Cataldo v. Winshall

2 Mich. App. 442 (1966) 140 N.W.2d 579

CATALDO
v.
WINSHALL.

Docket No. 369.

Michigan Court of Appeals.

Decided March 9, 1966. Rehearing denied April 15, 1966. Leave to appeal denied July 12, 1966.

Sugar & Schwartz (A. Albert Schwartz, of counsel), for plaintiff.

Starkey & Gentz (William A. Gentz, of counsel), for defendant.

Leave to appeal denied July 12, 1966. See 378 Mich 722.

QUINN, J.

Plaintiff brought this action to recover commissions and advances he claimed were due him from defendants. The nonjury trial resulted in a judgment for plaintiff and against Jack I. Winshall for $12,666.34 and a judgment of no cause for action as to defendants Bednarsh and Phyllis Winshall. Jack I. Winshall appeals.

Defendant states the issues presented as follows:

1. "Was the verdict and judgment of the court against the clear weight of the evidence as to the finding in favor of plaintiff on his complaint as to the following exhibits and claims, to-wit: * * * [Defendant then lists five items that the trial court credited to plaintiff erroneously according to defendant.]?

2. "Did the trial court err in denying appellant's motion to reopen the case for the introduction of supplemental proofs and in denying his motion for new trial?"

Plaintiff's action was filed February 24, 1959. Plaintiff is a real-estate broker and over a period of years he acted as broker and agent for defendant in the sale and development of real estate. Defendant dealt in and developed real estate. The transactions involved in the instant case occurred in 1953 and 1954. In its written opinion, the trial court found, "the defendant has produced no books or records and those produced by the plaintiff are the improvised variety with frequent obvious changes, and from entries money cannot be traced except by parol evidence."

The forum for the relief defendant seeks by this appeal is the trial court; the manner of obtaining it is the production of records which substantiate his contentions. With one exception, there is evidence in the record to support the findings of the trial judge, and the record does not clearly preponderate against such findings. Some of the findings resulted from the trial court giving more credence to plaintiff and his witnesses than it did to defendant and his witnesses. This is the province of the trial court; it sees and hears the witnesses, and its findings based on the weight it gives testimony will not be disturbed unless clearly erroneous. GCR 1963, 517.1. The record here indicates no reason for disturbing the findings of the trial court.

The exception above noted involves exhibit 25, a check issued by plaintiff to defendant Charles Bednarsh on October 16, 1953 in the amount of $3,000. At trial, this was admitted only as to Bednarsh. It should not have been considered by the trial court as to Winshall. The credit allowed plaintiff by the trial court in the amount of $3,000 on the basis of exhibit 25 was improper.

With respect to the second issue, motions to reopen for further proof and for new trial are addressed to the sound discretion of the trial court. A showing of abuse of discretion is required before an appellate court reverses a trial court's ruling on such motions. People, for the use and benefit of E.P. Brady & Co., v. Gilliland (1958), 354 Mich 247; Sabo v. New York C.R. Co. (1961), 365 Mich 231. The record here does not show an abuse of discretion.

The judgment of the trial court is reduced by $3,000 and affirmed. Neither party having prevailed, no costs are allowed.

LESINSKI, C.J., and McGREGOR, J., concurred.