Daniel v. Smith

Belcher, C. C. This is the second appeal in this case, and it was taken from a judgment in favor of the defendants, and from an order denying a new trial. The first appeal was from a judgment in favor of the plaintiffs, and the decision thereon may be found reported in 64 Cal. 346.

On turning to the report referred to, it will be seen that the court, by Thornton, J., after carefully reviewing the testimony, summed up the law applicable to this class of cases as follows:—

“To constitute a donatio causa mortis, the gift must be made in contemplation of the near approach of death by the donor, to take effect absolutely only upon the death of the donor. There must be a delivery of the property either to the donee or to some person for his use or benefit, and the donor must part with all dominion over the property, and the title must vest in the donee, subject to the right of the donor at any time during his life to revoke the gift.”

And further along in the opinion it is said:—

“In view of the strict requirements of the law as to delivery shown by the foregoing, we cannot hold that a delivery was established in this case. Nor does it appear that the dominion or control over the bank-book or the money in the loan society ever passed from Fielding, or that any interest ever vested in the alleged donee. There was no language of gift used. On the contrary, the testimony indicates, in our judgment, the creation by Fielding of a bailment in trust or agency, which was to terminate with the death of Fielding.”

This decision must be treated as the law of the case, unless the facts shown on the second trial were materially different from those shown on the first trial.

[550]It is urged for the appellants that there was on the last trial proof of the “manual tradition” of the bankbook, and that this difference in the testimony entitled the plaintiffs to have judgment entered in their favor. It is true that Cornfoot testified very clearly that the bank-book was actually placed in his hands by Fielding, and that he took it away and kept it till after Fielding died, and then delivered it to Mrs. Daniel.

But in other respects there was no material change. It did not appear from the testimony given at the first trial that Fielding parted with the dominion or control of the bank-book, or the money represented thereby, and the testimony in the present transcript is, upon that question, substantially what it was before. There was then nothing showing that any interest ever vested in the alleged donee, and no different showing upon that sub-, ject is made now. There was no language of gift used before, and none is shown now.