Sullivan v. Shea

KERRIGAN, J.

This is an action brought by Hannah Sullivan, as administratrix of the estate of James J. Sullivan, deceased, against Timothy Shea upon a promissory note for one thousand dollars, money alleged to have _ been borrowed by Shea from Sullivan in his lifetime. The complaint, alleging that the promissory note had been lost, set forth its

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terms, and the answer admitted the execution of the note substantially in the terms set forth.

In the year 1910 the deceased loaned to the defendant the sum of one thousand dollars, without taking therefor a note, receipt, or other evidence of the transaction. About a year later, when the decedent was about -to depart for a visit to Ireland, Shea executed in his favor the note in suit. Upon Sullivan’s return he took up his abode with Shea and his wife, at whose home he remained for three or four months. The relationship between him and the Sheas was close and intimate, particularly as regards Mrs. Shea, who was his niece. Before leaving for Ireland, in a conversation concerning the loan, Sullivan told Mrs. Shea he did not care whether he ever got any of the money back; that Mrs. Shea and her husband were the best friends he had, and were more entitled to the money than any of his other relatives. On another occasion, later, Mrs. Shea informed Sullivan that the money was in the bank, and offered to get it and repay the loan, but Sullivan refused to accept it, and told her that she and her husband should keep the money and use it. On still another occasion, and after Sullivan had left the Shea home and engaged in business, Shea called on him for the purpose of paying the note and interest, but Sullivan at first refused to accept any money on account of the note, but after some persuasion on the part of Shea, accepted the money offered on account of interest, but refused any portion of the principal, and moreover told Shea not to bother about the note. Six or seven months later Sullivan died, and shortly thereafter the plaintiff was appointed administratrix of his estate. She made a thorough search among the papers and effects of Sullivan without succeeding in finding any trace of the note.

The trial court found for the plaintiff, and from the judgment entered thereupon, and from an order denying his motion for a new trial, this appeal is prosecuted by the defendant.