Linsell v. Linsell
138 Mich. 64
Mich.
1904
Check Treatment
Carpenter, J.

May 25, 1901,- an interest of plaintiff’s husband in the estate of his deceased mother was conveyed to defendant, his brother, for the agreed consideration of $1,000. Part of this consideration was paid in cash. The cause of action for the balance was assigned to plaintiff by her husband, who brought this suit to recover the same. Defendant testified that this balance was paid by the settlement of two accounts—the principal one of which was for rent—owed to him by his brother. The trial court, by his charge, in effect compelled the jury to credit this testimony. Was this error ?

According to the testimony of defendant, the arrangement whereby the unsettled accounts were to be paid by the transfer of the interest in the estate was made several days before the transfer was actually made, at an inter*66view when no one but himself and his brother were present. His claim of payment, therefore, depends entirely upon the credit to be given to his unsupported testimony. Plaintiff testifies that when the deed was made, she said to the defendant, ‘ ‘ that my husband should have the first show to take $500, and if he didn’t do right with it, I should come in on the other $500,” and that the defendant “ didn’t say anything.” She also testifies that though she and her husband had occupied defendant’s property, the latter said, shortly before the conveyance in question was made, that “he didn’t want anything for the rent.” It seems to us clear that this testimony of plaintiff justified the jury in discrediting defendant’s testimony, and that therefore the charge under consideration was erroneous. See Michigan Pipe Co. v. Insurance Co., 92 Mich. 488. See, also, Goppelt v. Burgess, 132 Mich. 28.

The suggestion is made in appellee’s brief that plaintiff’s pleadings describe her cause of action as arising out of certain note or notes, and that she cannot therefore recover on the open account which her evidenco tends to establish. This objection of variance was made when the trial commenced in the lower court. To meet it, plaintiff’s counsel was permitted to, and did, amend his bill of particulars. Afterwards the objection was not urged. We are bound, therefore, to say that the trial proceeded upon the assumption that there was no variance. Defendant cannot now assert that this assumption, upon which he obtained a verdict, was unfounded. See Wineman v. Fisher, 135 Mich. 604.

The judgment of the circuit court is reversed, and a new trial granted.

The other Justices concurred.