Opinion
27670.
DECIDED DECEMBER 5, 1939.
Complaint; from Fulton superior court — Judge V. B. Moore. March 18, 1939.
Ellis McClelland, J. Wilson Parker, for plaintiff.
G. B. Walker, H. A. Allen, for defendant.
The evidence authorized the verdict for the defendant. No error appears in the exclusion of testimony, or in the charge of the court.
DECIDED DECEMBER 5, 1939.
Miss Mary Gullatt, as administratrix of the estate of Mrs. Martha Ann Thompson, instituted suit against I. N. Thompson for the recovery of $2500 and $65. It was alleged in the petition that the plaintiff's intestate, who was the mother of the defendant, entered into a verbal contract with the defendant about the year 1916 by which the defendant undertook and agreed to furnish his mother board and lodging and provide a home for her at his residence in consideration of which she agreed to allow him the use of $2500 in cash which she delivered to him; that the defendant was not to pay any interest on this money but should retain the interest in payment for board and lodging furnished by him to the deceased; that the defendant had continuously used the money and had never repaid it; that the money became due the estate upon the termination of the contract on the date of the death of the intestate, April 12, 1936. It was also alleged that the defendant, at the time of the death of the intestate, had in possession $65 of money which had belonged to the deceased and which she had on her person when she was stricken in her last illness; that the plaintiff had demanded payment of the defendant for both sums of money and the defendant had failed and refused to pay same. The plaintiff prayed judgment in the principal sum of $2565 with interest.
The defendant, in his plea and answer, alleged that the deceased, about the time alleged, moved into his home and remained there until her death; that he furnished her whatever she needed, but he denied that he did so pursuant to any such contract as that alleged in the petition, but that he performed the alleged services for the deceased, who was his mother, on account of his love for her; that he wanted her in his home and took pleasure in furnishing her every comfort he could command during her declining years. He admitted that the deceased had turned over to him the $2500, but he alleged that she delivered it to him as a gift with the understanding that if she ever needed it or called for it or any part of it he would pay it to her, but if she never called for it, it was to be his in payment for his kindness in taking care of her throughout the long period of years that she lived with him from 1916 until her death in 1936; that she never called for it and that he accepted the money under these terms. The defendant admitted that a sum of money belonging to the deceased, which included the $65 sued for, had come into his possession, but he alleged that he had expended it at her direction during her last illness for physicians' bills, nurses' hire, etc. The case went to trial and resulted in a directed verdict for the defendant. This court, upon a review of the judgment overruling the plaintiff's motion for new trial in that case as reported in Gullatt v. Thompson, 57 Ga. App. 669 ( 196 S.E. 107), reversed the judgment and granted a new trial on the ground that the court had erred in the admission of certain evidence offered by the plaintiff, and in the direction of a verdict for the defendant. The court, in that case, held that the evidence was insufficient to show that the $2500 was delivered to the defendant as a gift, and that since the plea when properly construed set up title to the $2500 solely on the ground that it was delivered as a gift the verdict for the defendant was without evidence to support it, and that a verdict and judgment for the plaintiff were demanded as a matter of law.
On the second trial, which is the one now under review, the defendant amended his plea and answer by striking therefrom all allegations to the effect that the $2500 had been delivered to him by his mother as a gift and that he furnished her with board, lodging, etc., on account of his love for her, etc. The plea as amended denied that he had borrowed $2500 or any other sum from the plaintiff's intestate as alleged in the petition, or that he had had any contract with her by which he was to have the use of the $2500 as alleged, or any other sum for supporting her. In his plea as amended he set up as to the $2500 the sole defense that his mother had placed with him the $2500 some years before her death with the understanding and agreement between him and his mother that he was to have the $2500 in return for board and lodging furnished to her by him throughout the remainder of her life, and that the defendant had furnished the board and lodging to his mother as contracted "in return for said $2500." The defendant further set out in the plea as amended that after he had paid certain expenses of his mother's last illness, except the board for nurses who waited upon his mother, and for medicine and drugs, which amounted to $50, which he had paid for out of his own funds, there was left in his hands of his mother's money approximately $65; that the sums paid out by him for medicine and drugs and the cost of the board which he had furnished to nurses was in excess of the $65; that he used the $65 to reimburse himself for expenses thus incurred by him in his mother's behalf. The defendant denied that he was indebted to the plaintiff in any sum whatsoever.
