Opinion
May 5, 1909.
B.W. Berry, for the appellant.
John P. Kellas and Earl W. Scripter, for the respondent.
Several rulings at the trial are claimed by the respondent to have been erroneous and are relied on by him to sustain the order granting a new trial.
First. The court received in evidence the contents of the so-called "Canadian Will," wherein the deceased devised to the plaintiff the farm on which he was living with the personal property thereon. This will seems to have been subsequently superseded by another will, but it was in existence and was not shown to have been revoked by subsequent will or otherwise at the time when plaintiff received the $4,000 from the deceased. It is true the only issue under the complaint was whether on May 21, 1906, the plaintiff advanced $4,000 to Amlot at his request and on his promise to repay the same. But it was incumbent on plaintiff to show that her check to Amlot was not in payment of an antecedent indebtedness by her to him. The presumption was that this check was given to pay a debt and not as a loan. ( Kilmer v. Quackenbush, 125 App. Div. 352; Poucher v. Scott, 33 Hun, 223; affd., 98 N.Y. 422; Grafing v. Heilmann, 1 App. Div. 260; Koehler v. Adler, 78 N.Y. 287, 290.) It was, therefore, proper as tending to overcome this presumption to show the business relations between the parties and the transactions which had just taken place to establish that plaintiff was not indebted to Amlot. It was conceded that plaintiff had recently acquired from Amlot the money constituting the subject of the alleged loan. It, therefore, became very material to determine in what capacity she held such money. It was a fact that Amlot had willed to her the home farm and that he subsequently sold this farm for the identical amount she received from him. She claims that the money was given to her in the place of the farm. It is true that the sale of the farm was not actually consummated by the execution and delivery of the deed until shortly after he gave her his check and she had exchanged the same for the Boston draft, but it was consummated before she deposited the draft and received the avails thereof to her own credit. We cannot say what passed between them in the meantime, but plaintiff was clearly entitled to whatever inferences the jury might see fit to draw from the existence of this will and the sale of the property therein proposed to be devised to her as bearing on the question whether plaintiff had made a loan to Amlot or whether she had merely discharged an obligation as the law would presume in the absence of any evidence to the contrary. The contents of the will tended to show that Amlot had vested plaintiff with title to money equivalent to the farm he had willed her and subsequently sold and that she held such money in her own right and was not indebted to him therefor.
Second. It is claimed that the court erroneously received admissions of Amlot to the effect that plaintiff had taken good care of him and that she would be well paid for her services. These admissions, like the will, were relevant to the question of the ownership of the money which constituted the alleged loan. They were made about the time that plaintiff received the money and tended to throw light on the mental attitude and disposition of the deceased toward plaintiff. Moreover, if the will was properly received in evidence these admissions or statements, if technically inadmissible, were harmless, inasmuch as they were merely expressive of that which by the will became an accomplished fact.
Third. The court properly excluded testimony of La Duke as to the statements which Amlot made to him concerning the $4,000 check to plaintiff's order at the time when he instructed La Duke to prepare such check. La Duke did not deliver the check to plaintiff nor communicate to her what Amlot had told him. La Duke simply prepared this check in his own office pursuant to Amlot's previous directions, sent it to Amlot, who signed it and who personally delivered it to plaintiff. The conversations between Amlot and La Duke were not brought to the knowledge of plaintiff and were clearly hearsay. Whatever talk may have passed between Amlot and his attorney or agent would throw no light on what subsequently passed between Amlot and the plaintiff.
The trial justice, however, set the verdict aside as against the weight of evidence, and with this exercise of discretion on his part we are not inclined to interfere. It is settled that an action of this kind must be maintained by evidence which is clear and convincing and more cogent than such as will suffice to maintain an action against the living. The trial justice had the witnesses before him and had at his disposal better means than an appellate court in determining in what manner the discretion of the court should be exercised on a motion for a new trial. The case on the facts is not so convincing in favor of plaintiff as to enable us to say that the verdict of the jury was not against the weight of evidence.
The order should be affirmed, with costs.
Order unanimously affirmed, with costs.