Assumpsit by Mary E. Blodgett, executrix of the last will and testament of Gilbert H. Blodgett, deceased, against Albert Vogel, for services rendered. From a judgment for plaintiff, defendant brings error. This is an action of assumpsit, brought by plaintiff, as executrix of the estate of Gilbert H. Blodgett, deceased, to recover on an account for legal services rendered by decedent for the defendant.
Cited by 1 later decisions — most recently October 1912
¶1('after stating the facts). 1. The defense offered to show by the defendant that the writing was upon the check at the time of its delivery to Mr. Blodgett. This was excluded by the court, as a matter equally within the knowledge of the deceased, and prohibited by the statute. 3 Comp. Laws, § 10212. The decision of the court was correct. This was not an extraneous fact.or circumstance, within the rule of Pillard v. Dunn, 108 Mich. 301 (66 N. W. 45). In that case a witness had testified that the defendant signed .a note in his (the witness’) presence, and that of the deceased, at a certain time and place. It was held that the defendant might contradict this witness by testifying that he was not at that place at that time, and did not sign any note in witness’ presence. The sole question of fact in this case is, When were those words written upon the check P It is an indorsement not common upon checks. The burden of proof was upon the defendant, who relied upon the receipt written upon the check. Its condition, the real issue in this case, was a fact equally within the knowledge of the deceased and within the prohibition of the statute.
¶22. Defendant offered several checks, issued near the date of the check in controversy, to other parties, to establish a usage on defendant’s part to indorse upon checks issued by him the nature of the transactions on account of *482■which, payments were made. This was rejected, and we think properly. There was no evidence to show that such custom on the part of the defendant was known to Mr. Blodgett. The offer raised collateral issues, which plaintiff could not be prepared to meet.
¶33. It is urged that the court erred in not granting a new trial on the grdund that the verdict was against the weight of the evidence. We do not think this is a case calling for a reversal of the case upon this ground. The daughter of the defendant, the sole witness to any settlement, testified to a “kind of a settlement.” All the other testimony was by experts who examined the check, — some testifying positively that, upon a careful examination with glasses, it showed that it was written on after it had been stamped by the bank. Witnesses for the defendant testified that, in their opinion, the stamp had been placed over the writing. *
