Frye v. Mielke , 271 Mich. 182 ( 1935 )

In 1920, decedent, Anthony Waldman, sold defendant premises on land contract. Defendant made regular payments of $50 monthly through November, 1931, thereafter $40, which were entered on form sheets attached to his copy of the contract, showing date, principal payment, balance of principal, interest payment and signature of vendor. The last entry was May 8, 1932, principal payment $2,431, balance of principal $18, interest payment $11.63, and purported to bear Waldman's signature. Waldman died a few days later. Plaintiff, his administrator, gave notice of forfeiture and commenced summary proceedings to recover possession. Defendant tendered $18 and interest as balance owing. Plaintiff had judgment before the commissioner and defendant appealed to circuit court.

At the trial, on plaintiff's objection, defendant and his wife were excluded from giving testimony of the circumstances of the entry of the last payment on the contract, on the ground that it related to matters equally within the knowledge of the deceased.^* This left the entry without either supporting or impeaching evidence except as to the genuineness of Waldman's signature, upon which the testimony was in dispute. The case was submitted to the jury on the sole issue of the signature. The jury found for the defendant and he had judgment.

The entry was a receipt and, the signature being genuine, wasprima facie evidence of payment. Hiscock v. Hiscock, 257 Mich. 16 (78 A.L.R. 953). Being unimpeached the receipt was sufficient to sustain the burden of proof of payment.

Affirmed, with costs.

POTTER, C.J., and NELSON SHARPE, NORTH, WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.

^* See 3 Comp. Laws 1929, § 14219. — REPORTER.