Paddock v. Fonner

NOURSE, J.

Plaintiff, as administrator of the estate of May Howe, sued the defendant for money had and received. The complaint alleged that on June 21, 1923, May Howe was the owner of money on deposit in a savings account in the Anglo-California Trust Company and of Liberty bonds held by the same bank, amounting in all to $3,949.27; that on said day she authorized the said bank to pay the money to defendant for the use and benefit of May Howe; and that on June 22, 1923, defendant received said sum of money from said bank and has retained the same. The answer denied that May Howe authorized the defendant to withdraw the money from the bank for her use and benefit and alleged that the defendant has claimed and still claims the money as his own. Trial was had before the court without a jury and judgment went for the plaintiff for $3,634.11, being the amount claimed, less the sum of $315.16, which defendant had paid out to meet the funeral expenses of the deceased. From this judgment the defendant has appealed on a typewritten record.

The trial court found that “on the 21st day of June, 1923, at Los Altos, Santa Clara County, California, said

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May Howe, in writing, authorized and instructed the said Trust Company to sell the said liberty bond and pay the proceeds thereof, together with the said account to the defendant John F. Fonner, for the use and benefit of the said May Howe, and deliver the said writing to Edith Bagot, a niece, who delivered it to the defendant on the 22nd day of June, 1923,- that thereafter and on the 22nd day of June, 1923, the said May Howe died. ’ ’ It was also found that the defendant received from the hank the money in suit and the proceeds of the Liberty bonds, all of which he converted to his own use, except the sum paid by him for the funeral expenses of the deceased. Through the pleading of the ownership of the fund the defendant raised the issue that it came into his possession as the result of a voluntary gift

causa mortis.

The whole case was tried upon the theory that this issue was properly pleaded, and, in fact, no other issue was heard by the trial court and this appeal is presented on that point alone. Both parties argue the weight of the evidence—the appellant insisting that he has proved every essential element of a gift