Cоmplaint by William Bohne, hereinafter designated as appellee, to recover $103.60, alleged to have been paid through mistake To appellant Reasner, as administrator of the estate of Ellen C. Holtman. The complaint allеges that in September 1912, he signed a certain promissory note calling for $100, which was made payable to Elonore Nolting; that appellant, through his attorney, wrote a letter to appellee to the effect that he as administrator of said estate had certain notes given by appellee to Mrs. Holtman, one being for $100; that relying upon the statement of said letter he paid appellant the amount demanded on said $100 note, to wit, $103.60; that he never executed such note to Mrs. Holtman and was not indebted to said estate on said note, but that when he so paid said money to appellant he thought said note was payable to Mrs. Holtman and was ignorant of the fact that it was in fact made payable to Miss Nоlting; that Miss Nolting claimed that she was the owner of said note and demanded that appellee pay the amount due thereon to her; that appellee had demanded repayment of the sum so paid to appellant and a refusal of appellant to repay.
Miss Nolting was made a defendant to answer as to her interest in said note. She filed a cross-complaint alleging that she was the owner of said note and asking for possession of the same.
The cause was tried by the court and resulted in a judgment against the appellant in favor of appellee
Appellant contends that the décision of the court is not sustained by sufficient evidence.
The facts are in substance as follows: September 8, 1912, appellee bоrrowed $100 of Ellen C. Holtman, this loan was evidenced by a promissory note which at the request of Mrs. Holtman was made payable to Elonore Nolting, but which at the time of its execution was delivered to Mrs. Holtman, who died, and appellant Edward H. Reasner is administrator of her estate. The interest on said note was paid 1913,1914,1915 and 1916 to Mrs. Holtman. The indorsements showing such payments in 1913 and 1916 are in the handwriting of Mrs. Holtman while the indorsement for the years 1914 and 1915 are in the handwriting of Miss Nolting,. the payee named in the notе. This note was delivered to Mrs. Holtman at the time of its execution and so far as shown by the evidence remained in her possession until about three weeks before her death. About two months before her death she gave a bundle of papers not including the note in question to a stepson, telling him to take care of them until she wanted them again. About three weeks before her death and while she was sick and confined in hey bed, this stepson visited her. At this time she had some papers, including the nоte in question, under her pillow. Appellant Reasner was present at that time and in a conversation with Mrs. Holtman, who was his mother, said that if this stepson had any papers in his keeping he should have all of them. Mrs. Holtman then told her stepson to take the papers she had under her pillow, which he did. He took these papers, including the note in question, home
Later she complained to others about the treatment she had' received from the Nolting family, and statéd that she had given them all she was going to give them. After the death of her first husband and prior to her marriage to Mr. Holtman in 1900, she resided in the Nolting homе, she and the Nolting family being at that time intimate friends. She could not write any English and could read but little. Miss Nolting as a child had assisted her in many ways, such as going on errands, writing receipts for rent and taking the money for rent when Mrs. Holtman was not present, etc. Miss Nolting was twеnty-six years of age at the time of this trial in 1918. She was a sister to appellee’s wife, and, having died since the cause was tried, her administrator is named as one of the appellees. Miss Nolting was not present when the note in question was exeсuted, and there is no evidence that shp ever saw it or had possession of it during the lifetime of’Mrs. Holtman, other
In February 1917, the appellant as administrator, through his attorney, wrote a letter to Mr. Bohne stating the amount due on each of the three notes signed by the appellee. In April 1917, appellee went to the attorney’s office and told him that he wantеd to pay the $100 note. Appellee at the time thought that the note was payable^ to Mrs. Holtman. He then paid the sum due on the note, $103.60, to the attorney and received ■ the note. This payment was made by check $96.85 belonging to his wife, Maria Bohne, and $6.65 in cash.
After this payment was made, Elonore Nolting claimed that this $100 note belonged to her and informed appellee that she would like to have the money. Two days after making said payment appellee returned to the office of said attorney and demanded the return of the amount he had paid on the note.
Appellants insist that the evidence in this case wholly fails to show that the note in question was ever delivered to Miss Nolting. His contention being that in order to make a valid and effective gift inter vivos there must be an intention to transfer title, a delivery by the donor and an acceptance by the donee.
The appellee does not controvert the contention of appellant or the law applicable thereto, but contends that thе evidence shows a constructive delivery, and cites 8 Am. and Eng. Ency. of Law (1st ed.) 1323, to the proposition, that under some circumstances, where all of the requisites of a gift are present, the donor may by declaration or otherwise constitute himself trustee of the property for the benefit of the donee; and that, in
.In Williamson v. Yager (1891),
In Barnhouse v. Dewey (1910),
But the Supreme Court of this state, in Hatton v. Jones (1881),
As we view the evidence in this case it is not necessary for us to detеrmine whether a donor can make a delivery to himself as trustee for the donee, but we do hold that the evidence wholly fails to show such delivery. . -
If there was a gift of the note in question to Miss Nolting, When did it take place? Why did the donor keep it in her possession? Why did she collect and retain the interest on the same? Why did she deliver it to her stepson without any direction that he should deliver it to Miss Nolting? She had prior to the time given him other papers with the direction to keep them until' she called fоr them. When during her last illness her son called attention to the fact that the stepson had some of her papers and suggested that she turn all her papers over .to the stepson, she readily did so without further directions being given.
Judgment reversed, with direction to grant appellants a new trial and for further proceedings consistent with this opinion.