At the second trial the plaintiff amended the petition by an amendment containing two counts upon which she predicated her right to recover of the defendant the $2500. In the first of these counts, which is denominated count 2, she alleged that the deceased had deposited with the defendant the sum of $2500 "subject to withdrawal at any time; that said deceased did not withdraw said sum from the defendant." In the other one of these counts, which is denominated count 3; she alleged that "the deceased gave to the defendant the sum of $2500 and reserved the right to revoke the same at any time during her lifetime," and "that pursuant to said agreement, the deceased delivered to the said defendant the sum of $2500 in cash which said sum the defendant has continuously used up to the present time," and "that said defendant never repaid said sum of $2500 to the deceased during her lifetime," and that "title to said $2500 never left the deceased, and the title to the same never passed to the defendant, and said sum is now a part of the assets of the estate of said deceased." In both of these counts it is alleged that the $2500 had been demanded of the defendant and he had failed and refused to pay it. In the original petition and in the two counts added by amendment the plaintiff also sued to recover the $65 alleged to have been acquired by the defendant from the deceased during her last illness. The defendant, in his plea and answer to counts 2 and 3 of the amended petition, set up the same defenses against the plaintiff's claim for the $2500 and the $65 that he had set up in his amended plea and answer above referred to.
On the second trial, on the petition containing three counts as amended, and the plea and answer of the defendant as amended thereto, the evidence was in substance as follows: It was admitted that the $2500 and the $65 came into the hands of the defendant. Mrs. I. N. Thompson, the defendant's wife, testified that she remembered having a conversation with Mrs. Martha Ann Thompson, the deceased, the mother of the defendant, about the time the deceased came to live in Mr. Thompson's home; that the deceased stated that she was making arrangements with Mr. Thompson to come and live with him if it was all right with the witness; that the deceased was going to turn over some money to Mr. Thompson "to make her home with us," and that she didn't say how much. She said she was going to turn over the money to him for a home. She turned the money over to Mr. Thompson about that time. "She continued to live at our home from then until the time of her death." Mrs. Nona Thompson, the daughter of the defendant, testified as follows: "At the time prior to grandmother's death [meaning Mrs. Martha Ann Thompson, the deceased] I had a conversation with her, or rather she had a conversation with me, with reference to the reason why she gave father the $2500 that is in question here. I don't recall clearly, but it was somewhere around two years before her death. One night grandmother and I were alone. She said she would turn the money over to papa so that she could feel as free as she pleased, and not have anybody worrying her. That is the reason she turned the $2500 over to him."
Grady Thompson, a son of the defendant, testified to a conversation with Mrs. Martha Ann Thompson four or five years before her death. He testified as follows: "She lived at father's home quite a number of years prior to her death, about sixteen or eighteen years. Prior to her death . . I had a conversation with her with reference to the reason why she had turned over $2500 to father. She said she was glad to come back home and glad to know she had a place she could call her home, and she gave my father $2500 when she came there, and she was well pleased with her health, and that was for her board. She gave father $2500 when she first came there so as to have a home that she could call her own, and that she was well pleased with it. . . That is not the same conversation that sister Nona testified about, she was not present."
The defendant testified as follows: that he had testified on the former trial that his statement in his answer was correct, that he accepted the money to use as his own provided his mother never called for it in her lifetime; that he testified on that trial that his mother gave him the $2500, and that he was to use it as his own money, and it was to be his money until his mother called for it, and that if she never called for it it was to be his. He stated that she had never called for it. He further testified as follows: "As to whether I held this $2500 from the time that my mother came to live with me up until her death, subject to her call, and whether if she ever needed it and wanted it, she could call me to pay it back, I told her when she gave it to me that if she ever needed any money I would give it to her. As to whether I did hold this particular money subject to her call at any time she needed it, she just said if anything should happen she wanted to change her home then I was to give it back to her."
Mrs. Tucker, the defendant's sister, had testified that shortly after the death of Mrs. Thompson, their mother, there was a meeting called at Mrs. Tucker's house and the defendant came to the meeting; that Mr. Thompson told her he guessed his mother had told her all about her business, and stated to Mrs. Tucker: "If the girls will come this evening you get a compromise, and compromise for a thousand dollars," and "I will pay a thousand dollars and meet it now, but if you can not get them to compromise for a thousand, tell them I will pay the twenty-five hundred if they will give me time;" and Thompson stated that "he had a house started and he meant if mother had lived until he got his house finished," to sell the house and pay his mother off. The defendant, in his testimony, stated in reference to this meeting at Mrs. Tucker's house and what transpired there, that as to the purpose of the meeting he understood that "they were going to sue me for some money, and I went up there to try to keep it out of court;" and that he did not, while he was there, propose to Mrs. Tucker that he would pay her or the other heirs $2500; that he did not propose to pay her any amount whatever, either $1000 or any other sum; that he told Mrs. Tucker his mother intended for him to have this money for taking care of her, but that if the heirs did not think he was entitled to the money, and if they would give him time to work it out of his property, he would pay the money over to them; that he made that proposition to Mrs. Tucker because his wife asked him to go and see if he could not do something; that he did have a notion that he wanted to keep the matter out of court, that he went to the meeting at Mrs. Tucker's, not because he realized he owed his mother some money, but he went for the purpose of keeping "out of court."
