Trow v. Shannon

8 Daly 239 | New York Court of Common Pleas | 1879

Van Hoesen, J.

The plaintiff was bound to show, among other things, that Mrs. Lohman actually intended to make- a gift that would take effect immediately, and that she carried that intention into effect by delivering to him the bonds, either at that time or afterwards. If the jury were authorized to draw from the evidence the conclusion that such an intention existed, and that such a delivery was made, we ought not to set aside the verdict, though we should have come to a different conclusion upon the same evidence. We must be able to say that the verdict is without evidence to support it, or that it is so contrary to the evidence as to show passion, prejudice, or corruption. (See Westerlo v. Da Witt, 36 N. Y. 345.) If the only evidence of an intention to make an immediate gift, or if the only evidence of a delivery was the narration by Trow of the conversation which he had with Mrs. Lohman in January, 1870, when she exhibited the bonds, I should doubt if there was evidence sufficient to sustain the verdict. But we have in addition proof that Trow was allowed to collect the coupons on the bonds for several years, and that Mrs. Lohman, on many occasions after the interview spoken of, mentioned the bonds as the plaintiff's bonds. Evidence like this was deemed of controlling importance by Vice-Chancellor McCoon, in Minchin v. Merrill (2 Edw. Ch. R. 333), and by the old Supreme Court, in Grangiac v. Arden (10 Johns. 296) ; and the Minchin case was mentioned with approval by Chief Justice Church, in Doty v. Willson (47 N. Y. 583). The declarations of the alleged donor are regarded as of great weight when there is other evidence from which the making of a gift may be inferred. Mrs. Lohman repeatedly spoke of having given the bonds to the plaintiff, and her declarations were such that the jury was, in my opinion, warranted in believing that a perfected gift had been made.

Being of the opinion that Mrs. Lohman could not possibly have intended to transfer the title to the $200,000 in bonds to Carrie Purdy, I thought at first that there was as much evidence to show a gift to her as there was to show a gift to Trow. But there is this difference between the evidence to support the gift to Trow and that which could be rblied on to support a gift to the Purdys:—Trow collected the coupons ; and Mrs. Lohman spoke of the gift to Trow as something that had taken place. I am aware that a strong argument can readily be framed against the existence of an intent to make an immediate gift, or an immediate delivery, of the bonds, but an argument equally strong was considered insufficient to overthrow the verdict in Grangiac v. Arden. The case of Penjiedd v. Thayer (2 E. D. Smith, 305) was not, in my opinion, so strong as this; and the case of Cooper v. Burr (45 Barb. 9) was certainly no stronger. In both cases the donor had the power to resume possession at any time after the act of donation; in the Cooper case the donor had the keys in her possession after the alleged gift of the trunks. In this case, the safe where the bonds were kept belonged to Mr. Lohman, and not to the donor; and Trow had the consent of the donor to enter the safe. It is true that she did not, at the time she showed the bonds, expect that Trow would take the bonds at once, but the fact that, with the knowledge of the donor, he availed himself of the profits accruing from the bonds, and that the donor said in plain language that the bonds were his, made out a case upon "which the jury might have found an intention to give immediately, and a delivery at some time subsequent to the conversation in January. It was not essential that any formalities should attend such delivery if the jury believed that the donor practically surrendered to Trow the right to take the bonds and their product, and placed them where he as well as she could readily get them when wanted.

I think there was no error in the ruling that the release did not cover the claim in suit; it evidently referred to an entirely different matter.

If the examination of Mrs. Lohman, taken before trial, had not been offered in evidence,.I think it would have been a good ground for reversal that Trow was permitted to testify, at the beginning of the trial, what work he had done and what services he had rendered to Mrs. Lohman. It tended to show by his testimony the reasonableness of the provision made in his favor, and the probability that Mrs. Lohmau intended to make him a gift in frcesenti. This testimony would have been inadmissible under sec. 829, Code Civ. Proe., and would have been obnoxious to the same objection that was taken to the testimony of Brague in Brague v. Lord (67 N. Y. 495). The putting of the examination of Mrs. Lohman in evidence cured the error, however. There is no other point which seems to me to require examination. I think the judgment should be affirmed with costs.

Charles P. Daly, Ch. J., concurred.

Judgment affirmed.^*

* Affirmed by the Court of Appeals, Nov. 11th, 1879.