McWilliams v. Davis

2 Mich. N.P. 145

• Court: Circuit Court of the 9th Circuit of Michigan
• Decided: July 1, 1871
• Status: Published

Opinion

By the Court,

Blackman, J.

The referee in his report has set out a summary of the evidence and the conclusion of law thereon. From this summary it appears that the plaintiff was indebted to defendant on note and mortgage, áDd while abse»t irons N iles sent defendant so-me money by express. On his return be asked to bave it indorsed on his note. This, defendant refused to do unless the express receipt was produced, which was mislaid. Plaintiff finally in small sums paid and took up liis note. There were no indorsements on it. Some time after he found the receipt and presenting it to defendant demanded payment. Then defendant claimed the raoneywas allowed in the payment of the note at the time the parties looked over their, matters and defendant gave ap the note.

The referee held:

1. The burden of proof was on the defendant to show ■ that he applied the money as requested.

2, That as there was proof that no such indorsement was made, the defendant was then hound to show by a preponderance of proof that it was in fact allowed in settlement, and that it was not done.

To this finding asto the burden of proof defendant excepted.

JTehl, The first finding is erroneous, but immaterial to the actual issue, which is that the money was not applied in payment of the note, and that it was not indorsed. 9 Mich. 500.

The second finding is correct as the plaintiff had made out a 2>rima. facie case.

Where, upon the facts found by the referee,the plaintiff is entitled t.o recover, an erroneous finding of law which did not affect the decision on its merits will be disregarded.

The exceptions are disallowed.