author: Earl, J.

text:
    Felix St. Anna Govin et al., Resp’ts, v. Luciana Govin De Miranda, Ex’rx, App’lt.

      (Court of Appeals,

      Filed December 22, 1893.)

    1. Replevin—Declaration oe ownership.
    After the death of testator a paper was found in his safe which stated that a parcel containing $39,000 of certain railroad bonds was in the safe, of which $10,000 belonged to another person, and the balance belonged to plaintiffs equally. It concluded: “No person shall have the right to oppose this declaration, because it is founded on conscience and justice. I reserve this money only for what I may consider proper.” The box contained thirty-eight bonds of said railroad. In an action to recover the nineteen bonds, Held, that the paper, in the absence of any evidence explaining or contradicting it, was satisfactory proof of plaintiffs’ ownership of said bonds; that the last clause was consistent with an inference that decedent’s possession was under some agency or upon some trust, with authority to convert the bonds and apply the proceeds consistently with plaintiffs’ ownership.

      2. Same—Demand—Appeal.
    In an action of replevin the claim that no demand was made is not available when raised for the first time on appeal.
    3. Same—Interest.
    In an action for the recovery of possession of bonds the plaintiff, upon recovery, is entitled to interest at the legal rate from the time of demand, although the bonds bear interest at only four per cent.
    Appeal from judgment of the supreme court, general term, first department, overruling exceptions and directing judgment in favor of plaintiffs for a return of the bonds mentioned or their value, and modifying verdict for damages for detention by awarding legal interest on such value from the date of demand.

      Edward C. James, for app’lt; Abram Kling, for resp’ts.

      Affirming 54 St. Rep., 935.

   Earl, J.

This action is brought to recover the possession of nineteen bonds at the par value of $1,000 each of the Chicago, Burlington & Quincy Railroad Company, Iowa division. The facts are undisputed and are as follows: After the death of the testator there was found in a box in a safe in his office a sealed envelope with the following indorsement thereon in Spanish : “A declaration in favor of Emilia, Felix, Guillermina Govin Luz Diaz y Sanchez, who lived in 147 E. 39th street,’’ and in the envelope was the following paper written in Spanish which is translated by the defendant as follows:

“There are in the possession of Ramon Estevez sixty thousand dollars in bonds of the United States of North America, which I hereby declare belong to the three brothers germain Emilia, Felix and Guillermina Govin, residents of this city, in the house No. 147 East Thirty-ninth street. • " ,
“ There is besides in my safe a parcel containing $29,000 in bonds of the Iowa division railroad, and out of them $10,000 belong to Luz Diaz y Sanchez, mother of the aforesaid persons, for covering a memorandum or note for the same sum subscribed by me, and the balance belongs to the aforesaid Emilia, Felix and Guillermina, share and share alike.
“ No person shall have the right to oppose this declaration, because it is founded on conscience and justice. I reserve this money only for what I may consider proper.
“New York, December eighth, one thousand eight hundred and eighty-three.
“ (Signed) Felix Govin y Pinto.
“ Acknowledged before me this the 1 15th day of December, 1883. j
“Jas. W. Hale,
Notary Public,
‘4 Hanover Square.”

In the same box were found thirty-eight four per cent bonds of the Chicago, Burlington and Quincy Railroad Co., Iowa division, of $1,000 each, and these plaintiffs being the persons named in the paper, claimed nineteen of them.

It does not appear in this action what relationship, if any, the plaintiffs bore to the testator, and no proof was given upon the trial that at the time of the execution of the paper, or at any time prior thereto, the testator owned the bonds mentioned therein. The case depends entirely upon the force and effect to be given to paper as evidence, and, we think, it shows that nineteen of these bonds belonged to the plaintiffs. They were found in his safe, and there is the unqualified declaration that they belonged to the plaintiffs. We must infer from that language that they came to the ownership of the plaintiffs in some legal way—by purchase or gift from some one, and if there was nothing else in the paper qualifying the delaration no one would dispute that it furnished •absolute evidence of their ownership of the bonds.

