Argued May 1, 1896
Decided May 26, 1896
Delos McCurdy for appellant.
William H. Ford for respondent.
This is a peculiar case. It is perfectly clear that the defendant intended, at the time, to give to the plaintiff the Christmas present of $2,500 and it is, also, equally clear that, subsequently, he bethought himself of the new arrangement, which he had made with respect to his clerk's compensation, and became conscious of the mistake he had committed. Of course, notwithstanding the new arrangement between them, which, according to the defendant, was upon a basis which would make the usual annual Christmas gift no longer a thing to be expected, there was nothing to prevent his continuing to recognize the peculiar value to him of the plaintiff's services by way of gifts of money. When, upon the occasion of their interview on Christmas eve, he handed the envelope containing the check to the plaintiff, with the expression of his good wishes, there can be no doubt that there were present the two elements necessary to constitute a perfect gift, viz.: the intention to give, followed by a delivery of the thing given. The argument that the defendant could not have intended to give the $2,500, because that sum would then have been given twice, in view of its having been included by the defendant in the new arrangement with respect to compensation, is not quite sound. All that is necessary to constitute intention, and all that we understand, legally or otherwise, by intention, is the design, or determination, of the mind and that mental condition may exist, when an act is done, irrespective of the fact that, were something else then recalled, it might not have acted in the same manner. This is not like the case where parties come to some agreement, in the belief that a certain state of facts exists, and money is paid by the one to the other in consequence thereof, and it subsequently appears that there was a mistake with regard to the facts. Money, when so paid, is deemed to have been received by the one to whom it is paid to the use of the one paying it. The mutual error, which affected the agreement between the parties, requires that they should be remitted to their original rights. In such a case, in equity and in justice, the money does not belong to the party receiving it. So, too, if there is an equitable basis for redress, by reason of some mistake of fact in the contract, due to the ignorance or forgetfulness of the party, equity will not infrequently intervene. The principle is, in such cases, that there is not that consent of the minds which is essential to the perfect agreement. A gift, however, requires no consideration and depends upon no agreement, but upon the voluntary act of the donor only, and is accomplished by a delivery of the subject of the gift.
The defendant's silence towards the plaintiff for months afterwards, until the latter, becoming acquainted with the fact of the bookkeeper having charged the sum to his account in the books, had the opportunity of speaking with him upon the subject, is a very remarkable fact and one which militates against the defendant's case in every way. The finding of the referee, that there was a gift from the defendant to the plaintiff, is not only supported by the affirmative evidence in the case given by the plaintiff, but it would have support in the inferences which might be drawn from the strange silence of the defendant towards the plaintiff subsequently. Indeed, it is difficult to see, giving all faith to the defendant's testimony about the matter, how the referee could have come to a different conclusion than he did upon the facts. If the defendant's position was tenable, that a gift under a mistake invalidates it and the giver is at any time justified in setting up the mistake in order to defeat the gift, it might, in instances, result in great injustice, if not hardship. The party receiving an important gift might be so misled by the silence of the other into believing, not only that the giver had meant to give, but that he had not repented him of his act, as, in that belief, to have spent the money, or to have changed his mode of life in consequence. How was the plaintiff to know, after the gift of this money to him, accompanied with the friendly expressions of the giver, in the time that followed, that he had incurred an obligation to return the money? It would be a very harsh rule to lay down, that a party, receiving a gift under the circumstances of the present case, might incur, to quote the language in Haviland v. Willets (141 N.Y. at p. 52), "an unknown and unsuspected obligation, if required, to return the fund."
In answer to the argument of the appellant, that the delivery of the donor's check did not make a valid gift of the sum of $2,500, it is sufficient to say that it is not like the making of a promise, such as would be the donor's promissory note, where the gift is not consummated until the delivery of the thing promised and remains revocable until such delivery. The delivery of a check is the delivery of something which represents a certain sum of money, which the drawer of the check intends that the payee shall, in fact, have. What the defendant gave to the plaintiff, while in form his own check, in fact, was an order upon the bank to pay to him the sum of money represented by it. That the transaction was complete, by the payment of the check to the plaintiff, is amply evidenced; if by nothing else, by the very direction of the defendant to his bookkeeper to charge its amount to the account of the plaintiff in his books. The reasoning of the referee with respect to this point made by the appellant is perfectly satisfactory.
The judgment appealed from should be affirmed, with costs.
All concur, except O'BRIEN, J., not voting.