Castle v. Persons

Citations

• 117 F. 835
• 54 C.C.A. 133
• 1902 U.S. App. LEXIS 4475

Syllabus

<p>1. Gift Causa Mortis— Delivery.</p> <p>A verbal direction by a creditor to his debtor to pay the debt, which is not evidenced by any note or other writing, to another, where the debtor at the time accepts the order and promises the donee to make payment to him, constitutes a good delivery to validate a gift of the chose in action causa mortis. Per Carland, District Judge.</p> <p>2. Same—Revocation—Partial Recovery of Donor.</p> <p>A donor 84 years old, when seriously ill and in expectation of death, made a gift to his wife causa mortis. The evidence showed that he partially recovered, and lived for nearly a year thereafter, being able to walk during a part of the time for a distance of half a mile, but did not disclose the nature of his illness. 2'eld, that it was error to charge as matter of law upon such evidence that the donor’s partial recovery operated as a revocation of the gift. Per Carland, District Judge.</p> <p>8. Pleading—Variance—Defense not Pleaded.</p> <p>The due process of law, without which parties may not be deprived of their property, requires that notice be given of the issue to be determined before it is tried. A defendant may not deny in his answer the plaintiff’s averments of a good cause of action, and then defeat him by a confession of the truth of those averments and an avoidance of their effect by the proof of new matter, no notice of which was given by the pleadings or by the course of the trial until plaintiff had introduced substantially all his evidence. Per Sanborn, Circuit Judge.</p> <p>4. Direction of Verdict—Departure from Issues.</p> <p>In an action to recover on a chose in action which plaintiff alleged had been verbally assigned to her by her husband, which assignment had been accepted by defendant, who promised to pay the debt to her, the court is not warranted in directing a verdict and entering judgment for defendant on the ground that the assignment to plaintiff was intended as a gift causa mortis, which became ineffectual