Gruett v. Dibble

• Decision Date: 21 May 1901
• Citation: 126 Mich. 623,86 N.W. 120
• Court: Michigan Supreme Court
• Parties: GRUETT v. DIBBLE et al.

86 N.W. 120

126 Mich. 623

GRUETT v. DIBBLE et al.

Supreme Court of Michigan

May 21, 1901

Appeal from circuit court, Isabella county, in chancery; Stearns F Smith, Judge.

Bill by Philip Gruett against Mason B. Dibble and another. From a decree in favor of plaintiff, defendant Dibble appeals. Affirmed.

J. Lee Potts (Edwin H. Lyon, of counsel), for appellant.

Frank H. Dodds and Russell & McNamara, for appellee.

HOOKER J.

Complainant's bill alleges his ownership of an undivided third interest in a parcel of land, subject to a mortgage. Wishing to purchase the other two-thirds, he arranged with defendant that said two-thirds should be conveyed to him, as security for the purchase price and the amount of said mortgage, both of which defendant paid for him. The parties have had dealings ever since, covering a period of 11 years; and the bill is filed for an accounting, and to compel defendant to convey his interest in the premises to the complainant. From a decree in favor of the complainant, the defendant has appealed.

The case is reduced to a matter of accounting. Counsel for each party have succinctly stated the account, in a most commendable way, making a comparison and elimination of undisputed items easy.

1. The first disputed question involves the date of what is called the 'Kempf Note.' Our examination of the record leads us to the conclusion that the defendant's claim is correct, and that the indebtedness was incurred in 1888.

2. It is claimed that the Exchange Bank note, of $1,300, was offset to the amount of $100 paid by plaintiff to the defendant. As plaintiff's testimony is undisputed, this item should be allowed him.

3. One Welch harvested some wheat raised upon a parcel of land owned by the complainant, and, by complainant's direction, delivered complainant's share to the defendant. It is claimed that this amounted to 800 bushels. Defendant's statement shows a deduction of one-sixth, upon the claim that it was short in weight, but we think this was not proved. It is also claimed that the complainant received 25 bushels of his share of the wheat but we think this, if proved, is offset by the price shown to have been received for the wheat, and we therefore allow the item as charged.

4. Complainant leased certain lands for the period of three years on shares, and the defendant received his share. The complainant testified that he had no knowledge of the amount received, and stated that defendant agreed to keep account of it, but claims that he did not. A charge of the rental value was therefore made, and we think it should be allowed as charged.

5. A claim was made for $200 agreed to be paid to complainant if he would induce his mother to deed a parcel of land to defendant. It is said that this should not be allowed because the only proof that the same was deeded to defendant is the oral testimony of the complainant. ...