Schwab v. Ginkinger

Opinion by

Mr. Justice Gbeen,

This is an action to recover money alleged to be in the hands of the defendant, but belonging to the plaintiff’s intestate at the time of his death. It is not an action upon a written instrument of any kind. The testimony to show that the defendant had money in his hands belonging to the plaintiff’s intestate was entirely and exclusively in parol. ■ In order to understand the case at all it was absolutely necessary to hear that testimony, and to have it heard and considered by the jury. When the learned court below excluded the testimony of Men-line and struck out the testimony of Young it rejected evidence which was indispensable in determining what money it was, and how much there was of it, and what the circumstances were in which tbe money was received, which the plaintiff claims belonged to her intestate and was received by the defendant. There was a little testimony left on the record, that of Miller, which was not excluded, probably because its exclusion was not asked, and that testimony throws some light on the subject of .contention. But the same considerations which make that testimony competent and permit it to be adjudged, conclusively require the admission of the rejected testimony, because it is pertinent, material and altogether essential to a just determination of the merits of the controversy. Without the parol testimony there is but little more than mere chaos in the contention of the parties. There. are but two written papers in the case. Both were introduced by the defendant. One of them has no legal meaning whatever, and the other is unintelligible without the help of the parol testimony. The supposed letter o'f attorney is evidently a blank form for a substitutionary letter of attorney authorizing another attorney to act in place of the one first appointed. The blank is inaccurately filled, and the whole only authorizes to be done those things which are specified in an original letter of attorney which never existed, so far as any testimony on this record is concerned. As it was executed by the principal, and not by the attorney originally constituted, it is impossible to resist the conclusion that there never was any other letter of attorney than such as this paper-is. It contains no authority to do any specific thing. Nevertheless it did suffice to get the pension check from the official whos.e business it was to pay it out.

The only other paper in the case is a paper in the following words : — “And the said Samuel Ginkinger further agrees that if his said son Allen shall provide for him just and right during his natural life that the balance remaining of his estate shall be for his compensation, etc., in getting said pension etc.

“Samuel x Ginkinger. mark

“ Attest:

“ George H. Young.

“ Conrad Miller.

“ A. Menline.”

It will be observed at once that this paper does not purport to be a complete agreement, nor to represent all the terms of any agreement. It says “and the said Samuel Ginkinger further agrees.” What was the precedent part of the agreement to which this paper was the “ further ” part of the whole agreement ? Where is it to be'found ? Not in any preceding written agreement, for there is none. From the testimony of Young it appears that this paper was written on the back of the supposed letter of attorney, but as that instrument contained no terms of any agreement, and only purports to authorize the doing of something which is not defined in any manner whatever, it cannot be regarded as being the other and preceding part of the second paper. It is manifest from reading the rejected testimony that it contains the only supplementary matter to which the written paper can possibly refer. In thé light of that testimony it is easily understood. Without it the paper is unintelligible. It is evident, therefore, that the whole of the actual contract between the parties, being partly in parol and partly in writing, must all be considered, in order to determine what the contract really was. The principle that a contract which is partly in writing and partly in parol becomes all parol is too familiar to require the citation of authorities. But in this case the application of the written paper to the subject of contention requires the help’ of the parol testimony. Thus the paper says that the balance of the intestate’s “ estate,” shall belong to the defendant, if he shall provide for his father “just and right during his natural life.” Whether this comprehends the pension money only or other estate also requires the help of parol testimony. In any point of view we think it was error to reject the offer of proof by the witness, Menline, and we therefore sustain the third assignment of error. For the same reason we sustain the fourth assignment for the striking out of the testimony of Young.

With this testimony before the jury the question would be, what was the contract between the parties ? If the jury should find that it was a contract for the care, protection and maintenance of the intestate during the remainder of his life, and his burial after his death, and for this purpose the intestate gave to the defendant the money which he received for his pension, there is nothing unlawful in such a contract. Tfie money belonged to the intestate, he could do as he pleased with it, and if it pleased him to give it to the defendant, who was his son, in consideration of his agreement for his support and maintenance during his life, he was perfectly at liberty to do so. There are plenty of such cases in the books. We do not discover the least evidence of imposition, undue influence, or even ordinary solicitation, on the part of the defendant, to induce his father to make such an arrangement. On the contrary, all the testimony shows that at first the defendant declined to take the money, and it was only when Ins father insisted upon his taking it and entering into the arrangement for his support and maintenance that he yielded.

