199 Mich. 430 | Mich. | 1917
{after stating■ the facts). Circuit Court Rule No. 23, § 6, provides that any statement of fact set forth in a notice added to a plea shall be treated as an admission by the defendant and need not be proved by the plaintiff. The plea and notice are a part of the record, and it is unnecessary to formally introduce them in evidence in order to make available for plaintiff any admissions they contain. Carpenter v. Carpenter, 126 Mich. 217 (85 N. W. 576); Buckeye Brewing Co. v. Eymer, 157 Mich. 518 (122 N. W. 124); Irwin v. Wolcott, 183 Mich. 92 (149 N. W. 1035). Plaintiff is not bound by a claim of defense contained in the notice, nor bound by facts therein stated. Nor was his position changed by the fact that he formally offered the record in evidence. The fact stated therein, of which he sought to avail himself, was that a payment of $250 had been made— advanced — by defendant to plaintiff, pursuant to whatever agreement existed.
In my opinion, this fact, and the facts evidenced by the writing and by-the testimony of defendant, are not sufficient, in law, to relieve plaintiff from proving that the stated consideration had been paid or furnished to defendant. This because it is uncertain from the words employed in the writing whether it does or does not import a consideration rendered by plaintiff for defendant’s promise. Being uncertain, it was necessary for the plaintiff to prove performance — consideration — on the part of his decedent, and in this behalf the notice given by defendant does not aid him. It is probable, as was remarked by the learned trial judge, that the death of one party to the arrangement (whatever it was) has made it difficult for either party to the suit to spread upon the record the real facts.
The judgment must be affirmed.