Hough v. Comstock

• Decision Date: 26 July 1893
• Citation: 55 N.W. 1011,97 Mich. 11
• Court: Michigan Supreme Court
• Parties: HOUGH v. COMSTOCK.

55 N.W. 1011

97 Mich. 11

HOUGH v. COMSTOCK.

Supreme Court of Michigan

July 26, 1893

Error to circuit court, Jackson county; Erastus Peck, Judge.

Action by Edward A. Hough against Hattie E. Comstock to recover an alleged balance due on an account for money loaned by plaintiff to defendant. From a judgment entered on the verdict of a jury in favor of defendant, plaintiff brings error. Affirmed.

Thomas E. Barkworth, for appellant.

Austin Blair, for appellee.

HOOKER, C.J.

Edward A. Hough, the plaintiff, brought this action against his sister-in-law, the defendant, for money which he claimed to have loaned to her, and paid for her at her request. It appears that. soon after defendant moved to Jackson plaintiff's mother came to visit her, and spent, upon that and other occasions, altogether, some two or three years at her home, being supported by her. Defendant testifies that, on several occasions, plaintiff expressed the intention of assisting her in supporting his mother, and contends that all money procured from him was given her for such purpose and that she did not receive any of it as a loan. The testimony in support of such claim is as follows: Defendant being the witness, was asked: "Question. What conversation did you have with Mr. Hough in regard to her support and expenses there, at any time? Tell us what that was. Answer. I went in the office one day, and he gave me $40, and I took it; then I went back after he had gone out on the road, and I gave it back to his bookkeeper, Miss Petitt. When he came home again, I was in the office, and he handed it back to me, in money. Said he did not intend I should have paid that back, and he expected to bear his share of the burden of his mother's support. I said, if I was able, I should not want him to, but I was not; he was a great deal better off than I. And he said that was all right, he expected to do it, and I thought he ought to. This conversation occurred just before his mother went north the first time." Being interrogated by Mr Barkworth about a conversation with him, the witness testified: "Q. Didn't you talk with me about it? A. I certainly did, generally; came to your office, when you had the claim for collection, to see what could be done about it objected to the amount on the ground that I had supported his mother, and he promised to help me in that regard. Was willing at that time to turn over a mortgage to him, if he would allow me what was just and right for the support of his mother. He promised to assist me in taking care of the old lady. I never said I would turn over a mortgage for the amount, provided Mr. Hough would not recognize the moral obligation resting upon him for the support of his mother. I sent Hough a list of mortgages to select from, but expected he would allow me for his share of support. Did not expect to pay the whole, and did not say I had no legal claim against him. Q. Didn't you state to me that, so far as the money was concerned, or Mr. Hough's claim to have loaned you, that you had it; that there was no trouble about that? A. I don't deny I had the money. I don't deny it here. I do deny that I ever asked him for it. He offered it to me. Did not get money in his absence. If I ever got any money of Miss Petitt, she drew the check at his order. Q. Now the fact with regard to his mother coming there was that you invited her to come first, wasn't it? A. Yes, on a visit. Q. And that when she got there the situation was mutually pleasant, and you requested her to stay. Isn't that true? A. I didn't say anything about it to her. She stayed. Did not insist on her staying. Nothing was said about it. She just came, and lengthened out her visit; and during the time Mr. Hough told me he expected to pay his share of his mother's expenses. Q. What share did he say? A. I don't know. That is what I am trying to find out,-what he considered his share. * * * Q. Do you swear positively you did not have on December 1, 1889, from Mr. Hough, $74.33, for payment of the McKinstry bill? A. Why, certainly, I did not. There is the receipt in my name. Q. Didn't you get a check from Miss Petitt on that particular date? A. I don't think I did, because I never asked him to pay my bills. I never asked him for any money. He always offered it to me. * * * Q. At the time these moneys were obtained, he had not said a word to...