#### HANNAH ROSENMANN v. BELK-WILLIAMS COMPANY, INCORPORATED, W. H. BELK, ADOLPH ROSENMANN and WILLIAM ROSENMANN, Guardians of M. ROSENMANN, and ADOLPH ROSENMANN and WILLIAM ROSENMANN, Individually. and HANNAH ROSENMANN v. WILLIAM ROSENMANN and ADOLPH ROSENMANN, Guardians of MARCUS ROSENMANN and I. B. GRAINGER, Trustee.

(Filed 31 March, 1926.)

1. Actions — Consideration-—Courts.

It is proper for the trial judge to consolidate two pending actions between the same parties involving practically the same subject-matter.

3. Bills and Notes — Negotiable Instruments — Possession—Parol Evidence.

Where the payee of a note is insane, and his wife produces it on the trial endorsed by him to her, claiming it as a gift, it is competent to show by parol evidence that he had never delivered the note to her, but that his guardian had done so, and that it was a part of his estate.

3. Same — Prima Facie Case — Burden of Proof.

Where the genuineness of a note is not in controversy, and the issue is whether the alleged endorsee, the plaintiff in the action, acquired it as a gift from her insane husband, the burden of proof is on the plaintiff to establish her contention by the greater weight of the evidence.

4. Same — Gift—Intent—Evidence—Memoranda.

Where the genuineness of the note, the subject of the controversy, is not in dispute, and the issue is whether the maker having endorsed it to his wife who produced it at the trial, had delivered it to her, it is competent to show by parol evidence that the husband had deposited the note in question as collateral with other securities to a note for money he had borrowed at the bank, and the officer of the bank, so testifying, may refresh his memory from a memorandum thereof he had made; and the objection that such is incompetent as not the best evidence, is untenable.

*4945*. Gifts — Bills and Notes — Negotiable Instruments — Husband and Wife.

Where the wife asserts ownership of a note as a gift from her insane husband, she must show both an intent to transfer the title, and an act designated to effectuate the intent.

6. Same — Delivery—Presumptions—Requests for Instructions — Appeal and Error.

Where the wife, the plaintiff in the action, asserts ownership of the note in controversy as a gift from her insane husband, and there is evidence tending to show that she acquired possession from his guardian and not from him, the question of his intent is one for the jury, and a requested instruction that the endorsement of the note by the husband to the wife raised a presumption of a gift, and that he, if the evidence is believed, delivered it to a bank for her benefit when pledging it as collateral to his own note, is properly refused.

7. Instructions — Evidence—Assuming Pacts as Proven — Appeal and Error.

An instruction that assumes a fact proven from conflicting evidence, or a fact or facts hot in evidence or in dispute, and draws therefrom conclusions which do not necessarily follow, is properly refused.

8. Instructions — Requests for Instruction — Appeal and Error.

Exceptions to the refusal to give requested prayers for instruction substantially given in the general charge, will not be sustained on appeal.

9. Bills and Notes — Negotiable Instruments — Endorsements—Gifts— Evidence.

Where the holder of a note claims title by endorsement from the payee named therein, and the controversy upon the evidence is as to whether it constituted a valid gift, and the note has been paid and the proceeds held by the court subject to its final judgment as to whether the gift was valid, or the intent legally established as a matter of law upon the evidence in the case, the donee’s position is untenable that the note was irrevocable, and that parol evidence to the contrary was inadmissible.

Appeal by plaintiff from Daniels, J., at October Term, 1925, of New HANOVER.

