McGovern v. O'Donnell

delivering the opinion of the court:

At the trial of this case below, motion for a nonsuit was granted which the plaintiff declined to accept, whereupon the jury was instructed to return a verdict in favor of the defendant. As disclosed by the record, the evidence upon which this action was taken by the court showed that the deceased, Isaac J. Gilkey, had in his lifetime received a check for five hundred dollars made *18payable to him or his order and after indorsing it in blank he had delivered it to his' niece, the defendant, with whom he was- at that time living; that Gilkey and his niece went together to the bank where the niece presented the check and received fifty dollars in cash and credit to her account with the bank for the balance of four hundred and fifty dollars; that at the time of the transaction Gilkey was and had been drinking heavily for some time, and was suffering from alcoholism, but was capable of knowing what disposition he was making of his property and to whom he mas making it. There was no evidence whatever of any influence being used with him in the transaction; nor was there any proof that the niece acted as his agent at this or any other time.

Under this evidence plaintiff claims that sufficient ground had been laid to place the burden upon defendant to show, not only that the proceeds of the check had been given to her by Gilkey, for her own use and not as his agent, but also that he thoroughly understood, what he was doing when he gave it to her, and that no deception or fraud was practiced by her upon him for the purpose of obtaining it.

There is nothing in the evidence to show why, or for what purpose or consideration the check was indorsed by Gilkey and by him given to the defendant. There is nothing to distinguish it from the ordinary transaction of indorsing a check in blank by the payee and delivering it to a third party.

[1, 2] Under the evidence in this case, we are clearly of the opinion that the court below did not err in directing a verdict in favor of the defendant. Nor do we find any error in the ruling of the court below in refusing to admit certain evidence offered by plaintiff and rejected by that court.

The judgment below is affirmed;