Chase v. Perley , 148 Mass. 289 ( 1889 )

Knowlton, J.

An express trust in personal property may be created and proved by parol. Davis v. Coburn, 128 Mass. 377. There was evidence from which the jury might find that the defendant received the money from his father upon a trust for the plaintiff and others. There was also evidence that the trust had been so far performed that nothing remained to be done but to pay the plaintiff and her brother, William H. Perley, certain ascertained sums. Upon this evidence the plaintiff could maintain an action at common law, and was not obliged to seek relief in equity. Johnson v. Johnson, 120 Mass. 465. The defendant’s requests for instructions to the jury were therefore rightly refused.

The only remaining exceptions relate to the admission and exclusion of evidence. In the action between the defendant and his brother, William H. Perley, the matter in controversy was the ownership of one thousand dollars of the money that the defendant received from his father, which he contended was given him to be his own, after the payment from it of certain debts and the funeral expenses. It was competent for the plaintiff in the case at bar to present to the jury anything in the conduct of the defendant in reference to the money, and to the one thousand dollars which was a part of it, that tended to show his recognition of his brother’s right in it. As bearing upon the defendant’s claim of ownership of the entire fund, including the one thousand dollars delivered to his brother, the fact that he paid his brother two hundred dollars in cash for real estate, when, if his assertion was true, his brother owed him an unsecured debt of one thousand dollars, was a circumstance proper for the consideration of the jury; and it was competent for the plaintiff, either before or after the cross-examination, to show that the defendant made the purchase and paid the money on his own account, and said nothing about Mrs. Newhall, or anybody else but himself, as the purchaser.

There being no question as to the mental condition of the defendant’s father, his declarations made to the witness Rams-dell, a day or two after the transaction was completed, were incompetent.

The defendant’s son, Frank S. Perley, having testified that he heard a conversation between his father and grandfather, in which it was said that the. money was given to his father, it was competent to show by his cross-examination that he was the owner of the note upon which suit was brought against his uncle, William H. Perley, and that he did not testify in that case, and did not tell his father what he knew of the interview until after the trial. His answers in relation to his grandfather’s watch render it unnecessary to consider the competency of the questions.

The receipts were not put in evidence. They were held in a bunch in front of the defendant, and in view of the jury, and the defendant was asked certain questions about them, to which he answered that he did not know. The judge rightly refused to allow them to be taken to the jury-room.

We do not see that the defendant could have been harmed by the evidence in relation to the plaintiff’s knowledge of the result of the suit between the defendant and his brother, at the time her suit was brought, or at the time she ordered it brought. It is stated in the bill of exceptions, that “ no suit had been commenced against this defendant by the plaintiff in this action, or by her brother, until after the trial upon the note ” in the former case; and if it could properly be argued from that fact that the plaintiff’s claim was an afterthought, suggested by the result of that trial, she might be permitted to meet the argument by showing that she ordered the suit to be brought before she knew which party had prevailed.

The evidence offered by the defendant, that he had no money in the bank at the time when the plaintiff’s witnesses said he made admission in regard to the ownership of the money deposited there, was not competent. It had no tendency to contradict the statement of the witnesses as to what he said, and the question in issue was not whether the money was in the bank at any particular time, but to whom it belonged.

The testimony of the stenographer, that the defendant had testified at the trial in the suit against his brother in the same way as at this trial, was not competent to corroborate the defendant- It had no tendency to contradict the testimony of the other stenographer, that he testified differently before the auditor.

Exceptions overruled.