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willful. See, also, Clausers’ Estate, 84 Pa. 51; Landis v. Scott, 32 Pa. 495; Milligan’s Appeal, 97 Pa. 525.
Your master therefore finds that plaintifi’s exception (No. 2) should be sustained and defendant surcharged with this item, to wit, $154.45.
3 (a). The plaintiff excepts (No. 4a) to credit of moneys advanced by John S. Quirk in the matter of the contest of the will of John Quirk, deceased, in the sum of $489.60.
Your master finds that the evidence offered in support of 'this payment is vague and uncertain; that credit is asked in defendant’s account as if it were made in April of 1899, and the receipt produced is dated August 21, 1903; that it is impossible from the evidence to determine what, if any, sum was advanced by the defendant on account of the plaintifi in the will contest. He further finds that the defendant did not keep any account of such expenditures.
John S. Quirk, the defendant, was the attorney in fact for his father in the matter of the contract arising out of the will of John Quirk, deceased, and, as we have already said, the conduct of the defendant in connection with this matter was such as to win the approval of his father, and he was en- . titled to credit for any sum which was legitimately expended in connection with the contest. Under the will of John Quirk the plaintiff would have received an annuity of about $300 a year, but in consequence of the efforts of his son, the defendant. with counsel employed by him and paid out of the fund collected. plaintiff secured about $28.000 as his interest in his father’s estate. The defendant claims that he paid one James 0. Jones. who was out of the jurisdiction of the Pennsylvania courts, for his services in connection with the will contest the sum of $489.60. There are two or three important considerations to be borne in mind in connection with this claim: First, By the agreement between the parties all moneys received by John S. Quirk, the defendant, were to be deposited in the plaintiff’s account in the Union Trust Company, where they could have been drawn upon only by the plaintiff himself or by a check drawn by some one as his authorized agent. It does not appear from the testimony whether the defendant used the money collected from rents to pay Jones or drew, it from bank as required, but your master is led to infer that he appropriated it from moneys in hand, instead of depositing the money in bank, as he had agreed. The difficulty which faces the defendant, therefore, is not his right to collect the necessary expenses in the will contest, but whether he has such vouchers which will entitle him to recover the sum he claims. Herein his case is weak. The master has no doubt that he was put to some expense to obtain the testimony of the wit— ness, Jones. but the testimony both of the defendant and Jones is so vague and uncertain that it is impossible to determine what sum, if any, should be allowed him. In the defendant’s answer (Exhibit D) he asks credit for “1899. April. By moneys advanced to B. B. Quirk in the matter of the contest of the will of John Quirk. deceased. $489.60.”
In his counter account he sets forth the same item. In the testimony taken January 11, 1906, he produced a receipt as follows:
“Gainsville, Florida, August 21st, 1903.
“Received of John S. Quirk from time to time by my wife and me four hundred and eighty-nine dollars to reimburse me for services in late John Quirk’s will ease, $489.60. James 0. Jones.”
The only testimony of defendant as to the payment of this sum was that he paid some in cash and some in checks, but no checks for any of this sum were ever produced by defendant, nor were any dates given when payments were made other than said receipt.
James 0. Jones, to whom this money is alleged to have been paid, was called by defendant to testify. He said: “The receipt was given for money he [defendant] had loaned me and advanced me in the case of his grandfather’s will in his father’s interest, but he could not give the items. He said he had them once, but destroyed them.” Jones was simply a witness in the will contest, and lived part of the time in St. Mary’s county, Md, and part of the time in Florida. His business in Maryland was wharf agent, and he made about five trips to Philadelphia. The receipt was not given as
the money was advanced; but about two years after the last_ payment was made the defendant wrote to Jones in Florida asking him for a receipt for the money advanced him, and he sent the above-mentioned receipt.
It seems strange that this claim should not have been settled at the time the money was collected from the estate of John Quirk, deceased, because, if it were bona fide. there was plenty of money in hand to pay it. The master is of the opinion that no reliance whatever should be placed on the testimony of James 0. Jones, who had previously pleaded guilty to a charge of forgery in the District Court of the United States for the District of Maryland on the 4th of October, 1901 (Exhibit J). It was incumbent upon the defendant to keep accurate accounts of such of his expenditures as he desired should be paid by his father.
