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Long, J.
The bill in this case is filed for the purpose of obtaining the specific performance of an executory land contract. On the 24th day of February, 1887, the defendant held or claimed to own various parcels of land within the county of Gratiot, and among which was the W. of the N. E. i of section 18, township 10 N., range 4 W., in said county, the south 40 of which is the land in controversy. On this day the defendant conveyed the land in question, together with other lands, to Jones & Porter, of Lansing; taking back a mortgage upon the lands so conveyed for the sum of $11,822. Contemporaneously with the execution of these conveyances, there was executed between: the parties a written agreement whereby it was agreed that, if Jones & Porter made sales of parcels of these lands from time to time upon contracts, such contracts should be turned over by Jones & Porter to the defendant, and that he should indorse the amounts of such contracts upon the mortgage in question, but that Jones & Porter should guarantee such mortgages or contracts so turned over to defendant. Some time later Jones & Porter sold the W. \ of the N. E. ‡ of section 18 aforesaid, by executory land contract, to one Robert W. Force, and this contract was assigned and turned over to the defendant under the terms of the agreement aforesaid. After-wards Robert W. Force sold and assigned this contract to one Thomas, and Thomas subsequently sold and assigned the same to the complainant and one Alvin Day; and they took possession of the land. Afterwards they divided the land, the complainant taking the south 40 and Day the north 40; Day giving the complainant $75 for the privilege of taking his choice of the 40’s. After making this division, and on June 1, 1893, the complainant and Day went to Lansing to see Jones & Porter for the purpose of obtaining separate contracts for the land, and the contract in question was then made by Jones & Porter to complainant.
At the time of the assignment of the Force contract to defendant, the same was indorsed upon his mortgage contract with Jones & Porter. On October 25, 1893, the defendant was informed that the Force contract had been surrendered, and that new contracts had been executed by Jones & Porter to the complainant and Day; and on this date defendant wrote complainant, saying that, unless a certain payment of $100 was made at once, he should declare the contract forfeited and take possession of the land. About a year after the execution of the contracts to complainant and Day, there arose some disagreement or misunderstanding between Jones & Porter, the defendant, the complainant, and Day respecting the amounts complainant and Day had paid upon the contracts ; and complainant and Day went to Lansing for the purpose of adjusting and settling the matter. After their arrival, the defendant was sent for, and he came to Lansing, and there was an interview between all the parties. At this interview all the disputed payments were amicably adjusted, and the payments previously made to Jones & Porter were properly indorsed upon the contract; and for the purpose of evidencing the fact that these disputed payments should be applied upon the contract of the complainant, as against the defendant, the defendant subscribed his name to the indorsements upon the complainant’s contract. Of these payments so indorsed and subscribed, the $35 was paid to Jones & Porter June 1, 1893, and the other payments were paid by the complainant to defendant personally.
Under date of June 8, 1894, the contract in question was assigned by Jones & Porter to the defendant for a consideration of $177.58. On the same date the defendant indorsed upon his mortgage contract with Jones & Porter the sum of $177.58, as being the “Samuel E. Bigelow contract.” On September 10, 1895, the defendant acknowledged the receipt from the complainant of $12.43 to apply upon interest upon the contract, and upon February 9, 1897, $12.16 was also paid. On November 8, 1897, the complainant wrote the defendant with reference to paying up the contract and taking a deed. Defendant on November 22d replied to this, saying that he could arrange it all right; that he thought that Jones and Porter’s heirs would give a deed, and to let him know when he was ready to pay up, and he would endeavor to get the deed. Pursuant to this correspondence, and for the purpose of closing up the contract, the defendant on November 26, 1897, procured from Nelson B. Jones and wife and the heirs of James B. Porter, deceased, who was of the firm of Jones & Porter, a conveyance of the land in question to the complainant.
Afterwards, and on December 14, 1897, the defendant, as guardian of certain minors, executed and prepared for delivery a quitclaim deed of the premises in question to the complainant,"purporting to convey certain tax-title interests which the grantor therein’ had in the premises by reason of the unpaid taxes of 1888, 1889, 1890, and 1891. Afterwards, and in February, 1898, the defendant being notified that the complainant desired to pay np his contract and take a deed, the defendant deposited these two conveyances with one Water bury, who was defendant’s agent at Ithaca, Mich., and instructed Waterbury to demand of complainant, as a condition of their delivery, the payment of, not only the amount of principal and interest due upon the contract, but the further sum of $70, which the defendant claimed as his tax-title interest in the premises,- — in all, the sum of $256.35; there being due on the contract at that time the sum of $186.35. The complainant refused to pay the further sum of $70 demanded, and then and there tendered to defendant the sum of $188.50 as payment in full of the principal and interest due upon the contract; and, such tender being refused, the complainant notified the defendant that he would place such money in the Ithaca Savings Bank, in readiness to be paid to defendant upon delivery of the deeds, and the complainant deposited the money accordingly.
Complainant’s contract provides that he should pay the taxes of 1892 and the taxes of subsequent years, and that, upon the payment of such taxes and the purchase price of $212.50, he should receive “a good and sufficient deed, thereby conveying to the party of the second part a good and unincumbered title in fee simple.” At the time of the interview between all the interested parties at Lansing in June, 1894, and while all were present, Day asked the defendant: “Who gives us this title?” Defendant replied : “We do. If you have the money, I will give you a good, clear warranty deed.” Then complainant said: “I am ignorant, — cannot read or write; and while you fellows are right here, together, I want to ask you a question : How does it come that Mr. Raynor has paid them back taxes in his name as guardian?”- — to which Porter replied, “He paid them for us, and^Raynor never had those,” to which defendant assented. Defendant does not deny this conversation respecting the tax titles. The complainant paid all the taxes assessed against the premises subsequent to 1891. At the time of the execution of the contract in question, complainant took possession of the premises, and has occupied them since as his homestead. He has made valuable improvements upon them, and they are now worth $1,000.
There is no allegation in defendant’s answer, and no proof in the case, that he ever had any valid tax titles upon the land in question. All the testimony upon this point is that of defendant, who says that maybe he had tax titles, —he did not know, — and that he took deeds for taxes he paid.
Upon these facts, the court below entered a decree in favor of complainant. From this decree, defendant appeals.
We think the court was not in error in so entering the decree. It is unnecessary to discuss the case. The facts warrant the result reached by the court below. The decree must be affirmed, with costs.
The other Justices concurred. | [
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Long, J.
Respondent was convicted of perjury. The information charged the offense as having been committed while respondent was a witness in a case before a justice of the peace in which his brother was on trial, before the justice for assault and battery. The information, after describing the offense with great particularity, concluded as follows:
“The said Louis E. Howlett, prosecuting attorney as aforesaid, does say that the said William Lane, on, to wit, the 30th day of December, 1898, in the county aforesaid, before the said William M. Power, justice of the peace aforesaid, and before the jury duly impaneled and sworn to try the issue there joined, by his own act and consent, and of his own most wicked and corrupt mind, in manner and form aforesaid, falsely and wickedly, willfully and corruptly, did commit willful and corrupt perjury, contrary to section 9236 of Howell’s Annotated Statutes of the State of Michigan, and contrary to the statutes in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
It appears that the wrong section of the statute was referred to. The section under which the offense might have been charged is 9235. It was not necessary to refer in the information to any particular section. A general reference to the offense as .“contrary to the statutes in such case made and provided ” is sufficient. The information is full and explicit in all its allegations, and sufficient to warrant a conviction for the crime of perjury, under section 9235. It is evident that counsel for respondent were not misled by the wrong section being placed in the information. It was mere surplusage.
It is next contended that the justice had no jurisdiction to issue a warrant in the assault and battery case, or to try the case, because there was no sworn complaint as a basis therefor. It appears that the jurat to the complaint had not been signed by the justice. He testifies that he swore the complaining witness to the complaint. The complaining witness also testifies that he was sworn thereto. It is evident from the complaint and the testimony that the justice examined the complaining witness on oath touching the matters referred to in the complaint. This is sufficient, under section 1020, 1 Comp. Laws 1897.
It is contended that the trial of the assault and battery case before a jury of only 4 persons was in violation of law, and that perjury cannot be predicated upon testimony given on the trial. The Constitution of the State provides that a jury in courts not of record may consist of less -than 12 men. Section 28, art. 6. The respondent might entirely waive a trial by jury (1 Comp. Laws 1897, §§ 1024, 1026), and hence could consent to a trial by less than 6 men.
It is claimed, however, that inasmuch as section 1026 provides, “nor shall the jury consist of less than six per sons,” respondent could not be tried by a less number. That section provides for the method of impaneling a jury in justice’s court, and the language above employed has reference solely to the selection of the jury.
Some questions are raised in reference to the admission of testimony and the refusals of the court to charge as requested. We have examined those questions, and find no error.
The conviction must be affirmed.
The other Justices concurred. | [
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Montgomery, C. J.
This is an action to recover a penalty for the violation of section 44 of Act No. 158, Pub. Acts 1895 (being section 4453, 2 Comp. Laws 1897), which reads as follows:
“Whenever any physician shall know that any person whom he is called to visit, or who is brought to him for examination, is infected with small-pox, cholera, diphtheria, scarlet fever, or any other disease dangerous to the public health, he shall immediately give notice thereof to the health officer of the township, city, or village in which the sick person may be, and to the householder, hotel-keeper, keeper of a boarding house, or tenant within whose house or rooms the sick person may be. The notice to the officer of the board of health shall state the name of the disease, the name, age, and sex of the person sick, also the name of the physician giving the notice; and shall, by street and number or otherwise,' sufficiently designate the house or room in which said person sick maybe. And every physician, and person acting as a physician, who shall refuse or neglect immediately to give such notice, shall forfeit for each such offense a sum not less than ten nor more than fifty dollars: Provided, that this penalty shall not be enforced against a physician if another physician in attendance has given to the health officer, or other officer hereinbefore mentioned, an immediate notice of said sick person, and the true name of the disease, in accordance with the requirement of this section.”
On the trial it was agreed by counsel for the respective parties that the only question involved is whether consumption is covered by this section. The court ruled, for the purposes of this case, that the statute was not intended to cover consumption, and ruled out testimony offered to show that consumption is a disease dangerous to the public health. From this decision the people bring error.
The position of defendant’s counsel, as stated in the brief, is that the general clause, “or any other disease dangerous to the public health,” was intended to include other diseases of the same degree of infectiousness or danger to life, though not specifically naming them; that the general clause would include yellow fever, leprosy, bubonic plague, and typhus fever, for,' it is said, it is common knowledge that those diseases partake of the same violent degree of infectiousness as those mentioned in the statute. The rule is correctly stated that where a statute, after enumerating specific cases, uses a general term to cover others, the latter are understood to be of the same general character, sort, or kind as those specified. Brooks v. Cook, 44 Mich. 617 (7 N. W. 216, 38 Am. Rep. 282). This rule has been frequently recognized in this State; but it does not determine this case, for the reason that, if consumption is a disease dangerous to the public' health, it is of the same general character, sort, or kind as those specifically enumerated in the sense in which the legislature characterized those diseases, i. e., diseases dangerous to the public health. If there was a distinct dividing line of danger, of which the courts might take judicial notice, a different view might be held, but there is no such line. The court cannot j udicially- know what are the varying degrees of infectiousness of different diseases. State v. Tenant, 110 N. C. 609 (14 S. E. 387, 15 L. R. A. 423, 28 Am. St. Rep. 715); Rudd v. Rounds, 64 Vt. 432 (25 Atl. 438). There is no line which can be drawn, other than the line between diseases dangerous to the public health and those which are not. The question whether consumption is a disease dangerous to the public health was to be determined on evidence, and should have been submitted to the jury.
Judgment reversed, and a new trial ordered.
Moore, Long, and Grant, JJ., concurred with Montgomery, C. J. Hooker, J., took no part in the decision. | [
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Montgomery, C. J.
This is a bill to enforce a vendor’s lien. The defendant Frantz Nulling is the son of complainant. Complainant and her husband were in 1893 owners by the entirety of a house and lot in the city of Detroit. Defendant was the owner of a 60-acre farm in Macomb county, incumbered by a mortgage of $1,300. The parties made an exchange. The house and lot were called $1,600, the farm $2,100, and the equity $800. Defendant paid $300 of the difference, and complainant, who by the death of her husband has succeeded to all rights to the unpaid purchase price, asks a vendor’s lien. The record shows these facts with sufficient clearness. The circuit judge dismissed the complainant’s bill without prejudice, — evidently for the reason that he thought she should be left to her suit at law.
We think complainant is entitled to assert the lien. Carroll v. Van Rensselaer, Har. Ch. 225; Dunton v. Outhouse, 64 Mich. 419 (31 N. W. 411). We do not discover any waiver of the right to assert this lien as against defendants. Some payments of interest were made, but the record is not quite clear as to the amount. The bill states complainant’s inability to give the amount. Under these circumstances, we think the decree should provide for the payment of the unpaid principal, with interest from the date of filing the bill. Sale may take place after 60 days from the date of this decree. The complainant will recover costs of both courts.
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Moore, J.
The defendant corporation is organized under chapter 108, 1 How. Stat., entitled “Boards of Trade and Chambers of Commerce,” under the name of the Detroit Chamber of Commerce. The act provides (section 3802) that:
‘ ‘ Any number of persons, not less than twenty, * * * may associate themselves together as a board of trade, and assemble at any time and place upon which a majority of the members so associatiñg together may agree, and elect a president, one or more vice-presidents, and such other officers as may be determined upon, adopt a name, constitution, and by-laws such as they may agree upon, and shall thereupon become a body corporate and politic, in fact and in name, by the name, style, or title which they have adopted.”
A constitution and code of by-laws were adopted. In the by-laws it is provided under the title “Membership:”
“Upon signing an agreement to be governed by the charter, rules, and by-laws of the association, and paying the annual or other assessment then due, * * * such applicant shall become a member of the Detroit Chamber of Commerce.”
It is provided that any person shall be eligible to membership, and shall be admitted, on payment of $100, by a. majority vote of the board of directors. A certificate of membership shall be issued to each member, showing the payment of the membership fee, and said membership shall be transferable only on the books of the company. Under the heading ‘ ‘ Annual Dues: ”
“In addition to the price of membership, there shall be paid on each membership (carrying voting power) such sum as may be fixed by the board of directors, payable, annually.”
It is also provided that the board of directors shall, annually, soon after their election, fix the amount that shall be levied and assessed on each member for the purposes of the association for the year. Another section makes it the duty of the board of directors to report the full amount, assessed upon each member within at least one week after the assessment has been made, and no member of the association shall be entitled to vote at the annual election unless he shall have paid such assessment.
The record shows the board of directors fixed the annual dues at the sum of $10. The capital stock of the corporation consisted of 1,000 shares, of $100 each. It was all taken. A site for a building was bought, and an arrangement 'for putting up an -expensive building, by issuing bonds secured by a mortgage upon the building and site, was made. The building was erected. The mortgage was afterwards foreclosed.
The complainant obtained a judgment against defendant corporation for upwards of $10,000 for appliances put in at the time of the construction of the building, and filed this bill of complaint to enforce its judgment against the individual stockholders of the corporation by having a court of equity compel the directors to levy an assessment upon its members for that purpose. The record discloses that all the shareholders paid in full for their stock, and also paid the annual dues fixed by the board of directors; but it is claimed that, by reason of the provision of the by-laws we have already quoted, the stockholders are personally liable for the debts of the corporation.
The learned circuit judge, in a written opinion dismissing the bill, used the following language:
“ If it is the duty of the defendants to make said levy, it is their duty to make a levy in all similar cases which may arise; that is, it is their duty to make a levy to pay all debts against the defendant corporation. If there is such a duty, it arises from the by-laws above quoted, and it exists because the members have thereby made an agreement to pay the debts of the defendant corporation. The determination of this case, then, depends upon whether the members have made any such agreement. When they agreed to pay annually such sums as the board of directors, elected by themselves, should determine, did they thereby agree to pay all the debts of the corporation, regardless of the determination of said board of directors ? To ask this question is to answer it. According to both reason and authority, one must be held according to the terms of his promise, or not held at all. If I agree to contribute to an enterprise such sums as one designated by me may determine, I do not agree to contribute what a court, or jury, or any other body or person may say are needed for that enterprise.
“But it is said that creditors had a right to look at this obligation as an asset in the nature of capital stock, which would be used to pay debts, and that complainant can now insist upon that right. In my judgment, the agreement in question is in no sense an agreement to contribute to the capital stock. Each member has paid what he agreed to contribute to that. This is an agreement to pay something additional, which the members and every one else looking at the agreement would naturally call ‘ annual dues.’ If a creditor had any right to expect these annual dues to be applied to pay his debt, he had no right to expect them to be fixed in any other manner than as agreed. If he enforces the agreement, he can only enforce it according to its meaning. It does not mean that the members will pay all the debts of the corporation.”
We agree with what is here said by the circuit judge. Port Huron, etc., R. Co. v. St. Clair Circuit Judge, 31 Mich. 456; 17 Am. & Eng. Enc. Law, 91, and cases cited.
In addition to the reason given by the learned judge in dismissing the bill of complaint, there are several reasons why the complainant cannot maintain this bill.- It is evident there was no thought on the part of the corporation or of the shareholders that the latter, by reason of the bylaws, incurred any liability except for the annual dues, to be fixed by the directors, to be used to pay the current expenses incident to' the purposes of the organization. We think it equally clear, from reading the articles of association and the by-laws, that the liability incurred because of the adoption of the by-law related solely to the annual dues, which should be fixed by the board of directors for the current ex¡Denses incident to the purposes of the organization. These dues were fixed by the board of directors at the sum of $10 annually, thereby placing a limit upon the extent of the liability. The dues were paid by the shareholders, and the liability for the annual dues so fixed was discharged. This by-law was not designed to impose a general liability upon the stockholders, and did not have that effect. 1 Beach, Priv. Corp. §§ 143, 322; Peck v. Elliott, 24 C. C. A. 425 (79 Fed. 10, 38 L. R. A. 616); Trustees of Schools v. Flint, 13 Metc. (Mass.) 539; Flint v. Pierce, 99 Mass. 68 (96 Am. Dec. 691); Reid v. Manufacturing Co., 40 Ga. 98 (2 Am. Rep. 563).
It is also clear from the record that complainant did not extend the credit in reliance upon the liability of any shareholder by reason of the by-law, but the credit was extended to the corporation as a corporation. 1 Mor. Priv. Corp. § 500; Flint v. Pierce, 99 Mass. 68 (96 Am. Dec. 691); 1 Beach, Priv. Corp. § 322.
It would be anomalous, indeed, if, under the head of “capitalization,” the member is made liable only for the capital stock subscribed by him, but, under the head of annual dues, may be made liable for the entire indebtedness of the corporation. Complainant’s counsel rely upon the case of Omaha Law Library Ass’n v. Connell, 55 Neb. 396 (75 N. W. 837); but we think that case, instead of favoring their position, is against it. Mr. Connell paid in full for his share of stock. The directors fixed the annual dues of members at $15. Mr. Connell denied their authority to require him to pay anything more after he had paid for his stock. The court held, while the board were not expressly authorized, in the articles of association, to provide for annual dues, they were by implication given that authority, and that Mr. Connell was liable for them. The court used this language:
“ Now, what was the purpose for which this by-law in controversy was enacted ? While this association is a de jure corporation, still it is not a corporation for trade or profit; it is not engaged in any commercial enterprise; but, as its charter declares, it is organized for the purpose of establishing and maintaining a law library for the use of its stockholders. It must have been apparent to the organizers of this corporation that, after it was organized, certain current expenses would have to be met; books would have to be purchased from time to time, to keep up the library; rent and taxes would have to be paid; there would be the expense of light and fuel, a janitor, and a librarian to be provided for; and, with these thoughts in mind, we think the promoters of this corporation, by its articles of association, authorized its board of 'directors to enact just such a by-law as the one in controversy, namely, one to meet the current expenses of maintaining the library.”
There is no suggestion here that the board of directors, by means of a by-law, could make a shareholder liable for the debts of the company generally, though the case does hold that, by means of a by-law, the shareholder might be required to pay annual dues for the purpose of meeting the current expenses of the library association. It was for just such a purpose as this that the by-law in question was enacted, and it was given that interpretation by the directors and shareholders alike.
The decree is affirmed, with costs.
The other Justices concurred. | [
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Montgomery, C. J.
Defendant, a constable, under an execution upon a judgment in favor of Frank T. Lodge against Lester B. French, levied upon some horses, harness, and a phaeton, as the property of French.- At the time of the levy, the property was in possession of Manchester, a livery-stable keeper, who pointed out to the constable the property levied upon as Mr. French’s property. After the levy, defendant left it with Manchester, taking a receipt therefor in the usual form, and was proceeding to advertise and sell when plaintiff, a brother of Lester B. French, began the present suit in replevin.
The testimony tended to show that the property was purchased by Lester B. French, the consideration paid by him, and a receipted bill rendered in the name of Cassius M. French, and an order given'to Mr. Manchester, in whose possession the property was, to deliver the same to Cassius M. French. The evidence also showed that Lester B. French used the property most of the time. The theory of the defendant was that Lester B. French made the purchase ostensibly in the name of plaintiff, but with the purpose of circumventing his (Lester’s) creditors; that, as a matter of fact, the property was really his from the first.
The circuit judge charged the jury, on plaintiff’s request, as follows:
“It is left to the jury to say if there is any evidence in the case to show that Mr. Lodge extended ci’edit to Lester B. French on the strength of this property, or to show that he knew of this property at the time this claim arose; and if he did not, and did not rely upon it, he could not complain of the transfer of the property.”
This was error. 2 Bigelow, Fraud, 327.
It is contended on the part of the plaintiff that this error was without prejudice, for the reason that, where the title to the property was never in the debtor, it is not subject to levy on execution, but the creditor must seek his remedy by creditor’s bill. This is the rule as to real estate established in this State. Maynard v. Hoskins, 9 Mich. 485. In many of the States, however, the creditor may reach real estate so transferred by direct levy. 14 Am. & Eng. Enc. Law (2d Ed.), 313; Bump, Fraud. Conv. §§ 217, 531. But in Maine, where it is held that the creditor can only reach real estate purchased by the debtor in the name of another by resort to a creditor’s bill (Davis v. Tibbetts, 39 Me. 279), it is held that personal property purchased by the debtor under a bill of sale running to a third person may be seized on execution, on the ground that g, bill of sale is not essential to the transfer of the property, and may be controlled by testimony. Godding v. Brackett, 34 Me. 27. In the present case the written memorandum was nothing more than a receipt. • We think it was competent to show that the purchase was really made by Lester B. French.
Counsel cite Kinter v. Pickard, 67 Mich. 125 (34 N. W. 535). In that case the goods in question were bought in part on the credit of the plaintiff. It was sought to maintain a levy on the ground that the debtor had furnished funds to the plaintiff, with which plaintiff had started in business. The attempt was not to seize the identical goods fraudulently purchased. The case does not sustain the plaintiff’s contention.
The judgment will be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Hooker, J.
The auditor general asks a peremptory mandamus to compel the treasurer of Muskegon county to pay over to the State the sum of $3,312.82, claimed to be due the State as shown by the books of relator’s department. The claim grows out of some rejected taxes which have from time to time since 1885 been charged back to the county upon the auditor’s books, and consists of:
Rejected taxes.................................. §750 78 .
Expenses....................................... 2,095 27
Interest on State tax and expenses.............. 493 44
§3,339 49-
Less a credit.................................... 26 67
Balance due State____■.......................§3,312 82
The respondent denies liability for the last two items, and claims that the first is not due. As the charges all have their foundation in the first item, we may conveniently examine that first. Under our tax law, a list of lands upon which taxes are not seasonably paid is returned to the auditor general by each county treasurer, with a statement of the taxes assessed upon such lands. It is called the “delinquent list.” Upon receiving it, the auditor credits the county from which it comes with the aggregate of such taxes, against the State tax, which has already been charged against the county as apportioned. Among the lands returned delinquent there are usually some that should have been omitted from the list; e. g., those upon which the tax has been paid, those which were not subject to assessment, and those to which, through some error, the lien of the State for taxes has not attached. Such lands, when discovered by the auditor general, are stricken from the list and reported back to the county treasurer, whose duty it then becomes to submit the list to the board of supervisors, who are then required to reassess upon the lands such as are proper charges, and upon the property of the township such as are not proper charges upon the lands upon which they were previously assessed. These are called “rejected taxes,” and the aggregate is charged against the proper county in its account by the auditor general. The relator claims that the county must make good this deficiency in the taxes apportioned to it at the next quarterly settlement; the respondent, that it is not obliged by law to do so, and that all the State can require is that the same shall be reassessed, and the money paid over as fast as collected.
The State is entitled to, and does, charge the county with the State tax. As fast as the State tax is collected, it should be paid in; and, when the time to make return of delinquent lists arrives, it is all due to the State, and is payable, upon a settlement of accounts rendered by the auditor general, which the law requires to be made quarterly. The delinquent tax returned is a credit to the county upon such account. We have, then, the county charged with the State tax as apportioned, and credited with its delinquent list, and such cash as it has collected and paid upon the State tax. If there is a balance due the State, as there may be from a failure to collect the full amount of the personal tax, the county must make it good, as we have held in the recent case of City of Muskegon v. County of Muskegon, 123 Mich. 272 (82 N. W. 131). It may happen, as we have seen, that some of the taxes in the delinquent list cannot be collected, for reasons already given. In such case there is a shrinkage in the county’s credit, and a corresponding liability to make it good. See Auditor General v. Supervisors of Monroe Co., 36 Mich. 73. It is charged back to the county as so much previously credited without consideration, and, even before the law óf 1869, was considered a valid charge against the county. The law of 1869 had the effect of making the county a guarantor of the collection of taxes returned delinquent, with certain limitations, and would have made rejected taxes a proper charge, had they not already been. We see no reason why such items are not upon the same footing as deficiencies arising from a failure to collect a personal tax. If, as said by Mr. Justice Moore in the recent case (City of Muskegon v. County of Muskegon, supra), the State has no means of collecting the latter, neither has it the former. The county has failed to produce the revenue apportioned to it, and it must pay the deficiency, and make itself good through reassessment in the manner pointed out by law. This was the law before the counties were made guarantors of the collection of the delinquent taxes by the act of 1869, as we have already said; and the repeal of that feature of the law, or its change, if one has been made, has not relieved counties of liabilities for void assessments or deficiencies or mistakes in the delinquent lists.
It has been the policy for many years to require the counties to carry the uncollected tax until it was paid; the only relief afforded being the purchase by the State of lands not bid upon, which took effect after expiration of redemption. We do not find in the present law any clear indication of an intention to relieve the counties from the burden of carrying the uncollected tax, but, on the contrary, a disposition is shown to relieve the State, by requiring State lands to be bid in for the State, county, and township proportionately, instead of for the State, as was the rule until 1882. See Act No. 206, Pub. Acts 1893, § 70. We think there should be something plainly indicative of a legislative design to change the rule, before we should decide that it is to be departed from. It is urged that such intention should be deduced from an omission of. some provisions existing in the earlier laws, and that we should infer it from the language of other sections, which require the payment of “money collected;” it being argued that only “ money collected ” was provided for. We have already seen that section 87 requires settlement accompanied by payment of amounts collected and'due, as shown by the accounts of the auditor general. If it be conceded that the county is entitled to credit for the delinquent lists until the land is sold, or, if bid in by the State, until after the time for redemption expires, it is manifest that it must then be prepared to adjust deficiencies, tvith interest, as provided in section 87; and, as the lands are always subject to redemption or purchase until the expiration of redemption, each quarterly settlement may contain such items, as the law plainly implies. See Act No. 206, Pub. Acts 1893, § 87; 1 Comp. Laws 1897, § 3910.
The remaining items consist of charges and expenses, and interest thereon, and the question resolves itself into this: Was it intended that the expenses of collecting the taxes due the State should be borne by the State at large, or by the county from which they were due ? As shown by the account, the item for charges and expenses is several times as large as the original tax. The law contemplates that charges and expenses shall be imposed upon the land, where they can be; being always added to the tax before sale. These expenses are due to the mistakes of the county and township, as a rule, and it is just that they should bear them. Section 95 provides that rejected taxes shall be charged back. Nothing is said about charges, but neither is there about interest. We have seen that section 87 contemplates the computation of interest ás one of the bases of adjustment. It is admitted that it has long been the custom of the department to include charges, and interest upon them. While it may be said that these charges ought not to be imposed upon the land in case of rejected taxes, and perhaps could not be lawfully, it is nevertheless true that the futility of the steps for which the charges are made is due to the failure of the local officers to properly perform their duties, and the expense which would otherwise fall upon the land should be a charge upon the county, and not become a part of a subsequent State levy, to be imposed upon the State at large, thereby compelling persons in no way responsible for the loss to bear the greáter part of the burden.
The writ will issue as prayed.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). ■ The contract is evidenced by plaintiff’s proposition and defendant’s reply. If there were any ambiguity in the terms of the contract, the fact that plaintiff retained the note, and the defendant did not demand it, would' clearly show the understanding between the parties. We think, however, that there is no ambiguity in the instrument. The proposition was to relieve defendant of any and all responsibility for any “obligations incurred or indebtedness now due on account of said business,” except this note. Evidently defendant had some doubt as to whether the contract included future liability and future expenses or losses while. the business continued. He therefore inserted the condition in his acceptance to remove all doubt upon this point. The business was to continue until the deeds were executed, which was not done until some time after. The precise date I do not find stated in the record. It does appear that on August 13th the agreement was continued in force for 20 days longer. The note did not represent a partnership matter or a partnership liability. It was a personal transaction between the two, and represented a loan of money by one to the other. The contract was unambiguous. It was a settlement of their partnership matters] and not of their individual transactions with each other. The court should have directed a verdict for the plaintiff.
Reversed, and new trial ordered.
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Moore, J.
This is an action of ejectment brought by the plaintiff, who claims to be the widow, by virtue of a common-law marriage, of Thomas Lorimer, deceased. From a verdict in her favor, the defendants, who represent the estate of Thomas Lorimer, appeal. It is the claim of defendants that the testimony, construing it most favorably for plaintiff, does not show a marriage between the parties, and that the court should have directed a verdict in favor of defendants for that reason.
The plaintiff was sworn as a witness. Her testimony shows that prior to 1882 she was a woman of the town, and that Lorimer had illicit relations with her. She says, in substance, that in 1882 Mr. Lorimer said that he was tired of the way in which they were living, and proposed that they should live together as husband and wife, to which she assented. She says that no marriage ceremony was performed, but that they lived together as husband and wife, she keeping the house, and he furnishing it, until the time of his death, in 1895; that they regarded each other as husband and wife; and that Mr. Lorimer from that time introduced her as his wife, and they treated each other as husband and wife. Many witnesses were sworn whose testimony tended to corroborate her in relation to the manner in which they lived, and the representations made by Mr. Lorimer as to their relations. Testimpny was introduced on the part of the defense tending to show that plaintiff, up to the time of the death of Mr. Lorimer, went by the name of Bellmore, and was so known in the city directory; that she took a deed of land in that name, and signed a conveyance, not long before the death of Mr. Lorimer, by the name of Bellmore; that Mr. Lorimer, who dealt largely in real estate, described himself in the various conveyances he made as a bachelor.
It is insisted on the part of the defendants that the relationship was simply one of- qoncubinage; citing Clancy v. Clancy, 66 Mich. 202 (33 N. W. 889). It was long ago decided in this State that a marriage ceremony was not necessary to constitute a valid marriage. In Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164), Justice Cooley, speaking for the court, said:
“But, had the supposed marriage taken place in this State, evidence that a ceremony was performed ostensibly in celebration of it, with the apparent consent and cooperation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts, the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it. Fenton v. Reed, 4 Johns. 52 (4 Am. Dec. 244); Jackson v. Winne, 7 Wend. 47 (22 Am. Dec. 563); Starr v. Peck, 1 Hill, 270; Rose v. Clark, 8 Paige, 574; In re Taylor, 9 Paige, 611; Clayton v. Wardell, 4 N. Y. 230; Cheney v. Arnold, 15 N. Y. 345 (69 Am. Dec. 609); O’Gara v. Eisenlohr, 38 N. Y. 296; Pearson v. Howey, 11 N. J. Law, 12; Hantz v. Sealy, 6 Bin. 405; Com. v. Stump, 53 Pa. St. 132 (91 Am. Dec. 198); Overseers of Poor of Newbury v. Overseers of Poor of Brunswick, 2 Vt. 151 (19 Am. Dec. 703); State v. Rood, 12 Vt. 396; Town of Northfield v. Town of Vershire, 33 Vt. 110; Duncan v. Duncan, 10 Ohio St. 181; Carmichael v. State, 12 Ohio St. 553; State v. Patterson, 2 Ired. 346 (38 Am. Dec. 699); Town of Londonderry v. Town of Chester, 2 N. H. 268 (9 Am. Dec. 61); Keyes v. Keyes, 2 Fost. (N. H.) 553; Bashaw v. State, 1 Yerg. 177; Grisham v. State, 2 Yerg. 589; Cheseldine’s Lessee v. Brewer, 1 Har. & McH. 152; State v. Murphy, 6 Ala. 765 (41 Am. Dec. 79); Potier v. Barclay, 15 Ala. 439; Dumaresly v. Fishly, 3 A. K. Marsh. 368; Graham v. Bennet, 2 Cal. 503; Case v. Case, 17 Cal. 598; Patton v. Philadelphia, 1 La. Ann. 98; Holmes v. Holmes, 6 La. 463 (26 Am. Dec. 482); Hallett v. Collins, 10 How. 174.”
In Peet v. Peet, 52 Mich. 464 (18 N. W. 220), it was said:
“ But an actual ceremony of marriage is not essential to the establishment of the relation of husband and wife. It is sufficient that a man and woman of due competency, and in respect to whom no impediment exists, consent to take each other as husband and wife, and actually cohabit as such. The case of Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164), determines this for this State, and refers to many decisions in other States to the same effect.”
See People v. Girdler, 65 Mich. 68 (31 N. W. 624).
In Williams v. Kilburn, 88 Mich. 279 (50 N. W. 293), the wife, pending a suit for divorce, but before decree, married again. After the decree was obtained, the parties agreed that they should live and cohabit together as man and wife, and did so, though no marriage ceremony was again performed. The court said:
‘ ‘ The facts set forth show that, after plaintiff obtained her divorce, it was agreed that they should live and cohabit together as man and wife, which they continued to do for three years thereafter. The formal marriage ceremony may be treated as evidence, with what subsequently occurred, of the nature of the relation which they assumed and occupied. These facts' establish a valid marriage, and plaintiff’s rights grow out of that relation. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164); Peet v. Peet, 52 Mich. 464 (18 N. W. 220). Her remedy is that of a married woman against a deserting husband.”
See, also, People v. Loomis, 106 Mich. 250 (64 N. W. 18); People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326).
The testimony was conflicting, but we think there was sufficient of it to justify its submission to a jury.
It is claimed that the judge did not properly instruct the jury in relation to what was sufficient to constitute a valid marriage. He used the following language in his charge to the jury:
“This plaintiff comes before you, in court, claiming to be the lawful wife of the late Thomas Lorimer. On her is the burden of proof of showing that she is the lawful wife, there being no marriage certificate and no marriage ceremony. On her is the burden of showing that her mind and the mind of Thomas Lorimer once met,— met at the time that she said that they agreed to take each other for husband and wife, and to live in relations as such; that they made a bargain about it. And, in stating that, I say, if they did in their minds fully meet, — if they did come to a full understanding, — and you should find that, then, under the law of this State, they were married. That is the whole test of the matter. ”
We think this charge was too restricted, and that it was not cured by any other portion of the charge. Our courts have gone a good way to sustain the validity of a marriage where an agreement to live and cohabit together as husband and wife has been made and acted upon. But at no time has it been said that, in the absence of a valid marriage ceremony, a simple agreement to live together, even though the parties intended to carry out the agreement, is sufficient to constitute a valid marriage, unless acted upon by living together and cohabiting as husband and wife.
The plaintiff was allowed to testify in relation to matters that were equally within the knowledge of Mr. Lorimer, and it is said that this is contrary to the provisions of section 10212, 3 Comp. Laws 1897. Counsel for plaintiff say:
“This section of the statute has been repeatedly construed by this court, and it has uniformly been held that the testimony of the parties to the litigation is competent in suits of this nature, where the estate itself cannot be depleted or increased by the result of the litigation, and where the claim made is not one against the estate, but is a controversy between the heirs themselves. The judgment in this case does not affect the estate proper, but simply determines who are the heirs of Thomas Lorimer, deceased. There was no error committed in the admission of the testimony of the plaintiff. Brown v. Bell, 58 Mich. 58 (24 N. W. 824); McClintock’s Appeal, 58 Mich. 155 (24 N. W. 549); Lautenshlager v. Lautenshlager, 80 Mich. 285 (45 N. W. 147); Lake v. Nolan, 81 Mich. 115 (45 N. W. 376); McHugh v. Fitzgerald, 103 Mich. 21 (61 N. W. 354); City of Marquette v. Wilkinson, 119 Mich. 413 (78 N. W. 474, 43 L. R. A. 840).”
We do not think that this claim can be sustained. The defendants are either the heirs at law of Thomas Lorimer, deceased, or are tenants under the administrator of his estate. The property in controversy belongs to the estate of Mr. Loi’imer. The plaintiff claims the right to the possession of the property by virtue of her contract of marriage with Mr. Lorimer, about which he must have had as much knowledge as she possessed. If she had presented a claim for services as housekeeper for the time which she lived with him, there could be no question but that she would be incompetent to testify as to what the contract was. Campan v. Van Dyke, 15 Mich. 380; Cook v. Stevenson, 30 Mich. 242; Van Wert v. Chidester, 31 Mich. 207; Schratz v. Schratz, 35 Mich. 485; Hart v. Carpenter, 36 Mich. 402; Harmon v. Dart, 37 Mich. 53; Howard, v. Patrick, 38 Mich. 795; Eccard v. Brush, 48 Mich. 3 (11 N. W. 756); Foster v. Hill, 55 Mich. 540 (22 N. W. 30); Pendill v. Neuberger, 67 Mich. 562 (35 N. W. 249); Taylor v. Bunker, 68 Mich. 258 (36 N. W. 66); Buffum v. Porter, 70 Mich. 623 (38 N. W. 600); Barker v. Hebbard, 81 Mich. 267 (45 N. W. 964); Penny v. Croul, 87 Mich. 18 (49 N W. 311, 13 L. R. A. 83). In this case, instead of seeking to enforce a claim for services because of a contract of hire, she seeks to obtain one-half of the estate of the deceased, basing her right to do so upon a contract of marriage, which must have been equally within the knowledge of the deceased. The case comes within the express provisions of the statute. See Mundy v. Foster, 31 Mich. 313; Chambers v. Hill, 34 Mich. 523; Bachelder v. Brown, 47 Mich. 366 (11 N. W. 200); Youngs v. Cunningham, 57 Mich. 153 (23 N. W. 626); Schuffert v. Grote, 88 Mich. 650 (50 N. W. 657, 26 Am. St. Rep. 316); In re Lambie’s Estate, 97 Mich. 49 (56 N. W. 223).
Before his death, Mr. Lorimer consulted professionally with Mr. Radford, an attorney, in relation to making provision for the plaintiff, and advised with him as to what he had best do to accomplish that purpose, and made statements to him with reference to his relations with the plaintiff. Mr. Radford gave him advice, which was not acted upon. Mr. Radford was sworn as a witness on the part of the plaintiff. His testimony was objected to for the reason that it was a privileged communication between attorney and client. The objection was overruled. In the case of Chirac v. Reinicker, 11 Wheat. 294, Mr. Justice Story stated:
“ The general rule is not disputed that confidential communications between client and attorney are not to be revealed at any time. The privilege, indeed, is not that of the attorney, but of the client, and it is indispensable for the purposes of private justice. Whatever facts, therefore, are communicated by a client to counsel, solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose, and the law holds their testimony incompetent.”
See Hamilton v. People, 29 Mich. 173; Passmore v. Passmore, 50 Mich. 626 (16 N. W. 170, 45 Am. Rep. 62); People v. Hillhouse, 80 Mich. 584 (45 N. W. 484); Riley v. Conner, 79 Mich. 504 (44 N. W. 1040); Erickson v. Railway Co., 93 Mich. 418 (53 N. W. 393). See, also, 1 Wait, Act. & Def. 468, and cases cited; Jenkinson v. State, 5 Blackf. 465.
Counsel cite, in support of the admission of this testimony, Greenough v. Gaskell, 4 Term R. 753. We do not find the case cited, but the case of Wilson v. Rastall, 4 Term R. 753, so far as it is applicable to the case at all, is against the admission of the testimony. The case of Russell v. Jackson, 9 Hare, 387, is also cited. This case holds that a privilege given for the protection of the client cannot have the effect of excluding evidence of a trust which he had intended to create, and thus defeat a claim by the parties who accepted the trust to hold the trust property beneficially; but the court also held as follows:
“In cases where the rights and interests of the client, or of those claiming under him, come in conflict with the rights and interests of third persons, there can be no difficulty in applying the rule. If it was not applied in such cases, the client could never with safety state to his solicitor the true position of his case. He would be driven to speculate as to what it would be for his interest to divulge. ”
The case of Blackburn v. Crawfords, 3 Wall. 175, is also cited. In that case the attorney had drawn a will for his client, making certain persons legatees in the will. The testimony* related to what his client said about the persons who were made the objects of his bounty by the terms of the will. The court was of the opinion (following in that respect Russell v. Jackson, supra) that, in the case of a testamentary disposition, the foundation on which the rule of privilege proceeds is wanting, and that it cannot be for the interest of the client to exclude any testimony in support of what he solemnly proclaimed and put on record by his will. The case here is very different. No will was ever made by Mr. Lorimer. The evidence received was not in support of a testamen tary disposition of his property. The knowledge possessed by Mr. Radford was obtained in his professional capacity. The case is directly within the rule, and not among the exceptions to the rule.
Two witnesses on the part of the plaintiff gave testimony who had also given testimony in some other proceeding. While they were upon the stand, without any apparent necessity for so doing, they were handed copies of the testimony given by them, which they were told to read, and after doing so the counsel for the plaintiff directed their attention to the subject-matter covered by the copies of the testimony which had been handed them. This is said to be error. As the case is to he reversed for other reasons, we will not decide whether this was reversible error or not, .but will content ourselves with saying that the practice is not to be commended.
It is urged by counsel for defendants that several pieces of property were mentioned in the declaration, the possession of some pieces being in some persons, and other pieces in other persons, and that because of this the action cannot be maintained. The record discloses, it is claimed on the part of the defendants, that all the property which is involved in this litigation belongs to the estate of Mr. Lorimer. It is claimed that, before the suit was begun, Mr. Conely, an attorney representing the estate, agreed with the attorney for the plaintiff, by writing him a letter to that effect, that, if the ejectment suit was commenced, the question of possession would not be used as a defense in the trial. If this agreement was made and was duly authorized, we do not think the question can now be raised.
Judgment is reversed, and new trial ordered.
Montgomery, C. J., Hooker and Long, JJ., concurred with Moore, J.
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Manning J.:
We have no doubt as to the jurisdiction of the County Court. The statute is.clear on that point: — S. L., 1848, p. 263, §§ 4 and 5. And to enable the court to exercise the jurisdiction, it was not necessary the statute giving it .should regulate the mode of procedure. The statute relative to actions of ejectment (Comp. L., p. 1229), is general in its character, and was therefore applicable to the County Courts, except so far as the proceedings marked out by it Avere inconsistent with the summary proceedings prescribed by statute for the County Courts.
The judgment must be affirmed.
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Montgomery, C. J.
This is an action on an administrator’s bond commenced by declaration; and it appears by the record that on the 7th day of August, 1891, David D. Meeker, of the village of Tecumseh, in Lenawee county, departed this life, leaving a last will and testament, and possessed of real and personal estate in said county, of the estimated value of $11,000 or thereabouts, and, afterwards, Charles Burridge, of said village, was duly appointed by the probate court of said county executor of the will of said deceased, and entered upon the duties of said appointment. On the 3d day of April, 1891, he filed his first annual administration account, and no further account appears to have been filed by him in said estate; and on the 7th day of February, 1897, he died. On the 6th day of April, 1897, upon the petition of the widow of said .Charles Burridge, Walter C. Burridge, his son, was duly appointed administrator of the estate of said Charles Burridge, deceased, and filed his administration bond, with these appellants, Peter B. Sutfin and John Linton, as his sureties, and assumed the duties of said appointment, but did nothing more. No inventory was filed, no commissioners appointed, no debts paid, no accounting had, and no distribution.
On the 7th day of June, 1897, Frederick B. Wood, of the said village of Tecumseh, was duly appointed by said probate court administrator de bonis non, with the will annexed, of the estate of David D. Meeker, deceased, filed his administration bond, and entered upon the duties of his appointment. On the 10th day of April, 1898, the said Walter C. Burridge filed his petition in said probate court in the estate of said David D. Meeker, in which, after reciting, among other things, that he was the administrator of the estate of Charles Burridge, deceased, and that Charles Burridge was appointed administrator (executor) of the estate of David D. Meeker, he states “that he desires to file the final account of said administrator [executor], and prays that a time and place may be assigned for examination and allowance of such final account with said estate.” Said administration account of Charles Burridge was filed by the said Walter C. Burridge in said probate court, which said account was afterwards duly examined and allowed by an order of said probate court; the said Frederick B. Wood, as administrator aforesaid, consenting thereto. On said accounting said probate court found ‘ ‘ that there still remains due from the estate of said Charles Burridge, as belonging to said estate of said David D. Meeker, deceased, the sum of 14,939.69, consisting of money in hand,” and ordered that “the said Walter C. Burridge pay said sum of $4,939.69 to the said Frederick B. Wood, and take his receipt therefor, and that, on filing such receipt in this court, the estate of Charles Burridge be discharged, and his bond as late executor canceled.” And, the said Walter C. having failed to pay over said sum to the said Frederick B. Wood pursuant to said order, said Frederick B. Wood, as such administrator, filed his petition in the probate court, asking said court to make an order granting him leave to sue and prosecute the administration bond of the said Walter C. Burridge, and, after due notice of the hearing of said petition, the sureties of Walter C. Burridge appeared in said court, and filed written objections to the granting of the prayer of said petition; and on said hearing an order was duly made by said probate court granting leave to said Frederick B. Wood, as such administrator, to bring an action in the circuit court for said county on the said bond of the said Walter C. Burridge, and this action is brought against appellants as sureties on said bond. And said cause was thereafter duly brought on for trial before the court with a jury, and by direction of the court the jury rendered a verdict therein in favor of the plaintiff, and against the sureties, for $4,000, being the full penalty of the administration bond of the said Walter C. Burridge.
The contention of the appellants is that the liability of Burridge, for which a judgment has been recovered against his sureties, did not fall within the conditions of the bond signed by them. The appellee contends not only that the obligation is within the terms of the bond, but that the order of the probate court, allowing the final account in the Meeker estate filed by Walter C. Burridge, is an adjudication which binds the sureties, and also that the order permitting suit to be brought upon this bond is res judicata, and determines the liability of the sureties.
The conditions of the administrator’s bond were the statutory ones: That he should, first, make an inventory; second, administer the estate of the deceased; third, render an account of his administration; and, fourth, perform all orders of the probate court by the administrator to be performed in the premises. If the rendering of the account in the Meeker estate, and the payment of the money to the administrator de bonis non of that estate, were not duties of Walter C. Burridge as administrator of Charles Burridge, it seems clear that these sureties are not estopped to assert that fact by an order made in the Meeker estate in a proceeding of which they had no notice. See Wetzler v. Fitch, 52 Cal. 638.
The other question raised by the appellee, namely, whether the order granting leave to the plaintiff to sue the bond is res judicata as to his right to maintain the action, is a question of more difficulty. Reference is had to Clark v. Fredenburg, 43 Mich. 263 (5 N. W. 306), in which language is used which would apparently sustain the appellee’s contention. The language employed was not necessary to a determination of the case, and we think the later decisions of the court have defined the effect of such an order properly. The sureties may appear, it is true, and the question may be open to consideration by the probate judge as to whether there is enough to justify vexing the sureties with an action on the bond. But we think it is not contemplated that the merits of the case. shall there be finally determined, but, on the contrary, that the appropriate forum in which to litigate the question is the circuit court in which the action on the bond is brought. See Perkins v. Cheney, 114 Mich. 567 (72 N. W. 595, 68 Am. St. Rep. 495), and cases cited.
On the merits of the case, the question presented is whether, under the statutes of this State, the executor of an executor, who assumes to take control of the assets of the first estate, renders the sureties on his bond liable for his default in paying over and accounting for the proceeds of such property. Undoubtedly, at common law, the executor owed the duty to administer the estate of the first testator. But the interesting question is presented as to what, if any, control over the assets of the first estate such second executor now has, in view of our statute (8 Comp. Laws, § 9320), which reads:
“The executor of an executor shall not, as such, have any authority to administer the estate of the first testator, but, on the death of the'only surviving executor of any will, administration of the estate of the first testator, nbt already administered, may be granted, with the will annexed, to such person as the probate court may judge proper.”
Statutes with the same purpose in view have been passed in various States. In Wisconsin, the language of the statute is somewhat different. Section 3258 of the Revised Statutes of Wisconsin reads:
“ An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects, or rights of the testator of the first executor, or to take any charge or control thereof as such executor.”
While this language, is more specific than that of our statute, the end in view was evidently the same. In Reed v. Wilson, 73 Wis. 497 (41 N. W. 716), it was held that the executor of an executor could not be 'called upon to render an account of the administration of his testator; and it was said that:
“Under these sections, it appears to us that the executrix of the estate of Alexander Wilson has no duty to perform in regard to the settlement of the estate of Terry merely by reason of the fact that she is the executrix of her husband’s will. She is a stranger to the administration or execution of the will of Terry, and can no more be called upon to settle that estate than if she had not been named as executrix of the will of her husband.”
The case of Quinby v. Walker, 14 Ohio St. 193, also has a bearing on the question. Real estate belonging to the minor heirs had been sold, and bonds given to Nehemiah Scott, as administrator. These bonds came to the possession of James G. Scott, as executor of Nehemiah. An action was brought to recover of the defendants as sureties on the bond executed by them and James G. Scott for the faithful administration of the estate of Nehemiah Scott. The court say:
“ Did, then, the bonds which are claimed to have been collected by James G. Scott, as executor, belong, in any substantial sense, to his testator, at the time of his death ? W ere they goods, chattels, or credits of the testator, which it became the duty of his executor to administer ? We think they are shown not to have been assets of the estate. The testator was, in respect to them, a mere trustee, who had faithfully fulfilled his trust up to the time of his death. The whole beneficial interest in them was in the heirs of William Moore and their assignees; and neither creditors, heirs, nor legatees of the testator could assert a claim to them or their proceeds. If it be claimed that Nehemiah Scott received these bonds as the administrator of William Moore’s estate, and that they were assets of that estate, then, clearly, the executor of Nehemiah could not, as such, succeed to and carry on the former administration. The duty of completing that administration devolved upon the co-administrator, John Moore, who survived Nehemiah Scott.”
We are cited to no case which sustains the contention of the plaintiff as to the right of the administrator, as such, to act in a case like the present, under a statute like ours. The general rule is that the contracts of sureties shall be strictly construed. In the light of this statute, providing, in terms, that the executor of a deceased executor shall not, as such, administer the estate of the first testator, how can it be said that the sureties on this bond understood that they were undertaking for the faithful administration of such estate ?
It is suggested by counsel for the appellee that Walter C. Burridge, as administrator of his father’s estate, had an interest in the assets of the estate of Meeker, and that it became his duty to take charge of them, and see that they were properly turned over to the administrator de bonis non, when appointed; and we were, at first, much impressed with this view. But, upon consideration, we are unable to say that Walter C. Burridge had any greater interest in this property than creditors of the estate might have had. Moreover, it was no more his duty to protect the estate of Charles Burridge by caring for property of this character than it was of the next of kin of Charles Burridge, or of any person into whose hands the property might be temporarily cast by the decease of Charles Burridge. As administrator of Charles Burridge, he had no authority to administer the Meeker estate. We think this statute, properly construed, must limit the obligation of these sureties to an undertaking to see that the estate which came into the hands of Walter C. Bur-ridge, as administrator of his father’s estate, was properly administered, and that the obligation of the bond does not cover the conversion of the property of the Meeker estate by Burridge.
The suggestion is made in the brief of counsel that the obligation of tbe bond is extended by the last clause, which is the condition that the administrator “shall perform all orders and decrees of the probate court by the said administrator to be performed in the premises We think this is no enlargement of the undertaking of the sureties. Unless the order of the probate court is one made in relation to the estate of Charles Burridge, it does not come within the terms of the bond.
The judgment will be reversed, and a new trial ordered.
Hooker, Moore, and Grant, JJ., concurred. Long, J., did not sit. | [
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Hooker, J.
The relator is a domestic co-operative or mutual benefit association, to which the respondent, the State commissioner, has refused to issue a certificate, which in this proceeding it asks a mandamus to compel. The relator was organized in October, 1899, under Act No. 187 of the Public Acts of 1887. Tho reason given for such refusal is that, upon investigation required by law, respondent has found that relator is not doing business in. conformity to law, and therefore he is not at liberty to issue such certificate. A more detailed statement is found in respondent’s answer. It states that the relator, soon after its organization, and prior to June 6, 1900, promulgated a plan of doing business which involved the appointment of a “Board of Referenco,” as it was called, consisting of an indefinite number of persons, who, in consideration of appointment upon said board, became members and policy holders, with the alleged duty to give such information as they might possess concerning the plans, purposes, methods, and management of the company, etc., and entitled to receive certain compensation from the company, in the shape of a definite percentage of a fund set apart from the premiums for that purpose. The answer sets up that the respondent is informed and believes that such payment was in the nature of a rebate of the premium upon the policies of the several and respective members of the board, and in violation of section 7219 of the Compiled Laws, commonly called the “Anti-Rebate Law.” It states, further, that respondent’s predecessor took the same view of this contract, and forced relator to discontinue the plan; and that thereupon, and on June 6, 1900, relator resorted to a su'bterfuge to accomplish the same thing, by entering into a contract with one Miller, its president, whereby it agreed to pay to said Miller, for the period of 30 years, in monthly installments, a sum equal to 5 per cent, on its entire gross premium receipts upon policies of insurance, with the contemplation and understanding that Miller should enter into contracts with persons designated by him, to be known as “references,” who should receive a pro rata proportion of said fund as an inducement to taking'insurance, and substantially as a rebate upon their premiums. The following is a copy of the contract:
“This agreement, made and entered into this sixth day of June, 1900, by and between the Citizons’ Life-Insurance Company, a corporation existing under and by virtue of the laws of the State of Michigan, party of the first part, and Albert Shakespeare Miller, of the city of Detroit, in the county of Wayne and State of Michigan, party of the second part, Witnesseth: That whereas the said party of the second part has been chiefly instrumental in organizing the Citizens’ Life-Insurance Company, in formulating the plan of insurance adopted by said company, in preparing the articles of incorporation, by-laws, rules, regulations, and forms of procedure, preparing applications for insurance preparatory to a license being granted the company, in securing the co-operation of the other gentlemen connected with said company, and in advancing money on account of expenses of organization and incorporation :
“ In consideration whereof the party of the first part, in payment for the services so rendered, hereby agrees to refund to the party of the second part, his heirs, administrators, or assigns, a sum equal to five per cent, of the entire gross premium receipts of said company upon policies of insurance issued by it, to be paid in monthly installments, as said premiums are received, for a period of thirty years from and after the date of the incorporation of said party of the first part.
“In witness whereof the said party of the .first part has by its secretary and treasurer, who have been duty authorized so to do, exécuted this agreement, and has affixed its corporate seal, on the day and year first above named.
[Signed]- “Citizens’ Life-Insurance Company,
[Seal.] “By George B. Miller, Secretary, and
“Cyrenus G. Darling, Treasurer.
[Signed] “ Albert Shakespeare Miller.”
The answer states further that said Miller proceeded to enter into contracts with policy takers similar in substance and form to the contract previously made by the company, whereby such policy holders receive a payment or rebate of 5 per cent, of their premiums, and that such contracts are still made, and that fraudulent representations are made to obtain them, to' the effect that such board of reference will be limited to a small number, viz., 12, and that the pro rata proportion of said sum to which each will be entitled will be a considerable amount of money, whereas said contracts are made with half of the policy takers, or more; that relator has been informed of these facts, if it did not already know them, and persists in operating its said plan. No issue was made upon this answer, and we must take it as true.
Relator contends:
1. That the anti-rebate law does not apply to companies organized under Act No. 187 of the Laws of 1887.
2. That the facts do not show a violation of the anti-rebate law, if it does apply to them.
3. That the law does not permit the insurance commissioner to withhold his certificate when the annual report is filed, but provides for the institution of proceedings by the attorney general.
The first proposition is based upon 2 Comp. Laws, § 7221, which was passed in 1877, and provides that certain sections (i. e., 10 and 29) of an act mentioned (one being section 7217) shall not be construed to apply to or in anywise affect mutual benefit and co-operative associations, organized or to be organized. The anti-rebate law was passed in 1889. 2 Comp. Laws, § 7219. We understand that counsel claim that co-operative and other benevolent associations should not be considered within the term “life-insurance companies,” which term is defined by section 7217. The anti-rebate law provides that no “life-insurance company,” etc.; so that, if relator cannot be called a life-insurance company, it is not affected by it.
If we give relator the benefit of its contention regarding section 7217, and say that it does not apply to this corporation, we do not necessarily conclude that it is not a life-insurance company. Unless the propriety of calling it a life-insurance company depends only on section 7217, we are not precluded from considering it such. If we treat section 7217 as obliterated or repealed, — and that must be the extent of the effect of sections 7221, 7522, — what is the status of the relator? It may still be a life-insurance company, if its organic act so provides, or, in case that is silent, if it falls within the settled definition of life-insurance companies, which we think that it does, within the authorities cited by counsel for respondent. We quote from his brief: Bacon, in his work on Benefit Societies and Life Insurance (2d Ed., § 52), says:
“It follows from the foregoing adjudications that all benefit societies, whether corporations or mere voluntary associations, are, strictly speaking, insurance organizations, whenever, in consideration of periodical contributions, they engage to pay the member or his designated beneficiary a benefit upon the happening of a specified contingency. * * * It may be also asserted as a general principle that wherever or whenever a benefit society, paying a benefit to the beneficiaries of its deceased members, claims to be exempt from the operation of certain laws applicable to persons or companies doing a life-insurance business, it can only safely base such claim .upon express provisions of its charter or of the statutes exempting similar organizations from such liability. The association, may be benevolent and charitable, and only incidentally provide benefits for its members or their beneficiaries; but, nevertheless, when it contracts to pay a certain sum to the appointees of its members upon their decease while in good standing, in consideration of certain contributions made by such members while living, it is doing a life-insurance business. We shall find, as we proceed further to discuss the questions concerning the contracts and liabilities of benefit societies, that many of the principles of the law of life insurance are applied to these societies, because they are in some respects simply life-insurance companies, doing business on a plan only partially different from that of regular life-insurance organizations.” .
In Rensenhouse v. Seeley, 72 Mich. 603 (40 N. W. 765), it is said:
“These associations, whether corporations or mere voluntary associations, are, strictly speaking, insurance organizations, whenever, in consideration of periodical contributions, they engage to pay the member or his designated beneficiary a benefit upon the happening of a specified contingency. Although they may also partake of the nature of fraternal societies, yet, whether the benefit be paid for sickness or to accumulate a fund out of which payments are to be made to beneficiaries of deceased members, the contract falls within the definition of an insurance contract; that is, an agreement by which one party, for a' consideration, promises to make a certain payment of money upon the destruction or injury of something in which the other party has an interest. Com. v. Wetherbee, 105 Mass. 149; Franklin Beneficial Ass’n v. Com., 10 Pa. St. 357.”
People’s Mut. Ben. Soc. v. Lester, 105 Mich. 716 (63 N. W. 977); Miner v. Benefit Ass’n, 63 Mich. 338, 341 (29 N. W. 852); Bolton v. Bolton, 73 Me. 299; 1 Joyce, Ins. § 346.
We think the anti-rebate law (section 7219) applies to the relator.
The second point is settled by the recent case of State Life Ins. Co. v. Strong, 127 Mich. 346 (86 N. W. 825), in which we held a note given for a policy void because the policy was issued in violation of the anti-rebate law. The contract was similar to this one in many respects.
In answer to the third contention it would be enough to say that, inasmuch as upon this record it appears that relator is not complying with the law, we cannot be expected to aid it in its intended violation by the discretionary writ of mandamus; but we think that section 7517 provides for the issue of a certificate only when from the statement, and the examination if one is made, the commissioner shall find that the company is still organized and doing business in conformity to law.
The writ is denied, with costs.
The other Justices concurred. | [
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Campbell J.:
It is claimed by the plaintiffs in error, that the agree- meat testified to by Griggs, as made with Anderson, for the acceptance of Rowe & Co.’s draft, made the delivery of it to Carpenter, as Anderson’s agent, equivalent to its payment, and that it then ceased to have any existence as a security.
The statutes of this state (Comp. A. p. 408) provide that “no person within this state shall be charged as an acceptor on a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent.” Anderson’s parol agreement therefore was not valid, and the draft, when it came into Carpenter’s hands, was unaccepted, and subject to the rules of law applicable to such paper. We do not however recognize the right or duty of Carpenter to have received it in payment of taxes, had it been accepted. Taxes are due to the public, and not to the tax collector individually, and claims against him are not a legal tender for, or offset against, such charges.
It can not be claimed that Carpenter was not a holder for value of the draft. He received it in lieu of money, on the assurance of Griggs that it should be all right, and was obliged to pay the taxes to Anderson, in money, out of his own pocket. And he was subsequently recognized as its owner, by all the parties, and they promised to pay it unless Anderson should accept it himself. In view of the subsequent promise, the questions raised upon the refusal to allow Griggs and Elliott to testify when they were notified, become unimportant, and were waived by counsel.
There was no error in the judgment below, and it must be affirmed with costs.
The other Justices concurred. | [
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Moore, J.
The plaintiff advertised his store building-in Detroit for rent. The defendant replied thereto .by letter. As a result, Mr. Minock came to Detroit, looked over the premises, and with Mr. Baer drove around the vicinity of the store, and after some conversation, according to the claim of the plaintiff, offered him $10 “for the rent of the building at $25 a month for the first six months, payable in advance,” providing that plaintiff build a barn on the premises for use in the hay and feed business, which Mr. Minock contemplated conducting in connection with a meat and grocery store, which offer was accepted by Mr. Baer, who sent Mr. Minock a letter the following day (April 21, 1900), stating the terms of the agreement in accordance with their conversation, in which it was stated, “Herewith please find receipt for advance rent on room 686 Third Ave., beginning May 1st, 1900; rent $25 per month, first six months. ” It also contained information concerning the building of the barn. Mr. Minock replied thereto by letter dated April 24, 1900, in which it was stated: “All is right. I am loading two cars with hay and produce, and will be in Detroit as quick as I can.” Mr. Minock went into possession, and paid $25 in advance for the rent of the building, and before June 1st vacated the store, and left the keys at the baker’s shop, next door. Mr. Baer did , not accept the surrender of the premises, but demanded the rent of Mr. Minock for each month as it accrued. He refused payment, and Mr. Baer commenced suit in justice’s court July 11,1900, to recover the accrued rent. The case was appealed to the circuit court, where a jury rendered a verdict in favor of defendant. Plaintiff brings error.
We do not deem it necessary to discuss all the assignments of error, as a disposition of one of them disposes of the case. The court was asked to charge the jury that the contract was in writing, but declined to do so. He said to the jury:
“About the only thing for you to decide in this case is what the contract between the parties respecting the leasing of the premises on Third avenue was. You have heard the testimony in this case, and it appears from the testimony of both that they met here in the city of Detroit, and that Mr. Minock and Mr. Baer went up to the premises and drove around the surrounding streets, or the streets in the immediate vicinity; that, when they parted, Mr. Minock at that time paid him $10 upon the lease of the premises. Their stories did not agree as to what the lease was. Mr. Baer tells you it was a lease for six months; Mr. Minock tells you it was simply a lease from month to month; and it is for you, I think, to decide which is correct. Now, after they separated, Mr. Baer wrote this letter, which I will read as far as is essential, though I shall not read the entire letter:
“‘Detroit, Mioh., April 21, 1900.
““J. K. Minock, Esq.
“ ‘ Dear Sir: Herewith please find receipt for advance rent on room No. 686 Third avenue, beginning May 1st, 1900; rent $25 per month, first six months.’
“On the 24th of April Mr. Minock answered the letter as follows:
“ ‘ Dear Sir: I received your letter. All is right. I am loading two cars with hay and produce, and will be at Detroit as quick as I can.’
“Now, these letters, together with the conversation * they had, I think, constitute all the evidence from which you are to deduce the terms of the contract between them. You may consider these letters as bearing upon the question. If it were not for the fact that I believe ‘ rent $25 per month, first six months,’ is ambiguous, I think it would be doubtless true that the contract would exist in writing; but' I am not prepared to say to you that ‘ rent $25, first six months,’ relates to the term for which the premises were leased. You may find that it does so relate to the term, and you may find from the oral contract, from the testimony 6f Mr. Baer, and from this letter, and the answer, ‘All is right,’ that it was for six months; but I do not think that the phrase ‘ rent $25 per month, first six months,’ necessarily refers to the term. It may be expressive of the rent alone; that is to say, you may find that the rent was payable at $25 per month, and was to continue for six months if he stayed that length of time.”'
We cannot agree with the learned circuit judge that there is anything ambiguous about-this correspondence. The defendant says he does not remember getting the letter of April 21st, but does not deny getting it, and clearly the letter of April 24th is in answer to it. The construction of the contract was for the court, and not for the jury. Battershall v. Stephens, 34 Mich. 68; Wagner v. Egleston, 49 Mich. 218 (13 N. W. 522); Brown v. Schiappacasse, 115 Mich. 47 (72 N. W. 1096); Ranney v. Higby, 5 Wis. 62; Scanlan v. Hodges, 3 C. C. A. 113, 52 Fed. 354. Under the proofs the plaintiff was entitled to an instruction to the jury that he was entitled to recover two months’ rent. Scott v. Beecher, 91 Mich. 594 (52 N. W. 20).
Judgment is reversed, and new trial ordered.
Montgomery, C. J., Hooker and Long, JJ., concurred. Grant, J., did not sit. | [
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Campbell J.:
The bill in this case was filed to foreclose a mortgage, given by Owen Dudley and wife, to complainant, concerning which no controversy arises. But the bill proceeds to charge that, a year previous to the date of this mortgage, Horace Green, a defendant, executed a mortgage of the same premises, to one Richard Elliot, who assigned the same to Henry P. Baldwin; this latter mortgage being duly recorded shortly after its date. That in August, 185^", and subsequent to the date of complainant’s mortgage, Horace Green called on the holder of the Elliott mortgage, and paid the amount, asking and receiving an assignment thereof to Norman Green, his son. Complainant avers that this money so paid was Horace Green’s, and that therefore he had no right to take an assignment to his son, and that the money should be regarded as a payment. He also avers that Dudley told him, when he took the mortgage now in process of foreclosure, that the land was unincumbered.
The Circuit Court of Shiawassee made a decree, cancelling the mortgage held by Norman Green, and granting costs against Horace and Norman Green. The decree also contained the usual clauses of foreclosure decrees, upon the complainant’s mortgage against Dudley and wife.
The defendants, Horace and Norman Green, claim that the complainant’s bill makes out no case against them, and that without the necessity of relying on their answers or upon testimony, they are entitled to a reversal of the decree against them.
The bill contains no averments from which we can gather the state of the title at any time, or which show any privity of title whatever among these parties. It is not averred that Dudley traced title in any way through Elliott or Green, and there is no averment or showing from which it appears that, if the title had been so traced, there was any agreement made by Horace Green, or any obligation resting upon him, which would entitle Dudley or his grantees to require him to pay or remove the Elliott mortgage. Unless some such duty rested on him, complainant has no concern with his doings.
There was therefore no foundation whatever for any re lief against Horace or Norman Green, and the bill should have been dismissed as to both of them.
We take occasion to notice here an omission of the register, in certifying the transcript, which becomes immaterial in this case, but which arises probably from a misapprehension which has led to several similar mistakes in cases brought up from that county. Instead of giving copies of the writs, orders, and other proceedings, he has returned nothing in full but the pleadings and the decree. The whole proceedings should have been certified in full. The transcript should present every thing which appears in the court below.
The decree must be reversed so far as it relates to Horace Green and Norman Green, and the rights of either or both of them, and the bill must be dismissed as to both of them, with costs.
The other Justices concurred. | [
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Hooker, J.
