Helm v. Martin

Sharpstein, J.: The real issue in this case was whether the transaction between the plaintiff’s intestate and the defendant was a gift, and upon that issue the jury returned a verdict in favor of the defendant. A motion for a new trial on the ground, among others, that the evidence was insufficient to justify the verdict, was denied by the Court below. If there is any evidence to sustain that verdict, this Court will not disturb the order of the Court below. For the purpose of determining that question, it will only be necessary to consider such portions of the testimony as are most favorable to the defendant. And we think that that contained in the following extracts will suffice:

In one part of his testimony the defendant says: “ So I [62]asked him (Helm) if he would lend me three thousand five hundred dollars to buy one hundred shares of California, and he said that he would. He said, ‘ Do you think it would be best for me to buy ?’ Well, I said, this is the information, I think it good: this man don’t state things to me unless he means it, and he even said he would protect me. Then he said, ‘ All right, then, I will buy a hundred shares myself,’ and Phil. McGovern said that he would like to buy fifty, and the next day McGovern bought the stock. I could not tell what day of the month that it was McGovern bought the stock, or part of it. In one or two days after I came in and asked McGovern if Helm had been there, he said ‘Ho,’ he said we ‘want to fix that matter up with him, and we will when he comes in to-day or to-morrow,’ and during the conversation Helm came in, and I said to him familiarly, as I always did, Jim, let us fix that matter up about that stock transaction, Mr. McGovern will indorse my note and I will indorse his; so either McGovern went for pen and ink or asked the barkeeper to hand him pen and ink; it was standing at the end of the counter. Helm said, ‘Ho, I am not going to take any notes for this money, I am going to make you a present of this stock.’ I said, Well, that is no way to do business, that is not a business transaction. ‘Well,’ said Helm, ‘that is the way I am going to do business; you have saved me thousands of dollars on the sale of that horse, and that is the way I am going to do this business.’ I said, All right if you mean it, let us take a drink. We took a drink, and McGovern handed me my stock and handed Helm his, and kept his own. * * # After that I had some further conversation with him again upon that subject, at a subsequent time. The stock went from 'thirty-five dollars to fifty dollars, and he and I were walking down together, and I said, Helm, I am going to sell that stock and pay you the money. He said, ‘ Martin, I have made you a present of that stock, and I meant it, and do mean it, and I will never take a cent of it.’ The conversation dropped and I said, all right.”