249 F. 654 | 6th Cir. | 1918
“In an action at law the lmrclen is on the plaintiff in error to establish the existence o£ those errors of which he complains, and in the absence of proof by the record that a question of law arose, and that it was presented to and ruled upon by the court below, no error is established, because none could arise concerning a question which was not presented, considered, or decided by the trial court. Southern Pacific Company v. Arnett, 126 Fed. 75, 77 [61 C. O. A. 131],” and citations.
Counsel say in their reply brief that they found many letters, at least 100, written by Schaeffer, and, further, that this correspondence “is along the line of his letters heretofore made a part of this brief.” We cannot think that letters along the same line as those copied into the brief are inconsistent with the explanations made by Schaeffer in his last testimony. It is quite conceivable that he might have written many letters, stating reasons for Lowes’ delays in meeting payments, and still have been totally ignorant of Lowes’ real financial condition at the times the payments in dispute were made to the banks. Hence we are not impressed with the insistence of counsel that reversals of the judgments would lead to different results. The difficulty with these cases is that plaintiff has been under the burden of proving his charges, and he has not done this; nor does the evidence proffered afford any siTbstantial ground for believing that he can do so. Judgments cannot be founded on suspicion.
The judgments will be affirmed, with costs.