95 N.J.L. 51 | N.J. | 1920
The opinion of the court was delivered by
This action was instituted by the executors of William Dewitt Sterry to recover $9,200 which they claimed their testator had loaned to the defendant. The verdict was for defendant and plaintiffs were allowed a rule to show cause why it should not be set aside, and now move to have it made absolute.
The pertinent charge in the plaintiffs’ complaint, paragraph 3, is, that the testator “lent and advanced to said defendant, Aaron 0. Fitz-Gerald, cash amounting to $9,200, which was to be repaid- on demand with interest.” The defendant answered: “Defendant denies the allegations in paragraph 3 of said complaint, and avers that the said sum of $9,200 mentioned in the said paragraph was a gift made and executed by the said plaintiff to defendant.” The plaintiffs offered no direct proof of the loan but relied entirely on defendant’s answer, as above set out, as proof of the receipt of the money by him, and argues that the defendant having admitted the
This seems io be sound and logical, and, therefore, in the instant case, when plaintiffs relied alone on the statement in the defendant’s answer to prove the receipt of the money by the defendant, they must also accept it as proof that it was a gift, subject to the plaintiffs’ right to controvert its truth by evidence. In this situation, produced by plaintiffs’ proof, the burden of overcoming the proof by defendant’s pleading of a gift was on the plaintiffs, and that they did not undertake to do, but relied on defendant’s pleading that he received the money as a gift, which, in our opinion, is not proof of a loan. If, however, we should assume that defendant’s pleading should be limited to the admission of the receipt of the money, that alone would not authorise a. legal presumption that the money was in the hands of the defendant as money
There was testimony given by Mrs. Fitz-Gerald from, which it might he inferred that the money was given to defendant by way of check, and the defendant also offered to prove the making of a check by testator to defendant’s order for $9,-200 by proving the signature of the maker, but this was refused by the court on the objection of the plaintiffs., on the ground that such proof was a transaction with the deceased. "We doubt the legal correctness of this ruling, for it was nothing more than opinion evidence of the genuineness of the signature of the deceased, and can hardly be said to bo testimony relating to a transaction with the deceased, hut it is not material to determine this question, for plaintiffs admitted in their brief. “A few days later, on September 36th. 1918, defendant obtained Mr. Sperry’s check for $9,200.” Assuming that defendant received the money by way of a check, that is not, standing alone, prima facie evidence of a loan, for, under the rule laid down in the linn,ling cam, supra, the presumption would be that it was given for" the payment of a debt. The admission in the pleading that the money received by tire defendant was a gift to him rrot having been rebutted by the plaintiff by any proof to the contrary, or, assuming that it passed to the defendant by a, check, which is only piima facie proof of the payment of a debt, there was no evidence to sustain tire plaintiffs’ case and the jury could not do otherwise than find for tiro defendant.
The plaintiff urged that the court erred in refusing to direct for the plaintiff because (1) “defendant has not sustained the burden of proving tire allegation that tire check in question was a gift.” There are two answers to this. First, there was no cheek put in evidence, for while proof of it was offered by the defendant it was rejected by the court on plaintiff's motion; second, the burden was not on the defendant under tire circumstances shown in the ease to prove that the check was a gift. (2) “Defendant has not rebutted
The rule will be discharged.