In the first of these cases tbe plaintiff brought suit on a note for $24,798.65, executed and delivered to her on 11 September, 1923, by Belk-Williams Company, Inc., payable ninety days after date, and endorsed by W. H. Belle. Prior to the maturity of the note the Belk-Williams Company received a notice from Adolph Rosenmann forbidding payment to the plaintiff -on the ground that the note was a' part of the partnership assets of If. Rosenmann & Son, of which Adolph Rosen-mann was a partner, and on the further ground that’ the plaintiff claimed the note as a gift from M. Rosenmann, who’ was mentally incapacitated. The Belk-Williams Company was notified that if it made payment to the plaintiff, Adolph Rosenmann would hold -the company responsible for *495any loss or damage be might thereby sustain; and thereupon the company paid to the clerk of the Superior Court the full amount due on the note and was discharged, together with.W. H. Belk, from further responsibility. Adolph Rosenmann and William Rosenmann, individually and as guardians of M. Rosenmann, were then made parties and permitted to .file an answer. In their answer they allege that the partnership of M. Rosenmann & Sons sold to the Belk-Williams Company its stock of goods at the price of $54,198.68, a part of which was represented by the note sued on; that II. Rosenmann attempted to give the plaintiff the note she claims but did not 'deliver it to her prior to the time of his commitment to a sanitarium, but retained possession of it and collected and used the interest until the plaintiff came into possession of the several notes and began to collect the interest thereon; that M. Rosenmann had no authority to make the gift; and that the pretended gift was without consideration and of no effect. They pray that the notes and the proceeds therefrom be declared the property of the partnership and the alleged gift void.

To this answer the plaintiff filed a reply and cross-complaint alleging that the notes executed by the Belk-Williams Company were first made payable to M. Rosenmann and that all these, including the note sued on had been renewed many times in her name and given her as a part of M. Rosenmann’s estate and that she was the actual owner thereof. She alleged also that the notes executed by th'e Bladenboro Cotton Mills had been renewed by her from time to time.

In the second case the plaintiff filed a petition before the clerk of the Superior Court in which she alleged that M. Rosenmann, her husband, had 'been adjudged insane and had been committed to a hospital in Mamaroneck, N. Y.; that up to 31 July, 1924, she had received $300 a month for her support and maintenance; that she had to stay near her husband at great expense, and that her income was insufficient; and that for several months she had not received her monthly allowance. She filed her petition under C. S., 2294, for the purpose of having a part of her husband’s estate sold for her maintenance.

Adolph Rosenmann, guardian, and William Rosenmann filed separate answers to the petition; Adolph denying the material allegations and pleading substantially the same defense set up in the first action, and specifically alleging that a part of the money paid by the Belk-Williams Company had been loaned to the Bladenboro Cotton Mills, and that the plaintiff had no interest in the notes given for the loan. The answer of William Rosenmann admits practically all the allegations of the plaintiff.

The clerk made no order but transferred the case to the Superior Court docket; and it appearing that the matters in controversy in the *496first case were in controversy in tbe second and that tbe issues were tbe same in each, tbe court made an order consolidating tbe two causes.

Tbe following verdict was returned:

1. Is tbe plaintiff tbe owner of tbe proceeds of tbe Belk-Williams notes now in tbe bands of tbe Murchison National Bank? Answer: No.

2. Is tbe plaintiff tbe owner of tbe proceeds of tbe Bladenboro Cotton Mills notes now in tbe bands of tbe Murchison National Bank? Answer: No.

Judgment on tbe verdict, and appeal by tbe plaintiff. No error.

Marsden Bellamy and John D. Bellamy & Sons for plaintiff.

Rountree & Carr and E. K. Bryan for Adolph Rosenmann, guardian.

Adams, J.

Tbe only question litigated on tbe trial and involved in tbe appeal is tbe title or ownership of five promissory notes aggregating $54,798.65. Two of these notes, each in tbe sum of ten thousand dollars, payable to tbe order of tbe plaintiff, were executed by tbe Bladenboro Cotton Mills, Inc., on 23 November, 1922, and 21 February, 1923, respectively. Of tbe remaining notes one in tbe sum of $24,798.65 and two, each in tbe sum of $5,000, payable to tbe plaintiff, were executed by tbe Belk-Williams Company, Inc., respectively on 11 September, 1923, and on 10 and 12 December, 1923. Tbe plaintiff alleges that she is tbe owner and entitled to tbe possession of these notes or to such amount paid thereon as may be subject to tbe order of tbe court.