Nor do we think that the prohibitory provision of the pension law is applicable to the case as it now appears upon the testimony. There is no evidence whatever of any agreement for compensation on the part of the defendant for his services in obtaining the pension, nor was there any proof of any demand or claim of any kind for any compensation whatever. On the contrary the witness Miller being asked “ Q. Tell to the jury what was said at the time by you and by Allen and by Samuel.” replied “ A. When he handed Mr. Allen Ginkinger the check he said, ‘ I want you to take this money and keep it.’ He said ‘ I have no more use for it: if you keep me until I die the balance shall be yours.’ He says, ‘the rest of my children didn’t care for me. I cannot go to their house and they can’t have none of my money.’ Q. What did he say about Allen ? A. He said, ‘ Allen is the only man that cares for me and looks after my interest; he got my pension, he shall have the money that remains after I am dead.’ ”

The witness Young said, “Well, Allen Ginkinger handed a check to the old man, Iris father, and the old man told Al. that he wanted him to take care of it and draw the money, and then Al. said he couldn’t do it, and the old man said he wanted him to draw the money, and I was requested to draw up a power of attorney, and he acknowledged it, that Al. should draw the money and take care of it. . . . Q. You say the old gentleman stated in the presence of Al. that he was to take care of it? A. ‘ Al.’ he said, ‘ here is your check, I have no use for it, you take the money.’ He said ‘ I don’t want your money. I want you to take it.’ ” On being recalled he was asked, “ Q. What did Allen say to him? A. Well, Allen said to him first, ‘ Here is your check for this money for your pension.’ And he said ‘ I don’t want it. I want you to have it.’ Al. said, ‘ Here is your check, I have no business with it. I want you to have it and take care of it.’ ‘Well,’ Al. said, ‘I can’t draw the money for you, or take care of it, unless something is done.’ I said he could do it by a power of attorney. He said he wanted him to have it and I went.down to the office and drew it, and he said, ‘ I want you to keep me and provide for me, and bury me when I am dead, and the balance you are to have.’ . . . Q. Did the old gentleman give any reason why he wanted Allen to have it? A. He said, ‘Through you I got the pension,’ and he said ‘ the rest never done anything for me,’ and he said, ‘ I want you to have it as long as I live, and when I am dead I want you to bury me and the balance you can have.’ ”

This is practically all of the testimony on this subject, and we really cannot see anything in it that is violative of the prohibition of the pension law. Not only was there no agreement, demand or request by the deféndant for any compensation for his services in getting the pension, but he delivered the check to his father and declined to take it back or to keep the money when he was requested to do so by his father. It was only when his father repeatedly expressed his strong desire for him to keep him and provide for him during his life and bury him after death, that he yielded to his father’s wish and agreed to do as his father requested. There was nothing said about his having the money as a compensation for his services in getting the pension, and it is quite manifest that when the scrivener put into the written paper the words “ in getting said pension,” etc., he did so without any instructions from either the father or son to that effect.- But even as they are there expressed it is a mere redundancy, as the preceding part of the paper expressly says that the balance of the money was to belong to the son as compensation for his providing for his father during his life. If it is viewed as a mere gift, and the obtaining of the pension was the reason of the gift, it would not be in violation of the pension law. This was expressly decided in the case of United States v. Brown, 40 Fed. Rep. 457. The court said, “ If she gave him the money of her own free will, without any demand on his part, it not being withheld or retained by him against her wish, wholly out of gratitude to him for a friendly service, not induced by the fact that a promise or understanding exists by which he should be compensated for his services; or by his setting up and insisting upon such a promise or understanding: or in the absence of it by Ms claiming some merit or desert on his part for such service; in other words, if the money was paid to him without any demand, request, urgency, or action on his part, by her, of her own motion, he has not violated the section.” Surely this is sound doctrine and good common sense. Unless a person who has received a pension is to be denied the common right of property which is accorded to all other persons of disposing of their own as they see fit, it is not possible to doubt the correctness of the above ruling. It is strictly applicable to the facts of the present case, as we understand them upon the testimony now on record. We think these views control the disposition of the cause. We sustain the first and second assignments. The fifth assignment is not sustained. The relevant matter under the offer must be regarded as having occurred between the dead father and the son, and not between the son and some other living and competent person.

Judgment reversed and new venire awarded.