Giffen, J.
The original action was commenced by John Broxtermann as executor of the last will and testament of Mary E.Sohlichte, deceased, against Joseph Ringemann, Jr., Emma Ringemann and The Joseph Ringemann, Jr., Company,a corporation under the laws of Ohio, to recover the sum of $14,300 as money had and reoei^ed to plaintiff’s use. The defendants filed a general denial, and on the trial sought to prove that the money received was a gift from Mrs. Schlichte to her son-in-law, Joseph Ringemann, Jr.
Ai the conclusion of plaintiff’s testimony, the defendants, the Joseph Ringemann, Jr., Company,and Emma Ringemann, separately, moved the court to arrest the case from the jury and to render judgment in their favor. The motion was sustained as to Emma Ringemann, the wife of Joseph Ringemann, Jr., and overruled as to the Company.
The errors relied on are:
First. That the verdict is not sustained by sufficient evidence.
Second. ■ That the court erred in overruling the motion of The Joseph Ringemann, Jr., Company to arrest the case from the jury.
If we weigh only the direct testimony of the witnesses as to the transaction itself and what Mrs. Schlichte said concerning it before and after the delivery of the check, giving full credit to each witness, there can be no escape from the conclusion that the money received was a gift; but viewed in the light of the surrounding circumstances, the conduct of Joseph Ringemann himself, the interest of some of the witnesses, and tbe probability that others misunderstood Mrs. Schlichte who spoke the English language imperfectly, we are unwilling to say that the verdict is manifestly against the weight of the evidence.
It appears from the testimony that Mrs. Schlichte had several pieces of real estate, one of which she sold to the Herman Lackman Brewing Company for the sum of $16,000, and pending negotiations gave as a reason for selling that “she could use the money to a better advantage upon the hill by improving some property,” whereas, upon receipt of the same, she went with her son-in-law to the Merchants National Bank, and after depositing the proceeds of the sale, gave him a check for $14,300.
Charles W. Baker-for the plaintiff in error.
C. B. Mattheivs, for the executor.
Being a strong-minded business woman, it is not probable that she would make such a statement to Mr. Lackman, and yet at the same time talk so freely to other persons, not members of the family, about giving the money to Mr. Ringemann.
The latter admits that a short time after he received the money he executed and delivered to her a note for that amount, but says that “she just simply wouldn’t listen to it, and took the note I handed her in an envelope and tore it up.”
Be says: “I could hardly realize she had done so much for me,” and yet ho thought it necessary to be present at the office of the Lackman Brewing Company when the sale was made and afterwards to go with Mrs. Sohlichte to the bank when the sale money was deposited, although she herself was a woman of affairs, and had by her own industry and close attention to business made asmall fortune.
It further appears that about five months before the date of the alleged gift,Mrs. Sohlichte executed her last will and testament, which provided that the residue of her estate, after the payment of certain charitable bequests, should be divided equally among the nine children, naming each of them and including Mrs. Ringemann, which rebuts the imputation that at this time there was any want of parental regard and affection for any of her children.
It also appears that Ringemann, a few days before the death of Mrs. Schliehte,requested her to sign a will prepared by himself, and after she refused to sign the paper destroyed it, for the reason, as he stated, that he did not want anything lying around in his handwriting. The absence oí any good reason why Mrs. Schliehte should give nearly one-half of her entire estate to her son-in-law adds to the improbability that the money received by him was a gift.
We think, therefore, that the court did not err in overruling the motion foi a new trial on the ground that the verdict is not sustained by sufficient evidence.
We are unable, however, to understand upon what principle of law the judgment against the corporation can be sustained. It was not organized until a month after the transaction, and hence could have received no part of the money from Mrs. Schliehte. It is true that.Ringemann afterwards transferred by cheeks $8,500 from bis account in the bank to that of the corporation; but this alone would not suppport a judgment for the entire-sumof $14.300 and interest.
There is no allegation of fraud intfae pleadings; and while, in a proper proceeding, the fund might be followed and property in the hands of the corporation subjected to the payment of the claim, the plaintiff is not entitled to a judgment at law,
Mrs. Rinaemann holds thirty-six of the forty shares of the capital stock, and in the event the property of the corporation is insufficient to satisfy the judgment, may bo required to pay an amount equal to the stock held by her, notwithstanding the court dismissed the petition as to her.
Judgment affirmed as to Jos. Ringemann, Jr., and reversed as to the Company.