Thatcher v. Hayes

Cooley, C. J. The bill in this case is filed for an accounting. Congdon, the intestate, being indebted to Hayes, and being owner of a large amount of lumber, shingles, logs and machinery, made a nominal sale of them to Hayes, with the purpose that Hayes should sell them and account for the proceeds. Hayes has made sale [of them all, and now the question is whether he has accounted for all the proceeds. A sale of lumber was made to one Taft, and notes taken for the purchase price. Upon one of these notes an indorsement of $528 was made as for a payment. One of the principal questions in the case is whether Hayes received this sum, or whether the indorsement was for the value of shingles which Taft furnished to one White on a debt owing by Congdon to White. After full and patient consideration of the case we are constrained to say that the evidence leads us to the conclusion that Congdon’s estate should be charged with the price of shingles furnished by Taft to White; the evidence satisfactorily showing that they were furnished on Congdo'n’s debt. But we do not think the allowance can exceed the sum stated in Congdon’s letter referring to the transaction, dated December 28, 1874, in which it is given at $420. Without the aid of this letter we do not think the main fact could be established against Congdon; and we cannot give it effect beyond its terms. [186] It is not entirely plain that other allowances ought not to be made to Hayes, but the burden of proof is upon, him, and we cannot say that he has satisfactorily established his right to any other. The decree must be modified so as to make the allowance mentioned, and Hayes will recover the costs of this Court. The other Justices concurred.