Taunton v. Taylor

Jenkins, P. J.

In a suit for money had and received, the defendant, a brother of the plaintiff, testified that he, as administrator of the estate of the plaintiff’s deceased husband,- continued the operation of the decedent’s store business, and that the moneys sued for were turned over by the plaintiff as voluntary gifts, in the form of checks made payable to the store business, for the purpose of liquidating the indebtedness owing by the business of her deceased husband. He offered in evidence an order of the ordinary, as well as an agreement signed by the heirs of the decedent, authorizing him to carry on the business of the decedent. This documentary evidence was excluded by the court, as was also testimony by which the defendant sought to show, in support of his contention, that the business of plaintiff’s deceased husband was insolvent, and that he had personally received no portion of the moneys paid in by the plaintiff for the purposes indicated. The court also excluded testimony going to show that the plaintiff’s deceased husband was indebted to the defendant at the time he became deceased. The defendant also undertook to show by the plaintiff herself that the moneys were used to liquidate the indebtedness of the decedent, but was not permitted by the court to do so, on the ground that such evidence would be immaterial and • irrelevant. The plaintiff denied that the funds supplied by her to the business of her deceased husband were intended or understood to constitute a gift for the purpose of liquidating the decedent’s liabilities, and testified that the moneys were loaned directly by her to her brother, who agreed to pay eight per cent, interest thereon. The court directed a verdict for the plaintiff in the sum of $6782.98, besides interest, this being the amount advanced by her, less certain sums shown by the evidence to have been thereafter received by her-from the business of the deceased husband. The defendant moved for a new trial on the general grounds, on the ground that the direction of a verdict was illegal, and on the ground that the court erred in excluding the evidence referred to. He excepts to the overruling of his motion for a new trial. The contention is made by the defendant in error that the amendment to the motion for a new trial presents no question for determination, for the reason that, although it appears to have been approved by the trial judge as true, it does not appear to have been allowed and ordered filed. It is further contendéd that even if the amendment could be considered, it does not contain a valid assignment of error as to the action of the court in excluding the evidence referred to. •

Our rulings appear in the headnotes.

Judgment reversed.

Stephens and Bell, JJ., concwr.