obtain possession of the subject of the gift without title, the proof in support of the alleged claim ought to be clear and satisfactory upon every point essential to title by gift:, Scott v. Reed, et al., 153 Pa. 14.
The .law does not here raise the presumption of a gift, and there being no evidence to support it, the court should have directed a verdict for the plaintiffs. The proposed evidence of Mr. High had it been admitted would have fallen far short of establishing a gift of the bonds in suit.
The relation of bailor and bailee exists between a safe deposit company and its customers: Safe Deposit Company of Pittsburgh v. Pollock, 85 Pa. 391; Lockwood v. Manhattan Storage & Warehouse Co., 50 N. Y. Supp. 974; Nat. Safe Deposit Co. v. Stead, 250 Ill. 584; 95 N. E. Repr. 973.
And the relation is not changed by the fact that the
In our view of the case it is not necessary to pass upon the questions raised as to the admissibility of certain evidence, or as to who should have had the conclusion to the jury.
The judgment is affirmed.