Opinion
Docket No. 28, Calendar No. 35,692.
Submitted January 5, 1932.
Decided March 2, 1932.
Appeal from Wayne; Campbell (Allan), J. Submitted January 5, 1932. (Docket No. 28, Calendar No. 35,692.) Decided March 2, 1932.
Assumpsit in common pleas court by Anna Caruso against Joseph F. Weber under the common counts for money had and received. Judgment for plaintiff. Defendant appealed to the circuit court. Judgment for plaintiff. Defendant appeals. Reversed, and new trial granted.
Silberman Weil, for plaintiff.
Henry C. Bogle, for defendant.
Plaintiff sued defendant in common pleas court in Detroit in assumpsit and had judgment. Appeal was taken to the circuit court of Wayne county, where plaintiff again had judgment. Defendant appeals. The sole question is whether there was evidence to sustain the judgment. The suit was brought to recover rent alleged to have been collected by defendant from tenants of plaintiff's property. The caretaker of plaintiff's property was sworn. He testified he collected the rent from tenants for a part of the time and turned it over to Mr. Barton. He produced a receipt purporting to be for rent paid by a tenant to defendant Weber. No one testified Weber received any money for rent of the premises in question. No one identified the receipts as having been signed by Weber, and no one otherwise authenticated such receipts.
"A plaintiff has always the burden of showing his cause of action. Every defendant is entitled to go clear unless made answerable by legal testimony. There are no presumptions against him. If there is no testimony to be found, it is not admissible to make out a case without it. When plaintiff's case was closed, no cause of action had been made out." Lendberg v. Brotherton Iron Mining Co., 75 Mich. 84, 89.
This language applies to this case. There is no sufficient evidence to sustain the judgment, which is reversed, with costs, and a new trial granted.
CLARK, C.J., and McDONALD, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, concurred.