114 Ga. 691 | Ga. | 1902
Samuel G. Graham brought an action of trover and bail against Ben. W. Smith, to recover $1,926.43, lawful money of the United States, consisting of described treasury notes, national bank notes, gold certificates, silver certificates, gold coins, silver coins, and “ pennies.” While the case was pending in court the plaintiff died, and, at the term at which the case was tried, L. M. Peacock, the administrator upon his estate, was made plaintiff in his stead. The defendant, in his original answer, denied “that plaintiff claims title to or is the owner of any money or property in the possession of defendant,” and denied “ that plaintiff has any right to recover the money for which this action is brought.” On the trial, upon the close of the evidence, the defendant amended his answer by alleging, that the plaintiff “in his lifetime gave and delivered to defendant the money sued for, with other money, aggregating altogether three thousand dollars or a little more, with instructions to afterwards give and deliver one thousand dollars of said money to Mrs. Elizabeth Mullis, daughter of said S. G. Graham, and seven hundred dollars to Duncan Graham, son of said S. G. Graham, and to keep the remainder of said money and invest the same for the benefit of the children of this defendant, great-' grandchildren of said S. G. Graham, and five hundred dollars of the money given defendant for his said children was in fact invested in land for one of defendant’s children in pursuance of said gift.” Plaintiff’s counsel then made a motion for the direction of a verdict in favor of the plaintiff. The court sustained this motion,
Most, if not all, of the exceptions to the rulings of the court upon the admission or the rejection of evidence are clearly without merit, and none of them, in the view which we take of the case, need be further considered; for we shall base our decision upon the assumption that the testimony of the defendant himself, in reference to the circumstances under which and the manner in which he obtained possession of the money in controversy, is absolutely true. The theory of the plaintiff was that something over $3,100, belonging to Samuel G. Graham, and which he had kept in a box under his bed, had been stolen and secreted by the defendant, and that the identical money described in the petition was a part of the money so stolen and secreted, 'which had been subsequently ascertained to be in his possession. The theory of the defendant was 'that this box with its contents, amounting to something over $3,087, was delivered to him by Samuel G. Graham, accompanied by the instructions in reference to the disposition of the money set up in the defendant’s amended plea. According to the defendant’s own testimony the money which was found to be in his possession was a portion of the money which he so received from Graham. He explained how he obtained possession of the box of money as follows: “I was pulling fodder there at Mr. Joe Graham’s, and they wanted to take the money and bring it and put it in the bank, and he [Samuel G. Graham] said that he had rather lose every cent of it than for them to go there and get it and put it in the bank, and he said that if John and Joe took it and carried it to the bank that it would never do anybody any good but them, and he was not going to give them a cent of it. He said that Duncan coirld get the place and get along very well, but said that Elizabeth was the only daughter he had, and she was not in as good circumstances as the rest, and he thought he would help her more than any of them. He told me to take this box and carry it to a good secret place, and as soon as I got a chance he wanted me to slip Duncan $700, and he wanted Elizabeth to have $1,000 of it; then he said the balance of
In Trustees of Howard College v. Pace, 15 Ga. 486, “The main question arose thus: Alfred H. Worthy gave to the Trustees of Howard College his promissory note'for $500. Mary Worthy, by parol, assumed to pay this note; the trustees brought an action of assumpsit, &c., against Davis Pace, alleging that Mary Worthy had deposited or paid money to said Pace, with which to pay this note. Counsel for Pace demurred to the declaration. The court sustained the demurrer, and this [was] assigned as error.” This court .sustained the judgment of the lower court, Benning, J., saying, in the opinion: “c Where money is paid by A into the hands of B, to remain at the disposal of C, the right to that money continues in A until B gives and C takes credit for it, or B actually pays it to C; up to this period, B is the agent of A only, and A may countermand the authority to make the payment; in the same manner as a person who sends another to pay money may stop him before he arrives at the place where it is to be paid, and require him to deliver it back.’ Pest, C. J. (Gibson vs. Minet, 9 Moore, 36. Turberville vs. Porter, Dyer 49 a. n. (10). Wheatley vs. Low, Cro. Jac 668). And if the amount transmitted be a mere voluntary gift or donation, founded upon no precedent consideration, debt, or duty, the authority may be revoked at any time before the money is actually paid over by the remittee. (Lyte vs. Perry, Dyer, 49, a. b. P. 7. Taylor vs. Lendey, 9 East, 54.) ” In the case here cited from Dyer (which should be Lyte v. Peny) it was held: “ If a man bail money to another, to the use of a third, and to be delivered on the day of marriage, he may countermand it any time before delivery over.” In the case cited from East it was held: “ One who had voluntarily offered to pay a sum of money for the use of the poor of the parish in order to avoid’ a prosecution by a magistrate upon a charge of having instigated the escape of a prisoner in custody for a misdemeanor; which offer was consented to by the magistrate, and the money accordingly paid by the party to the master
In Burke v. Steel, 40 Ga. 217, Steel, who was employed by Burke at a salary of $100 per' month, directed Burke to pay $25 per month of his salary to Kay, for the benefit of Kay and his wife and children, as a donation or gift from him to them. Burke retained the $25 per month from Steel’s salary, but failed to pay it to Kay, as directed. It was held that Steel might recover the money from him by suit in his own name. McCay, J., said: “ This case comes within the case of Howard College vs. Pace, 15 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 relation to the third person as that he can not draw back, Steel reasserts his own rights. It was a parol gift, without delivery, and revocable at Steel’s option.”
Judgment affirmed.