Act No. 154 of the Public Acts of 1899, being an act amendatory to the general tax law, provides for, and prescribes the powers and duties of, a board of State tax commissioners. Among their powers is that' of ascertaining the valuation of the properties of corporations paying specific taxes. To that end one M. E. Cooley was employed by said board to investigate and áppraise ’the property of the railroads of the State, and possibly that of other corporations; and it is alleged that he was given authority to employ such assistants as were necessary, and to contract with them for their services, and the salaries that they should receive frpm the State therefor. The relator was employed upon a salary of $200 per month, and performed services, for which the board of State auditors have allowed him compensation at the rate of $125 per month, and have refused to allow more. Relator asks a mandamus to compel the board of State auditors to allow an additional sum, upon the alleged promise of Cooley, which is claimed to have amounted to a contract binding upon the State. The petition alleges that it was made with the assent of the late Governor Pingree and the officers then constituting the board of State auditors, at a conference between them and the tax commissioners, at which Cooley was given authority to employ all such experts and assistants as he should deem necessary, at such salaries as he should deem expedient, and that the employment and salary agreed upon were approved by the president of' the tax commission, and payment was recommended by him.
It is claimed that the act providing for the appointment of the tax commissioners authorizes the employment by them of all necessary clerks and assistants, — not expressly, but by implication. The respondents do not question this, and therefore we do not consider or decide it.
The services being rendered with the consent and approval of the board of tax commissioners, it is unnecessary to determine whether they could delegate to Cooley their power to hire clerks and assistants. They have ratified his act, and may therefore be said to have employed relator.
The act is silent as to the appointment of clerks and assistants, and, if it can be said that the imposition of certain duties upon the board, by necessary implication, confers upon it authority to employ such aid (a point which we do not''pass upon), it does not permit the fixing of compensation. The Constitution lodges this power in the board of State auditors, and their judgment in the matter is not subject to review. Browning v. McGarrahan, 9 Wall. 298, 312; People v. Board of State Auditors, 32 Mich. 191; People v. Auditor General, 38 Mich. 750; People v. Board of State Auditors, 42 Mich. 422 (4 N. W. 274); Auditor General v. Van Tassel, 73 Mich. 28 (40 N. W. 847); Bresler v. Butler, 60 Mich. 40 (26 N. W. 825); People v. Board of Auditors of Wayne Co., 10 Mich. 307.
The application for mandamus is denied.
Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit. | [
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Moore, J.
This is an action of trover brought to recover the value of 40 sheep claimed to have been converted by the defendant to his own use on the 6th day of January, 1900. The declaration was in the usual form of declarations in trover. The plea was the general issue, with notice of a contract between the parties by which the defendant took 20 sheep from the plaintiffs, to double in four years from the 6th day of January, 1896, and also a notice of tender. Some time in the month of December, 1895, one of the plaintiffs met the defendant at his place of business in Ravenna, when the defendant wanted to know if the plaintiff had any sheep to sell. Plaintiff Leo Dietrich said he had no sheep to sell, but would let defendant have 20 sheep on shares, to double in four years, provided it was satisfactory to his brother Jacob. Soon after that date, and on the 6th day of January, 1896, the defendant went to the place of the plaintiffs to get the sheep, when it was agreed between the plaintiffs and defendant as follows:
“Plaintiffs agreed to let the defendant have 20 sheep, all ewes, and all with lamb, all good size and good grade; the defendant to take said sheep to double in four years, and return at the end of four years 40 ewe sheep, all to be with lamb, and the same grade or quality of sheep, to be delivered by the defendant to the plaintiffs at his ( defendant’s) farm.”
The sheep delivered were from 2 to 6 years old. Defendant was to return sheep not younger than 2 nor more than 6 years old. A demand was made upon him for the sheep. Upon his refusal to deliver them, this suit was brought.
At the conclusion of the testimony for the plaintiffs, counsel for defendant moved the court “to direct a verdict in favor of the defendant—
“First, upon the ground that the contract testified to by the witnesses for the plaintiffs is a verbal contract, and not one to be performed within a year by the defendant, and therefore within the statute of frauds, so called;
“Second, upon the ground that the transaction on January 6th and prior thereto between these parties concerning these sheep, as testified to by the plaintiffs’ witnesses, was a sale of the sheep, and not a bailment, and that the title passed to the defendant, and the plaintiffs have no title or interest in the specific sheep for which they seek to recover in this action of trover; and,
“ Third (which is covered in that, perhaps), that an action of trover will not lie. If any action would lie, it would be an action of assumpsit.”
The trial judge was of the opinion that the contract was within the statute of frauds and was absolutely void, and directed a verdict for the defendant. The case is brought here by writ of error.
Counsel, in their brief, say:
‘! The position of defendant may be stated as follows:
“1. The contract on the part of defendant to deliver to plaintiffs 40 sheep at the end of four years was not in writing, and by its terms was not to be performed within one year, and therefore was within the statute of frauds. The contract on the part of plaintiffs to deliver to defendant 20 sheep was to be performed presently, and was fully executed, and therefore was not within the statute of frauds.
“2. The transaction constituted a sale, and not a bailment, of the sheep by plaintiffs to the defendant.
“3. The plaintiffs have mistaken the form of their action. While they might have recovered upon the appropriate common counts in an action of assumpsit, they cannot recover in the present action of trover.”
We think this position is not tenable. Were it not for the statute of frauds, this contract would not be void; and, were it completely executed, it would be taken out of the statute, so that neither party could question its validity. Browne, Stat. Frauds (5th Ed.), § 116. The plaintiffs are not invoking the aid of the statute to avoid the contract. That is done by defendant, who has agreed by parol to do something which 'he now refuses to do because the contract was not made in writing, after the other parties have performed their agreement. The defendant cannot separate an agreement, which all the parties regarded as an entire one, into two parts, and say that one of these parts was performed within a year, and therefore makes a complete contract, by which defendant has obtained title to the property, while, as to the other part of the contract, by which defendant was to^ return twice the number of the sheep which he had received, that as that agreement was not to be performed within a year, and has never in fact been performed, it is void because not in writing, and therefore he will not perform it. To allow this contention would be to permit the making of a contract never contemplated by the parties.
Under the provisions of subdivision 1, § 9515, 3 Comp. Laws, the contract the parties undertook to make was void because it could not be performed within a year, and was not in writing. The circuit judge was right in declaring it to be absolutely void. Scott v. Bush, 26 Mich. 418, 421 (12 Am. Rep. 311); Kelly v. Kelly, 54 Mich. 30, 48 (19 N. W. 580); Raub v. Smith, 61 Mich. 543, 547 (28 N. W.. 676, 1 Am. St. Rep. 619); Wardell v. Williams, 62 Mich. 50, 62 (28 N. W. 796, 4 Am. St. Rep. 814); Winner v. Williams, 62 Mich. 363, 366 (28 N. W. 904). If this is so, it did not convey the title of the sheep to the defendant, but the title remained with the plaintiffs. After the defendant has got possession of the sheep belonging to plaintiffs by reason of a contract made void by the statute, he cannot invoke the aid of the statute to defeat the title of the plaintiffs, and say the same contract confers upon himself title to the property. The law is not so unfair and unjust as that would be. The title to the sheep, then, remaining in the plaintiffs, and the defendant, without the consent of the plaintiffs, having sold them, and having, upon demand made, refused to return them, the plaintiffs were entitled to maintain this action.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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Grant, J.
Plaintiff’s real estate in the defendant city was taxed in 1894. The taxes were set aside by the court in 1897. The sanee were reassessed in 1899. Plaintiff was negotiating a sale of this property, and for that purpose desired these taxes paid, and the alleged cloud upon her property in consequence thereof removed. For this purpose she applied to the city treasurer to pay them, and, as well, those of 1897 and 1898. The treasurer had made no threats- of levy or demand for payment. He had only published the prescribed notice in regard to the payment of taxes. She, with her husband, went to the office of the city treasurer to pay. What there occurred appears from her husband’s testimony as follows:
“ Q. And that you wanted to pay them under protest ?
“A. I went there to make a formal protest against the payment of the taxes, and said to Mr. Messner, ‘ Mr. Messner, my wife is here, and I wish you to make demand upon her for the taxes of ’94, reassessed in 1899, and the taxes of 1899; it is desired to pay them under protest;’ and that is in substance what I said to him. I then introduced him to my wife, and stated that before her and Mr. Messner. I don’t remember what he did say.”
The court directed a verdict for the defendant.
The direction was right. The case is ruled by Weston v. County of Luce, 102 Mich. 528 (61 N. W. 15).
The other Justices concurred. | [
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Long, J.
On March 21, 1892, Augustus Burney and wife executed a mortgage to the Michigan Mortgage Company to secure $300, and also one of $15. These mortgages were duly recorded on or about the date of their execution, and on November 9, 1892, the $300 mortgage was assigned to the Shiawassee County Bank. This assignment was also recorded. The $15 mortgage was assigned to one Edward L. Dooling. On the 9th of November, 1893, Burney and wife gave another mortgage on the same property to John Monroe, Jr., for $145.75. On July 19, 1894, Burney, who was then a widower, executed a mortgage for $1,000 on the same land to the complainants in this case. All the other mortgages were recorded prior to the recording of complainants’ mortgage. None of them has been paid.
Under the power of sale contained in its mortgage, the Shiawassee County Bank foreclosed by advertisement, and sold the premises on November 9, 1897. A deed was executed on said foreclosure by the sheriff, the redemption to expire on November 9, 1898. Five days before the redemption expired, the complainants entered into a contract with the Shiawassee County Bank, in which they agreed to buy the interest of the bank after the year’s redemption had elapsed. The contract provided that the conveyance to them should be by quitclaim deed, which was to be made on November 15, 1898. In accordance with the terms of this contract, the bank executed the deed, and caused it to be tendered to the complainants; but they refused to accept it, for the reason that, as they claimed, they had discovered that the foreclosure of the mortgage by advertisement by the bank was void and of no effect. On the 19th day of June, 1899, Burney conveyed all his right and interest in the land by quitclaim deed to the defendant bank.
The present proceeding is for the- foreclosure of the complainants’ mortgage. The court decreed:
First. That the complainants be allowed to redeem from the mortgage held by the Shiawassee Comity Bank by paying to said bank the face of said mortgage, with the accumulated interest to date of payment, but without any costs of said foreclosure by advertisement, and that thereupon, if complainants so desired, they might hold said mortgage as the first mortgage or incumbrance against said premises; that said bank be required, on payment of said mortgage, to assign and convey the same to the •complainants.
Second. That said defendants, or some of them, pay or cause to be paid to said complainants, or to their solicitor, the amount so found to be due them on their said mortgage, together with interest thereon at 7 per cent., together with the costs of suit, on or before September 1, 1900, and that in default thereof the said premises be sold.
The court found in the decree that the proceeding by advertisement to foreclose the Shiawassee County Bank mortgage was irregular and defective, and that it did not have the effect to cut off the right of redemption of Mr. Burney and those claiming under him.
We think the court was in error in holding that the notice of foreclosure was defective. The only defect claimed is that the notice did not give the correct date of the mortgage. The mortgage was dated March 31, 1893, and the notice gave the date as March 31, 1893. The statute authorizing the foreclosure by advertisement provides by subdivision 3 that the notice shall specify “the date of the mortgage, and when recorded.” 3 Comp. Laws, §' 11136. The notice contained the correct date of the recording of the mortgage, and the volume and page in which it was recorded. This error in setting out the date of the mortgage did not invalidate the notice. No one could be misled by it, as the mortgage was otherwise fully identified. Reading v. Waterman, 46 Mich. 107 (8 N. W. 691).
We think, however, the court was not in error in the decree entered, except that the Shiawassee County Bank should have been allowed its costs and expenses of foreclosure of its mortgage. ■ It is needless to set out the cor respondence between the complainants and the bank in reference to the carrying out of the contract, or the procuring of the interest of the bank in the premises. It is-apparent from the correspondence that the complainants were desirous of protecting their mortgage interest by purchasing any interest which the bank had in the lands. They offered to pay the bank’s mortgage and interest, though n'o tender was actually made, and repeatedly asked the bank for a final reply as to what position it intended to take in regard to the validity of the foreclosure. Instead of giving a decided answer to this inquiry, the matter was permitted to drag along until the time for redemption expired, when the bank, having purchased Burney’s interest, then claimed to be the absolute owner of the whole land, and insisted that the complainants’ mortgage had been cut off by the foreclosure. The circumstances are such that the court might very properly have treated the complainants’ bill as one to redeem, and it will be so treated here.
The decree will be modified by giving the defendant bank costs of foreclosure of its mortgage and the costs of this court, and otherwise affirmed.
The other Justices concurred. | [
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Long, J.
This is an action of replevin brought in justice’s court, and appealed to the circuit, where it was tried before a jury, and verdict and judgment rendered in favor of defendant;. Plaintiff brings error. The action was brought to recover possession of a certain heifer which the plaintiff claimed to own. His claim was that the heifer was raised on his father’s farm, and was purchased by him from his father; that he turned it into a certain pasture called the “Church Pasture;” that he missed it out of the pasture, and found it in the possession of defendant, and took it from him on his writ. His further claim is that soon after he missed the heifer, and learned the defendant had it, he had a talk with defendant, in which defendant promised to return it to him. Plaintiff gave a description of the heifer as a “natural mulley.” The defendant’s claim was that he was the owner of the heifer; that it was born and raised on his farm; that in the summer of 1900 he turned it out to pasture, and it escaped and went into the Church pasture, where he found it and took it ‘ away; that it was not a natural mulley, but had been dehorned. Considerable testimony was introduced by plaintiff tending to identify the heifer as a natural mulley and as his property. There was also considerable testimony introduced by defendant tending to show that it was his property, that it had been dehorned, and was not a natural mulley. These issues were fully and very fairly submitted to the jury.
It is claimed, however, by counsel for plaintiff, that the court erred in permitting defendant to give in evidence certain statements made by plaintiff in reference to the return of the heifer; that the defendant should not have been permitted “to give portions of a conversation not consisting of any admission or statement of any fact material to any issue in the case; that unaccepted offers, by way of compromise, cannot affect the legal rights of the parties.” It appears that the plaintiff was asked by his counsel to state certain conversations he had with defendant. He was permitted to state them. This conversation related to a settlement of the case between the parties before suit was brought. The defendant was then asked by his own counsel to state the whole talk had between them. We think this was competent. Plaintiff had given his version of the conversation. Defendant had a right to do the same. Defendant’s version had a tendency to rebut the claim made by plaintiff that defendant had agreed to return the heifer. We think this was competent, under the case of Steers v. Holmes, 79 Mich. 430 (44 N. W. 922).
We think we need notice but one portion of the charge. The court said:
“By preponderance of the.evidence, which the. plaintiff must have in this case, I mean that the testimony, when put in as to the claims of the respective parties, the evidence produced by the plaintiff must weigh a little more than that of the defendant. It must be enough to push down his side of the scale in order to be a preponderance of the evidence, which the law requires he should bring here before you in order to be entitled to recover in this case.”
It is the claim of plaintiff’s counsel that the use of the above language was equivalent to saying that “ evidence” and “testimony” are synonymous terms. If this was a misuse of the term “testimony,” it was almost immediately cured by the court in saying: ‘ ‘ Now, the verdict is to be found in the manner in which I have directed,— from the preponderance of the evidence.”
We have examined the other questions with care, and find no error which we think could in any manner be prejudicial to plaintiff so as to warrant a new trial.
The judgment must be affirmed.
Montgomery, C. J., Hooker and Moore, JJ., concurred. Grant, J., did not sit. | [
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Montgomery, C. J.
This is an action of trespass quare clausum fregit. The trespass complained of consisted of an entry on the grounds of the plaintiff and the tearing down and removal of a barn. The defendants Makkes were purchasers of the material of the barn after its destruction, and verdict passed in their favor in the court below. It appears that the defendant Ide was president of the society, andyWithout authority from the board of directors, made a sale of ,;the- barn to the defendant Parr, who entered, accompanied by Ide, and tore down and removed the barn.y Defendants contend that the action of trespass quare clausum does not lie, and, further, that the acts of Ide were ratified by acquiescence on the part of the directors.
As to the former contention, the claim is that Ide was a licensee, and, as president of the society, had the right to enter the premises, and if, having entered in the performance of his duty as president, he exceeds his authority, ■ he does not become a trespasser ah initio, and that the remedy against him should be case, rather than trespass quare clausum. We think the difficulty with this contention is in the premiseSy/As president of the society, it is true that Ide might enter upon the premises whenever his duties called him there. But he was at no time authorized to enter for the purpose of tearing down this barn, or of directing it to be done. The case most nearly analogous to the one under consideration is Norton v. Craig, 68 Me. 275, which holds that if a person having lawful authority to enter upon the land of another for one purpose forcibly enters for a different purpose, or, having authority to enter upon one part of it, enters another part of it, he thereby becomes a trespasser. We think the question of whether one who enters by authority of the owner becomes a trespasser ab initio is not the question here. The entry was not an entry under authority or license, but, in the first instance, a wrongful entry, with a purpose not authorized by any license or authority of the owner.
Upon the question of ratification, there is no testimony in the case tending to show that the board of directors ever authorized the sale of the barn in question in the first instance, or that any action was ever taken by the board, as a board, ratifying the pretended sale. There was testimony in the case tending to show that both Ide and Parr acted in bad faith. There was some testimony tending to show that individual directors knew of the alleged purchase by Parr after it had been made, and took no action to disaffirm it; but there is nothing to show that Parr’s action in removing the barn was induced by any acquiescence on the part of the board of directors. The circuit judge charged the jury upon this subject as follows:
“The act of the defendant Ide in this case, being in excess of his authority and power under the law and the bylaws of the corporation, can be defended only by showing that he acted in good faith, with a bona fide intent of benefiting the corporation, and that the other directors who had, or should have had, knowledge of what had been done, did not dissent within a reasonable time. If you find that the defendant Ide has established those facts by 3, fair preponderance of the testimony, then the defendants are not liable. On the other hand, unless you find that the acts of the defendant Ide in selling and taking down the barn were done in good faith, and that his action was ratified, as I have explained, by the other directors, with a knowledge of what he was about to do or had done, by assenting to it or failing to dissent within a reasonable time, unless you so find, your verdict should be for the plaintiff. As to the other defendants, if you find, as I have explained, that the defendant Ide’s action was so acquiesced in by the directors as to amount to an assent to his doings in the matter of the barn, then none of the defendants would be liable. But if you find the defendant Ide’s action in selling the barn was not authorized or acquiesced in, as I have explained to you, then the defendant Parr would be liable, for he did not claim to have been misled by any acts or statements of the other directors as to Ide’s authority, but relied on the fact of his being the president of the society.”
We think this instruction sufficiently favorable. We are cited to numerous cases upon the subject of ratification by the acquiescence of the directors, but they will be found to be cases where, if no affirmative action was taken by the directors, either a use of property by the corporation was permitted, or the third party had been allowed to put himself in a position from which he could not recede without loss. It is an application of the doctrine of equitable estoppel, which we think does not apply in any broader way than in that indicated by the charge above quoted.
Criticism is made upon the instruction of the court as to the measure of damages. We think, on an examination of the charge, and the rulings of the court as to the admission of testimony, that the jury could not have misapprehended the correct rule, namely, the value of the barn as it stood on the premises at the time it was removed.
The judgment will be affirmed.
The other Justices concurred. | [
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Long, J.
This action is on the official bond, for the second term, of John Cook, city treasurer of the city of Grand Haven, which is incorporated under the general law of this State as a city of the fourth class. The case was referred under the statute, and comes up on the exceptions to the referee’s conclusions of law, which exceptions were overruled by the court below.
It appears that Cook was elected city treasurer of the city of Grand Haven at the charter election held in April, 1898. He qualified, giving bond with individual sureties, and entered upon the discharge of his duties, May 23, 1898. At the next annual election, held in April, 1899, he was re-elected, and qualified on the 18th day of May, 1899, when the bond in suit was filed, and accepted by the common council. The penalty of the bond is $25,000, with the defendant here as surety, which executed it at the city of Baltimore, Md., on May 11, 1899. Prior to the 18th day of May, 1899, Cook had abstraqted from the city funds the sum of $1,706.35, and was at that time a defaulter to that amount, — a fact which was not known then to any one except himself. After that date he abstracted and converted to his own use from the city funds the further sum of $727.84. It is the claim of defendant that it is liable on the bond in suit for the latter amount only, while the plaintiff claims that it is liable for the full amount of the shortage, $2,476.10, and for which amount judgment was rendered by the circuit court.
The bond in suit covers the period of time from May 18, 1899, the date on which it was filed and accepted by the common council, and does not relate back to April 10, 1899, as claimed by plaintiff. Grand Haven is a city of the fourth class, organized under chapter 88, 1 Comp. Laws, in which section 2993 provides:
‘ ‘ The mayor, city clerk, city treasurer, supervisors, and constables shall hold their offices for the term of one year from the second Monday in April of the year when elected, and until their successors are qualified and enter upon the duties of their offices.”
Mr. Cook had not qualified until his bond was accepted by the common council, and he could not enter upon the duties of his second term of office until then. Up to that time he was holding office by virtue of his first election. It is settled by numerous authorities under statutes similar to ours that the period between the election of a successor and the time he actually qualifies is as much a part of the prior term as the preceding period, and that, too, where a party is elected his own successor. Com. v. Hanley, 9 Pa. St. 515; Butler v. State, 20 Ind. 173; People v. Whitman, 10 Cal. 45; State v. Berg, 50 Ind. 500; Lynn v. Mayor, etc., of Cumberland, 77 Md. 453 (26 Atl. 1002); Kimberlin v. State, 130 Ind. 120 (29 N. E. 773, 30 Am. St. Rep. 208). It is also settled that where the statute or the constitution provides that an officer shall hold his office for a stated period, “ and until his successor is elected and qualified,” the sureties on his bond continue liable for his official acts after the expiration of the stated period, and until the election and qualification of his successor. It was expressly held in State v. Kurtzeborn, 78 Mo. 98, that where by statute a constable’s term of office is two years, and until his successor is elected and qualified, the liability of the sureties on his bond will continue after the expiration of the two years, and until his successor is elected and qualified. This rule was expressly laid down in Township of Paw Paw v. Eggleston, 25 Mich. 36; City of Detroit v. Weber, 29 Mich. 24. See, also, County of Placer v. Dickerson, 45 Cal. 12; Wheeling v. Black, 25 W. Va. 266; State v. Wells, 8 Nev. 108; Thompson v. State, 37 Miss. 518.
We think counsel are correct in saying that the bond in the present case does not relate back to the 10th day of April. The language of the bond is not retrospective. The condition is that if “ John Cook shall well and faithfully perform all the duties of said office of treasurer of the city of Grand Haven for and during the term for which he was elected, and shall account for and pay over all sums of money that shall come to his hands as such treasurer,” etc. His second term did not commence until May 18th, and the surety on that bond would be liable only for moneys coming into his hands after his bond was approved.
In Hyatt v. Sewing-Machine Co., 41 Mich. 225 (N. W. 1037), this court held that an antedated bond does not hind the sureties for the period preceding the date of its delivery if its language is not retrospective. The bond in that case was given for the good conduct of one Tuttle as agent of the company. It was said by the court:
“The agreement between Tuttle and the company, together with the bond, were dated, respectively, July 11, 1871, and those parties appear to have regarded the agreement as taking effect at that time. It seems that Tuttle was already acting in the same way under a prior agreement and obligation. The present bond was not executed and delivered until August 23, 1871, — several weeks after the date expressed. During the intervening period it was not in existence, and plaintiff in error vfras not then answerable for .anything transacted. The circuit judge ruled that after its delivery the bond operated retrospectively to the date, and bound the plaintiff in error from that time, and he allowed recovery for transactions perfected in that interval. * * * The question turns on the construction of the obligation, and it must be held to speak from the time it took effect. No other view is admissible now. It is not to'be assumed that the surety intended to become responsible for acts or delinquencies accomplished before he bound himself. Myers v. U. S., 1 McLean, 493 (Fed. Cas. No. 9,996). On the other hand, it is just to suppose that, if the parties had understood that past transactions were to be covered, ‘the bond would have been made retrospective in its language.’ Farrar v. U. S., 5 Pet. 373; U. S. v. Boyd, 15 Pet. 187. Such, however, is not the case. The terms are all future. The language imports an undertaking relative to posterior transactions only, and it cannot he applied to antecedent ones without violating its natural sense. We are therefore of opinion the court erred in applying the bond to matters which arose before it was given.”
See, also, U. S. v. Le Baron, 19 How. 73; Bruce v. State, 11 Gill & J. 382.
It is apparent, therefore, that the defendant can be held liable only for the sum appropriated by Cook to his own use. after the time of acceptance by the council of the bond in suit, which is the sum of $727.84. The judgment of the court below must be reversed, and judgment entered here for $727.84 and interest in favor of plaintiff. The defendant will recover costs of this coúrt, and plaintiff will recover costs of the lower court.
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Hooker, J.
John J. Garrison’s will, admitted to probate in 1876, devised the real estate in question to his son John William Garrison for life, remainder in fee to his (John William Garrison’s) heirs. John William Garrison is living, and has a wife and two minor children, all living. He has also living brothers and sisters, all adults. Proceedings have been taken under a petition filed May 21, 1901, by the life tenant for the sale of the premises in fee under 3 Comp. Laws, §§ 9234-9242, inclusive, as amended by an act passed April 9, 1901, which was given immediate effect. Act No. 55, Pub. Acts 1901. The material portions of this act in this connection are sections 1 and 2, which read as follows (the Italicized portion having been introduced by the amendatory act mentioned):
“Section 1. Whenever any person shall be seised or possessed of any lands, tenements, or hereditaments devised to such person for life with or without power of appointment by will, or of any lands, tenements, or hereditaments devised to such person in trust without power of sale, the circuit court in chancery for the county where such property is situated may, on the petition of such person, order that such land, tenements, and hereditaments be sold under the direction of the court, whenever, by a proper showing by witnesses produced before the court,it shall satisfactorily appear that the rights of the interested parties will otherwise be jeopardized.
“Sec. 2. Every conveyance made by the person so seised pursuant to such order of said court shall be as good and effectual in law, and shall convey the same title, as if the same were made by such person being seised of the title in fee to such lands, tenements, and hereditaments.”
The minor children of John W. Garrison were served with notice of the petition for the sale, and appeared and answered through guardian ad litem, and the statutory publication was made. The widow filed a consent to the proposed order. The minors, aged, respectively, 17 and 13 years, submitted their rights and interests to the protection of the court. No one appeared upon the hearing in opposition to the application. There was testimony showing prima facie that the buildings upon the property (which is in Detroit) are old and badly out of repair, and, being within the fire limits, cannot be repaired lawfully; that the life tenant has no means with which to replace the buildings with others, and that the income is small in proportion to the value of the.property; that the life tenant has been unable to pay the taxes since 1894, and that accumulated back taxes, for which the property has been sold to the city, are about $13,000; and that application for these tax titles has been made by others, and petitioner has been notified by the city that they would be sold unless the premises should be redeemed before the 1st of July last. An order was made June 33, 1901, whereby John William Garrison was authorized and empowered to sell the fee of the real estate in question in one sale, or in parcels from time to time, subject to report and confirmation by the court; the proceeds to be paid to the Detroit Trust Company, which was appointed trustee for the purpose of receiving, keeping, and disposing of the same in accordance with the court’s direction.
On July 3, 1901, John W. Garrison filed a report of sale, showing that he had made an agreement to sell to Frank J. Hecker, subject to confirmation by the court, the fee of the property, free and clear from all liens, levies, and incumbrances, for $138,000, and that there were tiien outstanding city tax leases on the property on which there was due $11,838.93, which should be paid in order that the sale might be consummated. The report and sale were confirmed, and Garrison ordered to give to Hecker a deed in fee on his compliance with the agreement of sale, and that the taxes be paid by the Detroit Trust Company from the proceeds. Other provisions of this order are unimportant. The date of this order does not appear in the record, except that it was in July, 1901.
On the 10th of July, 1901, Garrison filed another petition, reciting the facts hereinbefore stated, and alleging the order of confirmation to have been made on July 3, 1901, and that on July 3, 1901, a deed was tendered to Hecker in accordance with the order of confirmation, and a request made that he pay the said sum of $138,000 to the Detroit Trust Company, which he refused to do. The petition prays that Hecker be required by an order of the court to pay the same. Notice of the hearing of this petition was served on Hecker. He answered, admitting the purchase, and alleging a willingness to complete the purchase, provided he can acquire a perfect and indefeasible title; that he is advised that the proceedings are invalid, null, and void, and ineffectual to devest the heirs of John W. Garrison of their rights in the premises,, and alleges that the deed would not, therefore, vest in him a perfect and indefeasible title in fee simple, and further that the act under which the proceedings were taken and sale made is unconstitutional, null, and void. A hearing was had, and the court made an order in accordance with the prayer of the petition. It contained an adjudication that a “good and legal estate of possession and inheritance will vest- in said Hecker upon payment of the money.” The cause comes before this court on appeal, a case made reciting the testimony; it being certified by the trial judge that the other proceedings are substantially contained in the petition for leave to sell.
The question raised is whether the court had any jurisdiction whatever in the original proceedings. The statute cited is one designed to provide for a partition, substantially. It provides for a sale and the proper disposition of the proceeds. The power of the legislature to pass laws for the judicial sale of property for the benefit of those having different interests therein is upheld by many cases. It is an everyday practice to sell the interests of minors and incompetent persons for their benefit, and no good reason is suggested for denying to courts of chancery the power to make such sales, though it involve a partition, or fits equivalent. The power under this statute extends to a partition of different estates in property. Phillips v. Johnson, 14 B. Mon. 172. See 17 Am. & Eng. Enc. Law, 690, note 4. In the present case the children of John W. Garrison are before the court. At present they represent the estate of inheritance, and, while the vicissitudes of life may change the ownership of the remainder, it is the prevailing rule that persons not in esse will be bound by the partition; those before the court being treated as representative of such persons as may, by reason of subsequently coming into being, acquire an interest in the property. See 17 Am. & Eng. Enc. Law, 728, and note; Monarque v. Monarque, 8 Abb. N. C. 102, 80 N. Y. 320. We do not overlook the fact that persons now in esse, other than the minors, may become entitled to this remainder in the event of John W. Garrison’s death without issue him surviving. Section 4 of the act provides for a substituted service by publication, and this was given. We think this a constitutional and valid procedure in cases in rem. 17 Am. & Eng. Enc. Law, 727, 728, and notes; Moore v. Wayne Circuit Judge, 55 Mich. 81 (20 N. W. 801).
The decree of the circuit court is affirmed.
Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., did not sit. | [
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Montgomery, C. J.
Plaintiff recovered a judgment for injuries claimed to have been received by falling on a defective sidewalk. The plaintiff’s testimony was to the effect that the injury occurred while he was walking on the sidewalk, at some little distance from a crosswalk, to which reference was made by the testimony of the defendant’s witnesses. The sole error complained of is the refusal of the court to instruct the jury that, if the plaintiff was riding a wheel at the time he was injured, he could not recover.
There can be no doubt that the defendant was entitled to have this instruction given, if there was any evidence tending to sustain the defendant’s theory, for the reason that it wholly disproved any claim made by the plaintiff as to the manner of his accident, as well as the theory of his declaration. Nor do we think the general instruction of the court that, to entitle the plaintiff to recover, he must have been in the exercise of due care, nor the implication in the general instructions that he could not recover unless he received the injuries in the manner alleged, would be sufficient to cure this error. The defendant has a right to, have the attention of the jury challenged to his theory of the case, if that theory is supported by legal evidence. Babbitt v. Bumpus, 73 Mich. 331 (41 N. W. 417, 16 Am. St. Rep. 585); Parrish v. Bradley, 73 Mich. 610 (41 N. W. 818).
The evidence on the part of the defense which tended to show that this accident occurred at the crosswalk, and while plaintiff was riding a wheel, was evidence that he had his wheel with him; that the wheel was sold to plaintiff’s brother by one Unger, and by his brother to himself; that.it had, at the time it was sold, a “Vim” tire, which would make an impression in the earth the same as canvas; that the west plank of the crosswalk had been displaced, allowing sufficient space between it and the plank adjoining for a bicycle wheel to drop through; that there was a drop from the crosswalk to the north side of the ditch of about a foot, and that on this north slope there was found in the earth the mark of a bicycle tire which corresponded to the tire of plaintiff’s wheel; that this crosswalk in question was some eight or ten feet north of the point alleged in the plaintiff’s declaration; that a discovery of this condition and of these marks of the bicycle wheel was made by defendant’s witnesses the second day after the injury. We think that this evidence entitled the defendant to have the question submitted to the jury, and, as this was not done, although requested, the judgment will be reversed, and a new trial ordered.
The other Justices concurred. | [
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The Court
held that on a special appeal from a justice’s court, questions of the admissibility of evidence before the justice are not subject to review; and that where the justice, in his return to such an appeal, states a ruling made by him, without giving the ground on which it was made, the circuit court cannot assume that the justice’s ruling was made upon any particular and erroneous ground, when another and admissible ground is equally consistent ■with the return. •
Judgment reversed. | [
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Cooney, J.
This action was brought to recover the value of gravel taken by the defendant from the street in front of plaintiff’s premises in the city of Grand Rapids. The case was referred to a referee, who reported that the street was a public highway, duly laid out on a plat recorded as provided by law; that the defendant, at the time he took the gravel, had a contract with the city of Grand Rapids, for the grading and graveling of the street in question; that the improvement had been ordered by the council, and that the gravel was made use of on the street. The major portion of the gravel, however, was taken below the grade established for the improvement in the contract between the city and the defendant, and was used on other portions of the street, the excavation being filled up with surface soil, and then graveled over. The referee held the defendant liable for the gravel taken from the excavation, except so far as it was made use of in front of the premises, upon the ground that he did not show on what portion of the street it was made use of; the referee holding it to be unreasonable that he should use it for the purposes of the improvement except between the cross streets on either side of plaintiff’s premises.
The referee justified his conclusion, upon the opinion of this court, in Cuming v. Prang, 24 Mich., 528. But he must have overlooked the fact that that case had reference to a mere alley, not shown to extend beyond the block, and that the decision recognized the right of the city to make use of the gravel found within the limits of the alley in improving any part of it. The ground of defendant’s liability was that he did not use it for that purpose at all. We could not assent to the doctrine that a city, in improving a street, may not take the natural material found within its limits suitable for the purpose, and distribute it in making the improvement as the authorities deem best.
The plaintiff insists that defendant has not shown his contract was duly, and with all legal requisites, ordered and entered into on the part of the city; and therefore he has not established his justification, and must be considered a mere trespasser. But we think this objection not open to him on the referee’s report, which finds that the improvement was ordered, and a contract entered into by the council for making it. We cannot go back of this finding to infer or imagine illegalities.
Some questions were discussed on the argument which become immaterial in the view wre have taken of the main point involved. We dispose of this case on the supposition that the plaintiff’s rights in the street were precisely as great as those of a proprietor bounded on an ordinary highway in the country, but without expressing any opinion whether or not his rights are in fact of that extent. We think the circuit judge was correct in overruling the referee’s conclusions, and his judgment must be affirmed, with costs.
The other Justices concurred. | [
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Cooley, J.
The defendant in error is the wife of Matthew Nichols, and brought suit in the court below to recover of Kreiter the damages sustained by her in being injured in her means of support through the intoxication of her husband, induced by liquors which she alleged Kreiter had furnished him. The suit was brought under an amendment of the prohibitory liquor law, so-called, which was adopted April 18, 1871 [Laws 1871,- Vol. 1, p. 363], and which expressly provides that “every wife, child, parent, guardian, husband or other person, who shall be injured in person, property, means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or giving away any intoxicating liquor or otherwise, have caused or contributed to the intoxication of such person or persons; and. in any such action the plaintiff shall have a right to recover actual'and exemplary damages.” The jury awarded the plaintiff five hundred and twenty-five dollars, which we infer was intended to include, not only the actual damages proved, but exemplary damages also.
The evidence tended to show, however, that the intoxicating drinks were not furnished to Nichols by the defendant in person, — at least, as a general thing, — and he called witnesses to prove that he refused to let Nichols have such drinks, and instructed his servants to do the same, which they did. It appeared, however, that defendant kept a grocery store, at which liquors were sold, and that he was also a brewer of lager beer; and it was not disputed that Nichols procured liquor at the store and beer at the brewery on some occasions.
The circuit judge charged the jury that if Nichols drank beer at the brewery without the knowledge or consent of defendant, this would not be such, a selling by defendant as would render him liable under the statute.
But he also charged in substance, that defendant would be liable for the sales made to Nichols by the servants of defendant, even though in violation of his orders, and that if Nichols got beer at the brewery without the knowledge of defendant at the time, but defendant, when he found it out, charged it to Nichols and deducted it from his wages, the defendant would be liable as though he had made the sale originally.
The proposition that one engaged in the sale of intoxicating drinks shall be held responsible for the acts of his servants in that business, even though in the particular transaction they disobeyed his instructions, is in strict accord with the general rules governing the relation of master and servant, and was correctly applied in the present ease. No man can be excused from responding for the negligent conduct of his servant because of having instructed him to be careful, or for his frauds because of having told him to be honest. While he is not liable for wrongs which the servant may step aside from his employment to commit, he is fully responsible for the manner in which his business is conducted, and if he gives proper directions he must take upon himself the risk of their being obeyed. But we do not perceive that any such principle can be applied to the case of a person who goes without the permission of any one and drinks another’s beer, nor how the fact of the owner demanding and receiving pay for the property can make such owner a wrong-doer in the original trespass on his rights.
By the statute law of this state, as well as the common law, beer is recognized as property, and the brewing of beer,is a lawful business. The law protects this property precisely as it protects any other lawful product. If one steals it from the owner, he is punished for it; if he converts it to his own use in any form, a civil action will lie to recover from him the value. And this civil action would not depend in any degree upon the method or purpose of the conversion. Whether destroyed from a belief in its deleterious effects, or made way with in carousals or private drinking, the legal responsibility to pay for its value would be the same. And it will scarcely be disputed that in this case, if defendant’s statement is truthful, he might have recovered from Nichols the value of the beer drank by him at the brewery without defendant’s consent, on the same grounds precisely as he might have recovered for any unlawful conversion of other property. But if defendant might lawfully recover for the conversion, he might also lawfully settle for it. He does not thereby sanction what was originally done, but he makes one who has done him a wrong compensate him for the wrong.
Any one who happened for any justifiable reason to have intoxicating drinks in his possession which another appropriated without his consent, might thus demand payment for it without being either legally or morally responsible for the injuries which had resulted from the trespasser making use of it. The trespass being against his will, the wrong to him cannot be converted into a public wrong on his part by his compelling the trespasser to make s.uch redress as the law would compel were it appealed to. On this point we think the court was in error.
We also think the court erred in refusing to instruct the jury that exemplary damages should not be awarded, unless the act of giving or selling intoxicating drinks ,to the husband of the plaintiff was willful. The term exemplary damages, or as it is sometimes phrased, punitory or vindictive damages, is often very loosely employed in the books, and the controversy over the doctrine which permits the allowance of such damages has been very able and very persistent. But those who go farthest in support of such damages base the right to award them expressly on the willful or wanton conduct of the defendant, — the .moral turpitude or atrocity of the act, which renders it proper that damages by way of punishment should be inflicted beyond what could be measured by way of compensation. Thus Mr. Sedgwick says: “The general principle that in case of willful wrong committed by the defendant, the jury have a large discretion to award damages by way of punishment has been asserted in a number of cases.” — Sedgwick on Damages, 454, note. Mr. Justice Grier says: “It is a well established principle of the common law that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitory or vindictive damages upon a defendant, having in view the enormity of his offense, rather than the measure of compensation to the plaintiff.” And again: “In actions of trespass, where the injury has been wanton and malicious, or gross and outrageous, courts permit juries to add to the measured compensation of the plaintiff, which he would have been entitled to recover had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called smart money.” — Day v. Woodwoorth, 13 How., 368. And in the leading case of Huclcle v. Money, 2 Wils., 205, Lord Chief Justice Pratt expressed the opinion that the jury had done right in awarding exemplary damages for a trespass committed by direction of the crown officers, and the legality of which they had endeavored to support and maintain in a tyrannical and severe manner. These extracts sufficiently indicate the grounds on which such damages are allowed, and show that they are not to be awarded unless the conduct of the defendant is willful, wanton, reckless, or otherwise deserving of punishment beyond what the requirement of mere compensation would impose.
In this case the parties went to the jury on the evidence with opposing views of what was established by it. The plaintiff claimed to have established a gross ease of disregard of her rights on the part of the defendant in person, by the sale to her husband of intoxicating drinks with full knowledge of the probable consequences. The defendant on the other hand insisted, that Nichols procured the liquors either secretly or from servants who in permitting him to have it disobeyed orders. If the plaintiff’s view was con curred in by the jury, exemplary damages were appropriate; but if the jury believed the defendant, and were satisfied he had not purposely contributed to the intoxication of Nichols, the damages awarded should have been confined to the actual injury. We find ourselves under the necessity, for the reasons given, of awarding a new trial.
Very numerous exceptions were taken on the trial, the most of which we think require no attention at our hands.
We think the court was quite right in allowing the latitude he did in inquiring into the facts, and in holding the law to be valid.
Judgment reversed, and new trial ordered.
Graves, Ch. J., and Campbell, J., concurred.
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Per Curiam.
We granted leave in this case to decide whether the Attorney Grievance Commission and the Attorney Discipline Board have jurisdiction to proceed with a formal complaint against a disbarred lawyer who violates an order of discipline by continuing to practice law. We hold that the ago and the adb do have such jurisdiction, and that it continues for the entire period in which the disbarred lawyer is ineligible to seek reinstatement. We thus remand this matter to the adb for further proceedings consistent with this opinion.
i
By order of the Attorney Discipline Board, Thomas M. Hibler’s license to practice law was revoked effective February 18, 1994. In December 1995, the Attorney Grievance Commission authorized the Grievance Administrator to file a formal complaint against Mr. Hibler, alleging that he had held himself out as an attorney after his disbarment, in violation of MCR 9.119, and had committed other acts of misconduct.
The Attorney Discipline Board dismissed the complaint, without prejudice, on the basis that it does not have jurisdiction over a person whose license to practice law has been revoked, except in regard to acts of misconduct allegedly committed during the period of licensure. The ADB relied on Grievance Administrator v Attorney Discipline Bd, 447 Mich 411; 522 NW2d 868 (1994).
The Grievance Administrator wants this Court to reinstate the underlying discipline case involving Mr. Hibler.
n
Grievance Administrator involved several unrelated discipline cases that the adb had dismissed on the ground that the respondents no longer were within the jurisdiction of the adb because their licenses to practice law had been revoked in earlier proceedings. This Court held that the ADB retained jurisdiction under the Michigan Court Rules to consider misconduct committed during the period of licensure by lawyers who later were disbarred. We emphasized, however, that the adb has discretion to enter appropriate orders in discipline cases, including orders of discontinuance “if, in the particular circumstances of an individual case, that is the appropriate order.” 447 Mich 413.
The adb would limit our holding in Grievance Administrator to the factual circumstance present in that case, i.e., to misconduct that occurs within the period of licensure, and would exclude misconduct that occurs after revocation. Our decision in Grievance Administrator was not so narrow, however.
Before announcing our holding in Grievance Administrator, we stated that we found the Grievance Administrator’s arguments to be persuasive. Two paragraphs earlier, we had summarized those arguments as follows:
The Grievance Administrator argues that the court rules continue to govern the conduct of an attorney whose license is revoked, as well as the eligibility requirements and procedure for reinstatement.
As the Grievance Administrator argued in that case and observes in the instant case, the court rules do not distinguish between active lawyers and those whose licenses to practice law have been revoked, for purposes of the applicability of subchapter 9.100 of the MCRs. While it is true that 9.101(5) defines “attorney” to mean “a person regularly licensed or specially admitted to practice law in Michigan,” the word “attorney” is used at various places in subchapter 9.100 to include all persons who have obtained licenses to practice law, regardless of whether a license is presently in effect or has been revoked.
For instance, MCR 9.119 governs the conduct of “disbarred, suspended, or inactive attorneys,” and its provisions refer to “attorneys” whose licenses have been revoked. See also MCR 9.123, which discusses the eligibility for reinstatement of an “attorney” whose license to practice law has been revoked, and MCR 9.124, which discusses the steps that an “attorney” must take to be reinstated.
m
We hold that where a disbarred lawyer practices or attempts to practice law during the five-year period in which the lawyer is ineligible to seek reinstatement, the AGO and the ADB may proceed with a formal complaint against the lawyer. If the misconduct is proven, the result will be an additional term of five years in which the lawyer is precluded from petitioning for reinstatement. For example, if the ADB were to find that a disbarred lawyer had represented a client in the second year after the lawyer’s license was revoked, the new total period of ineligibility for reinstatement would be eight years, i.e., the three years of ineligibility that remained after the initial disbarment plus an additional five years.
The situation is different, however, if the alleged misconduct occurs after a disbarred lawyer has regained eligibility for licensure, but has not sought reinstatement. In that circumstance, the disbarred lawyer has no more authority to act for others than does a person who never possessed a license to practice law. Such a person is thus subject to an action for the unauthorized practice of law. SBR 16 and MCL 600.916; MSA 27A.916. In addition, the Grievance Administrator may proceed against a disbarred lawyer for contempt of court if the lawyer practices or attempts to practice law without seeking reinstatement, or after being denied reinstatement. MCR 9.127(B).
IV
For the reasons given, we vacate the discontinuance order of the Attorney Discipline Board and direct the adb to reconsider the underlying discipline case. On remand, the adb must determine whether, in light of all the circumstances, a discontinuance is the appropriate resolution of this case.
Mallett, C.J., and Brickley, Cavanagh, Boyle, Kelly, and Taylor, JJ., concurred.
On our own motion, we directed the parties to brief the question whether the Court should hold that an order of permanent disbarment is available to the adb as discipline for the offense of engaging in the practice of law following an order of revocation. We do not reach that issue in this case, but will be considering the question as an administrative matter.
MCR 9.119.
MCR 9.123, 9.124._
MCR 9.123(D)(2) provides that a disbarred lawyer may not seek reinstatement to the practice of law until five years after a license is revoked. Under subrule B, it must be proven by clear and convincing evidence that the five years have elapsed, and that the lawyer did not practice or attempt to practice law during that time.
Rule 16 of the Rules Concerning the State Bar of Michigan states:
The State Bar of Michigan is hereby authorized and empowered to investigate matters pertaining to the unauthorized practice of law and, with the authority of its Board of Commissioners, to file and prosecute actions and proceedings with regard to such matters.
MCL 600.916; MSA 27A.916 provides:
It is unlawful for any person to practice law, or to engage in the law business, or in any manner whatsoever to lead others to believe that he is authorized to practice law or to engage in the law business, or in any manner whatsoever to represent or designate himself as an attorney and counselor, attorney at law, or lawyer, unless the person so doing is regularly licensed and authorized to practice law in this state. Any person who violates the provisions of this section is guilty of contempt of the supreme court and of the circuit court of the county in which the violation occurred, and upon conviction is punishable as provided by law. This section does not apply to a person who is duly licensed and authorized to practice law in another state while temporarily in this state and engaged in a particular matter.
This subrule provides:
The administrator may enforce a discipline order or an order granting or denying reinstatement by proceeding against a respondent for contempt of court. The proceeding must conform to MCR 3.606. The petition must be filed by the administrator in the circuit court in the county in which the alleged contempt took place, or in which the respondent resides, or has or had an office. Enforcement proceedings under this rule do not bar the imposition of additional discipline upon the basis of the same noncompliance with the discipline order.
As noted, although we found jurisdiction in Grievance Administrator, we also emphasized that the adb has discretion to enter appropriate orders in discipline cases, including orders of discontinuance without prejudice to further proceedings, where appropriate. For example, where the alleged misconduct is that a disbarred attorney has engaged in an isolated act that constitutes the practice of law, but there are no other allegations of wrongdoing, the adb reasonably might conclude, in a particular case, that a formal proceeding under MCR 9.115 is not appropriate. In this regard, we noted above that the Grievance Administrator has authority under MCR 9.127(B) to initiate a contempt action to enforce a discipline order. The administrator argues that the use of this procedure does not preclude the agc from also authorizing a formal complaint, and that the failure of the adb to conduct formal proceedings will impede the administrator’s ability to later produce full character evidence, should a disbarred lawyer seek reinstatement. While it is true that the initiation of a contempt action does not bar the filing of a formal complaint, neither is the adb precluded from considering the existence of such a proceeding in determining an appropriate order in a particular case. | [
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Brickley, J.
i
In these cases, we are called upon to determine three issues. First, whether any constitutional error occurred when the people called a witness to the stand knowing that the witness would assert the privilege against self-incrimination in front of the jury. Second, if this was not constitutional error, was it evidentiary error? Finally, if this was evidentiary error, we must decide the proper level of assurance a reviewing court must have for preserved nonconstitutional error. We conclude that no constitutional error occurred in either case and that, while evidentiary error did occur, it was harmless because it is highly probable that the evidence did not contribute to the verdicts in light of the strength and weight of the untainted evidence.
n
A. PEOPLE v GEARNS
Defendant Jeffrey Geams was tried before a jury and convicted of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The Court of Appeals affirmed his conviction in an unpublished per curiam opinion.
On April 3, 1991, the defendant met the deceased, Douglas Lineberry, in the bar of a Chi-Chi’s restaurant in Dearborn. They conversed, and defendant became heavily intoxicated. The defendant, a regular at that bar, left with Mr. Lineberry. Later that evening, defendant called Gary Edwards, a friend of his, in Florida. Mr. Edwards testified that defendant sounded intoxicated and wanted him to play the flute over the speaker phone. Mr. Edwards testified that he heard another person in the background, who was laughing and “partying” and whom defendant stated he met at the bar. The next day, Mr. Edwards received another call from defendant asking him to recommend a good criminal attorney. When Mr. Edwards inquired regarding why, the defendant indicated that someone was shot and there was some kind of fatality. When Mr. Edwards called him back with the name of an attorney, defendant stated, “I guess I will see you in ten years.”
The victim’s wife reported him missing, and a ChiChi’s manager noticed a car in the parking lot for several days, which belonged to the victim. The victim’s body was discovered in a wooded area near Brighton with a single gunshot wound to the forehead. It was a 9 mm shell, shot from about four inches. The medical examiner testified that the deceased had been dead for approximately three to four days before the discovery of the body. In addition to the gunshot wound, there were abrasions on the sides of the neck and on the back of the hand of the deceased, and dried blood was found under his fingernails, which matched neither the deceased nor defendant. In the pocket of the deceased’s clothing was a Chi-Chi’s matchbook with defendant’s name and telephone number written on it.
A police sergeant called the number in the matchbook and left a message on an answering machine. When the defendant called back, the sergeant asked him if he knew Mr. Lineberry, to which defendant responded that he had not heard of him. The sergeant requested that the defendant come in for an interview; however, he did not.
On April 12, the police executed a search warrant at defendant’s home in Dearborn Heights. Defendant and his brother, Gregory Geams, were present, and one officer testified that defendant was on his hands and knees scrubbing the kitchen floor when he entered the home. One of the evidence technicians sprayed luminol on various areas of the home. She testified that it would glow in the dark when exposed to certain substances, including blood and a chlorine substance present in some household cleaners and certain metals. The test produced a glow on a puddle near defendant’s car in the garage and the pattern of a set of footprints in the comer of the basement. There also was a trace of denim material found in the trunk of the defendant’s car, but a positive match could not be obtained with the blue jeans worn by the victim. There was also positive presence of human blood on a trace of caipet, but it could not be typed.
The officers found 9 mm ammunition, the same caliber as the bullet that killed the deceased. Defendant was the registered owner of a 9 mm Smith & Wesson pistol, which was not found in the search. Some type O blood was found in the trunk, consistent with defendant’s blood type, and type A blood was found in the trunk, but no type B blood (the victim’s blood type) was found. Defendant’s father testified that defendant and Gregory Geams lived together at the Dearborn Heights address.
After the jury was sworn, the prosecutor asked for a ruling from the court outside the jury’s presence. The prosecutor wanted to call Gregory Geams as its first witness. Gregory Geams’ attorney indicated that he would assert the Fifth Amendment and refuse to answer questions. The prosecutor had offered Gregory Geams immunity from prosecution for a charge of accessory after the fact to murder, which the prosecution argued was sufficient to cover any information that the prosecutor knew or was likely to ever know concerning Gregory Geams’ involvement. The judge indicated that she would hold Gregory Geams in contempt if he refused to testify. His attorney indicated that he could not be held in contempt unless he actually refused to testify, and counsel for Gregory Geams requested that the refusal take place outside the jury’s presence. The prosecutor indicated his acquiescence, but the judge expressed her opinion that the refusal had to occur in front of the jury; otherwise, Gregory Geams would not be in contempt of court.
The jury was called in, and Gregory Gearns testified about the address at which he resided. When asked with whom he lived at that address, he stated that he was taking the Fifth Amendment. On request of the prosecutor, the judge instructed the witness that he had no valid privilege and must answer the question. Counsel for Gregory Gearns indicated that he believed the privilege was valid. The prosecutor asked the court to hold Gregory Gearns in contempt. Counsel for Gregory Gearns asked that the case be dismissed. The jury was excused. Defense counsel argued it was impossible that the prosecutor could have believed that Gregory Gearns was going to testify. The judge denied the motion because Gregory Gearns did not say anything detrimental about his client, and defense counsel was not counsel for Gregory Gearns, who did not say anything about defendant.
B. PEOPLE v THOMAS
Defendant Donnell Thomas was tried by a jury and convicted of voluntary manslaughter, MCL 750.321; MSA 28.553 (he was charged with second-degree murder), possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and carrying a concealed weapon,. MCL 750.227; MSA 28.424. The Court of Appeals reversed his conviction in an unpublished per curiam opinion. These charges arose from a shooting that occurred as several men were leaving a party on Park Street in Saginaw. The prosecutor’s theory was that Thomas shot and killed his friend, Curtis Madison, while trying to shoot members of a rival gang.
Thomas and five other friends, Curtis Madison, Tarkeus Gee, Robert Jamerson, Demarcus Wesby, and Terry King left the party around 9:30 P.M. with two others. A pickup truck heading north on Park Street drove by, and the occupants fired shots at the group. Mr. Madison and Mr. King were already in Mr. Madison’s car. Mr. Jamerson and defendant returned gunfire — Mr. Jamerson from a .38 caliber revolver and defendant from a 9 mm semiautomatic pistol. Defendant and Mr. Jamerson left before the police arrived.
A 9 mm bullet was recovered from Mr. Madison, the victim. Its entry indicated it did not come from the road where the truck occupants fired shots. The expert’s laser trajectory indicated defendant was in a position consistent with the line of fire, although it could also have come from a building. The 9 mm pistol was not recovered. Mr. King indicated that defendant was firing at the blue track in their direction. Defendant offered a statement indicating that Mr. Wesby also fired shots. There was additional testimony that shots might have been fired from a nearby building. Thomas’ theory was that the prosecutor failed to prove that he was the killer beyond a reasonable doubt and that, even if the jury believed he fired the shot, it was not murder.
The prosecutor and the police went to interview Mr. Gee in jail before trial, and Mr. Gee indicated that he had no intention of testifying. Mr. Gee also said there was nothing anyone could do to make him testify. The prosecutor requested that the court compel him to take the stand. The court asked Mr. Gee why he was refusing — if he was going to assert the Fifth Amendment privilege. The prosecutor agreed to grant immunity. The prosecutor and the court agreed that if Mr. Gee still refused to testify, the prosecutor would have the right to call him. The defense maintained that to call him would be unfairly prejudicial to defendant.
Mr. Gee took the stand and stated that he did not want to testify, but did not give a reason. The trial court asked if he was refusing to testify because of the Fifth Amendment. Mr. Gee responded, “Yeah, I’m refusing on the Fifth Amendment. Is it more simple that way?” The trial court ruled that Mr. Gee had no Fifth Amendment privilege. Defendant’s attorney objected that Mr. Gee had not been properly informed of the scope of his Fifth Amendment rights. The trial court then informed him that “the only person who has a legal right not to testify and to invoke the Fifth Amendment is an individual who believes that he or she may implicate themselves, maybe testify against their own penal interests.” Mr. Gee indicated that he just did not want to testify, and the prosecutor’s threats to add to his charges and give him a longer sentence did not bother him. He also stated that he had done nothing wrong and, thus, could not implicate himself.
Defense counsel argued that it was not permissible to place Mr. Gee on the stand in front of the jury to elicit a refusal to testify, even if the privilege asserted was invalid. The court permitted it over objection, stating that the witness’ refusal would be placed on the record before the jury. Mr. Gee would not even testify with regard to his name, stating, “I’m making sure — I want — I’m refusing to say anything until I get a legal representative.” He was subsequently held in contempt. Following his statement on the stand, Mr. Gee was provided with counsel, who concluded that Mr. Gee had no legal right not to testify.
m
The first issue we are called upon to decide is whether either defendant’s right to confront a witness against him was implicated by permitting a witness to assert his Fifth Amendment privilege against self-incrimination in the presence of the jury. While our decision in People v Giacalone, 399 Mich 642, 646; 250 NW2d 492 (1977), was based on evidentiary error, we recognized that a number of other decisions were based on the Confrontation Clause. We declined to reach the constitutional issue in that case, but find it necessary and prudent to do so today. We conclude that neither defendant was denied the right of confrontation or the right to a fair trial in violation of due process.
We first address the alleged violations of the Confrontation Clause. Three United States Supreme Court decisions form the backdrop against which we determine this issue. The first is Namet v United States, 373 US 179, 185; 83 S Ct 1151; 10 L Ed 2d 278 (1963), in which the Supreme Court held that the petitioner’s claim was evidentiary trial error, specifically noting that no constitutional issue was being decided. While we are not bound by this Supreme Court decision, it proves instructive in determining at what point this type of error becomes constitutional in magnitude.
In Namet, two coconspirators testified against the defendant and invoked the Fifth Amendment during portions of their testimony. The Supreme Court examined several lower court decisions regarding this type of error, in which those courts reviewed surrounding circumstances of each case, focusing primarily on two factors, each of which suggested a “dis tinct ground of error.” Id. at 186. The first theory rests on the conclusion that in the circumstances of a particular case, “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” Id. at 187.
Both witnesses possessed nonprivileged information that could be used to corroborate the government’s case, which the government had the right to put before the jury. Id. at 188. The few invocations of the privilege were not significant enough to be error in the absence of prosecutorial misconduct and were merely cumulative support for inferences already established by the nonprivileged portion of the witness’ testimony. Id. at 189. This case is factually different from the two cases we are examining here today and only serves to illustrate when no constitutional error exists.
The second decision, Douglas v Alabama, 380 US 415; 85 S Ct 1074; 13 L Ed 2d 934 (1965), is not inconsistent with Namet, but does rest on constitutional grounds. Douglas illustrates when the first ground for error discussed in Namet, critical weight, becomes constitutional in nature. In Douglas, the trial judge ruled that the witness could not rely on the privilege against self-incrimination to support his refusal to testify because he had been convicted. He was ordered to answer, but persisted in his refusal. The prosecutor produced a document purported to be the witness’ confession and read from the document, asking the witness every few lines whether he had made that statement, until the entire document was read to the jury. Id. at 416-417.
The Supreme Court held that, in the circumstances of that case, the petitioner’s inability to cross-examine the witness about the alleged confession denied him the right of cross-examination secured by the Confrontation Clause. The statements read by the prosecutor formed a “crucial link” in the proof against petitioner and were the “equivalent ... of testimony” that the witness made the statements. Id. at 419. Effective confrontation of the witness was possible only if the witness affirmed the purported confession as his. He did not and, instead, relied on his privilege to refuse to answer. Id. at 420. The Court held that this was not a “mere minor lapse” like Namet, and that the statements were a fundamental part of the government’s case against the petitioner. The circumstances were such that inferences from the refusal to answer added “critical weight” to the prosecution’s case in a form not subject to cross-examination, thus unfairly prejudicing the petitioner. Id. at 420.
A third Supreme Court decision, Frazier v Cupp, 394 US 731; 89 S Ct 1420; 22 L Ed 2d 684 (1969), further explores the ground of error articulated in Namet that was utilized in the Confrontation Clause analysis of Douglas. The petitioner argued that the prosecutor made remarks in his opening statement that prejudiced him. The petitioner had been indicted jointly with his cousin, who pleaded guilty of the same offense. The petitioner’s defense counsel told the prosecutor that the cousin would invoke his Fifth Amendment privilege if called to the stand and warned the prosecutor not to rely on his testimony in his opening statement. The prosecutor independently investigated the matter and believed, on the basis of questioning the cousin’s probation officer, a police officer who had spoken with the cousin, and some relatives that the cousin indeed would testify. Id. at 733.
Because of that investigation, the prosecutor included a summary of the cousin’s expected testimony in his opening statement. When called to the stand, the cousin indicated that he would assert his privilege against self-incrimination regarding any question related to activities in question. The matter was not further pursued and he was dismissed from the stand. Id. at 734. The petitioner argued that the substance of his cousin’s statement was placed before the jury as the equivalent of testimony not subject to cross-examination and added substantial weight to the prosecution’s case. Id. at 734.
The Supreme Court considered whether the petitioner was denied his confrontation rights as guaranteed by the Sixth and Fourteenth Amendments. Although the “question . . . posed [was] not an easy one,” the Supreme Court disagreed with the peti tioner. Id. at 734-735. Unlike Douglas, the witness was on the stand for a short period, only a paraphrase of the statement was put in front of the jury, and it was not done while the witness was on the stand. Moreover, the statement was not vitally important to the prosecution’s case. Under these circumstances, the instruction to the jury that counsel’s statements were not evidence was sufficient to protect the petitioner’s constitutional rights. Id. at 735. The crux of Frazier is that an inference was not likely to be drawn because of the separation of the opening statement, which only paraphrased the expected testimony, from the questioning of the witness.
The instant cases are unlike Douglas, where a purported confession of a codefendant was placed before the jury through the prosecutor’s questions, to each of which the witness asserted the Fifth Amendment privilege. No statements or other evidence was presented to the jury that was the “equivalent ... of testimony.” In Namet, the witnesses offered much other substantive testimony apart from their assertions of the Fifth Amendment to a few questions. The defendant was able to cross-examine the witnesses about the substance of the testimony that was actually put before the jury. Here, there was no substance on which the defendants could cross-examine the witnesses.
In Frazier, substantive proposed testimony was put before the jury in the prosecutor’s opening statement. However, because of the separation of the opening statement from the witness’ refusal to testify on the stand, the fact that the proposed testimony was not critical, and because of the general limiting instruction, this was held not to be constitutional error.
The present cases are most like Frazier. In fact, they are far less close to constitutional error than the facts in Frazier. No substantive testimony was placed before the jury. In particular, we note the absence of any claim in Frazier that merely placing the witness on the stand and having the witness assert Fifth Amendment rights was, by itself, constitutional error. The Supreme Court found no constitutional error in circumstances similar to the present circumstances, even with the additional aggravating factor of putting proposed substantive testimony before the jury in an opening statement.
We would hold that in both Geams and Thomas no Confrontation Clause violation occurred. A defendant has the constitutional right to confront witnesses against him, primarily secured by the right to cross-examination. See Douglas, supra at 418. In the instant cases, there was no testimony given by the witnesses on which the defendants could have cross-examined them. In Geams, the witness was asked one question, to which he responded by asserting his Fifth Amendment privilege. That he lived with his brother was subsequently established by the prosecution, and, thus, this only supported a fact already established by other testimony. See Namet, supra. The prosecution subsequently asked Gregory Geams if he had been granted immunity, to which he responded affirmatively. In Thomas, the witness was also asked one question, to which he articulated his refusal to testify and his desire for a “legal representative.” In neither case was any substantive evidence, in the form of testimony or its equivalent, placed before the jury.
Our position is supported by the general Confrontation Clause jurisprudence of the United States Supreme Court. First, the principal protection provided by the Confrontation Clause to a criminal defendant is the right to conduct cross-examination. Pennsylvania v Ritchie, 480 US 39, 51; 107 S Ct 989; 94 L Ed 2d 40 (1987); Delaware v Fensterer, 474 US 15, 18-19; 106 S Ct 292; 88 L Ed 2d 15 (1985). Moreover, the Confrontation Clause only guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Fensterer, supra at 20; Ritchie, supra at 53; People v Bushard, 444 Mich 384, 391; 508 NW2d 745 (1993) (emphasis in original). Finally,
[t]he Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony. [Fensterer, supra at 21-22; United States v Owens, 484 US 554, 558; 108 S Ct 838; 98 L Ed 2d 951 (1988) (emphasis added).]
Implicit in the Supreme Court’s Confrontation Clause jurisprudence is that a witness must put forth some testimony before the defendant’s right of confrontation comes into play. A defendant has no right to confront a witness who does not provide any evidence at trial. People v Scheidt, 182 Colo 374, 384; 513 P2d 446 (1973), citing United States ex rel Meadows v New York, 426 F2d 1176 (CA 2, 1970). A mere inference is simply insufficient for a Confrontation Clause violation.
The core of the Douglas decision was that the “equivalent ... of testimony” was placed before the jury. While the “critical weight” theory is articulated in terms of “inferences,” we must emphasize that it also requires these inferences to be a form “not subject to cross-examination.” A defendant is only guaranteed an opportunity for cross-examination; however, there must first be something of substance to cross-examine. We agree with the Colorado Supreme Court that, where a witness does not testify about matters beyond preliminary information, i.e., matters that have no bearing on the outcome of the case, there is nothing for the defendant to cross-examine, and the policies underlying this constitutional right do not come into play. Scheldt, supra at 384. Thus, before a defendant can be denied effective cross-examination, some substantive testimony or its equivalent must come to pass in order for the right to confrontation to arise.
We now turn to the second possible ground for constitutional error articulated in Namet, which implicates due process. The second theory is based on a concept of prosecutorial misconduct, where the government makes a “conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” Id. at 186. The Namet Court found significant that the first witness invoked the privilege with regard to one question and the other only with regard to four questions. These few lapses, viewed in the context of the entire trial, did not amount to a deliberate attempt by the government to “make capital” out of the refusals to testify. Id. at 189. Thus, prosecutorial misconduct as a ground for evidentiary error was not satisfied.
The Supreme Court has not definitively addressed whether prosecutorial misconduct can violate a defendant’s constitutional rights in this context. However, the “touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v Phillips, 455 US 209, 219; 102 S Ct 940; 71 L Ed 2d 78 (1982). This Court has also repeatedly articulated the principle that, in reviewing claims of prosecutorial misconduct, it must be determined whether the conduct rose to such a level as to deny the defendant a fair trial. People v Bahoda, 448 Mich 261, 267; 531 NW2d 659 (1995), People v Allen, 351 Mich 535; 88 NW2d 433 (1958), and People v Hammond, 394 Mich 627; 232 NW2d 174 (1975). Thus, the “Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v Van Arsdall, 475 US 673, 681; 106 S Ct 1431; 89 L Ed 2d 674 (1986); People v Reed, 449 Mich 375; 535 NW2d 496 (1995).
The Supreme Court declined to address this issue in Frazier, but did not rule out that prosecutorial misconduct in this context can result in a constitutional violation. The prosecutorial misconduct in this situation, thus, should be analyzed just as any claim of alleged prosecutorial misconduct. Utilizing the Supreme Court’s due process analysis for prosecutorial misconduct, the issue then becomes whether the conduct rose to such a level as to deny the defendant a fair trial in violation of due process. The Supreme Court held that the proper inquiry is not the fact of the prosecutor’s misconduct, but, rather, its effect on the trial. Smith, supra at 220. Thus, prosecutorial misconduct alone does not require a new trial. Id.
We also find it helpful to turn to cases from our sister states, which have grappled with the issue of prosecutorial misconduct in this context. The Arizona Supreme Court decided whether a defendant was denied the right to due process and a fair trial in State v Corrales, 138 Ariz 583; 676 P2d 615 (1983). First, the court held that merely calling a witness to the stand and procuring his invocation of the privilege is not a violation of either prong of the Namet rule. Id. at 589. However, after the witness’ assertion of Fifth Amendment rights, at which time the prosecutor had determined that the witness would do so despite the court’s ruling that it was not available, the proper procedure would have been to so instruct the witness and determine whether he would obey the instructions. Id. If the prosecutor found that the witness would follow his attorney’s instructions and refuse to testify, rather than the court order, then the witness could be withdrawn and “no serious harm would have occurred.” Id.
However, in Corrales, the prosecutor continued questioning the witness and asked leading questions that connected the defendant to the witness in the commission of the crime. Id. at 590. Moreover,
[t]he fact that it was permissible to call [the witness] to ascertain whether he would take the fifth amendment did not make it permissible to continue asking him questions after it had become apparent that he would take that privilege. The law is quite to the contrary. Prosecutorial insistence in asking prejudicial questions depicting a defendant’s involvement in the crime after it becomes clear that the witness-alleged accomplice has refused and will continue to refuse to testify is an attempt to build the prosecutor’s case out of inferences arising from use of the testimonial privilege and is misconduct. [Id. at 591 (citations omitted).]
The instant cases stand in stark contrast to Corrales. We have no “[p]rosecutoiial insistence in asking prejudicial questions depicting a defendant’s involvement in the crime . . . Once the initial assertions of the privilege occurred, both prosecutors ceased questioning the witnesses. Gregory Geams was asked if he had been granted immunity; however, that still did not depict defendant’s involvement in the crime. Thus, the prosecutors in these cases did not attempt to build their cases on inferences drawn from a witness’ assertion of the testimonial privilege.