“Since a trustee is chargeable with all he has received in order to be given credit in his accounts, he must show by affirmative proof what he has expended, and he must sustain the burden of proving that his disbursements are proper. A trustee is bound to keep clear and accurate accounts, and whatever doubts and obscurities appear will be construed against him.” 28 Am. & Eng. Ency. p. 1095 ;.McCullough v. Tomkins, 62 N. J. Eq. 262, 49 At]. 474; Welsh v. Brown, 50 N. J. Eq. 387, 26 Atl. 568; White v. Rankin, 18 App. Div. (N. Y.) 293, 46 N. Y. Supp. 228, afiirmed 162 N. Y. 622, 57 N.-E. 1128. Section 332: “Thus, for example, it is ordinarily the duty of agents to keep regular accounts and vouchers of the business in the course of their agency; and, if this duty is not faithfully performed, the omission will always be construed unfavorably to the rights of the agent, and care will be taken that the principal shall not suffer thereby. Indeed, cases may occur of such gross neglect and misconduct of agents in this respect as to amount to a complete forfeiture of all compensation which would otherwise belong to the agency.” Story on Agency, § 332.
Your master, therefore, finds that the plaintiff’s exception (No. 4a) should be sustained, and defendant be surcharged with the amount of the said item $489.60.
(b) The plaintiff’s next exception (No. 4b) is to the following item:
“1902. Nov. 26. By gift of B. B. Quirk of the balance due on account. $1,489.94.” . '
Your master finds that the plaintiff did not make a gift to the defendant of the sum of $1,500, or the balance due on account, $1,489.94; that the plaintiff did not return to the defendant any note or any other paper releasing the defendant from any debt which he owed him November 26, 1902; and that the plaintiff and defendant did not strike a balance of their accounts on the said 26th of November, 1902.
The defendant asks this credit, claiming that on November 26, 1902, plaintiff gave the defendant the balance due on their general account amounting to $1,489.94. A significant fact in connection with this claim is that nowhere in the answer of John S. Quirk, the defendant, is any credit taken for this gift of about $1,500. The first intimation is in the counter account filed some time after the suit was brought.
Defendant testified: That Thanksgiving Eve, 1902, he (plaintiff) said to defendant that he had given his (defendant’s) brother George a farm valued at $9,000 and $3,000 worth of stock and his sister a farm, and that the difference between him (plaintiff) and defendant, which was $1,500, he would make a gift to defendant. This was in the presence of his (defendant’s) wife and Mr. and Mrs. Heilman. That he had given his father a note for $1,500, but he did not know whether he (the father) destroyed it afterwards or not. Mrs. Heilman testified that she heard plaintiif say that what he (defendant) owed him he was welcome to it, the $1,500, but she did not say what $1,500 was meant. Laura J. Quirk (defendant’s wife) and Joseph F. Heilman corroborated Mrs. Heilman, and neither of them knew anything about a note.
The testimony for plaintiff was that Emma did not get a farm and George did not get a farm until November, 1903, a whole year later, and then all he got was a loan of $415 toward the purchase of it. The plaintifi denies making the gift. as well as the whole incident related as happening on Thanksgiving Eve, 1902, except that he was present at defendant’s home. From the accounts as submitted by the-defendant, your master is of the opinion that on
Thanksgiving of 1902 neither the plaintiff nor the defendant knew how the accounts between them stood, and, as said above, it is remarkable that, if the gift had been made as claimed, the defendant should not have asked for the allowance in the account attached to his answer. The defendant in his answer admits that on the 15th of September, 1899, the plaintiff loaned him $1,500 and says to secure the payment of which he gave plaintiff his promissory note in the sum of $1,500, it being expressly understood between himself and plaintiff when said note was given that said note was to be paid by him at his convenience, but nowhere in his answer claims credit for it as a gift. ‘ The exception might be sustained on what has been said, but a more serious obstacle confronts the defendant in the form of a question of law. The acts of the plaintifi as testified to by the defendant were not sufficient in law to make a gift by him of the amount due. It is well settled that, while a creditor may make a present of the debt to his debtor, yet nothing less than a delivery of the note or a receipt as the case may be is sufl‘icient to support the gift. .
