Russell v. Langford

THE COURT.

The complaint contains four separate causes of action for moneys alleged to have been loaned by plaintiff’s testate to defendant at different times. The case

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was tried before the court, findings filed, and judgment entered for plaintiff, upon the first and fourth causes of action, amounting to the sum of twelve hundred dollars, besides interest. The second and third causes of action alleged that the testate loaned to defendant the sums of seven thousand dollars and two hundred dollars, respectively, on the fifteenth day of March, 1898, and that the same remain due and unpaid. The court found that the said sums were received by defendant at the times alleged, but that they were “intended by deceased as a gift to defendant, and received by her as such.”

The plaintiff made a motion for a new trial, which was denied, and this appeal is from the judgment and order denying a new trial. The evidence is claimed to be insufficient to justify the finding that the $7,200 was a gift, and this is the principal question in the case. There is evidence in the record sufficient to sustain the finding.

It appears from the testimony of defendant that deceased, Calderwood, and the husband of defendant, who died several years ago, were friends of long standing. They were neighbors in Clinton County, Iowa, long before the deceased husband of defendant came to California. Calderwood was at all times up to his death a resident of Lyons, in the state of Iowa. Defendant and her husband up to the time of his death resided in Pasadena, Los Angeles County, California, and defendant has ever since resided there. Plaintiff’s testate visited defendant and her husband before the latter’s death, and some ten years before the trial of this case, and then first met the defendant. Some time after this visit the defendant’s husband died, and she had litigation with some of his heirs in regard to his will. The litigation resulted favorably to defendant, and deceased, Calderwood, wrote to her congratulating her upon the result. Defendant afterwards met Calderwood, in the spring of 1897, while visiting her mother, in Fullerton, Illinois. After this some correspondence was carried on between them. Calderwood wrote to defendant, asking her about the expenses she had been put to in her litigation, and offering to let her have two thousand dollars. She answered his letter, declining to borrow the money or receive it at that time. In the faH of 1897 deceased came to California on a pleasure trip, and went direct to Pasadena.