Opinion
Case argued January 6th, 1870
Decided March 21st, 1870
Samuel Hand, for the appellant.
George Owen ( John Graham with him), for the respondent.
The only question presented by the exception taken by the defendants' counsel to the denial of his motion for a nonsuit, at the close of the plaintiff's case, was whether the evidence of a delivery of the bill of sale, under which the plaintiff made title by the defendants' intestate, was sufficient to warrant the submission of that question to the jury. In considering this question the testimony given by the then plaintiff (present plaintiff intestate), which was struck out of the case, upon motion of the defendant, must be disregarded. This includes all the material evidence given by this witness upon this question. The evidence proved that after the death of the defendants' intestate, the bill of sale in question was found in the safe of the intestate, kept in his shop, among other papers belonging to him. It was executed by the intestate, and was in his handwriting. There was no evidence that any possession of the property had ever been taken, or control thereof had by virtue of the bill of sale, or any claim made to the property, or any part of it, under the same, although nearly three years had elapsed from the date of the paper to the death of the intestate; nor was any claim made to the property, by the plaintiff, after such death until the finding of the paper, although some months had elapsed before such finding. The intestate had used the property during his life, after the date of the paper, as his own, and had used up a portion of the stock covered by it during that time. Finding the paper in the safe of the intestate, among his papers, in his handwriting, although signed by him, so far from proving a delivery to the vendee, was evidence that it was never so delivered, and consequently never had any validity as a contract between the parties. The proof given that the plaintiff (the intestate's mother) had kept house for him, and tending to show the intestate indebted to her for such services, was no evidence whatever of the delivery of the bill of sale in question. The only evidence from which it can be plausibly claimed that a delivery of the bill of sale was shown, was the testimony of Martin L. Bryant, the son of the plaintiff. That testimony, in substance, was that in October or November, 1858, his brother, the intestate, told him that he had given his mother a writing that was just the same to her as money, or cash, or something of the kind, and upon being more particularly interrogated, he testified that he said that he had given her a writing that was just the same to her as cash, or money, and that she could, if she chose, sell him out at any time. That he conversed with him about it several times, and also about his indebtedness to his mother. The inquiry is whether this evidence was sufficient prima facie to show a delivery of the bill of sale in question. I think not. There is nothing referring to this more than any other paper; nothing showing whether the writing referred to was a mortgage of chattel property, or an absolute transfer of such property; a mortgage of real estate, or a transfer thereof; or a statement authorizing the entry of a judgment, upon confession, against him. If, instead of finding, among the papers of the intestate, this bill of sale, a deed of his real estate, to his mother, executed by him, had been found, the evidence would have been equally cogent of its delivery, as this paper. The same may be said of any other paper to which his mother purported to be a party. Had the testimony in any way referred to the bill of sale in question, so as to identify it, then the remark of the intestate that he had given it to his mother would be evidence of a delivery. But it was not so identified, and consequently what the intestate said was no evidence of the delivery of the paper. Besides, the intestate spoke of a writing he had given to his mother. There was no evidence that he had ever delivered this paper to her, but on the contrary, from its being found among his papers, after his death, the presumption was that he had never given it to her, and that in his conversation with his brother as to having given his mother a writing, he referred to some other paper. The onus was upon the plaintiff to show her title to the property. As it remained in the possession of the intestate until his death, the defendants, as his administrators, had a prima facie title. The plaintiff based her title upon the bill of sale. To sustain this she was bound to show a delivery of it to her by the intestate. This she failed to do, and the judge erred in not granting a nonsuit. The counsel for the respondent insists that this question is not reviewable in this court, and cites Parker v. Jervis (3d Keyes) in support of his position. That case does not hold that when there is no evidence of a fact essential to the plaintiff's case, and an exception taken to a refusal to nonsuit, for want of such evidence, that this court cannot review it. The law is clearly otherwise. All that the case decides is that when the evidence is conflicting upon the point, this court, after verdict, cannot examine into and pass upon the weight of evidence. This renders an examination of the remaining exceptions taken by the defendants unnecessary. The judgment appealed from must be reversed, and a new trial ordered; costs to abide the event.
For reversal, concurring with GROVER'S opinion, EARL, Ch. J., SMITH, FOSTER, SUTHERLAND and INGALLS, JJ.
HUNT and LOTT, JJ., for affirmance.
Judgment reversed, and new trial ordered.