In 14 Am. & Eng. Ency. of Law (2d Ed.) p. 1031, the principle is stated as follows: .
“A debt due from the donee to the donor may be the subject of a gift to the same extent as a debt due from a stranger. Such a gift when fully consummated by the destruction or surrender of the evidence of the debtor, the giving of a receipt will operate as an extinguishment of the debt, and a subsequent promise by the debtor to pay the debt is not enforceable for want of consideration.
“As in the case of other gifts, the intention of the donor to make the gift must be fully accomplished by a delivery, either by surrendering to the donee the evidence of the debt or by giving him a receipt for the amount.”
2 Schouler’s Personal Property says.
“Section 97. A gift transaction is sometimes sustained on the ground of the forgiveness or discharge of a debt. Here the surrender of the note, or other evidence of the debt, or, if there had been no such writing, some instrument of discharge, or in general a receipt in full from the creditor, would seem to be the usual and proper means of evincing the act of donation. Indeed, the rule has long been that no merely oral declaration will transform a debt into a gift.” In Re Campbell’s Est, 7 Pa. 101, 47 Am. Dec. 503, (1847) Gibson, 0. J., says:
“The notes in question could have been discharged only by a sealed release or by a parol gift of them. The disposition insisted- on by the accountant was neither [here holder of notes directed that they be burned or given to debtor]. A gift is a contract executed; and, as the act of execution is delivery of possession, it is of the essence ofithe title. * * * The gift of a bond, note or any other chattel therefore cannot be made by words ‘in future’ or by words ‘in praesenti’ unaccompanied by such delivery of the possession as makes the disposal of the thing irrevocable. * * * Nothing discharges it while it remains in the creditor’s possession and power.” Appeal of John Homer, 2 Penny. (Pa.) 289; Kidder v. Kidder, 33 Pa. 268, Fassett’s Appeal, 167 Pa. 448. 31 Atl. 686.
“Where a father loaned money to his son and afterwards refused to take security, saying that the interest would be at a certain rate if he should want it, and that his decease would be the end of the transaction, there was no gift of the debt.” Doty v. Wilson, 5 Lans. (N. Y.) 7.
“The declarations of a deceased lessor that she intended to release the lessee from liability for rent do not of themselves amount to a release, as a gift of a debt owing from the donee can be made effective only by the delivery to the donee of a receipt or some instrument equivalent to it.” In re Gregg’s Estate, 32 N. Y. Supp. 1103, 11 Misc. Rep. 153.
And, if the words used by defendant in his testimony are noted carefully, it will be seen that they do not necessarily express more than the expectation and promise to forgive the debt.
Your master therefore finds that the plaintiff’s exception to the said item should be sustained, and the defendant be surcharged with the amount thereof, viz., $1,489.94.
Plaintiff’s counsel submitted formal requests for findings of fact and law attached hereto, marked “Exhibit K,” which the master has deemed unnecessary to specifically pass upon, in view of the foregoing findings upon the several matters herein.
Your master has stated the account between the plaintiff and defendant in accordance with his findings, and attached the same hereto, marked *‘Exhibit L,” which shows a balance due to plaintiff by the defendant in the sum of $1,897.66, and submits the following form of decree, to wit:
And now this day of , in consideratiOn of the within report. it is hereby ordered and decreed that the said defendant John S Quirk pay to the plaintiff Benjamin B. Quirk the sum of $1,897.66, the sum found to be due said plaintiff herein.
Supplemental Report of Master. To the Honorable the Judges of the Said Court:
Your master having given notice to counsel for all parties that he would file his report on the 27th day of October, 1906, exceptions were filed, on behalf of the plaintiff hereto attached, marked “Exhibit M,” and on behalf of the defendant hereto attached marked “Exhibit 0." Your master has carefully reviewed the testimony and law raised by the said exceptions and begs to report as follows: .
Referring to defendant’s Exception X
“Because the learned master erred in overruling defendant’s objection to testimony of Emma Quirk and George Quirk. Pages 85—94, testimony.”
Your master is of the opinion that the testimony of these witnesses was admissible, although he was not influenced by their testimony in reaching his conclusions of fact and law as stated in his report. This exception is therefore dismissed.
