Grossbart v. Gilbert

364 Mich. 96 (1961)

110 N.W.2d 812

GROSSBART v. GILBERT.

Docket No. 65, Calendar No. 48,640.

Supreme Court of Michigan.

Decided September 22, 1961.

Leithauser & Grossbart (Julius M. Grossbart, of counsel), for plaintiffs.

Stanley Gelfund and George Stone, for defendant.

DETHMERS, C.J.

This is a chancery case. The entire dispute is the amount due from plaintiffs to *97 defendant on a real-estate mortgage indebtedness. Defendant claims it is $15,000, plus interest, from December 1, 1958, at 7% per annum. The trial court found the amount, as of October 25, 1959, to be $13,201.19. From that finding, and decree accordingly, defendant appeals.

This is a prime example of the kind of case which ought not to be here on appeal. The record discloses, from the deposition of defendant himself, admissions of payments on the mortgage indebtedness which support the trial court's conclusions. Those payments defendant seeks to explain as having been made on another obligation due him from the mortgagor. The court found that explanation to be fantastic. An examination of defendant's deposition and the other testimony and proofs in the case does not persuade us that had we been in the position of the trial court we would have found otherwise.

We agree with the trial court that allegations of plaintiffs in their pleadings in another case between them and third parties did not contradict plaintiffs' position in this case and in nowise worked an estoppel against them here.

Affirmed. Costs to plaintiffs.

CARR, KELLY, TALBOT SMITH, BLACK, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.