In deciding that no prosecutorial misconduct occurred, the Massachusetts Supreme Judicial Court found that because the prosecutor only questioned the witness once, included no “facts” in the form of leading questions, and made no comment about the witness’ recalcitrance in his closing argument, there was no showing that the prosecution consciously sought to build its case out of inferences arising from the witness’ silence. Commonwealth v Kane, 388 Mass 128, 138; 445 NE2d 598 (1983). The present cases fall within the requirements of Kane. While in Geams, the prosecution’s mention of the grant of immunity was probably not the most prudent course of action, it still does not rise to the level of building its entire case from inferences arising from the refusal to testify.
The Delaware Supreme Court found neither a due process nor a Confrontation Clause violation where the witness waived his Fifth Amendment right, the state was entitled to call the witness because his pre vious testimony implicated the defendant, the record did not establish that the witness would refuse to give any testimony, the witness answered preliminary questions before asserting Fifth Amendment rights, and the state’s questioning of the witness that prompted the refusal was directed solely at the witness’ role in the crime, not the defendant’s. McBride v State, 477 A2d 174, 186 (Del, 1984).
In the instant cases, the only factor arguably satisfied is that it was well established that the witnesses would refuse to testify. However, this is simply not enough to constitute a due process violation, denying either defendant a fair trial. This is so in light of the Supreme Court’s admonition that prosecutorial misconduct alone is insufficient for the grant of a new trial (see Smith, supra) and that merely calling a witness to the stand, even knowing that he will assert Fifth Amendment rights, does not rise to the level of constitutional violation. See Corrales, supra.
This analysis is supported by the Wisconsin Supreme Court, which made an important distinction between cases finding prejudicial error and those that did not by holding that the controlling factor was not that prosecution called the witness to the stand, but rather that it put questions to the witness, which if not answered, would lead to the inference that the answers, if given, would be unfavorable to the defendant. Price v State, 37 Wis 2d 117, 125; 154 NW2d 222 (1967). Thus, calling a witness to the stand, even if the prosecutor knows that the witness will assert Fifth Amendment rights, does not, by itself, deny a defendant a fair trial or due process of law. Namet and its constitutional progeny require far more to establish a conscious and flagrant attempt to build a prosecution case from inferences arising from assertions of testimonial privilege.
IV
Because we have concluded that no constitutional error occurred in these cases, we must now determine whether evidentiary error occurred. We conclude that in both cases evidentiary error did occur. This Court’s decision in Giacalone, supra, forms the foundation of this evidentiary error analysis. In Giacalone, the defendant and two others were charged with armed robbery. One, Jolly, was tried separately and convicted. Jolly’s attorney advised the judge and other counsel that Jolly would assert his Fifth Amendment privilege and refuse to testify. The prosecution called him to the stand and asked two questions, to which he responded by asserting his Fifth Amendment privilege. Id. at 644. This Court held on the basis of an ethical rule of conduct that an attorney may not call a witness knowing that he will claim a valid privilege not to testify. We recognized that when an
“alleged accomplice invokes the privilege in the presence of the jury, prejudice arises from the human tendency to treat the claim of privilege as a confession of crime, creating an adverse inference which an accused is powerless to combat by cross-examination.” [Id. at 645, quoting State v Allen, 224 NW2d 237, 241 (Iowa, 1974).]
We again addressed this issue in People v Dyer, 425 Mich 572; 390 NW2d 645 (1986), in which the defendant wanted to put a witness on the stand solely to have him assert his Fifth Amendment privilege in front of the jury in order to support his defense that someone else (the witness) committed the crime. This Court, in reversing the Court of Appeals, explained that the Giacalone rule applied to the defense as well as the prosecution. Id. at 581. The witness in Dyer was neither an accomplice nor a codefendant. Id. at 578. However, this Court agreed that answering any questions regarding the evening of the defendant’s arrest or the witness’ presence at the scene of the crime might have tended to incriminate the witness. Id. at 579.
The prosecution in Thomas takes issue with the Court of Appeals holding that “inherent prejudice” results when an individual who is connected to the criminal episode or to the defendant invokes his Fifth Amendment privilege in front of the jury. The prosecution also contends that Court of Appeals decisions have eroded this Court’s requirement that a valid privilege be asserted. While the prosecution agrees that invalid assertions of privilege may be as prejudicial as valid assertions, it does not follow that the validity of the privilege has no bearing at all. The invalidity creates a real possibility that the witness may have a change of mind; it is relevant to the prosecutor’s good faith.
Defendant Thomas responds by explaining that Mr. Gee repeatedly refused to testify and neither immunity nor contempt changed his mind. There is no indication that the prosecutor thought Mr. Gee would change his mind and testify, nor was there any evi dence to suggest that he would. If the prosecutor needs to explain the absence of a witness, that should be cured by an instruction, not by putting the witness on the stand to refuse to testify.
The prosecution in Gearns maintains that it was not certain that Gregory Gearns would assert his Fifth Amendment rights because he had been advised by his attorney that he must testify and because of his attorney’s assertion that he could not be held in contempt until he was called to the stand and asserted Fifth Amendment rights before the jury.
The people are correct that Giacalone and Dyer speak in terms of a valid privilege, although this was not directly at issue in either case. The Court of Appeals has expanded on Giacalone, and the prosecutors in these cases urge this Court to reverse that trend. In People v Poma, 96 Mich App 726, 731; 294 NW2d 221 (1980), the Court of Appeals held that the validity of a witness’ privilege has no bearing on the prejudice to the defendant that results when an “intimately connected” witness asserts Fifth Amendment rights on the stand. The Court of Appeals also outlined certain procedures that must be followed:
The court should first hold a hearing outside the jury’s presence to determine if the intimate witness has a legitimate privilege .... This determination should be prefaced by an adequate explanation of the self-incrimination privilege so the witness can make a knowledgeable choice regarding assertion. . . .
If the court concludes that the witness has no legitimate privilege, it should consider contempt penalties or other alternate remedies against the witness. Yet, with respect to the defendant, the court must proceed to determine if the witness intends to assert that privilege, whether validly or invalidly, at trial. If the intimate witness intends to claim the protection of the Fifth Amendment at trial, there really is no way to prevent prejudice to the defendant absent barring that witness.
We hold that it is inherently prejudicial to place a witness on the stand who is intimately related to the criminal episode at issue, when the judge and prosecutor know that he will assert the Fifth Amendment privilege. When a judge determines at the evidentiary hearing that the intimate witness will either properly or improperly claim the protection against self-incrimination, he must not allow this witness to be called to the stand. [Id. at 732-733 (citations omitted).]
On the basis of our precedent, we must first determine how the witness’ status as an “intimate witness” affects the inquiry. Next, we must determine whether the validity of the privilege is controlling in this analysis. Third, we will discuss the procedures outlined by the Court of Appeals in Poma. Finally, we will address whether any limiting instructions are necessary in these cases.
Dyer and Giacalone stand for the proposition that it is an ethical violation for an attorney to put a witness on the stand knowing that the witness will validly assert the Fifth Amendment. However, where the possible prejudice comes into play is when the witness is an accomplice or codefendant or, as in Dyer, is intimately connected to the crime, although neither as an accomplice nor as a codefendant. Obviously, for there even to be possible prejudice to the defendant, the witness must be substantially related to the criminal episode at issue.
While the requirement of a witness’ status as an “intimate witness” is not usually a contested issue, the Pennsylvania Supreme Court clearly articulated this requirement when it held that
the prosecution, once informed that a witness intends to claim a privilege against self-incrimination, commits error in calling that witness to the stand before the jury where the witness is a person (co-defendant, accomplice, associate, etc.) likely to be thought by the jury to be associated with the defendant in the incident or transaction out of which the criminal charges arose. [Commonwealth v DuVal, 453 Pa 205, 217; 307 A2d 229 (1973).]
The people in both cases argue that the witnesses were not accomplices. However, the witness in Dyer was neither an accomplice nor a codefendant, but was simply present at the scene of the crime. Mr. Gee was also present at the scene of the crime in circumstances similar to those presented in Dyer. Gregory Gearns was obviously intimately involved in the criminal episode because he had been granted immunity as an accessory after the fact. Without this critical element, the possible prejudice to the defendant does not exist.
Next, we agree that the validity of the privilege is not necessarily controlling in this evidentiary error analysis. While this issue first became jurisprudentially significant in the context of valid assertions of testimonial privileges, the validity of the privilege does not address the central issue at hand. If the concern is the possible prejudice to the defendant, then why focus on the validity of the witness’ constitutional rights? While the key difference between the constitutional error analyses above and the evidentiary error analysis is the good faith or knowledge of the prosecutor, we do not believe that the validity of the privilege as determined by the trial court is absolutely controlling in determining whether the prosecutor acted in good faith.
Giacalone did emphasize both the validity of the privilege and that an accomplice was invoking it. However, we also noted that evidence is traditionally excluded where effective cross-examination is difficult to obtain, such as hearsay. Id. at 646, n 6. Under this basis for our holding, the validity of the privilege does not appear controlling. Moreover, the validity or invalidity of the privilege does not focus on the real issues: Does the prosecutor know that the witness will refuse to testify and will the defendant suffer possible prejudice? Merely because the privilege may be invalid does not negate the prosecutor’s knowledge or satisfy his ethical responsibility under Giacalone. Moreover, the invalidity of the privilege does not rebut the possibility of prejudice to a defendant.
Other jurisdictions have decided this issue and the courts are split. The Pennsylvania Supreme Court expressed its disagreement with courts holding that the privilege must be valid:
We disagree with those jurisdictions in which it is held that the prosecution may with impunity call before the jury a witness likely to be associated with the defendant in the minds of the jurors, knowing that a privilege against self-incrimination will be claimed and yet believing that the claim of privilege will be legally invalid. [DuVal, supra at 216.]
The court noted that it was probably even more prejudicial to a defendant to observe a recalcitrant witness electing to remain silent, notwithstanding a court order to testify. Id. at 217. Requiring the privilege to be valid may seem like a simple bright-line rule; however, it does not address that the source of the error lies in the prosecutor knowingly putting a witness on the stand who is going to assert a privilege, not in whether a witness is properly exercising a testimonial privilege.
The dissent asserts that if the trial court finds the witness’ privilege invalid, the prosecution has every right to put the witness on the stand, expecting the witness to comply with the obligation to testify. Thus, contrary to our conclusion, the dissent would hold that the ruling of the trial court does indeed negate the prosecutor’s knowledge. We fail to see how a prosecutor, in good faith, can believe that a witness who is willing to face possible criminal contempt charges and confinement when questioned in the presence of the trial judge, will suddenly have a change of heart and be less willing to face those same possible charges when faced with the jury.
In Geams, the witness’ attorney repeatedly advised the trial court that he believed Gregory Geams had a valid privilege and that the scope of the immunity grant was not sufficient. He indicated that his client would not testify. We fail to see how a prosecutor, in good faith, can believe that a witness will not heed the advice of his own counsel and suddenly become willing to testify merely because the jury enters the courtroom. In Thomas, the witness could not have made it more clear that he would not be testifying, even when faced with threats of additional prison time and after being granted immunity. The prosecutors had no reasonable expectation that these witnesses would testify. Therefore, the only reason to put such a witness on the stand was for the jury to see each witness assert his privilege. The impermissible inference is no less present when the privilege might be invalid. Moreover, the dissent would presumably permit a defendant to also place a witness on the stand whose privilege is deemed invalid by the trial court, obviously seeking the same inference we held impermissible in Dyer. We conclude that, in these cases, it was not reasonable for the prosecutors to believe that the witnesses would testify. Thus, the prosecutors committed the same misconduct we deemed evidentiary error in Giacalone and Dyer because they were armed with the knowledge that the witnesses would claim a privilege, in spite of the trial courts’ rulings that their privileges were invalid.
Additionally, compliance with the procedures outlined in Poma is really quite simple — the intimate witness must be given an opportunity to testify or assert his privilege outside the jury’s presence. The prosecution then has the information it needs to decide whether to request an instruction regarding the absence of the witness, Dyer, supra, and the defendant is not prejudiced by any possible adverse infer ence. This procedure protects the concerns and rights of both the people and the defendant.
Moreover, other courts have utilized procedures similar to those outlined in Poma. The DuVal court also noted what a “simple” procedure it was for the prosecutor to inform the court that a witness he intends to call will assert Fifth Amendment rights and obtain a ruling on the matter. DuVal, supra at 216; see also Allen, supra at 224 NW2d 241. Furthermore, the matter should be treated without the presence of the jury, and, if the court determines that the privilege is not valid, it should be determined outside the jury’s presence whether the witness will continue to refuse to testify. If the witness does refuse, contempt of court and removal should also take place outside the jury’s presence. DuVal, supra at 217.
Thus, the judge must hold a hearing outside the jury’s presence to determine if the witness’ privilege is valid, explaining the privilege to the witness. If the court concludes the privilege is not valid, it must determine whether the witness intends to proceed with asserting an invalid privilege. If the witness does so intend, then the witness may not be called. We agree that compliance with these procedures is simple indeed and protects the defendant while giving the prosecutor an important opportunity to “coax” a reluctant witness to testify.
Finally, we address the necessity of limiting instructions. We noted in Dyer that, where a party does not produce or call a codefendant or a witness to substantiate a claim of innocence or guilt, the jury may draw an adverse inference from the absence of this evidence. A neutralizing instruction explains to the jurors that they may not draw an inference from the absence of certain witnesses or engage in speculation about the possible nature of their testimony. Such an instruction, while not mandatory, should be given when requested to avoid prejudice. Dyer, swpra at 582-583.
It is clear that a limiting instruction should be used to explain the absence of a witness, if necessary. A defendant may also request an instruction that no adverse inference should be drawn from a witness’ assertion of a testimonial privilege, should that occur in front of the jury. However, a defendant, in particular, may not want to request such an instruction, thereby calling attention to the witness’ assertion of the privilege, just as the prosecution may not wish to request an instruction regarding a witness’ absence and, thus, call attention to that fact. Requesting either instruction is in the discretion of the trial attorney and is relevant to trial strategy. In sum, we would reaffirm our holdings in Giacalone and Dyer. It was error for the prosecutors in the cases at bar to call witnesses intimately connected to the crimes at issue, knowing those witnesses would assert their Fifth Amendment rights, validly or invalidly.
v
A
We now turn to the third issue that we must decide. This is the issue we recently left open in People v Mateo, 453 Mich 203; 551 NW2d 891 (1996), that is, what “level of assurance” a reviewing court must have for preserved nonconstitutional error under Kotteakos v United States, 328 US 750; 66 S Ct 1239; 90 L Ed 1557 (1946). We would adopt the highly probable standard as articulated in Mateo. While we find that evidentiary error occurred in both cases before us, we would hold that the people have proved that it was highly probable that, in the light of the strength and weight of the untainted evidence, the tainted evidence did not contribute to the verdicts.
The prosecution asserts that, but for the language of MCL 769.26; MSA 28.1096, that reversal cannot occur unless it shall affirmatively appear that the challenged error has resulted in a miscarriage of justice, we could define the term “miscarriage of justice” differently when different contexts are presented, such as where the error is unpreserved, by placing the burden of persuasion on the defendant, and where the error is preserved, as in Kotteakos, by placing the burden of persuasion on the prosecution. But, the prosecution contends that this language could only be interpreted as placing the burden of persuasion on the defendant, thus requiring the defendant to show by a preponderance of the evidence that the error during trial did have a substantial and injurious effect or influence on the jury’s verdict.
The prosecution also argues that the “level of assurance” discussion in Mateo seems “mistaken”: in the federal system the burden is on the government to demonstrate that nonconstitutional error did not have a substantial and injurious effect or influence on the jury’s verdict, leading to adoption of either the preponderance of the evidence or the highly probable standards, but in Michigan, MCL 769.26; MSA 28.1096 places the burden on the defendant to overcome the presumption that the error was not prejudicial.
Both defendants advocate the highly probable standard discussed in Mateo. There, we left open the level of confidence the reviewing court must have in the harmlessness of preserved error. However, this Court did note that the highly probable test may represent the appropriate test. Id. at 207. Furthermore,
[s]imply stated, and employed in both federal rule and case law and state statute and court rule, reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence. [Id. at 215.]
This Court seemingly approved former Chief Justice Traynor’s position that the highly probable test, which assesses whether it is highly probable that the challenged evidence did not contribute to the verdict, is the most appropriate. Id. at 219. Justice Traynor suggested that the highly probable test strikes the appropriate balance between protecting both the public’s and defendants’ interests in fair trials. Id. at 220.
We disagree with the prosecution that MCL 769.26; MSA 28.1096 places the burden of persuasion on the defendant for preserved nonconstitutional error. This Court held in Mateo that the statute does not impinge on this Court’s authority to determine practice and procedure, does not require a literal definition of miscarriage of justice, and is consistent with Kotteakos. Mateo at 206. Thus, now that we have received the appropriate assistance from the bench and bar that was lacking in Mateo, we adopt the highly probable standard.
B
We must now decide whether the people in these cases have proved that it was highly probable that the errors did not contribute to the verdicts. Defendant Thomas argues that Mr. Gee’s silence did invite improper inferences and, thus, that the prosecution has not proved that it was highly probable that the error did not contribute to the verdict. The prosecution’s theory of the case related to a “gang war” of sorts. Mr. Gee’s silence implicated defendant by permitting the inference that gang members are honor-bound not to turn against one another. Mr. Gee’s adherence to the code of silence strongly suggested the defendant’s guilt.
Defendant Geams also argues that the prosecution did not prove that it is highly probable that the error did not contribute to the verdict because, while the question asked of Gregory Geams might appear innocuous, the significance of the address was not innocuous in the circumstances of this case. The prosecution was careful to develop the fact that Gregory Geams lived with defendant from other witnesses and that the address was the last place the deceased was seen or heard alive. The prosecution further made a tremendous effort to establish the residence as the scene of the shooting. It also established Gregory Geams’ presence during the execution of the search warrant. Furthermore, it exploited the error by asking twice, over defense objection, whether Gregory Geams had been served with an order of immunity.
Circumstantial evidence primarily comprised the cases against both defendants. However, not only was the circumstantial evidence, as a whole, strong, the physical evidence connecting defendant Geams to the crime was substantial. We find the error to be harmless in the light of the strength and weight of the untainted evidence. In Thomas, the evidence was also circumstantial; however, strong evidence was presented placing defendant Thomas at the scene of the crime and establishing him as the shooter. Moreover, Mr. Gee asserted that he did not do anything wrong, thus negating somewhat any adverse inference that resulted from his refusal to testify. We also find this error to be harmless in the light of the strength and weight of the untainted evidence. In both Gearns and Thomas, we would hold that the people have proved that it was highly probable that the tainted evidence did not contribute to the verdicts. Thus, neither defendant was unfairly prejudiced by the evidentiary error that occurred at trial.
VI
In both cases before us, we hold that no constitutional error occurred and that, while evidentiary error did occur in both cases, it is highly probable that the errors did not contribute to the verdicts in the light of the strength and weight of the untainted evidence. We, therefore, would affirm the Court of Appeals decision in People v Gearns and would reverse the Court of Appeals decision in People v Thomas.
Mallett, C.J., concurred with Brickley, J.
The second is “based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” Id. at 186. This ground of error will be addressed below.
We note that while Namet implied that a valid privilege is required for an evidentiary error, the Douglas Court found it unnecessary to decide whether the witness properly invoked the privilege. It was sufficient in order to determine the Confrontation Clause claim that no suggestion was made that the witness’ refusal to answer was procured by the defendant. Id. at 420. Thus, the validity of the privilege is not a prerequisite to the finding of a Confrontation Clause violation.
The Supreme Court did hold, in Frazier, that a prosecutor’s good faith, or lack of it, is not controlling in determining whether a defendant has been deprived of the right of confrontation guaranteed by the Sixth and Fourteenth Amendments. Id. at 736.
Frazier left open the issue whether, under different circumstances, such an instruction would still be sufficient to protect a defendant’s constitutional rights.
The confession was inadmissible under that state’s rules of evidence. Id. at 418.
Because we find no confrontation violation, whether a general or specific limiting instruction would have cured this type of constitutional error need not be addressed.
Again, we emphasize that the Court in Namet specifically declined to address any constitutional issue, and the holdings therein were based on an evidentiary error analysis.
We note some overlapping in the Confrontation Clause and prosecutorial misconduct analyses. While the two grounds articulated in Namet present “distinct grounds of error,” often it is difficult to distinguish, factually, between a “conscious and flagrant attempt to build a case out of inferences arising from use of the testimonial privilege” and where such assertions of the privilege add “critical weight” to the prosecution’s case. It is important to note a critical difference in the analysis of the two issues. The focus of the prejudice inquiry in determining whether a defendant’s confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial. Delaware v Van Arsdall, 475 US 673, 680; 106 S Ct 1431; 89 L Ed 2d 674 (1986). This type of error is then subject to the harmless error analysis. Id. at 684. In contrast, the focus of any prosecutorial misconduct claim is the fairness of the entire trial; in other words, the outcome of the trial is the focus. See Smith v Phillips, 455 US 209; 102 S Ct 940; 71 L Ed 2d 78 (1982).
Because it agreed that the state reasonably could have expected the witness to testify in accordance with previous statements, it found no need to decide whether the fype of prosecutorial misconduct alleged to have occurred in Frazier would have been sufficient to constitute constitutional error requiring reversal. Frazier, supra at 737.
The court found that both prongs of Namet were violated and found both a due process/fair trial violation because of prosecutorial misconduct and a Confrontation Clause violation. Corrales, supra at 590 and 595.
This case involved the priest-penitent privilege, not the privilege against seK-incrimination. However, the court used the Namet analysis.
While this court was deciding a Confrontation Clause claim, we also find this distinction important in the due process analysis.
“A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify.” Giacalone at 645, citing the ABA Project on Standards for Criminal Justice.
Jeffrey Gearns’ attorney specifically requested that this procedure take place outside the presence of the jury.
As the Supreme Court noted in Frazier, supra, a prosecutor’s good faith is not controlling in a confrontation analysis. Moreover, the fairness of the trial is central to a due process analysis, not the culpability of the prosecutor. See Smith, supra.
The United States Supreme Court held, in the constitutional context, that it was unnecessary to decide if the privilege was valid because the refusal to testify was not procured by the defendant. Douglas, supra at 420. We note that this is also relevant in the evidentiary error analysis, and no evidence was presented in these cases that either defendant “procured” the refusal to testify.
Moreover, does a witness really have an obligation to testify if the trial court has erroneously determined the validity of his privilege? In this vein, we note another difficulty with the dissent’s analysis. It certainly raises concerns about the trial judge’s determination of the validity of the privileges at issue. Thomas argues that it is far from clear that Mr. Gee was asserting an invalid privilege. At the hearing, the court refused to appoint counsel to explain the privilege to him. Only after being offered immunity and being held in contempt for his refusal to testify was an attorney appointed for him. Only at that point did the attorney conclude that Mr. Gee did not have a valid right to assert his Fifth Amendment rights. In Gearns, it does not appear that the trial court employed the proper procedures for determining the validity of Gregory Gearns’ privilege.
First, the prospective witness must show, at the very least, that he is faced with some authentic danger of incrimination. United States v Cas tro, 129 F3d 226, 229 (CA 1, 1997), citing Hoffman v United States, 341 US 479, 486-487; 71 S Ct 814; 95 L Ed 1118 (1951). Because the privilege cannot be invoked on a blanket basis and thus operates question by question, the trial court must conduct a particularized inquiry. Id. at 229. The questions need not be directly incriminating for the privilege to attach. Moreover,
[i]f a reply to a seemingly innocuous question reasonably will tend to sculpt a rung in the ladder of evidence leading to prosecution, the privilege appropriately may be invoked. [Id. at 229; Hoffman at 486.]
The trial judge here conducted no such inquiry. It was established before trial, on the basis of information he gave the police, that Gregory Geams had a valid privilege regarding events after the murder. He was granted immunity as an accessory after the fact. However, he was asserting his Fifth Amendment privilege regarding events occurring before that.
It was apparently legal error for the trial judge in Geams to fail to conduct a particularized inquiry of Gregory Geams’ assertion of the privilege regarding events not covered by the grant of immunity. The prosecutor and the trial judge seemed to believe that this witness did not have a valid privilege because the prosecutor had no evidence of his involvement, except as an accessory after the fact. However, the validity of the privilege is not dependent on whether the authorities already have evidence against a person. The point of the privilege is to invoke the right to prevent the authorities from compelling a witness to give seft-incriminating evidence.
Moreover, “it is never within the trial court’s discretion to make a determination that is premised on an incorrect legal standard.” Castro at 229. Here, the trial judge relied on an incorrect legal standard; the validity of the privilege is not based on whether the prosecutor already has any evidence that would incriminate a witness. Gregory Geams was also later acquitted of contempt, which further evidences the real possibility that his privilege was indeed valid, contrary to the decision of the trial court. | [
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Cavanagh, J.
Defendant pleaded nolo contendere to one count of kidnapping and two counts of esc m. Defendant’s plea was conditioned on his right to appeal several issues, including the trial court’s refusal to preclude the victim’s in-court identification of him. The propriety of the identification is now before this Court.
i
On April 6, 1993, at approximately 4:30 A.M., the victim drove to the Econo Foods supermarket in Iron Mountain, Michigan, in order to pick up doughnuts for the guests of the Super Eight Motel. After coming out of the supermarket, the victim was abducted by a man hiding in the back seat of her car. The man brandished a knife and instructed the victim to drive to a secluded spot along a dirt road, where he ordered her to climb into the back seat. The man then forced the victim to disrobe, to kiss him on the lips, and to perform oral sex. Shortly thereafter, the headlights of a police car appeared behind the victim’s car. The man instructed the victim to put her shirt back on, climb back into the front seat, and drive away from the area.
After driving around for a while, the man instructed the victim to park along a residential street in Iron Mountain and once again had her climb into the back seat. This time he forced the victim to perform oral and vaginal intercourse. He then had her drive to a point near a gas station where he got out of the car. The victim returned to the Super Eight Motel and reported the incident to the police. She described her attacker as an unshaven, dark complexioned white man of medium build, about six feet tall, forty to fifty years old, with uncombed, dirty dishwater blond hair and odd looking lips. He had been drinking, smelled bad, and smoked a darker than normal cigarette.
The defendant ultimately became the prime suspect. The police took defendant into custody and arranged a corporal lineup. The victim tentatively identified the defendant as her assailant at the lineup. She made the following statement after the lineup:
I was called at 2:00 P.M. to come down to look at a lineup. I looked at eight people. Number six looked like him, but I can’t be sure. His eyes and face fit, but his lips were what threw me off. His eyes really look like the eyes I remember. I can’t be positive, but there is something about his eyes and face.
The police arrested and charged defendant with one count of kidnapping and two counts of third-degree CSC after the lineup. Later that evening, Officer Revord went to the victim’s home to inform her that the police had arrested a suspect. During the visit, Officer Revord showed the victim a single photograph of the defendant. After seeing the photo graph, she became sure that defendant was the one who attacked her. As she testified at the hearing on defendant’s motion to suppress the identification:
When I was relaxed after the line-up and I was at home, Officer Revord came over and he showed me the picture and it was at that time that I had no doubts that it was him.
The trial court denied a motion by defendant to prohibit an in-court identification of defendant by the victim, holding that although the use of the photograph by Officer Revord was improper, there was a sufficiently independent basis for the victim to identify Mr. Gray at trial. Pursuant to his plea agreement, defendant appealed the denial of his motion. The Court of Appeals declined to overturn the trial court, stating that the trial court’s conclusion that there were sufficiently independent grounds for an in-court identification was not clearly erroneous. We granted leave to appeal.
II
Defendant challenges the photographic identification procedure used by Officer Revord. He argues that Officer Revord impermissibly suggested to the victim that defendant was her assailant when he showed her a single photograph of defendant and told her that he was the man they had arrested in connection with her assault.
A photographic identification procedure violates a defendant’s right to due process of law when it is so impermissibly suggestive that it gives rise to a substantial likelihood of misidentification. People v Kurylczyk, 443 Mich 289, 302; 505 NW2d 528 (1993); Simmons v United States, 390 US 377, 384; 88 S Ct 967; 19 L Ed 2d 1247 (1968). In People v Anderson, 389 Mich 155, 178; 205 NW2d 461 (1973), we noted that an improper suggestion often arises when “the witness when called by the police or prosecution either is told or believes that the police have apprehended the right person.” Moreover, when “the witness is shown only one person or a group in which one person is singled out in some way, he is tempted to presume that he is the person.” Id.
In the present case, Officer Revord went to the victim’s residence, informed her that they had arrested the defendant, and showed her a single color photograph of the defendant. The display of the single photograph, combined with the statement that this was the man the police had arrested for the assault, was highly suggestive. To begin with, the exhibition of a single photograph “is one of the most suggestive photographic identification procedures that can be used.” Sobel, Eyewitness Identification (2d ed), § 5.3(f), p 5-42. This was accompanied by a statement from Officer Revord implicating the defendant as the assailant. Thus, the photographic showing in this case presented the exact situation warned of in Anderson: The defendant was singled out by showing only one photo to the victim, and then the victim was reassured that defendant was her assailant because of the statement by a police officer that this was the man the police believed was her assailant.
Although the suggestive photographic identification procedure in this case occurred after a legitimate corporal lineup, this case still presents the danger that once the identity of the victim’s assailant was suggested to her through the photographic identification procedure, she “may be likely to base later identifications of the suspect upon that photograph, rather than on [her] recollection of the crime.” Kurylczyk, 443 Mich 321 (opinion of Brickley, J.). As the United States Court of Appeals for the Second Circuit explained in Jarrett v Headley, 802 F2d 34, 41 (CA 2, 1986):
When the witness’s initial identification of the accused has been tentative and his later identifications are “positively certain,” there may be a question as to whether the newfound certainty resulted from impermissibly suggestive law enforcement procedures. Solomon v Smith [645 F2d 1179, 1185 (CA 2, 1981).] In Solomon, we concluded that the witness’s certain in-court identification of the petitioner should have been excluded because her initially tentative identification was followed by, inter alia, repeated showings of the selected photograph in isolation, a courtroom showup, a lineup in which the witness identified someone else as the culprit, and eventually a highly suggestive lineup from which the witness selected the petitioner. We reached the same conclusion in Dickerson v Fogg, 692 F2d 238, 241-[2]42, 244-[2]45 (CA 2, 1982), where the initially tentative identification was transfonmed into a positive one by the combined effect of the police officer’s conducting a showup, pressuring the witness into taking a second and third look at the suspect after his initial tentativeness, and then arresting the suspect in the witness’s presence. [Emphasis added.]
Here, the victim tentatively selected the defendant from the lineup as her assailant, but her identification was something less than one hundred percent positive. Defendant correctly argues that the victim claimed to become positive of her identification only after she was exposed to the second suggestive identification procedure. Moreover, defendant contends that the victim’s subsequent testimony about the first identification procedure was tainted by the second suggestive procedure. Thus, it is possible that the victim’s “newfound certainty” about her identification resulted from the impermissibly suggestive law enforcement procedures.
We also note that Officer Revord testified at the suppression hearing that he had not intended to show the photograph to the victim in order to identify the defendant. Rather, he stated that he went over to the victim’s house to let her know they had arrested the suspected assailant, so that the victim “could begin to rest a little easier.” When Officer Revord was at her house, he showed the victim a picture of the defendant he happened to have in his pocket because it “[j]ust kind of went with the name, you know.”
While Officer Revord’s intentions may not have been malicious, his subjective intent does not elimi nate the possibility of a substantial likelihood of misidentification. “[0]nly the effects of, rather than the causes for, pre-identification encounters should be determinative of whether the confrontations were unduly suggestive.” Thigpen v Cory, 804 F2d 893, 895 (CA 6, 1986). Therefore, even if Officer Revord truly only meant to placate the victim’s fears by showing her a photograph of the defendant, his actions nonetheless amounted to a highly suggestive identification procedure.
m
Our inquiry does not end once we have found an invalid identification procedure. The second step in our analysis is to determine whether the victim had an independent basis to identify the defendant in court. As we explained in Anderson, 389 Mich 169:
If there was no counsel at the pretrial identification or if the procedures were unnecessarily suggestive or conducive to irreparable misidentification, then before an in-court identification may be received in evidence, the trial court must hold an evidentiary hearing out of the presence of the jury at which the people must show by clear and convincing evidence that the in-court identification has a basis independent of the prior identification procedure. [Emphasis in original.]
The independent basis inquiry is a factual one, and the validity of a victim’s in-court identification must be viewed in light of the “totality of the circumstances.” Neil v Biggers, 409 US 188, 199; 93 S Ct 375; 34 L Ed 2d 401 (1972). We review the trial court’s findings for clear error. Kurylczyk, 443 Mich 303.
In People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), this Court listed the following eight factors that a court should use in determining if an independent basis exists:
1. Prior relationship with or knowledge of the defendant.
2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor[s] affecting sensory perception and proximity to the alleged criminal act.
3. Length of time between the offense and the disputed identification. . . .
4. Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual description.
5. Any previous proper identification or failure to identify the defendant.
6. Any identification prior to lineup or showup of another person as defendant.
7. . . . [T]he nature of the alleged offense and the physical and psychological state of the victim. “In critical situations perception will become distorted and any strong emotion (as opposed to mildly emotional experiences) will affect not only what and how much we perceive, but also will affect our memory of what occurred.” [Anderson,] 389 Mich 211. (Emphasis in original.)
Factors such as “fatigue, nervous exhaustion, alcohol and drugs,” 389 Mich 213 (emphasis in original), and age and intelligence of the witness are obviously relevant. Levine and Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U Pa L R 1079, 1102-1103 (1973).
8. Any idiosyncratic or special features of defendant. [400 Mich 95-96.]
We find the eight factors listed in Kachar relevant to our determination whether the victim in this case had a sufficiently independent basis to identify the defendant in court. We analyze this case under these eight factors, placing great emphasis on the second factor (the opportunity to observe the offense), and the fifth factor (any previous proper identification or failure to identify the defendant).
A. PRIOR RELATIONSHIP
In this case, there was no prior relationship with the defendant. The victim saw her assailant for the first time on the night of the assault. Therefore, this factor does not support finding an independent basis for identification.
B. OPPORTUNITY TO OBSERVE
This factor plays a significant role in the independent basis analysis. “The witness’s opportunity for observation during the crime is the factor most frequently considered in both independent source and reliability cases. Whether it is a supporting or negating factor depends on the facts of each case.” Sobel, Eyewitness Identification, supra at § 6.3, p 6-8. Generally, courts have found that the longer the crime, the better the witness’ opportunity to observe. Id. Moreover, courts have often “remarked that rape victims usually have a better opportunity to observe their assailants than victims or witnesses of other crimes.” Id. at § 6.3(a), p 6-13. For example, in Bigger s, the United States Supreme Court stated:
The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. [409 US 200 (emphasis added).]
Similarly, in the present case, the trial court properly found that the victim had adequate time and opportunity to observe her assailant. Defendant challenges this holding, arguing that the lighting during the time of the assault, as well as the position of the defendant in the back seat of the car, precluded the victim from getting a good look at her assailant. However, we find substantial support for the trial court’s conclusion.
First, the entire assault lasted for approximately one hour. Second, during this time, the victim was forced into intimate contact with the defendant. The victim testified on at least two separate occasions that she was forced to kiss the assailant on the lips. Additionally, when she was forced to have intercourse, she testified that the assailant’s head was “[r]ight in front of my face.” Third, the victim testified that even though it was dark when the assault began, she was able to get a good look at the assailant’s face because of the artificial light from Econo Foods, and because, by the time the assault was ending, it was already becoming daylight. On the basis of these facts, we conclude the trial court did not err in concluding that the victim did have a substantial opportunity to observe the assailant.
C. LENGTH OF TIME BETWEEN OFFENSE AND IDENTIFICATION
The assault occurred on April 6, 1993, and the identification occurred on May 2, 1993. This relatively short period between the assault and the identification ensures that the crime was still fresh in the victim’s mind, and should not weigh against finding an independent basis.
D. ACCURACY OF VICTIM’S DESCRIPTION WITH DEFENDANT’S ACTUAL DESCRIPTION
The victim’s description of her assailant was not extremely detailed. She described her attacker as a stocky white male, about forty to fifty years old, six feet tall, who was unshaven and had a receding hairline that was thinning on top, and who had an odd looking lower lip. Defendant’s actual description, as it appears in the affidavit for the search warrant is “[a] 43 year old white male, whose dob is 6/16/49, who is approximately 5’8” and weighs approximately 180-190 lbs., has blonde hair, high forehead and thinning hair on top . . . .”
We agree with the trial court that the defendant generally fits the description given by the victim to the police. However, because the description is rather vague, we accord it little weight in our analysis.
E. ANY PREVIOUS PROPER IDENTIFICATION
The victim saw defendant during a proper corporal lineup before the suggestive photographic display at her home. During that lineup, the victim focused on the defendant, but stated that she could not be sure that he was the assailant. In particular, she thought the defendant’s eyes and face fit those of her assailant, but that his bottom lip did not look like what she remembered. The victim later testified at the motion to suppress her in-court identification. There, she explained that her failure to positively identify the defendant was due to her erroneous belief that she had to be “100 percent positive” before she identified anybody. She further testified that she had “zoned in” on the defendant right away, and that she was “at least 95 percent” certain that defendant was her assailant.
While the failure to identify the defendant at a prior corporal lineup may in some circumstances negate the finding of an independent basis, we do not find that to be the situation in this case. The victim selected the defendant from the lineup, but was not absolutely positive that he was the assailant. This is not a situation in which “the defendant was among those exhibited but not selected by the witness.” Sobel, § 6.7, p 6-32.1. Rather, the defendant was tentatively identified at the lineup. See United States v Emanuele, 51 F3d 1123, 1131 (CA 3, 1995) (“Upon viewing her first photospread, Hottel recognized defendant as the robber. Her slight qualification — not being ‘one hundred percent sure’ — does not significantly diminish the import of that identification”).
Defendant argues that the victim’s testimony about her certainty at the first lineup is inherently tainted by the improper photographic display. In other words, the victim only became certain when she saw the photograph, and that her memory of the lineup has also been improperly influenced by the photograph. However, even if we limit our review to the victim’s statement that was made after the lineup, we still believe that the victim tentatively identified the defendant. In her written statement after the lineup, she stated:
Number six looked like him, but I can’t be sure. His eyes and face fit, but his lips were what threw me off. His eyes really look like the eyes I remember. I can’t be positive, but there is something about his eyes and face.
Even though she could not be absolutely certain, she still selected defendant out of the lineup.
In this case, the extent to which the victim’s testimony regarding the corporal lineup may have been influenced by the suggestive display of the photograph is an issue that speaks to the weight of the testimony rather than its admissibility. There is no question that the victim picked defendant out of the lineup; the only issue in dispute is how certain she was about the initial identification. Thus, the victim’s testimony addresses the level of certainty of the identification, not the existence of the identification itself. While this may be fertile ground for cross-examination, it should not prevent the introduction of the in-court identification.
In short, we find the victim’s identification at the corporal lineup a factor that weighs in favor of finding an independent basis for an in-court identification, even though it was less than one hundred percent certain.
F. IDENTIFICATION OF ANOTHER PERSON
To a certain extent, this relates to the discussion of the previous factor. The victim had not identified any other person as the assailant; she only identified the defendant.
G. THE PHYSICAL AND PSYCHOLOGICAL STATE OF THE VICTIM
We believe the trial court properly determined that “while [the victim] was very very nervous at the time of the contact between herself and the assailant, . . . she did not lose her senses and was in control of herself because she was thinking about her five children and her desire to see them again.” There is no evidence in the record that indicates the victim’s perceptions were distorted by her physical or psychological state to an extent that she would not be able to later identify her assailant.
H. IDIOSYNCRATIC OR SPECIAL FEATURES OF THE DEFENDANT
As discussed above, the victim had stated that the defendant had “odd looking” lips. During her testimony at the motion to suppress her in-court identification, the victim testified that, on the night of the assault, the assailant’s bottom lip “looked either big or swollen or something odd about it.” Given this testimony, we believe the trial court properly concluded that there was “no testimony on any special feature of the Defendant that would assist in the identification or would hinder a proper identification of the Defend ant.” The fact that defendant’s lip did not look “big or swollen” during the corporal lineup is not sufficient to prevent a finding of an independent basis for the in-court identification, given that it is possible defendant’s lip was no longer swollen by the time of the lineup.
IV
Our analysis of the facts in this case lead us to conclude that, although Officer Revord’s actions amounted to an impermissibly suggestive identification procedure, the victim in this case had a sufficiently independent basis for her in-court identification of the defendant. In particular, as the “victim of one of the most personally humiliating of all crimes,” Biggers, 409 US 200, she had more than sufficient opportunity to observe her assailant. Moreover, the victim tentatively identified defendant as her assailant in a corporal lineup before she was shown the suggestive photograph by Officer Revord. While the victim could not be one hundred percent positive at the lineup, she was sufficiently certain to be able to pick out the defendant. In this instance, any evidence of the victim’s lack of certainty would be relevant to the weight that the evidence should be given, but not to its admissibility.
In sum, we hold that the trial court did not err in denying defendant’s motion to suppress the victim’s in-court identification.
We affirm the decision of the Court of Appeals.
Mallett, C.J., and Brickley, Boyle, Weaver, Kelly, and Taylor, JJ., concurred with Cavanagh, J.
Defendant was represented by counsel at the corporal lineup. However, the attorney at the lineup was not the same person who served as trial counsel.
MCL 750.349; MSA 28.581.
MCL 750.520d; MSA 28.788(4).
Defendant also challenged his initial arrest on the ground that it constituted entrapment. The Court of Appeals held that the trial court’s ruling that defendant was not entrapped was not clearly erroneous. The entrapment issue is not before this Court.
US Const, Am XIV; Const 1963, art 1, § 17.
Indeed, this is the exact reason the Court must analyze whether the victim had an independent basis to identify her assailant in court. See part m. While a prior tentative identification may play an important role in establishing that the victim had an independent basis to later identify the defendant in Court, it does not eliminate the potential influence that a second, suggestive procedure may have on a subsequent in-court identification. In other words, the existence of a prior identification at a coiporal lineup in this case does not mean that a subsequent in-court identification is admissible per se. The Court must still determine, under the totality of the circumstances, whether the witness has an independent basis to identify the defendant.
This does not mean that the government’s intent is always irrelevant in determining whether a substantial risk of misidentification exists. In United States v Emanuele, 51 F3d 1123, 1129 (CA 3, 1995), the court explained:
[T]he government’s intent may be one factor in determining the risk of misidentification, but it is not an essential element of defendant’s burden of proof. A series of events that is suggestive and creates a substantial risk of misidentification is no less a due process violation, even absent evil intent on the part of the government. Stated differently, governmental intent is one of many factors in the totality of circumstances, but we expressly do not require defendant to establish the government’s state of mind. On the other hand, evidence that the government intended and arranged such an encounter would be a substantial factor in the court’s analysis.
Defendant also challenges the admission of the victim’s in-court identification on the basis of his right to counsel during a photographic identification procedure. Kurylczyk, 443 Mich 298. However, because we find that the identification procedure employed in this case was suggestive, it is unnecessary for us to further decide whether defendant was denied his right to counsel in this instance. The remedy for a violation of the right to counsel is the same as the remedy for an unduly suggestive identification procedure: suppression of the in-court identification unless there is an independent basis for its admission. Anderson, 389 Mich 169.
We note that the independent basis analysis does not apply to testimony about the suggestive identification procedure itself. “Direct testimonial evidence relating to the [suggestive] pre-trial out-of-court identification is per se excluded . . . .” Anderson, 389 Mch 169, citing Gilbert v California, 388 US 263, 273; 87 S Ct 1951; 18 L Ed 2d 1178 (1967).
The federal courts look to the five factors outlined in Biggers:
[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. [409 US 199-200.]
We find these factors substantially similar to those listed in Kachar.
Although we are not bound to follow Kachar because it was not signed by a majority of the justices participating, see Kurylczyk, 443 Mich 300, n 9, we adopt the use of the factors in this opinion. We note that the eight factors have been affirmatively cited in dicta by this Court in People v Carter, 415 Mich 558, 598-599; 330 NW2d 314 (1982), and also by Justice Boyle’s separate opinion in People v Lee, 434 Mich 59, 110-111, n 4; 450 NW2d 883 (1990) (Boyle, J., dissenting in part and concurring in part).
Because the independent basis inquiry is a factual one, not all eight factors will always be relevant to every case. Moreover, a court may put greater or lesser weight on any of the listed factors, depending on the circumstances of the case. Lastly, the eight factors listed above are not exhaustive. There may be certain facts in a given case that the court considers relevant to the inquiry, yet do not fit neatly in any one of the eight factors.
This is drawn from the victim’s testimony at the preliminary examination:
Q. All right. And then what happened after that?
A. He wanted me to kiss him.
Q. Did you?
A. I was crying and I didn’t want to and he started yelling then.
Q. All right. So you did then kiss him at that point?
A. (nods)
Q. And what happened in the back seat?
A. He had me — wanted me to kiss him again.
Q. And did you?
A. Yes.
The victim was responding to the following question:
Q. And when you had intercourse with the perpetrator, when you got on top of him, in which direction was his head?
A. Right in front of my face.
At the motion to suppress victim’s in-court identification, the victim was questioned extensively about the lighting during the assault. The following passage summarizes her testimony:
Q. And none of the other looks that you got of the attacker that night were as good as that one in the Econo Foods parking lot, correct?
A. Well, not necessarily because when he had me on I Street it was daylight out.
* * **
Q. So you’re saying that it was light out at this time, so you got a pretty good look at him then too?
A. When we were on I Street.
Q. Better than the look at Econo Foods?
A. About the same. It was light out in front where I was parked at Econo Foods.
The defendant does not argue that the original corporal lineup was impermissibly suggestive.
The victim testified that she was told she had to be one hundred percent positive by a person who was at the lineup, but that she could not identify. The trial court was unable to verify who this unidentified man was and exactly what he told the victim.
As explained in United States v Causey, 834 F2d 1277, 1285 (CA 6, 1987):
“[A] defendant is denied due process only when the identification evidence is so unreliable that its introduction renders a trial unfair. As long as there is not a substantial likelihood of misidentification, it is the function of the jury to determine the ultimate weight to be given the identification.” [Citations omitted.] | [
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Christiancy, Ch. J.
This was an action of trespass, brought by Hoffman against Harrington in the St. Clair circuit, for entering upon certain lots in the city of Port Huron, tearing down a fence placed around the lots by the plaintiff, and removing the sills of a house he was preparing to build there.
The evidence tended to show that, for some two years prior to the trespass complained of, the defendant was, and up to the time the plaintiff commenced building tbe fence,, continued to be, in possession of the lots, claiming to own them under certain deeds from the auditor general for delinquent taxes, and certain leases from the city for delinquent city taxes, as well as under a quit-claim deed from one Geel, who, the evidence tended to show, was one of the heirs of John Thorn, the patentee of the lands; and that he used the lots for storing spars, boom poles and other timber thereon, driving piles in front of the lots along the river and filling up portions of some of the lots with sawdust; though he had never fenced the lots, as a fence' would interfere with their use for such purposes; that on Friday or Saturday, the 18th or 19th of February, 1869, the plaintiff, having just then obtained the quit-claim deed of the lots from Hamilton (more particularly noticed hereafter), employed a number of men and teams, entered upon the lots, drew off the spars and timber of defendant, and in a hurried manner built a fence around the lots, and drew on some sills for a house. On the Monday following, Harrington drew part of his spars, etc., back upou the lots, •and tore down, or was tearing down, the fence, when he was forcibly resisted and driven off by Hoffman and his men. These acts of Harrington constitute what is claimed as the trespass in this case; and it was conceded ou the trial that these acts constituted a trespass for which the defendant was liable, unless his acts were justifiable as against the plaintiff.
Upon the evidence in the case, the court properly instructed the jury that the tax deeds and leases, under which the defendant claimed, were void; but that they might, nevertheless, be treated as color of title ; and if possession had been taken under them, they were admissible as tending to show what, and how much land defendant claimed. And the question of defendant’s prior and continued possession under claim and color of title was fairly submitted to the jury.
If the defendant was, at the time of plaintiff’s hurried entry and building of the fence, and had previously been, so in possession, it is clear, under the circumstances, not only that he had a right to enter, tear down the fences so recently and hurriedly put up, and to regain his possession, if he could peaceably do so, unless the plaintiff had the title, or the legal right of possession under the true owner; but it is equally clear that unless the plaintiff had such title or right, prior to his own entry, that entry and the building of the fence, and other acts done by him, made the plaintiff a trespasser in taking the possession, rather than the defendant for retaking it.
But the plaintiff claimed title through a sale and deed, claimed to have been made by one Hamilton, as administrator on the estate of John Thorn, the patentee, to one Minnie, a deed from the heirs of said Minnie to said Hamilton, and a subsequent deed of February 18th, 1869, from Hamilton to the plaintiff. The deed from Minnie’s heirs to Hamilton, and from the latter to the plaintiff, were duly proved, and no question arises upon them.
On the other hand, the deed from Geel to the defendant was made subsequent to the sale by the administrator,, and a question is raised whether this deed was intended to convey any interest Geel might have had or claimed as heir of Thorn, or only such interest as he had acquired by purchases for taxes.
But, as the deed from the administrator, if valid and sufficiently proved, must defeat the deed of Geel as to any interest he may have had as heir, whether he intended to-convey it or not, we will first consider the proof and the-validity of the alleged deed from the administrator.
As to the administrator’s sale, the bill of exceptions states that, “the plaintiff’s counsel offered the probate records, showing the appointment of Samuel W. Hamilton as administrator of John Thorn’s estate, and also tending to show sale of the lots in question to one Joseph P. Minnie, and the execution of a deed which had been lost.” As no deed was to be made by the administrator, till the report' of the sale made by him, and its confirmation (Rev. Stat. of 1846, ch., 77, § 21), and the confirmation of the report wouldl be the last entry upon the probate record, it is difficult to-see how that record could tend to show the loss of the-deed, if in fact it could have any tendency to show its-execution (Ives v. Ashley, 97 Mass., 205); yet, as I understand the language above quoted from the bill of exceptions,, it refers to the probate record as the evidence tending to show both the execution and the loss of the deed. Evidence, however, was subsequently given (which will presently be noticed) of the execution of the deed from the administrator, and of its being left with a third person for the purchaser, but no evidence of any search for the deed is-stated at all, and none of its loss, except that above quoted from the bill, which refers only to the probate record, as tending to show the loss. But, as it is possible the last clause above quoted from the bill may have been under •stood by counsel in framing the bill, as intended to state that “ evidence was also given tending to- show ” the loss; ¡and the counsel for defendant in error does not specially object that there was no evidence tending to show the 'loss, but only that the contents were not proved, I do not rest my opinion upon the point that there was no evideuce of the loss, but shall proceed to consider the case as if the loss had been shown. As to this objection, that the ■contents of the deed were not proved, I do not think it can be sustained (if the loss was shown). What are we to understand by the statements of the record, that evidence was given tending to show the sale of these lots by the •administrator to Minnie, and the execution of-a deed upon that sale, if it is not a sale and conveyance of these lots by the administrator to Minnie, and that such were the contents of the deed?
Hamilton testified that he “ made the sale as administrator ; made deed and left with one McAlpine, by arrangement with Minnie, for Minnie to get whenever he wanted it.” On cross-examination he testified “that it was the understanding between him and Minnie that Minnie should buy the lots to protect his” [Hamilton’s] “interest as a creditor, — he being the largest one, — of the estate; that Minnie did so bid; that there were other bidders at the sale, but Minnie was the highest bidder. It wras understood that Minnie should hold the land for his” [Hamilton’s] “benefit.”
The fact that Minnie bid in the land for the administrator, thus making the administrator’s sale indirectly to himself, is undisputed, and there is no evidence or pretense to the contrary.
The court charged the jury that if they believed this ■evidence, and that by an arrangement between the administrator and Minnie, the latter was to pay nothing for the lands, but was to convey them to the administrator, or to hold them for his special benefit, then, as matter of law, such sale was void as against the heirs of Thorn.
This charge raises the question of the validity of this deed, and if invalid as to any parties, the further question, how far its invalidity will affect the plaintiff as a purchaser from Hamilton, without notice of the facts rendering it invalid.
The statute (Rev. Stat, of 1846, ch. 77, § 18; Comp. L. 1871, ch. 168, § 18) provides: “The executor or administrator making the sale, and the guardian of any minor heir of the deceased, shall not directly or indirectly purchase, or be interested in the purchase of any part of the real estate so sold; and all sales made contrary to the provisions of this section shall be void; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward.”
It does not distinctly appear from the record when this administrator’s sale took place; though I infer from the judge’s statement in the charge, that John Thorn died not very long previous to 1864, and that this sale was made since the passage- of the above statute. At all events, as it devolves upon the plaintiff to show affirmatively the error of which he complains, his failure to show, by the bill of exceptions, when the sale was made, requires us to presume in favor of the correctness of the charge, that the sale was subsequent to this statute, if the statute upon that state of facts would justify the charge. I shall therefore proceed upon this hypothesis.
Now, if the purchase by Minnie, above stated, for the benefit of Hamilton, the administrator, does not constitute an “indirect purchase” by the administrator, within the plain meaning of this section, then it is impossible to assign any intelligible meaning to the prohibition. Had he purchased in his own name, the purchase would have been a direct one; procuring another to purchase for his benefit, is precisely what is intended by the statute as the indirect purchase intended to be prohibited. This is so plain that no one would insist upon the validity of such a deed, even as to a subsequent purchaser claiming through it, had the sale and deed been made directly to the administrator himself, or indirectly to a third person for his benefit, if, in the latter case, such subsequent purchaser had notice of the facts. But it is insisted that the sale and deed are good as to a subsequent purchaser without notice, and that they must therefore be held valid as to the plaintiff.
The statute, however, equally applies to, and equally prohibits and makes void such a sale, whether it be directly or indirectly made to the administrator, or for his benefit. It places such sales, whether direct or indirect, upon precisely the same grounds, and makes no distinction between them. It makes both simply and absolutely void, and, of course, illegal by its express enactments. If the invalidity can be waived in one case, it can also in the other. There is no exception or qualification, and no saving of rights in favor of purchasers of any' kind, with or without notice, nor in favor of any person whatever. And the question is, whether the courts can engraft such an exception or qualification . upon the statute as the legislature did not think best to adopt, and restrict a provision which they chose to make general and unqualified.
For myself, I think the statement of such a question is its own answer. To engraft such an exception or qualification upon this statute, unless there be some other statute with reference to which it was enacted, and which, when construed with this, would make such the combined effect of the two, would be an exercise of legislative power; it would be making or revising, not expounding or construing the law. Whether there be any other provision of our statutes to which this section is made subordinate, and which would have the effect to establish the qualification insisted upon, is another question which we shall examine in its proper place. But if there be none, we are bound to give the same full effect to this section, whether the purchase was made directly by the administrator, or indirectly for his benefit. Where a statute within the consti tutional power of the legislature expressly makes a transaction or contract void, and prohibits it, it makes it also illegal; and in all such cases it will be void as to all parties whose rights are not saved by the statute. This is too clear in principle to require the support of authorities. The statute of Ann made usurious contracts void without any saving clause in favor of the bona fide holder of commercial paper; and such paper was therefore held to'be equally void as to them as it would be between the original parties. — Chitty on Bills (9 Amer. ed.), 110; Wyat v. Campbell, 1 M. & M., 80. For other instances in illustration of the principle, see Kilpatrick v. Byrne, 25 Miss., 571; Hyatt v. Taylor, 42 H. Y., 258; Woodbury v. Berry, 18 Ohio St., 461 and 462.
In fact, I think the statute was only needed for just such indirect purchases as that before us. Our predecessors on this bench determined, in a case where the sale was made prior to this statute, that at common law a sale and deed made by two administrators to one of them, of the property of the estate, was void, and this, irrespective of the question whether there was in fact any fraud or not; and in this, I think, they were supported by the weight of authority. — See Dwight v. Blackmar, 2 Mich., 330. But where the sale to the administrator was indirect, in the name of another, it was somewhat questionable upon the authorities, whether the sale would not be held valid at law, and the party seeking to avoid it be driven to a court of equity. And the mischief to be guarded against — the temptation to fraud and collusion, and the difficulty of detection, the probable wrong and injury to result to heirs and creditors, if such sales were upheld — are just the same whether such sales be of the direct or the indirect kind.
But it may be urged that great injustice might be done to bona fide purchasers, unless such exceptions in their favor are allowed or implied. In reply to this it is sufficient to say, that the contest between such purchaser, on one side, and the heir, or his grantee (or creditors of the estate), on the other, is one in which the equities are not, or would not generally be, all on the side of the purchaser, but frequently just as strong in favor of the heirs, who would, in effect, be wrongfully deprived of their just rights or claims by allowing such exception in favor of the purchaser. The real question generally would be, whether the innocent purchaser, on one side, or the innocent heir, on the other, should bear the loss occasioned by the wrongful and illegal act of the administrator, and whether the mischief, on the whole, would not be greater by allowing the exception in favor of the purchaser, than by denying it, and throwing upon him the necessity of inquiry when the title under the administrator’s deed is denied. This, at least, was a question fairly within the province and discretion of the legisture, and which, therefore, they had the right to determine, and, as I think, have determined.
If it be. said that the general rule or principle which renders the sale by an administrator to himself, or to another for his benefit, void, was one which was well settled, both in courts of equity and at law (which I do not think was the case at common law, as to indirect sales) prior to the statute, but settled with such well known qualifications as would sustain the present sale, as to purchasers from Minnie or his heirs, without notice of the interest of the administrator in the sale made by him, and that the legislature, in passing this statute, intended it as a mere declaratory provision, adopting the rule as already settled by the courts, and subject to the same limitations and qualifications; it is sufficient to say, in reply, that this position necessarily assumes that the legislature knew and understood what had been the course of decision upon the question, and how far and with what qualifications the courts had adopted the rule or principle in question. There is no ground for assuming that the legislature were aware of the rule as adopted by the courts, but ignorant of the limitations and qualifications with which they had adopted it. They must be presumed to have known the qualifioa tions with which it had been adopted, as well as the rule or principle. When, therefore, the legislature, in so many words, adopted the rule absolutely, without qualification, where is the ground for any inference that, by such language, they intended to adopt the qualifications, as well as the rule? Is not the contrary inference much stronger? Would it not be better to say at once, “we will adopt the qualifications, though the legislature did not so intend, because, in our opinion, they ought to have made the provision subject to these qualifications?”
We are next to inquire whether there is any other statute with reference to which the section above cited was enacted, and which has the effect to establish the exception or qualification claimed in favor of the purchaser from Minnie’s heirs.
As the administrator’s deed to Minnie was not' recorded, the plaintiff did not purchase on the faith of its record. Had it been recorded, and had the plaintiff purchased on the faith of its record, without notice that the purchase was made for the administrator, the case would probably have come within the registry laws, upon the same principle that the deed from Thorn himself would have come within them, so far, at least, as regards questions of the kind here presented. But as the deed was uot recorded, and the plaintiff did not purchase on the faith of it, but well understood that the transmission of the Thorn title to Minnie depended wholly upon facts outside of the record, in other words, upon such parol evidence as might be found to furnish the necessary link, he should, as between him and the heirs of Thorn, or their vendees, be held to assume the risk of ascertaining the whole state of facts as they actually existed.
By section 52 of chapter 77, Revised Statutes of 184-6, (Comp. L. 1871, § 4596) it is enacted: “In case of an action relating to any estate sold by an executor, administrator or guardian, in which an heir, or other person claiming under the deceased, or in which the ward, or any person claiming under him, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear,” etc., then specifying five necessary prerequisites. If the deed from Geel to defendant conveyed any interest he might have had as heir of Thorn, then the defendant would stand in the position of an heir, and have the right to contest the sale on all the same grounds. If that deed is to be confined to his interest derived under tax purchases, then the defendant claimed adversely to the deceased, and under the BJ/ih section of the same chapter, the sale could “not be held void on account of any irregularity in the proceedings; provided it should appear that the administrator was licensed to make the sale, by a probate court having jurisdiction, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises.” These sections only provide that the sale shall not be held void for “irregularities,” provided the requisites specified in them respectively shall appear to have been complied with. The purpose of these sections, and what is meant by “irregularities,” cannot be mistaken; had the statute affirmatively specified in detail the several steps or acts, which it should be the duty of the administrator to take or do, the omission to take any one of these steps, or do any one of these acts, — not made essential to the validity of the deed by the two sections last cited respectively, — would constitute the irregularities which these sections declare shall not render the deed void; provided the matters made essential by these sections shall be proved. These sections, therefore, clearly contain nothing which modifies in any respect the 18th section, which is prohibitory, forbidding the sale to, or for the use of, the administrator, and declaring it void.
The 53d section, which makes the administrator and his-bondsmen liable for any of his neglect or misconduct, by which any person interested in the estate shall suffer damage, manifestly refers to cases in which the acts of the administrator, though wrongful, would be binding upon persons interested in the estate, and has no reference to a sale prohibited to be made at all, and expressly declared to be void if made. Persons interested in the estate can hardly be supposed to suffer legal damage from an act which is simply void and may at any time be treated as void, and as if it had never been done, and which therefore cannot affect their rights.
Nor does the 55th section in any way refer to or affect the 18th. It renders the administrator “ who shall fraudulently sell any real estate of his intestate contrary to the provisions of this chapter, liable in double the value of the land sold, as damages, to be recovered in an action on the case by the person having an estate of inheritance therein.” But this is only on the ground of actual fraud, and applies to no other cases, while section 18 makes the sales referred to void, irrespective of the question of fraud, and whether there has or has not been fraud in fact; and when thus void, it could not prejudice the rights nor divest the title of the person having the estate of inheritance in the land.
None of these sections, therefore, relate to, or modify the effect of, the 18th section, all having a different object and purpose; and I am aware of no other provision of our statutes which can be claimed to have any such effect.
The sale and deed made by the administrator must be held void, as to the heirs of John Thorn, as charged by the court, and, of course, as to all parties deriving title through any-of those heirs. ___
This ought, perhaps, to dispose of the case, as it can hardly be claimed that, under the circumstances shown, the plaintiff could maintain trespass without showing title. But as it is possible the jury might not have found the prior possession in the defendant up to the time of the plaintiff’s entry ;(or trespass), had that question been submitted to them un mixed with the question touching the G-eel deed, and they may have based their verdict for the defendant, in part at least, upon the title shown by him under that deed, we will consider the question raised upon that deed.
This deed is dated October 25th, 1864. Prior to this time Geel had purchased in the lands for the taxes of 1859, 1860,1861, 1862, and 1863; but the purchase for the latter year had just been made, and he would not be entitled to the deed for this purchase until nearly a year thereafter; and whether he had yet actually obtained deeds for all the prior sales, does not appear; if not, he subsequently obtained them, and they were introduced in evidence.
As, in my view, the bill of exceptions is somewhat defective for the purpose of distinctly raising the question relied upon by the plaintiff in error, I here quote from the bill all that is claimed to present the question: “The defendant’s counsel, to maintain the issue on his part, introduced a quit-claim deed from James M. Geel to the defendant, dated October 25th, 1864, describing the lots in question, in the usual form; and in the body of the deed, following the description of the lots, is the following language: ‘ This conveyance is intended to embrace all titles,and interests accruing for the purchasing, for taxes, delinquent or otherwise, up to and including the year 1863,’ as tending to show a conveyance to defendant of an interest in the land then held by said Geel, as heir of John Thorn, who it was conceded patented the land, and died seized of the same.”
The question is, whether this reference to the tax purchases, and the declaration of the intent to convey the interest accruing under them, confined the entire operation of the deed, as a conveyance, to such interests as Geel had thus acquired by tax purchase, so as to prevent its taking effect, as a conveyance, upon any interest he might have had as an heir of Thorn. It is obvious this question might depend much upon the form of other parts of the quit-claim deed, besides that portion stated in the record. And as it devolves upon the plaintiff in error to show affirmatively that error has been committed, the bill, in order distinctly to raise the point, ought regularly to have given a copy of the deed, or of all such parts of it as, in the common forms of quit-claim deeds in this state, would be likely to have any bearing upon the question. But allowing tbe plaintiff in error all that he could reasonably claim, and more than I think he is strictly entitled to -upon this record, I assume, for the purposes of this case, that the quit-claim deed was in some one of the ordinary forms generally used in this state. All the printed forms that I have seen in use in this state, and most of them which have been written out, use, as the words intended to operate as the conveyance, “bargain, sell, remise, release, and forever quit-claim.” Some may omit the words, “bargain and sellbut under our statute (Rev. Stat. of 1888, p. 258, § 6, re-enacted in 1846; Comp. L. 1871, § 4205), a quit-claim deed, of the form in common use, operates as a deed of bargain and sale, and is sufficient to pass all the estate the grantor could lawfully convey by deed of bargain and sale; and such a deed when, after the words of conveyance to the vendee and his heirs forever, it describes the lands intended to be conveyed or quit-claimed, will, of course, transfer to the party to whom it is given all the interest of the party making it, in the land described, unless there be some exception or reservation, or words indicating an intent to reserve or except some interest, or to confine the conveyance to a part only of the rights or interests which the party making the deed had • in the land and might have conveyed by the deed.
And so far as my own observation and experience (of thirty-seven years) have extended, I can safely say that in the usual form of quit-claim deeds in this state, as found in the printed blanks in common use, there follows, after the description of the land, general and sweeping language, intended to cover every possible interest the maker of the deed may or might have in the lands described; like that used in the quit-claim which came in question in Dubois v. Campau, Mich., 366 (or words equivalent in effect); which was held in that case to be important as showing the intent to convey all the grantor’s interest in the land, viz.: “Together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining; ‘and all reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and all the estate, right, title, interest, claim, or demand whatsoever of the said party of the first part, either in law or equity of, in, and to the above bargained premises, with the said hereditaments and appurtenances.” In some of the forms this is greatly abridged; but they generally, if not always, ■contain, after the description of the land, general language showing clearly the intent to convey all the interest the grantor, or person making the deed, had in the land; and such also is the form generally adopted in deeds which .are written out in full without the use of a blank form. In such a deed it seems to me very clear that the words which are to exclude from the operation of the deed any interest which the grantor (person making the deed) .has in the land described as conveyed, must operate as an exception or reservation, or at least evince a clear intention to reserve or except the interest which would otherwise ■pass; and that a mere affirmative declaration, after the description of the lands described as conveyed, that “this (conveyance is intended to embrace all titles and interests accruing from tax purchases, etc., up to and including the year 1863,” cannot be construed to operate as a negation upon, or exclude any other interest from, the operation of the deed, which the maker of the deed had at the time, 'and which would otherwise clearly pass. On the contrary, I think the very form of expression: “ This conveyance is intended to embrace” [which, in this connection, means nothing more than if he had said “ to include ”] “ the interests accruing from the tax purchases,” etc., involves an affirmative implication, of some slight force at least, that there were also other interests or titles being conveyed by the deed; and if it had been the intention to exclude such -other interests from its operation, and to convey only the interest accruing under these tax purchases, the grantor would not merely have said, “the intention of this instru ment is to embrace or include such tax interests;” but he would have said, at least, “ the intention of this conveyance is to convey only such interests as I may hold in said lands derived from purchases at tax sales.” Or there might have been more room for doubt, and more plausible ground for the construction claimed by the plaintiff in error, if the deed had merely said, “this conveyance being intended to convey” (instead of “embrace”) “these interests derived from tax purchases;” there would have been more reason for saying the intention was to confine the conveyance to those interests alone; but here it is only declared to be the intention to embrace or include those interests in the conveyance.
But it is asked, “ Why speak of the interest under the tax purchases at all, miless it was intended to confine the conveyance to that, as that interest would have passed without being mentioned?” This argument might have greater force, if it were not so very common to insert in conveyances of real estate many things which are wholly unnecessary, in the attempt to render the intention very clear, which, in unskillful hands, often ends in obscuring it. But I think the record itself furnishes matter for a probable explanation of this reference to the interests acquired by the tax purchases. Geel had made at least one of those purchases upon which he was not yet entitled to a deed; and it does not appear that he had then obtained the deeds on all his former purchases. The idea may therefore have occurred to the person drawing the deed, that, as a mere quit-claim would not convey an after acquired title (should the tax deeds be subsequently issued to Geel), it might be as well to declare expressly that the deed was intended to convey Geeks interests in all those tax purchases, so as to cover the case, whether they had been issued or not; hence, also, the express inclusion of that for the year 1868, upon which no deed could yet be obtained.
But whether such is the true explanation of the reason for inserting the clause in the deed, or not, I am satisfied the deed cannot be construed as confined to the interests under the tax purchases, without doing violence to its language, reversing the rule that a deed should be construed most strongly against the grantor, and adopting a latitude of construction which would be extremely dangerous in future cases.
This deed,ftherefore, was properly construed by the circuit judge, and, with the other evidence in the case, tended to show that he had obtained the interest of one of Thorn’s heirs in the premises; and upon that ground, as a tenant in common with the other heirs (few or many), was entitled to the possession as against the plaintiff.
