Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.
Thos. E. Kepner and Mack & Green, for Appellant.
Cheney, Downer, Price & Hawkins, for Respondent.
By the Court, Coleman, J.:
Plaintiff, as administrator of the state of Anton Juantoreno, brought suit to recover judgment in the sum of six hundred dollars, alleged to have been loaned defendant by the deceased. The case was submitted upon the testimony offered by plaintiff, and judgment was rendered in favor of the defendant. The appeal is from an order denying a motion for a new trial.
Plaintiff relied entirely upon circumstantial evidence to sustain his cause of action. The facts are these: The defendant in 1912 borrowed $600 from one Jean Goyheneche, for which he gave his promissory note. On January 18, 1915, the note being long past due, the payee informed the defendant that he would have to have the money within ten hours. The defendant told said payee that if he could get the money in the bank, he was going to pay the note. On the morning following this conversation the defendant went with the deceased, Anton Juantoreno, to the bank at which time the deceased, who could not sign his name, drew a check, signed by his mark, and witnessed by one of the tellers and the defendant, for $600. The money was paid, not to the defendant, but to the deceased. They left the bank together. An hour or two later defendant paid the note held by Goyheneche with cash, some of the money
used having a bank wrapper around it at the time it was paid, though there was nothing to indicate that it came from the same bank as that at which the check mentioned was cashed.
1. Did the trial court err in refusing to render judgment in favor of plaintiff under this state of facts? We think not. It is a rule of law that when circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves be presumed. (Manning v. Insurance Co., 100 U. S. 693-698, 25 L. Ed. 761; 16 Cyc. 1051.)
2. To make a chain of circumstances in the case at bar which will justify a finding that the defendant borrowed the money from the deceased, it must be shown that he actually got the money. If it were proven as a fact that the defendant actually got the money, then, if the circumstances justified it, we might presume that it was obtained as a loan. But we cannot infer that the defendant got $600 from the deceased and pyramid thereupon, so to speak, another inference to the effect that the money so obtained was in the nature of a loan. In other words, a complete chain of circumstances must be proven, and not left to inference, from which the ultimate fact may be presumed. The ultimate fact in this case, according to the theory of the plaintiff, is that the money was obtained as a loan. It not having been shown as a fact that the defendant actually got the money from the deceased, we cannot presume a loan as alleged.
3. But if it had been shown as a fact that the defendant got $600 from the deceased, the presumption of law would be that it was received in payment of a debt, and before a judgment could be rendered in favor of the plaintiff, this presumption would have to be overcome by facts or circumstances.
The rule which we think is controlling in this case is laid down in 27 Cyc. 829, as follows:
Money paid by one person to another is presumed, in
the absence of any explanation as to the cause of the payment, to be paid because due, ...