I do not agree that plaintiff is entitled to any judgment. The only question in the case is, whether plaintiff has proved by a preponderance of the evidence that he had made payments on the option and that there was either an oral or implied agreement to repay. No written agreement is claimed. Four witnesses, including plaintiff, were sworn in his behalf. Any testimony of plaintiff as to matters equally within the knowledge of Emery cannot be considered in his behalf. The testimony of two other witnesses (the probate judge and one Harold McGee) does not purport to establish plaintiff's claim. The testimony of Mr. Kepler, the remaining witness, falls short of proving except by inference and conjecture that plaintiff *Page 673 paid any money on the option. Conceding the probative value of Kepler's testimony (and, except on one point, it is not disputed), the most that can be said for it except by conjecture is, that Emery desired to pay plaintiff four dollars for a trip to Grayling.
Plaintiff's claim seems to depend mainly upon a so-called receipt marked Exhibit 12. Plaintiff claims this was signed by Emery, although Kepler's testimony to that effect is denied by three witnesses. Plaintiff's sworn claim filed in probate court states that he paid Emery $500 on November 1, 1933. This would be within 90 days from the date the option was executed. The option contains the requirement that upon payment of $500, Emery should deed a certain 40 acres to plaintiff or any other person plaintiff should direct. Plaintiff gives no reason for not requesting a deed at that time instead of waiting over four years and then filing a claim against Emery's estate. Plaintiff's so-called receipt also purports to show a payment of $500 cash on June 2, 1934. The circuit judge must have concluded that one of these $500 items was a fictitious claim, inserted in the so-called receipt to perpetrate a fraud on Emery's estate. This particular claim was eliminated by the circuit judge, and this viewpoint is concurred in by Mr. Justice NORTH. To me, this attempt to defraud the defendant estate taints plaintiff's entire claim with fraud. If this so-called receipt is false in one thing, a natural inference is that it is false in everything.
The "receipt" part of Exhibit 12 is in handwriting admittedly not the handwriting of Emery, except perhaps as to his signature, although the rest of Exhibit 12 is typewritten on a statement of account *Page 674 rendered by a publishing company for publishing a probate notice. The handwritten part is as follows:
"Received of H.J. Bowman.
"The above amt to be applied on contract Signed "JOEL EMERY"
The option was for $1,000, and why should these payments totaling $1,008.80 (in excess of the option) be "applied on contract" instead of "in full payment of contract?" Based upon this slender showing, plaintiff sought to recover $1,008.80 from defendant estate on the theory that plaintiff had paid this amount to Emery on the option. Common sense leads to the inquiry, why did not plaintiff insist upon a deed from Emery on June 2, 1934, when he claims to have overpaid the entire option price?
Emery continued to pay the taxes for the entire period from 1933 until his death. In November, 1935, plaintiff executed an offer to sell the land in question to the United States government. In October, 1936, the government agent, after examining abstracts, advised plaintiff he would have to procure a deed from Emery. Plaintiff failed to do so and the government agent testified that he prepared a quitclaim deed and went to Mr. Emery's home to get the deed signed and that Emery refused to sign, stating as his reason that he had not been paid for the property by plaintiff. Plaintiff never claimed to the government agent at any time that he had made any payment. Shortly afterward, plaintiff executed and delivered to the government agency an agreement cancelling his offer to sell, without reservation of any claim of interest in the premises. Emery wrote a relative that plaintiff had given him back hiscontract and if the government *Page 675 agent should come along, he could do business directly instead of through Bowman. Thereafter, the government agency took from Emery a similar offer to sell, without objection from Bowman.
Emery died in March, 1937, and thereafter plaintiff surrendered to the administrator the papers Emery had left with plaintiff, including plaintiff's copy of the original option. Plaintiff never made any claim to the administrator of any money coming to him, but, on the contrary, continued to collect rentals, turn the money over to the administrator, and made a final settlement on the rent account, paying the administrator $57.70. Plaintiff and the administrator were in frequent contact and at no time did plaintiff claim he had made any payment under the option. Plaintiff filed a claim in probate court in December, 1937, for $1,008.80.
Before plaintiff can recover, he must establish by a preponderance of the evidence that he paid money on the option, and either an oral or implied promise or agreement to repay him. Preponderance of the evidence cannot rest so completely upon inference and conjecture. Inferences, if controlling, preponderate with the defendant. Emery had accumulated considerable property and had much business experience. His bank deposits were introduced and show no deposits of sums claimed by plaintiff as cash payments. His receipt stubs fail to show the payments claimed by plaintiff. Emery had other dealings with plaintiff over lands and land contracts and the inference is equally within reason that the numerous receipts claimed by plaintiff might have concerned other dealings.
Judgment should be reversed for entry of judgment for defendant, with costs.
*Page 676BUTZEL, J., concurred with BOYLES, J.