Several other exceptions were taken, and errors assigned, but as they were not pressed by the counsel for the plaintiff in error, and upon looking into them we think it clear they are not well founded, we do not notice them here.
I think the circuit court was correct in all his rulings, and the judgment should be affirmed, with costs in both courts to defendant in error.
Cooley, J., concurred.
Graves J.
I am not able to agree with the chief justice, respecting the operation of the statute against a purchase by or in the interest of an administrator at his own sale.
Such a purchase was as fully forbidden by the common law as it is by this statute. — Beaubien v. Poupard, Harr. Ch., 206; Walton v. Torrey, ib., 259; Dwight v. Blackmar, 2 Mich., 380; Tufts v. Tufts, 8 Mood. & M., 456; Ames v. Downing, 1 Brad. Sur. R., 321; Woodruff v. Cook, 2 Ed. Ch. R., 259 ; Hawley v. Cramer, 4 Cow. R., 717; Hunt v. Bass, 2 Dev. Eg., 292; Walker v. Walker, 101 Mass., 169 ; Tiff, and Bull, on Trusts, 149. A large number of cases illustrating the doctrine and its application will be found in the American note to Fox v. Mackreth, 1 L. C. in Eq.
The provision was a mere re-enactment of the rule which the courts had laid down prior to its passage, and like many others, was simply intended as a legislative recognition of a doctrine developed by the tribunals and considered worthy of being made stable by adoption into the statute book.
In passing upon fiduciary transactions during a course of years the courts had settled upon the rule as one eminently just and politic, but they had also recognized certain principles to regulate its application, and without which it might be turned into an engine of mischief. And when the legislature came to revise and re-arrange a system of positive leading rules to govern in the case of sales by executors, administrators, and guardians, they appreciated the value of this one, and very naturally included it.
In doing this they did not change the law. They only made that positive which was not so before. They did not think it needful to go further and convert into positive law all the principles of application which had been found essential, any more than they thought it proper to forecast the principles of application which the possibilities of the future might require.
As the rule itself was no new thing, but something merely taken from the body of the unwritten law and put into the written code, it was natural to expect that it would be expounded and applied in the spirit of the common law and in harmony with the principles which had guided the courts before.
These principles were not set aside or impugned. They remained as vital as ever, and since the only change effected was in carrying this rule, which was already law, from the •unwritten to the written eodé, I cannot see why it should be administered in a new spirit and contrary to the principles natural fo it. They accompanied the rule into the statute book, as I think, and should be recognized in applying it.
If we reject these principles and take the provison as one to be applied in a sense as universal as the terms will literally allow, then every sale by an executor, administrator, or guardian, in which the trustee has an interest, how•ever secret, is ipso facto void, in the sense of being a nullity. It has no force whatever. It is bad as to everybody and all transactions.' No one is bound by it, and no one •can be benefited by or through it.
Whether the deed given on the public sale is recorded ■or unrecorded, whether a full price was or was not paid and applied for the estate, whether the sale was or was not •confirmed in regular form by the court, whether or not the party claiming title under it through a subsequent purchase bought in good faith for a full price and without notioe, can make no difference.
It never had effect'because the law forbade it. We are ■compelled to go to this length, or confess that such a sale is not made positively illegal and so completely nugatory. If not void as a sale, it must have some of the legal possibilities of a valid sale. There is no practical middle ground. We cannot stop short of the extreme view, without confessing that the law was. not intended to make such sales wholly ineffectual and inoperative, as to all persons and circumstances, non without admitting that they may avail to some purposes, and for and against particular parties, and hence that they are to be regarded simply as voidable, and not as nullities; and if we accept this conclusion, we tacitly admit that in applying the act we are not only authorized but required to mitigate its scope.
Now I understand it to be conceded that we ought to qualify its -operation. If we may do this, if we may say that such a sale is not a nullity but may have some force, by what principles are we to be governed? Where shall we pause ? What reason can be given for halting short of the view which was settled when the rule was worked into ithe statute?
Can any safer guide be imagined than that furnished by the principles which the courts had laid down, and which the legislature presumably contemplated when they made the rule positive ?
There is no question but that a statute may be cut short by the common law, and even a constitutional provision may have a modified application in consequence of a construction based on its original connection with clauses subsequently erased by amendment. — Fletcher v. Peck, 6 Cranch, 189.
If the sale is not to be considered as void in the sense of being a nullity, it is left as merely voidable, and hence sufficient except as against persons in position to complain and who move in season. And when the property has been re-sold to a Iona fide purchaser without notice, before an attempt to impeach the sale, it will stand, and such purchaser will be protected. This was the doctrine when the legislature transferred the rule, and it belongs to the rule.— Wyman v. Hooper, 2 Gray, 141; Jackson v. Walsh, 14 J. R., 407; Robbins v. Bates, 4 Cush., 104; Blood v. Hayman, 18 Met., 231; Lessee of Lazarus v. Bryson, 8 Binn., 54; Sweet v. Southcote, 2 Brown C. C., 66; Lowther v. Carlton, 2 Atk., 242; Brandlyn v. Ord, 1 Atk., 571; Ferrars v. Cherry, 2 Vernon, 383.
The equity of the bona fide purchaser is deemed at least equal to that of the heir or his vendee, and as he holds the formal legal muniment of title, his right is considered superior. — Hill on Trusts, 504; Tiff. and Bull, on Trusts, 199, 200; Story Eq. J., § 434.
Whether the plaintiff, who bought of Hamilton, had notice of Hamilton’s misconduct, we do not know, and cannot determine. I think, however, it cannot be laid down as a rule of law that he could not hold the character of an honest and fair purchaser, and with the full rights of one buying in good faith and without notice, simply because as matter of fact when he bought the administrator’s deed-to Minnie had not been put on record, ft is not perceived how that deed, or the record of it, could have shown or suggested the secret collusive arrangement between Hamil-" ton, as administrator, and Minnie: and yet it is in consequence of that underground transaction that the title of the plaintiff is sought to be invalidated. It appears to me that the theory advanced is neither necessary or politic. The law in question rests on particular and on general grounds: First, It aims to protect heirs, and others directly interested in estates, against a specific kind of fraud; and, second, as a measure of general policy it would preclude the fiduciary from putting his interest in competition with his duty.
But neither of these grounds is intended to be carried .so far as to produce consequences more mischievous than beneficial.
It is in the last degree indispensable to give all reasonable credit and confidence to these fiduciary sales, and to the titles founded on them. They are a necessity, and their utility, and indeed their very being as practical transactions, depends upon the general opinion of their solidity. The law every where recognizes their necessity, and aims to make them eventuate in producing fair values. A very large number of titles are now held under such sales, and in a course of years the whole real property in the state will rest on titles so derived. But if every such title, in the hands of a fair and honest buyer without notice of any thing wrong, is to be subject to be overhauled and upset because it can be proved that the official trustee had in fact some secret interest in the sale, a sale judicially confirmed and apparently legal, the deep and indispensable policy of the law, in favor of these sales and their productiveness, will be thwarted, if not completely defeated, and a numerous class of blameless persons will be despoiled and injured.
Against public frauds and public misconduct a man may be able to guard. If the ear-mark of fiduciary misbehavior is borne by the title papers, or by the record, the purchaser can detect the vice. Bnfc secret collusive arrangements, which leave no sign of irregularity, may baffle the vigilance of the most prudent. Against such artifices the purchaser cannot guard. To be safe, a man must refuse every title exposed to such possibilities.
As I see nothing in the statutory recognition of the principle forbidding fiduciary misconduct which implies a design to lessen or impair the rights of .honest purchasers, or one looting to any change in the application of the principle itself, I am not ready to assent to the view so strongly set forth by the chief justice.
Campbell, J., concurred.
The court being equally divided on the main point, but all agreeing that no other error was committed, the judgment below was affirmed. | [
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Cooley, J.
The questions in this case mostly arise upon the several instructions given to the jury.
The first was erroneous, because it assumed that all the evidence tended to prove the same contract, and that that was the contract declared upon. Three witnesses testified to their understanding of the agreement: one, that the
wool was to be delivered at the convenience of defendant; another, that the delivery was to be within two weeks; while defendant testified that plaintiffs’ agent, on the Friday or Saturday of the week when the bargain was made, was to notify him when delivery should take place. The court could not assume that the jury would believe one of the witnesses rather than another, and the contract, as testified to by defendant, was clearly not such as had been counted upon.
The second was erroneous. It assumed that an agreement to deliver on notice given at a time agreed upon, Was the same as an agreement to deliver at such indefinite time as should be reasonable under the circumstances.
The third would have been proper enough had there been any evidence in the case to base it upon; but we find none. It was not shown that any purpose the plaintiffs might have had as to marketing or making use of the wool was communicated to defendant.
The fourth was erroneous for the same reason as the first. If the contract was as defendant states it, notice to deliver was essential.
The fifth was correct if the contract declared upon was found established by the evidence.
The sixth was erroneous. The plaintiffs, if entitled to recover at all, were entitled to the value at the time when delivery should have been made; but on what theory defendant could have been held responsible for the price at any prior time, when defendant was in no default for failure to deliver, we are unable to perceive. A vendor cannot be supposed to undertake that the goods he sells shall not depreciate in value before they are called for.
■ The plaintiffs seem to have claimed that they were entitled to recover the highest market value between the time of the purchase and the time of bringing suit, and they were allowed to give some evidence on that theory. This was clearly wrong in going back of any default on the part of defendant, as already shown. But had they Confined their questions to the time between the demand and the commencement of suit, there is no general rule that would entitle them to the recovery they claimed. A party’s right of recovery must be deemed fixed at some time, and he cannot wait for an indefinite period and speculate upon the changes in the market while taking upon himself none of the risks of decline. This would put him in a better position than if he had the property in possession; for then, if he would realize upon it, he must select a particular time for making sale, and accept the price at that time; while under the rule relied upon he may have the highest price for a series of years by simply postponing the bringing of suit.
No general rule can do exact justice in all cases of failure to deliver property on demand to tbe. party entitled, but a recovery which, at tbe time of the demand and refusal, would have enabled the party to purchase other property of the like kind and of equal value at the same place, is, in the absence of special circumstances, as nearly just as any the law can provide for. — Bates v. Stansell, 19 Mich., 91.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Graves, Ch. J.
Hewett brought ejectment against Morse in 1871 for the northwest quarter of section twenty-one, in township four north, of range three east, being in the township of Conway, in Livingston county. ' The court heard the case without a jury, and gave judgment for Hewett on a special finding. A bill of exceptions ivas settled, and Morse has brought the cause here for review on the finding and the exceptions as settled. The parties dispensed with an oral argument, and submitted the cause on briefs.
It appears by the record that on the 16th of August, 1837, the land in dispute was patented by the United States to one George Hewlett, described in the patent as “of the city of New York.” Upon this there was no controversy, and Hewett, the plaintiff in ejectment, sought in the first place, to deduce title to himself from Hewlett, the patentee; and to that end he offered in evidence the record of a power of attorney to convey the premises, purporting to have been given to William A. Clark, of Howell, in the county of Livingston, by George Hewlett and Mary Hewlett, his wife, “ of New Kockaway, in the county of Queens, in the state of New York,” on the 26th day of November, 1855. Along with the record of the power, and offered with it, was the record of what purported to be a certificate of acknowledgment by Hewlett and wife, taken in Queens county, New York, before a justice of the- peace of the county, and bearing even date with the power; and also along with the record of the power, and likewise offered with it, was the record of what is claimed to have been a certificate of authentication of the due execution and acknowledgment of the power. The record of this latter instrument was as follows :
“ State of New York, county of Queens? — ss. I, John S. Snediker, clerk of the county of Queens, do hereby certify that Henry Pearsall, Esq., whose name is subscribed to the certificate of the proof or acknowledgment of the annexed instrument, and thereon written was, at the time of taking such proof or acknowledgment, a justice of the peace in and for said county, elected, sworn, and duly authorized to take the same, and further, that I am well acquainted with the hand-writing of such justice and verily believe that the signature to the certificate of proof or acknowledgment is genuine, and also that the annexed instrument is executed according to the laws of this state.
“In testimony whereof I have hereunto set my hand and affixed the seal of the said county, the 30th day of November, 1855.
[L. S.] “John S. Snediker, Cleric.”
Morse objected to the admission of the record of the power and certificates on three grounds: -First, that it was incumbent on the plaintiff to first identify the patentee with the grantor of the power; second, that the record of such an instrument was not receivable in evidence; and third, that the certificate “of the clerk,” as to the execution of the instrument, was not sufficient to authorize it to be recorded. The objections were overruled, the evidence admitted, and the defendant excepted.
The defendant in error contends with much reason that the third ground of objection was too indefinite, but the views we take of the question which the objecting counsel seems to have contemplated incline us to consider it.
Were these objections well founded ? The second is here wholly unimportant, and is not insisted on. If either of the other two is maintainable, then it is useless. And on the other hand, if both the first and third are unsound, the second is plainly unsustainable.
It was not a valid objection to the reception of the record of the power in evidence that special proof was not first given to show that the actual giver of the power was the same person to whom the patent issued. The objection was aimed at the order of proof, and it assumed that previous to the introduction of the power it was incumbent on the plaintiff to furnish evidence to show that the maker of it was the patentee. Whatever question of identity there may have been, it was certainly within the discretion of the court to allow the facts relatiug to it to be introduced in any order not prejudicial to the defendant, and the record of the power assuredly was one of these facts, and we are unable to discover how its admission before special proof on the point of identity, could operate injuriously against the defendant. The case raises no question upon the effect due to the evidence relating to or bearing on this subject.
The next ground of objection is that the certificate of authentication by the clerk was not in compliance with our recording law, and hence did not authorize the registry of the power. First, it is said that the certificate, as shown by the register’s entry, does not appear to have been made by a clerk of a court of record; and second, that it does not appear to have certified that the power was acknowledged according to the laws of New York.— Comp. L., § 4212; Sess. L. 1861, p. 17, § 3.
We agree with the supreme court of the United States that, “it is the policy of the law to uphold certificates when substance is found, and not to suffer conveyances or the proof of them to be defeated by technical or unsubstantial objections,” and that the court will, if possible, sustain such instruments, when to do otherwise would lead to the loss of estates. — Carpenter v. Dexter, 8 Wall., 513. We have heretofore acted on this principle, and are fully convinced of its justice and utility. — Shotwell v. Harrison, 22 Mich., 410; Harrington v. Fish, 10 Mich., 415; Galpin v. Abbott, 6 Mich., 17; Ives v. Kimball, 1 Mich., 308; Brown v. McCormick, supra, p. 215. In Anderson v. Baughman, 7 Mich., 69, a similar view was expressed. The question there arose upon the description in a mortgage, and the court say “that deeds and other written instruments should be so construed as to render them valid and effectual rather than void.” Our legislature has favored the same policy, as is proved by the passage of several curative and saving acts.
Now as matter of fact, the clerk of Queens county is made by the constitution of New York the clerk of the supreme court. And as matter of fact, the supreme court is a court of record. In Shotwell v. Harrison, we took judicial notice that the supreme court of Massachusetts was a court of record, and hence, if the certificate in question had contained an express statement by Mr. Snediker who made it, that he was clerk of the supreme court, the point would have been ruled by our decision in that case, and we must have taken judicial cognizance that he was clerk of a court of record. What is lacking here, is a statement by him in his certificate of his constitutional status as clerk of the supreme court.
As the constitution fixes his condition as clerk, and in so doing makes him the recording officer and a component of the court, I think we may as well, in order to uphold a conveyance, take notice of this constitutional arrangement, an arrangement which relates to the composition of the court that it may possess the character of a court of record, as we may take notice that a named tribunal of another state is made by the laws of that state a court of record. If in connection with our recording laws we may so far take notice of the composition of the court as to ascertain that it has the dignity of a court of record, we may so far take notice of its composition as to see that by a fundamental requirement the county clerk belougs to it as its recording officer. Our law (Comp. L., § 4212), contemplates the performance of an official act in another state, and by an officer of that state, as a, step in the authentication of a conveyance for record here, and it has not explicitly prescribed that he shall set forth in tris- certificate his own official character.'
As the court said in Van Ness v. Bank of the United States, 13 Pet., 17-21, “it is no doubt usual and proper to do so, because the statement in the certificate is prima facie evidence of the fact when the instrument has been-received and recorded by the proper authority.” But when-the recorded certificate does not contain such a statement and yet upon its face purports to have been made by one endowed by the proper character by the constitution of the state to whose laws and regulations our own statute refers, it appears to me that the “soundest principles of justice and policy” demand that we should make “every reasonable intendment” to support the conveyance; and should therefore presume, in the absence of any thing leading- to another view, that the author of the certificate acted: rightly in making it, and in that official character he held which the very nature of the act and the occasion for it' explicitly called upon him to act in. A refusal to do this in view of our regulations for authenticating deeds made in sister states; and when our established law (Comp. L., § 5935) has expressly made the printed copies of the acts- and resolves of other states prima facie evidence of such laws and resolves in our courts, would, it is conceived, give-, countenance to unreasonable distinctions and unprofitable refinements.
The point that the certificate did not show that the-power was acknowledged according to the laws of New York, is not deemed to be supported by the record. The-clerk had the power and certificate of acknowledgment before , him, and he thereupon certified to the official character of the justice who made the endorsed certificate of acknowledgment, to the genuineness of his signature, that he was duly authorized to take that specific acknowledgment, and-that the power was executed according to the laws of New--York. This certificate, as already suggested, is entitled to be favorably considered and fairly construed, and reading it as a paper expressly designed to mark that the power, was well executed and acknowledged according to New-York laws, it appears difficult to argue that'1 it Tell short of its object.
It is not essential that the order of arrangement or -the phraseology pursued by the statute should be followed. If the whole substance of what is required can be fairly.collected from the certificate it will answer every legal -purpose, and when we group the facts here certified, and view them as connected with the power and the magistrate's certificate of acknowledgment, they amount to an official •declaration by the clerk that the acknowledgment complied with the law of New York. — Jackson ex dem. Merritt v. Gumaer, 2 Cow., 552; Meriam v. Harsen, 2 Barb. C. R., 232, and cases cited; Lynch v. Livingston, 2 Seld., 422; Hunt v. Johnson, 19 N. Y., 279 ; Thurman v. Cameron, 24 Wend., 87; Carpenter v. Dexter, before cited; Dundas v. Hitchcock, 12 How., 256; Dennis v. Tarpenny, 20 Barb., 371. The import of his statement is that the acknowledgment he was then called on to accredit was a due, that is, a legal one in New York; that the acknowledgment there certified was the acknowledgment the justice was authorized to take; and no acknowledgment except a legal one was authorized.
On turning to the finding of facts we notice that it is there stated that it was further objected to the admission of the record of the power of attorney, that the law did:not authorize such an instrument to be recorded “among” the records of deeds. This objection is somewhat obscure, and if we regard it as properly presented, it would seem to insist that the law made no provision for the registry of powers in the books of deeds. At any rate, this is 'the idea we gather from the terms of the objection, and if we mistake its import, the fault must be ascribed to the vagueness and generality of the expression used to denote the point. As we understand the proposition, the statute affords a complete answer to the objection. — Comp. L. § 4238.
The record of the power of attorney having been admitted, the plaintiff followed it up by evidence of the record of a deed from Hewlett, by Clark, the attorney, to ' one Levi D. Smith, dated January 2, 1856, and the record of a deed from Levi D. Smith to the plaintiff, bearing the same date, but acknowledged in April, 1867, and recorded in September of that year.
He then proceeded to give other evidence, of which-the first consisted of the records of three tax-title deeds to himself from the auditor general: one dated in 1858 for-the taxes of 1856; one in 1859 for the taxes of 1857, and one for the taxes of 1858. It was objected against the admission of this evidence that it was incumbent upon the plaintiff to first show the regularity of the tax proceedings, but the objection is very properly abandoned.
Following the tax deeds he offered the files and proceedings of what he claimed to be a judgment by default recovered by him against the defendant in' ejectment for the premises in question in the .same court on the 6th of December, 1861. This evidence was objected to on several grounds, which are differently stated in the body of the bill of exceptions and in the finding by the court. In the bill of exceptions proper they are thus set forth:
First, The files and records in the case cannot legally be admitted in this case on trial as evidence of the right of the plaintiff to recover; second, the files and records do not show that there had .been a legal service of any declaration in the former suit; third, that the proceedings to take said judgment, and the judgment itself upon the face of the record and pleadings, are illegal and void; fourth, that there is nothing to show that the copy of the declaration upon which purports, to be a return of service, was ever returned by the sheriff to the clerk of the court, or was ever filed by said clerk among the files and records in said cause.
In the finding the court says that the defendant objected that the evidence was incompetent, and also that the pfo ceedings in that, suit and the taking of the judgment were-illegal, irregular and void.
Some of these objections were too vague and indefinite to be allowed or entertained. From them the court could: not have derived any idea of the point aimed at, and they were not suited to direct the attention of the opposite party to any particular matter or defect. The state of the litigation and of the offered proof was not such as naturally to' cause objections in such form to direct the mind to any specific subject within the range of the objections. The assumption that it did not appear that there was any legal service was contradicted by the record, and is abandoned.. The fourth objection is properly given up. The record imported that the evidence of service was endorsed on the original declaration filed with the clerk.
It is now insisted that it was essential to the validity of the judgment that the judge should have made a finding similar to that required of a jury under the seventh subdivision of § 6 SSI Comp. L. The point is without force. The case was not within that provision. There was but one. plaintiff and one defendant, and the defendant had become defaulted and had thereby, in legal view, admitted the plaintiff’s claim as he had set it up. There was no evidence or state of things on which to base a finding under the provision referred to. There were no circumstances implying any necessity or use for qne. We have no need to consider whether the want of a special finding, if there had been a case for one, would have exposed the judgment to any collateral objections by the defendant.
It is next urged that the judgment in the first ejectment was invalid, because as is said, it did not adjudge that the plaintiff had any title in fee or otherwise, or that he was entitled to the possession. The judgment entry was in these terms:
“Lauren K. Hewett v. Benjamin D. Morse. — Ejectment.
“In this cause the default of the defendant for want of an- appearance having been duly entered and become absolute, whereby the said Lauren K. Hewett remains in this cause undefended against the said Benjamin D. Morse r wherefore, the said plaintiff ought to recover against the said defendant, the possession of the premises described in the declaration of the said plaintiff in this cause, together with his costs and charges by him about his suit in this behalf expended;
“Therefore, on motion of William A. Clark, attorney for the plaintiff in this cause, it is ordered and adjudged by the court now here, that the said plaintiff do recover against the said defendant the possession of the premises aforesaid according to the description thereof contained in the said declaration, and that the said plaintiff have a writ of possession therefor; and it is further ordered and adjudged by the said court that the said plaintiff do recover against the said defendant his costs and charges by him about his suit in this behalf expended, to be taxed, and that the said plaintiff have execution therefor.”
By his declaration the plaintiff claimed the whole of the specifically described land in fee, and in suffering default the defendant by legal intendment admitted the validity of this claim in so far as to make it right for the court to give final judgment against him. The thirty-second section of the chapter on ejectment (Comp. L., § 6234) declares that the judgment on default, when no other provision is made, shall be that the plaintiff recover the possession of the premises according to the description thereof in the declaration, with costs to be taxed. This statute applied to the case, and it means probably that the description in the declaration is to be followed in making up the judgment, and not that the judgment may omit to describe the premises except by reference to the declaration.
The judgment entry was not, then, formally accurate. But the imperfection was a mere technical irregularity, and insufficient to prejudice the judgment. The recovery was made certain by the reference to the declaration, and the miscarriage in the entry of judgment was cured or obviated by the statute of amendments. — Comp. L., § 6051.
The point that the judgment did not purport to decide that the plaintiff was entitled to the possession has nothing to rest on. The record says that the court adjudged that the plaintiff should recover the possession.
This disposes of all the points entitled to notice which can be claimed to have been suggested by the objections to the admission of the proceedings in the first ejectment.
The case made by the defendant below rested on his own testimony as a witness. He testified that he had owned the premises for thirty-two years, and had actually resided on them for twenty-seven years immediately preceding the day of trial j that he had paid all the taxes assessed against them during that time, and always had sufficient property upon them subject to seizure, out of which the taxes could have been collected if he had not paid them.
The declaration was served the 9th of September, 1871, ¡and the trial took place on the first day of February, 1873. No exception was taken to the finding, and no point is made on it in the brief. There is no question but that it .supports the judgment.
The only matter found for the defendant is that he had lived on the premises twenty-seven years, and at all times had sufficient property upon them out of which the taxes might have been collected. There is no finding of a hostile possession, or of any pretense of title on the part of the defendant. We might regularly have decided the case without noticing several points to which attention has been given, but as the record was somewhat ambiguously framed, the finding of facts containing objections to the evidence varying from the body of the bill of exceptions, and containing a statement of the object for which the first ejectment proceedings were offered, without any very precise finding in relation to that evidence, and the finding thus framed being, as the bill of exceptions states, made a part of the bill, it has been deemed admissible, though1 perhaps unnecessary, to examine the case pretty much at large.
According to the view taken no error is shown, and the judgment should be affirmed, with costs.
Campbell and Cooley, JJ., concurred.
Christiancy, J., did not sit in this case. | [
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Kavanagh, J.
Plaintiff was appointed receiver of Redford Cement Floor Company, a Michigan corporation, on February 7, 1958. Redford Cement Floor Company (hereinafter referred to as Redford) during its existence engaged in the business of installing flat cement in commercial projects. Defendant William J. Phillips, doing business as Phillips Construction Company, is a general contractor. Pie had not engaged in actual construction work for 3 or 4 years prior to the trial of this case, but carried on his general contracting through subcontractors.
Plaintiff receiver on February 21, 1958, instituted this action in assumpsit declaring on a contractual agreement and also on the common counts. The declaration alleged that Bedford had fully performed a subcontract with defendant and had supplied labor and materials to defendant, and that there was owing to plaintiff under the subcontract for labor and materials furnished a balance in the amount of $15,033.09.
Defendant answered denying that Bedford had performed its subcontract; that defendant had breached the subcontract; or that any sum remained ■owing to Bedford or plaintiff.
At trial, documents consisting of a contract between Phillips and the city of Detroit, a performance bond, and a payment bond, comprising defendant’s exhibit F, were admitted in evidence over the objections of plaintiff. These documents tended to show that on February 5, 1957, defendant entered into a contract with the city of Detroit for certain construction work on the Detroit housing commission’s Brewster project; that the amount of said contract was $52,549; and that in connection with said •contract defendant furnished a performance bond with Travelers Indemnity Company as surety. Further testimony developed that defendant, on February 8,1957, invited bids on cement work and Bedford submitted a proposal for the work. The testimony disclosed that on February 19, 1957, defendant and Bedford executed an agreement, prepared and drafted by defendant. This contract enumerated the materials, equipment, and services to be supplied by Bedford according to the plans and specifications of the Detroit housing commission’s architect. Defendant agreed to pay Bedford in monthly payments the sum of $31,731 for materials and labor. Payments were to be made in accordance with defendant’s agreement with the Detroit housing commission.
The subcontract included a provision that Redford would furnish bond and insurance certificates as required. It developed that Redford was unable to secure a bond, since it had not been in business long-enough and was not sufficiently capitalized. Mr. Bull, president and general manager of Redford, went to defendant and explained Redford’s predicament, and offered to withdraw from the subcontract.. Although there was conflict in the testimony, defendant said he thought Redford was going to furnish a bond; that he never informed Redford it did not have-to furnish a bond; that about a month after the execution of the subcontract Redford indicated it could not secure a bond and that he “let him go ahead.”' Redford began work under the subcontract in April, 1957, and allegedly completed the work the latter part of August, 1957. Shortly thereafter Redford went into receivership.
Defendant did not pay for the work done by Redford in monthly payments as provided by the terms-of the subcontract. Redford claims that because of defendant’s refusal to pay it became short of funds,, and eventually authorized defendant to pay some of its suppliers to the extent of $14,150.78. Defendant admitted owing a balance of $15,033.09 on the subcontract.
After Redford had allegedly completed its work,, defendant asserted Redford had left certain work unfinished as represented by deficiency lists received by defendant from the city of Detroit in connection with his contract. These items were relocation of fences and poles, repair of cracked cement, repair of' rough concrete surfaces, repair of a retaining wall,, cleaning away rubble, and failure to waterproof concrete. Defendant claims he expended $1,170.73 for-curing the deficiencies. Mr. Bull, testifying for Redford, stated Redford was not responsible for most of these deficiencies and that a number of the items were not called for under Bedford’s subcontract or by the specifications.
During the trial defendant moved to transfer the cause from the law side to the equity side of the court, alleging equitable defenses which he should be permitted to present. Over objections of plaintiff, the trial judge entered an order transferring the cause to the equity side. The alleged equitable defenses were: Bedford was indebted to certain persons for materials and labor furnished on the job. Defendant had furnished the surety bond agreeing to save the city of Detroit harmless from any liens for labor and materials. As such it became surety for Bedford, a subcontractor who was working without bond. If defendant were required to pay the $15,033.09 balance to plaintiff, defendant eventually would be required to pay Bedford’s material and labor suppliers who were owed an amount approximately equal to the unpaid balance on Bedford’s subcontract.
The trial court, at the conclusion of proofs, ruled that $240.75 should be allowed defendant for work done and materials furnished to complete the job. The court further found that plaintiff receiver stood in the same position as the assignor, Bedford Cement Floor Company, and that any defenses that could be raised against Bedford could be raised against the receiver. In its opinion the court found that Bed-ford had not completed its contract in that it had not completed its work and had not furnished a surety bond.
The trial court found defendant to be a surety in fact and in law and one who should be protected from having to pay the receiver and then pay twice for the same work by having to pay Bedford’s creditors who could collect on defendant’s payment bond.
The trial court decreed payment should be made by defendant directly to Bedford’s creditors in the amount of $15,033.09 from the fund established by defendant paying into court $2,532.33 and the sum of $12,500.76 paid into court by the garnishee defendant. The amount paid into the fund by defendant represented the difference between the amount unpaid by Phillips on the subcontract and the amount .garnisheed at the commencement of the action.
The trial court further decreed that defendant could offset claims of Bedford’s creditors against the action of the plaintiff receiver; that the same constituted an equitable setoff; and that full disbursement of such claims would constitute complete satisfaction of defendant’s liability to the plaintiff receiver.
On entry of decree, plaintiff appeals contending:
(1) There was no basis for the lower court’s action in transferring this cause from the law side of the court to the equity side.
(2) The lower court was not justified in allowing defendant equitable setoffs to the claim of plaintiff under the circumstances; there was nothing in the record to support such equitable setoffs as being-founded on any presently existing- determined, valid claims of defendant against the plaintiff.
(3) There was no basis for the lower court taking-jurisdiction over any asset of the receivership and making- disposition of it while such asset was under the control of the court having jurisdiction of the receivership.
(4) For the lower court to take jurisdiction over and make disposition of such an asset nullifies the statutes governing dissolution and wind-up of corporations.
(5) The lower court erred in admitting into the record a certain contract between the city of Detroit and defendant together with related bonds furnished by defendant to the city of Detroit.
(6) The lower court erred in holding that the corporation for which plaintiff is receiver had failed un der its subcontract in 2 particulars: first, to complete the work in accordance with specifications; and second, to furnish a bond as required by the subcontract.
(7) The lower court erred in undertaking to adjudicate the status, the rights, and the liabilities of persons not parties to this suit without proofs in the record of the status, rights, and liabilities of such persons.
After decree and during the time appeal to the Supreme Court was pending, pursuant to an order of this Court, a stipulation was entered into by the parties permitting the deposition of the clerk of the court for Wayne county to be taken, the deposition to constitute in full the additional testimony requested by defendant-appellee in his motion to this Court. The stipulation further provided such additional testimony would be included as a part of the record on appeal in this cause. The trial judge entered an order to that effect. The deposition consisted in the clerk identifying the files and records in 2 Wayne county circuit court cases — one a suit by Hydraulic Concrete Breaking Company and People of the State of Michigan, for the use of Hydraulic Concrete Breaking Company, Inc., a Michigan corporation, plaintiffs, v. William J. Phillips, doing business under the name Phillips Construction Company, and Travelers Indemity Company, a Connecticut corporation, defendants; and the other a suit in the Wayne county circuit court by People of the State of Michigan, for the use and benefit of Koenig Coal & Supply Company, a Michigan corporation, and Koenig Coal & Supply Company, a Michigan corporation, plaintiffs, v. William J. Phillips, doing business as Phillips Construction Company, and Travelers Indemnity Company, a Connecticut corporation, defendants. The files and records disclose summary judgments were entered against defendants in each of these 2 suits — in the first case for the sum of $2,024.05 damages and costs; and in the second case for the sum of $8,767.35 damages and costs. In each case satisfaction of judgment was filed, indicating payment by defendants of 2 of the claims against Bedford covered in the decree.
The statute, CL 1948, § 611.2 (Stat Ann § 27.652), which provides the authority for a court to transfer a cause from the law side to the equity side, reads as follows:
“Sec. 2. If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, or if it appear that an action commenced on the law side of the court should have been brought in equity, it shall be forthwith transferred to the proper side, and be there proceeded with, with only such alteration in the pleadings as shall bo essential.”
In order to determine whether the court erred, it is necessary to determine in what position defendant found himself at the time of the institution of the law action. Unquestionably, he was in the position of a surety.
Suretyship is a contractual relation resulting from an agreement whereby one person, the surety, engages to be answerable for the debt, default, or miscarriage of another, the principal. 50 Am Jur, Suretyship, § 2.
Phillips was faced with the fact that under the terms of the payment bond furnished to the city of Detroit, he was liable for the debts Bedford owed persons furnishing labor and materials for the job pursuant to Bedford’s contract.
It is fundamental that a surety, when required to pay its principal’s obligation, is entitled to reimbursement. Canadian Bank of Commerce v. Coumbe, 47 Mich 358; 50 Am Jur, Suretyship, § 221.
Justice Black, writing in Hack v. Concrete Wall Company, 350 Mich 118, 125, quotes with approval from 5 Pomeroy’s Equity Jurisprudence (4th ed), Equitable Remedies (2d ed), § 920, p 5183, as follows :
“Subrogation. — "When an obligation is discharged, by one not primarily liable for it, but who believes himself to be acting either in performance of a legal duty, or for the protection of a legal right, or at the request of the party ultimately bound, and even in certain other eases, favored by public policy, where none of the above circumstances may be present, the party thus discharging the obligation is entitled in equity to demand, for his reimbursement, and subject to any superior equities, the performance of the original obligation, and the application thereto of all securities and collateral rights held by the creditor. The same equity which seeks to prevent the unearned enrichment of one party, at the expense of another, by actions for reimbursement, contribution, and exoneration, operates here, by creating a relation somewhat analogous to a constructive trust, in favor of the subrogee, or party making the payment, in all legal rights held by the creditor, and the subrogee may proceed to enforce the trust.”
In Comstock v. Potter, 191 Mich 629, Justice Stone, writing for the Court, said (pp 637, 638):
“The right of one surety to call upon his cosurety for contribution, like the right of all the sureties to call upon the principal for indemnity, arises from a principle of equity, growing out of the relations which the parties have assumed towards each other. The equity springs up at the time of entering into that relation, and is fully consummated when the surety is compelled to pay the debt. 6 RCL, Contribution, § 6, p 1042.
“It may be taken as settled that the right to contribution is not confined to the’relation of cosurety, but extends to joint contractors, and one who has paid more than his share of the joint obligation may recover contribution from his cocontractors. 6 RCL, Contribution, § 9, p 1046.
“While assumpsit for money paid by a surety is a modern remedy, yet courts of equity have not been ousted of their jurisdiction in matters of this kind on account of the assumption thereof by the law courts, but their jurisdiction is now considered concurrent; and in many cases, as here, assumpsit does not furnish adequate relief. 6 RCL, Contribution, § 19, p 1059.”
It has been said the doctrine of contribution rests upon the maxim that equality is equity. Equitable jurisdiction still remains and in cases of this type has some important advantages.
In the instant case defendant had a claim against plaintiff upon which he could have founded an action. Defendant had equitable grounds on which to seek the help of equity. 50 Am Jur, Suretyship, § 225, reads in part as follows :
“No principle in equity is more familiar, or more firmly established, than that a surety, after the debt for which he is liable has become due, without paying or being called on to pay it, may file a bill in equity in the nature of a bill quia timet to compel the principal debtor to exonerate him from liability by its payment, provided no rights of the creditor are prejudiced thereby.”
In Pratt v. Corns, 214 Mich 390, this Court quoted with approval from Bathgate v. Haskin, 59 NY 533, 537-539, as follows (pp 396, 397):
“ 'But while, as a general principle, courts of equity follow the rules of law in enforcing setoffs, they exercise an original jurisdiction over the subject, and in cases of peculiar equity and under special circumstances will enforce a setoff in cases not within the letter of the statute. # * *
“ ‘The insolvency of a party against whom a setoff is demanded is often a decisive reason for the interposition of a court of equity.’ ”
The Court also quoted with approval from Barnes v. McMullins, 78 Mo 260, 272, as follows (p 396):
“ ‘When the party has a plain redress at law not merely by pleading but by an original suit, a court of chancery will generally refuse to assume jurisdiction, nor will equity take cognizance of a case or extend its jurisdiction to sustain as a setoff a sum so uncertain as to require a jury to be empanelled to liquidate it. But when the demand sought to he set off is certain and definite, and the insolvency of the adverse party is admitted, the chancellor has jurisdiction to retain the matter and give full and final redress by decreeing a setoff or any other relief consistent and proper in the case.’ ”
The Court further quoted with approval from Houston v. Maddux, 179 Ill 377, 390 (53 NE 599), as follows (p 396):
“ ‘The insolvency of the party, against whom the setoff is claimed, is a ground for the exercise of equitable jurisdiction.’ ”
Under the circumstances in the instant ease, no error was committed by the trial court in transferring the cause to the equity side of the court. The foregoing also clearly answers the second question raised by appellant as to whether the lower court was justified in allowing the defendant equitable setoffs to the claim of the plaintiff, under the circumstances.
Appellant’s questions 3 and 4 might have merit only if it is first established the subcontract funds constituted an asset of the receivership. In view of our disposition of the first 2 questions, it is apparent the liability never became an asset of the receivership. The plaintiff was not entitled to the funds. In view of defendant’s offer to do equity by paying the full amount of the subcontract balance into court, there was no error in the chancellor requiring distribution of the funds to those whose labor and materials created the fund. Since statutory provisions for dissolution only involve marshaling and distribution of assets, and since we hold the liability under' the subcontract was not an asset of the receiver, no conflict exists with the statutory dissolution and winding-up provisions.
We have examined the fifth claim of appellant with reference to the admission in the record of the contract between defendant Phillips and the city of Detroit and the related bonds. The best evidence of defendant’s contention—that it was in danger of being made to pay twice for the Bedford contract—was the surety bond and the contract. Even the provision with reference to the monthly payments under the subcontract was based on the contract between Phillips and the city of Detroit. The trial court did not err in admitting as evidence the contract of Phillips with the city of Detroit and the related bonds.
Plaintiff next contends the trial court erred in holding Bedford had failed under its subcontract with the defendant in 2 particulars—the proper completion of the subcontract and filing of the performance bond. An examination of the record discloses testimony from which the trial judge could properly make such finding. The chancellor was present to hear the original testimony. He observed the demeanor of the witnesses on the stand and was in a far better position than we are to determine the truthfulness of the conflicting statements. We cannot say we would have reached a different conclusion, and under these circumstances we do not reverse.
Justice Souris would ask that the matter be remanded to determine which of Bedford’s creditors had filed timely statutory notices. The record furnished us, on which we are bound to make a decision; discloses that as to the Hydraulic Concrete Breaking Company claim and the Koenig Coal & Supply Company claim such notices were given.
In the Plydraulic Concrete Breaking Company case there was admitted in evidence a notice dated July 26, 1957, directed to the city of Detroit housing commission, in accordance with the statute, indicating that Hydraulic Concrete Breaking Company was a subcontractor and was still owed $1,779.39 plus interest at 5% per annum, and that it was looking to the bond of Phillips Construction Company for reimbursement.
In the Koenig Coal & Supply Company case there was admitted in evidence a notice dated September 26, 1957, directed to the city of Detroit housing commission indicating that the Koenig Coal & Supply Company furnished materials to the Bedford Cement Floor Company; that there was still due for same $7,714.32; that it relied upon the security of the bond required to be given by the general contractor; and that said notice was being furnished pursuant to the provisions of the statute.
No need exists to refer these 2 matters to the trial court for further consideration. As to the remaining creditors, the proofs do not disclose whether they had filed timely statutory notices or instituted proceedings on defendant’s bond within the time allowed by statute.
The decree of the lower court is affirmed as to claims of Hydraulic Concrete Breaking Company and Koenig Coal & Supply Company. The case is remanded for the opening of proofs only as to the other creditors. Defendant shall have costs.
Dethmers, C. J., and Carr, Kelly, and Black, JJ., concurred with Kavanagh, J.
See CL 1948, §§ 640.1-640.8 (Stat Ann 1943 Rev §§ 27.2354-27.2361).—;Reportee.
See CL 1948, § 570.101 et seq. (Stat Ann 1953 Rev § 26.321 et seq.).—Reporter. | [
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Dethmers, C. J.
In these two cases, combined for trial and appeal purposes, plaintiffs appeal from a directed verdict for defendants. Plaintiff Eobert A. Nass, hereinafter called the plaintiff, was the driver and his father, plaintiff Henry W. Nass, was the owner of an automobile insured by plaintiff insurance company. Suits were for plaintiff’s personal injuries and for damages to the father’s automobile. Defendants were owners of a tractor and attached farm wagon drawn by it.
Viewing the evidence, as we must (Firemen’s Insurance Co. v. Sterling Coal Co., 348 Mich 564), in the light most favorable to plaintiffs for purposes of this appeal, the pertinent facts are:
On July 25th, at about 8:30 p. m., when it was just dusk, dark enough so that it was necessary for automobiles to have their lights on, plaintiff was driving the automobile north at a rate of speed between 45 and 50 miles per hour. He had the “dimmers,” as distinguished from the “bright” lights, on. He was traveling on his right side of the road, looking straight ahead. The highway had a 2-lane, cement pavement, 20 feet in width. Grass grew on the shoulders of the road on each side. Beyond these were fields of growing crops of hay, soy beans, alfalfa, et cetera. Some distance ahead of plaintiff, on the horizon, trees flanked the highway on either side. The predominant color of all these surroundings, in varying shades, was green. Defendants’ tractor and wagon were also traveling north, at a very low rate of speed, in the same lane, directly ahead of plaintiff. The wagon was 8 feet wide, made of old, dark wood which never had been painted, it was covered with dust and dirt and was loaded with baled hay to a height of just under 12 feet. There was no taillight or reflector on the wagon. Plaintiff never saw the wagon or tractor ahead of him at any time, although he was looking straight ahead. He drove the automobile directly into the rear of the wagon. The results were personal injuries to plaintiff and damages to the automobile.
Plaintiffs’ declarations alleged that as the plaintiff approached the wagon loaded with hay it so blended into the atmosphere and surrounding terrain as to become camouflaged and completely invisible to him, so that he could not and did not see it until too late to be able to avoid it, although he was looking directly ahead where it was.
In directing a verdict for defendants, the trial court held plaintiff guilty of contributory negligence as a matter of law. It based this holding on the assured-clear-distance-ahead statute , citing cases to the effect that one who runs an automobile into the rear end of another vehicle plainly to be seen on the road directly ahead of him, violates that statute and is guilty of negligence as a matter of law.
Defendants rely on those and other cases holding* a plaintiff to be in violation of the mentioned statute and guilty of contributory negligence as a matter of law in running into the rear of an unlighted vehicle parked on the highway after dark, such as Angstman v. Wilson, 258 Mich 195 (31 NCCA 1), Lett v. Summerfield & Hecht, 239 Mich 699, Ruth v. Vroom, 245 Mich 88 (62 ALR 1528), Spencer v. Taylor, 219 Mich 110, Rueger v. Hamling, 355 Mich 489.
Plaintiffs point to Martin v. J. A. Mercier Co., 255 Mich 587 (78 ALR 520), in which this Court held that the question of the negligence of one running an automobile into a large excavation in the highway on a dark, misty morning was one of fact for the jury; Vashaw v. Marquette Public Service Garage, 288 Mich 363, in which plaintiff struck a. chain-stretched across the road at night, this Court holding that the question of whether failure to see chain was negligence was factual for the jury; Bard v. Baker, 283 Mich 337, in which plaintiff struck mats protruding from a truck and this Court held that failure to see them presented a question of fact for the jury as to plaintiff’s contributory negligence, saying, (p 343) that “a person should not be'guilty of contributory negligence as a matter law in failing to see an object which was undiscernible to a person approach-. ing the same in the exercise of ordinary care;” Barner v. Kish, 341 Mich 501, 506, in which this Court approved an instruction that, “the rule ás to assured clear distance ahead never comes into being until there is a visible object on the road in front of the driver” (italics supplied); Rueger v. Hamling, 355 Mich 489, in which the cross-plaintiff struck a large bean combine and this Court distinguished the case from the above Martin, Bard, and Vashaw Cases, involving the excavation in the highway, the chain across the road, and the protruding. and allegedly undiscernible mats, saying (p 495):
“There are no circumstances legally-excusing his (cross-plaintiff’s) conduct. We are not dealing with a situation involving an obstruction on a highway of such nature that it cannot be seen by a. per son approaching in the exercise of ordinary care. The accident did not happen because of a highway defect that was not visible except at short range, nor did it result from an obstacle of such size or nature that its presence would not necessarily he discovered by one approaching with due care. Decisions like Martin v. J. A. Mercier Co., 255 Mich 587 (78 ALR 520); Bard v. Baker, 283 Mich 337; and Vashaw v. Marquette Public Service Garage, 288 Mich 363, are not in point.”
The pertinent language of the statute in question is “assured, clear distance ahead.” We think the above decisions urged by the respective parties and other cases as well, relating to that statute, are consistent even though in some the question of the driver’s negligence was held to be a matter of law and in others a question of fact. When the object ahead of the driver and the surrounding conditions were such that, had he exercised due care, he must have seen it, negligence as a matter of law was ascribed to him. When the size or character of the confronting object and attending conditions were such that it might have been “undiscernible to a person approaching the same in the exercise of ordinary care,” then the question of his negligence was one of fact for the trier of the facts.
Here plaintiff alleged a camouflage condition rendering the hay wagon undiscernible to him even though he was approaching it, as he claimed, in the exercise of due care. There were proofs in support of as well as those opposed to this. Whether a camouflage condition did exist and whether the hay wagon would or would not have been discernible, under all the existing circumstances, to one approaching it in the exercise of ordinary care, were questions of fact for the jury. Plaintiff is entitled to a new trial accordingly.
Because the question might come up on retrial, we should say that we find no merit in plaintiffs* contention that the trial court should have permitted the case to go to the jury on the theory of gross negligence on the part of defendants eliminating plaintiff’s alleged contributory negligence as a bar to recovery. Plaintiffs plant this on Gibbard v. Cursan, 225 Mich 311. While the opinion in that case refers to the doctrine of gross negligence as avoiding the rule that plaintiff’s contributory negligence is a bar to his right to recovery, this Court, in so doing, was using the term “gross negligence” as synonymous with subsequent negligence. In that case this Court said of that doctrine of gross negligence (p 320) that it “may not he invoked to excuse concurrent negligence of a plaintiff.” Here, if plaintiff was negligent at all in failing to see the hay wagon in time to avoid the accident, his negligence was concurrent with defendants’. The doctrine, if valid, is, therefore, without application here. By that we must not be understood as confining the doctrine of gross negligence in each case to the simple situation of subsequent negligence. Its essence is a reckless disregard of the safety of another. 2 Restatement, Torts, § 482, comment (a). See, also, § 500.
Reversed and remanded for new trial. Costs to plaintiffs.
Carr, Kelly, Smith, Edwards, Kavanagh, and Souris, J J., concurred with Dethmers, C. J.
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Edwards, J.
This is the fifth appeal in this Court involving the Sovereigns and their counsel. Sover eign v. Sovereign, 347 Mich 205, and Sovereign v. Sovereign, 354 Mich 150, represented nnsnccessfnl divorce actions between the principals. Sovereign v. Sovereign, 354 Mich 65, was a petition for custody of the minor child. Sovereign v. Sovereign, 361 Mich 528, was a petition by defendant attorney herein for fees he alleged should be paid by the husband for his representation of Mrs. Sovereign.
This case is a suit by Mr. Sovereign against defendant attorney for “deceit” in his representation of Mrs. Sovereign in 1 of the divorce cases — more particularly in the filing of Mrs. Sovereign’s bill of complaint in Sovereign v. Sovereign, 354 Mich 150. This present suit was dismissed on motion before trial, and plaintiff appeals.
The statute relied upon by plaintiff-appellant is CL 1948, § 601.64 (Stat Ann § 27.84):
“Any attorney or counselor who shall be guilty of any deceit or collusion, or shall consent to any deceit or collusion, with intent to deceive the court or any party, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by fine not exceeding $1,000, or imprisonment in the county jail not exceeding 6 months, or both, in the discretion of the court, and shall also be liable to the party injured by such deceit or collusion, in treble damages sustained, to be recovered in a civil action.”
The important allegations of the declaration are contained in its 8th paragraph:
“That the Supreme Court was deceived by the aforesaid false allegations, and in an opinion.dated October 13, 1958, expressly referring to the allegations that plaintiff had ‘contributed absolutely nothing to her support and maintenance since December 6,1956’; that plaintiff has ‘contributed nothing to the support and maintenance of the minor child,’ and ‘that she has conducted herself properly as befitting a loyal and devoted wife,’ reversed the order dismissing the bill of complaint and remanded the case for trial.”
At pretrial, defendant moved for a bill of particulars as to the falsity of any facts alleged in the preceding bill of complaint which defendant knew, or should have known, were false. Subsequently, plaintiff filed such a bill of particulars which pertained, however, entirely to the allegations concerning contributions.
Thereupon defendant filed a motion to dismiss based upon plaintiff’s declaration and upon the files and records of the preceding divorce suit, being Saginaw chancery file 32,526(2). The circuit judge took judicial notice of the bill of complaint in the divorce action, and granted the motion to dismiss:
“I am going to grant the motion to dismiss, and for the reasons put forth by Mr. Martin, here, and for the additional reason I can’t see how the plaintiff in this case could have been deceived by what was said in the bill of complaint * * * in Case C-32,-526(2).”
The trial judge dismissed on the ground that no deceit within the meaning of the statute was pleaded in the declaration. The circuit judge’s reference to deceit actually applied to the plaintiff but, as indicated above, the plaintiff’s assertion really was that this Court was deceived by the allegations of the divorce bill.
We review an appeal from an order dismissing a declaration without trial by assuming as true all well-pleaded facts. General Motors Corporation v. Attorney General, 294 Mich 558 (130 ALR 429). However, this Court’s opinion in Sovereign v. Sovereign, 354 Mich 150 (of which we take judicial notice), indicates that the decision of the Court was simply a remand of the bill of complaint for hearing. The Court decided nothing of a factual nature in the decision referred to. Thus at the outset we have doubt that the declaration contains facts which allege injurious deceit.
We also note that the bill of complaint was signed and sworn to by Mrs. Sovereign. Of course, we do not believe that an attorney, merely by filing such a bill, becomes liable for “deceit” as prohibited by CL 1948, § 601.64 (Stat Ann § 27.84), even if allegations contained therein ultimately prove not to be true. Such allegations on their face are the responsibility of the party — not the attorney.
Plaintiff, however, has alleged “upon information and belief” that defendant attorney “counseled and caused the said allegations to be made,” knowing them to be false, in order to deceive the court. This assertion has occasioned our looking into the nature of the allegations relied on.
An examination of the bill of complaint containing them shows that, even though the quoted sentences are in themselves obviously erroneous, they have been lifted completely out of context. The bill of complaint, in which they are found, itself contains in other paragraphs the facts in relation to Mr. Sovereign’s payments upon which plaintiff herein now relies. At most, viewing the bill of complaint as a whole, the quoted statements represent an overstatement as to which the same document supplied the correcting facts. While we have no enthusiasm for loose use of language in a pleading, in proper context these allegations cannot be held to represent deceit.
As to the portion of the declaration alleging that defendant caused Mrs. Sovereign to allege that she had since December 6, 1956, “conducted herself properly as befitting a loyal and devoted wife,” knowing this to be false, we believe defendant was entitled to know the specific facts relied upon. When plaintiff’s bill of particulars omitted any reference to this allegation, we believe the circuit judge had a right to assume, as he obviously did, that plaintiff intended no further reliance upon it. See Michigan Court Rule No 20, § 3 (1945).
Appellant also contends that the circuit judge improperly denied his petition for discovery. The discovery petition, without giving any reasons therefor, asked among other things:
“(2) That the defendant produce, for examination and inspection by plaintiff and his attorney, all papers, records and files relating to the cases of Sovereign v. Sovereign, Saginaw county circuit court Nos. 29,905 and 32,526(2).
“(3) That the defendant produce, for examination and inspection by plaintiff and his attorney, any written agreement or written evidence of any agreement, between defendant and one Mary K. Sovereign, relative to compensation or fees to be received by defendant for representing the said Mary K. Sovereign in the aforesaid cases Nos. 29,905 and 32,526(2).”
Such a general fishing expedition is not contemplated under the admissibility requirement of our discovery rules. See Michigan Court Rule No 35, §6(b) (1945) We find no abuse of the circuit judge’s discretion in his denial.
No stated question is presented or briefed in relation to count 2 of plaintiff-appellant’s declaration. Hence, it is not considered on this appeal. Michigan Court Rule No 67, § 1 (1945); Johns v. Wisconsin Land & Lumber Co., 268 Mich 675.
The motion to dismiss was properly granted.
Affirmed. Costs to appellee.
Dethmers, C. J., and Caer, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred.
See 334 Mich xl and 352 Mieh xvii.—Reporter. | [
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Souris, J.
This is a chancery suit by which plaintiff sought to attack collaterally probate court proceedings on the ground of fraud. The chancellor, Circuit Judge Ernest W. Brown sitting in Wayne county, ruled at conclusion of the trial that plaintiff failed to prove fraud and dismissed his bill of complaint.
Plaintiff sued as attorney in fact for Grigory Koptur, alleged to be a brother of the decedent whose' estate was administered in the probate court proceedings, and J alleged nieces of decedent who, it is claimed, are daughters of a predeceased brother of decedent. Cass Piotrowski, one of the defendants, is a member of the State Bar. It is plaintiff’s-claim that Mr. Piotrowski committed fraud in preparing and presenting to the probate court a petition for administration of decedent’s estate in which Jakob Koptur, another defendant, was described as decedent’s cousin and sole heir-at-law while knowing that Grigory Koptur, decedent’s brother, was still alive and residing in Russia. Plaintiff claims that at the hearing on the petition for administration Mr. Piotrowski deliberately misled Wayne county Probate Judge Thomas C. Murphy into believing that Grigory Koptur was Jakob’s brother, rather than decedent’s, with the result that Judge Murphy inserted the name of Grigory in the petition in his own handwriting and described him as decedent’s cousin. Plaintiff refers to the provisions of CL 1918, § 702.51 (Stat Ann 1913 Rev § 27.3178-[121]), as the motivation for Mr. Piotrowslri’s alleged fraud and deception, for if Grigory, a brother, survived decedent, Jakob, a mere cousin, would be disqualified by that section of the probate code from petitioning for administration of the estate.
Judge Brown, in his very carefully prepared opinion, found “that none of the allegations of fraud charged against any of the 3 defendants has been proven.” Our review of the evidence produced by plaintiff leads us to the same conclusion. The mistaken description of Grigory on the petition for administration resulted, as the chancellor found, from a confusion in the use of pronouns during Mr. Piotrowski’s examination of the third defendant, Mary Sztuk, who was appointed administratrix. Mrs. Sztuk testified that Jakob was decedent’s only relative in this country and that he had received a letter from “his brother” (meaning decedent’s brother, Grigory) 3 years before from Russia. Unfortunately, the probate judge concluded that the letter was from Jakob’s brother, Grigory, and so described Grigory on the petition as another cousin of decedent rather than as his brother. Although the probate judge’s perfectly understandable confusion is evident from a reading of the colloquy between the judge and the witness appearing in the record of the proceedings, we are not at all convinced that it would have been so evident to one who only heard the colloquy. In this instance, at least, the printed word is more readily understood when read in our cloistered chambers than it was when heard in the courtroom.
In any event, Mr. Piotrowski’s subsequent actions relating to Grigory belie any intent to deceive or to perpetrate fraud upon the court. On the day of the bearing be wrote to the Russian embassy in Washington and he again wrote several weeks later seeking information concerning the whereabouts of Grigory, describing him as decedent’s brother. As a result, a New York law firm entered its appearance-for the Russian government in the probate court. Eight months later, the final account of the administratrix was allowed and Jakob was determined to-be decedent’s sole heir after Mr. Piotrowski had adjourned the hearing thereon to give the New York law firm further time to obtain evidence that Grigory still lived or had died leaving heirs. Shortly thereafter, at the request of the New York lawyers, Mr. Piotrowski petitioned the court for a rehearing of the petition to determine heirs. Upon the subsequent failure to produce documentary evidence of Grigory’s existence, and again after several adjournments, the petition for rehearing was dismissed, but without prejudice. Thereafter, a Detroit law firm entered its appearance for the Russian heirs and petitioned the court for redetermination of decedent’s heirs. Mr. Piotrowski and the other defendants cooperated with them, but again the documentary proof failed to materialize. Ultimately, the Detroit firm withdrew from the proceedings and a second Detroit law firm was substituted for it. In the meantime, the State’s attorney general entered his appearance, and on his motion the pending petition for redetermination of heirs was dismissed without prejudice to the-filing of a new petition by successor counsel for the Russian heirs. No new petition was ever filed, and about a year later Mr. Piotrowski closed the estate.
There were offered in evidence many letters to Mr. Piotrowski from the Russian embassy and coun sel for the foreign claimants and from Mr. Piotrowski to them from which it further appears that Mr. Piotrowski extended much effort to assist them in establishing their claims. There are also as part of the record in this ease transcripts of proceedings in the probate court from which it clearly appears that Judge Murphy was fully apprised of the claims made in behalf of Grigory.
It is significant, perhaps, that no appeal was taken by the Russian claimants from the probate judge’s orders. It is even more significant that at no time during the probate proceedings did the foreign claimants’ counsel charge Mr. Piotrowski with fraud or other misconduct. It was 2 years after the estate was closed that these charges were made in this collateral attack. We find no basis whatever for the allegations of fraudulent conduct contained in plaintiff’s bill of complaint.
Plaintiff also contends that the probate court lacked jurisdiction over decedent’s estate because Jakob was not entitled to petition for its administration as decedent’s cousin so long as decedent’s brother was alive. CL 1948, §702.51 (Stat Ann 1943 Rev § 27.3178 [121]). As the chancellor pointed out in his opinion, challenges to the jurisdiction of the probate court may be made only in the original probate proceeding or on appeal therefrom unless the failure of jurisdiction appears on the record. CL 1948, § 701.21 (Stat Ann 1943 Rev § 27.3178[21]). Plaintiff cites In re Gray Estate, 356 Mich 677, where decedent’s widow’s name was deliberately omitted from the petition for probate of a will, in support of his claim that the probate court lacked jurisdiction. In that case the challenge to the court’s jurisdiction was made in the probate court and on appeal therefrom ; it was not a collateral attack as is this case.
The petition for administration set forth all facts essential to confer jurisdiction upon the probate court, and plaintiff may not now in this proceeding challenge that court’s jurisdiction. Wilkinson v. Conaty, 65 Mich 614, and Backing v. Estate of Backing, 337 Mich 20, 26.
Affirmed. Defendants may tax costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, and Edwards, JJ., concurred.
Kavanagh, J., did not sit. | [
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Per Curiam.
Under date of September 7, 1960, on motion of defendants, Judge Zick dismissed plaintiff’s self-styled “Bill for injunction to restrain the [Berrien county] board of supervisors from setting an election and by amended bill to enjoin the city of St. Joseph and board of supervisors from holding an election to annex certain property in the township of St. Joseph to the city of St. Joseph.” The bill alleges invalidity of .necessary statutory procedures taken prior to the questioned election, and fraudulent participation of 2 city officials in a conspiracy designed to bring about annexation of the involved parcels for the benefit of a housing corporation; the 2 officials being members of the directorate thereof.
The election, noticed for September 12, 1960, was conducted per schedule and resulted in an apparently valid determination by a majority .of each group of electors to annex the involved parcels to St. Joseph. Prior thereto the present plaintiff and others filed in this Court a petition for mandamus to compel Judge Zick to enjoin the scheduled election, which petition was denied by our order of September 8, 1960 (No. 48,902-1/2).
Plaintiff, appealing from the order dismissing its bill, requests that such order be reversed and that the case be sent “back for a hearing on the merits to determine the facts with instructions to the lower court that if these allegations are true the annexation election be held void and the city be permanently enjoined from exercising jurisdiction over this territory based on said election.”
The chancellor’s principal reason for dismissal was that of adequacy of a legal remedy under the statute (CL 1948, § 638.28 [Stat Ann § 27.2342]). He was right (Lake v. Township of North Branch, 314 Mich 140; Finlayson v. Township of West Bloomfield, 320 Mich 350; Attorney General v. Ingham Circuit Judge, 347 Mich 579). The conclusion receives support by the fact, shown in the present record, that the plaintiff township and its supervisor have, since conduct of the election and within the allowed period, filed under the statute an information in the nature of quo warranto to test the validity of such election. Such proceeding now awaits hearing in the Berrien circuit. -
It is hardly necessary to add, contrary to fears expressed during oral argument, that our determina tion to affirm Judge Zick’s order adjudicates only that the jurisdiction of equity was not invoked by plaintiff’s bill. No matter of merit, presently at issue in the statutory proceeding above, is determined by the affirmed order of dismissal.
Affirmed. Costs to defendants.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Kelly, J.
An Oakland county jury found defendant guilty of the crime of gross indecency.
A 16-year-old youth, testified that he participated with defendant in the commission of the crime during January or February, 1958, while he was under the influence of liquor, and that he was frequently intoxicated during the spring and summer of 1958. A detective of the Oakland county sheriff’s department testified that while defendant admitted committing the homosexual act, he later repudiated the confession. A court reporter employed in the prosecutor’s office testified that she recorded defendant’s admission to guilt and that same was freely given and without promises.
Defendant testified that he was 50 years of age; that he had been an educator for 24 years; that he had served as an officer with the United States navy; that prior to his arrest in this case (December 16,1958) he had never been arrested.
Defendant admitted he gave a statement to the prosecuting attorney admitting his guilt because “they asked me various questions and, while Detective Whitlock said no promises were made, if he said once, he said 10 times this statement: that he would try to make it a misdemeanor, try to get this, so I would be given a jail sentence, a short sentence, make it a misdemeanor and I would get 10 days or so, and it could be kept quiet, as the board of education wants to keep it quiet, we want to keep it quiet— want it kept quiet. * * * Well, I thought even if they made the charges, it would hit the papers and that would be no good for me or anybody else, whereas, if I made a guilty admission, and if I got 10 days in jail, it wouldn’t hurt me too much. * * * Well, I wanted to get the thing over with. And I thought, if the thing was in the paper, even if an alleged act, most likely it would ruin me, and there was the pressure that a deal could be made if I would plead guilty.” Defendant contended he was not guilty and. said he had never committed an act of indecency with the 16-year-old youth.
Two school teachers, a minister of the gospel, and a young man who had lived at one time with defendant, all testified they would believe defendant under oath and that bis reputation in tbe community for truth, veracity, and good moral conduct was good.
There is merit in appellant’s question number one justifying reversal and new trial, such question being:
“Did tbe trial court err in allowing tbe assistant prosecuting attorney to introduce testimony, to make statements and to argue to tbe jury distinct and separate acts of immorality and indecency on tbe part of tbe defendant with young men other than tbe one indorsed on tbe information?”
Detective Charles Whitlock testified that on December 12, 1958, an accident occurred in West Bloomfield township resulting in tbe death of a 16-year-old boy; that the subsequent investigation revealed “that there bad been quite a bit of beer drinking by these boys,” one of whom was the boy with whom defendant was found to have committed tbe act of gross indecency; that tbe investigation disclosed that tbe boys obtained tbe beer from defendant Mooney; that “along with tbe information as to tbe furnishing of beer to these boys, we received information that there bad been lewd, homosexual parties at tbe home of tbe defendant and with this information these boys were interviewed. My first connection with tbe case was on tbe day of tbe funeral of” tbe dead boy. He testified that be talked to 2 boys concerning tbe matter.
Appellee attempts to justify tbe introduction of this testimony of Mr. Whitlock by stating:
“In response to appellant’s first contention under this issue, there is no question that tbe people’s witness, Detective Whitlock, did testify that ‘we received information that there had been lewd, homosexual parties at the home of the defendant, and with this information these boys were interviewed.’ As the court will note, however, this relevant and material testimony elicited by the people was essential toward establishing in evidence these circumstances which precipitated the officers’ investigation and subsequent apprehension of the appellant, Mr. Mooney.”
We do not agree with appellee. In People v. Dean, 253 Mich 434, defendant was accused of gross indecency with a boy and the prosecution was allowed to prove similar acts by defendant with other boys. In that case we said (p 438):
“The only apparent reasoning on which this testimony can be said to be relevant is that it tends to establish a disposition on the part of the defendant to commit such an act. If admissible for that purpose, other larcenies might be proven in a case where a man was charged with that offense, and other assaults, bigamies, rapes, et cetera, in like cases.
“That the defendant committed similar offenses with other boys has no direct tendency to show that he committed that with which he is charged, which had no connection with them. By the admission of such testimony, he is, in effect, called upon to defend against charges, without notice that he would be required to meet them. Where the charge involves conduct with the same person, as in the Swift Case [People v. Swift, 172 Mich 473], he may, on the preliminary examination, elicit the fact that such testimony will be relied upon by the prosecution and be prepared to meet it as best he may.
“The only purpose of submitting such proof in this case was to render it more probable in the minds of the jury that the defendant committed the offense with which he is charged, and on reason as well as authority it was not admissible for that purpose.”
In argument to the jury, the assistant prosecuting-attorney referred to men who preyed on boys under 16 years of age.
The fact that evidence of these other crimes precipitated the investigation of defendant did not render it admissible. If this were the case, the rule-against admissibility of evidence of other crimes could be circumvented on the pretense that they were-leads which resulted in the apprehension of defendant for the crime charged. The impact upon the jury of this evidence was unquestionably considerable and for this reason the conviction is reversed, and the case remanded for new trial.
Dethmers, C. J., and Carr, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
See CLS 1956, § 750.338 (Stat Ann 1954 Rev § 28.570).—Re-porter. | [
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Per Curiam.
Plaintiff, desiring to he a candidate for election as delegate to the constitutional convention of 1961, applies for mandamus compelling the defendant clerk “to accept and file” his tendered nominatory petition sheets. The joined issue has been submitted upon an agreed statement of facts (see Court Rule No 66, § 10 [1945]), the essential details of which are set forth in the appendix.
The Wayne county prosecuting attorney, appearing for the defendant clerk, refers to certain sections of the general election law, as amended, as justification for his refusal to accept and certify according to plaintiff’s demand (the quotations are taken from the prosecutor’s brief, with appropriate citation, the better to pinpoint his reasons for denial of a writ):
“Nominating petitions shall be in the form required by section 544 of this act, and circulated in the same manner as nominating petitions for State senator.” PA 1960, No 125, § 183.
“The size of all nominating petitions shall he 8-1/2 inches by 13 inches and shall he printed in the following size types: * * * shall have attached thereto designated spaces for the signatures and addresses of the circulators or of each individual circulator thereof, shall have attached thereto an- affidavit of the circulators or of each individual circulator thereof, and shall be in the following form: * * * .” -CLS 1956, §168.544 (Stat Ann 1956 Rev §6.1544).
“Each petition circulated in behalf of each candidate shall have affixed thereto the signature of each circulator thereof, who shall be required to identify himself by affixing his address opposite his signature. Each petition circulated in behalf of each candidate shall have such affidavit affixed thereto, but such affidavit may apply to more than 1 petition if circulated by 1 person: Provided, That if such affidavit is intended to apply to more than 1 petition, all petitions to which it is intended to apply shall be so bound, fastened or clipped together, * * * as to evidence such intent.” Id.
We find that the constitutional as well as legislative design of the quoted statutory provisions has been complied with by plaintiff according to the rule of “substantial compliance” former Attorney General and now Justice Kavanagh considered in his opinion of July 13, 1956 (OAG No. 2664, vol 2, p 399, Biennial report 1955-1956), and that the defendant should in consequence have accepted that which so far he has rejected.
The fact that each of the first 58 sheets of nominating signatures (see appendix), although otherwise in legally acceptable form, includes no form of affidavit — attested or blank — and so is approximately 2-1/2 to 3 inches shorter than the standard petition sheet of 13 inches, means nothing of substance so long as the sum total of necessary nominatory signatures are duly attested by 1 unitary affidavit by the circulator of the whole. Such is the case here. If the 58 sheets had been that much longer, a different question might have arisen, related possibly to statutorily desired filing practices. However, that is not before us.
