Galler v. Galler

² Pattison, J., delivered the opinion of the court. The appellee in this case, Benjamin Galler, an unmarried man, while engaged in the wholesale and. retail clothing business with one Abraham Blaustein, at 311 S. Broadway, Baltimore, Md., was in July, 1918, drafted into- the military service of the United States. Preparatory to entering the service, he sold his interest in the business to his partner, Blaustein, at and for the sum of five thousand, three hundred dollars ($5,300). Of this sum-four thousand dollars ($4,000) were paid in a check and the balance in merchandise.

The merchandise was by him turned over to his father, to be- kept for him until his return, if he returned, and if he did not, it was to become the property of his father. The check for four thousand dollars ($4,000), dated the 30th day of July, 1918, wras cashed by the appellee either on that or the following day. Thereafter the appellee told his father that he was going to leave with him the proceeds of the check upon the terms and conditions that he left with him the merchandise, and on the 1st day of August, 1918, he, with his father and mother, went to the Savings Bank of Baltimore and there made a deposit “in the name of Morris Galler, in trust for himself and Eva Galler, joint owners, subject to the order of either, the balance at the death of either to belong’ to the other.” After the appellee was discharged from the service on the 12th day of December, 1918, he returned to the home of his parents, after first having spent a week or ten days in a hospital in the City of Baltimore. After remaining with them a few days he, with his father and mother, went to the bank and drew therefrom the amount there deposited in the name of Morris Galler, in trust for himself and Eva Galler, etc., the amount at that time being three thousand, eight hundred dollars ($3,800), with $42.50 accrued interest.

It was all withdrawn and two accounts opened, one in the name of the son for three thousand dollars ($3,000), and the other in the name of .the father for five hundred dollars ($500), and ³ three hundred dollars was paid to the appellee in cash. The interest-, $42.50, was- also paid to the son in cash, and of this amount he gave or loaned to his father five dollars ($5.00). This deposit was made on Saturday. He returned from the bank on that occasion with his parents to their home, where .he remained until the following Monday, when he left, and it seems that from that time he ceased to make his home with them.

On January 6th, 1919, the first bill in these proceedings was filed. Later it was amended by one filed on the 28th day of March following*. In the amended bill it is alleged that the amount left with the father by the appellee was four thousand, two hundred dollars ($4,200) upon the terms and conditions stated, with the qualification that all of said sum except four hundred dollars ($400) “were to be held intact in the Savings Bank of Baltimore; that it was agreed and understood that the defendant, Morris Galler, might either deposit the said sum of four hundred dollars ($400), or might retain said sum for a period of two months until he collected a certain promissory note, payable by Abraham Blaustein to the said Morris Galler, for the sum of four hundred dollars ($400), and then he was to deposit the said sum of four hundred dollars ($400) so received from the said Abraham Blaustein in the aforesaid bank.” It was further alleged in the bill that it was “agreed and understood that the said defendant, Morris Galler, was to apply the said sum of four hundred dollars ($400) as part of the purchase price of the property situate in Baltimore City, known as 2010 E. Pratt Street, which the said defendant, Morris Galler, had contracted to purchase- previous to the said 31st day of July, 1918, and that the said sum of four hundred dollars ($400) was iised, on the 8th day of August, 1918, by the said Morris Galler for the purchase ⁴ of the aforesaid property, and that the title to said property was taken in the name of Morris Galler and Eva Galler, his wife.” The bill likewise alleged that the appellee called upon his father upon his return from Camp Meade for the funds left with him, and that, in turn, his father demanded certain sums of money from him; but, after quarrels between them in relation thereto, his father, on the 4th day of January, 1919, returned to him three thousand, three hundred dollars ($3,-300) of said principal sum and $42.50 accumulated interest, and that his father did then and does now refuse to return the balance of nine -hundred dollars ($900) still due him, the son. The prayer of the bill not only asks that the court decree that the five hundred dollars ($500) in bank in the name of Morris Galler be declared the property of Benjamin Galler, and that the bank be restrained from paying the same to the father, but it also- asks that the “defendants, Morris Galler and Eva Galler, his wife, may be decreed to hold the said property 2010 E. Pratt Street as trustees for your orator to the extent of the said sum of four hundred dollars ($400),” and “that they be restrained from selling, mortgaging or otherwise disposing or alienating” it “until the final determination of this suit.” The bank, as well as Morris Galler and Eva, Galler, his wife, answered the amended bill.

