54 Mich. 70 | Mich. | 1884
The bill in this case is filed to foreclose a mortgage given by defendant John Ryan and- Mai-y Ann, his
It appears from the evidence that the mortgagee resided in New York, but was a large property owner in the Saginaw valley, and carried on lumbering and other operations there. Mr. William J. Bartow was his general agent in the charge of his property and of these business operations. Ryan was a laboring man, and took jobs of clearing land, building fence, and getting in saw-logs. He had such jobs from Bar-tow as agent for Hoyt in 1870 and 1871. In 1872 Bartow applied to him to take an unfulfilled contract for lumbering ofi the hands of one Weaver, who was likely to fail in its fulfillment, and Ryan consented to do so. But he was without much means, and required advancements to enable him to meet the expenses before the contract was fully completed, and the note and mortgage now in suit Were given for moneys advanced by Bartow for this purpose. A further sum of eight hundred dollars advanced for the same purpose was secured by a chattel mortgage.
Ryan claims that during the winter of 1872-73 he got out for Hoyt a quantity of logs, which were not sent forward by river, as was intended, the following season, but which he was to be allowed for when they were received, and that he has never been credited for them. It is denied by complainant that there were any such logs not credited, and both parties-have taken proofs on the subject. We are of opinion that the preponderance of evidence on this subject is with the defendant, and that Ryan is entitled to credit for the logs' as he claims.
In 1874, and for two or three years afterwards, Ryan furnished to Bartow, for the use of a plank-road company of
The other jobs taken by Ryan need not be mentioned. He did not keep regular books, and had to rely upon Bartow for the accounts, and there is every reason to believe that Bartow' fully understood this. ' In view of this fact, and of the variety of dealings which had been had with Bartow, as agent and as manager for the plank-road, and especially of the great lapse of time, it was particularly incumbent upon Bartow to make a complete exposition of the accounts in this suit. Remedy upon the note was barred; and though this did not preclude a foreclosure of the mortgage if anything remained unpaid, it fairly charged the complainant, in connection with the other facts, with the duty of showing that, in some way, Ryan had been paid for all the jobs he had done for Hoyt. The price for his services on the several jobs was a legitimate offset to the mortgage, and should be applied unless otherwise satisfied. We do not think that complainant has in this case borne the burden of proof which the circumstances cast upon him, and made the showing which equity required.
Taking into account the long delay, without any attempt to enforce or secure payment unless by the labor, which must necessarily cast some suspicion upon the case now made, (Lashbrooks v. Hatheway 52 Mich. 124,) and the admitted fact that Ryan for a large portion of the time has been at work for Hoyt, and that only. Bartow -was supposed to keep
The decree to that effect will therefore be affirmed.