We conclude from the face of the papers that plaintiff is entitled to become a candidate for nomination to the office sought by him. A writ will therefore issue as prayed. No costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
APPENDIX
Taken from agreed statement of facts:
“On June 6, 1961, the last day for the filing of nominating petitions by candidates for the office of constitutional convention delegates, the plaintiff herein, Joseph Kadans, appeared at the office of the Wayne county clerk and presented for filing 3 separate stacks of petitions for his candidacy as delegate from the 18th senatorial district. The largest of the 3 stacks consisted of 59 pages. All of the petitions were forms prepared by the county clerk in compliance with the form prescribed in section 544 of the election law. That portion of each of the 58 pages below the space provided for the 20th signature and which contained lines for the signature of the circulator or circulators, his or her address and the affidavit following thereto, were torn off, thus reducing each of the 58 sheets to a size measuring 8-1/2 inches by 9-1/2 inches, and were unsigned by the circulator. All of these petitions were fastened to the 59th sheet, which last sheet was signed by the circulator and sworn to before a notary public. The 59th, or last sheet, also contained the following statement by the circulator, inserted before the authentication :
“ ‘I hereby certify that this petition, consisting of 59 pages, is, to the best of my knowledge and belief, a true petition, and all of the pages attached hereto were circulated by me.’
The numerical sequence of the signatures of the electors was also changed on each sheet so that the first signature on the second sheet became number 21 and right on through page 59, the last signature being 1,180. The other 2 stacks were identically prepared and filed as the largest of the 3 stacks. (All of these petitions are in the court file transmitted to the Supreme Court, as per section 1 of Rule No 66 of the Michigan Court Rules [1945]. )
“Plaintiff claims that each of the 3 stacks of petitions constituted 1 single petition and that his signature as circulator, together with the statement that all of the petitions were circulated by him, need only appear on the last sheet of each stack and having thus prepared and filed, he has substantially complied with the statutory requirements as provided in section 544 of the election law.
“Defendant, county clerk of AVayne county, claims that each sheet is a separate petition and, thus, must contain the signature of the circulator, but that only 1 petition need have an affidavit executed if all of the petitions were circulated by the same person. The defendant also claims that the requirement of signature on each petition and the size of petitions, namely 8-1/2 inches by 13 inches, is mandatory under PA 1954, No 116, § 544 (CLS 1956, § 168.544 [Stat Ann 1956 Rev § 6.1544]), and that unless each of the petitions bears the signature of the circulator and conforms to the size prescribed‘in the statute, he cannot construe such petitions as valid and accept the filing thereof.”
This act amends the Michigan election law (PA 1954, No 116), adding chapter 9A to provide for election of delegates to the constitutional convention.—Reporter.
The constitutional design to which reference is made appears in Const 1908, art 3, § 8. For corresponding section of the Constitution •of 1850, see art 7, § 6. For relevant construction of such last mentioned section, see Dapper v. Smith, 138 Mich 104.
As revised, 1956. See 347 MieR xvii.—Repobtee. | [
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Edwards, J.
Plaintiff sued for injuries she received in an automobile accident when a car driven by defendant Marcelle Bovin, and owned by defendant Harry Bovin, went out of control on the Indiana turnpike. The 2 ladies involved were friends and they were returning from a furniture shopping trip to Chicago as to which they had agreed upon a “kitty” to share expenses.
Issues as to whether or not plaintiff was a guest passenger within the meaning of the Indiana statute, and whether or not defendant Marcelle Bovin was guilty of negligence, were submitted to a jury in Wayne circuit court. The jury returned a general verdict of no cause for action. Plaintiff appeals, claiming reversible error in the judge’s instructions-on the 2 issues and in rulings by which he excluded some proffered testimony.
Other undisputed facts include that the accident occurred June 28, 1957, at about 8:35 p.m. while defendant Marcelle Bovin was driving east approaching mile post 66 of the Indiana turnpike. It was raining. Her car had tires which had been driven 23,000 miles. Plaintiff, Janet Leebove, was asleep. The car went out of control and struck a guardrail. Plaintiff was thrown out of the car by the impact and suffered serious injuries.
As to the negligence issue, we have only defendant Marcelle Rovin’s version of the accident, plus some references to the condition of the tires. Mrs. Rovin testified that she was driving at 50 miles per hour— well within the speed limit, that she made no sudden turn or acceleration, that she had full control of the car and was fully conscious when the skid began.
She couldn’t account for the accident:
“Q. What is your version of the occurrence of this accident?
“A. I don’t know what happened. The car just seemed to go out of control very suddenly. There was no noise or anything.
“Q. When it went out of control you were going substantially in an east direction toward Detroit?
“A. That is right.
“Q. And when it went out of control did the back wheels skid?
“A. Did the back wheels skid?
“Q. Yes. Did the back of the car turn around and start going—
“A. The back of the car did not turn. The front of the car went directly in the direction in which we were coming from. It turned right around, yes.
“Q. So that the back of the car came east and hit the guardrail ?
“A. That’s right.
“Q. And you can’t account for that happening at all?
“A. No, I cannot.”
Concerning negligence, plaintiff complains of that portion of the judge’s charge which said:
“I further instruct you, as requested by defendant, and under the laws of the State of Indiana and of Michigan, that sudden skidding of an automobile in and of itself, standing alone, unattended by prior negligence from which such skidding proximately results, does not in and of itself constitute negligence.’!
Plaintiff’s counsel asserts that this charge amounts to an instruction that “sudden unexplained skidding: was not evidence of negligence.” Actually, the charge is carefully qualified, and is followed by an instruction which flatly told the jury it could infer negligence from the facts of the skid and accident.
We find no error in the portions of the charge which dealt with the negligence issues.
The law of the State where the claimed wrong occurred determines whether plaintiff has suffered a legal injury. Bostrom v. Jennings, 326 Mich 146; Goodrich, Conflict of Laws (Hornbook Series, 3d ed), p 260; 1 Restatement, Conflict of Laws, § 378. The instruction complained of is consistent with and, indeed, appears to be based on Indiana case law. See Lee Brothers, Inc., v. Jones, 114 Ind App 688, 713 (54 NE2d 108, 118).
Appellant’s complaint with this instruction, however, does not stop here. She not only complains about what was given bearing on the substantive definition of negligence, but also about what was not. Specifically, she asserts that she was entitled to an instruction under the res ipsa loquitur doctrine..
We do not, however, find any record that she requested such an instruction. (See Court Rule No 37, §9 [1945].) Nor do we find that she objected to the next portion of the judge’s charge which followed immediately after that complained of:
“As requested by the plaintiff in his written request to charge, I charge you, ladies and gentlemen of the jury, that in this case the defendant claims, that as she was driving her automobile along the toll road, it suddenly began to skid, turned around and struck the guardrail. Some steel posts were knocked down by the impact. No explanation is made by the driver as to why this occurred.
“Negligence, like any other fact, may be inferred from circumstances. We have the testimony of Mrs. Rovin and the physical fact the automobile started to skid without being subjected to any unusual circumstances. A reasonable inference supporting the plaintiff’s claim of negligence may properly be drawn by you, since the happening of this accident under those circumstances has raised a question as to whether the defendant driver was negligent.”
The rules pertaining to whether or not sufficient evidence has been presented for submission of the question of negligence to the jury are matters of procedure to be determined by the law of the forum. Clodfelter v. Wells, 212 NC 823 (195 SE 11); 2 Harper and James, The Law of Torts, § 30.2.
We believe the portion of the judge’s charge quoted above is consistent with Michigan case law in that it clearly allowed the jury (if it had seen fit to do so) to draw an inference of negligence from the established facts. Alpern v. Churchill, 53 Mich 607; Higdon v. Carlebach, 348 Mich 363; Indiana Lumbermens Mutual Insurance Company v. Matthew Stores, Inc., 349 Mich 441; Mitcham v. City of Detroit, 355 Mich 182.
Plaintiff-appellant also complains about 3 portions of the trial judge’s charge dealing with plaintiff’s claim that she was not a guest passenger within the meaning of the Indiana guest passenger act.
The declaration under which this ease was tried alleged:
“2. That the plaintiff and defendant, Marcelle Rovin, were riding to Detroit after a business trip to Chicago, Illinois, which trip was for the mutual benefit of the parties, in which each contributed 1/2 of the out-of-pocket expenditures, and during which each assisted the other in the selection of furniture at the wholesale houses located in Chicago. Plaintiff further says that she was not a guest passenger of the defendant, Marcelle Rovin.”
The charge given by the trial judge was lengthy:
“The defendant has asked that the following charges be given to you.
“That the plaintiff in this case contends that she was a joint venturer with Mrs. Rovin, and therefore it is necessary for her to prove only that defendants were guilty of negligence or want of due care under the circumstances. i
“Now, I charge you that since plaintiff claims that she was a joint venturer, she must show either that the host and guest relationship did not exist in order to prove her cause of action, or that the plaintiff was in the vehicle primarily for the benefit of the defendant. The burden of proof is upon plaintiff to show by a preponderance of evidence that she was not a guest, but was a joint venturer.
“This instruction invokes consideration of the Indiana guest statute, which I referred to your consideration earlier, and which, as you know, was placed in evidence and reads as follows:
“ 'The owner, operator, or person responsible for the operation of the motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.’
“Defendant further requests, and I charge, the purpose of the guest statute which I have just read to you is to absolve the owner or operator of a motor vehicle from liability for damages or injury of a guest passenger, except such as are caused by the wilful or wanton misconduct of the driver. One who rides as a guest in an automobile assumes the risks of all ordinary hazards and negligence, and it is not sufficient to justify recovery of damage that the plaintiff establish that the defendant was negligent in the operation of his automobile, or by more careful operation he might have avoided the accident.
Í “Defendant requests, and I charge, that if plaintiff was a guest, then under the law of Indiana, plaintiff may recover only if plaintiff can show by a preponderance of the evidence that Marcelle Rovin was guilty of wanton or wilful misconduct. In this case it is neither claimed nor was it shown that Mrs. Rovin was guilty of wanton and wilful misconduct, therefore, you must eliminate this from your mind and the only basis upon which Mrs. Leebove can recover damages is:
“1. If she was a joint venturer, and that plaintiff, Mrs. Leebove, was in the vehicle primarily for the benefit of Mrs. Rovin, the defendant.
“And, further, if Mrs. Rovin was guilty of some act of negligence which was a proximate cause of the accident which resulted in Mrs. Leebove’s injuries. * * *
“The plaintiff has requested, and I charge, _ that the legal relationship existing between a plaintiff and defendant requires the selection of legal principles set by the common law in order to determine the rights and duties of the parties. If Janet Leebove was a guest passenger of Marcelle Rovin, the driver, the plaintiff, under the law of this case, would be required in order to recover damages to prove by a preponderance of the evidence that Marcelle Rovin was guilty of wilful or wanton misconduct.
“Further, plaintiff requests charge, and I give it, if Mrs. Leebove was not a guest passenger of Mrs. Rovin, then Mrs. Leebove is not required to prove any acts of wilful or wanton misconduct, but need only prove ordinary negligence, provided such ordinary negligence was a proximate cause of the acci dent. No more than the proximate cause need he proved by the plaintiff.
“Further, plaintiff requests, and I give it, if you find that the 2 women, plaintiff and defendant, engaged in this trip as a business venture, or joint enterprise, Mrs. Leebove would not have been a guest of Mrs. Bovin and would not be required to prove wilful or wanton misconduct in order to recover.
“Further, if Mrs. Leebove was a passenger in the automobile at the request of and for the principal benefit of Mrs. Bovin, and not primarily for her own benefit, she would not be a guest passenger and would not be required to prove wilful or wanton misconduct.
“Now, the defendant has requested, and I charge, that unless Mrs. Leebove was in the vehicle primarily for the benefit of Mrs. Bovin, or unless Mrs. Bovin and Mrs. Leebove were engaged in a joint venture, as I will define it to you, and Mrs. Bovin was guilty of some act of negligence which was the proximate cause of the accident in which these 2 ladies were involved, then in such event Mrs. Leebove cannot recover.
“The legal meaning of a joint venture is that it contemplates an enterprise jointly undertaken; that it is an association of such joint undertakers to carry out a single project for profit; that the profits would be shared, as well as the losses.
“I further instruct you, as requested by defendant, that when the arrangements between the parties are so indefinite and casual that sociability is the dominant element, then a guest relationship exists and there can be no recovery.
“I further instruct, as requested by defendant, that incidental benefits to a driver may be considered in determining the status of the passenger, that is, whether he is a guest or a joint venturer, or whether he was in the vehicle primarily for the benefit of the defendant.
“The payment of benefits contemplated by the Indiana guest statute must be material and tangible, and must flow from the transportation provided.
“I further instruct you, as requested by the defendant, that if you find that the arrangements between Mrs. Rovin and Mrs. Leebove originated primarily because of their social relationship of long years standing, and that the so-called ‘pot’ made up between them was to defray travel expenses, then Mrs. Leebove was not a joint venturer. In such event, you must render a verdict of no cause for action, even though you find that Mrs. Rovin was guilty of some act of negligence except for which the accident would not have happened.”
This charge suffered badly from a deficiency upon which we have previously commented (see Schattilly v. Yonker, 347 Mich 660) in that it was a compound of the various self-serving requests of plaintiff and defendants, with each labeled as to source, rather than an organized statement of the law in the trial judge’s own language.
Nonetheless, it is clear that the trial judge charged alternatively (and at plaintiff’s counsel’s own request) if the jury found that plaintiff and defendant Marcélle Rovin were engaged in a joint venture, or that plaintiff was a passenger primarily for the benefit of the defendant, the statute would not bar her cause of action. He also added, “that incidental benefits to a driver may be considered in determining the status of the passenger.”
Although plaintiff’s counsel now objects to the definition of joint venture employed by the trial judge at the trial, he termed it “technically a proper definition.”
Further, a reading of the entire charge of the trial judge indicates that it gave the jury ample opportunity to find that plaintiff was not barred by the Indiana guest passenger statute if the jury saw the facts as plaintiff’s declaration stated them, namely, that the trip was “a business trip” for the mutual benefit of each.
This portion of the charge deals, of course, with the substantive law of the case and is governed by the law of the place of the claimed wrong. The leading Indiana case on interpretation of the Indiana guest statute is Liberty Mutual Insurance Company v. Stitzle, 220 Ind 180 (41 NE2d 133) (which, incidentally, dealt with another joint trip to Chicago to purchase furniture). The Indiana supreme court quoted the statute, and then continued (p 185):
“The word ‘guest’ has more of social than business significance. The words ‘without payment for such transportation’ imply some valuable consideration for the ride. The presence of the person injured must have directly compensated the owner or operator in a substantial and material way. If the trip is primarily social, incidental benefits though monetary do not exclude the guest relationship. If the trip is primarily for business purposes and the one to be charged receives substantial benefit, though not payment in a strict sense, the guest relationship does not exist. Expectation of a material gain rather than social companionship must have motivated the owner or operator in inviting or permitting the other person to ride. The following extract from the dissenting opinion in Scholz v. Leuer (1941), 7 Wash2d 76, 95 (109 P2d 294, 303), elaborates the thought:
“ ‘As indicated in the opinion of the majority, the mere rendition of benefits by a passenger is, of itself, insufficient to take one out of the “guest” classification if the benefits are merely “incidental to hospitality, companionship, or the like.” In resolving the question of benefits and the direction in which they flow, as well as their character and significance, a factor to be taken into consideration is the intention of the parties in entering upon the undertaking. If their actual and mutual purpose be to enter into a relationship other than that of host and gnest, and their subsequent acts are not inconsistent with the intended relationship, the mere fact that, in the performance of the undertaking, the one party does nothing more than what a guest normally would do, will not convert the relationship into one of host and guest.
“ ‘On the other hand, where the intended relationship is that of host and guest, the mere fact that benefits have been conferred upon the host will not change his legal status nor that of his gnest. Thus, the motives which actuate the parties concerned constitute a primary consideration. Accordingly, when the “benefit” rule is invoked, the transportation must have found its impulse in some mutual understanding from which the carrier has the right to obtain, or expect, some material benefit to himself/
“We do not consider the mere possibility of benefit sufficient to exclude the guest relationship. Some courts have said it must be ‘tangible and direct.’ The words imply reality, not potentiality. Courts should not be required to search for a benefit. If it is not apparent then it can hardly be said to be substantial or material.”
The Indiana court concluded that the facts pleaded warranted reversing a judgment for defendant on demurrer and remanding the case for trial.
Comparing the trial judge’s charge in this case to the language of the Indiana supreme court quoted above, we find no fatal inconsistency. Under Indiana law, where there is some sharing of expense, it appears that the basic question is whether the purpose of the trip was primarily social or primarily business. This issue was certainly presented to the jury in our case — which was at the outset all plaintiff sought.
On this appeal, however, plaintiff appears really to contend for a more liberal rule than that upon which she declared or tried the case, namely, that any prearranged sharing of expense makes the occupant a passenger, rather than a guest, regardless of whether the trip had a business or a social purpose. See Johnson v. Kolovos, 224 Or 266 (355 P2d 1115); 2 Harper and James, The Law of Torts, § 16.15. Whatever the merits of this interpretation, it is clear that Indiana has recently, and decidedly, rejected any liberalization of its prior interpretation of its guest passenger statute. Allison v. Ely (Ind App), 159 NE2d 717, reversed 241 Ind — (170 NE2d 371).
In summary, we believe that the issue of whether or not plaintiff was a guest or a nonguest within the meaning of the Indiana statute was submitted to the jury in this case in accordance with the theory advanced by plaintiff’s declaration and with a charge at least as favorable to plaintiff as Indiana law allows.
Two other of plaintiff’s issues on appeal deal with exclusion of evidence tending to show that defendants’ tires were smooth. Generally, as we have noted, such evidence issues are regarded as procedural and decided by the law of the forum.
Part of a deposition of the Indiana highway policeman who reported to the accident was read to the jury by stipulation of counsel. This did not include the portion of the policeman’s official report which contained a statement that the rear tires were smooth. The report itself was the only source for this statement since, at the time of the deposition, the witness could not recall anything about the tires. After the deposition was read, plaintiff’s counsel offered the deleted part in the absence of the jury. An objection by defendants’ counsel was sustained.
This report was required by an Indiana statute (8 Burns, Indiana Statutes, 1952 replacement, pt 2, §47-1916) which also forbade its admission (§47-1920). Under the law of the forum, we find a similar Michigan statute (CLS 1956, §§ 257.622, 257.-624 [Stat Ann 1960 Rev §§ 9.2322, 9.2324]) which requires such reports and makes them inadmissible. The trial judge was correct in refusing the portion of the official report which was not the subject of stipulation.
The other evidence which the court did not allow to go to the jury was plaintiff’s proffered testimony as to what she overheard a gasoline station attendant say about the tires to defendant Marcelle Rovin during the trip. This was objected to as hearsay, and the objection was sustained.
There was no error in this exclusion. It is true that there is a well-recognized exception allowing one party to testify as to matter which would ordinarily be hearsay if it arose out of a conversation where the other party was present and took part. 2 Jones on Evidence (5th ed), §271, p 523.
However, in this case, Marcelle Rovin’s husband, as owner of the automobile, was also a party defendant. Inasmuch as he was not present at the alleged conversation, such testimony was hearsay as to him and, therefore, inadmissible. Plaintiff sought to cure this by moving for the dismissal of Harry Rovin as a defendant. Defendants opposed the motion, and it was denied. We cannot say that this ruling was an abuse of discretion since the case at that time was in trial.
In addition, plaintiff subsequently received and ignored an opportunity to testify as to this conversation. Defendant Marcelle Rovin was called by the plaintiff under the statute. At that time she was questioned and testified freely to the conversation had with the attendant in the Indiana gasoline station. This opened the way for plaintiff to be recalled and testify as to her own version of the conversation if there was a variance. Since the opportunity thus presented was not used — we presume there was no-material variance.
From the whole record, we believe the issues were fairly presented, and that the jury verdict should not be disturbed.
Affirmed. Costs to appellees.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred.
See 8 Burns Indiana Statutes Annotated, 1952 replacement, pt 2, § 47-1021.—Reporter.
Note comparable Michigan statute, CLS 1956, § 257.401 (Stat Ann 1960 Kev § 9.2101).
It might be noticed that Michigan interpretation of the guest statute is not markedly different at this point. Fence v. Deaton, 354 Mich 547; Collins v. Sydman, 344 Mich 588.
See, also, Stevens v. Stevens, 355 Mich 363, 369 et seq.
CL 1948, § 617.66 (Stat Ann § 27.915).—Reporter. | [
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Moore, J.
The facts in this case are precisely the same as in the case of Benton Harbor Terminal Railway Co. v. King, ante, 377 (91 N. W. 641), and this case is governed by that.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Moore, J.
The plaintiff had a contract with the village of Highland Park which made it necessary for him to give a bond in the sum of $55,000. A bond was furnished by defendant. It is claimed by plaintiff that this bond was not a valid bond, that it was repudiated by defendant, and that he is entitled to recover back the premium he paid for the giving of the bond. The trial judge, in directing a verdict for plaintiff, expressed himself as follows:
“ The counsel for plaintiff in this case claims there was never any liability under the bond. Possibly that may or may not, if it were material for consideration, be a question for you; but it does not seem to me that it is proper to say that, when the liability is called in question of the company, it is competent for the company to say that the bond never had an inception, and that by the terms of the bond, on an application which was strictly honest by Mr. Hanley, a condition was inserted which vitiated it from the first, and afterwards be heard to say that the premium had been earned.
The case is brought here by writ of error.
The important facts are not very much in dispute. August 4, 1898, the plaintiff entered into a written contract with the village of Highland Park, which contained the following agreement:
“And the party of the first part, in consideration of the covenants and agreements of said party of the second part, covenants and agrees to pay unto the said party of the second part the aforesaid sum of fifty-one thousand eight hundred fifty and no /100 dollars as soon as said second party shall sign and seal this agreement, and furnish a bond satisfactory to said first party for the carrying out and completion of the terms of this contract.”
On the same day Mr. Hanley filed an application for a bond for $55,000 to be given by defendant to the village ■of Highland Park, in which was set out the contract, and containing the following statement: “Payments, $51,850.00. Paid when contract was signed, Aug. 4th, 1898. Percentage reserved from payments until completion, none.”
At the same time there was delivered what is called a “preliminary certificate,” that was given in lieu of a bond to be issued in the future, reading as follows:
“Fidelity Department,
“United States Fidelity & Guaranty Company.
“Home Office: Southwest Corner of Calvert and German Streets, Baltimore, Maryland.
“ In consideration of the sum of five dollars, the United States Fidelity & Guaranty Company hereby guarantees the fidelity of James Hanley, in the sum of fifty-five thous- and dollars, in favor of the village of Highland Park, Wayne county, Michigan, from the fourth day of August, 1898, to the fourth day Of August, 1899, subject to all the covenants and conditions set forth and expressed in the bond of this company to be issued on even date herewith, and forwarded from the home office within 15 days from date of issue. ”
(Following printed across end of certificate in red ink:)
“All liability of the company on this instrument shall ■cease and determine on the issuance by the company of the duly executed bond, or, if the bond is not issued, on the fifteenth day from the countersigning of said instrument by the general agent.”
“John R. Bland;
“V. P. and General Manager.
“ City. State. Corporate Seal.
“Alexander Payson Knapp,
“ Secretary.
“Goodrich Bros., General Agents,
“Walker Block, Detroit, Mich.
“August 4, 1898. Countersigned: -,
“General Agent.”
Upon the same date the full amount of the contract price was paid over to Mr. Hanley by the village authorities. The application of Mr. Hanley was forwarded to the home office, and a bond was forwarded containing,, among others, the following condition:
“And provided, lastly, that the assured or the superintendent of the work must give said surety due notice before the last payment under the contract herein referred to is made to the principal; otherwise this obligation shall be void as to any liability of the surety hereunder. ”
When this bond came to the village authorities, it was-not formally accepted, and a question was raised, inasmuch as Mr. Hanley had already received his pay in full, of whether the condition quoted ought not to be stricken from the bond. The village president, acting for the village, took the bond to counsel, who, after examining the bond, suggested that the president write to the defendant a letter containing the following, among other things, which was done August 16, 1898:
“ Gentlemen: Your company, as surety for James Hanley, has executed a bond to the village of Highland Park, Wayne county, Michigan. The penal sum of the-bond is $55,000.00. One provision of said bond reads as. follows: ‘Provided, lastly, that the assured or superintendent of the work must give the said surety due notice-before the last payment under the contract herein referred to is made to the principal; otherwise this obligation shall be void as to any liability of the surety hereunder.’ We understand that you have been furnished with a copy of the contract entered into between Mr. Hanley and the village. And we are further informed that you have been already notified of the fact that the whole amount of the contract price for doing the work has been paid to Mr. Hanley, and that you executed the bond after having received that notice. This being true, the clause above quoted should not be incorporated in the bond. The fact is, as above stated, that Mr. Hanley has already been paid his entire contract. Before passing upon this bond, we wish to be notified whether we are correct in our information, and whether you admit that you received notice of the fact that Mr. Hanley has been paid as above mentioned. Please give this matter your immediate attention.
“Yours very truly,
“W. W. McAlpine,
“President.”
A reply was sent as follows:
“August 18, 1898.
“W. W. McAlpine, Esq.,
“ President Highland Park,
“Wayne County, Michigan.
“ Dear Sir: In re bond of James Hanley, we beg to advise you, in reply to your favor of the 16th instant, that the United States Fidelity & Guaranty Company, when it executed the above bond to the village of Highland Park, Wayne county, Michigan, had not received formal notice that the contract price for doing the work contracted for by him had been paid; hence you are informed that, in view of the premises, this company cannot go any further into the matter, or in any way alter its bond, unless the contractor can comply with the conditions with which it may be the wish of this company to have him comply. What these conditions are cannot at this moment be determined, for a more thorough investigation of the nature of the contract and the standing and responsibility of the contractor will necessarily have to be made. We beg to state, therefore, that, in the light in which the matter stands now, this company will be compelled to insist upon a strict performance of the terms and conditions of the bond executed by it. As a consequence of the information contained in your said favor, the surety company hereby takes occasion to notify you formally that it does not desire to assume the suretyship in question, and therefore we request the return of its bond pending further investigation.”
The bond was not returned as requested. The village president says it was given to the village attorney, to be returned to the company. It is the claim of the company that the village authorities refused to return it until a new bpnd was given.
After the correspondence above quoted, of which correspondence the agent and Mr. Hanley were probably ignorant, Mr. Hanley paid the premium by giving to the agent his check, which included the consideration of the preliminary bond. The agent obtained the bond from the village attorney, and canceled the government stamps.
It is claimed by plaintiff that a special agent interviewed him and his attorney, and insisted that the bond was invalid. It is the claim of defendant that it sought to get a return of the bond and to return the premium, but the plaintiff refused to receive the latter, and insisted that the bond was valid. No other bond was in fact ever given by Mr. Hanley to the village authorities. He proceeded with his work, and had it nearly completed, when trouble arose between the city authorities of Detroit and the village and Mr. Hanley about connecting the village sewer with the Woodward-avenue sewer. On the 7th of June, 1899, the village engineer called the attention of defendant to the situation, and notified it that “the village of Highland Park will hold you liable on the bond for such failure on the part of the contractor.” It is claimed the village engineer had no authority to give this notice.
On the 14th of July a village taxpayer filed a bill in chancery against the village, the trustees of the village, Mr. Hanley, and the defendant in this cause, setting forth Mr. Hanley’s contract; the giving of the bond; the trouble between Mr. Hanley, [he village of Highland Park, and the city of Detroit about the sewer connection, — and claiming that Mr. Hanley had not performed his contract, and that the village authorities were about to accept the contract as completed, and release the defendant on its bond, and praying that they might be enjoined from doing so.
The defendant in this case interposed an unsworn answer in that case, signed by the solicitors only, in which it was stated:
“But this defendant denies that any bond having any validity or force was ever executed or delivered to said village; and this defendant denies that it is now liable or ever was liable, either directly or contingently, to said village on any bond or contract whatever.”
The solicitor who drew and filed this answer testified:
“At the time I drew that answer, I understood the facts to be that all the money had been paid upon the Hanley contract without the knowledge of the United States Fidelity & Guaranty Company, and I regarded that as a violation of the last provision' in the bond, because I regarded that as a misrepresentation of the facts upon which the bond was issued; that is, that it would be a fraud upon the company to secure a bond which provided that the company should have notice of the last payment, and before the bond was issued to have paid up in full, so that the company could not have notice of the last payment referred to in the bond. Had I known the facts at that- time, I would not have filed that answer.”
The litigation in the chancery case does not seem to have been pursued any further. Mr. Hanley completed his contract, and it was accepted without his giving any other bond. About a year later he made a claim for the return of the premium. It was not paid, and, without procuring a return of the bond, some time later this suit was brought.
A great many interesting legal questions are raised by counsel in their briefs, but we think the facts are controlling. The record discloses very clearly: First, that the preliminary bond was regarded as sufficiently satisfactory, and so far a compliance with the terms of the contract that the village authorities were willing to, and did, pay over to the plaintiff the full amount which was to be earned by a performance of the contract, $51,850; second, the agent of the company knew of this payment when the application was drawn upon which the formal bond was issued, and a statement of the fact was made in the application, so that the defendant company must be presumed to have known that all the payments had been made when it executed and forwarded the formal bond; third, when the company requested a return of the bond, its request was not granted, but the bond was retained, and Mr. Hanley was allowed to go on and complete his contract without requiring any other bond; fourth, it was not until considerable time had elapsed after Mr. Hanley had completed his contract, and it had been accepted, and the occa sion for giving a bond had passed by, that he made any claim that he was entitled to a return of the consideration he had paid for a bond, which, so far as he was concerned, had performed its full office. Under these circumstances, instead of directing a verdict for the plaintiff, one should have been directed in favor of defendant.
The judgment is reversed, and a new trial granted.
Hooker, O. J., Grant and Montgomery, JJ., concurred. | [
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Montgomery, J.
This is an action on a township treasurer’s bond in the penal sum of $4,000. The suit was originally instituted injustice’s court. Plaintiff recovered in both the justice’s court and at the circuit. Defendants bring error. The summons does not appear in the record, but the declaration complains of the defendants “in a plea that they render to the said plaintiff the sum of three hundred dollars, which they owe to and unlawfully detain from the said plaintiff,” — the usual form of commencement of a declaration in debt. 2 Stev. Mich. Prac. p. 515. The declaration then recites the bond, assigns a breach, and concludes with an allegation of damages.
The action is clearly an action in debt. The only question presented for our consideration is whether an action of debt on a bond of this character, with a penalty of more than $300, can be brought in justice’s court. This question must be answered in the negative, on the authority of Bishop v. Freeman, 42 Mich. 533 (4 N. W. 290); Durfee v. Dean, 52 Mich. 387 (18 N. W. 118); Gray v. Stafford, 52 Mich. 497 (18 N. W. 235). There is a statute conferring jurisdiction upon justices of the peace in actions on money bonds where the sum of the amount secured is $150 or less. 1 Comp. Laws, § 709. So, also, under a statute authorizing suit in assumpsit by a third party not the payee in a bond to recover his damages (1 Comp. Laws, § 890), we have held that a justice has jurisdiction if the amount actually involved is less than $300. Montgomery v. Martin, 104 Mich. 390 (62 N. W. 578). But neither of these statutes aids the plaintiff here.
Judgment will be reversed, and judgment entered in this court for defendants for costs of both courts, including an attorney’s fee of $10 for the trial below. The judgment entry w-ill show that the case is decided solely on the ground of want of jurisdiction, and judgment will be without prejudice to a new action in the proper forum.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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Moore, J.
In May, 1901, Leo R. Snyder, plaintiff’s intestate, was killed on a railroad crossing. Suit was brought, and a judgment rendered in favor of plaintiff for $250. Plaintiff moved for a new trial. His motion was overruled. The case is brought here by the plaintiff by writ of error.
Two questions are involved: First. Did the judge err in his instructions to the jury in relation to the measure of damages ? Second. Did the judge err in refusing to grant a new trial because the amount of the verdict was inadequate? Before answering these questions, a brief statement of facts is necessary. At the time of his death, Leo R. Snyder was 11 years and 5 months old. He was a boy of intelligence, who was attending graded school, and who' drove cows to pasture for his neighbors, and, when he had leisure, sold popcorn and peanuts. The father testified no plans had been made as to whether the boy should complete a course in the public schools. The testimony of his father was that he earned enough to pay for his own clothes, though it was not shown what the clothes cost. It was the claim of the plaintiff that his son had unusual aptitude for drawing and woodcarving; that he had some instruction from a relative, who was an engraver and designer, and that this boy, if he pursued that line of study, would make a skillful engraver and designer. None of his work was shown in evidence, and it was not shown he had ever earned anything as an engraver and designer. Against the objection of defendant, testimony was introduced of the following character:
“ Q. With this boy’s aptitude for the business as you saw it, with proper instructions that you gave him, about how long would it be before he would, in your judgment, become proficient enough to earn money at the business ?
“A. I think it would have taken him not over a year, and, if he had kept on at the way he was going at the time of his death until he was 15 years of age, — he was 12 at the time of his death,- — he could have earned easily from $12 to $15 a week. Any one could with the talent that he had. ”
On the part of the defendant there was testimony introduced as to the earning capacity of boys, some of whom had been instructed in drawing, and others of whom had no instruction. It was the judgment of some of these witnesses that boys of the age of the deceased would not earn anything over and above the expense of their board, clothing, and education.
The plaintiff offered the following request:
“You are instructed that, if you find that the plaintiff is entitled to recover in this case, the measure of his damages will be the value of the services of his son during his minority, less the probable cost of his support and maintenance, as shown by the testimony in the case, taking into consideration the probability of the deceased living until 21 years of age, and also the probability of the father and mother of the deceased living until the deceased reached the age of 21 years.”
This was not given, unless it was covered by the general charge, which was as follows:
“ In this case; if the verdict of the jury is for the plaintiff, it can only be for an amount that the boy Leo Snyder’s services would have been worth over and above the expenses of taking care of him, clothing him, and educating him from the time of his injury up to the time he was 21 years of age.
‘ ‘ In considering the question of how much the services of the said Leo Snyder would probably have been worth from the time of his injury up to the time that he was 21 years of age, over and above the expense of taking care of and clothing him and educating him in a manner which was probable that he would have been educated, the jury are entitled to take into consideration what the services of a boy, such as the testimony describes him to have been, would have fairly been worth ordinarily.
“While there has been testimony allowed in this case as to what wages have sometimes been paid boys for services in particular lines of business, this is not of itself conclusive as to what the services of this boy would have been worth.
“ There has been evidence introduced on the part of the defendant on the question of the value of the services of a boy of the age that this one was at the time of his injury, and from that time up to the time he was 21 years of age; and the jury must' make up their minds on this subject based upon facts, not upon any fancies which they may have in their minds. What would be the value, ordinarily, of the services of such a boy, over and above his expense as above set forth, as shown by the evidence ?
“ The jury has been allowed to hear the testimony of witnesses in different kinds of business, and in somewhat different stations or kinds of business of life, giving their judgment as to what the value of the services of a boy would ordinarily be from the age of Leo Snyder up to the time that he was 21 years of age, over and above the cost and expense of raising him, and his cost and expense of living; and the jury are entitled to take this testimony into consideration with any other that may be in the case for the purpose of determining this question.
“ The jury is instructed that the fact, if it be a fact, that the boy Leo Snyder was in the habit of making pictures or drawings, or was interested in that line of work, would not by any means establish as a fact in this case that he would at some future time be able, through any such work, to earn any large sums of money. You. may consider that testimony, however, as bearing upon his possible earning power and ability had he lived. While this testimony was allowed to go in before the jury, it does not follow that the jury would be justified in determining that his services in the future would be worth what those of somebody else may have been in the line of business that was mentioned by the witnesses.
“It is not alone what a boy would probably earn from the time he was 11£ years old until he was 21, but the jury should consider also the amount of probable expense of raising, educating, clothing, and feeding such boy, and the payment of such other ordinary expenses as would naturally be expected to be paid for him, during the years mentioned.
“ In considering the question of the value of services, the jury have a right to consider, from the testimony there is in the case, what would probably be the number of years that the boy would attend school for the purpose of obtaining an education to fit himself fo.r any particular line of work; and if, during a certain number of years of his life, he was not able to earn any money, or any great amount of money, but, during such years, whether it would or would not be probable that money would have to be paid out for his care, keeping, and clothing; then, as he grew older, he would be able to earn more money, but still be obliged to pay for his keeping and clothing and ordinary necessary expenses; all these things should be considered by the jury in determining what the net value of his service would be, if anything, for the whole period of time from his accident up to the time he was 21 years of age; and if, in considering all these facts, the jury believe that his services would not be worth anything in cash, then they are not entitled to find any damages beyond nominal damages in this case.
“ In considering this question of damages, the jury is not to take into consideration anything except the question of what his probable services would be worth from the time of his injui-y up to the age of 21 years, over and above his expenses as above explained, if he had lived. The jury cannot take into consideration, nor be in any way swayed in this case by, the grief which his death may have caused his parents, or any of his relatives, or by the loss of his society to them, or of any other facts in the case except that of loss of services; and consequently, however sad this accident may have been to his family, and however much sorrow may have been caused by such accident and by his death, is of no sort of consequence to this jury in determining the question that is before you to determine as to damages, if you come to a point of determining the matter of damages. If you find for the plaintiff, the verdict must be one based entirely upon monetary consideration for the value of services, less expenses, as above explained; and no other thing must enter into your consideration on the question of damages to be allowed. The law does not allow damages in this kind of a case for loss of companionship of the deceased, for sorrow on account of his death, for expenses for his burial, or for any other thing whatever except for the loss of services until he is 21 years of age, and no longer; and the jury must be governed by this law as given by the court, and apply no other rule to it.
“ Upon this question of damages I further instruct you that, if you find the plaintiff is entitled to recover, you should take into consideration the probability of the deceased living to be 21 years of age; also the probability of his father and mother living until the boy attained 21 years of age; also any liability to illness, and the liability of his inability to earn money, or for any other reasons which the testimony may show, — inability to get employ ment, injury to any part of his person which might impair one’s ability to earn money; you should, on this question, consider everything that would be likely to affect, favorably or unfavorably, his power to earn money.
“ On this question, gentlemen of the jury, I think it best to read you the following provision of law, which now exists, and which counsel on both sides in their argument to you commented upon, so that there will be no mistake as to the law; and, as both counsel seem to differ a little about it, in view of that difference in the statement of the law to you, I thought best for me to read this section of the statute, which is plain English, and you can understand it fully as well or better than if I tried to state it to you in general terms. [The judge read to the jury section 4847, 2 Comp. Laws, requiring children within school ages to attend the public schools.]
“You should weigh, gentlemen of the jury, with great care, this testimony upon the question of this boy’s claimed adaptabilities to draw and carve, if you find he had such adaptabilities, and you should only allow damages upon this branch — if you come to the question of damages— after the most careful consideration of the testimony bearing upon the question, and after satisfying yourselves from the testimony that he had- — -if he had — -such special adaptability to draw and carve as claimed by the plaintiff in this case, and, further, after being fully satisfied from the evidence that, if he did have such adaptability, he would have followed the business until arriving at 21 years of age. Would he have made a good workman at drawing, carving, etc.? Would he have followed it? Would he have received such wages as the witnesses testify are now being paid to draftsmen ? Consider all these questions, all the testimony, all the matters and contingencies weighing for and against the question of his special adaptabilities, and decide it according to your own good judgment. Unless you are satisfied that he would have earned something because of this claimed drawing ability or his ability to carve, you must not allow anything for it. Now, I am not telling you, and do not mean by this instruction, that you should not nor that you should allow anything on this account. I leave it to you wholly as a question of fact, and simply give you that instruction in view of that feature in this case, so that you will consider that branch of the case with great care.”
It is insisted the following portions of the charge are incorrect:
“In considering the question of how much the_services of the said Leo Snyder would probably have been worth from the time of his injury up to the time that he was 21 years of age, over and above the expense of taking care of and clothing him and educating him in a manner which was probable that he would have been educated,” etc.
“In considering the question of the value of services, the jury have a right to consider, from the testimony there is in the case, what would probably be the number of years that the boy would attend school for the purpose of obtaining an education,” etc.
It is said the judge left the jury to speculate as to how many years of his minority the deceased would probably have attended school had he lived, and that the jury were not entitled to speculate upon the probable kind of an education the boy would have received, and the expense of it, and allow the railway company to offset it against his earnings.
These portions of the charge should be read in connection with what preceded' and followed them. When that is done, we think the criticism is not well taken. The future of the boy was problematical. No definite plans had been made for his education. He had earned small sums of money, but it could not be said what sums he would be able to earn in the future. The testimony was not definite, nor was it conclusive. It was for the jury to take into consideration. We think the instruction was in harmony with the cases of Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Rajnowski v. Railroad Co., 74 Mich. 20 (41 N. W. 847); Hurst v. Railway, 84 Mich. 539 (48 N. W. 44); City of Elwood v. Addison, 26 Ind. App. 28 (59 N. E. 47).
The following portion of the charge was objected to:
“The jury is instructed that the fact, if it be a fact, that the boy Leo Snyder was in the habit of making pictures or drawings, or was interested in that line of work, would not by any means establish as a fact in this case that he would at some future time be able, through any such work, to earn any large sums of money.”
It is said that by this instruction the court invaded the province of the jury, and indicated what the evidence established. We cannot agree with counsel in this conclusion, but think the statement of the court is justified by the facts and experiences of daily life. While it may be probable that a bright boy, selecting a calling for which he has a natural aptitude, will be successful in that calling, it does not follow as an established fact that a bright boy, who has shown an aptitude for a given calling, will follow that aptitude, select the calling, and make a success therein. When the judge followed this portion of his charge by instructing the jury that this testimony might be considered in connection with all the other testimony in determining the earning capacity of the boy, we think he properly instructed them.
The other criticisms of the charge have been considered, but will not be discussed.
We now come to the question, Did the court err in refusing a new trial because the verdict was inadequate ? In giving his reasons for refusing a new trial the circuit judge said:
“Plaintiff insists that, the jury once determining that plaintiff was entitled to damages, then the jury was legally obliged to find damages larger in amount than were found. If the testimony in this case had all, or practically all, tended to show a minimum sum as a value of the services of plaintiff’s intestate over and above his care, maintenance, and support, and the jury had found a sum for the plaintiff much below a minimum sum as shown by the testimony, there might, under such circumstances, be good reason for urging that this verdict was inadequate. Defendant offered several witnesses who testified that a boy such as plaintiff’s intestate would earn nothing for his parents, over and above his maintenance and support, up to the time he became 21 years of age; so that there was testimony from which the jury could legitimately decide that plaintiff should recover nothing, or that he should recover some sum between nothing and the highest amount warranted by the testimony of plaintiff’s witnesses. In a case such as this one, and under the same state of facts, a court ought to hesitate "long before setting aside a verdict of a jury on a claim that the damages allowed are too small, and, before setting aside a verdict on that ground, the court should be able to conclude from the testimony, and be fully satisfied, that the testimony does not warrant the verdict as to the amount. I cannot say, from the testimony in this case, that the jury was not entirely justified in fixing the amount of the damages at $250, and must hold the amount as found fully sustained by the testimony.”
In Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482), Justice Champlin, in speaking for the court, said:
“The statute authorizes the jury, in every case of this kind, to give such amount of damages as they shall deem fair and just to the persons who may be entitled to the same when recovered. Under this statute the jury are not warranted in giving damages not founded upon the testimony, or beyond the measure of compensation for the injury inflicted. They cannot give damages founded upon their fancy, or based upon visionary estimates of probabilities or chances. The rule of damages in actions for torts does not apply to actions of this kind. The statute gives the right to damages; but it has been held, with rare exceptions, that they must be confined to those damages which are capable 'of being measured by a pecuniary standard. Cooley, Torts, 271, and cases cited in note 2.”
See, also, Rajnowski v. Railroad Co., 74 Mich. 20 (41 N. W. 847); Hurst v. Railway, 84 Mich. 539 (48 N. W. 44.
There was no testimony from which the earning capacity of this boy could be computed to a mathematical certainty. It was a question about which different persons might and would disagree. Such testimony as the parties were able to produce was offered on each side. The weight of that testimony, its credibility, and the conclusions to be drawn from it were for the jury.
There is a discussion of when the circuit judge ought to grant a new trial in Wheeler v. Jenison, 120 Mich. 422 (79 N. W. 643), and it will not be necessary to repeat what was said there. We are not satisfied the court erred in the exercise of his discretion in refusing a new trial.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Hooker, C. J.
Plaintiff was injured on a sidewalk June 3d. Notice was served on the common council on June 5th. The claim was referred by the council to its committee on claims, which proceeded to investigate the matter, calling to its assistance Mr. Hally, an attaché of the city counselor’s office. On August 7th the committee took testimony concerning the claim, and there was testimony upon the trial that notice of the claim was on that day served upon Hally. This was contradicted, and raised a question for the jury, if the question was controlling. On August 15th the committee examined the plaintiff, and on November 13th reported against allowing the claim. This action was then brought, and a judgment was rendered for the plaintiff, and defendant has appealed.
The important question is that of waiver. It is based on the fact that the council and city attorney, through his subordinate, acted upon the claim as presented to the council, and gave the plaintiff the right to suppose that they were willing to treat the notice as sufficient. We have often decided that the common council may waive the formalities of a notice. Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444); Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663); Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141); Kriseler v. Le Valley, 122 Mich. 576 (81 N. W. 580). Without intending to hold that the city attorney may waive notice upon him, and thereby bind the city, we have no hesitation in saying that the council may do so. Whether it has done so or not is usually a question of fact to be submitted to a jury; but the facts are undisputed in this case, and we think it was proper for the circuit judge to instruct the jury that by referring the claim to its committee to investigate upon its merits, and through the action of its committee in doing so, it waived a right of further notice.
It is manifestly improper to allow proof of the condition of the sidewalk on a subsequent occasion, without proof that the condition has remained unchanged from the time of the accident, unless it is so near in point of time as to lead to a fair inference that the condition has remained unchanged. We think that the next morning was not so remote as to render the testimony inadmissible. The defendant does not appear to have claimed that there had been any change.
The plaintiff testified:
“ I have suffered a great many severe headaches since I was injured.
“ <9- To what do you attribute that? What do you think is the cause of it? (Objected to as incompetent and immaterial.)
‘ ‘ Q. Did you have headaches ?
“A. No, sir; I was perfectly well before.
“ The Court: Answer the question. Note an exception.
“A. I attribute the headaches to the injury in my back. It runs right up my back and up the back of my head.”
Ordinarily, the testimony of experts is required to determine the cause of physical ailments. The question first asked called for doubtful testimony, but the answer as given was admissible. It was' competent for the witness to describe the pain in the back of her head, and that it ran up her back from the place of the injury, and the fact that she gave her conclusion as to the connection between the injury and the pain in the head cannot be said to have been injurious, in the light of the remainder of the answer.
A witness — Mr. Soop — had testified to a break in the sidewalk, and that the sidewalk would teeter back and forth when stepped on. He was then asked:
“ How was the sidewalk on the south side of Hudson, between Twenty-third and Tillman, generally, as to being in good condition or in a dangerous condition ?
“A. It was in a dangerous condition.
“ Mr. Hally: I ask that that answer be stricken out.
“ The Court: Let it stand. Note an’exception.”
This testimony was clearly incompetent. It is not the province of a witness to determine the issue in the case; it is for him to describe conditions, and allow the jury to draw the inference that the sidewalk is or is not dangerous. Harris v. Township of Clinton, 64 Mich. 457 (31 N. W. 425, 8 Am. St. Rep. 842); Atherton v. Village of Bancroft, 114 Mich. 241 (72 N. W. 208); People v. Plank-Road Co., 125 Mich. 367 (84 N. W. 290). It is said that no ground was assigned for the motion, and we find none, and the court may have supposed it to have been based upon the fact that the inquiry was not confined to the exact point and particular defect where the injury occurred.
The judgment is affirmed.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
This is an appeal from an order -overruling the several demurrers of defendants to the bill, of complaint. The bill alleges that there are in said township numerous highways, bridges, and culverts, constructed, built, and maintained at the public expense, and controlled by the township. It sets out the location of these highways, bridges, and culverts, and the cost; that there are certain low lands in the township, and no outlet by which water brought upon such lands can escape, but that the water remains and forms a nuisance, and endangers the public health, and should be abated. The bill further alleges that the county authorities of the county of Tuscola, to wit, the county drain commissioner, who is made a defendant herein, and the township authorities of the townships of Gilford, Tuscola county, and of Denmark, Tuscola county (the highway commissioners of such townships being made defendants), have caused certain drains and ditches to be constructed and maintained, which carry, convey, and discharge water upon the low lands before mentioned. The bill proceeds to describe specifically the land, and then alleges that, when there is a large accumulation of water in the ditches, in the spring and at other wet seasons of the year, the water conveyed by the ditches comes through them in such quantity and with such force as to injure and destroy the highways and bridges before referred to. The bill further alleges that the defendants claim and contend that they have the right to continue to maintain said ditches and drains, and asks that this continuing trespass be restrained. The demurrer is based upon two propositions: First, that the bill is multifarious; and, second, that the complainant cannot maintain the action, for the reason that the highways and bridges are under the supervision of the highway commissioner. Under Chancery Rule 9 a, we need not look further to the substance of the bill than to ascertain whether it is open to the specific objections raised by the demurrer.
It is contended that, for any such injury as is threatened to the highways of the township, the highway commissioner is the only party who can bring suit; and reliance is placed upon the case of Township of Denver v. Booming Co., 51 Mich. 472 (16 N. W. 817). That was an action at law to recover damages, and it was there held that, inasmuch as the statute confers the right upon the overseer of highways in the first instance, and upon the highway commissioner in case of his failure, to institute suits for injuries to highways, an action for damages could not be maintained by the township; and this upon the ground that the statute then in force, and still in force, contemplated that the proceeds of an action for damages to the highway should be appropriated to the fund of the district where the injury occurred, and that it would be contrary to its terms to allow such suits to be brought on several grievances, in separate districts, together, so as to make it impossible to get at the share of each district. But that case recognizes that, since townships have been made responsible in certain cases for injuries arising from defective bridges and ways, they have an interest in the maintenance of such highways. At least, there is no intimation against such a view. Nor are we cited to any statute which excludes the township from taking preventive measures, in its own interests, to preserve its highways. Nor are we cited to any case in which the courts have so declared. The township is a body corporate, and by 1 Comp. Laws, § 2268, is authorized to sue and be sued in its corporate name; and that it may apply to a court of equity, in a proper case, to prevent injury to property in which it is interested, seems to us clear.
As to the question of multifariousness, if the defendants are, in their several capacities, concerned in maintaining a water-course which casts water upon the lands of the complainant township, creating a nuisance, endangering its highways and bridges, they would seem to be proper parties. We think the bill sufficiently avers this, and the question of fact cannot be tried upon this issue. See the case of Davis v. Township of Frankenlust, 118 Mich. 494 (76 N. W. 1045).
That an unauthorized casting of water upon lands which have not been condemned, even though done by public authority, may create a nuisance which is remediable, see Pennoyer v. City of Saginaw, 8 Mich. 534; Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552).
The order overruling the demurrers will be sustained, and the case remanded, with leave to the defendants to answer over on the usual terms. The complainant will recover costs in this court.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The plaintiff, a farmer, while driving north on Saginaw street, crossing Center street, in Bay City, was struck by a street-railway car. This suit was brought to recover damages for the injuries he received. After the witnesses for plaintiff had been sworn, and before any proof had been offered by defendants, the circuit judge directed a verdict in favor of defendants. The case is brought here by writ of error. ■
The city ordinance, under which the street cars were allowed to run, required the cars to be equipped with a suitable alarm bell, which was to be rung at least 50 feet from each street crossing as the car approached the crossing. Center street runs east and west. Saginaw street runs north and south. It is the claim of plaintiff that he was driving a gentle horse attached to an open, light wagon, in which he was sitting upon an inverted bushel basket; that he stopped near where the south sidewalk on Center street crosses Saginaw street, to enable a person who was riding with him to alight; that, before starting his horse north, he looked and saw one of defendants’ cars about 100 feet west of Saginaw street, standing still; that at the same time he saw a suburban car to the east, which was coming west, ringing its bell; that, believing he had ample time to cross Center street, he started his horse for the purpose of doing so; that for a moment he doubted whether he had time to pass ahead of the suburban car, and slackened the pace of his horse, but concluded he had ample time to do so, and urged it forward; that his attention was wholly occupied by the suburban car after he started to cross the street, and that, if the motorman had been observant, he would have noticed the fact. The plaintiff crossed the track upon which the suburban car was running safely. In the meantime the car which was standing west of Saginaw street started east, and it is the claim of plaintiff the motorman gave no warning of the approach of the car, and that plaintiff had no reason to suppose he was in danger from it until his wagon was struck by it, and he was thrown as high as the car, and suffered very severe injuries.
If the motorman ran his car east under the circumstances, and without any warning being given by him, as indicated by the testimony of the witnesses for plaintiff, he was negligent, and the plaintiff should be allowed to recover unless he is precluded from doing so by his own act. The case is not free from doubt. It is near the border line. We think, however, the testimony was for the jury, and that it cannot be said, as a matter of law, that plaintiff was guilty of such negligence as to preclude him from recovering. His attention was occupied more or less by the approaching suburban car, which was giving warning of its approach by the ringing of its bell. Before he started across the street he saw that the car to the west was standing still. It was the duty of the person in charge of it to signal its approach to the crossing by the ringing of the bell. The testimony discloses plaintiff’s hearing was not impaired. The motorman could see the plaintiff, and could see that his attention was occupied by the suburban car. We think the case falls within the following cases: Rouse v. Railway, 128 Mich. 149 (87 N. W. 68); Edwards v. Foote, 129 Mich. 121 (88 N. W. 404); Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and the cases cited therein.
Judgment reversed, and new trial ordered.
Hooker, C. J., and Montgomery, J., concurred with Moore, J. | [
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Moore, J.
This case was tried before a jury. The defendant requested the judge to direct a verdict in her favor. He declined to do so. The jury rendered a verdict for $92.20. The case is brought here by writ of error.
The defendant is a married woman. During 1897 the plaintiffs were engaged in the business of manufacturing furniture and fixtures for barrooms and other places of business. Valentine Goldsmith is the name of the husband of defendant. The record shows that March 13, 1897, he leased in his own name No. 37 Cadillac Square, for two years. About April 1st he took out a saloon license in his own name. During the month of April the plaintiffs furnished to him furniture and fixtures for the saloon amounting to $193.20. These items were charged to Valentine Goldsmith on the books of the company, and at least three statements of account were made out to him, headed: “V. Goldsmith, in Account with the Hoffman Manufacturing Company. 1897, April 6. To Mdse., $58.50.” And then followed other items. Payments were made from time to time, but a balance was left unpaid.
This, suit was commenced in June, 1901. About six months before the commencement of the suit, the records-in the city hall were examined by direction of the plaintiffs, and they decided to bring suit against the defendant. In trying to make their case, Mr. Krause, a member of the firm, was sworn. He was not present when the order for the work was given, and there is nothing in his testimony from which it can be fairly inferred that the credit was extended to Mrs. Goldsmith, or that the work was done for her. The fair inference from the testimony is that the work was done for Mr. Goldsmith, and the credit extended to him. A clerk from the office of the city clerk was sworn, by whom it was shown that a chattel mortgage and bill of sale were given. On April 12, 1897, Mr. Goldsmith gave to his wife a chattel mortgage for $600 on the property in the saloon. Mr. Goldsmith and his wife testified it was for borrowed money; and later, when Mr. Goldsmith became the proprietor of the hotel, he gave his wife a bill of sale of the property contained therein, including that in the saloon, for $1,500, which they both testify was to secure her for the $600 and an additional $900 which she loaned him. The testimony of both Mr. and Mrs. Goldsmith was that she was not the owner and had nothing to do with the management of the saloon, and that she never ordered the articles for which the suit was brought, or authorized any one else to do so. Plaintiffs were allowed to show that, in a suit brought in jus tice’s court in 1901 by Mrs. Goldsmith, Mr. Goldsmith swore she was owner and lessee of the premises.
After a careful reading of the record, we are satisfied there was no evidence showing any liability on the part of Mrs. Goldsmith, and that, under the rule laid down in the following cases, a verdict ought to have been directed for defendant: West v. Laraway, 28 Mich. 464; Russel v. Bank, 39 Mich. 671 (33 Am. Rep. 444); Kenton Ins. Co. v. McClellan, 43 Mich. 564 (6 N. W. 88); Fechheimer v. Peirce, 70 Mich. 442 (38 N. W. 325); Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 253 (47 N. W. 104); Artman v. Ferguson, 73 Mich. 146 (40 N. W. 907, 2 L. R. A. 343, 16 Am. St. Rep. 572); Chamberlain v. Murrin, 92 Mich. 361 (52 N. W. 640); Fisk v. Mills, 104 Mich. 433 (62 N. W. 559).
Judgment is reversed, and new trial ordered.
Hooker, C. J., and Montgomery, J., concurred. Long and Grant, JJ., did not sit. | [
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Grant, J.
On December 22, 1898, one Mrs. Frances P. Edwards filed a bill for partition, making the relator and others parties thereto. The property belonged to Philo Parsons in his lifetime. He left seven children, of whom the relator and Mrs. Edwards were two. The lands were situated in the city of Detroit, fronting upon Woodward avenue and Watson street; extending from Woodward avenue back to John R. street. A strip 74 feet wide next to Watson street was the property of Mrs. Parsons. The 43 feet adjoining that belonged to Mr. Parsons. Relator had mortgaged her interest in the land belonging to her mother to one Jennie M. Collier. That mortgage was foreclosed, a foreclosure deed executed and recorded, and the time of redemption, if no extension of time had been given, had expired 12 days before this bill was filed. The bill of complaint alleged the foreclosure proceedings, the execution and recording of the deed thereunder, and then alleged that ‘ ‘ said foreclosure sale is still open to redemption, under an agreenient extending the time therefor.” The bill was taken as confessed against relator after due process was served upon her. Mrs. Collier answered, but did not deny the above allegation; her answer being entirely silent in regard to it. Further proceedings were had, resulting in the appointment of commissioners and partition, and on March 24, 1902, the final report of the commissioners was confirmed. Eelator’s husband appeared for her when the report came up for confirmation, and made the sole objection that there was an error in the southerly line of the property. Adjournments were had at the request of Mr. Chidsey, and the final adjournment was granted upon the statement of relator’s representatives in court that, if an agreement in regard to the land could not be had, no further objection to the confirmation of the report would be made. On March 24, 1902, relator applied to the court for an order setting aside her default, declaring all the proceedings void, and giving her permission to appear and defend. The motion was denied, and she now asks the writ of mandamus to compel the court to grant her motion.
Eelator does not claim any misrepresentation on the part of the complainant in the bill for partition, or any one else connected therewith. She rests ‘ ‘ on the assumption that the proceeding was a formal one, and that her rights would be protected by the court.” The bill positively asserted that the time of redemption from the foreclosure proceedings had been extended. If so, she still had an interest in the property, and was a proper party to the suit. She is chargeable with notice of the contents of the bill. If, as she now asserts, she had parted with her title to lot 4, the bill could not have been maintained, because she had no interest therein. If, on the contrary, the time of redemption had been extended, she still had an interest, and was properly made a party. The answer of Mrs. Collier is a virtual admission of the truth of the allegation. No one thought it worth while to deny this allegation or to contest it until the close of the proceedings, which lasted three years, and which have subjected the parties to great expense. We think it was the duty of relator to know what was in the bill of complaint, and, if there were any allegations there affecting her rights adversely, it was her duty to appear and defend. Then was her time to speak. We do not think that she is now in position to have these proceedings all set aside, and further expense incurred.
The writ is denied.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
Mr. Samuel S. Wood died, leaving a small estate. His widow did not apply for administration of his estate. After about 50 days had elapsed, Mr. Carpenter, who claimed to be a creditor, petitioned for the appointment of himself or some other person as administrator. Mrs. Wood was opposed to the appointment of Mr. Carpenter. She claimed the estate was not indebted to him. The probate judge was of the opinion that, because of his interest and the feeling between the widow and Mr. Carpenter, the latter was not a suitable person to be appointed administrator, and appointed Mr. Kirwin. Mr. Carpenter appealed to the circuit court, where the case was tried without a jury. The circuit judge affirmed the action of the probate judge, and Mr. Carpenter has brought the case here.
Upon the trial in the circuit court the probate judge was sworn as a witness, and testified:
“I think I made it plain in the disposition of the matter, to both counsel, that the reason I declined to appoint Mr. Carpenter was that in view of the difference existing between him and the widow over the status of his claim, and the enmity between them, and the dispute between them, that it was improper for either party, either, creditor or widow, to be appointed administrator of the estate. That was the contest on the final hearing.”
Mr. Carpenter was also sworn, and testified that he had Mr. Wood’s note for $175, upon which $35 had been paid, and that the balance was due and unpaid.
Mrs. Wood was sworn, and testified that, shortly before the death of her husband, she heard a talk between him and Mr. Carpenter, in which—
“Mr. Wood said he was not going to take the piano, because it was not as recommended; that he could take the piano out, and he would call it square with him on account of what he had paid. Mr. Carpenter said he would take it out as soon as he could find a place for it, and in the meantime for us to try and dispose of it, and he would do the same. Mr. Carpenter’s claim arose from the sale of that piano to my husband. I don’t claim that he owes him anything.”
There is a direct conflict between the widow and Mr. Carpenter. The circuit judge, among other things, found:
‘ ‘ Mr. Carpenter claims to be a creditor of said estate, and said widow denies that said estate is indebted in any sum whatever to said petitioner, and by reason of such claim much feeling has arisen between said claimant and said widow; and by reason thereof I find that said petitioner is not a competent and suitable person to administer said estate in its interests and the interests of the creditors of said estate, and that the said Joseph Kirwin is a competent and suitable person to perform the duties of administrator of said estate.”
It is claimed' in this court there was no testimony justifying this finding; that Mr. Carpenter is not disqualified, and, because the widow did not ask for administration within 30 days after the death of Mr. Wood, that Mr. Carpenter, as a matter of right, is entitled to letters of administration.
This court does not have the advantage which the probate judge and the circuit judge possessed in seeing the witnesses, their manner and conduct in giving testimony, but the record discloses an abundance of evidence upon which to base the action of the circuit judge. See 3 Comp. Laws, § 9324; Wilkinson v. Conaty, 65 Mich. 614 (32 N. W. 841).
The judgment is affirmed.
Hooker, C. J., and Montgomery, J., concurred. Grant, J., took no part in the decision. | [
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Grant, J.
(after stating the facts). Making flying switches is a method in common use by the railroad companies of this country. It was not, therefore, negligence on the part of the defendant to do this work in the usual and customary way. 3 Elliott, R. R. § 1274; Schaible v. Railway Co., 97 Mich. 318 (56 N. W. 565, 21 L. R. A. 660); Pahlan v. Railway Co., 122 Mich. 232 (81 N. W. 103). Other courts have recognized this practice as existing in most pf the railroad yards in the country, and have therefore held that it does not constitute negligence as to employes. Hunt v. Hurd, 39 C. C. A. 226, 98 Fed. 683.
Plaintiff had assisted in making these flying switches for eight days previous to the accident, and made no objection. He therefore assumed the risk. Youll v. Railway Co., 66 Iowa, 346 (23 N. W. 736); Jolly v. Railroad Co., 93 Mich. 370 (53 N. W. 526); Kelley v. Railway Co., 53 Wis. 74 (9 N. W. 816); Fordyce v. Lowman, 57 Ark. 160 (20 S. W. 1090); Bengtson v. Railway Co., 47 Minn. 486 (50 N. W. 531); Coombs v. Railroad Co., 156 Mass. 200 (30 N. E. 1140).
Judgment affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Moore, J.
Nearly all of the questions involved in this case are disposed of in the case of the same petitioner against King, ante, 377 (91 N. W. 641), and are governed by the opinion in that case. There are some questions, however, which need to be referred to here. It is claimed :
‘ ‘ There is nothing in the petition which shows that the land condemned, or any part of it along .said route, is intended for station grounds; nor was there any evidence tending to show the necessity of the lands, aside, than for general railroad purposes.”
The petition is too long to set out in full here, but a reference to it shows a full compliance with the statutory provision as to what it shall contain.
It is claimed there was no evidence that the petitioner had been unable to acquire title to the land. That statement is averred in the petition, and, as the testimony taken before the jury is not before us, we are unable to say there was no evidence of the fact.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Grant, J.
(dissenting). Plaintiff recovered verdict and judgment upon a policy of insurance for a loss by fire. The policy was dated August 3, 1899. In his application were the following question and answer: “What will be the total insurance on the buildings, machinery, boiler, and engine? Answer. Two thousand five hundred dollars.” The applicatipn further stated :
“The undersigned applicant hereby warrants that the above is a just, full, and true exposition of the facts and circumstances in regard to the property to- be insured, and is and shall be considered as the basis on which insurance is to be effected and continued in force, and the same is understood as incorporated in and forming a part and parcel of the policy as a continuing warranty during the life of such policy.”
The policy was of the Michigan standard, and contained the following provisions:
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof. * * *
“ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”
Plaintiff was permitted to testify to conversations between the defendant’s solicitor, who took the policy, and himself, as follows:
“ I wanted the policy fixed so that I could take other concurrent insurance on it, — on the entire plant throughout, any place, on the building or machinery, stock, engine room, boiler, and so forth. He said that would be all right. He said it would be perfectly satisfactory with them, and they would fix the policy so that I could. * * * After he read it over again, I again called his attention to the policy being fixed so that I could take out other concurrent insurance; that after I got tho mill going I intended to take out more insurance on it than I had at the present time, — after the mill was completed and in operation. He agreed to that, and said it would be perfectly satisfactory to the company, and they would fix my policy so that I could.”
Plaintiff was also permitted to testify that in December, 1900, he met defendant’s solicitor at Albion, and told him that he had taken out another policy, and that the solicitor said:
“ ‘ You can carry more than that on all your stock.’ * * * He said I could take out more insurance, and I told him I wasn’t able to at present; that perhaps after awhile I would give, him some more insurance.”
On September 28, 1899, plaintiff took out additional insurance in the Michigan Manufacturers’ Mutual Fire-Insurance Company of Bay City, for $1,000. Plaintiff further testified that on January 15, 1900, he wrote and mailed a letter to the defendant, which reads as follows:
“ Gentlemen: I thought perhaps it would be advisable to inform you that I have taken out more insurance on the stock in process, grain, machinery, and on the mill building. Not just remembering the conditions of your policy, as the bank at Charlotte holds the same, if there is anything that conflicts with your policy, please advise me.”
Defendant denied receiving such a letter.
On February 7, 1901, plaintiff secured additional insurance to the amount of $1,500 in the Detroit Fire & Marine Insurance Company, upon the same property, without the knowledge or assent of the defendant. Of this policy, defendant had no notice or knowledge until after the fire.
The court instructed the jury that the plaintiff was bound by the contract; that he had the opportunity to examine it, and was chargeable with knowledge of its contents; that all previous oral negotiations are contained in the writing, and bind both parties; that plaintiff was therefore precluded from claiming that the contract was not in accordance with the oral agreement; and instructed the jury to disregard the testimony of the conversations between the plaintiff and the defendant’s solicitor. He also instructed them that they must disregard the testimony in regard to the conversation which plaintiff testified he had with defendant’s solicitor at Albion, after the policy of insurance was issued, and that that conversation in regard to other insurance did not bind the defendant. Only one question was left to the jury, viz., was the letter of January 15, 1900, written and mailed by the plaintiff and received by the defendant? The court instructed them that, if they found that such a letter was mailed and received, the defendant was estopped from denying its liability on account of the policy subsequently issued. There was no dispute on the amount of the loss.
1. The question of whether the letter of January 15th was written, mailed, and received was a question of fact to -be determined by the jury, in the light of all the surrounding circumstances. If mailed, the presumption is that the postoffice officials performed their duty, and that the letter was delivered. The defendant could rebut this by evidence that it did not receive the letter. The testimony of neither party makes a conclusive case, but one of doubt for the jury to solve. It was not a question for the court. Rosenthal v. Walker, 111 U. S. 185 (4 Sup. Ct. 382), and authorities there cited.
2. The instruction of the court as to the binding force of this policy upon the plaintiff was correct. Cleaver v. Insurance Co., 65 Mich. 527 (32 N. W. 660, 8 Am. St. Rep. 908); Gould v. Insurance Co., 90 Mich. 308 (52 N. W. 754); Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833); Ranspach v. Insurance Co., 109 Mich. 699 (67 N. W. 967). Did the letter of January 15th waive this provision of the policy, and authorize the plaintiff to thereafter secure additional insurance ad libitum? The provisions of the policy were perfectly plain. Plaintiff did not need to write to defendant asking for its conditions. It was in his control at the bank, where he could read it for himself. The letter did not ask for permission to get other additional insurance, or notify defendant that plaintiff intended to do so. It referred solely to the fact that he had taken out more insurance. Whether the failure to reply would estop the defendant as to the prior policy, we need not determine. I think it clear that it did not-authorize the plaintiff to get other insurance in the future, or estop the defendant from avoiding the policy if he did so without the assent of the defendant. Allemania Ins. Co. v. Hurd, 37 Mich. 11 (26 Am. Rep. 491). Estoppel cannot be based upon unknown facts, or upon future transactions, unless the party against whom the estoppel is sought to be enforced was informed that such things would be done.
