Hanisko v. Hanisko

147 N.E.2d 629, 76 Ohio Law. Abs. 600, 1956 Ohio App. LEXIS 794

• Court: Ohio Court of Appeals
• Decided: November 2, 1956
• Docket: No. 3869
• Status: Published

Opinions

OPINION

By GRIFFITH. J.

This is an action to recover $3,000.00 which plaintiff alleges he turned over to the defendants with the understanding that they would return the same to him as he might request. Plaintiff alleges that he later made demands upon defendants for the money, and that they have refused to return it.

In addition to the general denial of the facts alleged by the plaintiff in his petition the defendants say that the check was delivered to the defendants as a gift.

The only issue therefore pertains to the nature of this transaction. Was it a delivery coupled with the imposed condition that it be returned to plaintiff upon request, or was it an outright gift?

The transaction between the parties admittedly embraced the following elements:—

(1) It was a transfer of the money from plaintiff to defendants.

(2) There was no consideration therefor.

(3) Plaintiff at time was of sound mind and not under any restraint.

(4) He had a right to make a gift.

(5) Delivery was fully made by plaintiff and accepted by defendants.

The above five items are all elements of a gift.

To constitute a gift, however, there must be an intent on the part of the donor to make such gift, and he must irrevocably part with ownership and control and with no condition imposed thereon to be carried out by the donee.

The court charged the jury:—

“The plaintiff comes in here, in the first instance, and makes an affirmative claim that he turned oved $3000 by a check to the defendants in the early part of 1952 for the purpose of their holding it for him and to send him such parts or all of it as he requested, and that this was done on the basis of a trip to Canada. Essentially, the claim of the plaintiff here is that this money, represented by the check, was turned into the custody of the defendants, that they would hold it for him, pay it over as he asked for it.

“That is denied by the defendants. Their position, as you know, is that the transaction was an out-and-out gift. Since the plaintiff has come in here and made an affirmative claim as to the nature of the transaction, namely, that the money was turned over to the defendants to hold for him and pay out as he asked it to be paid out to him or on his order, since that affirmative claim has been made and is denied by the defendants, in order for the plaintiff to prevail in this law suit, he must establish, essentially, that that was the transaction in order to be entitled to a verdict at your hands. We sometimes put it by saying the burden of proof is upon the plaintiff to establish his claim, his affirmative claim by the greater weight of the evidence. By the greater weight of the evidence is meant this, that he must establish the affirmative of his claim by evidence which in your judgment has greater weight, is more persuasive to you than all other evidence to the contrary. I am going to go into this matter a little more fully. You have before you a determination of a fact, and you are considering the evidence, the fact being was this money turned over in, you could say in trust, but in the care and custody of the defendants for the plaintiff’s benefit.

“Now you weigh the evidence on either side of that proposition; and if you find, after weighing it and considering it, that it weighs against the plaintiff’s claim, then the plaintiff has not established his claim by the greater weight of the evidence; likewise, if you should find in weighing the evidence that it is about equal or substantially equal on both sides, again I instruct you the plaintiff cannot be said to have established his affirmative claim by the greater weight of the evidence.

“But if you find, even though it is by a small amount, that the evidence in favor of the plaintiff’s claim outweighs even to a small extent the evidence against it, then the plaintiff could be said to have established his claim by the greater weight of the evidence.

“So in this case, unless you find that the plaintiff has established the issue of fact I am now discussing, I remind you it is the question of whether or not the money was turned over by the plaintiff to the defendants to hold for him, unless the plaintiff has established the affirmative of that claim of his by the greater weight of the evidence, your verdict must be for the defendant.

“On the other hand, if you find that the plaintiff has established his claim by the greater weight of the evidence, the claim referred to, then he is entitled to recover and your verdict should be for the plaintiff.

“I have taken, perhaps, quite a few minutes to tell you about this, but after all, it is a simple issue. If you find for the plaintiff, you will have no problem as to the amount of money involved. It is either $3,000 or nothing, depending on your determination of the leading issue in the case. If you find for the defendant, of course, the plaintiff is entitled to nothing. If for the plaintiff $3000. There is no interest complication in this case. The petition does not ask for interest.”

Wasn’t the presence or absence of the condition imposed upon the delivery of this money the only question involved? All the other elements of a gift were admittedly present so why charge on the subject of gift, which could only tend to draw the minds of the jurors away from the real single fact in issue in this case, to-wit, was it a conditional gift or was it an outright delivery free from any strings attached.

The charge in this case is clear and goes directly to the one issue of fact, and although counsel on both sides requested the court to charge on what constitutes a gift the court was not required to do so, and was correct in refusing so to do. How could it have helped the defendants if the court so charged? The issue was the presence or absence of a conditional delivery of this money and nothing more. The court should not go beyond this one single issue and embrace issues of fact not in the case. The five elements of a gift were not in issue. The sixth issue, to-wit, was there a condition imposed on the gift, was the only matter in issue.

There was evidence both ways as to this issue, and the jury determined that it was not an outright gift but a conditional delivery as claimed by plaintiff.

We fail to find any prejudicial error in the other eight assignments set forth and the judgment is affirmed.

PHILLIPS, PJ, concurs in judgment. NICHOLS, J, dissents.