Gannon v. Ruffin

Holmes, J.

The question principally argued is whether there was any evidence to sustain the defendant’s declaration in set' off. The defendant put in an instrument purporting to be signed *206 by the plaintiff, and acknowledging the receipt of eleven hundred dollars in trust, to he accounted for to the defendant’s intestate. If we assume in favor of the plaintiff, that the judge did not find that the paper was signed by the plaintiff in person, then he found that it was signed by the plaintiff’s daughter, as there is no question that he was warranted in doing. We start with the fact thus established. But not only did the plaintiff deny the receipt of the money, but the daughter denied the signature, so that the judge may have thought that he had before him a case which was being supported by perjury. Of course this did not take the place of affirmative evidence of the daughter’s authority to sign her mother’s name, but it warranted reliance upon comparatively little evidence, since the situation made it impossible to produce more. It appeared that the daughter was in confidential relations with her mother, which continued at the time of the trial, and that she had done most of her mother’s writing, and all of her correspondence, for a number of years. There was evidence that this course of employment extended back to the time when the paper was signed, the mother being unable to write with her right hand. The signature was of the plaintiff’s name simply. Under such circumstances, it is far more probable that the daughter acted by authority than that she forged her mother’s name. The judge was warranted in drawing an inference in accordance with the manifest probabilities.

It is objected that the claim against the plaintiff is not matter of set-off. The judge seems to have found that the plaintiff received the money to the use of the defendant’s intestate, or, in other words, that she made herself a debtor for the amount. Certainly it may be doubted whether the instrument means anything more than that, and if not, as the debt was payable at any time on demand, it was a proper matter of set off. If, on the other hand, the instrument imports a trust properly so called, rather than a debt, so that the plaintiff was bound to keep the fund identified, but was only responsible for reasonable care in its preservation, and was not personally answerable for an equivalent sum from her assets generally and at all events, still we think that the defendant’s demand could-be set off, under the Pub. Sts. c. 168, §§ 1,14, consistently with §§ 2, 3. *207 The trust was a naked one, which the defendant could terminate as matter of right. Underwood v. Boston Five Cents Savings Bank, 141 Mass. 805 , 306. Upon demand and refusal to pay it over, the money could be recovered in an action of assumpsit, that is, upon an implied contract. Johnson v. Johnson, 120 Mass. 465 . It would serve no useful purpose to exclude the set-off of such a demand by a narrow construction of the statute. It is enough that the demand is “ capable of being liquidated, or ascertained with precision at the time of pleading.” Morley v. Inglis, 4 Bing. N. C. 58, 71.

Exceptions overruled.