3. It follows, from what has been said, that the court erred in admitting in evidence the conversation preceding the issue of the policy or contemporaneous with it. Northern Assur. Co. v. Grand View Bldg. Ass’n, 183 U. S. 308 (22 Sup. Ct. 133), where the decisions upon this point are reviewed. It also follows that the conversation between plaintiff and the defendant’s solicitor, after the issue of the policy, was incompetent.
4. In view of a new trial, it is proper to state that it was not competent to prove that no premium had been returned by the defendant. This is not a case for the application of the doctrine that the* receipt and retention of premiums are of force in determining the liability of the defendant. It was under no obligation to return any of the premiums.
Judgment should be reversed, and new trial ordered.
Moore, J.
In reference to the letter of January 15, 1900, the circuit judge charged the jury as follows:
“That leaves just one question, and it is the important one. The material or controlling question in the case, in my judgment, is as. to whether the company is estopped from denying liability because of other insurance taken out by Mr. Rauch without its permission indorsed on the policy.
“Parties are sometimes estopped by their conduct; that is to say, if, having knowledge of the fact, a party remains silent, and permits another interested to do certain things which he would not have done had he spoken, he is estopped from asserting that such an act is a defense on his part. Take this case, gentlemen; The plaintiff claims he wrote a letter January 15, 1900, to the defendant, in substance that he had taken out other insurance on the property in question, and stating to the company in this letter that his policy was at the bank at Charlotte; that he did not remember its conditions; and closes the letter by saying, ‘If-there is anything that conflicts with your policy, please advise me.’ If he wrote this letter, and it was received by the company, the company would be in duty bound to reply to it, and give to plaintiff its decision regarding the information referred to in the letter ; and, if it did not do so, plaintiff might as well think he would have the right to take out other insurance, and, if he did so, the company could not defend, against the policy on that ground in case there was a loss.
“And so, gentlemen, I instruct you that if you find, by a fair preponderance of the evidence, that the plaintiff wrote a letter to the company January 15, 1900, of which that read from the letter-press book is a copy, and mailed the same in an envelope, with his return card thereon, as testified to by him, and the same was properly stamped, and addressed to the .insurance company at Lansing, Michigan, and mailed by plaintiff in the postoffice at Vermontville, Michigan, that the presumption of law is that such letter was received by. the defendant in the due course of mails. The defendant claims it never received this letter, and the question, gentlemen, for you to determine in the case, is whether or not such letter was received by the defendant,-the insurance company. And I instruct you that, if you find that defendant company received the letter claimed to have been written by Mr. Rauch, it was the duty of the company, upon receipt of such letter, to cancel the policy in suit, or reply to the inquiry therein made, which is substantially a request to know whether or not additional insurance was permitted under the policy in suit, which had been delivered to the bank in conformity to the rider placed thereon by the defendant company; and a failure to so notify Mr. Rauch, or to answer his letter, was a waiver on the part of the company of any of the terms of the policy prohibiting additional insurance, and the defendant is now estopped from claiming such forfeiture on account of any and all additional insurance, either on the property at the time of the receipt of such letter, or subsequently placed thereon by Mr. Rauch, if you find it was received; the law being, if a party, by his silence, directly leads another to his injury, he will not be permitted, after his injury has happened, to then allege anything to the contrary. The sole question in this case which will give you any trouble will be, was this letter written, properly addressed and stamped, and duly mailed, and did it reach defendant’s office by due course of mail ? The burden of proof is with the plaintiff to satisfy you, by a fair preponderance of the evidence, of the claim he makes, and this applies, of course, to the question as to the receipt of this letter by the company. If you find, by a fair preponderance of evidence, that the letter was received by the. company, then the plaintiff should have your verdict for $3,078.75. If you find defendant did not receive this letter, then your verdict should be for the defendant, no cause of action.”
It is evident that, under the instruction of the court, the jury could not have rendered the verdict they did without finding as a fact the letter was sent and received as claimed by plaintiff. If plaintiff advised the defendant he had taken out additional insurance, and that the policy was not where he could refer to it, and requested the company, if the taking of the additional insurance conflicted with the terms of the policy, to advise him, it became the duty of the company to inform the plaintiff if it did conflict. The company could not remain silent until after a loss, retaining the premium paid, and then claim the policy was void. There is no contest about the amount of the loss or the cause of the fire. The defense is a technical one, and ought not to prevail if the facts are as found by the jury.
The judgment should be affirmed.
Hooker, C. J., and Montgomery, J., concurred with Moore,, J.
Long, J., did not sit. | [
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Montgomery, J.
This case was before the court at the June term of 1900, and was reversed and remanded for a new trial. The report of the case in 124 Mich. 645 (83 N. W. 595), fully states the issue, and also lays down the rule of law for the case. It was then held that the statute (2 Comp. Laws, § 4453) requires an attending physician to report cases of consumption, if consumption is in fact a disease which is dangerous to the public health. On the second trial, numerous special questions were presented to the jury, who found that consumption is the most prevalent disease in Michigan, and causes more-deaths than any other disease; that it is a disease dangerous to the public health; that it is contagious from man to man, — but found that it is not, by reason of its contagious nature, a disease dangerous to the public health, and that it is not to be classed with such well-known diseases, dangerous to the public health, as small-pox, scarlet fever, measles, cholera, and diphtheria. The jury also found the defendant guilty of failing to report a disease dangerous to the public health.' The circuit judge,- on this finding, set aside the verdict of the jury, and entered judgment for defendant. The people bring error.
The question whether consumption is to be classed with small-pox, scarlet fever, measles, cholera, and diphtheria should not have been submitted to the jury. If the disease is contagious and dangerous to the public health, the law classifies it. It is altogether probable that this question led the jury away from the main issue, and made way for the answer that consumption is not, by reason of any contagious nature, a disease dangerous to the public health. Certainly it is difficult to reconcile such a finding with the findings which show it to be so fatal a disease, that it is contagious from man to man, and that it is dangerous to the public health.
The court, on request of defendant’s counsel, charged as follows:
“If the verdict is for the people, it means that the statute relating to diseases dangerous to public health has been enlarged or made to include consumption, and that disease must participate within that statute. I will not say that it must participate with the same strictness, but it must be reported, — name, age, and condition. It must come reasonably within the same family as a contagious disease. * * *
“If the statute is made to include consumption among the dangerous diseases to public health, the State and local boards of health may treat it in the same manner prescribed by statute for the care and control of other specific diseases, kindred in their nature.”
We think these instructions were misleading, and calculated to commit to the jury duties which the law casts upon the court. It is not correct to say that, if consumption is found to. be a dangerous disease, the statute has been enlarged' by such finding. As we held on the former hearing, if consumption is a disease dangerous to the public health, it is within the statute as enacted by the legislature, and it follows that the statute has not been enlarged. The term is exceedingly unfortunate and misleading.
The court charged the jury that the statute generally prohibits a physician from disclosing any information acquired while attending upon a patient, which information’ is necessary to enable the physician to prescribe for the patient. It is altogether clear that this statute is no defense in this case, if consumption is a disease dangerous to the public health. And while it might properly be cited to the court in discussion of the question whether the statute was intended to include consumption, it could furnish no proper aid to the jury in deciding the question of fact involved.
The court permitted an inquiry as to whether patients afflicted with consumption would be likely to give their consent to having their cases reported. This opened up an inquiry in no way bearing upon the issue being tried. It is altogether likely that patients afflicted with small-pox or other infectious diseases might object to having their cases reported, but it would hardly be contended that the physician could excuse his noncompliance with the requirements of the statute by showing a dissent in the particular case or generally.
There was a mistrial. The judgment will be reversed, and a new trial ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Hooker, C. J.
A warrant was issued under the fraudulent debtors’ act by the circuit judge. Upon its return the same officer quashed the proceedings, upon motion, on the ground that the warrant was void for want of a proper showing upon oath. There were two affidavits filed at the time the warrant was applied for, and they are as follows:
“ State of Michigan, County of Saginaw. [ ss
“ Charles H. Smith, being duly sworn, .says that be is the agent and credit man of the Wm. Barie Dry-Goods Company, a corporation organized and existing under and by virtue of the laws of the State of Michigan, and doing business in Michigan, with its principal office at Saginaw, Michigan; that he makes this affidavit for said corporation, and is authorized so to do.
“Deponent further says that Spurgeon D. Casler, formerly of Farnsworth, Wexford county, Michigan, but now residing in Eaton county, Michigan, was justly indebted to the said Wm. Barie Dry-Goods Company, upon contract, in the sum of three hundred seventeen and 29-100 dollars ($317.29), as near as may be,’ over and above all legal set-offs, which indebtedness, afterwards merged into a judgment, is now due to the said Wm. Barie Dry-Goods Company from said Spurgeon D. Casler, and which is for dry goods sold and delivered by said Wm. Barie Dry-Goods Company to said Spurgeon D. Casler.
“Deponent further says that, for the recovery of said indebtedness, said Wiji. Barie Dry-Goods Company, on the 27th day of September, 1901, commenced an action of assumpsit against said Spui'geon D. Casler in the circuit court for the county of Wexford, Michigan, by summons, and that on the 6th day of November, 1901, after due proceedings in said action, judgment was duly rendered therein upon said indebtedness in favor of the said Wm. Barie Dry-Goods Company and against said Spurgeon D. Casler for the sum of three hundred twenty-three and 5-100 dollars ($323.05) and costs, which were afterwards duly taxed at the sum of twenty-three and 30-100 dollars ($23.30), making a total judgment of three hundred fifty-six and 35-100 dollars ($356.35), which judgment remains wholly unsatisfied.
“ Deponent further says that the debt due to said Wm. Barie IK y-Goods Company from said Spurgeon D. Casler, as above set forth, is one for which the said Spurgeon D. Casler cannot, by reason of the provisions of sections 1 and 2 of chapter 141 of the Revised Statutes of 1846 (be-' ing sections 9553 and 9554 of the Compiled Laws of 1897), be arrested or imprisoned.
“Deponent further says that said Spurgeon D. Casler used to be the proprietor of a general store at Farnsworth, Wexford county, Michigan, and that in the spring and summer of 1901 he, the said Spurgeon D. Casler, bought dry goods on credit from said Wm. Barie Dry-Goods Company, which constituted the original indebtedness hereinbefore mentioned; that on or about the 15th day of July, 1901, while the said bills of dry goods were still unpaid, and without the knowledge of this deponent or of said Wm. Barie Dry-Goods Company, said Spurgeon D. Casler sold out his entire stock of goods, wares, merchandise, and fixtures, of large value, to wit, of the value of one thousand dollars and upwards; that the purchaser of said stock of goods, wares, merchandise, and fixtures is L. G. Yan Yolkenberg, a brother-in-law of said Spurgeon D. Casler; that deponent, as soon as he heard of said sale, went to Farnsworth, Michigan, and said Yan Yolkenberg told said deponent that he had given his notes for six hundred dollars to said Spurgeon D. Casler for said stock of goods and fixtures, that said notes were not secured, and that none of said notes would come due for five years; that deponent asked said Yan Yolkenberg if he knew at the time he bought said goods how much said Casler was owing, and said Yan Yolkenberg said, ‘Yes/ and went to an invoice book, and showed deponent a list of said Caster’s debts, amounting to more than $1,528.64, and said Yan Yolkenberg also told deponent that said Casler had gone to his father’s farm, near Eaton Rapids, Michigan; that deponent went to Eaton county, and interviewed the said Spurgeon D.. Casler, and asked him to pay for said dry goods, which said Spurgeon D. Casler refused to do; that deponent then asked said Casler if it was true that he (said Casler) had sold out to said Van Volkenberg for $600, and had taken his (Van Volkenberg’s) notes for said amount, unsecured, all due in five years, and the said Casler replied, ‘Yes.’ '
“Deponent further says that he is informed that execution has been issued on the judgment aforesaid, and has been placed in the hands of the sheriff of Eaton county, and demand has been made upon said Spurgeon D. Casler by said sheriff, and that he unjustly refuses to pay said judgment, or to apply said notes to the payment of said judgment.
“Deponent further says that he is informed that, at the time said Spurgeon D. Casler sold out his stock of merchandise at Farnsworth, he was indebted to different wholesale houses for merchandise in the sum of over $1,528.64, and that none of said indebtedness has been paid, nor has he turned out said notes to pay any of said debts.
“Deponent further says that, from the facts and circumstances herein set forth, that said Spurgeon D. Casler has disposed of his property with intent to defraud his creditors.
“Deponent further says that, from the facts and circumstances herein set forth, that the said Spurgeon D. Casler has evidences of debt which he unjustly refuses to apply to the payment of the judgment which was rendered against him as aforesaid, belonging to the said Wm. Barie Dry-Goods Company.
‘ ‘ Deponent further says that he makes this affidavit as a basis for the issuing of a warrant against said Spurgeon D. Casler pursuant to the provisions of said chapter; and deponent further says that he has personal knowledge of all the facts and circumstances hereinbefore set forth, except as otherwise stated above.
“Charles H. Smith. ,
“Subscribed and sworn to before me this 15th day of January, 1902.
“Hugo G. Wesener, Notary Public,
“Saginaw County, Michigan.”
“ State of Michigan, ) County of Eaton. ) ss.
“Charles O. Smedley, being duly sworn, says that he is a member of the law firm of Smedley & Corwin, and resides in the city of Grand Rapids, Michigan; that said Smedley & Corwin are attorneys of record for the Wm. Barie Dry-Goods Company, a ■ corporation, who commenced a suit by summons in the circuit court for the county of Wexford, Michigan, against Spurgeon D. Casler; that deponent was present at the time of the commencement of said suit, on the 27th day . of September, 1901, and had charge of the same, which suit was commenced by the issuing of a summons in an action of assumpsit; and that deponent was afterwards present in said circuit court on the 6th day of November, 1901, at the time judgment was rendered by Judge Clyde C. Chittenden in favor of the Wm. Barie Dry-Goods Company, plaintiff, and against Spurgeon D. Casler, defendant, for the sum of $323.05 and costs of suit, taxed at 23.30.
“ Deponent further says that execution was issued out of the said circuit court, and placed in the hands of the sheriff of Wexford county, which execution was returned on the 14th day of January, 1902, nulla bona.
“Deponent further says that on the 21st day of December, 1901, he caused an execution to be issued out of the circuit court for the county of Wexford, directed to the sheriff of the county of Eaton, and that said deponent took said execution and placed it in the hands of the sheriff of said county of Eaton, and went with said sheriff to interview the said Spurgeon D. Casler, who was residing with his father on a farm, not far from Eaton Rapids, in said county of Eaton. Deponent further says that he asked said Spurgeon D. Casler to pay the amount of the debt called for by said execution, and said Spurgeon D. Casler refused to pay the same; that deponent then told said Spurgeon D. Casler that he had received notes to the amount of six hundred dollars or more from his brother-in-law, one Van Volkenberg, to whom he sold the stock of goods at Farnsworth, Wexford county, Michigan, and deponent asked said Spurgeon D. Casler to turn out said notes to apply on said execution, and said Spurgeon D. Casler refused and neglected so to do; that the sheriff then showed said Spurgeon D. Casler the execution, with the seal of the court impressed thereon, and asked him to pay the same, and said Spurgeon D. Casler told the sheriff that he had no money to pay said execution; that the said sheriff then made a demand upon said Spurgeon D. Cas ler for property with which to satisfy said execution, and said Spurgeon D. Casler replied that he had no property to turn out to said sheriff to satisfy said execution; that a copy of said execution, together with a copy of the sheriff’s return indorsed thereon, is hereto annexed to this affidavit, and made a part thereof. Deponent then asked said Spurgeon D. Casler where the notes were that he had obtained from said Van Volkenberg, and he said that said- notes were in the hands of his lawyer, Mr. J. B. Hendee, of Eaton Rapids.
“Deponent further says that, after said Spurgeon D. Casler sold out his store at Farnsworth, there has come .into the hands of Smedley & Corwin various bills from wholesale houses for goods bought by said Spurgeon D. Casler while at Farnsworth, and which he neglected to pay; that he called said Spurgeon D. Casler’s attention to these amounts, a list of which is hereto annexed to this affidavit and marked ‘Exhibit A; ’ that said Spurgeon D. Casler admitted that he owed said different wholesale houses, and some other small bills, but that he was unable to pay for the same, and that all he had received for said stock of goods were the said notes for six hundred dollars from said Van Volkenberg. Deponent then asked said Spurgeon D. Casler why he had sold out for such a small sum and got no cash whatever, and had taken nothing but promissory notes on long time, none of the said notes coming due for five years, and that said Spurgeon D. Casler would give only evasive and unsatisfactory replies. Deponent further says that said Spurgeon D. Casler is owing other amounts to some wholesale houses, but the amounts and names this deponent has now forgotten, as they were not represented by said Smedley & Corwin.
‘ ‘ Deponent further says that he has good reason to believe and does believe that said Spurgeon D. Casler and his brother-in-law, Van Volkenberg, whose first name is unknown to this deponent, have connived to cheat and defraud the creditors of said Spurgeon D. Casler. Deponent is informed and believes that the stock of goods turned over by said Spurgeon D. Casler to said Van Volkenberg was worth a sum far in excess of six hundred dollars; that said Spurgeon D. Casler has not paid out any money nor turned over any of said notes of said Van Volkenberg to any of his creditors since he sold out said stock of merchandise at Farnsworth. Deponent further says that the judgment aforesaid owned by said Wm. Barie Dry-Goods Company against said Spurgeon D. Casler is wholly unsatisfied.
“Deponent further says that the debt due to said Wm. Barie Dry-Goods Company from said Spurgeon D. Casler was one for which the said Spurgeon D. Casler could not, by reason of the provisions of sections 9553 and 9554 of the Compiled Laws of 1897, be arrested or imprisoned.
“Deponent further says that, from the facts and circumstances herein set forth, that said Spurgeon D. Casler has disposed of his property with intent to defraud his' creditors. Deponent further says that said Spurgeon D. Casler has rights of action and money and evidences of debt which he unjustly refuses to apply to the payment of said judgment which was rendered against him as aforesaid, and that he makes this affidavit for the issuing of a warrant against said Spurgeon D. Casler pursuant to the provisions of chapter 141 of the Revised Statutes of 1846, and that this deponent has personal knowledge of all the facts and circumstances as hereinbefore set forth, except as otherwise stated above.
“ Charles O. Smedley.
“Subscribed and sworn to before me this 20th day of January, 1902.
“Louis J. Dann, Notary Public,
“Eaton County, Michigan.”
They show, in substance, that the debtor had a. stock of goods in' Wexford county, and sold them to his brother-in-law for $600, taking his promissory notes, running for five years, in payment; that, after plaintiff’s execution was issued, he was asked to apply this property upon the debt, but refused to do so, although it was then in the hands of his lawyer. The only question is whether an inference of actual fraud in the sale, or of an unjust refusal to apply the notes upon the judgment, may lawfully be drawn from the facts stated in the affidavits. We are of the opinion that such an inference might be drawn, and that, in the absence of evidence to the contrary, a prima facie case was made.
The order quashing the proceedings is reversed, with costs.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Grant, J.
(after stating the facts). Several questions of fact and law are presented, but if the court was correct in its finding of fact, and the application of the law thereto, as to the disposal of this fund, it becomes unnecessary to dispose of the other questions. The evidence on the part of the defendants is that, after the mortgage was executed by the mortgagor, the trust accepted by complainant, and the mortgage filed, it was then presented to Mr. Maltz, and he was requested to accept; that he declined to accept so long as complainant was preferred over the bank; that it was then agreed between complainant, the mortgagor, and Maltz that the bank should share equally with complainant in the trust funds, and that upon this consideration Mr. Maltz accepted. The testimony is in direct conflict. The result depends almost entirely upon the credence to be given to complainant and Maltz. Under these circumstances, where the witnesses were before the court, we will.not reverse the finding of the circuit judge. We, however, think he reached the correct conclusion upon the fact.
Two objections are raised to the legality of this parol agreement: (1) That it is void under the statute of frauds, which provides that ‘' every special promise to answer for the debt, default, or misdoings of another person” must be in writing. 3 Comp. Laws, § 9515. Wolff made no promise to answer for the debt of Jasspou. The debt was to be paid out of the goods mortgaged. Wolff was not by the agreement made liable for any portion of the debt. The statute does not apply. (2) It is urged that the parol agreement contravenes the writing, and that this the law does not permit. Counsel for complainant cite in support of this contention Unger v. Smith, 44 Mich. 22 (5 N. W. 1069); Putnam v. Russell, 86 Mich. 389 (49 N. W. 147). In those cases it was sought to vary the express agreement of deeds by evidence of a parol agreement contradicting them. This is not a case, within those decisions, of an attempt to change a written agreement by a previous parol one. In such case all parol agreements become merged in the written instrument. In this case the mortgage had been executed, had been accepted by complainant, and had been filed. It became, therefore, an executed instrument, beyond the power of the mortgagor to recall. Complainant had accepted the trust, and was therefore in law entitled to carry it out, even though Mr. Maltz should decline to accept. All parties were anxious to secure Mr. Maltz’s acceptance and his services. To accomplish this they agreed that the claim of the bank should share equally in the fund with the complainant. As between them there was nothing illegal in the transaction. The only parties who could complain are unsecured creditors, and they are not here complaining.
The decree is affirmed, with costs.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Graves, J:
We think the verbal agreement of 1862 was for a single. though indefinite period of service, and not for a yearly hiring or for two or more terms.
The bargain and service were alike continuous.
As the understanding went on from day to day, so did performance by defendant in error on the strength of the request and promise of plaintiff in error. There was no suspension of the request or of the service. There was no break or rest or any understanding that there should be. The mutual assent for the continuance of the service, and the yielding of service under the arrangement, ceased at the same time; and while in course of being rendered the service was upon the agreement and in performance of it, and was not the subject of account, and it afforded no accrued and matured right to be affected by the statute of limitations.
A right capable of being acted upon by the statute might arise out of it, but had not yet arisen. When the transaction was closed by withdrawal of defendant in error on the 14th of September, 1869, an actionable right ensued against which the statute commenced running. But it was an entire right, and applied to the entire service. At that time defendant in error was entitled to claim for the whole amount of all unpaid wages for all the service she had rendered under the agreement. This disposes of the main charge of error.
The objection that certain witnesses were not qualified to testify in regard to the value of service, is not well founded. The doctrine has been so often considered that no discussion is called for.—Sirrine v. Briggs, 31 Mich., 443, and cases; Stone v. Covell, 29 Mich., 359; Morrissey v. The People, 11 Mich., 327; Evans v. The People, 12 Mich., 27; Det. & Mil. R. R. Co. v. Van Steinburg, 17 Mich., 99.
As no error is discovered, the judgment should be affirmed, with costs.
The other Justices concurred. | [
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Cooley, Ch. J:
Several interesting questions of law were discussed in this case, but in the view we take of the facts they cannot affect the decision.
The bill was filed to restrain the collection of a mortgage on complainant’s lands, given by herself and her husband to secure the payment of a promissory note of four hundred and fifty-five dollars, made by Benjamin Helmer, the husband, payable to defendant Krolick, and which defendant Hill is now seeking to enforce. The grounds of relief which are relied upon are, that the note was given on a loan by Krolick to Helmer of three hundred and fifty dollars, and that usurious’ interest to the amount of one hundred and five dollars was included in it, which fact was concealed from complainant, and she was induced to mortgage her lands to secure the payment of the- note under the belief, fraudulently induced, that the note was for three hundred and fifty dollars only. The note was payable to bearer, but it is claimed that Hill (the usury and fraud being made out by the evidence) is not entitled to the protection of a Iona fide holder until he shows that he purchased the securities in good faith and for value paid before payment was due; and this it is claimed he has not done. Complainant has made a tender of the amount of the admitted loan and interest, and relies upon this as a discharge of the mortgage.
As the note was payable on or before three years from date, it will be apparent from the statement here made of complainant’s case that it depends altogether upon the question whether Hill is or is not entitled to the protection which the law accords to a bona fide holder of negotiable paper. It has been decided in this state that the assignee of a mortgage which is given to secure the payment of a nego tiable note is entitled to the same protection that he would have as assignee of the note without the mortgage: Dutton v. Ives, 5 Mich., 515; and the case of defendant Hill is therefore relieved of one difficulty which would exist in states where a different conclusion has been reached on that point. It is also held that paper which is payable “on or before” a certain time, is not due until that time.—Mattison v. Marks, 31 Mich., 421. If, therefore, Hill is shown to have been holder of the securities for value before the three years had expired, his defense would seem to be complete.
The testimony of Krolick is, that he sold the note to Hill before it fell due, and received payment for it. Hill is not called as a witness, and there is no other evidence on the point. It is argued that Krolick’s evidence is suspicious; that he had a motive in getting the note into the hands of a tona fide holder, knowing that a defense would be made to it in his hands; that the particulars of the transaction between him and Hill are not shown; that the securities were at once placed in the hands of an agent of Krolick for collection, and that in fact it is not shown that Hill ever had them at all. Hill’s possession of the securities before they were due is shown, however, by the fact that he sent them for collection enclosed in a letter written by himself. There is force in some of the criticisms made to the testimony of Krolick, but not sufficient, we think, to justify us in rejecting it. It cannot render a purchase of negotiable paper suspicious that the payee has an interest in getting it off his hands. This fact would not necessarily be known to the purchaser, or influence in any manner his action; and in a case like this it is his Iona files that is in question, not that of the payee. Nor is it a very significant fact that Hill employs to collect the moneys the person who is also agent for Krolick. The debtor resided in a part of the state distant from Hill’s place of residence, and if the transaction between Krolick and Hill was perfectly fair and legitimate the latter would be likely to seek from the former information regarding a suitable collecting agent. Indeed he would be more likely to em ploy Krolick’s agent under suck circumstances than he would, if the parties were making a sham transfer, and were desirous of giving to it as much as possible an appearance of fairness. Other circumstances which have been commented, on as suspicious we do not consider in detail, because none of them singly, or all taken together, are sufficient to convince us that Hill has not shown himself a purchaser in good faith. They are circumstances that would be important in connection with others, but not of a convincing nature by themselves.
The decree dismissing the bill must be affirmed, with costs.
The other Justices concurred. | [
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Marston, J:
This was an action of assumpsit brought upon a premium note under a policy of insurance dated January 28, 1873. The suit was commenced and tried in justice’s court and a judgment rendered in favor of the defendant. The company removed the cause by certiorari to the circuit court, where the judgment of the justice was affirmed. The case comes here on writ of error-.
Upon, the trial the plaintiff introduced the note in question, whereupon the -defendant admitted the existence of the plaintiff as a foreign corporation, created under the laws of Illinois, but did- not admit its authority to do business in this staté. Defendant then objected to’the admission of the note in evidence because plaintiff had not averred in its declaration, or proved, and did not offer or propose to prove, .that it had complied with the laws of this state applicable to foreign insurance companies, authorizing it to transact business in this state during the year 1873. No such proofs^ having been introduced, offered, or proposed, the court sustained the objection and rendered judgment as already stated.
The note bears no mention of the place where made, and is payable generally. There is nothing in the record tending to show where the policy was issued, nor from which it can be inferred that the policy was a Michigan policy. The note appears to have been given for value, and we cannot presume that it was given in Michigan in violation of a law of this state. This case resembles very closely American Insurance Co. v. Woodruff, 34 Mich., 6, except that as the question there arose, the presumption was in favor of the correctness of the rulings. No such presumption exists in this case, as all the proceedings and evidence are set forth. The judgments of the justice and circuit courts must be reversed, with costs.
The other Justices concurred. | [
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Per Curiam:
This case was not argued on the part of the defendant in error.
It clearly appears that hearsay evidence was admitted under objection, and for this the judgment must be reversed. Some other questions appear in the record, but we prefer, in the absence of any necessity for doing so, not to consider them on an ex parte presentation.
Judgment reversed, with costs, and a new trial ordered. | [
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Campbell, J:
Innes filed his bill to restrain a suit on a bond for an alleged deficiency after a mortgage foreclosure, the sale having been made in April and confirmed in June, 1864, and the suit complained of having been begun in 1874. The bill claims the debt was paid by the sale, and also that ■whether technically paid or not, the circumstances were such .as to operate the same result, by the interference of interested parties in preventing bidders from appearing.
No leave was granted by the circuit court of Kent county, where the foreclosure was had, to sue on the bond, which was necessary to justify such action.—C. L., § 5149; Joslin v. Millspaugh, 27 Mich. R., 517.
Innes made two purchase money mortgages for four thousand dollars each in May, 1854, to John Ball and Ransom E. Wood, payable in ten years. One of these came into the hands of Newton Carter, who began a foreclosure in March, 1863} and got a decree in February, 1864, under which sale was made to John Ball as aforesaid for about ■sixteen hundred dollars. The other was foreclosed at the same time in the name of one Alexander, and bid in by Ball for a smaller sum. Immediately after Ball received his deed, and on the next day, June 4, 1864, Ball conveyed do David Stewart the whole property purchased on both foreclosures, for the amounts due on the decrees for principal, interest and costs, amounting to about ten thousand dollars, ■at the same time transferring the whole securities, or intending such transfer.
Innes was not served with process, but brought in by publication. As he never appeared, there could be no personal judgment against him, and no attempt was made to -obtain any order of execution for the deficiency. The decrees-were shaped, in regard to the order of sale of the various parcels, by stipulations of certain of the parties defendant who had purchased lots, and the sale was made in that agreed order.
It is now claimed that the sale was in fact conducted under an arrangement whereby David Steward was to get the title, and that persons who would otherwise have bid were induced not to do so by private arrangements for their protection which were subsequently carried out.
After purchasing the land, Innes sold out to William H. Stewart, and one Ives, who in December, 1857, conveyed his share to his co-tenant, who thus took the whole title. The land, which was near Grand Rapids, consisted of about 400 acres, divided and intended to be divided into lots.
Innes gave Stewart and Ives a bond of indemnity against the Wood and Ball mortgages. They paid him three thousand dollars and gave him a mortgage for sixteen thousand five hundred dollars for the balance of the purchase money. This mortgage, dated in October, 1850, was assigned by Innes to Harvey P. Yale, in June, 1857.
Yale made releases of lots from time to time as Stewart sold, under an arrangement with Stewart whereby the proceeds of sales were to be used towards paying off the Ball and Wood mortgages, and these transactions continued up to the sale. About the time when the foreclosure decrees were rendered, Yale and William H. Stewart made an agreement whereby Stewart was to negotiate for means to pay off the decrees, and they were to divide the surplus; — Yale reserving the right to grant land necessary for the track of the Detroit & Milwaukee Railway.
Here begins some conflict and confusion of testimony. It appears that Wm. H. Stewart made some arrangement with David to procure the money. He says he proposed to David to raise a part, and that the balance would be contributed by the purchasers of lots. There is no question but what the decrees were intended to be canceled in this way. David, who in some important respects does not tell the same story as William, says that William got a friend to raise two thousand five hundred dollars, and that David raised the same amount and brought the five thousand dollars to Michigan to carry out the plan, but that when he came here his brother reported the rest could not agree, and so the .matter fell through; and that after the sale he bought out Ball on his own account.
Without going into detail, we think these facts are apparent. The whole plan was under the guidance and procurement of William Stewart, who had agreed to do what he could to get the decrees settled. He dissuaded the purchasers in some instances, and probably in many, from bidding at the sale, by promises to have their rights protected, which were afterwards carried out by David. The sale to Ball for less than a quarter of the .price he immediately received from David Stewart is evidence enough of some peculiar influence attending the transactions. We cannot come to any other conclusion than that means were designedly used to prevent a sale under the usual competition, and that the property which David came out to redeem and then purchased for the whole amount of the decrees, would never have been sold to Mr. Ball at a nominal price unless means had been used to secure such arrangements as would enable David to be sure of obtaining it. And in this whole matter David and William are shown to be practically one. The subsequent dealings are as plain as the earlier ones.
There is no doubt William Stewart was bound to clear off the decrees. Whether this obligation was due to Innes or not, is not clearly shown, — although the part played by the sixteen thousand five hundred dollar mortgage seems to-indicate a connection between that and the bond of indemnity. This is not definitely established. But the interference to prevent a fair and usual sale to the highest bidder is enough of itself to estop the parties from claiming a deficiency which they have been the means of creating.
We think, therefore, that this suit brought ten years-after these arrangements, and never authorized by the proper court, is not a fair suit, and is meant to enforce a liability which the parties are estopped from asserting.
The decree below, which was in favor of Innes, should be affirmed, with costs.
The other Justices concurred. | [
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Cooley, Ch. J:
The principal.error relied upon in this case is, that the court, in an action for trespass to lands and the cutting of timber, in which the plaintiff claimed to recover treble damages under the statute, refused to receive the evidence offered by the defendant to show that the trespass was involuntary, and made under a bona fide claim of right. The ruling was based upon the neglect of the defendant to give notice under his plea of the general issue of his intention to introduce such evidence.
The statutory provisions bearing on the case are sections 6370 and 6371 of the Compiled Laios, which read as follows :
“§ 6370. Every person who shall cut down or carry off any wood, underwood, trees or timber, or shall girdle or otherwise despoil or injure any trees on the land of any other person, without the leave of the owner thereof, or on the lands or commons of any city, township, village or other corporation, without license therefor given, shall be liable to the owner of such land, or to such corporation, in three times the amount of damages which shall be assessed therefor in an action of trespass, by a jury, or by a justice of the peace in the cases provided by law.”
“§■6371. If upon trial of any such action it shall appear that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that such wood, trees or timber were taken for the purpose of making or repairing any public road or bridge, judgment shall be given to recover only the single damages assessed.”
The view taken by the plaintiff of this statute, and which seems to have been accepted by the court below, is this: that it makes the destruction of timber by a trespasser subject to a penalty of treble damages, but with a special exception of those cases in which the trespass was casual and involuntary or for road purposes. The rule of pleading is then referred to, that where one relies upon a statutory exception, not contained in the enacting clause of the statute, he must by his pleadings bring himself within the exception.—Attorney General v. Oakland Co. Bank,. Wal. Ch., 90; Myers v. Carr, 12 Mich., 63; Lynch v. People, 16 Mich., 472. But this is not always a rule of' pleading; it is sometimes a rule of evidence only: it goes-no further in any case than to require the party relying-upon the exception to present the facts in such form as the case requires; and this may or may not be by special pleadings. The rule was treated as one of evidence merely, in Myers v. Carr, supra. Whether special pleadings are-' necessary, must be determined by other considerations andi by the general rules of pleading.
The general issue at the common law puts in issue everything necessary to be shown by the plaintiff to make out his case; but if the defendant in trespass relies upon justification or excuse, he must plead it specially.—Gould Pl., ch. VI., § 38-58. Our statutory general issue is at least as broad as that at the common law.—Kinnie v. Owen, 1 Mich., 249; Ingalls v. Eaton, 25 Mich., 32; Rawson v. Finlay, 27 Mich., 268.
Now the defendant in this case relies upon neither a. justification nor an excuse. If he cut the timber upon the plaintiff’s land, it is admitted that the act is a .trespass,, neither justifiable nor excusable. All that is claimed by the defendant is, that the circumstances of the trespass were-not such as to warrant imposing upon him penal consequences. It was held in Delevan v. Bates, 1 Mich., 97, that whatever in an action of tort would go in mitigation, of damages might be given in evidence under the general issue; and in any view that can be taken of this case, the-evidence offered by the defendant would have been receivable on that ground. But it is- not without significance that the statute, when it permits a judgment for single damages; only where it shall appear that the trespass was casual and involuntary, makes no allusion whatever to any special pleading or notice. The inference is forcible that none was-meant to be required. It could certainly answer no impor tant purpose; for when the plaintiff sues for an aggravated trespass he must be supposed to come prepared to meet, whatever would tend to show that it was not of that nature.
Another objection to this judgment is fatal. The declaration contained two counts: one for a trespass at the-common law, and one for the statutory trespass. The jury returned a general verdict of guilty, upon which the judge-proceeded to render judgment for three times the damages, returned. Now, although the verdict established the fact, of trespass, it found nothing more; and the finding could no more be applied to the one count than to the other. It cannot legally be known that the jury would have agreed on the count 'under the statute. The general finding is-, consistent with the fact that some of them may have agreed upon the aggravated trespass and some not. In any event, there was a trespass, which is all they have agreed upon.—See Biggs v. Barry, 2 Curt. C. C., 259; Thayer v. Sherlock, 4 Mich., 173. The verdict, therefore, only warranted a judgment for single damages.
The judgment must be reversed, with costs, and a new-trial awarded.
The other Justices concurred. | [
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Cooley, Ch. J:
This suit involves the question of a homestead right. It is a suit to foreclose a mortgage on forty-six acres of land which the defendants have for nearly twenty years cultivated as a farm and occupied as a homestead. Until 1871 the land was outside the corporate limits of the village of Eaton Rapids, but those limits were extended in 1871 to include it. The land, however, is still occupied as a farm, and the value does not exceed fifteen hundred dollars. In the same year that the corporate limits were extended, but after-wards, the mortgage was given by James E. Rorabeck for money borrowed, his wife, the other defendant, not signing it. Under these circumstances, it is conceded that the mortgage is void as to the homestead legally claimable by defendants, aud the question in controversy is, how much that homestead is.
The constitution provides that “every homestead of not exceeding forty acres of land, and the dwelling house thereon, and the appurtenances, to be selected by the owner thereof, and not included in any town plat, city or village; or instead thereof, at the option of the owner, any lot in any city, village or recorded town plat, or such parts of lots as shall be equal thereto, and the dwelling house thereon and its appurtenances, owned and occupied by any resident of the state, not exceeding in value fifteen hundred dollars, shall be exempt,” etc. It is not disputed that defendants were entitled to' claim forty acres of this land as an exempt homestead prior to the extension of the village limits, but it is insisted that since the extension the right of exemption is limited to the equivalent of a town lot according to the recorded plat. This is the point in dispute between the parties.
In Wisconsin it has been decided that under circumstances like those here stated the debtor is entitled only to a town homestead.—Bull v. Conroe, 13 Wis., 233; see Parker v. King, 16 Wis., 223. But in the same state it is held that homestead laws must be liberally construed.—Weisbrod v. Daenicke, 36 Wis., 73; Jarvais v. Moe, 38 Wis., 440, and cases cited. This is a very proper rule of construction when the benevolent purpose of the statute is had in view, and it has been adopted by other courts.—Deere v. Chapman, 25 Ill., 610; Webster v. Orne, 45 Vt., 40-42; and see Beecher v. Baldy, 7 Mich., 488.
In Iowa the conclusion is, that an extension of town limits so as to bring in a country homestead cannot deprive the debtor of his right to the full exemption as it existed before.—Finley v. Dietrick, 12 Iowa, 516. In Texas the same ruling has been made.—Nolan v. Reed, 38 Texas, 425; Clark v. Nolan, Ibid., 416. The right once acquired seems to be regarded in that state as a vested right.—Bassett v. Messner, 30 Texas, 604. And while it is not strictly that, it is certainly a valuable right, which has been secured to the debtor for substantial reasons of public policy, as well as of individual and family benefit; and an intention to modify it to the prejudice of the debtor, by a statute having other purposes for its object, is not lightly to be inferred. We should say that all implications must be against such an intention. Especially should this be so where the coni stitutional limitation of a homestead is restricted within limits so very moderate as those which are prescribed in this state.
Our opinion is, that the decree of the court below should have secured to the defendants the homestead they were entitled to before the village limits were extended. As it did not do so, it must be reversed, with costs, and the record remanded for proceedings in conformity to this opinion.
The other Justices concurred. | [
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Memorandum Opinion. Armed with a knife, the defendant raped the clerk of a grocery store in Hastings. He then abducted her, but she was able to escape as he drove through Saranac.
The defendant was charged with three counts of first-degree criminal sexual conduct and one count of kidnaping. MCL 750.520b(l)(e), 750.349. He pleaded guilty on all four counts of the information and was sentenced to concurrent terms of forty to one hundred years in prison for each CSC-I count and fifteen to twenty-five years in prison for kidnaping. The circuit court later denied a motion for resentencing.
The defendant filed an application for leave to appeal, which the Court of Appeals granted, limited to his claim that the circuit court had erred in its decision to score 50 points under offense variable 11 of the sentencing guidelines for each of the csc-i convictions. MCL 777.41. The Court then affirmed. 251 Mich App 273; 650 NW2d 733 (2002).
In its opinion, the Court of Appeals stated:
After reviewing the record, we conclude that the scoring issue is moot because, even if there were error, resentencing is not warranted given the trial court’s remarks that it would have imposed the same sentences regardless of the scoring of ov it. [251 Mich 274.]
Despite that correct statement, the Court of Appeals added several pages of dicta in which it presented a close analysis of ov 11, focusing on the instructions set forth in MCL 777.41(2):
All of the above apply to scoring offense variable 11:
(a) Score all sexual penetrations of the victim by the offender arising out of the sentencing offense.
(b) Multiple sexual penetrations of the victim by the offender extending beyond the sentencing offense may be scored in offense variables 12 or 13.
(c) Do not score points for the 1 penetration that forms the basis of a first-or third-degree criminal sexual conduct offense.
The Court of Appeals concluded that the circuit court correctly scored ov ll in the present case.
The defendant has applied to this Court for leave to appeal, urging that we overturn the judgment of the Court of Appeals with regard to ov 11.
We affirm, but find it unnecessary to express an opinion regarding the proper interpretation of ov 11. As the Court of Appeals observed, the circuit court clearly expressed its view that the sentences imposed in this case were the proper sentences without regard to how ov 11 might be scored. The forty-year minimum sentence imposed for each csc-i conviction was a departure above the recommended range in any event, and the court expressly stated the substantial and compelling reasons that justified the departure.
The analysis of ov n offered by the Court of Appeals was dictum. Because the sentences imposed by the circuit court were proper and were properly explained, we affirm the judgments of the Court of Appeals and the circuit court. MCR 7.302(F)(1).
Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred.
“A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in [MCL 777.1 et seq.] if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure.” MCL 769.34(3).
We have reviewed the defendant’s other claims of error related to the sentence imposed by the circuit court, and we find no basis for resentencing or other relief. | [
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Kelly, J.
The issue in this case is whether the trial court properly admitted under MRE 803(24) the victim’s hearsay statement made to a social worker that defendant sexually abused her. The statement did not qualify for admission under MRE 803A, the tender-years rule.
We conclude that the trial court properly admitted the statement. MRE 803(24) permits the admission of hearsay statements that narrowly miss the categorical exceptions of MRE 803, but satisfy the requirements of MRE 803(24), under circumstances such as those present in this case. Accordingly, we affirm the judgment of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted defendant of three counts of first-degree criminal sexual conduct, sexual penetration of a victim under thirteen years of age (CSC i). MCL 750.520b(l)(a). The Court of Appeals affirmed the convictions.
A. THE TRIAL COURT
In the trial court, the prosecution charged defendant with the sexual assaults of a seven-year-old boy (DD) and his five-year-old sister (AD) in the autumn of 1998. Defendant lived in a home with the children, their mother, her ex-husband, and another individual.
Before trial, the prosecutor moved to admit the testimony of Angela Bowman, a child-protective-services specialist with the Family Independence Agency (fia). During the hearing, Bowman testified that she had visited DD at his elementary school after the fia received an anonymous report that the children’s mother was physically abusing them.
In the course of their conversation, Bowman asked DD to name the members of his household. He named defendant as a relative and spontaneously told Bowman that defendant was doing “nasty stuff” to him.
Bowman further testified that, when she asked DD what he meant by nasty stuff, he was initially guarded, but, then, made the following statement:
[Defendant] would come into his room, which [DD] shared with his sister [AD] and dis — totally disrobed, and take off his clothes, which would be a shirt, an underwear — some underwear or pajamas bottoms, if he were wearing them, and get on top of [DD]. And I ask — I asked him to describe now — at the time, because I wasn’t prepared for this interview, I didn’t have any anatomically correct dolls or anything, so I ask him to show — to demonstrate to the best of his ability what he was describing.
Bowman related the details of this and numerous other specific instances of defendant’s abuse as DD had revealed them to her.
The prosecution conceded that DD’s statement to Bowman was not admissible under the tender-years exception to the hearsay rule, MRE 803A, because it was his second statement about the abuse. Defendant argued that MRE 803A “covers the field,” meaning that, if a statement falls in the category of a tender-years statement and is inadmissible under MRE 803A, it cannot be admitted under MRE 803(24).
The trial court rejected defendant’s argument and admitted the evidence under MRE 803(24). In ruling that DD’s statements satisfied the requirements of MRE 803(24), the court stated: Bowman first inquired of [DD] about physical abuse. Then, [DD,] and in this Court’s opinion this is important, not in response to any questioning by Miss Bowman regarding sexual abuse, spontaneously spoke about abuse — sexual abuse by the defendant. It’s clear that [DD] spoke from his personal knowledge. And, as her duty as a protective service worker, Miss Bowman inquired further. Now, Miss Bowman’s qualifications to interview children were obvious from the record. She is aware of how to . . . interview children. She testified that she avoided leading questions and avoided other pitfalls of questioning young children. And the Court finds that she was totally aware how to get truthful information from [DD]. The Court finds that the record and the dynamics of this exchange between Miss Bowman and [DD] provided a form [sic] that an accurate statement would be uttered by [DD], The Court finds no plan of falsification by [DD] under the circumstances in the record that I have before me, and no — and I do find a lack of motive to fabricate on the child’s part. The Court also notes that Miss Bowman testified, and I believe her testimony, she had no preconceived notion that anything of a sexual nature occurred when she walked into the room on October 27, [19] 97. Indeed, as I’ve stated before, she was there to talk about physical abuse.
[I]n the Court’s opinion there are several indicia of trustworthiness in the statements given by [DD] to Miss Bowman. First is the spontaneity of [DD’s] first statements to Miss Bowman. Recall — The Court’s [sic] heard the testimony, that Miss Bowman was not there to talk about sexual abuse, she was there to talk about physical abuse. I would also note that as far as this Court’s record is concerned [DD and AD’s mother] did not know that her child was going to be interviewed on October 27. Accordingly, there doesn’t appear to be anything on the record here which would establish that somehow [DD] was prepped by somebody to mouth sentences to Miss Bowman that were not true. Miss
M= * *
Accordingly, the Court finds — from the totality of the circumstances here, I find the required trustworthiness guarantees that [MRE] 803(24) requires.
B. THE COURT OF APPEALS
On appeal, defendant again contended that DD’s statement to Bowman was not admissible under MRE 803(24). He urged that the Court adopt what has been dubbed the “near-miss” theory, which “maintains that a hearsay statement that is close to, but that does not fit precisely into, a recognized hearsay exception is not admissible under [the residual hearsay exception.]” United States v Deeb, 13 F3d 1532, 1536 (CA 11, 1994).
The Court of Appeals rejected the near miss-theory and defendant’s narrow interpretation of MRE 803(24) and, instead, adopted the approach taken by the United States Court of Appeals for the Eighth Circuit in United States v Earles, 113 F3d 796 (CA 8, 1997):
The meaning of the catch-all’s “specifically covered” language has caused considerable debate. See, e.g., McKethan v United States, 439 US 936; 99 S Ct 333; 58 L Ed 2d 333 (1978) (Justices Stewart and Marshall dissenting from the Court’s denial of writs of certiorari and contending that the Court should resolve the circuit split on this issue[.]). However, the majority of circuit courts have held that the phrase “specifically covered” means only that if a statement is admissible under one of the prior exceptions, such prior subsection should be relied upon instead of [the residual hearsay exception]. If, on the other hand, the statement is inadmissible under the other exceptions, these courts allow the testimony to be considered for admission under [the residual hearsay exception], [248 Mich App 282, 292; 639 NW2d 815 (2001), quoting Earles, supra at 800 (emphasis in 248 Mich App 292).]
Defendant next argued that DD’s statement did not meet two of the requirements of MRE 803(24). Specifically, (1) the evidence did not possess “equivalent circumstantial guarantees of trustworthiness” and (2) it was not more probative than DD’s first statement about the abuse, which was made to his mother before the Bowman interview.
The Court of Appeals rejected the first challenge, stating that it agreed with the trial court’s “thorough and well-reasoned assessment that DD’s statement implicating defendant in these crimes contained ample ‘circumstantial guarantees of trustworthiness’ as required by MRE 803(24).” 248 Mich App 297. Regarding DD’s statements to his mother, the panel found that
there is no indication in the record that either DD or AD recounted the circumstances of the assaults with the same detail. Nor is there any indication that their alleged statements to their mother contained particularized guarantees of trustworthiness similar to those regarding the statement given to Bowman. Indeed, when defense counsel inquired of the mother during trial regarding her knowledge of the alleged sexual abuse, she indicated only that AD had told the children’s uncle about the abuse, who in turn told the mother . . . ." [Id. at 299-300.]
Accordingly, the Court of Appeals affirmed the trial court’s admission of the evidence.
n. STANDARD OF REVIEW
The decision whether to admit evidence is within a trial court’s discretion. This Court reverses it only where there has been an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). However, the decision frequently involves a preliminary question of law, such as whether a rule of evidence or statute precludes the admission of the evidence. We review questions of law de novo. Id; People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). Therefore, when such preliminary questions are at issue, we will find an abuse of discretion when a trial court admits evidence that is inadmissible as a matter of law. Id.
m. ANALYSIS
The Michigan Rules of Evidence contain two residual exceptions: MRE 803(24) and MRE 804(b)(7). MRE 803(24), the exception at issue here, provides:
(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of the statement makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
Thus, evidence offered under MRE 803(24) must satisfy four elements to be admissible: (1) it must have circumstantial guarantees of trustworthiness equal to the categorical exceptions, (2) it must tend to establish a material fact, (3) it must be the most probative evidence on that fact that the offering party could produce through reasonable efforts, and (4) its admission must serve the interests of justice. Also, the offering party must give advance notice of intent to introduce the evidence.
MRE 803(24) is nearly identical to FRE 807. “The Michigan Rules of Evidence were based on the Federal Rules of Evidence.” People v Kreiner, 415 Mich 372, 378; 329 NW2d 716 (1982). As a result, Michigan courts have referred to federal cases interpreting rules of evidence when there is a dearth of related Michigan case law. See, e.g., People v VanderVliet, 444 Mich 52, 60 n 7; 508 NW2d 114 (1993); People v Welch, 226 Mich App 461, 466; 574 NW2d 682 (1997).
Given that Michigan did not adopt residual exceptions to its rules of evidence until 1996, there is little case law interpreting them. Before this case, no Michigan court had considered whether evidence that is similar to a categorical hearsay exception could still be admitted under one of the residual exceptions. Therefore, it is appropriate to consider the federal courts’ discussions of the issue.
A. THE RESIDUAL EXCEPTIONS AND THEIR APPLICATION IN “NEAR MISS” SITUATIONS
The residual exceptions are designed to be used as safety valves in the hearsay rules. They will allow evidence to be admitted that is not “specifically covered” by any of the categorical hearsay exceptions under circumstances dictated by the rules. Differing interpretations of the words “specifically covered” have sparked the current debate over the admissibility of evidence that is factually similar to a categorical hearsay exception, but not admissible under it.
1. THE NEAR-MISS THEORY
“The Near Miss theory . . . states that a piece of hearsay evidence may be offered only under the exception that most nearly describes it. If it is excluded under that exception, it may not be offered under the residua] exceptions.” In re Japanese Electronic Products Antitrust Litigation, 723 F2d 238, 302 (CA 3, 1983), rev’d on other grounds Matsushita Electric Industrial Co, Ltd v Zenith Radio Corp, 475 US 574, 580; 106 S Ct 1348; 89 L Ed 2d 538 (1986). Judge Easterbrook gave a concise statement of the rationale behind the near-miss theory in his concurring opinion in United States v Dent, 984 F2d 1453, 1465-1466 (CA 7, 1993):
[The residual exception] reads more naturally if we understand the introductory clause to mean that evidence of a kind specifically addressed (“covered”) by one of the [categorical exceptions] must satisfy the conditions laid down for its admission, and that other kinds of evidence not covered (because the drafters could not be exhaustive) are admissible if the evidence is approximately as reliable as evidence that would be admissible under the [categorical exceptions].
The United States District Court for the Eastern District of Pennsylvania described another basis for the theory in Zenith Radio Corp v Matsushita Electric Industrial Co, Ltd, 505 F Supp 1190 (ED Penn, 1980):
The [near-miss theory] is also supported by a basic principle of statutory construction, which we find equally applicable to the Federal Rules of Evidence: that the specific controls the general. As the Supreme Court stated in Radzanower v Touche Ross & Co, 426 US 148, 153, 48 L Ed 2d 540, 96 S Ct 1989 (1976):
“It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum. ‘Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.’ Morton v Mancari, 417 US 535, 550-551 (1974).” [Citations omitted.]
In conformity with this rule we conclude that the residual exceptions cannot be invoked when there is a specific exception which sets forth conditions governing the admissibility of a clearly defined category of hearsay evidence. [Zenith, supra at 1263 n 91 (discussing former FRE 803[24] before the adoption of FRE 807).]
Thus, the near-miss theory is based on a broad reading of the term “specifically covered.” Evidence is “specifically covered” if there is a categorical hearsay exception dealing with the same subject matter or type of evidence. Accordingly, under the near-miss theory, a party could never use a residual exception to admit evidence that was inadmissible under, but related to, a categorical exception.
For example, a strict application of this theory would preclude admission of a business document unless it met the requirements of MRE 803(6). The residual exception would not be available for it under any circumstances.
Although the near-miss theory would simplify the resolution of disputes regarding the admission of hearsay, few courts in the nation have adopted it. Those that have done so have softened the rule. Even the Zenith court declined to hold that the residual exception could never be used to admit evidence that fell within a categorical exception, but was inadmissible under it:
Some of the . . . specific hearsay exceptions similarly apply to a clearly defined category of evidence, and we would follow the “near miss” doctrine with respect to them ... if the evidence before us were within those categories. E.g., Rule 803(18) (learned treatises); Rule 803(22) (judgment of previous conviction.)
However, most of the hearsay exceptions which plaintiffs invoke are not of this type. They do not apply to a clearly defined category of evidence, as the former testimony exception does. Instead, they apply to a relatively amorphous category of evidence which is delimited solely by the requirements set forth in the rule itself. For instance, the business records exception applies to any “memorandum, report, record, or data compilation, in any form” which satisfies certain additional requirements. ... We do not see how the “near miss” doctrine which defendants urge could practically be applied to those rules, without negating the residual exceptions altogether, a result which is plainly contrary to the intent of Congress. [Id. at 1264 (emphasis added), accord Acme Printing Ink Co v Menard, Inc, 812 F Supp 1498, 1527 (ED Wis, 1992).]
2. REJECTING THE NEAR-MISS THEORY
The great majority of courts have rejected the near-miss theoiy by interpreting the residual exception to omit as “specifically covered” only those hearsay statements admissible under a categorical exception. A statement not admissible under the categorical exceptions would not be “specifically covered” by those exceptions, and thus could be a candidate for admissibility under the residual exceptions.
In United States v Clarke, the United States Court of Appeals for the Fourth Circuit explained the rationale for rejecting the near-miss theory.
Appellant asks us to construe “not specifically covered” narrowly, limiting [the residual exceptions] to cases in no way touched by one of the [categorical] exceptions. According to appellant, admitting testimony that was a “near miss” under 804(B)(1) would undermine the protections of the evidentiary rales, as well as violate the Sixth Amendment’s Confrontation Clause.
We disagree. Appellant’s view of “not specifically covered” would effectively render [the residual exception] a nullity. The plain meaning, and the purpose, of [the residual exception] do not permit such a narrow reading. We believe that “specifically covered” means exactly what it says: if a statement does not meet all of the requirements for admissibility under one of the prior exceptions, then it is not “specifically covered. ” United States v. Fernandez, 892 F2d 976, 981 (11th Cir. 1989). This reading is consistent with the purposes of [the residual exception]. That rule rejects formal categories in favor of a functional inquiry into trustworthiness, thus permitting the admission of statements that fail the strict requirements of the prior exceptions, but are nonetheless shown to be reliable. If we were to adopt appellant’s reading of the rule, we would deprive the jury of probative evidence relevant to the jury’s truth-seeking role.
* *
... To adopt the “near miss” theory would create an odd situation where testimony that was equally trustworthy would be distinguishable based merely on its proximity to a specified exception. For instance, in United States v. Ellis, 951 F.2d 580 (4th Cir. 1991), this circuit approved the admission of the statement made by a later-deceased witness pursuant to a plea agreement under 804(b)(5), even though that statement was very different from any of the specified exceptions. Given our holding in Ellis, it would contradict common sense to exclude equally reliable testimony here simply because it fell closer to one of the specified exceptions. We thus reject the “near miss” theory of interpreting Fed. R. Evid. 803(24) and 804(b)(5). [Clarke, 2 F3d 83-84 (emphasis added) (discussing the former residual exceptions before the adoption of FRE 807).]
The United States Court of Appeals for the Sixth Circuit followed suit in United States v Laster, stating:
Although some courts have held that if proffered evidence fails to meet the requirements of the Fed. R. Evid. 803 hearsay exception, it cannot qualify for admission under the residual exception, the court declines to adopt this narrow interpretation of Fed. R. Evid. 807 as suggested by defendants. Rather, this court interprets Fed. R. Evid. 807, along with, the majority of circuits, to mean that “if a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception.” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 807.03(4) (2d ed. 2000). We endorse the reasoning in United States v Earles, 113 F3d 796 (8th Cir, 1997), which held that “the phrase ‘specifically covered’ [by a hearsay exception] means only that if a statement is admissible under one of the [residual] exceptions, such [] subsection should be relied upon” instead of the residual exception. Id. at 800 (emphasis in original). Therefore, the analysis of a hearsay statement should not end when a statement fails to qualify as a prior inconsistent statement, but should be evaluated under the residual hearsay exception. [Laster, 258 F3d 530.]
In this case, the Court of Appeals followed the weight of the authority and rejected the near-miss theory. Because we agree that the language of the rule does not support the near-miss theory, we affirm the judgment of the Court of Appeals.
3. OUR APPROACH TO THE RESIDUAL EXCEPTION
We agree with the majority of the federal courts and conclude that a hearsay statement is “specifically covered” by another exception for purposes of MRE 803(24) only when it is admissible under that exception. Therefore, we decline to adopt the near-miss theory as part of our method for determining when hearsay statements may be admissible under MRE 803(24).
In our view, the arguments in favor of the near-miss theory are unpersuasive and do not conform to the language of the rule. Random House Webster’s College Dictionary (1995) defines “cover” as “8. to deal with or provide for; address: The rules cover working conditions" (Emphasis in original.) Therefore, a rule concerning the same subject matter as a piece of evidence, or from a similar source, arguably could be said to “cover” that evidence.
If the rule applied to all evidence not “covered” by other exceptions, the near-miss theory would be more persuasive. However, the rule modifies the term “covered” with the adjective “specifically.” Hence, more than simple “coverage” is required. Black’s Law Dictionary (7th ed) defines “specific” as “1. Of, relating to, or designating a particular or defined thing; explicit .... 2. Of or relating to a particular named thing .... 3. Conformable to specific requirements . . . .” (Emphasis added.)
Reading the words “specifically covered” together and giving each its normally understood meaning, we conclude that to be “specifically covered” requires more than to be “covered.” Since “specific” can mean “conformable to specific requirements” and “cover” can mean “addressing” or “dealing with,” we understand that a statement is only “specifically covered” by a categorical exception when it is conformable to all the requirements of that categorical exception. To hold otherwise would read “specifically” out of the rule.
We also disagree with the Zenith court that interpreting the residual exceptions in this manner will “nullify” the categorical exceptions. Indeed, by their own language the residual exceptions cannot apply to statements admissible under the other exceptions. Moreover, the requirements of the exceptions are stringent and will rarely be met, alleviating concerns that the residual exceptions will “swallow” the categorical exceptions through overuse.
We stress that this interpretation of the residual exceptions does not subvert the purpose of the hearsay rules. Each of the categorical exceptions requires a quantum of trustworthiness and each reflects instances in which courts have historically recognized that the required trustworthiness is present. The residual exceptions require equivalent guarantees of trustworthiness. Thus, if a near-miss statement is deficient in one or more requirements of a categorical exception, those deficiencies must be made up by alternate indicia of trustworthiness. To be admitted, residual hearsay must reach the same quantum of reliability as categorical hearsay; simply, it must do so in different ways.
Thus, we affirm that the residual exceptions may be used to admit statements that are similar to, but not admissible under, the categorical hearsay exceptions. Next, we turn our attention to the requirements of the residual exceptions themselves. We focus on MRE 803(24), the applicable exception in this case.
The language of MRE 803(24) provides substantial guidance in determining the proper method of analysis. As we noted above, the rule contains four elements. To be admitted under MRE 803(24), a hearsay statement must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, (2) be relevant to a material fact, (3) be the most probative evidence of that fact reasonably available, and (4) serve the interests of justice by its admission.
The first and most important requirement is that the proffered statement have circumstantial guarantees of trustworthiness equivalent to those of the categorical hearsay exceptions. As the United States Court of Appeals for the Fourth Circuit noted in Clarke, “the inquiry into trustworthiness aligns with the inquiry demanded by the Confrontation Clause, which requires courts to examine the ‘totality of the circumstances that surround the making of the state ment’ for ‘particularized guarantees of trustworthiness.’ ” Clarke, supra at 84. Thus, courts should consider the “totality of the circumstances” surrounding each statement to determine whether equivalent guarantees of trustworthiness exist.
There is no complete list of factors that establish whether a statement has equivalent guarantees of trustworthiness. However, the Confrontation Clause
forbids the use of corroborative evidence to determine the trustworthiness of statements offered under the residual exception in criminal cases if the declarant does not testify at trial. Idaho v Wright, 497 US 805, 823; 110 S Ct 3139; 111 L Ed 2d 638 (1990). Beyond this limitation, courts should consider all factors that add to or detract from the statement’s reliability.
The second requirement is self-explanatory. To be admissible under the residual exceptions, the proffered statements must be directly relevant to a material fact in the case. A material fact is “[a] fact that is significant or essential to the issue or matter at hand.” Black’s Law Dictionary (7th ed).
The third requirement is that the proffered statement be the most probative evidence reasonably available to prove its point. It “essentially creates a ‘best evidence’ requirement.” Larez, supra at 644. This is a high bar and will effectively limit use of the residual exception to exceptional circumstances. For instance, nonhearsay evidence on a material fact will nearly always have more probative value than hearsay statements, because nonhearsay derives from firsthand knowledge. Thus, the residual exception normally will not be available if there is nonhearsay evidence on point.
The final requirement is that admission of the proffered statement conforms to the “rules [of evidence] and serve the interests of justice.” Accordingly, a court may refuse to admit a statement into evidence, even though the first three requirements of the exception have been met. This may occur if the court determines that the purpose of the rules and the interests of justice will not be well served by the statement’s admission.
Finally, we note that the facts of each case determine the answers to questions about the admissibility of evidence. Here, the trial court did an exemplary job of making clear and concise findings on the record. In order to facilitate review in the future, we ask that courts faced with MRE 803(24) questions of the type presented here make similarly explicit supportive findings on the record.
B. THE LOWER COURTS CORRECTLY APPLIED MRE 803(24) IN THIS CASE
We now turn to the facts of this case. In order to invoke MRE 803(24), the proffered statement must “not [be] specifically covered by any of the foregoing exceptions” of MRE 803. MRE 803(24). As described above, we interpret “specifically covered” to mean “admissible.” Defendant does not assert that DD’s statement would be admissible under any of the MRE 803 categorical exceptions. Therefore, the statement is a proper candidate for admissibility under MRE 803(24).
With respect to the rule’s requirements, there is no dispute that the prosecution gave proper notice to defendant of its intent to submit DD’s hearsay statements under MRE 803(24). Moreover, it cannot be disputed that DD’s statements described the material facts of defendant’s abusive acts.
The trial court made extensive findings on the record regarding DD’s statement to Ms. Bowman and detailed the manner in which it satisfied each element of MRE 803(24). The court particularly elaborated on its findings regarding the trustworthiness of the statement, noting several times that its spontaneity and the fact it was unanticipated made it particularly reliable.
The trial court also noted that the timing of the statement negated any motive to fabricate. No investigation had begun when the statement was made, and no one knew that Ms. Bowman was to interview DD that day. Additionally, DD spoke from firsthand knowledge and in terms appropriate for a child of his age. Under the “totality” of these circumstances, the court concluded that the statement had circumstantial guarantees of trustworthiness equivalent to any of the categorical exceptions.
The trial court next found that DD’s statement was the most probative evidence available concerning the actual abuse. DD did not anticipate the interview, and Ms. Bowman did not intentionally elicit incriminating information about someone other than the mother. Ms. Bowman also possessed the training to make a proper assessment of DD’s credibility at the time.
Defendant argues before this Court that DD’s first corroborative statement, made to his mother, was more probative than his statement to Ms. Bowman. However, the record contains no information about what DD said to his mother. All that is known is that both parties stipulated at trial that DD’s mother had asked him some questions about defendant’s abuse before DD spoke to Ms. Bowman. It is not possible to compare the value of a statement of known content with a statement of unknown content.
Moreover, the statement made to Ms. Bowman is more probative than DD’s testimony at trial for the same reasons that underscore the tender-years rule. As time goes on, a child’s perceptions become more and more influenced by the reactions of the adults with whom the child speaks. It is for that reason that the tender-years rule prefers a child’s first statement over later statements. By analogy, the child’s second statement is preferable to still later statements. Similarly, if DD’s mother had a motive to induce her son to lie, she would have had much more opportunity to influence him before trial than before the Bowman interview.
In aggregate, the trial court found that these circumstances justified the admission of DD’s statement under MRE 803(24). The spontaneity of the interview, lack of motive to lie, and Ms. Bowman’s interviewing methods combine to give the statement circumstantial guarantees of trustworthiness equivalent to the categorical exceptions. The unavailability of DD’s first statement, the timing of the interview, and Ms. Bowman’s careful conduct in eliciting information make this statement the most probative evidence of defendant’s abusive acts. Having found that DD’s statement met the first three requirements of MRE 803(24), the court concluded that admission would not endanger the interests of justice and ruled the statement admissible.
We agree with the Court of Appeals and hold that (1) the trial court properly analyzed DD’s statement under MRE 803(24), and (2) there was sufficient evidence to support the trial court’s findings. Consequently, we conclude that the trial court did not abuse its discretion in admitting the statement under MRE 803(24), even though the statement was not admissible under MRE 803A.
IV. CONCLUSION
The trial court properly admitted DD’s statement to Ms. Bowman under MRE 803(24), although it did not qualify for admission under MRE 803A. All the elements of MRE 803(24) were satisfied. Accordingly, there was no abuse of discretion and we affirm the decision of the Court of Appeals.
Corrigan, C.J., and Weaver and Markman, JJ., concurred with Kelly, J.
Young, J.
I disagree that evidence failing admissibility under one of the enumerated exceptions can nevertheless be admitted under the catch-all exception, MRE 803(24). Because the majority concludes otherwise, I respectfully dissent. I fully acknowledge that I advocate a minority position; however, I believe that this position best comports with the text of the residual hearsay exception as well as our time-honored prohibition against the admission of hearsay evidence.
The rule against the admissibility of hearsay is a venerable doctrine deeply rooted in our common law. The principle has been called “a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world’s methods of procedure.”
Traditionally, witnesses were required to be present at trial, be placed under oath, and be subject to cross-examination in order to testify. Under those circumstances, a witness’s credibility, memory, perception, and narration could be evaluated by the trier of fact. 2 McCormick, Evidence (5th ed), Hearsay Rule, § 245, p 93. The rule against hearsay is designed to maintain the integrity of witness testimony.
Over the years, a number of exceptions to the general rule prohibiting the admission of hearsay have been developed. Generally, the exceptions rest on the conclusion that the circumstances of the making of particular statement provide circumstantial guarantees of trustworthiness. These guarantees are found because the circumstances surrounding the making of the statement minimize or negate the hearsay dangers, such as insincerity or failure of memory.
In this case, the hearsay testimony at issue is specifically covered by MRE 803A, but cannot be admitted under that exception because, as the state concedes, the evidence was not the first corroborative statement regarding the incident. Accordingly, under the plain language of MRE 803(24), the evidence is “specifically covered” by MRE 803A and cannot be admitted under MRE 803(24).
The approach advanced by the majority subverts our historical prohibition against the admission of hearsay evidence. In the majority view, evidence that is clearly inadmissible under one of the enumerated hearsay exceptions gets a second chance at admissibility under the residual exception if, among other factors, “the interests of justice”, MRE 803(24)(C), would be served by its admission. The criterion, particularly when coupled with the deferential abuse of discretion standard for appellate review, essentially renders the general prohibition against hearsay, and the development of what hearsay is excepted and not excepted, hollow and meaningless.