Adolph Rosenmann, one of tbe defendants, answered tbe complaint and tbe petition, alleging that in 1918 tbe partnership of M. Rosenmann & Son (composed of M. Rosenmann, Adolph Rosenmann, and William Rosenmann) sold to tbe Belk-Williams Company their stock of goods and received in part payment of tbe purchase price notes of tbe Belk-Williams Company amounting to $54,798.65; that tbe sum of $20,000 was paid and afterwards loaned to tbe Bladenboro Cotton Mills; that tbe notes were first made to tbe partnership or to M. Rosenmann for tbe benefit of the partnership; that M. Rosenmann without authority of tbe other partners afterwards caused tbe notes in controversy to be made payable to tbe plaintiff; that be is now insane; and that Adolph Rosenmann and William Rosenmann are bis guardians. Given this outline, tbe contentions of tbe parties and special phases of tbe evidence will be considered in connection with tbe exceptions.

We see no error in tbe order consolidating tbe two cases. In Hartman v. Spiers, 87 N. C., 28, it was held to be improper to consolidate causes which are essentially different or causes in which tbe parties are not tbe same; but in tbe present case tbe pleadings show and tbe order states that tbe questions raised in the first suit are substantially tbe *497same as those presented in tbe second. Tbat tbis conclusion is correct and tbat tbe consolidation was not improper may be seen by reference to tbe issues tbat were submitted to tbe jury. Henderson v. Forrest, 184 N. C., 230; Wilder v. Greene, 172 N. C., 94; Von Glahn v. De Rossett, 76 N. C., 292.

Tbe plaintiff called as a witness Isaac B. Grainger, vice-president of tbe Murchison National Bank, who testified tbat tbe bank, previously appointed trustee of tbe Rosenmann estate, received tbe notes in question from tbe plaintiff on 27 March, 1925. For tbe purpose of showing bow she bad obtained possession of tbe notes tbe defendants proved by tbe cross-examination of tbis witness tbat be received them from M. Rosenmann on 19 February, 1923, and delivered them to Adolph Rosen-mann as guardian of M. Rosenmann about two months later, tbe defendants contending tbat Adolph Rosenmann wrongfully turned them over to tbe plaintiff, who bad not theretofore bad them in her possession. Tbe witness was permitted to read a list of securities attached to a receipt given by tbe bank, or by tbe witness as trustee, to M. Rosenmann in February, 1921; a list of securities deposited with tbe bank by M. Rosenmann on 19 February, 1923; and a list of securities set forth in a receipt given tbe bank by Adolph Rosenmann, as guardian, on 14 April, 1923. Tbe plaintiff objected to tbe reading by tbe witness of tbe lists of tbe securities for tbe several reasons assigned in her brief.

Of course it is elementary tbat tbe party alleging a fact must ordinarily prove it by tbe best evidence and tbat a. written instrument is tbe best evidence of its contents. Also, while a witness must usually speak from bis recollection, be may refer to a paper, entry, or other written instrument in order to refresh bis memory. But it is important to note tbat neither tbe plaintiff’s cause of action nor tbe defense thereto is based upon tbe contents of tbe papers referred to in tbe cross-examination. Tbe issues were addressed to tbe ownership of tbe notes which tbe plaintiff produced at tbe trial; and tbe object of tbe cross-examination was to show tbat they bad never been delivered to tbe plaintiff by her husband, but by bis guardian, and tbat they were in fact a part of her husband’s estate. Tbe substance of tbe testimony was tbat M. Rosenmann bad deposited tbe securities with tbe bank and bad taken a receipt therefor in tbe first instance; tbat among tbe securities held by tbe bank in February, 1923, were tbe notes in controversy, which, on 14 April, 1923, tbe bank delivered to tbe guardian. Tbe point in controversy was the title or ownership of tbe notes and, necessarily, tbe question of delivery; not primarily tbe contents of tbe several papers. There was no dispute as to tbe genuineness of tbe receipts and tbe mere fact tbat tbe securities were identified by tbe witness is not ground for a new trial.