But the claim is made on the part of the defendant that the last clause in the declaration qualifies and weakens the force of the prior declaration that the bonds belonged to the plaintiffs. That is as follows: No person shall have the right to oppose this declaration, because it is founded on conscience and justice. I reserve this money only for what I may consider proper.” The whole paper must be construed together and all its provisions harmonized, if possible. There is the unqualified declaration that they belonged to the plaintiffs, and that their claim to them was founded upon conscience and jnstice. Now, what did he mean by saying, “ I reserve this money only for what I may consider proper ? ” Does that imply that his previous declaration was untrue ? The bonds were in his possession, as one must infer, under some agency or possibly upon some trust, under which he had authority to convert them and apply the proceeds consistently with the ownership of the bonds by the plaintiffs. It cannot be supposed that after declaring that the bonds belonged to the plain•tiffs as matter of conscience and justice he reserved the right to dispose of them for his own benefit as he pleased. The reservation must be made consistent with the prior declaration of ownership, if possible ; and that it can be is quite apparent. Whatever power of agency he resesved to himself in the bonds, to be exercised for the benefit of the plaintiffs, was revoked by his death, the reserved power never having been exercised. We think, therefore, that the paper furnishes in the absence of any evidence explaining or contradicting it, satisfactory proof of the ownership of the bonds mentioned therein by the plaintiffs.

In the safe of the deceased were found thirty-eight of these bonds, and, therefore, the contention is made on behalf of the defendant, that there was no parcel of the twenty-nine bonds mentioned in the paper. But the paper remained in the safe in the envelope with the declaration written thereon, and it and the declaration on the envelope continued to speak to the time of the testator’s death. If the twenty-nine bonds bad been removed, we ■may assume that the paper would have been destroyed or changed. It must be assumed that the paper was left there to speak and tell the truth at any and all times when it became important, and as there were bonds enough there to answer the description of those mentioned in the paper, the plaintiffs had the right to claim the number of bonds mentioned as belonging to them.

The further point is made on behalf of the defendant, that as-these bonds came into the possession of the defendant after letters testamentary were issued to her on the will of the testator, she could be made liable in this action only after a demand, and that there was no proof pf a demand. In this we think the learned counsel for the defendant is in error. It is stated in the record that at the commencement of the trial the counsel for the plaintiffs opened the case and “ read in evidence a demand as follows: ” And then follows a written demand for these bonds signed by the attorneys for the plaintiffs^ addressed to the defendant, and that was received in evidence without any objection, and thereafter it was assumed in the progress of the trial that the paper was served upon the defendant at the time of its date, January 8, 1892, and no objection whatever was made to the plaintiffs' recovery upon the ground that no demand had been proven. At-the close of the trial the trial judge stated to the plaintiffs’ counsel, “ You are entitled to the possession of the property, and there is no wrong until after a demand has been made. You may take a judgment for the value of the bonds and interest from the time you made the demand.” Ho objection was then made on the part of the defendant that no demand had been made. Hence, the claim that no demand was made is not available upon this appeal.

These bonds bore four per cent, interest, and the trial judge held that the plaintiffs were entitled to recover only four per cent, interest from the time of the demand. To this ruling plaintiffs’ counsel excepted, arid the ruling was modified by the general term and interest at the rate of six per cent, was allowed. It is now further claimed on the part of the defendant that the general term erred in this allowance of interest. We are of the opinion that the decision of the general term was right. The plaintiffs, not being able to obtain possession of the bonds, were awarded their valúe, and upon that value they were entitled to the lawful rate of interest as damages for their unlawful detention. It would be a hard measure of justice for the plaintiffs first to award them the value of their bonds at a reduced sum because they bore but four per cent, interest, and then to allow them but four per cent, interest upon this reduced valuation. The plaintiffs are in the same position as if they had brought an action of trover to recover the value of the bonds, and they should be allowed such interest as they would have been allowed in such an action.

The judgment should, therefore, be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Luz Diaz Govin, Resp’t v. Luciana Govin De Miranda, Ex’rx, App’lt.

      (Court of Appeals,

      Filed December 22, 1893.)

    Replevin—Declaration op ownership—Recovery on obligation to SECURE WHICH IT WAS GIVEN.
    After the cleath of testator a paper was found in his safe which stated that he had $29,000 in certain railroad bonds, $10,000 of which belonged to plaintiff “for covering a memorandum or note for the same sum subscribed by me.” In an action to recover said bonds no note or other memorandum was produced, except a certificate of deposit for $10,000, upon which plaintiff had and recovered judgment. The evidence as to whether there was any note of that amount was very unsatisfactory. Ileld, that a direction of verdict for plaintiff was error.
    • Appeal from judgment of the supreme court, general term, first department, overruling exceptions of defendant except as to amount of damages for detention, directing judgment for the return of the bonds claimed or their value, and limiting the damages for detention to legal interest on such value from the date of demand.
    Action to recover the $10,000 of bonds mentioned in the declaration set forth in the case of Govin v. De Miranda, ante.