Against the nearly four hundred-year-old historical development of our hearsay rules, it is clear that the drafters of the rules did not intend a wholesale trampling of the enumerated hearsay exceptions when the federal residual hearsay exceptions were enacted. The advisory committee noted that the residual exceptions “do not contemplate an unfettered exercise of judicial discretion, but they do provide for treating new and presently unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically stated exceptions.”
In this case, DD’s statement to Angela Bowman was not a “new and presently unanticipated situation.” In fact, evidence of second and subsequent corroborative statements are specifically contemplated and explicitly rejected by the clear language of MRE 803(A) — “ [i]f the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.” (Emphasis added.)
When construing a court rule, which includes a rule of evidence, this Court applies the legal principles that govern the construction of statutes. McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). Accordingly, we begin with the plain language of the rule. When the language of the rule is unambiguous, we enforce the meaning expressed, without further judicial construction or interpretation. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).
The majority treats the residual hearsay exception as if it read “A statement not specifically admissible under any of the foregoing exceptions” rather than “specifically covered.” Clearly, the plain language of the rule does not support such a reading.
This Court made deliberate choices in deciding what varieties of hearsay would be admissible and reflected those choices in the words of the hearsay exceptions. The line-drawing efforts reflected in the enumerated hearsay exceptions are rendered purposeless if hearsay that does not meet the textual requirements of a specific hearsay exception is alternatively admitted under the residual exception.
I believe that the trial court erred in allowing the hearsay testimony to be admitted into evidence. Furthermore, I do not believe that the error was harmless. The testimony of the children at trial was at times vague and inconsistent, and the physical examination of the children was inconclusive.
While the alternative construction proffered by my colleagues in the majority is a principled one, I believe my construction best harmonizes with the actual text of the evidentiary rule as well as our general and historical prohibition against the admission of hearsay evidence. The clear language of the residual hearsay exception precludes admissibility where the evidence does not meet the specific textual requirements of an enumerated hearsay exception.
I urge this Court to consider repealing MRE 803(24) and MRE 804(b)(5).
Cavanagh and Taylor, JJ., concurred with Young, J.
FRE 803(24) contained one of the Federal Rules’ residual exceptions until 1997. At that time, FRE 803(24) was combined with FRE 804(b)(5) and moved to FRE 807. FRE 807 provides:
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
There is no doubt, of course, that statements completely alien to any of the categorical exceptions may be candidates for admission under the residual exceptions.
See United States v Mejia-Valez, 855 F Supp 607, 617-618 (ED NY, 1994) (holding that defendant could not use the residual exception to admit hearsay statements from an available declarant when the covered exception required unavailability); In re Fill, 68 BR 923, 931 (SD NY, 1987) (holding that “highly unusual casejsj” may be exempted from the near-miss theory).
2 F3d 81 (CA 4, 1993).
258 F3d 525 (CA 6, 2001).
We do not hold, however, that similarity in subject matter or scope leads to the conclusion that a particular exception “covers” evidence; we simply note that the near-miss theory would be more persuasive if the residual exception used the term “covered” alone rather than “specifically covered.” In fact, we note that at least one commentator has stated that a statement is not “covered” by an exception if it is not admissible under that exception:
Judge Easterbrook’s literalism, while ingenious, assumes both an unconvincing clarity and a peculiar meaning of “covered.”156 His complaint that the authors of the rule did not use the term “admissible” ignores the fact that hearsay exceptions do not make evidence admissible. It may be inadmissible under other rules (such as relevancy rules), acts of Congress, or the Constitution.
156 The Webster’s dictionary lists 23 meanings of the term “cover,” including “to have width or scope enough to include or embrace.” Webster’s Third New International Dictionary, 524 (1986). It does not mean “is somewhat similar to,” which seems to be the meaning ascribed by Judge Easterbrook to the rule’s “specifically covered” language.
[Robinson, From Fat Tony and Matty the Horse to the sad case of A.T.: Defensive and offensive use of hearsay evidence in criminal cases, 32 Hous L R 895, 917 (1995).]
Moreover, although not deciding the meaning of “covered” in the rule, we note that “specifically covered” must mean more than “covered,” no matter what meaning is given to the latter term.
The dissent notes that the drafters of the rule used the phrase “specifically covered” rather than “specifically admissible.” In our view, this terminology merely reflects that a statement satisfying all requirements of a categorical exception and, thus, admissible under that exception may still be inadmissible for other reasons. For example, a statement that would be admissible under the excited-utterance exception may nonetheless be inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. See MRE 403. This is why MRE 803 begins, “The following are not excluded by the hearsay rule,” rather than, “The following are admissible.” (Emphasis added.) See also n 6. Notably, the dissent does not provide an alternate construction of the residual exception to support the near-miss theory, but relies on the history surrounding the Congressional enactment of the rules.
Accord Fenner, The residual exception to the hearsay rule: The complete treatment, 33 Creighton L R 265, 274-275 (2000):
Specific is defined as “a: constituting or falling into a specifiable category b: sharing or being those properties of something that allow it to be referred to a particular category.” [Merriam-Webster’s Collegiate Dictionary CD-ROM (Zane Pub. Co. 1996).] “Specifically covered” by one of those exceptions in 803 or 804, then, seems to mean falling within one of those exceptions. It does not seem to mean falling outside the exception. No matter how close it came, a miss is still a miss. This seems to be the plain meaning of the rule, as written.
That is, each exception has certain foundational elements, and if there is sufficient evidence of each foundational element for any one exception then the statement is “specifically covered” by the exception. It is specifically covered by this exception whether it fits under any other exception or not. And, if one of the foundational elements is missing, then it is not “specifically covered” by this exception — no matter how close it comes. In fact, in this latter situation, the statement is specifically not covered by the barely missed exception.
The dissent and proponents of the near-miss theory treat the recognized exceptions like hermetically sealed, insular categories. However, many of the exceptions overlap. A present-sense impression under MRE 803(1) could also be an excited utterance under MRE 803(2). Does a statement that “nearly missed” being a present-sense impression, but was admitted as an excited utterance, undermine the hearsay rules? No, because the statement still had equivalent guarantees of trustworthiness.
Moreover, the overlap among the categorical exceptions further undermines the near-miss theory because one could always argue that a statement is generally addressed by one of the categorical exceptions. For example, under the near-miss theory, nearly any explanation or description could be “specifically covered” by the present-sense impression exception.
We fail to understand why achieving equivalent guarantees of trustworthiness through alternate means makes a residual hearsay statement less reliable than a statement that satisfies a categorical exception. The categorical exceptions provide prescribed ways to assess hearsay; we do not accept that they are the only ways in which that assessment can be made.
In discussing the trustworthiness requirement, the Federal Rules of Evidence Manual states:
There are certain standard factors all courts consider in evaluating the trustworthiness of a declarant’s statement under the residual exception. These include:
(1) The relationship between the declarant and the person to whom the statement was made. For example, a statement to a trusted confidante should be considered more reliable than a statement to a total stranger.
(2) The capacity of the declarant at the time of the statement. For instance, if the declarant [were] drunk or on drugs at the time, that would cut against a finding of trustworthiness ....
(3) The personal truthfulness of the declarant. If the declarant is an untruthful person, this cuts against admissibility, while an unimpeachable character for veracity cuts in favor of admitting the statement. The government cannot seriously argue that the trust due an isolated statement should not be colored by compelling evidence of the lack of credibility of its source: although a checkout aisle tabloid might contain unvarnished truth, even a devotee would do well to view its claims with a measure of skepticism.
(4) Whether the declarant appeared to carefully consider his statement.
(5) Whether the declarant recanted or repudiated the statement after it was made.
(6) Whether the declarant has made other statements that were either consistent or inconsistent with the proffered statement.
(7) Whether the behavior of the declarant was consistent with the content of the statement.
(8) Whether the declarant had personal knowledge of the event or condition described.
(9) Whether the declarant’s memoiy might have been impaired due to the lapse of time between the event and the statement.
(10) Whether the statement, as well as the event described by the statement, is clear and factual, or instead is vague and ambiguous.
(11) Whether the statement was made under formal circumstances or pursuant to formal duties, such that the declarant would have been likely to consider the accuracy of the statement when making it.
(12) Whether the statement appears to have been made in anticipation of litigation and is favorable to the person who made or prepared the statement.
(13) Whether the declarant was cross-examined by one who had interests similar to those of the party against whom the statement is offered.
(14) Whether the statement was given voluntarily or instead pursuant to a grant of immunity.
(15) Whether the declarant was a disinterested bystander or rather an interested party. [Federal Rules of Evidence Manual (Matthew Bender & Co Inc, 2002), § 807.02(4) (citations omitted).]
The list is not intended to be all-inclusive, but to provide general guidelines.
If the declarant does testify at trial and is subject to cross-examination, corroborative evidence may be used to determine the trustworthiness of statements in criminal cases. The reason is that the Confrontation Clause is not implicated. United States v Owens, 484 US 554, 560; 108 S Ct 838; 98 L Ed 2d 951 (1988); United States v NB, 59 F3d 771 (CA 8, 1995). Similarly, in civil cases, corroborative evidence is always appropriate. Larez v Los Angeles, 946 F2d 630, 643 n 6 (CA 9, 1991).
If a statement is otherwise admissible under the residual exceptions, the interest-of-justice requirement will not preclude its admission for the sole reason that it is hearsay. If this were the case, the residual exceptions would be rendered useless.
Because we interpret “specifically covered” by an exception to mean admissible under that exception, we are not troubled by the proximity of DD’s statement to MRE 803A. The statement is not admissible under 803A and is thus not “specifically covered” by 803A. The fact that 803A, which relates to the same subject matter as the proffered statement in this case, is not a “foregoing” exception of MRE 803(24) is thus irrelevant. None of the categorical hearsay exceptions “specifically covers” DD’s statement.
The prosecution also contends that DD’s mother prompted this statement by repeatedly asking questions and that defendant discovered this fact at trial through cross-examination. As a result, the prosecution argues that DD’s first statement would not have been admissible under MEE 803A in any event because the statement was not spontaneous.
The prosecution also contests defendant’s assertions that DD’s mother “coached” DD by noting that, after the Bowman interview, DD’s mother told Bowman she did not believe DD’s story.
5 Wigmore, Evidence (Chadboum rev, 1974), § 1364, p 28. According to Wigmore, the prohibition against hearsay became entrenched in the common law between 1675 and 1690. Id. at 18.
“Hearsay testimony is from the very nature of it attended with all such doubts and difficulties and it cannot clear them up. ‘A person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities; he entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.’ ” McCormick, supra, quoting Coleman v Southwick, 9 Johns 45, 50 (NY, 1812).
MRE 803(24) provides:
Other Exceptions. A statement not specifically covered by one of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. [Emphasis added.]
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998); People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995).
“The residuals are a ‘Trojan Horse’ that has been set upon the judiciary to wreak havoc and to emasculate the rule against hearsay. Advocates for the exception, like the fated inhabitants of ancient Troy, erroneously believed that the exceptions could be adequately controlled by adding strict requirements for admission.” Beaver, The residual hearsay exception reconsidered, 20 Fla St U L R 787, 794-795 (1993).
Originally, the federal residual hearsay exceptions were found at PRE 803(24) and PRE 804(b)(5). In 1997, the two rules were combined and transferred to FRE 807.
Advisory committee note on FRE 803(24), 56 F R D 183, 320 (1973) (emphasis added).
See also United States v Dent, 984 F2d 1453 (CA7, 1993), in which, in his concurring opinion, Judge Easterbrook noted that United States v Boulahanis, 677 F2d 586 (CA 7, 1982), treated the residual exception as if it began “ ‘A statement not specifically admissible under any of the foregoing exceptions ... ’. Evidence that flunks an express condition of a rule can come in anyway.”
See Jonakait, Text, texts, or ad hoc determinations: Interpretation of the Federal Rules of Evidence, 71 Ind L J 551 (1996), who favors a textualist approach to the residual hearsay exception. | [
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Memorandum Opinion.
We granted leave to appeal to consider the scope of defendants’ easement “for access to and use of the riparian rights to Pine Lake.” 467 Mich 899 (2002). Having reviewed the issues involved, we agree with the judgment of the Court of Appeals.
However, we write briefly to clarify the trial court’s duties on remand.
First, the trial court must determine whether the easement contemplates the construction and maintenance of a dock by defendants. In answering this question, the trial court shall begin by examining the text of the easement. Where the language of a legal instrument is plain and unambiguous, it is to be enforced as written and no further inquiry is permitted. See, e.g., Gawrylak v Cowie, 350 Mich 679, 683; 86 NW2d 809 (1957). If the text of the easement is ambiguous, extrinsic evidence may be considered by the trial court in order to determine the scope of the easement.
If the easement grants defendants the right to construct or maintain a dock, the trial court must determine whether the particular dock at issue is permissible under the law of easements. Under our well-established easement jurisprudence, the dominant estate may not make improvements to the servient estate if such improvements are unnecessary for the effective use of the easement or they unreasonably burden the servient tenement. Crew's Die Casting Corp v Davidow, 369 Mich 541; 120 NW2d 238 (1963); Unverzagt v Miller, 306 Mich 260, 265; 10 NW2d 849 (1943); Mumrow v Riddle, 67 Mich App 693, 700; 242 NW2d 489 (1976). Accordingly, if the trial court concludes that the easement grants defendants the right to construct or maintain a dock, it must then determine (1) whether the dock is necessary for defendants’ effective use of their easement and (2) whether the dock unreasonably burdens plaintiffs’ servient estate.
To the extent consistent with this opinion, the judgment of the Court of Appeals is affirmed. The case is remanded to the trial court for further proceedings.
Corrigan, C.J., and Cavanagh, Weaver, Taylor, Young, and Markman, JJ., concurred.
Kelly, J., concurred in the result only.
249 Mich App 502; 644 NW2d 375 (2002).
We note that the Court of Appeals stated that “in deciding the scope of defendants’ rights under the easement, the trial court must consider the language in the easement itself and the circumstances existing at the time of the grant. . . .” 249 Mich App 514 (emphasis added). This directive is clearly inconsistent with the well-established principles of legal interpretation as stated above and is thus incorrect. | [
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Per Curiam.
A judge in the Family Division of the Kent Circuit Court terminated the respondent mother’s parental rights to her three-year-old son after concluding that there were attachment and bonding problems between the respondent and the child. Following an unsuccessful appeal to the Court of Appeals, respondent filed a timely application for leave to appeal in this Court. While that application was pending, unknown to this Court, the family division of the circuit court engaged in the apparently unprecedented and extraordinary action of allowing the foster parents to adopt the child. Again, unaware of this adoption, we remanded for additional findings.
Because we find the evidence supporting termination to be insufficient, we vacate the order terminating the respondent’s parental rights. We also take this opportunity to make clear what we believe to be obvious, that the circuit court is not permitted to proceed with an adoption following a termination of parental rights where the parent’s appeal of that decision remains pending.
I. FACTS AND PROCEEDINGS
In April 1999, the Kent Circuit Court, Family Division, assumed temporary jurisdiction over the minor child on the basis of the respondent’s admitted marijuana use. The child, who was then sixteen months old, was placed in a foster home by Catholic Social Services while the respondent entered an in-patient substance-abuse treatment program. For the first ten months of the child’s wardship, Catholic Social Services planned to return the child to the respondent. Visits between the respondent and the child went well, and the respondent actively interacted with the child. Initially, the visits were weekly, but later were increased to twice weekly. The child was sufficiently bonded to the respondent that he cried when forced to leave her.
Catholic Social Services subsequently placed the respondent in the same foster home. The foster parents reported that the respondent did a good job with the child and attended to most of his needs.
In June 2000, Catholic Social Services filed a petition to terminate the respondent’s parental rights on the basis of allegations that the conditions that led to the adjudication continued to exist and there was no reasonable expectation that the respondent would rectify the conditions within a reasonable time given the child’s age. As a factual basis for the allegation against the respondent, Catholic Social Services alleged that the respondent failed to submit to a required psychological evaluation, failed to adequately participate in counseling at the Dakotah Family Treatment Center and Aftercare Process Program, and was continuing to use alcohol and marijuana. The petition also alleged that the respondent was inatten tive and acted inappropriately during agency visits with the child.
Catholic Social Services had referred the respondent to therapist Elaine Hoogeboom for weekly substance-abuse therapy. In November 2000, Catholic Social Services, for the first time, expressed specific concern with the respondent’s bonding and attachment to the child. The social worker asked the respondent’s therapist to address the newly raised concern in weekly therapy with the respondent. Hoogeboom began meeting weekly with the respondent, her boyfriend, and the child to address the bonding and attachment issue. Several of the sessions involved only the respondent and her boyfriend because the foster mother failed to bring the child. Less than one month after the bonding and attachment therapy began, Ywania Richardson, a therapist who practiced in Genesee County, conducted a bonding and attachment assessment of the respondent and her child. She observed their interaction for less than one hour.
The permanent-custody trial took two days in early 2001. At the beginning of the trial, the parties stipulated that only legally admissible evidence could be used to establish the bonding and attachment issue. That constituted an acknowledgment by all parties that the bonding and attachment issue was not a basis supporting temporary jurisdiction. MCR 5.974(E)(1). At the trial, the social worker admitted that the respondent completed the substance-abuse program and an independent-living program. She was employed, had secured housing, and was able to care for herself. Her previous substance abuse was no longer a problem and she had remained free of controlled substances for over one year. Although the respondent did not initially follow through with a psychological evaluation when first referred IV2 years earlier, she did follow through with the second referral in August 1999. The psychologist who conducted the evaluation found nothing in her intellectual and psychological profiles that prevented her from appropriately parenting the child.
The social worker’s new concern about the respondent’s ability to parent related to her alleged lack of attachment and bonding with the child. She testified that the respondent did not interact appropriately with the child during visits. According to the worker, the respondent sometimes had difficulty engaging the child in activities, sometimes seemed lethargic during portions of the visits, and sometimes inappropriately brought candy to visits scheduled in the morning.
Hoogeboom, the respondent’s therapist, opined that the respondent and the child were bonded. She recommended that the child be placed with the respondent. According to Hoogeboom, the respondent appropriately disciplined the child and interacted with him by playing and singing with him.
Ywania Richardson, a therapist contacted by the foster mother and paid by Catholic Social Services for the respondent’s assessment, also testified at trial about the bonding and attachment issue. Richardson met with the respondent and the child on one occasion for approximately one hour to evaluate their bonding. On the basis of this single meeting, which took place less than one month after Hoogeboom began addressing the bonding and attachment issue with the respondent, Richardson opined that they did not have a well-attached, bonding relationship, but explained that this may have resulted from the fact that the child had been in a number of foster homes.
At the conclusion of the permanent-custody trial, the trial court terminated the respondent’s parental rights, despite recognizing that the respondent had made significant improvement. The respondent was drug-free, had graduated from high school, had completed an independent-living course, and obtained adequate housing and employment.
Nonetheless, the trial court held that the respondent’s lack of bonding with, and attachment to, the child provided a basis for termination. To reach this conclusion, the court gave greater weight to Holewinski’s and Richardson’s testimony. The court discounted Hoogeboom’s testimony because Hoogeboom did not specialize in treatment of the bonding and attachment issue.
The respondent appealed by right to the Court of Appeals, which affirmed. The respondent’s counsel filed a timely application for leave to appeal with this Court and filed a copy with the trial court the following day. Despite this, and just two weeks after the respondent filed the application and before this Court ruled on it (even before the date on the notice of hearing in this Court), the trial court entered an order making final the adoption of the child by the foster parents.
This Court initially denied leave to appeal in October 2002. The respondent subsequently filed a motion for reconsideration, which we granted.
II. STANDARD OF REVIEW
We review for clear error both the trial court’s decision that a ground for termination of parental rights has been proved by clear and convincing evidence and, where appropriate, the court’s decision regarding the child’s best interests. MCR 5.974(I); In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A circuit court’s decision to terminate parental rights is clearly erroneous if, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mis-
take has been made. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
III. ANALYSIS
Parents have a significant interest in the companionship, care, custody, and management of their children, and the interest is an element of liberty protected by due process. In re Brock, 442 Mich 101, 109; 499 NW2d 752 (1993). A due-process violation occurs when a state-required breakup of a natural family is founded solely on a “best interests” analysis that is not supported by the requisite proof of parental unfitness. Quilloin v Walcott, 434 US 246, 255; 98 S Ct 549; 54 L Ed 2d 511 (1978).
A
The Legislature has enumerated specific conditions, one or more of which must be proved before a court is permitted to terminate a parent’s rights to her child. MCL 712A.19b(3). The petitioner bears the burden of establishing the existence of at least one of those grounds by clear and convincing evidence. Id.; Trejo, supra at 350. The circuit court in this case relied on the following enumerated grounds to terminate the respondent’s parental rights to her son:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
* * *
(ii) Other conditions exist that cause the child to come within the court’s jurisdiction, the parent has received re commendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.
* :¡: *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age. [MCL 712A.19b(3).]
If the petitioner establishes a statutory ground for termination, “the trial court must issue an order terminating parental rights unless there exists clear evidence, on the whole record, that termination is not in the child’s best interests.” Trejo, supra at 354; MCL 712A.19b(5). “Subsection 19b(5) attempts to strike the difficult balance between the policy favoring the preservation of the family unit and that of protecting a child’s right and need for security and permanency.” Trejo, supra at 354.
The decision to terminate the respondent’s parental rights was clearly erroneous. Pursuant to MCL 712A.19b(3) (c)(ii), termination of parental rights is justified where (1) the parent is the respondent in a child-neglect proceeding, (2) other conditions exist that cause the child to come within the court’s jurisdiction, (3) the parent received recommendations to rectify those conditions and had a reasonable opportunity to do so and the respondent failed to rectify the other conditions, and (4) there is no reasonable likelihood she will do so within a reasonable time given the age of the child. The “other conditions” upon which the trial court relied were the lack of a bond or attachment between the mother and the child. However, we hold that the petitioner did not establish the lack of such a bond or attachment by clear and convincing evidence.
The respondent’s therapist met with her weekly. After ample opportunity to observe the respondent and the child interact, she opined that they were adequately bonded. She recommended that the child be returned to the respondent’s care. The respondent’s supervisor in the independent-living program also found the respondent’s interaction with the child to be appropriate. The psychologist who conducted the respondent’s court-ordered evaluation found nothing in her psychological makeup that prevented her from appropriately parenting her child. By contrast, the therapist hired by Catholic Social Services met with the child and the respondent only once for approximately one hour. Her observation of the respondent and the child occurred less than one month after the respondent’s therapist began addressing the bonding and attachment issue. Reliance on this one minimally informed source rather than on the fully knowledgeable staff of persons who had worked directly with the respondent over an extended period was an insufficient basis for severing the parental bond between mother and son.
In concluding that the respondent and her child were not properly bonded, the trial court ignored the fact that, immediately after the agency filed the petition for termination of parental rights, visitation was automatically suspended for several months pursuant to MCL 712A.19b(4). The counselor was then notified only two months before trial to address the bonding and attachment issue with the respondent. Any suggestion that the respondent was given “a reasonable opportunity” to rectify the alleged bonding and attachment issue is unwarranted.
By discounting the testimony of Hoogeboom, the respondent’s counselor, the trial court also ignored the fact that it was the social worker who referred the respondent to Hoogeboom for counseling on the bonding and attachment issue. If the social worker truly believed that Hoogeboom’s credentials were insufficient to address bonding and attachment, it was that worker’s responsibility to make an alternate referral. Despite Richardson’s alleged superior credentials, the social worker never suggested that the respondent receive treatment from her.
The fundamental right of a parent and child to maintain the family relationship can be overcome only by clear and convincing evidence, which, in this case, was not supplied by this single witness who observed the mother and child together for just one hour at a time when she had been addressing the bonding and attachment issue in therapy for less than one month.
The second basis for the trial court’s order is MCL 712A.19b(3)(g), which permits termination where (1) the parent fails to provide proper care or custody for the child and (2) there is no reasonable expectation that the parent will be able to do so within a reasonable time given the child’s age. Again, petitioner failed to present clear and convincing evidence of this ground. The social worker from Catholic Social Services acknowledged that the mother had appropriate housing and employment, was able to care for herself, had completed an independent-living program, and remained drug-free for over one year. The respondent in this case fulfilled every requirement of the parent-agency agreement. Her compliance negated any statutory basis for termination.
This Court has held that a parent’s failure to comply with the parent-agency agreement is evidence of a parent’s failure to provide proper care and custody for the child. Trejo, supra at 360-363. By the same token, the parent’s compliance with the parent-agency agreement is evidence of her ability to provide proper care and custody.
There were no statutory grounds for terminating the respondent’s parental rights pursuant to MCL 712A.19b(3). For that reason, we need not address the question whether termination was in the best interests of the child. MCL 712A.19b(5). We conclude that the trial court “clearly erred” by terminating respondent’s parental rights.
B
A parent whose rights to her child have been terminated has the right to appeal that decision. Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976). MCR 5.993(A)(2) provides an appeal of right in the Court of Appeals for an order terminating parental rights. The Adoption Code prohibits a trial court from ordering an adoption if a parent has filed an appeal of right from an order terminating her parental rights until the Court of Appeals affirms the order terminating parental rights. MCL 710.56(2).
While the statute refers to affirmance by the Court of Appeals, it must be read in conjunction with MCR 7.215(F), which establishes the effective date of a Court of Appeals opinion:
(1) Routine Issuance. Unless otherwise ordered by the Court of Appeals or the Supreme Court or as otherwise provided by these rules,
(a) the Court of Appeals judgment is effective after the expiration of the time for filing a timely application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by. the Supreme Court....
In this case, the respondent filed a timely application for leave to appeal to this Court within twenty-one days after the date of the judgment of the Court of Appeals. MCR 7.302(C)(2). Thus, the trial court improperly allowed the foster parents to adopt the child before the resolution of the respondent’s application for leave to appeal. The judgment of the Court of Appeals never became effective.
The trial court was without authority to ignore this Court’s appellate jurisdiction by allowing the adoption to take place while a timely application for leave to appeal was pending in this Court. The adoption in this case was invalid because it violated the provisions of MCL 710.56(2) and MCR 7.215(F). Further, to allow such an adoption to occur would be to distort the nature of this Court’s review of the termination decision by requiring, as an effective precondition to reversal of the termination order of the trial court, that we be prepared also to undo an adoption that has become a fait accompli. Parents whose rights have been terminated by the trial court are entitled to appellate review of this decision without that review being compromised by the specter of appellate courts having to undo an adoption as a concomitant act to the granting of relief for those parents. Such a result is simply contrary to the structure of the justice system established by our constitution and laws.
The members of this Court have each reflected upon this case at length. There is no ideal result. There is no outcome that will avoid the imposition of suffering upon either the birth parent of this child or his present adoptive parents. If there is a practical reason that adoptions not be permitted while a parent is in the process of appealing a termination decision, it is that reflected in the choices now available to this Court in this case. It is in the interests of both the natural parent and the child, as well as the interests of the integrity of the justice system, that the termination decision not be reviewed, as it has been here, under the specter of having to remove the child from adoptive parents in order to give faithful effect to the law. To say the least, this Court has not taken this decision lightly. Rather, we are fully cognizant that it is an imperfect decision and that it will have a significant effect on the lives of everyone connected with this case. We conclude, however, that the result reached is compelled by Michigan law and that the values underlying this law are important in upholding the family relationship.
In order to prevent this situation from recurring, we hold that trial courts are not permitted to allow an adoption of a child whose parent’s rights have been terminated while the parent’s appeal of that termination is pending in either the Court of Appeals or in this Court.
IV. CONCLUSION
We reverse the judgments of the Court of Appeals and the Kent Circuit Court terminating the respondent’s parental rights. Further, we vacate the order of adoption because it is invalid. Finally, we order the Family Independence Agency to commence appropriate efforts toward reunification of the respondent and the child.
Corrigan, C.J., and Cavanagh, Kelly, Taylor, Young, and Markman, JJ., concurred.
Weaver, J.
(nonparticipation statement).
I have decided not to participate in this case for the following reasons:
• First, to expedite for the sake of the child this case, which has been in the Supreme Court for over a year;
• Second, to defer to the decisions of the respondent party, the biological mother, and her attorney not to remit/waive any possible disqualification; and
• Third, to maintain public trust and confidence in the judiciary.
There are no court rules establishing the procedure for a Michigan Supreme Court justice’s decision whether or not to refrain from participation in a case. Traditionally, the decision has been left to the discretion of the individual justices, and nothing has been revealed to the public.
I propose for public comment the following amendments of Michigan Court Rule 2.003. These amendments provide that when the issue of disqualification is raised, a justice should publish in the record of the case the reasons for the decision to participate in the case or not, and outline the procedure for a justice to raise his potential disqualification with the parties and their attorneys.
(C) (5) Disqualification of a Justice. If a justice’s participation in a case is challenged by a written motion or if the issue of participation is raised by the justice or another justice, the challenged justice shall decide the issue and publish in the record of the case that justice’s reasons for the decision to participate or not.
* * *
(D) (2) Procedure for a Justice. If it appears that there may be grounds or possible grounds for disqualification, the justice may have the clerk of the supreme court send the parties the justice’s written explanation of the grounds or possible grounds for disqualification, and ask the parties and their attorneys to consider whether to waive any disqualification. If, following disclosure of any grounds or possible grounds for disqualification other than personal bias or prejudice concerning a party, the parties all notify the clerk of the supreme court in writing that the justice should not be disqualified, and the justice is then willing to participate, the justice may participate in the case.
I have in effect followed the above procedures in this case.
My decision not to participate in this case is based on a communication that I had on Monday, April 28, 2003, with the state’s central Family Independence Agency office in Lansing regarding an issue raised by a justice at oral argument on April 9, concerning the number of attachment and bonding experts in Michigan — “Do you think there are 10,000 experts in this field?”
The communication occurred at the end of a telephone conversation with a staff person to the Governor’s Task Force on Juvenile Justice (Children’s Justice Task Force), which I chair. This staff person is employed by the state’s central HA office in Lansing with task force funds. The conversation dealt with matters pertaining only to task force business until the end, when in passing, I asked the staff person how many experts on attachment and bonding there are in Michigan. Although he did not know, he connected me to someone whom he thought might know, a person who is also employed by the state’s central FIA office in Lansing. After checking, this person informed me that there may be two such experts in Michigan and certainly not 10,000. Late on Monday, April 28, I shared that information with the justices on the Court, writing:
In a preliminary contact with the Family Independence Agency in Lansing the agency Indicated that it was aware of two Michigan experts on bonding and attachment. Ms. Richardson is one of those two experts.
Chief Justice Corrigan contacted me late on Friday, May 2, and suggested that my communication with the state fia could be considered an ex parte communication, contrary to the Code of Judicial Conduct Canon 3. Although I believed this communication was not an ex parte communication — that the state’s central fia office in Lansing is not a party in this case because the Kent County division of the fia filed the petition and is a party in the case — as discussed below, I recognized that it is a question of law and fact which has not been decided by this Court.
Because the Chief Justice raised the question whether it was an ex parte communication, and ex parte communications can be grounds for disqualification, I believed the parties and their attorneys had a right to know of the communication. Late Friday, May 2, I contacted the Clerk of the Supreme Court for the “proper procedure” to raise my possible disqualification. Although Michigan Court Rule 2.003(D) applies to trial judges and does not refer to Supreme Court justices, this court rule sets out the procedure that seemed to be possibly applicable. Pursuant to Michigan Court Rule 2.003(D) and Code of Judicial Conduct Canon 3C and D, I decided to contact the parties and attorneys and raise the issue of my possible disqualification in this case.
In an attempt to expeditiously resolve this issue, on Tuesday, May 6, in accordance with the court rule, MCR 2.003(D), I had the Clerk of the Supreme Court send to the parties and attorneys a letter detailing the substance of the communication, stating that the information had been given to the other justices, informing them that it did not appear that the communication with the staff of the state’s central fia in Lansing had given or would give the Kent County fia or their attorney a procedural or tactical advantage, and stating that I had not been prejudiced or biased by the communication or by the information I received. I asked the parties and attorneys whether they would waive or remit any possible disqualification, and asked them to respond with that decision in writing to the Clerk of the Supreme Court, Mr. Corbin Davis, by 5:00 P.M. on Friday, May 9.
On Thursday May 8, the Kent County prosecutor, representing the Kent County fia office, and the attor ney/guardian ad litem for the child both sent in their decision to remit any disqualification. Late Friday afternoon, May 9, the attorney for the respondent party, the biological mother, sent a letter stating that he had not been in contact with his client, and that accordingly he was declining to remit any disqualification. I requested the Clerk of the Supreme Court to forward a copy of the attorney’s letter to all the justices. Later that same day I had the Clerk of the Supreme Court contact the attorney for the biological mother by fax, informing him that he had the time he needed to make contact with his client before making the decision on whether to remit any disqualification. On Monday, May 12, the biological mother’s attorney notified the Clerk of the Supreme Court by faxed memorandum that he had communicated with his client, and that she agreed with the decision not to remit or waive any disqualification.
I continue to believe that the state’s central fia office in Lansing is not a party in a termination-of-parental-rights case brought by a county fia office. Nevertheless, preliminary research does not reveal any decision by this Court regarding whether the state central fia office in Lansing is a party in a case brought by a county fia office. This question is one of both law and fact. In order to resolve it, this Court would need to hold an evidentiary hearing and make a finding on this point. Such a hearing and the time needed to make the legal decision would further delay this case.
Accordingly, for all the above reasons, I am not participating in this case.
None of the members of this majority can recall having ever encountered this situation, in which an adoption order entered while a timely appeal was pending in a parental-rights-termination case.
The trial court also terminated the parental rights of the father, Travis Englehart. He did not appeal.
Catholic Social Services provided foster care for court wards on the basis of a contract with the Kent County Family Independence Agency.
At the July 1999 review hearing, the social worker, Lora Holewinski, opined that the respondent did not require parenting classes or a psychological examination. She praised the respondent for her attentiveness to the child during the visits, and her only negative comment was about the respondent’s initial defiance in the substance-abuse program, which had subsided by the time of the July 1999 hearing.
A permanent-custody petition was filed earlier, in April 2000. However, the allegations in that petition refer to the respondent’s mother, rather than the respondent. The respondent’s mother was also the subject of neglect proceedings.
This is a ground justifying permanent custody pursuant to MCL 712A.19b(3)(c)(i).
However, at the October 1999 statutory review hearing, the social worker testified that the respondent had completed the in-patient portion of the program, but did not “graduate” because the weekend before the “graduation” she had violated one of the personal-conduct rules of the program.
The respondent began meeting with Hoogeboom weekly in July 2000.
The respondent’s independent-living supervisor, Alejita Rodriguez, testified that respondent earned $1,400 a month.
At the time of the permanent-custody trial, the respondent was living in a two-bedroom apartment, which she procured on her own. It was appropriately furnished and contained clothes and toys for the child.
Despite this recognition that the respondent had remained substance-free for over a year, the June 2000 permanent-custody petition erroneously alleged that the respondent continued to use alcohol and drugs.
The respondent completed the two-part evaluation in August 2000 after missing a December 1999 appointment.
Catholic Social Services referred the respondent to Richardson after the referral to Hoogeboom.
The child had resided in five different foster homes during wardship.
Unpublished memorandum opinion, issued March 1, 2002 (Docket No. 235602).
This Court was informed of the adoption after a remand to the trial court in August 2002 for updated findings of fact. The trial court filed its findings later that month.
The rules governing proceedings regarding juveniles were amended and moved to new MCR subchapter 3.900, effective May 1, 2003. The provisions on termination of parental rights are now found in MCR 3.977. In this opinion, we will refer to the rules in effect at the time of the lower-court decisions.
The social worker first asked the counselor to address the bonding and attachment issue in November 2000. The trial began in January 2001.
The social worker’s testimony also failed to establish clear and convincing' evidence that the respondent failed to address her bonding and attachment issue. Rather, the social worker’s testimony about the respondent’s occasional lethargy and bringing candy to morning visits does not, in our judgment, rise to the level of clear and convincing evidence required to permanently sever the bond between a parent and her child.
If the agency has drafted an agreement with terms so vague that the parent remains “unfit,” even on successful completion, then the agreement’s inadequacies are properly attributable to the agency and cannot form the basis for the termination of parental rights. Even if, in some case, it can be conceived that satisfaction by the parent of the parent-agency agreement does not render the parent “fit,” in this case we are satisfied that the respondent’s satisfaction of the agreement did evidence that she was no longer an “unfit” parent.
Several of the trial court’s written findings of fact on remand suggest that it may have been influenced by the relative advantages of the adoptive home compared to the mother’s home. We remind the family-division judges of what we said nearly fifty years ago:
“It is totally inappropriate to weigh the advantages of a foster home against the home of the natural and legal parents. Their fitness as parents and question of neglect of their children must be measured by statutory standards without reference to any particular alternative home which may be offered to the [child].” [Fritts v Krugh, 354 Mich 97, 115; 92 NW2d 604 (1958).]
We note the trial court’s fact-finding on remand simply because it suggests that improper comparisons between the homes of the adoptive and natural parents may have been made in determining whether to terminate the respondent’s parental rights. This type of comparison may explain why the respondent’s parental rights were terminated despite what we believe is the lack of clear and convincing evidence in support of that termination.
Despite the lack of evidence supporting the petition for termination of the respondent’s parental rights, the trial court terminated her rights and refused to return the child. Consequently, the child was deprived of a secure and stable home with his natural mother, a mother who had completed every term of her parent-agency agreement and who had, according to her own court-ordered therapist, successfully addressed her alleged lack of bonding with, and attachment to, her child. Rather than returning the child after the natural mother completed every task asked of her, the agency delayed the child’s security and stability with his own mother and sought the opinion of a different therapist who claimed that the respondent lacked the proper bonding and attachment to properly parent her child.
In Reist, all the participating justices agreed that parents have the right to appeal. The Court divided on the basis for that right. Justices Levin, Kavanagi-i, and Williams found that parents have a constitutional right to appeal. Justices Coleman, Fitzgerald, and Lindemer, on the other hand, found no need to address whether parents had a constitutional right to appeal, as they found a basis for the appeal in the relevant statute and court rule.
We acknowledge the accelerated pace at which circuit courts in this state are now required to determine whether to terminate the parental rights of a parent in a neglect proceeding. MCL 712A.19a(l) requires a circuit court to hold a permanency-planning hearing within one year after the child is made a court ward. The federal adoption and safe families act, 42 USC 675(5)(E), requires the filing'of a petition for permanent custody when a child has remained a family court ward for fifteen of the previous twenty-two months unless (i) the child is being cared for by a relative, (ii) a state agency has documented in a case plan a compelling reason for finding that filing such a petition would not be in the best interests of the child, or (iii) the state has not provided to the child’s family such services as the state deems necessary for the safe return of the child. In this case, the state did not provide the respondent with the proper services necessary for the safe return. The state agency referred the mother to a therapist to deal with the bonding and attachment issue; the therapist’s opinion (that the respondent had no problem in this area) was later discounted.
At oral argument it was reported that the county designated this as an “at risk” adoption. Apparently, this adoption was labeled that because the county took a “risk” that this Court might vacate the termination of parental rights. We explicitly disapprove of this practice. Such an “at risk” adoption does a disservice to all the parties involved.
The premature adoption that occurred in this case was a procedural anomaly, leading the Court to proceed with caution. We remanded this case for an update on the status and granted the respondent’s motion for reconsideration after additional consideration. The deliberative process required in this unusual case caused this Court to expend a greater length of time than is usually necessary in appeals of decisions regarding the termination of parental rights.
Although appeals from decisions terminating parental rights are already decided on an expedited basis, MCR 5.993(C)(1), 7.212(A)(l)(a)(i), and 7.212(A)(2)(a)(i), significant efforts have been ongoing in this Court to further expedite this process. This Court previously opened an administrative file to address appellate delay and, in April 2002, we published for comment proposed rules that would eliminate delayed applications for leave to appeal to the Supreme Court, effectively reducing the delay between the rendering of a decision by the Court of Appeals and filing of an application for leave to appeal in this Court. Those proposals will soon be ready for final action upon the receipt of related proposals from the Court of Appeals, with which they must be coordinated. In addition, this Court’s internal administrative processing of cases has been modified to assure the earliest possible Supreme Court consideration of these cases. Further, in response to concerns about delay in the Court of Appeals and a study from the National Center for State Courts regarding dependency appeals, in August 2002, we directed the Chief Judge and the Chief Cleric of the Court of Appeals to convene a Dependency Appeals Task Force, including representatives of affected courts and groups, to devise methods for expediting dependency appeals. The task force’s report was filed May 5, 2003.
As an offshoot of the task force on appellate-delay reduction, discussions have also been initiated regarding the need to address reducing trial- court delay in handling termination cases. In response to the federal government’s Child and Family Service Review of the Michigan foster-care and adoption system, a work group comprised of family-division judges and employees of the Family Independence Agency has been appointed to address such delay.
MCL 712A.19c requires the trial court to hold a posttermination review hearing, within ninety-one days of the termination decision and at least every ninety-one days thereafter. At these mandatory posttermination review hearings, the court can monitor the progress of the parent’s appeal and ensure that an adoption does not take place until the parent’s right to appellate review has been exhausted.
After this case is completed, I will publish at my personally funded website, JusticeWeaver.com, a proposed court rule designed to shorten the appellate process and eliminate appellate delays in cases involving the termination of parental rights by ensuring that they will not be in the appellate system for more than eleven months (eight months in the Court of Appeals, three months in the Supreme Court) after the claim of appeal is filed.
Code of Judicial Conduct Canon 3C provides, “A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B).”
Code of Judicial Conduct Canon 3D provides, “A disqualification of a judge may be remitted as provided by MCR 2.003(D).”
Michigan Court Rule 2.003(D)provides:
“If it appears that there may be grounds for disqualification, the judge may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceedings. The agreement shall be in writing or placed on the record.”
The Clerk of the Supreme Court did forward a copy of the attorney’s letter to all the justices on Monday, May 12, 2003. | [
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Young, J.
Defendant was charged with first-degree murder, MCL 750.316, but convicted by a jury of second-degree murder, MCL 750.317. The Court of Appeals reversed defendant’s conviction and remanded the case for a new trial, reasoning that the trial court erred when it declined to give an involuntary-manslaughter instruction. This Court granted leave to appeal to consider whether manslaughter is an “inferior” offense of murder under MCL 768.32(1), and if so, whether a rational view of the evidence supported an instruction in this case.
We conclude that manslaughter is an inferior offense of murder. However, an involuntary-manslaughter instruction was not appropriate in this case because a rational view of the evidence did not support it. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant’s conviction. To the extent that People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), and its progeny conflict with this opinion, they are overruled.
I. FACTS AND PROCEDURAL HISTORY
Defendant and codefendant Ivan Tims visited the home of victim William Stockdale and Stockdaie’s nephew, Thurman Chillers, with the intent to purchase marijuana. Tims initially waited outside in the car while defendant discussed the price of the drugs with Stockdale and Chillers in the house. Agreeing on a price, defendant indicated to Stockdale that he had to return to the car to get additional money. When defendant returned to the house, he was accompanied by Tims. Both men brandished handguns.
Chillers testified that, upon entering the home, defendant instructed Tims to “shoot him.” In response, Tims alternately pointed his gun at Chillers and Stockdale. Stockdale, in turn, rushed at defendant, grabbed defendant’s gun and swung it downward. Chillers ran out of the house. As he ran, he saw Stockdale “tussling” with defendant. Chillers further testified that he heard one shot while he was in the house and four or five more shots when he was outside. In the end, Stockdale was shot twice, once in the leg and once in the chest. The chest wound proved fatal.
Defendant was charged with first-degree murder, MCL 750.316, and possession of a firearm during the commission of a felony, MCL 750.227b. His defense was that Tims shot Stockdale. Defendant elicited testimony from various witnesses establishing that defendant was not in the house when the victim was fatally wounded and that the fatal bullet came from a gun traceable to Tims.
At the close of proofs, defendant requested instructions for voluntary and involuntary manslaughter, MCL 750.321, and careless, reckless, or negligent discharge of a firearm, MCL 752.861. The trial court denied the requests and instructed the jury on first-degree murder, MCL 750.316, and second-degree murder, MCL 750.317. Defendant was convicted of second-degree murder and felony-firearm.
The Court of Appeals reversed defendant’s conviction and remanded the case for a new trial. The panel treated the manslaughter-instruction requests as requests for instructions on a “cognate” lesser included offense and concluded that the trial court erred in refusing to give the involuntary-manslaughter instruction because there was evidence from which the jury could conclude that the victim’s death was unintended and occurred while defendant was engaged in an unlawful act not amounting to a felony. Slip op at 2.
The prosecutor applied for leave to appeal. We granted leave to consider whether manslaughter is an inferior offense of murder within the meaning of MCL 768.32 and, if so, whether an involuntary-manslaughter instruction was supported by a rational view of the evidence.
II. STANDARD OF REVIEW
Whether manslaughter is an inferior offense of murder within the meaning of MCL 768.32 is a question of law that the Court reviews de novo. Weakland v Toledo Engineering Co, 467 Mich 344, 347; 656 NW2d 175 (2003).
III. ANALYSIS
A. MCL 768.32
MCL 768.32 governs inferior-offense instructions. Subsection 1 provides in pertinent part:
[U]pon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.
We recently examined this statute in People v Cornell, 466 Mich 335; 646 NW2d 127 (2002). In Cornell, the Court considered whether necessarily included lesser offenses and cognate lesser included offenses were “inferior” offenses under MCL 768.32. In consideration of this issue, we examined the meaning of the word “inferior”:
“We believe that the word ‘inferior’ in [MCL 768.32] does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense. The controlling factor is whether the lesser offense can be proved by the same facts that are used to establish the charged offense." [Cornell, supra at 354, quoting People v Torres (On Remand), 222 Mich App 411, 419-420; 564 NW2d 149 (1997)].
Relying on this definition of “inferior,” this Court concluded that MCL 768.32 only permitted consideration of necessarily included lesser offenses. Cornell, supra at 353-354. Thus, we held that an inferior-offense instruction is appropriate only if the lesser offense is necessarily included in the greater offense, meaning, all the elements of the lesser offense are included in the greater offense, and a rational view of the evidence would support such an instruction. Id. at 357.
B. MANSLAUGHTER IS AN INFERIOR OFFENSE OF MURDER
Manslaughter is an inferior offense of murder because manslaughter is a necessarily included lesser offense of murder.
1. THE ELEMENTS OF COMMON-LAW MURDER AND MANSLAUGHTER
Common-law murder encompasses all killings done with malice aforethought and without justification or excuse. People v Scott, 6 Mich 287, 292-293 (1859).
See also People v Potter, 5 Mich 1, 6 (1858) (“Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied.”).
First-degree murder is defined in MCL 750.316. All other murders are murders in the second degree. MCL 750.317. See also People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998), which enumerated the elements of second-degree murder as (1) death, (2) caused by defendant’s act, (3) with malice, and (4) without justification.
Manslaughter is murder without malice. See Potter, supra at 9 (noting that without malice aforethought, “a killing would be only manslaughter, if criminal at all”). See also People v Palmer, 105 Mich 568, 576; 63 NW 656 (1895), remarking:
“Manslaughter is perfectly distinguishable from murder, in this: That though the act that causes death be unlawful or willful, though attended with fatal results, yet malice, either expressed or implied, which is the very essence of murder, is to be presumed to be wanting in manslaughter.” [Quoting the trial court jury instructions.]
The common law recognizes two forms of manslaughter: voluntary and involuntary. People v Townes, 391 Mich 578, 589; 218 NW2d 136 (1974).
Common-law voluntary manslaughter is defined as:
[T]he act of killing, though intentional, [is] committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition . . . .[Maher v People, 10 Mich 212, 219 (1862).]
See also Townes, supra at 590 (“A defendant properly convicted of voluntary manslaughter is a person who has acted out of a temporary excitement induced by an adequate provocation and not from the deliberation and reflection that marks the crime of murder.”). Thus, to show voluntary manslaughter, one must show that the defendant killed in the heat of passion, the passion was caused by adequate provocation, and there was not a lapse of time during which a reasonable person could control his passions. See People v Pouncey, 437 Mich 382, 389; 471 NW2d 346 (1991). Significantly, provocation is not an element of voluntary manslaughter. See People v Moore, 189 Mich App 315, 320; 472 NW2d 1 (1991). Rather, provocation is the circumstance that negates the presence of malice. Scott, supra at 295.
Involuntary manslaughter is the unintentional killing of another, without malice, during the commission of an unlawful act not amounting to a felony and not naturally tending to cause great bodily harm; or dining the commission of some lawful act, negligently performed; or in the negligent omission to perform a legal duty. See Townes, supra at 590. See also People v Helfin, 434 Mich 482, 507-508; 456 NW2d 10 (1990) (opinion by Riley, C.J.).
2. THE SOLE ELEMENT DISTINGUISHING MANSLAUGHTER AND MURDER IS MALICE
An examination of the historical development of homicide law informs this Court that manslaughter is a necessarily included lesser offense of murder because the elements of manslaughter are included in the offense of murder.
a. HOMICIDE IN ENGLISH COMMON LAW
In early English common law, a killing was either justifiable homicide; excusable murder committed by misadventure or accident, or in self-defense; or capi tal murder, characterized by “malice aforethought” and punishable by death. See 2 Pollock and Maitland, The History of English Law (Cambridge: University Press, 1952), ch VIII, Crime and Tort, § 2, p 485. However, during the fourteenth and fifteenth centuries, an exemption called the “benefit of clergy” was widely used as a device to mitigate mandatory death sentences. Hall, Legal fictions and moral reasoning: Capital punishment and the mentally retarded defendant after Penry v Johnson, 35 Akron L R 327, 353 (2002).
The “benefit of clergy” was an exemption that allowed an offender to be sentenced by the ecclesiastical courts, which did not impose capital punishment. Though it was initially intended to benefit clergy, it also benefitted persons who could satisfy its literacy test. See Kealy, Hunting the dragon: Reforming the Massachusetts murder statute, 10 B U Pub Int L J 203, 205-206 (2001). Thus, it was not long before persons other than clerics claimed the exemption, so that the “benefit of clergy” exemption benefit-ted anyone who could read. See Justice Harlan’s discussion in McGautha v California, 402 US 183, 197; 91 S Ct 1454; 28 L Ed 2d 711 (1971), noting that, although all criminal homicides were prima facie capital cases, the “benefit of clergy” was available to almost any man who could read.
In response to the exemption’s widespread availability, statutes were passed throughout the fiffcéenth and sixteenth centuries proclaiming the exemption unavailable for homicides committed under particularly reviled circumstances, collectively termed “murder with malice aforethought.” Moreland, The Law of Homicide (Indianapolis: The Bobbs-Merrill Co, Inc, 1952), ch 2, The Development of Malice Aforethought, p 9. The “benefit of clergy” remained available, however, for offenders convicted of less culpable homicides. Id. Thereafter, unjustified and unexcused homicide was divided into two separate crimes: “wilful murder of malice aforethought”, a capital offense for which the “benefit of clergy” was unavailable, and manslaughter. Plucknett, A Concise History of the Common Law (New York: The Lawyers Co-Operative Pub Co, 1927), ch 2, The Felonies, pp 395-396. The critical difference between murder and manslaughter was the presence or absence of “malice aforethought.” Moreland, supra at 10.
b. “MALICE AFORETHOUGHT”
The phrase “malice aforethought” has evolved over the centuries. During the late fifteenth and early sixteenth centuries, “malice aforethought” meant that one possessed an intent to kill well in advance of the act itself. Id. at 10. Notably, the emphasis was on “aforethought,” so that the critical difference between capital and noncapital murder was the passage of time between the initial formulation of the intent to kill and the act itself. Moylan, Criminal Homicide Law (Maryland Institute for Continuing Professional Education of Lawyers), ch 2, § 2.7. The term “malice” alone had little significance beyond meaning an intent to commit an unjustified and unexcusable killing. Id. The purpose of the “malice aforethought” element was to distinguish between deliberate, calculated homicides and homicides committed in the heat of passion. Kealy, supra at 206.
As more and more defendants claimed they lacked an intent to kill before the act was committed, juries and courts increasingly rejected this argument. The result was a case-by-case “semantic erosion” of the term “aforethought,” until “malice aforethought” meant nothing more than the intent to kill had to exist at the time the act was committed. Perkins & Boyce, Criminal Law (3rd ed), Murder, § 1, p 58 (“[a]s case after case came before the courts for determination . . . there came to be less and less emphasis upon the notion of a well-laid plan. And at the present day, the only requirement in this regard is that it must not be an afterthought”). There was, consequently, a parallel erosion of the distinction between capital murder, for which aforethought was required, and non-capital homicide, for which it was not.
Interestingly, although the English courts grew weary of the oft abused “lack of aforethought” defense, it was nevertheless evident that there was still some interest in distinguishing between a homicide committed in “cold blood” and one committed under circumstances that mitigated one’s culpability. To express this distinction, the focus shifted from “aforethought” to “malice.” Moreland, supra at 11 (“[t]he law of homicide seems thus to have now progressed from a place where the mental element was of no importance to a place where at the beginning of the seventeenth century it had become a factor of prime importance”).
Because there was a need to distinguish the most serious homicide from the rest, and because “aforethought” no longer had legal significance, malice evolved from being merely an intent to kill to also evidencing the absence of mitigating circumstances. Moylan, supra at § 2.7. Consequently, the presence of malice became both synonymous with the absence of mitigating circumstances and the sole element distinguishing murder from manslaughter.
We glean from our examination of manslaughter’s historical development that manslaughter is defined to reflect the absence of malice. Thus, the only element distinguishing murder from manslaughter is malice.
3. MANSLAUGHTER IS A NECESSARILY LESSER INCLUDED OFFENSE OF MURDER
A necessarily lesser included offense is an offense whose elements are completely subsumed in the greater offense. Cornell, supra at 356.
Regarding voluntary manslaughter, both murder and voluntary manslaughter require a death, caused by defendant, with either an intent to kill, an intent to commit great bodily harm, or an intent to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result. However, the element distinguishing murder from manslaughter — malice—is negated by the presence of provocation and heat of passion. See Scott, supra at 295. Thus, we conclude, the elements of voluntary manslaughter are included in murder, with murder possessing the single additional element of malice.
Regarding involuntary manslaughter, the lack of malice is evidenced by involuntary manslaughter’s diminished mens rea, which is included in murder’s greater mens rea. See People v Datema, 448 Mich 585, 606; 533 NW2d 272 (1995), stating:
“[Plains should be taken not to define [the mens rea required for involuntary manslaughter] in terms of a wanton and wilful disregard of a harmful consequence known to be likely to result, because such a state of mind goes beyond negligence and comes under the head of malice
Unlike murder, involuntary manslaughter contemplates an unintended result and thus requires something less than an intent to do great bodily harm, an intent to kill, or the wanton and wilful disregard of its natural consequences. [Citations omitted; emphasis added.]
See also United States v Browner, 889 F2d 549, 553 (CA 5, 1989), stating, “In contrast to the case of voluntary manslaughter . . . the absence of malice in involuntary manslaughter arises not because of provocation induced passion, but rather because the offender’s mental state is not sufficiently culpable to reach the traditional malice requirements.”
Thus, we conclude that the elements of involuntary manslaughter are included in the offense of murder because involuntary manslaughter’s mens rea is included in murder’s greater mens rea.
Accordingly, we hold the elements of voluntary and involuntary manslaughter are included in the elements of murder. Thus, both forms of manslaughter are necessarily included lesser offenses of murder. Because voluntary and involuntary manslaughter are necessarily included lesser offenses, they are also “inferior” offenses within the scope of MCL 768.32. Consequently, when a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence. Cornell, supra.
4. TODAY’S HOLDING IS CONSISTENT WITH EARLY MICHIGAN COMMON LAW
Today’s holding is consistent with our courts’ historical understanding of the law of murder. Michigan courts have historically concluded that a manslaughter instruction is appropriate on a murder charge if a manslaughter instruction is supported by a rational view of the evidence. See, e.g., Hanna v People, 19 Mich 316, 321 (1869) (in consideration of MCL 768.32’s similarly worded predecessor, “without this provision, the common law rule would, under the statute, dividing murder into degrees, have authorized a conviction not only for murder in the second degree, but for manslaughter also, under an indictment for murder in the first degree, all these being felonies included in the charge”) (emphasis added). See People v Treichel, 229 Mich 303, 307-308; 200 NW 950 (1924), stating:
This Court has repeatedly held, where the charge as laid includes murder in the first degree, and the proofs establish such degree, and no lesser degree, it is not error for the court to instruct the jury that, in order to convict, murder in the first degree must be found. But this court has not held, under a charge like here laid, the court must instruct the jury to find murder in the first degree or acquit. Whether such an instruction may be given or not depends upon the evidence. [Emphasis in original.]
[In this case, the] information charged murder in the first and second degrees, and this was inclusive of manslaughter. The evidence left it open for the jury to find defendants guilty of manslaughter.
See also People v Droste, 160 Mich 66, 78-79; 125 NW 87 (1910) (concluding that the trial court was “clearly warranted” in instructing the jury on manslaughter in
a murder case because a jury could have concluded there was sufficient intoxication or passion to “rob [defendant’s] act of the necessary elements of murder”); People v Andrus, 331 Mich 535, 546-547; 50 NW2d 310 (1951) (remarking that it was proper for the court to submit the lesser included offenses of second-degree murder and manslaughter because the evidence was sufficient to support the offense).
It was not until this Court overlooked MCL 768.32, and introduced “cognate” lesser included offenses, that the relationship between manslaughter and murder became muddled. In People v Jones, 395 Mich 379; 236 NW2d 461 (1975), this Court, without consideration of MCL 768.32, recognized a new category of lesser included offenses called “cognate” offenses. Cognate offenses differed from necessarily included lesser offenses in that cognate offenses share with the higher offense several elements and are of the same class or category, but they contain elements not found in the higher offense. See Cornell, supra at 344-346. Faced with a category of lesser included offenses not previously recognized in Michigan, this Court, in Van Wyck, supra at 268, concluded that manslaughter was a cognate lesser included offense of murder:
We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty for that crime.
As we noted in People v Ora Jones, supra:
“The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser.” [Citation omitted.]
* * *
[With regard to the murder/manslaughter relationship], [t]he absence of mitigating circumstances need not be established in order to convict one of first- or second-degree murder. Consequently, it cannot be said voluntary manslaughter is a necessarily included offense within the crime of murder; it is incorrect to state that it is impossible to commit first- or second-degree murder without having first committed manslaughter. [Van Wyck, supra at 268-269.]
Notably, the Van Wyck Court failed to discuss earlier common-law decisions characterizing manslaughter as a lesser included offense of murder before cognate offenses were recognized. We also note that the Van Wyck Court did not give any consideration to the unique relationship between murder and manslaughter.
For the reasons discussed above, we conclude manslaughter is a necessarily included lesser offense of murder. We further conclude that Van Wyck’s analysis is flawed inasmuch as it is premised on a body of law recognizing cognate lesser included offenses in contravention of MCL 768.32. Accordingly, to the extent that Van Wyck and its progeny are inconsistent with this opinion and our opinion in Cornell, they are expressly overruled.
C. AN INVOLUNTARY-MANSLAUGHTER INSTRUCTION WAS NOT WARRANTED
Having concluded that manslaughter is an inferior offense of murder because it is a necessarily included lesser offense, we now consider whether the trial court erred in refusing to give an involuntary-manslaughter instruction.
An inferior-offense instruction is appropriate only when a rational view of the evidence supports a conviction for the lesser offense. Cornell, supra at 357. In this case, the Court of Appeals concluded there was sufficient evidence to support an involuntary-manslaughter instruction. In reaching this conclusion, the Court relied on defendant’s statement to the police recounting what happened:
I was at a gas station on Seven Mile near Hoover when Ivan pulled up in a gray newer model car and asked me did I want some bud. Ivan asked me did I have half on it. I said, yes. I then got into the car with'Ivan. Ivan stopped by one house, then he went to the bud house. When we got to the house, Ivan stayed in the car and I went to the house. When I got to the front door, there was a big guy coming out and motioned for me just to go on in. The guy that let me in continued talking to a big dark-skinned guy with a deep voice. Another guy, kind of frail [Chillers], sitting in a love seat asked me how many I needed. I responded by saying, just one back. That’s when Ivan came to the door. Ivan started talking to the guy with the deep voice. The guy that let me in then left. I started to get my stuff from the frail guy. While I’m getting my stuff, I heard some tussling. I look back and Ivan was tussling with the big guy with the deep voice. They were tussling over a handgun with a dark barrel. While they were tussling, I heard approximately two shots. They then fell into a comer over a chair. I then heard the frail guy holler. He had pulled out a shiny revolver and pointed it at Ivan and the guy he was tussling with. I then tried to knock the gun away from [Chillers]. As I was attempting to knock the gun away from [Chillers], he pulled the trigger. I then tried to ran but I tripped over Ivan .... [Emphasis added.]
The Court of Appeals concluded that defendant’s statement that Chillers pulled the trigger when defendant tried to knock the gun away from him was sufficient to support an involuntary-manslaughter convic tion. The Court reasoned that defendant’s statement could support a finding that the victim’s killing was an unintended death, without malice, and not caused by any action of defendant naturally tending to cause death.
We disagree and conclude that defendant’s statement alone is insufficient to support an involuntary-manslaughter instruction. Defendant’s statement does not indicate that the shot fired during the struggle struck or killed the victim. In fact, during his request for an involuntary-manslaughter instruction, defendant argued that the shot fired during the struggle was the nonfatal shot to the victim’s leg.
Therefore, because there is no evidence that the shot fired during the struggle killed the victim, and in light of the substantial evidence that the shot was not the fatal shot, we conclude a rational view of the evidence does not support an involuntary-manslaughter instruction.
We further disagree with the conclusion of the Court of Appeals that an instruction for common-law involuntary manslaughter was premised on defendant’s theory of the case. Defendant’s theory throughout trial was that someone else was responsible for the victim’s death. Consider defendant’s opening statement, in which he sets forth his theoiy:
What really occurred in this situation that you’ll see is sure, my client Mr. Mendoza and Mr. Tims went over to that location. They didn’t go over there to harm anybody. They went over there to buy what Mr. Stockdale and what Mr. Chillers were in the business to sell, which is marijuana
* * *
You’ll hear that, that Mr. Tims . . . and another person were tussling over a handgun. And while they’re tussling, shots went off. And my client went over there to try to prevent that from happening. And that’s when the tussle broke out. When my client’s running out of that location, he gets shot by Mr. Chillers.
So, it’s not my client that’s doing any shooting in there. It’s Mr. Chillers loho’s causing all these problems and doing shooting in there.
* * *
So, what happened here is after my client, after he’s running away and Mr. Chillers shoots him and he’s running to the car wounded, Mr. Tims on his own goes back up to that front door with that revolver in his hand and started shooting into the house. And that’s when Mr. Stockdale gets shot in the chest.
* * *
This is what I believe the evidence will show . . . That gun was never in the possession of Mr. Mendoza. That gun was the one identified as being in the hands of Mr. Tims when he went back on his own. [Emphasis added.]
It is, therefore, clear that defendant’s theoiy was that Tims was responsible for the victim’s death.
In sum, we conclude that a rational view of the evidence did not support an involuntary-manslaughter instruction. Therefore, it was not error for the trial court to deny the instruction. Accordingly, we reverse the judgment of the Court of Appeals.
IV. CONCLUSION
Manslaughter, in both its forms, is an inferior offense of murder within the meaning of MCL 768.32. Therefore, an instruction is warranted when a rational view of the evidence would support it. Van Wyck and its progeny are overruled to the extent the Van Wyck analysis of the relationship between manslaughter and murder holds otherwise.
In this case, we conclude a rational view of the evidence did not support an involuntary-manslaughter instruction. Therefore, the trial court did not err when it refused to give the instruction. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant’s second-degree murder conviction.
Corrigan, C.J., and Weaver, Taylor, and Markman, JJ., concurred with Young, J.
Defendant did not cross-appeal to challenge the judgment of the Court of Appeals affirming the trial court’s decision not to give instructions on voluntary manslaughter or careless use of a firearm.
The concurrence criticizes the construction of MCL 768.32 set forth in Cornell, arguing that the Court should apply the dictionary definition of “inferior.”
We are confident that we applied the appropriate canon of statutory construction in construing MCL 768.32 by giving “inferior offense” its common-law meaning when it was codified by the Legislature. See Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994) (“words and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject”).
Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense. Cornell, supra at 356.
Cognate offenses share several elements, and are of the same class or category as the greater offense, but the cognate lesser offense has some elements not found in the greater offense. Cornell, supra at 344.
The concurrence criticizes the majority opinion for adopting “obiter dictum” from Cornell to conclude that inferior offenses are limited to necessarily included lesser offenses. We disagree with this mischaracterization of Cornell’s analysis.
In Cornell, the Court was charged with the task of construing MCL 768.32(1), because MCL 768.32(1) governs when instructions are given for “inferior” offenses. To that end, we expressly adopted Justice Coleman’s dissent in People v Jones, 395 Mich 379, 395-407; 236 NW2d 461 (1975), which would foreclose consideration of cognate lesser included offenses. Cornell, supra at 353. See also Cornell, supra at 356 n 9, in which we state, “as we have already explained, the wording of MCL 768.32 also limits consideration of lesser offenses to necessarily included lesser offenses.” We then expressly held that a requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires a jury to find a disputed factual element that is not part of the lesser offense and a rational view of the evidence would support it. Id. at 357.
Accordingly, we disagree with the concurrence’s characterization of the Cornell analysis as “obiter dictum.” Rather, the Cornell discussion of the limits of MCL 768.32 was central to our construction of the statute and thus central to the resolution of the issues before the Cornell Court.
MCL 750.316 provides in pertinent part:
(1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life:
(a) Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.
(b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping.
(c) A murder of a peace officer or a corrections officer committed while the peace officer or corrections officer is lawfully engaged in the performance of any of his or her duties as a peace officer or corrections officer, knowing that the peace officer or corrections officer is a peace officer or corrections officer engaged in the performance of his or her duty as a peace officer or corrections officer.
Although first-degree murder is defined by statute, the statute is understood to include the common-law definition of murder. See People v Riddle, 467 Mich 116, 125-126; 649 NW2d 30 (2002). See also People v Utter, 217 Mich 74, 86; 185 NW 830 (1921).
In addition to common-law manslaughter, the Legislature has also determined that manslaughter shall exist in several other circumstances. See, e.g., MCL 750.322 (the willful lolling of an unborn child by injury to its mother), MCL 750.323 (the killing of a quick child by use of medicine or an instrument), and MCL 750.329 (a killing committed without malice by means of an intentionally aimed firearm).
The “benefit of clergy” was a political compromise between the state and the church, intended to ensure errant clerics who were convicted in the royal court were turned over to the ecclesiastical courts for sentencing.
Defense counsel argued in support of the manslaughter instruction as follows:
Alternatively there’s also involuntary manslaughter, now that I think about it, in terms of that gun potentially accidentally [sic] going off during the struggle over the gun at the time it’s discharged. That’s how I claim, that the shot to the leg happened, when they were struggling over the gun." [Emphasis added.]
Expert testimony established that the leg wound was not the fatal injury. | [
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Grant, J.
(after stating the facts). The court should have directed a verdict for the defendants. Westcott was not in the employ of the defendants at the time of the accident, and what he did was entirely outside the scope of his authority. His employment lasted only from the time that he received his horse and wagon at the stable until he had delivered him back again at the stable into the possession, control, and care of Mr. Pierce, the stable keeper. The horse which was ridden was not the one he drove. Pierce alone was responsible for the boy’s act in riding the horse. Defendants did not authorize or permit him to employ the drivers for any such purpose. Hundrecls and thousands of men are employed to work a portion of the day for one employer, and are at liberty to work the balance of the time for others or for themselves. If this boy had been permitted by Pierce to take the horse and wagon on business for himself or for Pierce outside of the delivery hours, defendants would not be liable for any negligence of the boy, because it would be without the scope of the authority of either Pierce or Westcott. That the act to be done by the boy might possibly result, or was intended to result, in benefit to defendants, is not the test of authority. The act must be within the scope of his employment, in order to render his employer liable. The rule as stated by text writers is as follows:
“The act causing the injury must have been one within the scope of the authority which the servant had from the master, or which the master gave the servant reasonable cause to believe that he had, or which servants employed in the same capacity usually have, or which third persons have a right to infer from the nature and circumstances of the employment.” 1 Shear. & R. Neg. (4th Ed.) § 148.
Complaint is made that counsel for the plaintiff, in their argument to the jury, used language not justified by the record, and prejudicial to the rights of the defendants. If the case were not reversed upon the principal question in the case, we should be compelled to consider these remarks. We think they were unjustifiable. But, inasmuch as they are not liable to occur upon a new trial, should one be had, we refrain from their discussion.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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Hooker, J.
