Cyranoski v. Keenan, 6

• Decision Date: 28 June 1961
• Docket Number: No. 6,A,6
• Parties: Donald B. CYRANOSKI, Administrator of the Estate of Daniel A. Cyranoski, Deceased, Plaintiff and Appellee, v. Frank KEENAN, Individually and doing business as Keenan Car Company, Defendant and Appellant. pril Term.
• Court: Michigan Supreme Court

Page 815

109 N.W.2d 815

363 Mich. 288

Donald B. CYRANOSKI, Administrator of the Estate of Daniel A. Cyranoski, Deceased, Plaintiff and Appellee, v. Frank KEENAN, Individually and doing business as Keenan Car Company, Defendant and Appellant.

No. 6, April Term.

Supreme Court of Michigan.

June 28, 1961.

Rom & Newton Dilley, by Newton Dilley, Grand Rapids, for plaintiff, appellee and cross-appellant.

Shivel, Phelps, Linsey & Strain, by Dale M. Strain, Grand Rapids, for defendant and appellant.

Linsey, Shivel, Phelps & Vander Wal, by John H. Vander Wal, Grand Rapids, for defendant and appellant.

DETHMERS, C. J., and CARR, KELLY, SMITH, BLACK, EDWARDS, KAVANAGH and SOURIS, JJ.

PER CURIAM.

Defendant appeals from a decree awarding plaintiff, on the latter's bill for an accounting against defendant, the sum of $15,105 plus interest on separate sums of the total award calculated from two different dates. The chancellor has presented the essential facts in fair and comprehensive summary:

'This is a bill for an accounting brought in the name of Donald B. Cyranoski as Administrator of the Estate of Daniel A. Cyranoski, deceased. The plaintiff and the deceased were brothers. Daniel C. Cyranoski met with an accidental death while operating a motor vehicle on January 12, 1957.

'The defendant is engaged in the business of selling used automobiles and deceased had been employed by the company since around 1950. For some years prior to his death the had acted as sales-manager for the Company. Plaintiff claims that the defendant was indebted to the deceased at the time of his death on several accounts.

'1. A loan from the deceased to defendant on November 26, 1956 in the amount of $7,500.00.

'2. Sale of a Buick automobile on November 2, 1954 in the amount of $1,930.00.

'3. A sales bonus for 1955 in amount of $3,000.00.

'4. A sales bonus for 1956 in amount of $3,900.00.

'5. Unpaid wages for two weeks in 1957 in the amount of $300.00. Also claimed interest as due on first four items.

'Since the plaintiff invoked the dead man's statute, the evidence revolved almost completely around the books of account of the defendant company. Many of the entries were said to be in the handwriting of the deceased. The defendant admitted items of the loan of $7,500.00; the car sale; and admitted that there was due to the deceased in the way of a 1956 bonus the sum of $2,000.00. Defendant also claimed that the alleged bonus for 1955 of $3,000.00 had been paid, and that all salary to the date of deceased's death had been paid. The defendant also claimed a set-off.

'It is apparent that the deceased and the defendant worked in close cooperation and that the defendant was greatly in the confidence of the deceased because no evidence of defendant's obligation were given to the deceased and therefore resort was necessarily to the record. How accurate or reliable these have been are subject to some reasonable doubt in some of the particulars relating to the transaction between the parties.'

Defendant's motion to dismiss, assigning availability of an adequate remedy at law, was denied. Defendant thereupon filed an answer, which answer included a notice of 'set-off and recoupment' the substance of which was that an automobile (owned by defendant and valued at $1,515) was negligently demolished by plaintiff's decedent in the accident which took the latter's life. As to such 'set-off and recoupment' the chancellor held that plaintiff's decedent would have been liable to defendant--for destruction of the car--only as bailee and, there being no proof that plaintiff's decedent was actionably negligent, that defendant could not recover upon the asserted counterclaim.

The questions defendant would have us review are whether Judge Taylor should have granted his motion to dismiss; whether defendant should have been permitted to testify to matters eqully within the knowledge of plaintiff's decedent 'after having been called as a witness, and examined as to such matters, by plaintiff's attorney,' and whether the judge should have 'allowed defendant a set-off * * * as a result of the demolition of one of defendant's cars by plaintiff's decedent.'

First: We agree with plaintiff that the proof relevantly discloses a fiduciary relationship between plaintiff's decedent and defendant sufficient to justify invocation by plaintiff of equity's concurrent jurisdiction, the nature of which Professor Pomeroy has considered at length in chapter II of his work on equity jurisprudence, ¹ and that defendant's motion to dismiss, assigning presence of an adquate remedy at law, was on that account properly denied.

Second: We find no ground for reversal here. Defendant failed to request the taking upon separate record of such additional portion of his testimony as might tend effectively to establish non-indebtedness to plaintiffs' decedent by him. The limited amount of defendant's actually received testimony, as to matters equally within the decedent's knowledge, which testimony is shown in defendant's appendix, does not convince as against the documentary proof and the chancellor's finding thereon that the decretal award is excessive. Such testimony is limited to a manifestly self-serving asseveration by defendant that he paid the decedent 'a bonus of $3,000.' in cash and that the decedent thereafter made no claim of non-payment of said bonus.

The trouble with defendant's complaint under this heading is that he has not brought here, and did not ask the chancellor's aid in bringing here, that comprehensive record of defendant's testimony which might enable us to asertain its value as well as competence. See Counihan v. Hayes, 246 Mich. 390, 224 N.W. 324; Kerns v. Kerns, 303 Mich. 23, 5 N.W.2d 552; Serbinoff v. Dukas, 348 Mich. 69, 81 N.W.2d 236; Bujalski v. Etzler Motor Sales Co., 353 Mich. 493, 92 N.W.2d 60; and Lazerow v. Lazerow, 362 Mich. 27, 106 N.W.2d 542.

Third: Plaintiff insists that defendant, having the burden of proof in such regard, failed o establish that the relationship of decedent of defendant was that of bailee of the latter's car. We agree. Defendant's said 'set-off and recoupment' does not allege the claimed relationship ² and there is no proof of the nature of the claimed contract of bailment if in fact or law such contract came into existence. If anything, on the face of this discursive record, the sole inference is...