      Edward C. James, for app’lt; Abram Kling, for resp’t.

      Reversing 54 St. Rep., 935.

   Finch, J.

We have just determined in another case founded upon the same general facts that the plaintiff is. prima facie entitled to recover the bonds claimed, by force of the admission of ownership contained in the papers which the decedent executed before his death. That conclusion, however, does not reach the further question here involved, and raised by the defendant’s answer, whether such ownership has become divested and extinguished by the act of the plaintiff in suing and recovering upon the certificate of deposit for $10,000 signed by him and which was produced from the possession of the plaintiff. The language-of the certificate as translated from the Spanish was this: “Let ifc be known that Mrs. Luz Diaz y Sanchez has given me $10,000 in currency as a deposit. New York, 25th Oct, 1870. Felix Govin.” This was the only paper produced which imported a liability of $10,000 due to the plaintiff from the decedent, and if in fact there was no other it must be deemed the one to which Govin referred in the declaration which admits the ownership of the bonds, and which would establish the defense.

Whatever may be the true and accurate translation of that document which was written in Spanish and about which the witnesses differ, one thing at least is true of it, and that is that the decedent admitted the plaintiff’s ownership of the ten thousand dollars of bonds as an extinguishment and satisfaction of some corresponding liability evidenced by a paper in her possession. He did not mean to give her the bonds. The declaration effects no such gift. It operates clearly as a satisfaction of some corresponding debt due to the plaintiff which would be at once extinguished upon the acceptance by the creditor of the bonds applied to the intended payment. The certificate of deposit represented just such an outstanding debt of identical amount, and naturally and reasonably the reference would be to that obligation, which had been sued upon and paid, and left the ownership of the bonds in the estate of Govin as the defense claimed, unless there are further facts to the contrary. That the decedent received from Mrs. Sanchez in 1870 ten thousand dollars as a deposit; that he invested it for her and paid her the interest earned; that in 1883 it was represented by the bonds in question; that he deemed it prudent to so declare; and that in so doing and to avoid a double liability, he described the bonds as for an obligation of his to an equal amount held by her, harmonizes the language with the facts and is an extremely probable inference.

But there is claimed to be and there is proof tending to the contrary and upon which the trial court held as matter of law that the plaintiff was entitled to recover, and no defense existed. It is first said, and one or more witnesses so testified, that the Spanish word “ vale ” means a promissory note, and cannot mean a certificate of deposit, and so the reference was not to the latter. The words are, “para un vale de igual suma firmado por mi.” The drift of the evidence is very strong, that where a promissory note, specifically and as distinguished from any other obligation, is meant, the proper word in Spanish to describe it is “ pagare but that where some general obligation is intended, the appropriate word is “vale." .The authority referred to by the witnesses as standard favors that contention, and a little reflection upon the probable origin and derivation of the word “vale,” and the multitude of its definitions, points to the same result. A correct translation of the words of reference might justly be found by a jury to be, “for an obligation of equal amount signed by me,” and so read, the reference could be, and naturally would be to the outstanding . certificate of deposit. Indeed, the use of the general word “ vale ” instead of the specific term “ pagare ” might well be deemed to indicate that a promissory note was not referred to. So that, upon the assumption that such a note . existed, the question to which of the two liabilities the decedent referred became upon the proofs one of fact and not of law.

