Newton v. Tracy Loan & Trust Co.

I concur in the opinion of the Chief Justice that the judgment appealed from should be reduced in the sum of $1,497.37 on account of the Montana oil venture, with both opinions that the Megeath estate should be given credit for $2,200 on the Lynndyl property deal. I concur with Mr. Justice MOFFAT that there is evidence sufficient in a case like this that Megeath collected all the interest from the First *Page 577 avenue contracts. This comes as an inference from the following facts: None of the interest was paid to Newton, and it must be presumed, therefore, that all the interest was paid to Megeath because the purchasers of the property received title, and it is a fair inference that title would not have been conveyed unless the interest was paid up; since interest, therefore, must have been paid to these two and no other, and since one of the two did not receive any, the other must have gotten it. In a case such as this where one of the coventurers is dead and the accounts are in an uncertain state, the greatest certainty of proof is not possible. In order to adjust the matter between the survivor and the estate of the other, we must do the best with the evidence which is adducible.

For these reasons, I concur in the decision as laid down by Mr. Justice MOFFAT.