*498The plaintiff excepted to the instruction that as to each, issue she was required to establish the truth of her contentions by the greater weight of the evidence. She relies in part on the provision that “where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proven” (C. S., 2997) ; and she contends that by producing and offering the notes in evidence she made out a prima facie case which placed on the defendants the burden of disproving her title. If it be granted that she made out a prima facie case in this way, the burden of disproving' her ownership of the notes did not devolve upon the defendant. There was no controversy between the plaintiff and the makers of the notes — no question as to the liability of the parties “whose signature appeared thereon,” but a dispute between the plaintiff, who claimed the notes as a gift from her husband-and the defendants, his children, who denied her title. The question was, not the liability of the makers, but the plaintiff’s ownership. The asserted gift of the notes by the husband to the wife involved both an intent to transfer the title and an act designed to effectuate the intent. Having alleged the gift, the plaintiff had the burden of making good her allegation. The principle has been applied in a number of recent decisions and need not be repeated here. Hunt v. Eure, 189 N. C., 483 and cases cited.

Exceptions were taken by the plaintiff to the court’s denial of these requested instructions: (1) that the execution and renewal of the notes to the plaintiff as payee raised the presumption of a gift from her husband; (2) that if the jury should find from the evidence that her husband deposited in the bank her shares of stock in certain corporations, certificates, deposit book, etc., and with these articles the notes in suit, payable to her, there was a presumption that he delivered the notes to the bank for her benefit. Neither exception can be sustained. A gift of personal property is a unilateral act. It imports, not only an intention to give, but an actual or constructive delivery of the property; for the donor’s present relinquishment of dominion over the thing given is essential to a valid gift. Personal property cannot be delivered and retained at the same time. Whether the notes in controversy were retained or delivered was a question for the jury to determine upon the testimony of the witnesses. The plaintiff never had the actual possession of the notes prior to her husband’s affliction, and herein her case is distinguishable from Swindell v. Swindell, 153 N. C., 22, Arrington v. Arrington, 114 N. C., 116, and similar decisions. As to the alleged symbolical delivery of the notes the evidence was submitted to the jury under proper instructions. Kelly v. Maness, 123 N. C., 236; Newman v. Bost, 122 N. C., 524; Paschal v. Hall, 58 N. C., 108.

*499Assignments 12, 19, 20 relate to other prayers. The first of them is defective in that it assumes a fact or facts not in evidence or in dispute and draws therefrom conclusions which do not necessarily follow. The second prayer was given in substance, perhaps more favorably than the plaintiff requested; and the third is subject to the objection that it sets forth the evidence recited as establishing constructive delivery of the notes, thereby withholding from the jury the question of intent as a fact and treating it as an inference of law. As to principles which the plaintiff intended to present, see Handley v. Warren, 185 N. C., 95; Thomas v. Houston, 181 N. C., 91; Parker v. Mott, 181 N. C., 435.

His Honor declined the following instruction which is the subject of the 15th assignment of error: “That the notes being on their face made expressly payable to the plaintiff by Belt-Williams and the Bladenboro Cotton Mills makes the notes irrevocable and the said M. Rosenmann had no fight thereafter to change the payee, it being different from a case where the note is transferred or assigned by the payee to another, in which ease the retention of the note by the payee puts it in his power to cancel the assignment or transfer, which he could not do in this instance, Mrs. Hannah Rosenmann deriving her title from the maker instead of from her husband.”

It will be observed that this prayer is based on the propositions that the notes were irrevocable and that the plaintiff derived her title to them from the makers and not from her husband. The notes have been paid and the proceeds aré-subject to the final judgment of the court; so there is no possibility of a revocation by the makers. And as to the title the plaintiff alleges that the notes, first in her husband’s name, were afterwards made payable to her, and that he caused the change to be made because he intended them as a gift to his wife. It was upon this theory that the issues were prepared and the case was tried — the theory of a controversy between the plaintiff and her husband’s successors as to the ownership of the notes; and this, as we have said and as the parties recognized during the trial, presented primarily the question of a delivery of the notes by the husband to the wife. Under these conditions the instruction was properly denied.

The instructions referred to in assignments 13 and 21, we think, are sufficiently incorporated in the charge; for in his recital of the contentions of the parties his Honor presented as evidence all the circumstances set out in these prayers and correctly instructed the jury in reference to them. In our opinion the refusal to give the two remaining prayers (assignments 22, 23) is not good cause for a new trial.

We find

No error.