Spellacy v. Dauterman

THE COURT.

The above action was brought by the administratrix of the estate of Mary E. Havens, deceased, to recover the sum of $2,399.69. The complaint contained three counts, the first two alleging in substance that on

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January 16, 1928, the deceased had on deposit with the Hibernia Savings and Loan Society the said sum, and on that date signed and delivered an order on the bank to pay the same to defendant W. L. Dauterman, who acquired possession of the order and collected the above amount and paid the same to his wife, defendant Cathryn Dauterman; that there was no consideration for the order, and that the same was not accepted or paid by the bank until after the death of Mrs. Havens; further, that the latter, by reason of her bodily and mental condition, was incapable of knowing the effect of the transaction, and that defendants exercised undue influence over her in obtaining the order. The third count was for money had and received.

Defendants denied that Mrs. Havens was incompetent or incapable of understanding the nature of the transaction, or that undue influence was exercised to obtain the order. They alleged that preceding its execution defendant Cathryn Dauterman had rendered services to Mrs. Havens, and that in consideration thereof the order was executed to defendant W. L. Dauterman for the use and benefit of his wife.

No evidence in support of the allegations of incompetency or undue influence was adduced.

The court found that the order, together with her pass-book containing her account with the bank, were delivered by Mrs. Havens to Cathryn Dauterman with the intention of making a present gift to her of the amount on deposit and represented by the pass-book, namely, !$2,399.69, and the judgment for defendants was entered accordingly.

Plaintiff, who has appealed therefrom, contends that the above finding was not within the issues and is unsupported; further, that notwithstanding the finding it appeared that Mrs. Havens died before the order was accepted or paid by the bank and that consequently the gift was revoked and the authority of W. L. Dauterman, to whom the order was made payable, was likewise terminated.

Cathryn Dauterman testified to the rendition of services for which the deceased had agreed to compensate her, further stating on cross-examination that the order and passbook were handed to her in a sense “as a gift in consideration of the services I had rendered”. Again, she testified that Mrs. Havens gave her the bank-book and told her “to keep it”, later telling her that she wanted her to have it.