Barker v. Brown's Estate
| Decision Date | 15 February 1889 |
| Citation | 74 Mich. 169,41 N.W. 888 |
| Parties | BARKER v. BROWN'S ESTATE. |
| Court | Michigan Supreme Court |
Appeal from circuit court, Ottawa county; DAN. J. ARNOLD, Judge.
Nelson Barker presented a claim against the estate of Lucius Brown deceased, which was allowed by the commissioners, and the administrator appealed to the circuit court, where a trial by jury was had, resulting in a verdict against the said Barker and judgment accordingly, and he appeals.
This is an appeal from commissioners on claims on the estate of Lucius Brown, deceased. The claim is for the balance remaining unpaid on a note as follows: "$300.
The cause came on to be heard in the Ottawa circuit court before a jury who, under the direction of the court, returned a verdict in favor of the defendant estate. Judgment being so entered upon the verdict, the claimant brings error. An issue was framed by the pleadings in the court below, the claimant filing a claim in which it is alleged that at the special instance and request of the deceased, on the 8th day of August, 1882, said claimant was introduced to and did loan to the New Moon Lodge No. 284 of I. O. O. F. the sum of $300 and took the note above mentioned. That the deceased, in order to induce said claimant to loan said money on said note, agreed and promised to pay said claimant said moneys and interest thereon, and said claimant, relying on said promise and agreement of said Brown, then and there turned over to said Brown said $300 in money. That prior thereto said New Moon Lodge and said Lucius Brown, deceased, had entered into an agreement as follows: That said lodge was then contemplating the erection of a building, and, not having sufficient funds for that purpose, it was agreed that said Brown should furnish the money, and when the building was completed said lodge was to give a mortgage on the building and grounds to the wife of said Brown, at his request and direction. That in pursuance of said agreement, and in consideration that said Brown would pay and assume the indebtedness for the building of said lodge building, and with his promise and agreement to do so, said lodge, at the special instance and request of said Brown, executed and delivered to the wife of said Brown a mortgage on said building and lot for the amount of the indebtedness of said lodge for said building, and said Brown then and there assumed and agreed to pay the amount due said claimant, and said claimant then and there agreed to said arrangement, and released said lodge from such obligation, and accepted said Brown therefor, and collected from said Brown, in pursuance of said arrangement, $100. To this statement of claim in the nature of a special count is added the common counts in assumpsit. The estate, by its counsel, pleaded a plea in the form of general issue. The cause was tried in the court below upon the issue so made.
It is contended upon the part of counsel for claimant that the evidence received on the trial had a legal tendency to prove both an original undertaking and liability on the part of deceased for the payment to claimant of the amount of the note, and also an arrangement made between the lodge and Brown, by which for a valuable consideration he assumed and agreed with the lodge to pay the note. It is contended further that there was an offer of evidence on the part of the claimant to show that this arrangement between the lodge and Brown was communicated to the claimant by a member of the lodge, and the claimant assented to the same, and agreed to look to Brown exclusively for his pay. It appears that on May 10, 1879, the matter of building a hall was under discussion in the lodge. The lodge had some money, but not sufficient for the purpose, when Brown proposed, if they would build the hall, he would furnish the balance of the money, and take a mortgage upon the property to his wife as security. A motion prevailed to proceed to the erection of a building, and the building was erected. It appears that Brown was unable to advance money as required, and he directed the building committee to borrow what they needed from others, promising to take care of the obligations afterwards. The committee borrowed from several parties under this arrangement, one Soper loaning them $300. Mr. Brown paid up all these loans except the Soper loan of $300. He then requested the lodge to make the mortgage to his wife for the money so paid out by him. This was objected to, unless the Soper matter was arranged. On the trial, Mr. Wells was called as a witness for claimant, and testified substantially that some time about the last of July or first of August, 1882 Mr. Brown came to him with a note, and wanted him to sign it to hire some money to pay the Soper note, so he could get a mortgage of the lodge for the whole amount. He said he had got to get the money before he could get the mortgage; he had to release the debt against the lodge. He said he could get the money from Mr. Barker, but was hard up at the time, and wanted some help to get him, if he could, to extend the time, as he did not want to take a second mortgage on the property, and wanted to pay up the indebtedness, and have it all in one mortgage. He said he could get the money from Barker if he would become responsible for it. He said Mr. Barker did not want to take the note of the lodge, but he would take his, or would let him have the money if he would agree that he would pay it. Mr. Edgar Clark testified that he was present when Brown went to Barker to get the money on the lodge business, when Mr. Barker told him he did not know anything about the lodge business; he did not like to lend money that way, but if he would be responsible for the money, he would let him have it, or as much more as he wanted. Witness says that he could not say that Barker let him...
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