87 N.Y.S. 947 | N.Y. App. Div. | 1904
This action was brought to recover upon a note or obligation claimed to have been made and executéd by the deceased, payable in part to the order of the plaintiff, who was formerly Jennie Craw ford, and of which the following is a copy :
“West Schuyler, December 24, 1878.
“ I promise to pay to Jennie Crawford five thousand $ when I die and George Crawford five thousand $ I give Jennie 1.00 dollar for
socks tonight.
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GEO. W. TODD.”
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- Various defenses were urged upon the trial to this claim, but the same were disallowed by the jury, who found in favor of the plaintiff. We think that the judgment entered upon their verdict should be affirmed.
We think that competent evidence was produced upon the trial by the testimony of various witnesses in relation to facts known by them and in relation to declarations made by Todd which authorized the jury to find, amongst others, the following facts:
The maker of the purported obligation, George W. Todd, at arid prior to the date of said obligation, while possessed of considerable property, was'apparently, in his modes of life, a good deal of a tramp and vagabond, being without fixed home and dirty and repulsive in his personal habits. The plaintiff and her brother, being at the time in question of the age of fourteen or fifteen years, were living with some people by the name of Johnson in Herkimei county. Some days before the date of the instrument Todd sought shelter in the Johnson house, but-there was objection to his admission, which was finally secured by the intercession of the plaintiff and her brother. If he had not been so admitted, it was his belief, at least, that he would have perished from exposure. As it was, his arms, hands and feet were badly frozen, and he was much affected, physically, by his sufferings. He spent at the Johnson •house several days before and after Christmas, during which time plaintiff, at least, attended to his wants, treating his frozen feet and otherwise administering to his comfort and recovery. Upon the evening of the day mentioned in the paper, at his suggestion,
’ Upon these facts, which the jury w'ere thus entitled to find, we think that plaintiff was and is entitled to have judgment against defendant upon the instrument in question as an obligation given for a good and valuable consideration, and payable at the death of the maker. We shall discuss some of the principles involved in such conclusion in considering specifically some of the arguments advanced by the learned counsel for the appellant in opposition to such a determination.
It may be stated at the outset that no question is made before ns in -reference to the execution of the paper by Todd. That issue was raised upon the trial and fully and explicitly submitted to the jury, which necessarily found in favor of the plaintiff, and it is not urged by the counsel for the appellant that there is anything in the record before us which would justify us in disturbing this result.
The contentions which are most vigorously pressed upon our consideration by the appellant are : First,, that this note or obligation was given as the result of mere, gratitude upon the part of Todd, thus furnishing no valid or sufficient consideration for its enforcement, andj second, that evén if it was given in pay for services, the same were of such inconsequential and little value that payment ought not to be enforced.
It may be stated at once that, as claimed by appellant, simple gratitude as a mere sentiment resting upon no material basis in the way of valuable benefits received, would not be a sufficient consideration for the enforcement of the obligation in suit. Upon' the other hand, it is equally true that the sufficiency of valuable services as a legal and valid consideration for the obligation in question would not be destroyed or impaired by the fact that the obligor felt and declared a sense of gratitude which amounted to an apprecia
We think that a consideration of all the evidence by the appellant drawn out upon this subject discloses that while the obligor expressed himself as gráteful for what had been done for him by plaintiff and her brother, and a desire to recognize their efforts, he still intended to give his obligation as a satisfaction of a- legal consideration which had been received by him; that it was a payment and not a mere gratuity measured by and resting upon mere sentiment.
This issue was fully tried out and by the learned trial justice presiding was clearly and explicitly submitted to the jury. The latter, were told more than once that plaintiff could not have a recovery unless the instrument upon which she claimed was based Upon a legal consideration in the way of services rendered, as distinguished from being a mere gift and expression of regard. We think the evidence fairly warranted the conclusion which was reached under these instructions.
Taking the fact, unquestioned upon this appeal, that the' obligation was executed by Todd, and that it was given by way of payment for what plaintiff did, we feel constrained also to decide against the second proposition above stated in behalf of appellant that there was no adequate consideration.
The trial justice ruled that the burden rested upon plaintiff to show that there was a sufficient consideration for the note. It is urged that the paper upon its face so imported a consideration that, upon the other hand, the burden rested upon defendant to show that one was lacking. (Carnvwright v. Gray, 127 N. Y. 92; Neg. Inst. Law [Laws of 1897, chap. 612], § 6.)
If, however, we should dispose of the case upon the theory adopted by the trial justice, we feel that the consideration established by plaintiff’s evidence was not so inadequate or colorable as to permit us to declare the note invalid for that reason. There is no claim in the case that it. was procured from the deceased by fraud or undue influence and, therefore, there is no place for the claim of inadequate consideration as bearing upon such issue. (Earl v. Peck, 64 N. Y. 596, 598.)
The principles suggested by us in this connection are fully sustained in Earl v. Peck (64 N. Y. 596); Root v. Stran 77 Hun, 14); Worth v. Case (42 N. Y. 362); Hamer v. Sidway (124 id. 538); Velie v. Titus (60 Hun, 405).
It is still further urged that the services in question were rendered without any express request therefor or promise to pay for the same, and also that plaintiff and her brother were living in. the Johnson family, and that the head of the family was presumably entitled to the benefit of their services, and that for these reasons there cannot he a recovery.
According to the, evidence the deceased received and accepted services which were for his benefit,, and this created in that respect
We think that the judgment and order should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.