Mr. C. J. Westbrook had testified that he married one of the Thompson girls; that after the mother died he and his wife went to see Mr. Thompson with reference to some money his wife contended that Thompson owed the mother's estate; that at the time Mr. Thompson stated that his mother turned over the money to him the day she came to his house and further stated: "If you all don't think I deserve it all I will pay it back, give me a little time," that the witness's wife stated to Mr. Thompson that she didn't think he deserved the money and that "some of the rest of them don't; I think you ought to;" that Mr. Thompson stated that there was $65 left over and he was going to divide that "amongst them."
As respected these transactions testified to by Mr. Westbrook, the defendant testified that he had had a conversation with Mrs. Westbrook, but that Mr. Westbrook who had come with Mrs. Westbrook was not present but "was up in the car, sitting up on the side of the road about forty feet away;" that the witness's sister, Mrs. Westbrook, asked witness what he intended to do about his mother's estate, and he told her he was not going to do anything, that his mother had given the money to him for taking care of her, and that he was not going to do anything about it; that he did not at that time promise Mrs. Westbrook to pay her $1000, or $2500, or any other sum. Other witnesses, relatives of the defendant, had testified to the effect that Thompson had stated he would pay back the $2500 if he was given time and if the heirs thought he ought to pay it, and that he wanted some arrangement made with the heirs for the payment. Some of them testified that the defendant had also stated that his mother had given him this money. The defendant testified that he had stated to all these witnesses in the conversations referred to by them that his mother intended for him to have this money.
There were also introduced in evidence paragraphs 6, 7, and 9 of the defendant's original answer, which the defendant had stricken by amendment to his plea and answer, the contents of which have been heretofore stated. It appears from the defendant's testimony that he expended for his mother's benefit the entire sum of money which she had had on her person during her last illness and which he had received from her and that in addition thereto he had expended in her behalf some of his own funds. The jury found a verdict for the defendant. The plaintiff moved for a new trial on the general grounds and on two special grounds as will appear later. To the judgment overruling the plaintiff's motion the plaintiff excepted.
The evidence authorized a finding that Mrs. Martha Ann Thompson, the deceased, delivered to the defendant, her son, the sum of $2500, in consideration of his taking care of her and providing a home for her during the remainder of her life, and that he performed such services for her. The evidence was also sufficient to authorize the finding that the defendant had expended for and in behalf of his mother money which she had had in her possession before her death and which had come into his hands. While there was evidence that after Mrs. Thompson's death the defendant had manifested a willingness to repay this money to her estate, and had suggested that he be given terms upon which to pay it, or that he would make a compromise of the heirs' claim against him for the payment of this money to Mrs. Thompson's estate, there was also evidence that the defendant in making such statements and at other times had stated and contended that he did not owe the money to the estate, and that the money rightfully belonged to him under his agreement and contract with his mother, but that he was willing to pay or to compromise with the heirs to avoid a lawsuit. Such statements by the defendant, if made (and many of which he denied having made), were mere extra-judicial admissions, the making of which were subject to explanation, and, when considered in connection with the other evidence to the effect that the deceased paid the money to the defendant in consideration of his caring for her and giving her a home, do not demand a finding as a matter of law that the defendant owed the money to Mrs. Thompson's estate.
