Fowler v. Fowler

Missouri Court of Appeals

Fowler v. Fowler

125 S.W. 1171, 141 Mo. App. 610, 1910 Mo. App. LEXIS 128

DecidedFebruary 21, 1910

StatusPublished

This text of 125 S.W. 1171 (Fowler v. Fowler) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fowler v. Fowler, 125 S.W. 1171, 141 Mo. App. 610, 1910 Mo. App. LEXIS 128 (Mo. Ct. App. 1910).

Pincite

Opinion

ELLISON, J.

Plaintiff and defendant are brothers, and at the time of the origin of the transaction in question had been successful in business as partners and were in affluent circumstances. They each desired to buy a lot upon which to build a residence. They bought adjoining, and when the deeds were brought to them the plaintiff paid for his own and for defendant’s. The latter claims the transaction was a gift to him, while the plaintiff insists he advanced the money for defendant, to be paid back to him when he should call for it. He afterwards demanded the money, defendant refused to pay and this action followed. The judgment in the trial court was for the defendant.

When the deeds were ready for delivery plaintiff and defendant were together. They differ as to what then transpired. Plaintiff testified that he said to defendant: “I had better pay for these, hadn’t I? We will have to draw the money out of the business. If you pay for them we will have to draw the money out of the business. I will just pay for them, and if I ever need it or call for it, you pay me for it.” Defendant testified that “when it came to paying for these lots, he wanted to make me a present of the lot. He said, [612]*612‘You. have worked hard and yon have made this money. I want to build a ten thousand dollar house on that lot and give it to you.’ I accepted the lot, and offered to pay for it at the time, but he wouldn’t let me pay for it. He gave me the lot.” Whichever statement is true, it was followed by plaintiff paying for' both lots, $3600 each, and about six years thereafter bringing this action as just stated.

We cannot see any legal ground for interfering with the judgment. Plaintiff has cited us to authority supporting his contention that a gift must be a completed transaction and that a mere expression of an intention to malee a gift will not transfer the title to the thing given until the intention is consummated. We make no objection to this, but, if defendant is to be believed, the jury had ample ground to find that the expressed intention was accompanied by the actual gift. That is, by paying for defendant’s lot at the time the deed was delivered to him.

Counsel in argument here emphasize plaintiff’s expression “I want” to give, as though it meant, I want to do it or intend to do it but I am not yet 'doing it. The meaning to be given to verbal expression is as various as is the mode or language clothing such expression. If one says to another “I want to give you one hundred dollars,” at the same time handing it to him, that, if accepted, is a completed gift. But if he should use the same expression and not accompany it by the act, it would be merely giving voice to a wish, desire or intention. We do not consider the cases of Quirk v. Quirk, 155 Fed. 199, In re Campbell’s Est., 7 Pa. St. 101, and others cited by plaintiff as applicable to the facts the jury have found. On the other hand, the cases of Hulet v. Gates, 14 N. D. 209; Eckert v. Gridley, 104 Ill. 306; Cook v. Patrick, 135 Ill. 499, and others cited in the brief, support defendant’s case.

Defendant’s view of the transaction as a gift is corroborated. He showed by other witnesses that [613]*613plaintiff bad stated that be bad given tbe lot to defendant. In tbns corroborating bim a witness said that plaintiff told bim, tbe witness, that be bad “given” defendant tbe lot, that be “gave” defendant tbe lot. In cross-examination tbe witness said that be was unable to state the exact language used. Upon .this plaintiff insists tbe testimony should have been stricken out. Tbe trial court properly refused to do so. It was well enough, if desired, for plaintiff to ask the witness for the exact words used, but if they could not be given, as they rarely can, it is all for the jury to consider in forming their belief. Tbe witness not only stated that that was bis construction of what plaintiff said, but that it was what be told bim.

There was no error in a like ruling as to another witness. Neither was there any error in refusing to permit evidence of plaintiff having lost in bis business. It was immaterial. Tbe issue between tbe parties was whether the transaction represented a gift or a debt. If a debt, no point, was being made that the time had not arrived, or the condition come about, for its collection.

