184 Mich. 638 | Mich. | 1915
Complainant, as administrator of the estate of his mother, Adeline P. Graham, deceased, filed his bill of complaint in this cause against Albert Graham, his brother, and Salona Graham, the wife of his brother, for an accounting against them, claiming that moneys had come into their hands belonging
Adeline P. Graham, deceased, for many years owned and occupied during her lifetime a farm of about 160 acres in Calhoun county. Defendant, her eldest son, and his wife first went upon this farm in 1888 and remained there with deceased for several years. They were employed by her upon the farm, but the terms of that employment do not appear. They removed from the farm in 1894, when the mother procured the services of another son, who for some reason remained with her but a short time. They returned in 1895, when, as defendants claim, the mother and son entered into an agreement that he was to live with her on this farm and do such work as she should require of him°; also, that his wife was to assist his mother in doing the housework; that defendant Albert Graham was to have the right to run his own farm of 80 acres situated a short distance from his mother’s farm, and was to receive for the services of himself the sum of $200 and $100 for his wife’s services per year. The mother also agreed by
The theory and contention on the part of defendants is that complainant has no standing in a court of equity; that if any amount was owing this estate it was a matter of indebtedness from the defendant Albert Graham arising out of the agreement between
From an examination of the entire record, we find that Adeline P. Graham, who lived to the ripe old age of 88 years, was during her lifetime a woman of considerable ability and up to within a few months of her death was able to and did look after her business affairs. Her husband died about the year 1885, leaving her with this farm of 160 acres, which she occupied until the time of her death. At first she had the assistance of two of her sons for a year or two, and in 1888, about the time defendants were married, she first secured their services. They continued with her from that time until 1894 without interruption, apparently with satisfaction to all parties. These relations were then interrupted, if the reason appears in the record we do not recall it, and the defendants went upon a farm which Albert Graham had purchased, not far from the homestead, and remained there until 1895, when she again, because of some dissatisfaction on her part with the son she had employed during the interim, sought their services. As already stated, defendant Albert Graham and his wife returned to the homestead, when an agreement was entered into with
The record shows that during this time defendant Albert Graham marketed and. sold the products from his mother’s farm and employed the hired men necessary to properly do the work, whose wages were paid by the mother, and also personally performed work upon her place; that defendant Salona Graham during all that time assisted in and about the household duties and the customary work which farmers’ wives perform. She did the marketing of butter and eggs and purchased groceries and meat for the use of the family. She also frequently took money, checks, and drafts for her mother-in-law, Mrs. Graham, at her request, and deposited them in the banks, and frequently drew out from the banks money in both large and small amounts for her.
The record shows without dispute that no books of account were kept by any of these parties and, with the exception of some memoranda made by defendant Albert Graham and the bank passbooks, there is no written evidence of the transactions between these parties. Defendants produce their individual passbooks at two banks and one joint passbook at a savings bank, also passbooks of two banks in the name of Adeline P. Graham. All these passbooks show deposits and withdrawals from time to time, sometimes in quite large amounts, and no question is raised but that the entries in these passbooks were made at the times they purport to be made, or as to the correctness of the amounts they represent. It is admitted in the record that, after the death of the mother, Al
There are several difficult and interesting questions of law raised by each of the parties to this cause; but, as we view the case, we do not consider it important or necessary to discuss such propositions in order to decide the case.
The court finds itself in the same difficulty in regard to the evidence introduced on the part of the complainant as was met by the learned trial judge, expressed by him in his opinion, as follows, after speaking of some of the difficulties in the case:
“For reasons hereinafter indicated, this case has been one most difficult of determination; and I wish to make the record clear on this point, that I have decided the questions involved upon the theory that neither of the defendants could give competent testimony as to those matters concerning the accounting which were equally within the knowledge of Adeline Graham. With this rule of evidence in mind, I am of the opinion that the complainant has established his right to an accounting; but it is by no means easy, under the proof offered in this case, to make a determination as to what the measure or amount of the accounting should be.”
And again:
“And this difficulty has been still further increased by the lack of positive, definite testimony as to what the measure of recovery should be in case an accounting was decreed.”
The same difficulty was experienced by the solicitors for complainant, who in a supplemental brief say:
“The complainant had to rely solely upon strangers for his proof and was able to obtain data for but a portion of the period covered by defendants’ services. Just what the full amounts due Mrs. Graham would be upon a full and fair accounting can only be conjectured.”
The theory of complainant is that, because of the length of time during which these parties continued their relations, much larger amounts must have come into the hands of these defendants than the record shows, yet, in no instance is the testimony stronger than estimates as to what the annual income from this farm ought to be or would naturally be under the circumstances. In no case is proof made of what such income in any instance amounted to, nor any testimony from which could be gathered an amount to charge against these defendants in any particular instance. We find nothing more than suggestions, and these not of strong character. All of this testimony was too speculative to form a basis of a finding of the actual income from this farm in any year, or to fix any specific amounts from other sources which had not been accounted for.
The rule that fraud cannot be'presumed but must be proved, that it is not inferable from slight circumstances, and must be clearly established ■ from satisfactory evidence, is too well settled in this State to require citation of authorities. There is another rule
In the instant case all of the acts of these defendants which are admitted and proved are entirely consistent with an honest purpose and negative any theory of fraudulent conduct. The facts that certain deposits were made by defendant Salona Graham and like amounts withdrawn on the same date, and in some instances of the same amounts, as shown by the passbooks of herself and Mrs. Adeline Graham, do not raise any presumption of fraud, when one considers that the two trading points where she went with her butter and eggs were some distance from home and that she only went occasionally. It would be natural that, having money to deposit or withdraw for both parties, it would be done on the same trip. The amounts of these entries are not extraordinary, nor is it possible to draw an inference of dishonesty from the facts that these parties kept no books and cannot remember all of the items of cash received by them during 15 years.
Mrs. Adeline Graham during these years had large expenses outside of her farming interest. She made trips to Colorado. Letters are in evidence from her while there. She went to care for and bring back consumptive children who succumbed finally to the disease. During these years she made advancements to all her sons. It is admitted that she gave Edward Graham $3,500, that she gave Albert Graham, this defendant, $2,000, that she gave Frank A. Grahám $500, and complainant $400, in cash, the large portion of it, if not all of it, during the period while defendants lived with her. If that amount is taken from the receipts of this farm worked only to one-half its capacity, as is claimed, by her orders, a large surplus could not be expected.
It follows that the decree of the circuit court is reversed and set aside, and the bill of complaint is dismissed, with costs of both courts in favor of defendants.