There were introduced in evidence certain stricken portions of the defendant's original plea and answer in which he alleged that the $2500 had been delivered to him as a gift by his mother with the understanding that if she ever needed it or called for it or any part of it he would pay it to her, but that if she never called upon him for it the money was to be his in payment for his kindness in taking care of her throughout the long period of years she lived with him from 1916 until her death in 1936; that she had never called for it; and that he had performed the services for his mother on account of his love for her, and because he wanted her in his home and took pleasure in furnishing her every comfort he could during her declining years. On the trial of the present case the defendant testified that he had testified on the former trial that his statements in the stricken portions of his plea and answer were true and correct. He testified upon the present trial that he accepted the $2500 from his mother as his own, provided she never called for it in her lifetime, and that he was to use it as his money and it was to be his until she did call for it; that if she never called for it the money would be his, and that she had never called for the money. It is insisted by the plaintiff that under this testimony of the defendant, including these admissions in the stricken plea and answer, the testimony of the defendant himself established conclusively and without dispute that the money was not given to him by his mother in payment for services rendered by him in furnishing her with board and lodging; but that it was her money which she had merely deposited with the defendant with the right reserved to recall it at any time, and that therefore the defendant acquired no right, title, or interest therein.
It is insisted that the testimony of the defendant himself must be taken in preference to the testimony derived from any other witnesses which might authorize any inference to the contrary, and that the testimony of the defendant established conclusively and as a matter of law that he was not entitled to this money, but that his mother, during her lifetime, was entitled to it and that upon her death the right, title, and interest therein passed to the administrator for the benefit of the heirs and creditors of the estate. Whether or not the defendant would be bound as a matter of law by his testimony irrespective of any testimony to the contrary from other witnesses, his testimony did not necessarily and as a matter of law bear the construction that the money was not given to him by his mother pursuant to a contract and agreement by which, in consideration thereof, he furnished her board and lodging during the remainder of her life. The facts, as appeared from the statement of the defendant, whether in his testimony or in the stricken portion of his plea and answer appearing in evidence, that the deceased delivered the money to him as a gift with the understanding that if she ever needed it or called for any part of it he would pay it to her and that if she never called for it it was to be his, and that he accepted the money under these terms, when taken in connection with other evidence, including that contained in the defendant's stricken plea, that he performed the alleged services for his mother on account of his love for her, that he wanted her in his home, and took pleasure in furnishing her every comfort he could command during her declining years, were perfectly consistent with the existence of a contract between him and his mother by which, in consideration of the payment to him of the money, he was to furnish her board and lodging for the balance of her life, which he did.
The evidence authorized the inference that the defendant was willing to furnish the services to his mother without pay and solely on account of his love for her. It is conceivable that, under such circumstances, notwithstanding the money may have been paid to him by his mother in consideration of his promise and undertaking to furnish her with board and lodging during her life, as he contended was the contract, he would be willing at any time, upon her needing the money, or upon her request for the money, to give it back to her, and to furnish such services to her without pay. He would not have earned the money in its entirety, under any theory of the evidence and the inferences deducible therefrom, until his mother had died and he had fully performed the services. If the mother had any legal right to reclaim the money at any time after she paid it to him, her depositing the money with him under an arrangement and agreement by which it was paid to him in consideration of his agreeing to furnish or furnishing her with a home and taking care of her until she died, amounted to a continuing offer by her to him, while the money was on deposit with him, in the absence of her reclaiming it, of the money, in consideration of his supporting her for the balance of her life. When she died without having recalled the money and he had furnished the services to her as contracted for, the offer was then accepted and the money belonged to him in consideration of the services which he had performed. The testimony of the defendant therefore, including the admissions referred to, does not demand a finding that he was not entitled to the money, and that the money was not paid to him in consideration of services which he actually rendered to his mother.
It is insisted by the plaintiff that it has been adjudicated by this court in the former decision of this case that the evidence demanded a verdict for the plaintiff; that that is the law of the case; and that upon this ground the evidence demanded a verdict for the plaintiff; that the verdict for the defendant is without evidence to support it and that the judgment overruling the motion for new trial on the general grounds should be reversed. There is no merit in this contention. In that decision it was held by the majority of the court that "the plea of the defendant when properly construed sets up title to the $2500 which he alleges was delivered to him by his mother on the sole ground that the money was delivered to him as a gift, and that since, as appears from the defendant's plea, under the ruling hereinabove made, the delivery of the money to the defendant did not constitute a gift from his mother to him, that therefore the verdict found for the defendant was without evidence to support it but that a verdict and judgment for the plaintiff were as a matter of law demanded." The court in that case construed the defendant's plea as setting up title to the money solely upon the ground that it had been delivered to him by his mother as a gift. It appeared from the evidence in that case, as ruled by the court, that there was no gift of the money by the mother to the defendant, and since otherwise the money did not belong to the defendant but belonged to the plaintiff, the administratrix was entitled to recover. The defendant has since stricken that portion of his plea in which he alleged that the money was delivered to him as a gift, and has set up that the money was paid to him by his mother in consideration of his services in taking care of her and furnishing her a home as long as she lived. The evidence adduced upon the present trial was sufficient to sustain this amended plea of the defendant. Therefore, under the former decision of this court, a verdict for the defendant was not, upon an application of the law of the case, unauthorized.
