Case 97 — PETITION ORDINARY

January 15.

#### Jones’ Adm’r *v.*Moore.

APPEAL FROM BALLARD CIRCUIT COURT.

1, Practice’ in Civil Cases — Harmless Error. — Upon the trial of an issue as to whether a decedent had made a gift or present to the plaintiff, where the evidence showed conclusively that the gift was made in consideration of love and affection, and com- • pleted by delivery of possession; an ina '-.ruction by the court assuming that such was the fact was not prejudicial.

2. Gifts — Accounts and Books of Accounts. — While a mere ac- • count, or even a hook of accounts, may not he per *se*evidence of indebtedness by the person against whom they are drawn, there may exist a property right, of an equitable character, enforeible against the debtor upon, proof of -their correctness, and such property right is subject to transfer, eiünr in writing or by-parol,,, and either as a gift or on contract..

*592J. M. NICHOLS *&*SON, por appellant.

1. An examination of the books will show that in no instance was ■there any; sum of money entered or charged therein against anybody, and they could not be made the subject of any contract or gift; the delivery of these books was nothing more nor less than the delivery of blank paper and could confer no right upon ap-pellee. Ashbrook v. Ryan’s Admr., 2 Bush, 228.

2. There was no evidence of the gift, or delivery of the books, shown by the plaintiff, and the motion for a peremptory instruction should have prevailed.

.. 3. The decedent revoked the gift when he sent his brother to appel-lee with a message to deliver his books to another.

BUGG *&*WICKLIFFE, por appellee.

1. A chose in action may be transferred by parol. 17 B. M., 626; 3 Marshall, 292; 2d Met., 530; 3 Marshall, 43; 6 Bush, 687; 91 Kentucky, 596.

: 2. If the gift had been made in contemplation of death, the evidence introduced by appellant, and relied upon to show revocation thereof, was only vague and uncertain hearsay evidence and should not have been permitted to go to the jury. 29 S. W. Rep., 21. But if it was properly admitted the question of fact has been passed on by two juries.

CHIEF JUSTICE LEWIS

delivered the opinion op tiie oourt.

Appellee, Frank Moore, an. infant, suing by bis father ■-.land; next friend, brought this action against S. K. Mills, . administrator of R. A. Jones, to recover a book of accounts alleged to have been given to him by R. A. Jones, who. was ¡his rancie, in consideration of love and affection and services rendered, and also the proceeds of accounts collected by Mills, part before the death of R. A. Jones and part ■ after his death, as his administrator. 'The evidence conclusively shows that -the gift was made in consideration of love and affection, and we think it satisfactorily appears that the gift was completed by delivery of possession and -acceptance by the donee. Appellant was, therefore, not -prejudiced by the assumption of fact by the court in am *593instruction given, that the gift was made and completed. But if the court erred at all in that instruction it was in the assumption, to the prejudice of appellee, that such gift was' made in contemplation of the death of the donor, for, in our opinion, the evidence shows it was instead of a gift *inter*vivos. However, treating it as a gift *causa,*mortis, as the court seems to have done, the question was fully submitted to the jury, whether the donor subsequently revoked the gift and upon that issue the jury, having evidence to support the verdict, found in favor of appellee, «and we have no right to disturb that verdict'.

The position of counsel that an account or book of accounts can not be the subject of transfer- as a gift is untenable. For while a mere account or even a book of accounts may not be *per se*evidence of indebtedness by the person against whom they are drawn, there may exist a property right of an equitable character enforcible against the debtor upon proof of their correctness, and .such property right is subject to transfer either in writing or by parol -and either as a gift or a contract.

Judgment affirmed.