In the joint answer of the father and mother they deny that the plaintiff gave to or left with him the sum of four thousand, two hundred dollars ($4,200), and allege that the amount so left with him was only three thousand and three hundred dollars ($3,300), which sum he deposited in the Savings Bank of Baltimore and, upon the appellee’s discharge from service in the army, was returned to him, with accumulated interest; and they further deny the allegations of the bill in respect to the four hundred dollars ($400), mentioned therein, and allege that the sum of five hundred dollars ($500) now on deposit in ⁵ tbe Savings Bank of Baltimore City in tbe name of Morris Galler belongs to him, and not to the appellee. It will be seen that the disputed question in this case is the amount of money that was left by the son, Benjamin Galler, with his father, Morris Galler, upon the terms and conditions hereinbefore stated. The appellee claims that he left with his father four thousand, two hundred dollars ($4,200). The father insists that he left with him but three thousand and three hundred dollars ($3,300).

The appellee testified that he received notice on July 15th, 1918, to report for service on July 25th. Upon the receipt of this notice he sold to his partner his interest in the business, the .same to become effective on July 24th, at and for the sum of five thousand and three hundred dollars ($5,300). Mr. Blaustein did not have enough money in cash to pay him this entire amount, so gave to him his check for four thousand dollars ($4,000) and turned over to him merchandise to the amount of one thousand and three hundred dollars ($1,300). The time at which the appellee was to report for service was extended from July 25th to August 1st, and within that time he states that he sold goods upon which he received a profit of two hundred dollars ($200), and for which Mr. Blaustein gave him a check for that sum dated August 27th, 1918.

It was the check of Aaron Stein to Blaustein, in part payment of the goods sold, dated ahead for the convenience of Stein. These two checks aggregated four thousand and two hundred dollars ($4,200), and it is the proceeds from the check of four thousand dollars ($4,-000) and the delivery to the father of the two hundred dollar ($200) check that the appellee claims he left with his father. The appellee testified that the check of four thousand dollars ($4,000) was given him in the store of Blaustein; that his father was present; that he went over to the bank, which was about a block away, cashed the check, and met his father, who -was waiting for him across the street, and with him returned to his father’s home; that he told his father that he ⁶ was going to leave with him this money upon the terms and conditions that he left with him the merchandise, and so gave him four thousand dollars ($4,000) in money. He further stated that at the time he gave it to him his father told him that he was going to buy a property and he would need four hundred dollars ($400) in making settlement for it; that Blaustein owed him four hundred dollars ($400) that he had left with him for safekeeping, but Blaustein did not have the money at the time with which to pay him, owing to the fact that his cash was exhausted in the purchase of the appellee’s interest in the store, and that Blaustein was to give him a note therefor, payable in three months.

It was then agreed between the appellee and his father, as witness stated, that his father should take, of the four thousand dollars ($4,000), four hundred dollars ($400), to enable him to settle for the property he had bought, and that when he received the four hundred dollars ($400) from Blaustein, he was to replace the four hundred taken from the fund turned over to him. He further testified that on the morning of August 1st, the day upon which he was to report for service he, with his father and mother, went to the Sayings Bank of Baltimore,' and his father there made a deposit, the amount of which he did not know; that they were there but a little while, when he hurried away so as to reach Union Station at 10 o’clock to-take the train leaving at that hour for Camp Meade. He stated that upon his discharge from service on the 12th of December he first went to a hospital in Baltimore, where he was for a week or ten days, and then to his father’s home. That after being there several days he asked his father for the money that he had left with him, and after having been put off several times, covering a period of about ten days, he went with his father and mother to the bank.