The judgment is affirmed.

All concur..

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ELLISON, J.

Plaintiff and defendant are brothers, and at the time of the origin of the transaction in question had been successful in business as partners and were in affluent circumstances. They each desired to buy a lot upon which to build a residence. They bought adjoining, and when the deeds were brought to them the plaintiff paid for his own and for defendant’s. The latter claims the transaction was a gift to him, while the plaintiff insists he advanced the money for defendant, to be paid back to him when he should call for it. He afterwards demanded the money, defendant refused to pay and this action followed. The judgment in the trial court was for the defendant.

When the deeds were ready for delivery plaintiff and defendant were together. They differ as to what then transpired. Plaintiff testified that he said to defendant: “I had better pay for these, hadn’t I? We will have to draw the money out of the business. If you pay for them we will have to draw the money out of the business. I will just pay for them, and if I ever need it or call for it, you pay me for it.” Defendant testified that “when it came to paying for these lots, he wanted to make me a present of the lot. He said, [612]*612‘You. have worked hard and yon have made this money. I want to build a ten thousand dollar house on that lot and give it to you.’ I accepted the lot, and offered to pay for it at the time, but he wouldn’t let me pay for it. He gave me the lot.” Whichever statement is true, it was followed by plaintiff paying for' both lots, $3600 each, and about six years thereafter bringing this action as just stated.

We cannot see any legal ground for interfering with the judgment. Plaintiff has cited us to authority supporting his contention that a gift must be a completed transaction and that a mere expression of an intention to malee a gift will not transfer the title to the thing given until the intention is consummated. We make no objection to this, but, if defendant is to be believed, the jury had ample ground to find that the expressed intention was accompanied by the actual gift. That is, by paying for defendant’s lot at the time the deed was delivered to him.

Counsel in argument here emphasize plaintiff’s expression “I want” to give, as though it meant, I want to do it or intend to do it but I am not yet 'doing it. The meaning to be given to verbal expression is as various as is the mode or language clothing such expression. If one says to another “I want to give you one hundred dollars,” at the same time handing it to him, that, if accepted, is a completed gift. But if he should use the same expression and not accompany it by the act, it would be merely giving voice to a wish, desire or intention. We do not consider the cases of Quirk v. Quirk, 155 Fed. 199, In re Campbell’s Est., 7 Pa. St. 101, and others cited by plaintiff as applicable to the facts the jury have found. On the other hand, the cases of Hulet v. Gates, 14 N. D. 209; Eckert v. Gridley, 104 Ill. 306; Cook v. Patrick, 135 Ill. 499, and others cited in the brief, support defendant’s case.

Defendant’s view of the transaction as a gift is corroborated. He showed by other witnesses that [613]*613plaintiff bad stated that be bad given tbe lot to defendant. In tbns corroborating bim a witness said that plaintiff told bim, tbe witness, that be bad “given” defendant tbe lot, that be “gave” defendant tbe lot. In cross-examination tbe witness said that be was unable to state the exact language used. Upon .this plaintiff insists tbe testimony should have been stricken out. Tbe trial court properly refused to do so. It was well enough, if desired, for plaintiff to ask the witness for the exact words used, but if they could not be given, as they rarely can, it is all for the jury to consider in forming their belief. Tbe witness not only stated that that was bis construction of what plaintiff said, but that it was what be told bim.

There was no error in a like ruling as to another witness. Neither was there any error in refusing to permit evidence of plaintiff having lost in bis business. It was immaterial. Tbe issue between tbe parties was whether the transaction represented a gift or a debt. If a debt, no point, was being made that the time had not arrived, or the condition come about, for its collection.

The judgment is affirmed.

All concur..

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125 S.W. 1171, 141 Mo. App. 610, 1910 Mo. App. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowler-v-fowler-moctapp-1910.

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