Mrs. Tucker, the sister of the defendant, testified to a conversation which she had with the defendant shortly after the mother's death, and to Mr. Thompson's statements made to Mr. tucker at that time. She testified that in that conversation Mr. Thompson stated to her that he guessed his mother had told her about her business, and that Mr. Thompson proposed to her that the matter be compromised; that he would pay $1000, and if he could not get a compromise to tell the girls that he would pay $2500 if they would give him time; that if his mother had lived until he got his house finished he intended to sell the house and pay his mother off. In the first ground of the amendment to the motion for new trial exception is made to the exclusion by the court from evidence of a statement made by Mrs. Tucker to the defendant, at the time referred to and as part of the same conversation, that she had stated to him: "Mother told me that you owed her but she didn't tell me how much nor I didn't ask her." This statement by Mrs. Tucker was made to Mr. Thompson in reply to his statement to her, to which she testified, that Mr. Thompson guessed his mother had told Mrs. Tucker about her business.
The above-excluded statement of Mrs. Tucker made to Mr. Thompson could be admissible only as a part of the conversation had between her and him at the time, and for the purpose only of showing his reaction thereto in a manner which would amount to an admission by him that he owed the money to Mrs. Thompson's estate. Mrs. Tucker testified, and the testimony was admitted, as to what Mr. Thompson stated to her in this conversation, it being that he proposed a compromise, and that he stated that if he couldn't obtain a compromise he would pay the $2500 if they would give him time, and that he had intended to pay this money if his mother had lived until he got his house finished, etc. Mrs. Tucker presumably stated in her testimony all that Mr. Thompson stated to her on this occasion in the way of an alleged admission by him as to any indebtedness to the estate. It therefore would have been no benefit to the plaintiff had this omitted statement of Mrs. Tucker been admitted in evidence for the purpose of showing and indicating Mr. Tucker's reaction to the statement and his conduct on that occasion. The admitted testimony of Mrs. Tucker shows this.
Otherwise the statement in the proposed testimony of Mrs. Tucker to the effect that the mother told her Mr. Thompson owed the mother the money was hearsay only, and was not admissible unless it amounted to a statement or declaration by the mother against her interest. It was a self-serving declaration, and was therefore not admissible as an admission. It was not part of the res gestae, and therefore was not admissible as such. Code, § 38-309; Drawdy v. Hesters, 130 Ga. 161 ( 60 S.E. 451, 15 L.R.A. (N.S.) 190). This testimony was not admissible, and the court did not err in excluding it when it was offered.
In the only remaining ground of the amendment to the motion for new trial the plaintiff excepted to the charge to the jury wherein the court stated that if the jury should believe that the mother entered into an agreement, as alleged by the defendant, to pay him the $2500 in consideration of his taking her into his home and furnishing her with board and lodging throughout the remainder of her life, and that if they should believe that the agreement further was that if the mother ever needed this money or any part thereof the defendant would give it to her, and that she delivered the money to him with this understanding and he accepted it with this understanding, and that he did take her into his home and furnished her board and lodging in accordance with the terms of the agreement, this would be a valid contract between them, and the jury should find for the defendant as to the item of $2500. The exception to this charge is that it was error in that the court instructed the jury that they could find for the defendant notwithstanding the jury should believe that the understanding between the parties was that if the mother ever needed the $2500 or any part thereof the defendant was to pay it to her; it being contended by the plaintiff that if this was the agreement and understanding the title to the money did not pass to the defendant but remained in the mother, and that if this was the agreement the estate would be entitled to collect the money notwithstanding the defendant had taken his mother into his home and had kept her there and furnished board and lodging to her for the balance of her life. There is no merit in this exception. It appeared conclusively from the evidence that the defendant took his mother into his home, that she gave him the $2500, that he took care of her and furnished her board and lodging for the balance of her life, and that she never did call for the return of the money or any part of it, and so far as appeared from the evidence she never needed the money. As we have already held that if the defendant furnished the services as agreed and the mother did not call for the return of the money the defendant was entitled to the money, the charge contained a correct statement of the law applicable to the case and was not error.
The jury were authorized to find for the defendant and no error appears.
Judgment affirmed. Sutton and Felton, JJ., concur.