He said his father there said: “I am going to give you three thousand dollars ($3,000).” When he reminded him that he was to give him all that he had left with him his father ⁷ said, “You are going to have a little less,” and further said, “If you are going to make a fuss with me, I would not give you anything; if you want three thousand dollars ($3,000), all right.” They argued, he said, “fifteen or twenty minutes,” and then his father told him he would not give him “a cent more than three thousand, three hundred dollars ($3,300). I could not help myself, I wanted to go in the same business and I told him, All right; was satisfied to get three thousand, three hundred dollars ($3,300) and he to pay me interest.” On the same day he consulted an attorney with the view of obtaining the amount ($500) in bank to the credit of his father. On cross-examination he was asked when it was that his father told him he wished to use four hundred dollars ($400) of the money in settlement for the house that his father had bought. His reply was, “When I was home, when I handed him over the money.

Q. He told you that after you got. home with the cash, did he? A. Yes. Q. When you cashed this check, that was before you got home? A. Yes.

Q. At that time, you did not know anything about using any part of this money for a house, did you? A. Yes; he told me he was going to settle (for the) house in the middle of August. (The Court) : When did your father first tell you that? A. He told me that in the morning.” He was then asked by the opposing counsel: “Didn’t you say just before that, the first thing you knew anything about a part of this money going for the house was when you got home ?

A. Well, I knew he was going to settle for the property 2010 E. Pratt Street, only in the evening he told me he was going to' borrow four hundred dollars ($400) from me to settle it. He told me in the morning and he told me in the evening that he would not deposit all the four thousand dollars ($4,000).” He went to the bank with his father, for, as he says, he thought he might be needed there, but at that time his father had the money and he does not know how much of it he deposited, and did not know until he returned from the service of the Government. He also stated that he gave to him the two ⁸ hundred dollar ($200) cheek referred to, when he gave him the four thousand dollars ($4,000) in money. The witness was then asked, “And you knew all the time he was going to use four hundred dollars ($400) in that purchase (the purchase of the house) ?

A. Yes.” He was then handed the bil) of complaint first filed in the proceeding, and asked if he had not made affidavit to that bill, and he replied, Yes, and stated that he knew the contents of it, when he made oath thereto1. He was then asked, “In this paper, second paragraph, you say that ‘unknown to your orator, and while he was in the military service of the H. S. Government, his said father, Morris Galler, contrary to the agreement and in violation of his trusteeship1, used four hundred dollars ($400) of the said sum towards purchasing the house situate in Baltimore City and known as 2010 E. Pratt Street, wherein the defendant now resides? Now, in that bill of complaint you swore to a fact you did not know and that your father used that money without your knowledge? A. No, sir; he told me he was going to use four hundred dollars ($400).” Eeba Galler, the wife of the appellee, to whom he was married in August, 1919, testified that she was at the home of his parents in July, 1918, on the evening that the appellee brought to his father’s house the four thousand dollars ($4,000), representing a part of the purchase money for the interest in his business; that when he came in I said to him: “Well, everything straightened up? ‘Yes, I have got my money and all,’ and he sat down and counted his money out to his father.

His mother was there, his sister, his father and myself. He counted the money out to them. He said, ‘Take care of it, deposit it tomorrow morning; I am nervous, I cannot hold this money; I cannot trust myself with it’; and he gave him, his father, the two hundred dollar ($200) check (the check above referred to) ; he handed everything over to his father and his mother. ‘Now take care of this money.’ He counted the money in thousands — he had them in his lap; he counted them, and then he said, ‘Here is the ⁹ four thousand dollars ($4,000), one, two, three, four.’ They were all in thousands and he gave it to them. (The Court) : Four one thousand notes?

A. No, sir; five hundred, one hundred, fifty, twenty, etc., and he just fixed them up in thousands, and he said, ‘Here is four thousand; I just had it cashed at the bank.’ In regard to the two hundred dollar ($200) check, he said, ‘Keep this check, and you do not have to wait until the 27th, until it is due; a few days ahead you can deposit and we will take care of it. Q. Was there any conversation between the Gallers as to using the four hundred dollars ($400) to be applied to the purchase of a house? A. One evening when I was over to the store, Mr. Galler— that is, the father — he said, ‘Bennie, what am I going to do