Fletcher v. Fletcher

55 Vt. 325

• Court: Supreme Court of Vermont
• Decided: January 15, 1883
• Status: Published

Opinion

The opinion of .the court was delivered by

Veazey, J.

The testimony of the plaintiff tended to show a completed gift of the carriage in question. Under the facts stated there was no necessity of a visible presence or laying on of hands to constitute a delivery. In case of a carriage situated as this was, if there is a declaration of the gift in plain terms, and a surrender and acceptance of dominion, it is sufficient. Ross & Wife v. Draper,

* Franklin County, January Term, 1883 ; 1 Parsons Con. p. 201; 1 Bouvier, L. D. 633; 2 Kent’s Com. 439; Martrick v. Linfield, 21 Pick. 325 ; Kellogg v. Adams, 51 Wis. 138 ; s. c. 37 Am. Rep.; Harris v. Hopkins, 43 Mich. 272 ; s. c. 38 Am. Rep. 180.

Therefore the defendant was not entitled to have his request to charge granted, which was to instruct the jury that upon the facts the alleged gift was invalid and ineffectual to vest any title in the plaintiff for want of sufficient delivery and acceptance. Her testimony tended to show both elements of a complete gift, viz., delivery and acceptance ; and was sufficient to deprive the defendant of the right to have a verdict directed for him, but was not of that conclusive character that would have warranted the court to direct a verdict for the plaintiff. As the charge is reported in the bill of exceptions, it seems to us to have been limited to the element of delivery, without submitting the question of acceptance. Under this construction there was error. If the subject of the gift is certain, there must still be. the mutual consent and concurrent will of both parties. Kent’s Com. vol. 2, 438. It does not appear that the plaintiff expressly, signified her acceptance of the gift when alleged to have been made ; but her subsequent acts tended to show an acceptance before any revocation by the donor. The question of acceptance as well as delivery was, therefore, an open one to be passed upon by the jury.

. Judgment reversed and new trial granted.

Ross and Wife v. Diaper, post.