Dunham v. Baird

KELLY, J.

The sole question in this case is whether plaintiff, Dunham, agreed to pay the taxes and insurance on the property of defendant, Baird, and permit said defendant, Baird, to make payment thereof to plaintiff at a time subsequent to the institution of this suit.

Defendant, Baird, testified in support of her claim that there was such an agreement. Plaintiff denies it, claiming that he had given said defendant but thirty days from the 4th day of November, 1930, within which to pay said taxes and insurance.

It being an affirmative defense, we hold that in order to entitle defendants to prevail the testimony must preponderate in their behalf. As we construe the record, the testimony does not so preponderate.

The circuit court, among other things, decreed a recovery by plaintiff from defendant, Margaret N. Baird, of. the sum of $600 with interest thereon at the rate of 8 per cent per annum from June 9, 1930. The interest had been paid for the quarter beginning June 9, 1930, and, hence, the decree should be and is hereby modified by striking out the date June 9, 1930, and inserting in lieu thereof September 9, 1930. As thus modified, the decree of the circuit court is affirmed. It is ordered that neither party recover costs on appeal.

Modified and affirmed.

Bean, C. J., Rand and Rossman, JJ., concur.