Gerasimos v. Estate of Wartell

Sharpe, J. An opinion in this case was handed down on March 20, 1926 (234 Mich. 102). Pursuant to the order then made, additional proof has been taken and certified to this court. We were hopeful that, when submitted, we might be able to render a decree fixing the amount due on the mortgage with reasonable certainty. The additional proof is not very helpful. As was stated in the former opinion, the plaintiff submitted a number of checks, drawn in favor of the deceased, and receipts signed by him, showing payment of amounts in excess of the mortgage indebtedness. It appeared that there were other business dealings between them. The burden was, we think, on plaintiff to prove, as best he could, without violating the statute (3 Comp. Laws 1915, § 12553), the indebtedness on which such payments should apply. He is a business man, and at that time was engaged in several enterprises requiring the use of money. Mrs. Wartell, the widow of the deceased, testified that he would frequently come to her husband, who was then an invalid, and herself, and seek temporary loans to release goods purchased by him, tendering his check, payable several days in advance, and that, the money was advanced to him thereon. It also appears that on June 17, 1918, he executed a note, payable to Moses Wartell, in the sum of $2,000, and another in the sum of $3,350, to secure which he gave to Wartell a bill of sale of a soda fountain outfit. There is proof tending to show that this indebtedness had been reduced to $1,100. We are unable to determine with any degree of certainty the payments made by plaintiff *3 on the mortgage. The trial eourt applied such sums as the proofs satisfied him were paid thereon. On the record as now presented, the decree will be affirmed, with costs to appellees. Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.