Patton v. Washington , 54 Or. 479 ( 1909 )

Mr. Justice McBride

delivered the opinion of the court.

1. A full discussion of the evidence in this case would be of no interest to- any one, except the immediate parties to the case, and of no benefit to them. We are satisfied from the evidence that the defendant was insane when he gave his diamonds to plaintiff and Wade, and that if the plaintiff was not aware of that fact at the time, he knew it a short time afterwards. This being so, defendant had a right, on returning to his reason, to demand and receive a return of his property. Perhaps, if he owed plaintiff the gift might be treated equitably as a pledge, though, as a pledge grows out of either an express or implied contract, it is difficult to see how an insane person could hypothecate anything.

2. Plaintiff, in his complaint, elects to treat defendant as the owner of the property, subject to a pledge to him for a pre-existing debt, and the burden of proof is upon him to show the debt and the pledge. The existence of the debt, except a small balance for cigars, amounting to $41, rests entirely upon his own testimony, which is flatly contradicted by that of the defendant. His testimony in regard to the diamond delivered to him by Wade is disputed by Wade, who appears to be entirely disinterested in the matter, and, except as to the $41 for cigars, he has failed to show, by the preponderence of evidence, that defendant owed him anything.

3. The evidence shows that he took the stud home and gave it to his wife, and that it was so negligently kept that it was lost or stolen while in her possession. When he learned that the jewels were the property of an insane man, it was his duty to take ordinary care of them, with a view of returning the same when defendant’s reason was restored, rendering it practicable for him to do so. This the court below must have found that he failed to do, and we think properly.

4. The court below had all the witnesses before it, except Wade, and was much better qualified to judge the value of their testimony than we are, and, in a case like this, where the evidence is contradictory, we feel unwilling to disturb its findings. We do not question the propositions of law laid down by counsel for plaintiff; but upon the pleadings and the facts we think the decree of the lower court was correct.

The decree is affirmed. Affirmed.