But the defendant disputes the assumption. Was there any such promissory note outstanding against the decedent and in the hand? of the plaintiff, and did Grovin owe her, not merely one sum of ten thousand dollars, but a second one of the same amount, to which it is possible to say the decedent intended to refer? No such note is produced, and it is quite possible for the defendant to ask a jury to say that it never in fact existed. The proof that it did comes from Emilia and Mr. Kling, one the daughter and the other the attorney of the plaintiff; both naturally desirous of a recovery, and so situated that their evidence is proper matter for the consideration of a jury, and not necessarily conclusive. Gildersleeve v. Landon, 73 N. Y., 609; Wohlfart v. Beckert, 92 id., 490. Emilia testified to having seen such a note by answering. “Yes” to a leading question. The plaintiff’s counsel asked, “ Did you see among the papers, or was there ever in your possession, a note of $10,000, dated in 1883 and signed by your father ?” The counsel for the defendant objected and moved to strike out the answer, and the coqrt said, “ I will strike it out if he does not produce it.” No such note was produced, and whether the court, in deciding the case by directing a verdict for the plaintiff, relied upon this evidence or not, it is impossible for us to know. Emilia said two other things. One was that she gave what the plaintiff’s counsel called “that note” to .him, and the other was that the note was in “ English and Spanish both.” These statements are deemed by the defendant material to a proper identification of the real paper which she saw and held. Then the plaintiff's attorney, Mr. Kling, was sworn. He testified to having received three papers; the first was “ Exhibit B,” which is the original declaration in Spanish; the second was “the receipt or deposit,” by which, of course, he meant the certificate of deposit, the amount of which has been recovered, and the third was “ a paper purporting to have been signed by Mr. Covin, in English.” How what Emilia said she gave him was a note in both Spanish and English, and there seems to be a mistake somewhere. Mr. Kling’s statement does not explicitly call the paper a promissory note.

After detailing its loss and his vain search for it he adds: “This purported to be a paper which in substance, in English, as I recollect it was that he promised to pay Mrs. Sanchez the sum of $10,000." It is urged" for the defense that this careful and guarded description is also ambiguous, and might apply not only to a promissory note, but equally to an English translation of the Spanish declaration which admitted a liability of $10,000, and provided for its payment. It is added that Mr. Kling does not by his evidence exclude that possibility, and that his language indicates some uncertainty in his own mind. It is further sought to throw doubt upon the existence of the alleged note by additional evidence. After Covin’s death Frederick Lewis was appointed temporary administrator. He was called upon by Felix Covin, a son of the decedent, and Mrs. Sanchez, who in behalf of the family presented their claims against the estate. That he presented all that he supposed 'they had must be assumed, and they did consist of three papers, and we know what they were. Mr. Lewis says that one was the certificate of deposit dated in 1870; the second was a paper in Spanish “signed in 1883,” and “in relation to $10,000 worth or $29,000 worth of Chicago, Burlington & Quincy railway bonds, Iowa division,” which of course was the original declaration in Spanish ; and the third was, in the language of the witness, “ worded something similar to this, although the exact words I don’t remember, but it purported to gay that there were in his possession $10,000 worth of railroad bonds, Chicago, Burlington & Quincy, Iowa division, for which the note was given. This was in English and signed by him.” The third paper presented by Felix was clearly a translation of the Spanish declaration. Ho promissory note was produced to Lewis, but instead, the translation of the Spanish paper. Here it is argued we have a reasonable explanation of what Emilia said. The paper she saw was in both English and Spanish. That corresponds with the Spanish declaration and its English translation. It may reasonably be argued that her evidence does not indicate a promissory note, for why should Covin, all whose papers were in his native tongue, give to Mrs. Sanchez, speaking the same language, a note in Spanish for $10,000, and also at the same time a copy in English, or put the one- in a mixture of both languages ? There was no need of it, no motive for it, and if there was a copy it involved the risk of two notes where only one was intended. And the same trouble reaches the evidence of Mr. Kling, whose third paper was in English - and the criticism addressed to the jury might be that he did not call such third paper a promissory note because himself uncertain in his recollection, and that in the multitude of documents which he says he received he may possibly have confused one paper with another. So that, whatever just force may be given to his testimony, it is not so conclusive as to settle the existence of the note as matter of law, but leaves that question open as one of fact. And in support of the theory that there was no promissory note comes the fact already adverted to that the decedent, who was a lawyer of intelligence and ability, and likely to select the apt and appropriate word to convey his thought, did not use the specific word “pagare,” but selected the word “vale,” broad enough to denote an outstanding obligation such as the certificate of deposit was.

It should be added that certain obvious inferences -from the relation and conduct of the parties might reasonably be urged upon the attention of a jury as bearing upon the intrinsic probability or improbability of the respective theories, but their discussion might be unwise in view of the necessity of a new trial, and I think enough has been said to justify our conclusion that it was a manifest error to decide the case as matter of law, and direct a verdict for the plaintiff. The evidence should have been submitted to the jury.

The judgment should be reversed, and a new trial granted, costs to abide the -event.

All concur, except Maynard, J., not voting.