Bond v. Bean , 72 N.H. 444 ( 1904 )

The defendants contend that the verdict cannot be sustained for the following reasons: (1) That the evidence was insufficient to warrant the jury in finding a completed gift; (2) that there was error in the charge to the jury; and (3) that the plaintiff's counsel made improper statements in his closing argument. We will consider the objections raised in the order named.

1. The court held. in Bean v. Bean, 71 N.H. 538, 541, that "in the case of a gift inter vivos the evidence should be sufficient to render a finding of the fact of delivery reasonable, and should disclose the circumstances under which the delivery occurred; that it may appear that the gift was absolute, not conditional; that it was complete, not made in the donor's last sickness, or on his death-bed and in view of death." The evidence adduced in this case would seem to answer these requirements. There was positive testimony that the certificate of stock was delivered to the donee, accompanied by words declaring the donor's intention to make the gift, and at a time and under circumstances such that it could be found that the gift was absolute; and the jury have so found. The delivery of the stock with an intent to make a completed gift, and its acceptance by the donee, vested in her the equitable title to the property. The fact that the certificate was not indorsed did not render the gift incomplete as a matter of law. It was evidence bearing upon the intention with which the donor made the gift, to be considered by the jury with the other evidence in the case. Blazo v. Cochrane, 71 N.H. 585, 587; Reed v. Copeland,50 Conn. 472; Allerton v. Lang, 10 Bosw. 362; Walsh v. Sexton, 55 Barb. 251; Commonwealth v. Crompton, 137 Pa. St. 138; Bank v. Holland, 99 Va. 495; Lawler v. Kell, 6 Ohio Dec. 311; Leyson v. Davis, 17 Mont. 220.

2. The request for instructions was given in substance. The defendants cannot complain because the exact language of their request was not followed. As was said in Walker v. Railroad, 71 N.H. 271, 273, "the substance of the requested charge having been given, it is no ground of exception that . . . a particular form of expression was not used."

3. It is unnecessary to consider whether the statement of counsel in his closing argument was proper or improper, for in the view we take of the case no exception was saved entitling the defendants to question the legitimacy of the argument. It appears that counsel for the defendants did not undertake to procure an exception to the alleged improper statement until after opposing counsel had finished his argument, and did not bring his objection to the attention of opposing counsel until after the jury had retired to deliberate. In order to save an exception of this nature, an objection should be taken at the time the alleged improper statement is made, or within a reasonable time thereafter; and counsel taking the objection should see that it is brought to the attention of opposing counsel, as well as to that of the court.

In Story v. Railroad, 70 N.H. 364, 379, the court said that an "objection to incompetent evidence of counsel in argument should be taken as to other incompetent evidence — when it is offered"; that "the error . . . is not in all cases incurable"; that "an immediate correction of the error may save the trial"; that "at no time can such correction be made with greater probability of removing the wrongful effect than at the time of utterance"; and that "for counsel, conscious of the error, to be permitted to sit by without making objection until there is less probability the wrong can be cured, would be to turn a rule of justice and fairness into a mere trap."

In Monroe v. Lumber Co., 68 N.H. 89, 91, the defendants sought to avail themselves of an exception by presenting to the court during the argument a writing stating their objection; but as "this exception was not called to the attention of the plaintiffs' counsel, and he had no knowledge of it until after the trial," the court refused to consider it.

Exceptions overruled.

All concurred.