Harper v. Parks

Warner, Chief Justice.

This was an action of trover brought by the plaintiff in the court below against the defendant, to recover ihe possession of a piano. - On the trial of the case the jury found a verdict for the plaintiff. A motion was made for a new trial on the several grounds therein stated, which was overruled, and the defendant excepted.

It appears from the evidence in the record, that on the 3d day of May, 1871, the plaintiff, Carrie Parks, and her daughter, Emma A. Harper, the wife of defendant, executed the following instrument in writing under their hands and seals:

“ Know all men by these presents,- That I, Came Parks, have given, and delivered to my daughter, Emma A. Harper, my piano, valued at $409.00, as an advancement, said piano to be hers during her natural life, and upon her death to revert to me. if in life, if not, to my granddaughters, Eulatia C. Dennis and Charlie K. Dennis.”

Mrs. Emma A. Harper died in July, 1875. This suit was commenced in May, 1877. The defendant put his defense to the plaintiff’s action on two grounds: first, that the piano was given to his wife by her mother absolutely as an advancement, before the written contract was executed ; and, second, that the name of his wife to that contract was not in her handwriting.

1. There was no error in allowing the testimony of the plaintiff as to the facts proved by her, on the ground that Mrs. Harper was dead, the judge certifying that he allowed the witness to testify about a conversation had between herself and defendant, in the presence of Mis. Smith, and that the defendant drew out the balance of the testimony in the record on the cross-examination.

2. There was no error in the refusal of the court to allow the case to be re-opened when the argument was nearly closed, for the purpose of enabling the defendant to prove the exact date when the piano was delivered to his wife, in the view which we have taken of the case, even if we had been disposed to interfere with the discretion of the court-

3. Assuming that the piano was delivered by Mrs. Parks to her daughter as an absolute advancement, and a receipt given therefor, as contended by the defendant, prior to the execution of the written contract hereinbefore set forth, still, it was competent for the parties (the donee consenting thereto) to re-settle the same on the terms specified in the written contract, and the question was, did Mrs. Harper sign that contract 2 The jury have found that she did, and there is abundant evidence to support their verdict. This view of the case necessarily disposes of the 3d, 4th and 5th grounds of error alleged in the motion for a new trial, a.nd the court did not err in overruling the same.

Let the judgment of the court below be affirmed.