Referring to defendant’s Exception XIV:
“Because the learned master erred in not giving defendant a credit of fifty-two dollars and sixty-two cents ($52.62) in account stated by the master,” etc. ‘
This item was not in the account of either plaintiff or defendant, and was overlooked by the master in stating his account. It was proved by a voucher, and a credit should have been allowed the defendant for the said sum. This exception is therefore sustained, and an additional credit is allowed to the defendant of the said sum of fifty-two dollars and sixty-two cents ($52.62), thereby reducing the amount due to the plaintiff by the defendant to the sum of eighteen hundred and forty-five dollars and four cents ($1845.04).
Your master has carefully considered the remaining exceptions of the defendant and the exceptions of the plaintiff, and is unable to discover any reason Why he should disturb hls former findings, and accordingly he dismisses all of the said exceptions for the reasons stated 1n his original report. He therefore recommends that the form of decree contained in his original report be amended by substituting the sum of eighteen hundred and forty-five dollars and four cents ($1,845.04) in place of the sum therein mentioned, which is the sum now found to be due the said plaintiff by the defendant in this suit.
BILLINGS MUT. TELEPHONE CO. v. ROCKY MOUNTAIN BELL TELEPHONE CO.
(Circuit Court, D. Montana. July 15, 1907.)
TELEGRAPHS AND TELEPHONES—RIGHT TO USE OTHER LINES—.MONTANA STAT-
Const. Mont. art. 15, § 14, provides that any person, or corporation or
ganized for the purpose, “shall have the right to construct or maintain lines
of telegraph or telephone within this state and connect the same with
other lines; and the legislative assembly shall by general law of uniform operation provide reasonable regulations to give full effect to this section.” Civ. Code Mont. § 1001, after repeating such provision, provides that, “in case such persons or corporations cannot agree as to the compensation to be paid for the privilege of such connection, the acquiring of the right by the one to use the line of the other may be had * * * as provided in the Code of Civil Procedure.” Code Civ. Proc. Mont. § 2213 (5), relating to proceedings under the right of eminent domain, provides that “all rights of way * * * and any and all structures and improvements thereon * * * must be subject to be connected with. * * * They must also be subject to a limited use, in common with the owner thereof. when necessary." Held. that under such provisions a telephone company operating a local exchange, on payment of compensation to be ascertained as provided by the statute, could require another company operating long distance lines to permit a connection with such lines, and also their “use,” by receiving and forwarding messages through such connection from subscribers of the other company substantially as it did messages tendered by its own local subscribers.
[Ed Note—For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 16.]
O. F. Goddard, for complainant.
HUNT, District judge The plaintiff is a telephone company operating about 350 telephones in use in its exchange in Billings, Hunt. The defendant owns and operates a long-distance telephone line and local exchanges in many cities within Montana. The defendant conducts a general long-distance telephone business, and maintains a local exchange business in the city of ‘Billings Plaintiff has endeavored to make some agreement with the defendant company by which it could connect its telephone line with the line of the defendant. so as to acquire the use of the long-distance line of the defendant for transmitting messages, for the convenience of the business of the plaintiff and its numerous customers, and for the convenience of the public generally in the city of Billings and throughout the state of Montana; but the defendant has refused to grant plaintiff the privileges of a connection and use of its line in any manner so as to allow plaintiff to connect its telephone system with the long-distance line of the defendant. The complaint asks the court to decree to plaintiff a right to connect its telephone line with the long-distance telephone line of the defendant at Billings, upon such terms and for such compensation as the court may deem just, and plaintiff prays that the court may proceed by law to determine the right to connect and the value of the service and use of defendant’s line.
The defendant answered by admitting that the connection with and use of defendant’s lines by the plaintiff would increase the revenue of the plaintiff and accommodate its customers; but it denies that the use of defendant’s lines by plaintiff is necessary to the proper operation of the telephone line of the plaintiff, and alleges that such connection is desired by plaintiff to save it the great expense of building its telephone lines through the territory covered by the telephone lines of the defendant. It denies that connection of the lines of the plaintiff with those of the defendant would be a great or any convenience to the public generally in Billings, and alleges that the public generally would