| Mich. | Apr 24, 1879
Henry Nibbelink, the defendant in error, presented certain claims against the estate of his father, Seth Nibbelink, which were rejected by the commissioners, but allowed on appeal to the circuit court for Ottawa county, from which error is brought into this eourt. These claims consisted chiefly of earnings paid by Henry into the family stock, and services rendered to his father, and various outlays. The earliest items were for his wages in an establishment known as the Plugger Mills, in 1865, 1866, 1867 and 1868, alleged to have amounted to over $1,500. The claim filed averred this to have entered into an account stated in 1873, when it is claimed the decedent agreed to convey to Henry a farm known as his Yriesland farm, in Ottawa county— the parties living in Holland in the same county. This farm having been sold by Seth Nibbelink, a claim is .set up for the proceeds, — set up as $3,600.
The other items claimed are money paid out for
Henry lived with his father until some time in 1873, when by reason of disagreements between their wives he left, and a settlement was had which became somewhat important on the trial. A written instrument was executed by Henry, which as translated consists first of an acknowledgment of the receipt of two horses and their harness and appurtenances, one wagon and whatever belonged with it, one cow, one bed and its belongings, one bedstead, six chairs, one table, one stand, five pieces of pork, one piece of meat, one bag of corn, two bags of oats, one-half ton of hay, three cords of wood, six chickens, one rooster, two chains. These he acknowledged to have received for labor done up to that time. The witnesses testified that at the same time his father promised that he should have the Vriesland farm, but when he was to have it, — whether before or at his father’s death, and whether it was wholly or only in part in recompense for his services and aid to his father — is not agreed upon or made very clear.
His brother Jacobus had obtained another farm, partly, at least, as a gift, and there was some testimony indicating that the farm to be given to Henry was also in part a donation.
The father died testate and gave Henry nothing but a nominal legacy.
Several questions are presented on the record and ■reference will be made to such as are material.
Testimony was introduced for the purpose of showing the earnings at the Plugger mills, and this was' allowed to go to the jury as a cause of action. Objection was made to it as barred by the statute of limitations, and also that it was not covered by any proper averment in the declaration.
If properly declared on, it might possibly have been ¡shown to have belonged to a series of open dealings
But under the claim made before the commissioners- and the bill of particulars with which the declaration must be made to conform, it is doubtful whether this item can be regarded as averred as a ground of action. It is set up as resting in a mutual or open account-which was settled in 1873. If it was set up as a single demand not reduced by mutual credits, it would very clearly have been barred. There is undoubtedly some ground for construing the claim in the probate court as-embracing the whole amount of these earnings as having; been unpaid, and merely liquidated in 1873, when it is-alleged Seth promised to pay the debt by a conveyance' of the Vriesland farm. A verbal promise in 1873 to pay this old debt, if not kept open by mutual dealings, would not have renewed it so as to save the statute. Comp. L., § 7160. There was no evidence whereby the amount due in 1873 could be got at so as to identify this item,, or any others if there was any settlement of mutual demands. And we think the basis of the claim intended to be relied on was the promise to pay whatever was then settled upon, whatever may have been its origin.
This leads to another chief question in the trial. We. have discovered nothing to determine what was the-amount supposed to be due Henry in 1873, except as it may be supposed to be measured by the value of theVriesland farm, and it seems probable that the jury acted upon this as furnishing the only tangible measure of damages.
The agreement to convey the farm was void under the-statute of frauds. To allow the value to be used for any purpose in evidence would be practically to
The outlays of Henry within six years before his father’s' death in building were properly admissible, and the proof of the value was made by the estimates of a witness who had some means of knowledge. In the absence of any written evidence of a primary character we think this was admissible.
No demand for labor prior to 1873 is made in the claim on file, and all evidence of it was therefore irrelevant. It seems moreover to have been settled by the receipt of 1873.
Several minor questions of evidence were raised which will not probably arise again, and therefore we pass them by. The chief difficulty seems to have arisen from disregarding the form of the claim sued on. The charges complained of come within the same observation.
Judgment must be reversed with costs and a new trial granted.