Joseph B. Moore, in the capacity of administrator of his father, J. Wilkie Moore, of Detroit, replevied from the defendants, who are husband and wife, some articles of household furniture, which at the time of the replevin were in the residence which had been occupied by J. Wilkie Moore until about two weeks before his death. Elizabeth Mackenzie became the housekeeper of J. Wilkie Moore on April 25, 1885, and she married John J. Machen at Mr. Moore’s house on December 24, 1890, and they remained at the house of Mr. Moore until his death. About two weeks before J. Wilkie Moore died, he was taken to the house of his son, the plaintiff, where he subsequently died. Upon the trial the defendants claimed that some of the articles replevied had been purchased by Mr. and Mrs. Machen of Mr. Moore, and others had been given to her by other persons.
Mrs. Machen was permitted to testify that many of the articles had been purchased by her without the knowledge of Mr. Moore, and paid for by money furnished by her husband. This testimony was taken subject to the objection that it was within the statute excluding the testimony of a party as to facts equally within the knowledge of the deceased.
Counsel were not permitted to show by the plaintiff that, by direction and authority of his father, he demanded the delivery of the property during the latter’s lifetime. This appears to have been excluded upon the ground that the plaintiff was the son and heir of J. Wilkie Moore, and that his testimony was inadmissible under the statute excluding testimony of facts equally within the knowledge of the deceased. We think this a misapplication of the statute. He did not stand in an antagonistic relation to the estate, but his testimony was offered in its behalf, and was, therefore, admissible. The court instructed the jury that:
“In order to maintain this action, it is essential that the plaintiff should prove either that there was a wrongful conversion of the property upon the part of the defendants, or that he had demanded of the defendants possession of the property, and it had been refused. In either of these cases the plaintiff would be entitled to maintain the action, providing the plaintiff establishes, by evidence satisfactory to you, that, at the time the writ was issued, he was entitled to the possession of the property.”
The exclusion of this testimony was, therefore, injurious, as it tended to prove a demand. There was testimony of another demand, made after the intestate died, but both alleged demands were disputed. We are of the opinion that a demand made by J. Wilkie Moore, or his authorized agent, before his death, would be all the demand required to support this action. Proof of the agent’s authority would be necessary, however, before the demand would avail. If J. Wilkie Moore directed his son to make the demand, it was all that was necessary; and, as it might be proven by the testimony of any one who heard the direction given, so, too, it might be proven by that of Joseph B. Moore himself. It is true that it was the statement of another, but it was res gestee.
Mrs. Machen was allowed to testify that she purchased some of the articles with money furnished by her husband, and that J. Wilkie Moore was not present at the time. The plaintiff claims that this was not admissible under the statute that prohibits an adverse party from testifying to matters equally within the knowledge of a deceased person in an action brought or defended by his representative. He says that the question was the ownership, and that the deceased must have known whether he owned such property, and that this testimony was an indirect way of proving that he did not own it. Counsel cite some cases in point from other States, but our statute has not received so liberal a construction. Counsel cite several cases which sustain the ruling. Wheeler v. Arnold, 30 Mich. 304; Webster v. Sibley, 72 Mich. 636 (40 N. W. 772); Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143); Pillard v. Dunn, 108 Mich. 301 (66 N. W. 45); Schmitz v. Beals, 115 Mich. 112 (73 N. W. 109).
Many questions are raised over the introduction of evidence. Counsel for the defendants sought to justify some of this testimony upon the ground that it tended to show friendship on the part of J. Wilkie Moore for Mrs. Machen, and tended to render it probable that some of these articles were given to her by him. If there was any testimony directly tending to prove that he gave any of the articles to her, proof of friendly relations might be admissible, otherwise not. There was some testimony admitted, however, that was immaterial, and the learned circuit judge recognized this, but admitted it as cross-examination upon subjects opened by plaintiff’s counsel. As the cause must be reversed for the reason already stated, it is unnecessary to discuss this testimony.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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Montgomery, C. J.
(after stating the facts). The ground upon which the main question appears to have been decided is that the statute does not protect subcontractors, and that plaintiff is a subcontractor, within the ruling in Avery v. Board of Sup’rs of Ionia Co., 71 Mich. 538 (39 N. W. 742); People v. Cotteral, 119 Mich. 27 (77 N. W. 322). These cases hold that one occupying such a relation to the principal contract as that held by the plaintiff in this case is a subcontractor. It would follow, therefore, that if the act in question, and the bond given in pursuance to its provisions, do not protect a subcontractor, these cases should be held decisive. There has been, so far as we are advised, no interpretation of this statute by the federal courts which is of aid in determining this question. It is contended, however, that our own decisions above cited rule this question in favor of defendants. The case of Avery v. Board of Sup’rs of Ionia Co., which the Cotteral Case follows, construes a statute materially different from the one under consideration. The statute is section 10744, 3 Comp. Laws 1897. The condition of the bond required is “for the payment by such contractor or any subcontractor * * * of all indebtedness which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished,” etc. In the Avery Case, above cited, much stress is properly placed on the italicized words of the statute above quoted. It was held that the bond required was not for the protection of subcontractors, “ but to protect material men and laborers at the hands of the contractor and subcontractor. ” In this case the statute attempts to protect all persons supplying the contractor or contractors labor and materials in the prosecution of the work provided for in such contract. The language could not well be more comprehensive, and, as there is nothing in the statute which directly or by fair implication excludes such subcontractors, we think it should be held to include such subcontractors as supply labor and materials in the prosecution of the work.
The plaintiff under his contract made a shipment of material to be used in the building, which, through no fault of plaintiff, was seized under a writ against Jack & Son. Such material was furnished for the prosecution of the work, and the plaintiff is within the protection of the bond to the extent of the value of such material, unless it be held that, as the contract provides for payment only after the work and material are accepted by the supervising architect, nothing is due to the plaintiff on account of the same. This is contended, and cases like Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207), and Boots v. Steinberg, 100 Mich. 134 (58 N. W. 657), are cited in support of this contention. These cases áre not authority for the doctrine that, where the contract purchaser has put it beyond the power of the vendor to furnish evidence of inspection or approval by an arbiter, the vendor must lose the goods, nor does such a rule commend itself to our ideas of justice. We think, to the extent of. the value of the goods in their condition when seized, the plaintiff is entitled to recover, as they were furnished, so far as it was possible to do so, under the contract.
Judgment will be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Hooker, J.
This action is ejectment, and the. plaintiff has appealed from an adverse verdict. Each party seems to rely upon a claim of title by adverse possession, and as plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary, if he is to recover it follows that the burden was upon him to show that he had title by adverse possession. The case has, been before us three times; being reported in 110 Mich. 537 (68 N. W. 269); 112 Mich. 584 (70 N. W. 1106); and 117 Mich. 108 (75 N. W. 294).
The plaintiff alleges error upon the refusal of the court to direct a verdict in his favor, but we think that he was not entitled to such instruction, as he failed to show conclusively that he had open, visible, notorious, and'exclusive possession for the statutory period. For many years the defendant maintained a sidewalk upon this strip, and it was in constant use by his tenants. Yelverton v. Steele, 40 Mich. 538; Paldi v. Paldi, 95 Mich. 410 (54 N. W. 903); Judson v. Duffy, 96 Mich. 255 (55 N. W. 837); Pendill v. Agricultural Society, 95 Mich. 491 (55 N. N. 384).
Error is alleged upon the following instruction to the jury:
“Now, defendant claims that board walk was not put there by permission, but that he only put it there as a claim of title to that two feet. He claims, further, that later he built across the end of the lot a barn which extended over upon these two feet of land at the rear end of the lot, corresponding to the two feet in the front end of the lot, and that he did that claiming title to that two feet; and therefore defendant claims that plaintiff did not have uninterrupted possession of that property for all of these years, or for 15 years, because defendant asserted title to the two feet he is now claiming title to. ”
Counsel argues that the testimony did not bear out these statements. The court does not appear to have been stating the testimony, but the theories or claims of the respective parties, and he left it to the jury to say whether or not these claims were proven. We think there was evidence to go to the jury upon them, and that the court might properly state such claims.
We find no error, and the judgment is affirmed.
The other Justices concurred. | [
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The Chief Justice:
This being an appeal from a decree in Chancery, in a case in which the witnesses were examined in open court, the only way in which it can be tried here upon the facts, is upon a case made and settled as prescribed in §3511 of Compiled Laws, which provides that “in case any cause in Chancery shall be so tried in open court, either party shall be entitled to make and settle a case, setting forth the evidence at large before the Judge who tried the same, at such time and in such manner as said Judge shall direct, or as shall be prescribed by the rules of said court; and upon the making and filing of such case within three months after such trial, the same shall be taken and deemed to be the evidence in said cause, to the same extent and with like effect as if the said testimony had been taken before a Circuit Court Commissioner, and certified by him.”
There is no such case before us, but the Circuit Judge has transmitted instead a certified copy of his minutes of the testimony exhibited before him. The obvious intention of the statute, is to confer upon parties the right to settle a case, setting forth the evidence given in the court below, for the consideration of this court in the hearing upon appeal, to avoid the omissions and misapprehensions of the Circuit Judge, which might easily occur in the haste and perplexities of the trial before him. Certainly we have no' more authority to consider his minutes of the testimony than those of counsel.
The proper course in this class of cases, is for the party desiring the testimony to be certified to us, to make a case setting it forth, present it to the Circuit Judge, and procure his order, fixing the time and place when and where it shall be settled, and for notice to the opposite party, that he may attend and propose amendments; or instead thereof to take other proceedings equivalent. The practice should be assimilated, as near as may be, to that of making cases- for review at law. This course will secure to each party a full opportunity to have the testimony exhibited in this court substantially, if not literally, the same as that exhibited below.
This motion is made to docket and dismiss the appeal for want of such a case. This we think to he irregular. The appeal has been regularly taken, and if neither party desires it to he heard upon pleadings and proofs, hut they are content to submit it without the testimony exhibited below, we think they may do so. But as we construe this section of the statute, either party may initiate proceedings for making and settling a case. If neither does it, and the case is brought to a hearing, it will necessarily devolve upon the appellant to show that the decree is not warranted by the pleadings; the presumption being that there was evil dence below to authorize it.
Motion denied without costs.
Gould, suggested a difficulty in this statute, that it required the case to he made and settled within three months after the trial; and the cause might not he decided within that time.
The Chief Justice :
We must construe the statute to mean three months after the trial is concluded by decree. | [
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Martin Ch. J.:
In January, 1858, the defendants held a mortgage of Wm, H. Russel], upon certain personal property in the Russell House, in Detroit, to secure the payment of $16,-000. This mortgage they agreed to assign to Hale upon his payment to them of $9,000, in four equal installments, at six, twelve, eighteen and twenty-four months; but took no contract from Hale to make such payment. Their obligation to assign the Russell mortgage was dependant upon the prompt payment by Hale of the several installments above mentioned.
Hale paid the first installment, but made default upon the second, as the defendants claim; and they are about to take possession of the property and foreclose the mortgage for that reason.
Hale files this bill to restrain such foreclosure, and for specific relief; claiming that he holds liabilities of the defendants to a much larger amount than is due them, which, or so much as is necessary, he is entitled in equity to have allowed as payment towards the purchase of the Russell mortgage, and to prevent the threatened forfeiture of his right to purchase it. This claim of right is based upon the alleged insolvency of the defendants.
Whether we regard the bill as one filed to relieve against a forfeiture of the agreement, or to secure an equitable set off (and both grounds were taken uj>on the argument), it. can not be sustained. In a variety of cases, as where one is prevented by unavoidable accident, or by the wrongful act of the other party, from making payment, or when the principal amount of the contract price has been paid, and the like, it is true that a court of equity will interfere to relieve against a forfeiture; but never where such relief can only be afforded by compelling a party to receive his own obligations, when the agreement contains no mutual promises, and where such interference would be to vary the terms of the contract forfeited.
Nor is this a case in which equity will interfere to compel a set off. No set off can exist at law, because no contract upon the part of Hale exists against which to allow it. There is nothing but the offer of Holmes & Co. to convey, upon the payment of §9,000 in certain fixed installments, the debt and mortgage of Russell for $16,-000. The option remained with Halo to purchase it or not, but if he would, he must do so according to the terms of such offer. There is no mutual credit, and insolvency alone is insufficient, even' in a case of positive indebtedness, to authorize an equitable off set. This we expressly held in Lockwood v. Beckwith, 6 Mich. 167.
But the cose itself, as developed by the pleadings and proof, is not one entitling the complainant to any relief.
Whether the agreement by Waldo, Barry & Co., with the defendants, for the compromise of the latter’s indebtedness, might have been forfeited by the former or not, is wholly immaterial under the facts now existing, and it is also immaterial whether they agreed or not to extend the time for payment of the compromise note. When the latter note was given, the defendants placed in the hands of Waldo, Barry & Co. the promissory note of this complainant for $2,500, together with a mortgage held as collateral security for its payment, to be held by Waldo, Barry & Co. as collateral security for the payment of such compromise note. This note of the complainants was past due when the compromise note became due. When the second installment under the defendants’ agreement with the complainant was about falling due, and upon which the defendants relied (and this Waldo, Barry & Co. evidently knew) to take up their compromise note, we find Hale in New York negociating for the purchase of the defendants’ paper in Waldo, Barry & Co.’s hands, and obtaining it under what savors very strongly of a threat. He knew that they, as well as the defendants, relied upon his payment of- this installment to take up the compromise note; and the extraordinary benefits offered to huh in the agreement of the defendants, might well induce them to rely confidently upon it. When therefore he told Waldo, Barry & Co. that “he -could keep defendants out of the money two years,” they undoubtedly became satisfied that the most they could hope for was the amount of the compromise note, secured by Iiale’s obligation. They therefore sold to Hale such note, for the sum of $3,000, and transferred to him the four notes which were to be satisfied by its payment, and the securities, viz. Hale’s note and the mortgage held as collateral to it. This was the real transaction as understood by the parties, if we are to believe Waldo, and so the written assignment executed by them must be interpreted. Hale, then, never purchased the notes covered by the compromise note, so as to acquire the right to demand payment of them; as by selling the compromise note and surrendering to him the security dejiosited to ensure its payment only, and not that of the four notes, they confirmed the compromise. The effect of the transaction therefore is simply this: By taking up his own note and security, he cancelled them; and what he claims to be a purchase of the compromise note, is in reality a payment of his note which secured it. If he has any claim upon the defendants, it is only for the difference between the amount due upon his note, and the amount of the compromise note: but with this question we have no concern. He never acquired any claim against the defendants by procuring the four notes transferred with the compromise note, which he can enforce either at law or in equity. They were paid by the payment of his note in the manner indicated.
The decree of the court below must be reversed, and the bill dismissed, with costs of this ^ court and of the court below.
Manning, and Campbell JJ., concurred.
Christianct, J., was absent. | [
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Campbell J.:
The questions arising in this case, all go to the inquiry whether the mortgage, made by Backus to Montgomery, takes precedence of the execution sale against Backus, Whereby the property was sold.
The mortgage from Backus to Montgomery was made in Canada, and, in order to be valid at all, must be sustained under the laws of Canada. It is claimed by the defendants that, under those laws, the description of the horse in controversy is insufficient.
By the Canadian statute of 20 Vic. C. 3, § 4, it is declared that a mortgage of chattels, “shall contain such efficient and full description thereof, that the same may be thereby readily and easily known and distinguished.”
The description in the mortgage before us is “ one sorrel horse.” In the case of Rose v. Scott, 17 Q. B. 385, the court of Queen’s Bench of Upper Canada had occasion to apply the provision of the statute above quoted, to a chattel mortgage containing the following description, viz: “ seven horses, three lumber wagons, one carriage, one pleasure sleigh, all the household furniture in possession of the said party of the first part, and being in his dwelling house; all the lumber and logs in and about the saw mill and premises of the said grantor, and all the blacksmith’s tools now in possession of the said party of the first part; six cows and four stoves.” The court held that nothing but the furniture, lumber and logs, could pass, as none of the other articles were described in such a way as to enable a person to ascertain their identity by inspection or inquiry, and distinguish them from other similar articles. We do not perceive in the description before .us any way of distinguishing this sorrel horse from any other sorrel horse in the province, and are very well convinced that the instrument would be so construed by the Canadian courts, upon the authority cited. The object of the statute is to prevent purchasers and creditors from being deceived by ambiguous descriptions, the allowance of which would encourage fraud, and render it easy to substitute one chattel for another. As this horse had a name, that would have furnished a ready description. And any hint: which would have directed the attention of those reading the mortgage to any source of information beyond the word of the parties to it, would at least have been much more satisfactory. The provision in the statute was, as is remarked in Rose v. Scott, “to enable third parties to ascertain what was intended to be assigned.” The statute is certainly a wise one, and should be so construed as to make it effectual. As between the parties, the same difficulties are not likely to arise.
A more serious question, however, is whether the mortgage, if sufficiently certain, could yet avail against the levy. The defendants claim that it must yield to their execution title. The plaintiff, however, insists that we are bound by comity to protect his rights; and that his mortgage is valid here, to all intents and purposes, if valid in Canada.
We certainly should be very reluctant to deny to any party any right legally assured to him under the laws of our neighboring province, even if our common origin and friendly associations did not make the duty of extending the principles of comity a cheerful one. And in holding, as we are compelled to in this case, we are glad that we find no incompatibility between our own laws and those of Canada. We regard them both as aiming to accomplish the same object in very much the same way. They are substantially alike.
The evil which both statutes found in existence, was the facility for fraud held out by allowing mortgagors of chattels to retain possession under any circumstances. By pernfitting the mortgagee to hold,' if he took his security in good faith, the law formerly subjected subsequent purchasers from the mortgagor to all the danger arising from his fraud, although he was enabled to perpetrate it by the permission to retain possession given him by the mortgagee. At the same time there were many cases where it was very necessary to the mortgagor to be enabled to keep possession. In order to provide for such emergencies, and at the same time protect creditors and purchasers from fraud, our statutes declare that a chattel mortgage shall be void as against them, without an actual and continued change of possession, unless the mortgage is recorded by filing a copy, with us in the city or town, and in Canada, in the proper county office. And here, as there, an affidavit of renewal must be made yearly.
This provision for filing or registry is not intended by any means to encourage or legalize the practice of making mortgages without possession. The statute now as before, regards change of possession as the rule, and allows filing to dispense with its necessity, because filing is public notice. But we can not suppose that either statute was designed, or can be properly construed, to dispense in any case with filing and change of possession also. If a chattel mortgage of property here is made by a non - resident, our law contains no provision for filing it. In such a case a change of possession is therefore essential, and can not be dispensed with against creditors or purchasers. The Canadian law contains a provision for filing in the county where the property is, if the mortgagor is a non-resident, and also contemplates a new filing, if the property is removed from county to county. These provisions are ample, where the property continues within the jurisdiction. But neither law undertakes to provide for any notice to be effectual if the property is elsewhere, and in such contingency, the prohibition of retaining possession must be absolute, so far .as it can apply at all.
We must assume that these laws were passed in view of the well settled principle, that a law can have no binding force beyond the jurisdiction of the sovereignty enacting it. A resident of Canada, while dealing in Canada, for a chattel, can not be sirpposed to know the law of Michigan, or to be obliged to take notice of the records in a Michigan office. A statute of Michigan requiring him to do so would be of no validity beyond our own borders. And it would be equally unreasonable to require a citizen of Michigan, at home, to take notice of files and entries in Canada. These notices can have no extra territorial force. Proceeding upon the principle that the laws must have a sensible construction, we feel constrained to hold that the rules of these laws which require a change of possession, dispense with it only where an effectual notice may be given. If mortgagees desire to be protected where no notice can be made effectual, they must take possession, and not allow the mortgagor to take the property where third parties have no means of ascertaining its title.
In the view we have taken of these laws, no conflict arises, and we regard our ruling as sustaining the policy of both countries.
It must be certified, that the mortgage of plaintiff is invalid as against the levy and sale under the defendant’s execution, and that the latter must be allowed priority. The other questions become immaterial.
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Campbell J.:
A mandamus is applied for, to compel the respondent to pay over to the Board of Education their share of moneys in his hands received from fines and recognizances. The question submitted is, whether the amounts paid in to Mm from those sources are liable to any deductions for expenses, either attending the collection of the particular sums paid in, or embracing the general criminal expenses of the county.
The present Constitution, Art. 18, § 12, declares that “The Legislature shall also provide for the establishment of at least one library in each township; and all fines assessed and collected in the several counties and townships, for any breach of the penal laws, shall he exclusively applied to the support of such libraries.”
So far as fines are concerned, this language is too plain to be open to construction. No deduction for expenses or otherwise can lawfully be made from such fines. The whole amount collected belongs to the library fund, and no portion can be applied elsewhere.
The other moneys appropriated for that purpose are so given, not by virtue of any constitutional provision, but under a statute, which reads as follows: “The clear proceeds of all fines for any breach of the penal laws of this state, and for penalties, or upon any recognizances in criminal proceedings, and all equivalents for exemption from military duty, when collected in any county,” &c., shall be apportioned among the several townships by the county treasurer. This apportionment is required to be made between the first and tenth days of April, according to the number of children within the school ages, as appearing by the statements on file in his office: — Comp. L. p. '752.'
Except as to fines, which are now regulated by the Constitution which was adopted subsequently to this act, the disposition of these funds is under the control of the Legislature; and it must depend entirely upon their action whether all or only a portion of these moneys shall be given for the town libraries. We must therefore look at the whole legislation upon the subject to ascertain the design of the act in question.
Chapter 155 of the Compiled Laws provides for the collection of penalties and forfeitures, and requires “all sums of money collected on account of any penalty or forfeiture” to be paid over to the county Treasurer: — Comp. L. §§5126, 5127, 5134, 5135, 5143, 5150. The costs and fees are allowable as in civil cases upon the proceedings to collect, and are separate from the penalty: — §§5136, 5140. On indictments the costs are expressly given' to the use, not of libraries, but of the county: — §5688. The whole amount collected upon the penalty itself is plainly required to be paid over to the county treasurer by these sections. The taxable costs can not be deducted from the amount forfeited, but should be kept separate; and, if paid into the library fund by mistake may be corrected.
By § 5151, it is declared that “every county treasurer shall keep an accurate account of all moneys paid to him on account of fines, penalties, forfeitures and recognizances, separate and distinct from all other accounts, and shall credit the same to the Library Fund,” &o. And, by §5152, it is directed that “all the moneys belonging to such Library Fund shall be apportioned by the treasurer at the times, &c., and shall be paid over, tfec., according to such apportionment.”
The moneys belonging to this fund must necessarily include all that has been legally paid into it, subject to such deductions, after it has been paid in, as the laws authorize or require. Without questioning the right of the Legislature to make such deductions as they deem expedient, except from«fines, it is very clear that until they see fit to make such deductions, — inasmuch as no money can be drawn from the treasury without some legal authority — the fund must remain inviolate. No provision of law has yet been enacted allowing or requiring any money to be deducted from this fund. The criminal expenses are not a charge upon it. The clear proceeds, therefore, as the laws now stand, include all sums paid into the treasury from the sources mentioned.
It is unnecessary to consider the collateral questions argued. We are of opinion that the treasurer is bound to include in his apportionment, and to pay over to the several local officers, all moneys which are paid into his office on account of fines, penalties, forfeitures, and recognizances. A mandamus should therefore issue as prayed. We do not, however, regard this as a proper case for costs.
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Campbell J.:
A habeas corpus having been issued to the sheriff of Wayne county, to inquire into the cause of detention of the relator, it appears that in August, 1859, he was sentenced to the State Reform School, as under sixteen years of age, and that the Recorder of Detroit, who sentenced him, has recently issued a precept or writ, of a somewhat anomalous character, whereby he has been brought back from that"’ institution, and is now in the hands of the sheriff of Wayne county.
The relator now claims, that his imprisonment in the Wayne county jail is illegal, and that he was in fact more than sixteen years old when sentenced.
The first question that arises is, whether the action of the Recorder, in sentencing the relator, was legal. The law requires the court to ascertain, by testimony, the age of the person committed, as near as may be, and certify it to the keeper of the Reform School, with the sentence. Having certified the supposed age of the relator, .with his sentence, the Recorder must be presumed conclusively, so far as all collateral inquiries are concerned, to have done his duty. We have no right to assume, or even to inquire, in this proceeding, whether he allowed the statements of the accused, or any other than legal evidence, to guide him. This is not the proper manner in which to review such finding, if it be subject to review. He has no right now to give a new sentence; and the old one is undoubtedly a legal and valid commitment. If he made a mistake in the prisoner’s age, it does not vitiate the sentence.
Without inquiring into the authority of the Recorder to issue a habeas corpus in any case, to be served out of the city or county, the writ which he actually issued is void. lie could not take a prisoner 'out of the Reform School, who has been lawfully sentenced there, unless to testify as a witness. The sheriff of Wayne comity can not lawfully hold Mm in obedience to such a writ.
The question next arises, whether the relator is entitled to a discharge altogether. He claims that his allegations in the petition for a writ of habeas corpus, not being controverted, must be taken as true; and that, if true, they show his sentence to have expired.
This is not so. The object of' a writ is to require the person who answers it to show' upon what authority he detains the prisoner. The return shows, not indeed any authority in the sheriff of Wayne county to. hold him, but an authority in the keeper of the Reform School to hold him, under a legal commitment from which he has not been lawfully discharged. The prisoner may, under section 5239, deny the truth of the return, or establish his right to a discharge by facts; but until he does so, the return showing sufficient cause, and being admitted to be true, will prevail. He has not shewn that Ms term of imprisonment has expired. He has not even alleged it.
As he has been legally committed for a criminal offense, it is our duty to remand him to the proper custody, wMch is that of the keeper of the State School of Reform, at Lansing, to be held under Ms original sentence, which is set forth in the return: — 2 Comp. L. §§ 5234, 5235.
The other Justices concurred. | [
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Martin Ch. J.:
Under the statute (Gomp. I. Gh. 130), the Circuit Court can only refer to the clerk for assessment and report those cases in which a written obligation or contract is set forth in the declaration as the cause of action. This reference is made after interlocutory judgment, and the obligation or contract must be in writing, and be either a bill of exchange, promissory note, order, or draft for the payment of money, or some contract for the payment of money, or for the payment of a sum certain though payable in specific articles, or for the delivery of specific articles at a stipulated value or price. The only exception to the requirement that the written instrument shall be set forth in the declaration as the cause of action, is in cases where the action is upon a promissory note or bill of exchange, and the plaintiff shall file and serve with his declaration a copy of such -note or bill; in which case the damages may be assessed as though the instrument had been specially set out in the declaration.
In the present case, the declaration containing only the common counts in assumpsit, the clerk clearly had no right to assess, but the damages should have been ascertained by the court or by a jury. The order of reference appears to have been to the court, as was proper; but the judgment entry shows, that the clerk actually ascertained and reported the damages, that the court assessed damages upon such report, and that the judgment was rendered thereupon. It was suggested, on the argument, that as the order of reference was in regular form, tins court, after judgment, should presume the subsequent proceedings to have been regular and in conformity with it, upon the well settled maxim that every presumption should be in favor of the judgment. But the order was the entry of the plaintiff’s attorney, made of course, after default; while the judgment entry is the act of the court; and it is that which the law presumes imports absolute verity. No presumption can therefore arise against the judgment, based upon the order of reference; for the whole record may be, and is undoubtedly true. Had the judgment been entered in the form prescribed by law (Comp. L. §4481), this question could not possibly have arisen. This section provides, that the record shall^ state no reference to the clerk, nor any proceedings in consequence thereof; but that the damages shall be stated as having been assessed by the court; but this disregard of the statute does not authorize us to overlook the facts deliberately set out in the record, or to presume any thing contrary to it.
It is further contended, that as the statute (§ 4437), provides, that in suits wherein the clerk can not assess the plaintiff’s damages, such damages may be assessed by a jury, the duty of referring the question to a jury is imperative, and that an assessment by the court without a jury is illegal and void. Such was undoubtedly the case before the adoption of the Constitution of I860, and the subsequent legislation respecting juries. But by the 2'Ith section of article VI. of the Constitution, it is provided that the right of trial by jury shall remain, but shall be deemed to be waived in all gívíI cases, unless demanded by one of the parties in such manner as shall be prescribed by law. By the provisions of the act of 1853 {Comp. L. §3435), all issues and questions of fact shall be tried by the court, unless a jury be demanded by one of the parties, in a manner prescribed by the rules of court; and by the Circuit Court rules, this demand is required to be made in writing.
These provisions of the Constitution and statute evidently contemplate a dispensation, in all cases, -with a jury, unless demanded by a party having a right to make such demand, or when ordered by the court. Now, in cases of assessment after interlocutory judgment, the amount of damages to which the plaintiff is entitled, although not put in issue, is still a question of fact; and by suffering default, the defendant has deprived himself of the right of tendering an issue; but if he has appeared, he, as well as the plaintiff, may still demand a jury for the pm-poses of the assessment; while, if he has not appeared, the plaintiff may, although the defendant has forfeited such right. To this extent, the provision of the statute requiring the assessment to be made by a jury, which existed before the Constitution of 1850, is modified by it and subsequent legislation.
The judgment of the Circuit Court must be reversed, and the case sent back for re-assessment of damages.
The other Justices concurred.
The rule on this subject is as follows: “ Rule 61. A party desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the clerk on or before the first day of the term for which the cause is noticed* for trial, and at or before the first call of the calendar; otherwise he shall bo deemed to have waived his right to a jury: Provided, however, that the Judge of any Circuit Court may, whenever he deems it advisable, by a rule of said court, require the demand for a jury to be made and filed within sucli time before the commencement of any term thereof, as may be designated in such rule.” | [
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Hooker, J.
The findings of fact in this case show that the plaintiff’s agents, Herron & Lounsbury, had in their possession for sale the machinery to recover payment for which the plaintiff has brought this action. The authority of the agents was in writing, and restricted them to sales for cash or approved notes. Dana held a past-due note given by Lounsbury, and wanted to sell it to the defendant, who, before purchasing the note, saw Lounsbury, who assured him that the note was all right, but that he would be unable to pay it before the next fall, but if defendant should obtain the note, and desired any machín ery, he would turn him out machinery upon the note. Defendant thereupon purchased the note, and thereafter received from Lounsbury a binder and corn harvester for the note. He agreed also to turn over to Lounsbury two old machines, and to pay a small balance of account which he owed Herron & Lounsbury. Herron had nothing to do in the transaction, except that he exhibited the machinery in the implement building. The machines were started by plaintiff’s agents and experts after delivery to the defendant, and were used by defendant in gathering his crop in 1899. Some time after the defendant received the machines, and after they had been so used, plaintiff’s agent demanded payment for them, when defendant claimed that he had paid Lounsbury for them, and refused to pay further, and refused to deliver the machines to plaintiff’s agent upon demand. The defendant made no inquiry, and had no actual knowledge of the agency. This action was then brought in assumpsit to recover the value of the machines, the declaration being the common counts.
The conclusions of law found by the circuit judge are as follows:
“1. Marcena Lounsbury appropriated the property of plaintiff to his own use, and paid his debt to the defendant therewith. The property having been intrusted to him for a special purpose, he committed a tort when he used it as his own to pay his individual debt.
“3. Defendant received the property of plaintiff in exchange for the note of Marcena Lounsbury, and, if it must be assumed he in law was aware of the agent’s authority, he is to be held as participating in the wrong done by Lounsbury to plaintiff.
“3. There existed no contract relations between defendant and plaintiff, either express or implied, and the court cannot construe the acts done into contract relations between plaintiff and defendant. Waldo did not buy the machines of plaintiff. He received them in payment of Lounsbury’s note, from Lounsbury.
“4. The tort of Lounsbury cannot be construed into a contract between defendant and Lounsbury’s principal, the plaintiff.
“5. Waldo, having become possessed of plaintiff’s property by reason of the tort of plaintiff’s agent, and never having converted the same into money, but still having the property, cannot be held to respond to plaintiff in the action of assumpsit.”
The plaintiff has appealed.
The right to waive the tort and sue in assumpsit exists in-at least two classes of cases, — one where the defendant has come into the possession of the plaintiff’s property without his consent, and has received money upon a subsequent sale of the same; the other where he has come into possession through contract relations with the plaintiff, and the contract has been rescinded or failed, and he persists in keeping the property, refusing to deliver it upon demand. Grinnell v. Anderson, 122 Mich. 533 (81 N. W. 329). Manifestly this is not a case of the first class, because the defendant has not sold the property, and cannot therefore be said to have received money for the use and benefit of the plaintiff. It would seem that the case must turn upon the question whether defendant acquired possession of this property through contract relations with the plaintiff. We must take the facts as found. We cannot say that the judge should have found that defendant knew of plaintiff’s ownership, or that Lounsbury was its agent, and, if we could do so, we would not be justified in saying that he knew, or was bound to know, that these particular machines were not Lounsbury’s individual property. From the finding we must assume that he supposed that they were Lounsbury’s property. It becomes unimportant whether we say that he bought it of Lounsbury, or took it in payment of Lounsbury’s note. It was a sale and purchase in either case. But it wrs not a sale by the owner. It was a sale by, and purchase from, a wrong-doer, and none the less so by reason of the fact that the vendor was in the lawful possession of the property for the purposes of sale for the owner. The circumstances of the sale negative any inference of contract relations between the plaintiff and defendant. The case is ruled by Grinnell v. Anderson, 122 Mich. 533 (81 N. W. 329); St. John v. Iron Co., 122 Mich. 68 (80 N. W. 998). See, also, Watson v. Stever, 25 Mich. 386; Coe v. Wager, 42 Mich. 49 (3 N. W. 248); Loomis y. O ’Neal, 73 Mich. 582 (41 N. W. 701); Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652); Aldine Manfg. Co. v. Barnard, 84 Mich. 632 (48 N. W. 280); Ginsburg v. Lumber Co., 85 Mich. 439 (48 N. W. 952).
The judgment is affirmed.
The other Justices concurred. | [
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Montgomery, C. J.
The plaintiff recovered a verdict of $55,000, which is the amount of a commission claimed to have been earned on the sale of a mining property owned by the defendant, with interest. The evidence shows that the defendant was interested in mining property in Ontario, known as A. L. 74, 75, and 76, and other claims in the Rainy river district, and also known as the Foley-Weigand prdperty. The property was a gold mine, partially developed. It was not yet equipped with a stamp-mill; and defendant, Demme, had, in the fall of 1895, invested in this property some $75,000. Plaintiff and defendant were then friends. Both were residents of Detroit. Plaintiff was a broker.
In the fall of 1895, defendant told plaintiff of his situation ; that he had invested more in this property than he had expected; that he was very anxious to get out, and had a scheme for organizing a land-improvement company to take over the property, develop it in part, and sell out certain of the claims. With this end in view, he expressed himself as willing to organize a company with a capital stock of $500,000, with shares at $1 each, of which 800,000 should be issued to defendant, and 200,000 left in the treasury, and, of the 300,000 issued to defendant, a sale was to be made of 150,000 at par. The plaintiff, believing that through his Eastern connections he would be able to sell this mine or place the stock, entered into an agreement with defendant with that in view. What the terms of that agreement were rests upon the testimony of the two parties. The plaintiff testified that, in addition to a paper containing an elaborate description of the mining property owned by defendant, and a statement of the terms upon which he was willing to organize a company, an additional paper was given to the plaintiff, which was later returned to Mr. Demme, the defendant, and which is not now produced. He states that the paper authorized him to place the Foley-Weigand property, known as A. L. 74, 75, and 76, upon the market, and to form a land-improvement company to take this property for development, and after-wards take in other property, and that for placing this property upon the market $50,000 commission was to be paid. On further examination, he testifies that this letter contained a proposition to organize a land-improvement company, and, if that could not be done, “to effect the organization of a company which would — to effect the organization of this property.” He further testified as follows:
“Q. Who was to effect the organization ?
“A. I was.
“Q. You were to effect the organization ?
“A. I was to find some one who would effect the organization with me.
“Q. Was that substantially all there was in that paper ?
“A. For the formation of this company, $50,000 commission was to be paid.
“Q. For what were you to receive the $50,000 ?
“A. For placing upon the market this Foley-Weigand property, or to effect an organization to operate it.
“Q. Were you to effect the organization ?
“A. No; not personally.
“Q. Then why do you say to ‘effect an organization ? ’
“A. To help effect one.
“Q. What do you mean by to help effect an organization ?
“A. Find some one in the East who would form a company.
“Q. Is that what you mean by it ?
“A. Ido.”
On cross-examination he testified as follows, referring to the original talk about plaintiff’s going East to sell the property:
‘ ‘ Q. What did you tell Mr. Demme at that time ?
‘‘A. I told him I thought I could sell it.
“ Q. Were you to sell the mine, — was that the arrangement ?
“A. I was to find a purchaser.
“ Q. You were to find a purchaser for the mine, — for the whole of the property?
“A. Yes, sir.
“ Q. Then, in that talk, it was not that you were to organize a company, but you were to sell the mine ?
“A. It was to place the property upon the market; that is what it was.
“ Q. What do you mean by placing it upon the market, —offer it for sale ?
“A. Yes, sir; or organize a company in any way.
“ Q. Do you mean organize a company or offer it for sale ?
“A. Both; to place it on the market means both, in the broker’s business.
‘ ‘ Q. Which were you to do, — to sell it, or place it on the market and organize a company ?
“A. That is what I was to do, put it on the market.
“ Q. What do you mean by putting a mine upon the market ? Do you mean that you were to go down to Boston, and tell the people down there that you had a mine to sell ? Do you call that putting it on the market ?
“A. No, sir.
“Q. Do you call putting it on the market, visiting Head & Co., and showing them that you had got a mine, and a lot of assays and blue prints, and saying that you wanted to sell it to them ? Do you mean that is putting it upon the market ?
“A. No, sir; I mean finding a man who will do that, who will agree to do that, — put it on the market.
“Q. It is not you who were to put it on the market, — it is the other man ?
“A. I was to find a purchaser for it, or somebody who would put it on the market.
“Q. There are two propositions; you are to find a purchaser for it, and a man that will put it on the market. Just what do you mean ?
“A. To put a property upon the market, in a broker’s sense, means to find a customer to buy it outright, to organize a company, or to take it off the hands of the people who want to sell it.
‘ ‘ Q. That is, it means either of those two things ?
“A. Yes, sir.
“Q. Then, if I understand you, you were either to find a man who would take that mine and pay for it in money—
“A. Yes, sir.
“Q. Or you were to find a man who would organize a company who would pay for it ?
“A. Yes, sir.
“Q. I understood you to say on your direct examination that, at the time Mr. Demme sent you there, he was hard up for money ?
“A. Yes, sir.
“Q. Was that the idea of selling his property ?
“A. To a certain extent; yes.
“Q. What do you mean by, ‘To a certain extent?’ Was that the idea, because he was hard up he wanted to sell his mine ?
“A. Well, I don’t know about that.
“Q. You testified something about it. What did you mean by that ?
“Mr. Kirchner: By what?
“ Judge Van Zile: That Mr. Demme was hard up, and wanted to dispose of his property.
. “The Witness: That is right. That was the»idea of my going East to sell it, — that I could get for Mr. Demme some money.
‘ ‘ Q. How much money were you to get for Mr. Demme ?
“A. No stipulated amount.
“ Q. Was there not anything said about how much money you were to get for him ?
“A. A company was to be organized—
“ Q. Not that a company was to be organized. Mr. Demme was hard up, and wanted to sell his property to get some money, and you and Mr. Demme talked that over ?
“A. Yes, sir.
“ Q. How much money F
“A. At that time he was willing'to take what he put in it.
“ Q. How much did he put in it ?
“A. He said $75,000. He was willing at that time— between Christmas and New Year’s — to take $75,000. At that time the talk was that I was to go East and find a purchaser, or organize a company so that he would get
$75,000 at least. That was what I was going East for.
* * *
“ Q. Then, as I understand, you, by this paper, were to form a company to put this mining property upon the market, upon terms acceptable to Demme ?
“A. Yes, sir.
“ Q. And, if you did that, you were to have your commission ?
“A. It was to form a land-improvement company, to place the property.
“ Q. To form a land-improvement company; it was not to sell the mine ?
‘ ‘A. He did not want to sell the mine at first, but I told him afterwards a land-improvement company could not be floated.
“Q. Then the agreement you made with Mr. Demme was not to sell this property, but to form a land-improvement company ?
“A. To take this property and develop it as a mine.
“ Q. To take this property and develop it, and form a land-improvement company ?
“A. Yes, sir.
“Q. This land-improvement company was to take this mine and develop it ?
“A. Yes, sir; that is it.
“Q. Let me see if we understand the matter. You were to go down to Boston, find people there that would organize a land-improvement company, and that land-improvement company was to take this land and develop it. Is that it ?
“A. That is it.
“ Q. It was not, then, to form a mining company ?
“A. No, sir.
“Q. And it was not a company to sell the mine ?
“A. Not at that time.
t(Q. So the arrangement you made with him here had nothing particularly to do with this mine ?
“A. It had; it amounted to that.
“Q. And he wanted 51 per cent, of the stock of the land-improvement company ?
“A. He did.
“ Q. You told him he could not get it ? '
“A. I told him I did not think it could be done.
‘ ‘ Q. Did you ever form any land-improvement company?
“A. I did not.
“ Q. There has never been any formed ?
“ A. Not a land-improvement company.
‘ ‘ Q. He never got any stock from any such company that you know of ?
“A. I don’t know.
“ Q- You don’t know of any such thing ?
“A. I don’t.
“ Q. Was he to get his $75,000 out of that deal ?
“A. He had hoped to.
“ Q. Was that what you went down therefor, to get out of that deal $75,000 ?
“A. Yes, sir.
“ Q. Then that was one of the stipulations added to the arrangement ?
“A. No, sir.
“ Q. Not in writing, but understood ?
“A. It was. * * *
“ Q. How were you to get your commission out of the sale?
“A. When I found some one—
“ Q. How were you to get it, — out of the sale ? Were you to get it out of the sale of the property ?
“ A. Yes, sir.
“ Q. How ? In money or in stock ?
“A. It was not stated.
“ Q. You know, don’t you, from the talk you had ?
“A. I expected to get it in cash.
“ Q. Then, if I understand you, you were to go down to New York and sell this property so that he could get $75,000 for his property. Out of that he was to pay you $50,000 for your commission ?
“A. To find people who would put—
“Q. Is that so?
“A. Not exactly.
“Q. If you didn’t sell the property, or if you didn’t organize a company that would do these things to the satisfaction of Demme, — and he explained what would be satisfactory, — you did not expect to get a commission, did you ?
“A. Certainly.
“ Q. You expected to get it anyway ?
“ A. Certainly.
“ Q. Then all you had to do was to go down to Boston, speak to the people, and tell them that you had a mine to self, and you would get a commission ?
“A. Provided they took it up. * * *
“ Q. Is not that the fact, — that you went down there to raise money ?
“A. Yes, sir; if I said so. Mr. Demme was hard up at the time I left, and he sent me down there to sell this property, and raise him some money, and he was willing to take what he had put into the property ($75,000) if he could' get the money for it, provided he got stock in addition to that seventy-five.”
Plaintiff visited Boston, and, later, New York, and had negotiations with various parties, but with none of them did he have any degree of success, except with a Mr. Frederick G. Corning, an engineer and mining expert of New York City. He testifies that Mr. Corning would have nothing to do with the property in its then condition, or until an examination had been made by an Eastern expert, or by an expert named Faj?ish, living in Colorado. But he further testifies that Mr. Corning agreed that in case the property was found, upon examination, to be as represented, he would assist in organizing a company to take the property on terms as favorable as those proposed by defendant. The visit resulted, however, in no other arrangement than the employment of Mr. Corning to visit the mine, and make a thorough examination and report of the same, for which he (Corning) was to be paid $1,500 and expenses by defendant. Plaintiff thereupon came home. Corning visited the property, and made his report. Further examinations and tests were made, and, finally, in the spring of 1896, a corporation was organized, with a nominal capital stock of $1,000,000, of which, however, but $62,000 was paid in by subscribers other than defendant, and this was devoted to clearing up the title to the property and putting in a stamp-mill; and, in addition to this, the defendant was called upon to put in further sums of money in developing the mine.
The plaintiff’s testimony as to the performance of the contract is that already quoted, in substance, and the further statement of a declaration said to have been made by the defendant to him in June, 1896, as follows:
“He told me that a company had been organized; Corning as a director or a stockholder of a 11,000,000 company. He was to receive one-half of the stock, and a certain portion over half was to be put in the name of a man named Hurley, so that it would give Mr. Demme the control. The balance of the stock was to be put on the market. The company was to be 200,000 shares, of $5 each; Mr. Demme getting 100,000 shares. 50,000 of the remaining shares was to be taken at $1 a share, with an •option to these people taking the original 50,000, — an option.given to take the other 50,000 at $1.50 a share.”
The defendant contends that a verdict should have been directed in his favor, as the evidence fails to show that the plaintiff in any way performed his contract. In this connection it should be stated that both defendant and Corning testified that the organization of this corporation was not brought about through Corning, but that the defendant, on visiting New York, found Mr. Corning unwilling to purchase the property, or to recommend it to his particular clients for purchase, and that the defendant himself, through the intervention of another broker and by his assistance, effected the organization. The fact appears that Corning was a subscriber for nearly one-half the stock; but the testimony of both Corning and defendant shows that he became such subscriber for defendant and Foley, his co-owner of the mine, with the exception of a small block, which he was induced to take by Demme, and to become the consulting engineer of the corporation.
There is, certainly, no direct testimony that Corning brought about the organization of this corporation or became the purchaser of the property. It is only by inference from the facts stated that any such conclusion could be drawn by the jury. With some hesitation we have reached the conclusion that this was a question for the jury. But, as will be seen, the case is an exceedingly close one on its facts, and it remains to inquire whether any error was committed either in the instructions or in the admission of testimony.
The court, in stating the plaintiff’s claim to the jury,, charged as follows:
“The plaintiff claims that he entered into a contract with defendant, and that the contract was that he should place this mining property upon the market; and in explanation of what that term means, and what was the substance of their contract, he states that he was to form a land company, according to the original terms of the contract, for the purpose of selling this land to this company, and purchasing other lands for improvement; that that idea subsequently was abandoned, and that he was to place, this property upon the market in such a manner as should be satisfactory to the defendant, Mr. Demme; that he was to find a purchaser, or try to find somebody that would organize a stock company, and take it off the hands of Mr. Demme in such a manner as would be satisfactory to him. He claims also that this contract was in writing; that it was signed by Mr. Demme, and handed to him; and that he, with other instructions that he had received at the time, — papers containing a description of this mine, and other matters which have been fully presented to you, — entered upon what he understood or claims to be his duty, as the agent or broker of the defendant, to carry out the terms of this contract. He claims that he had possession of this written contract for some time, and that he went to Boston and New York, and negotiated with various people there, for the purpose of disposing of this property on terms satisfactory to Mr. Demme; that at some subsequent time the defendant, Mr. Demme, requested of him the loan of these papers — all of these papers — for the purpose of copying them; and that at that %e he turned over to Mr. Demme the contract he claims was made and signed by Mr. Demme, for the purpose of having it copied, and that he never received it back, claiming, therefore, that the contract is still in the possession of the defendant, Mr. Demme. That being the case, according to his story, secondary evidence ■of this contract was permitted. In other words, he was allowed to testify as to what this contract contained. He ■claims that, in accordance with the terms of this contract, he went to Boston, negotiated with a number of people there, and at Boston he met a man named Corning, who was an expert mining engineer, operating for some Boston ■concern, — among the rest, some firm of which Mr. Head was a member; that he received propositions ultimately, from New York, from this Mr. Corning, and that it was subsequently agreed between the parties that Mr. Corning was to be sent to the mine and make an exploration of the mine as a mining expert, and that' it had been agreed by Mr. Corning that he would take hold of the matter, and bring about some arrangement which he agreed to bring .about, and that that arrangement was finally, in substance or in fact, consummated; that Mr. Corning was to do this work for the sum of $1,500 and his expenses; that he subsequently made an exploration of this mine, and reported it; and that, through the intervention of Mr. Corning, a ■company was subsequently formed, which was organized first in the State of New Jersey, and subsequently in the Province of Ontario, and that the terms of the agreement between him and Demme, through the intervention of Mr. Corning, were subsequently carried out, and that, being carried out, as he claims, under the terms of his contract, he would he entitled to recover from this defendant the amount agreed upon in that contract, to wit, the sum of $50,000. This is the plaintiff’s case, and this is the position that he has taken in this case. If you should find that there was a contract entered into between these parties, and that that contract has been carried out by the plaintiff according to .its terms, and that, in consideration •of his carrying out that contract, he was to be paid the sum of $50,000, then he would be entitled to recover that ■amount at your hands.”
The court further charged as follows:
“It is also claimed upon the part of the plaintiff that Mr. Corning was really the man who did this whole work, and that it was through Mr. Coming’s instrumentality that all this subsequent change was brought about; and, for the purpose of establishing in your minds that idea, reference has been made to the fact that Mr. Corning acted as a large stockholder in this matter, and became an interested party in the corporation which was subsequently formed, and which improved and operated this mining-property. This is pointed out to you as evidence that it was through the result of the actions of the plaintiff that this matter was brought about.”
As the case was put to the jury, the idght to recover was made to depend upon the question of whether a corporation was formed by the assistance of Corning; and the fair inference from such charge is that if such a corporation was formed, which was satisfactory to defendant, the plaintiff’s contract was performed. This leaves out of view the question of whether the plaintiff’s undertaking was to make a sale out of which the defendant would realize $75,000, or organize a corporation from which he would realize that sum. If such was the contract, and defendant, on his visit to Corning, found it impossible to induce Corning to proceed on these terms, or to effect the organization of a corporation on these terms, the defendant had the right to abandon his scheme, and to-proceed to organize a corporation on different lines. Satterthwaite v. Vreeland, 3 Hun, 152; Sibbald v. Iron, Co., 83 N. Y. 378 (38 Am. Rep. 441).
Whether the contract, as testified to by plaintiff, included such provisions, was, at least, a question for the jury. The interpretation and construction of oral testimony is, in general, for the jury, particularly where the language used is in any way uncertain or ambiguous. It is true the plaintiff says that the commission was to depend upon his effecting a sale or putting the property on the market on terms satisfactory to defendant; but a jury would be entirely justified in finding that an express understanding as to what these “terms satisfactory to defendant” were had been agreed upon, and that the parties contemplated in any event, and as a first prerequisite, that $75,000 be realized for the defendant before the plaintiff would be entitled to a commission. If this should be so found by the jury, the evidence of performance is lacking; for, admittedly, no such organization was-had. The fact that plaintiff had been in negotiation with Corning did not entitle him to complain, unless he succeeded in inducing Corning to organize a company or make a purchase on terms such as were agreed upon between himself and defendant, or unless Demme, taking up the negotiations where West left off, succeeded in doing so, or faithlessly abandoned the negotiations. See Sibbald v. Iron Co., supra.
There were certain instructions laying down the rule of law as between broker and employer which we think the court should not have overlooked. There was no instruction defining the duty of the broker or his rights. Defendant’s fifth instruction should have been given, or its equivalent, as reduced to a form that would apply to the facts of this case. That instruction was as follows:
“ The duty of the broker is to bring the buyer and the seller together, and effect a purchase of the property according to the terms agreed upon by the seller and the broker. The broker is not entitled to a commission for unsuccessful efforts to effect a sale.”
The action was upon the common counts in assumpsit. The bill of particulars was for a commission for services and expenses in promoting and negotiating the sale of the property mentioned, which, by a more specific bill, was made to include negotiations which resulted in the disposal of the property, the negotiations being referred to as having been with Frederick G. Corning. The plaintiff’s testimony has been quoted quite at length, and it shows that his only claim for compensation was for a commission under a specific contract, for a stated amount. Yet a large amount of correspondence between the parties, not relating to negotiations with Corning, but with others, was received in evidence upon the ground, as stated hy the court, as follows:
“I admitted testimony as to the actions of Mr. West in negotiating the sale of this property for the purpose of permitting him to show, if he could, that he had entered into an arrangement by which this property was to be sold, and that he had done labor in that direction. The •ground upon which that was admitted was that the declaration in this case was upon the common counts. The bill of particulars does not, as I look at it, set up a specific contract, but that the recovery, if any can be had in this case, could be had under the common counts for any service that he might have rendered to the defendant in this suit, whether it was agreed to be $50,000, or whether his services were at any less sum.”
We think that the letters were not admissible upon this ground; nor, except as far as they related to the transactions leading up to the negotiations with Corning, were they admissible as part of the res gestee. It is immaterial what plaintiff may have done with other parties. The question in this case, as he stated it and framed his issue, was whether he had made an ai’rangement with Corning, or had opened up negotiations which were left open for defendant to take up and continue, which resulted in a sale or organization of this corporation upon the terms which the parties had agreed upon; and involved in this is the question of what terms it was agreed that such contract should have as a prerequisite to the plaintiff’s entitling himself to commissions.
The judgment will be reversed, and a new trial ordered.
The other Justices concurred. | [
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Hooker, J.
The plaintiff, a far’mer, bought peach and apple trees from the defendant, and set them upon his farm. This action is brought to recover damages arising from the delivery of trees of different variety and inferior quality to those contracted for. From a verdict of $9?5 in favor of the plaintiff, the defendant has appealed.
Among the trees contracted for were 25 Fox Seedlings and 50 Canada Reds. The testimony showed that the former were represented to “bear a large white, bright peach, good sellers,” but that, although Fox Seedlings were delivered, they did not bear such, but bore an inferior and worthless peach. As to the Canada Reds, it showed that trees labeled “Smith Cider” were substituted under a ’clause in the contract permitting other trees of equally good variety to be substituted where trees ordered could not be furnished, and that the fruit borne by these was inferior and worthless. It is claimed by appellant’s counsel that the declaration does not contain allegations justifying this proof; but we find in the declaration the allegations that it was represented that the Fox Seedlings would “bear a large white, bright peach, good sellers,’’ and that “in place of the 25 Fox Seedling trees, standard, defendant delivered Fox Seedling trees of a poor variety,” and “that all of said trees were inferior and worthless varieties, and absolutely of no Value,” etc. It was proper to prove these allegations, and the evidence fairly tended to do so. The proof of a substitution of an inferior quality for Canada Reds, and their acceptance under misrepresentation, showed a breach of the promise to furnish “ Canada Reds or an equally good variety.”
There is no occasion to discuss the proof tending to show care in the setting and attending said trees. There is sufficient proof upon the subject to make it a question for the jury. We cannot take judicial notice that sowing oats or planting corn in the same field was not good care, nor can we decide how far, if at all, proper care would make poor varieties bear good fruit.
Counsel make a wholesale assignment of error in the “ admission of the testimony of each and every witness as to the value of the land, inasmuch as they did not show that they were qualified to express an opinion of the value of lands.” We think the testimony was admissible, under the authorities cited in plaintiff’s brief, although witnesses testified that they knew of no sale of fruit lands. Stone v. Covell, 29 Mich. 359; Carter v. Carter, 36 Mich. 207; Enright v. Hartsig, 46 Mich. 469 (9 N. W. 496); City of Detroit v. Robinson, 93 Mich. 428 (53 N. W. 564); Heilman v. Pruyn, 122 Mich. 301 (81 N. W. 97, 80 Am. St. Rep. 570); Angell v. Pruyn, 126 Mich. 16 (85 N. W. 258).
In the case of Heilman v. Pruyn, supra, the court instructed the jury that “the measure of damages was the value that would have been added to the premises if the trees had been of the varieties ordered.” This was sustained as a correct rule by this court, and it is the rule laid down by the learned circuit judge in the case now before us.
It is said that there was no evidence to enable the jury to find the value of the land. There was testimony of some witnesses as to their opinion of the value of the land, and how much it would be enhanced by the addition of such trees. Some estimated by the tree; others, by the acre. There was also testimony as to what such trees would ordinarily produce. All could be made use of by the jury to perform their function of determining the added value. It is said that the witnesses were asked to state the value of the trees; but the record shows that they were asked and gave the added value at so much per tree, and we do not find the testimony complained of.
Testimony was offered to show that, after these trees came into bearing, a hard winter killed many of them, and it is claimed that the same fate would have befallen them had they been good varieties, and that the fact was important by way of mitigation of damages. No exception appears to have been taken to the ruling. The same question arises upon the charge. The charge was as favorable to the appellant as it should have been under the testimony. See Heilman v. Pruyn, supra; Angell v. Pruyn, supra.
Some minor points are raised relating to the cross-examination of the defendant, which we think do not call for elaboration.
We find no error, and the judgment is affirmed.
The other Justices concurred.
The error assigned was on a remark of the court; the testimony was admitted. | [
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Grant, J.
(after stating the facts). It is matter of common knowledge that mining operations require large capital, and are seldom carried on by individuals, but almost universally by corporations. Options or leases for long terms of years are usually obtained from the fee owners by individuals, corporations formed, and the leases then assigned to the corporations. The business in this case was done in the usual way. While this fact would not release the defendant from the obligations of his lease,' it is, however, a fact important to consider in connection with the other facts in the case, and the manner in which the parties dealt with each other after the execution of the lease and until suit was brought.
The several written agreements with the Michigan Gold Company, above mentioned, changing the terms of the original lease, are consistent only with the recognition of the company as plaintiff’s tenant, and a release of the defendant from all obligation under it. Some of these agreements were executed when defendant was an officer of the company, and others when he was not an officer, but only a stockholder. Plaintiff could not have two tenants, to either of which she might look for rent at her option. Had the dealings with the company involved only the payment of rent, undoubtedly the defendant would not be discharged from liability. Payment of rent alone does not operate as a surrender, or a recognition of an assignee as the landlord’s tenant. The rule, however, is well settled that, where the landlord’s dealings with an assignee of the lease, by written agreements and otherwise, are consistent only with the theory that the parties are dealing as landlord and tenant, the. original lessee is released, and the assignee is accepted by the landlord as his tenant.
While it is probably true that defendant had knowledge of all these agreements, and some of them were made at his request as an officer of the company, this fact does not relieve the plaintiff from the legal effect of her conduct and writings. She was dealing with an entity entirely distinct from the defendant, Mather. If she had desired to hold Mr. Mather when these agreements were made changing the terms of the sublease, she should have said, done, or written something to indicate her intention to hold the defendant, or to obtain from him consent to a waiver of the changes. Plaintiff undoubtedly knew at the beginning that this lease was to be assigned to the company, and that it was to. carry on the business, develop and work the mine. Defendant was in possession of the property, if at all, only for a few days; and at no time did she make any claim upon defendant for the payment of royalty, or attempt to negotiate with him individually in regard to the various changes which were made. The court correctly held that the lease, as to defendant, was surrendered by operation of law. The case comes within the principle of the following cases: Logan v. Anderson, 2 Doug. 101; Donkersley v. Levy, 38 Mich. 54; Walsh v. Martin, 69 Mich. 29 (37 N. W. 40); Coe v. Hobby, 72 N. Y. 141 (28 Am. Rep. 120); Talbot v. Whipple, 14 Allen, 177; Levering v. Langley, 8 Minn. 107; Fifty Associates v. Grace, 125 Mass. 161 (28 Am. Rep. 218).
Judgment is affirmed.
The other Justices concurred. | [
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Hooker, J.
A former review of this cause is reported in 124 Mich. 344 (82 N. W. 1066), where it was held, on the evidence then before the court, that the judge erred in holding that there was no evidence of the value of the plaintiff’s services, upon the theory that the cause was, in that instance, tried upon the count for work and labor, and not upon the special count, or in reliance upon a right to recover as upon a contract fully performed. As we understand the record, the case has now been tried upon the theory that the special contract was performed. The plaintiff might, therefore, rely upon the common counts, which would be' a good and sufficient declaration upon that theory, or upon the theory that he had not performed the contract, but was entitled to pay for what he had done. Upon the first theory it would be necessary for plaintiff to prove the contract and its performance. He would fail upon that theory if defendant should show that he had not performed the contract according to its terms, and would then be left to an action for services rendered. Upon the latter theory the plaintiff must show the rendition of services, and make some proof of their value. As we held on the former hearing, the writing would constitute some evidence of value. It would not be conclusive, however, and it would be proper to show the true value of the services actually rendered; and in attempting this it would be defendant’s right to introduce evidence showing the true character of the services, and that they did not come np to the standard required by the contract, upon which the contract price was fixed. It would also have been competent to show that the services were actually worth less than 'the contract price. The defendant’s counsel sought to show, by a cross-examination of the plaintiff and by the testimony of others, that the plaintiff did not give the defendant the time and attention necessary to the performance of the contract according to its terms. They offered to show that he did not provide the material on the best terms possible, by showing that he secretly received commissions from the houses from which he purchased material for the defendant, and that he did not turn out good work. The court excluded all such testimony, and directed a verdict for the plaintiff.
If we correctly understand plaintiff’s brief, the case was rested upon the theory that plaintiff was discharged under a right reserved to the defendant to terminate the contract at any time, and that, therefore, the plaintiff might treat the contract as performed. This was correct if the contract actually was performed, but it did not deprive the defendant of the right to show nonperformance. This contract was terminated because the defendant found that plaintiff was not rendering the service contracted for. The contract was, not that he should give his entire time to the defendant, but that he should do certain work for a given period. The contract contained other stipulations also. It is claimed that at the same time he was performing similar services for, and drawing a similar salary from, another concern. The defendant sought to show that, while he was about its place of business more or less, he did not perform the services agreed upon; that he neglected the business, and actually did not render the services contracted for. We see no reason why it should not have been allowed to do this. In the case of Bolt v. Friederick, 56 Mich. 20 (22 N. W. 187), a man hired out to work by the month. He was under obligation to give his time to his employer. He did so for nearly the whole period, when the service was ended by mutual consent, and the amount his due agreed upon. There was a substantial performance and an acceptance. The defendant afterwards attempted to show, not that he did not substantially perform his contract to give his services, but that he disobeyed his orders. Here defendant attempted to contradict plaintiff’s claim that he performed the services. It cannot be said that the defendant accepted plaintiff’s services as a compliance with the contract. It expressly repudiated them, and, instead of a termination of the contract by mutual consent, it was a termination based upon a claim of nonperformance.
There is no reason for distinguishing the case from any other case of an unperformed contract. Plaintiff had the burden of showing that he had performed the contract. When he failed in that, if he could not show it, he could recover merely for the value of his labor. Defendant had a right to show nonperformance hy way of defense. This seems to have been the view of the writer of the opinion when the case was before us. 124 Mich. 344 (82 N. W. 1066). The case had been tried upon a count for work and labor. No notice of recoupment was filed. It was said that his retention in service was some evidence of right to wages; that he was entitled, not to the contract price,' but the value of his services, of which the contract price constituted some evidence.
The case of Allen v. McKibbin, 5 Mich. 454, was a similar case in some respects. Mr. Justice Campbell there states the rule as follows:
“Where a party fails to comply substantially with an agreement, unless it is apportionable, the rule is well settled that he cannot sue upon the agreement, or recover upon it at allj and under the strict common-law rule he was remediless. But the doctrine has now grown up, based .upon equitable principles, that where anything has been done from which the other party has received substantial benefit, and which he has appropriated, a recovery may be had upon a quantum meruit, based on that benefit. And the basis of this recovery is not the original contract, but a new implied agreement, deducible from the delivery and acceptance of some valuable service or thing. The idea is well expressed in Read v. Rann, 10 Barn. & C. 438, by Parke, J., who says:
“ ‘In some cases a special contract, not executed, may give rise to a claim in the nature of a quantum, meruit, — e. g., where aspecial contract has been made for goods, and goods sent, not according to the contract, are retained by the party, there a claim for the value on a quantum valebant may be supported; but then, from the circumstances, a new contract may be implied.’
“Taking this as the basis of a recovery, there certainly could be no good reason for allowing a party who is in default to recover in any case more than his work or goods may be worth, for that would allow him to speculate out of his own fraud or default; and he should not be allowed more than the same could be obtained for from any one else. To allow him the contract price for what is worth much less would not, in any sense, be allowing a quantum meruit. Parties may, and do frequently, for their own reasons, agree to give excessive prices to have an entire contract literally performed, when a partial performance would never have been contracted for at all; and it does not lie in the mouth of a defaulter to say that the contract is evidence of the true value. It is only by the mercy of the law that he can have any standing in court. We think that the court erred in rejecting evidence that the work was worth less than the contract price.”
The same doctrine is recognized in Wildey v. School District, 25 Mich. 420, and reporter’s note.
The cases of Bolt v. Friederick, supra, and Fuller v. Rice, 52 Mich. 436 (18 N. W. 204), differ from this case in this important respect: That there was a substantial performance, if not an acceptance of the services as sufficient. Here there is a claim of nonperformance, and plaintiff was admittedly discharged .for that reason. It was at the least a question for the jury whether there was a substantial performance which would support a recovery upon the contract, and defendant had a right to show that there was not. If the jury should find there was not, he must fail on the theory of a performed contract, and would be driven to the count for work and labor and the value of his services, as defendant contends. The court seems to have held that the defendant might show that the plaintiff did not render any services, but that, in the absence of a notice of recoupment, it was not proper to show any other breach of the contract by the plaintiff. This was clearly erroneous, for it was essential to a recovery upon the contract that something more than the mere presence of plaintiff be proved. It was necessary to show that he carried out substantially all of his undertakings. As stated, failing in that, he could not recover upon that theory. Again, upon the other theory, the testimony was proper as bearing on the nature and value of the services.
The judgment is reversed, and a new trial ordered.
Montgomery, C. J:, Moore and Long, JJ., concurred. Grant, J., took no partin the decision. | [
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Long, J.
In August, 1898, application was made for the construction of drain No. 137, the proceedings in laying out which are the subject of controversy here. The cause was removed to the circuit court by certiorari, and comes into this court for review. The lands traversed by the drain are situate in the counties of Saginaw and Gratiot. In September, 1899, on the date set for the hearing for the appointment of special commissioners, Frank Lawrence and William Q. Atwood, owners of certain lands traversed by the drain, appeared before the probate court and filed certain objections. Special commissioners were appointed, but one of their number failed to appear. Thereupon a second set was appointed and made its findings, and on November 25, 1899, the final order of determination was made and filed. On December 11, 1899, William Q. Atwood filed a bill of complaint to set aside the appointment of the special, commissioners. A decree was entered in that case setting aside the order of appointment, and directing the drain commissioners to make a new application for special commissioners. This was done, and a new set of special commissioners was appointed, and on April 10, 1900, the final order of determination was made by the drain commissioners. It appears that on March 30, 1900, the plaintiff appeared in probate court and filed objections to the appointment of the special commissioners, alleging that he had never been served with citation to appear. Certain other objections were also made by him to the proceedings. He claimed in his application that he was the owner of the W. ¶ of the S. W. \ of section 28, Lakefield township, which was traversed by said proposed drain; that he had purchased these lands in May, 1899.
It appears that, when the proceedings were commenced to lay out the drain, William Q. Atwood was the owner of the land claimed to be owned by Hackett in his petition to have the proceedings set aside. There is no question but that Atwood had notice of all the proceedings prior to that time. Minutes of survey were made in January, 1899, and the first order of determination was made in June, 1899. The bill was filed by Atwood in December, 1899, and new commissioners were appointed. Hackett, the petitioner here, claims to hold the land under a contract from Atwood dated in May, 1899. On the hearing, however, he admitted that the contract was not made until September 25th or 26th, and dated back to May 26th. It also appears that Hackett resided in Mecosta county; that he never entered into possession of the lands, and did not record his contract until February 1, 1900. Hackett’s claim to the land, therefore, did not arise until the meeting of the second set of special commissioners. The circumstances shown are such that we are led to believe that this pretended sale of the land by Atwood to Hackett was for no other purpose than to permit Hackett to raise certain objections in the proceedings which Atwood had lost the right to make, and that the contract was not a bona fide one. -
It is the claim of plaintiff that the drain proceedings are void for the reason that the drain would divert the flow of water from where it had been accustomed.to run for 20 years. It is a sufficient answer to this that the drain commissioners deny this allegation in their return, which must be taken as true.
It is claimed that the application does not show the length of the drain on Hackett’s land. It is conceded that, as to the parcels described in the application, the statute is followed, but it is claimed that, because the commis sioners did not separate Hackett’s land from the remainder of the Atwood land, the proceedings are void. The drain was laid out in June, 1899, and at that time Atwood was the owner of the land, and in possession of it. The minutes of the survey showed all that the statute required at the time. Hackett is now in no position to raise the question, having acquired title subsequent to that time, if he has any title at all.
It is claimed that the proceedings are void because the minutes of the survey accompanying the application to the probate court were not signed by the surveyor. The statute does not require the commissioner to file the original minutes of the survey in the probate court, but only a certified copy of the original application, giving the route, survey, and specifications as set forth in the first order of determination; and while the statute providing for the first order of determination requires a survey to be made, and that such order shall show the width, length, route, etc., it does not require the original survey to be attached thereto. The original survey remains in the hands of the drain commissioner.
We think, however, that the petitioner has no standing in this court. He was present at the meeting of the second set of commissioners, and knew that the drain was being constructed through these lands, and there is no showing that he ever served any notice on the drain com-missioner that he owned these lands. The question was not raised in the probate court, and that court made no ruling thereon.
' From a review of the whole proceedings, we are satisfied that the court below was not in error in affirming the proceedings in the probate court. The order below must be affirmed, with costs.
The other Justices concurred. | [
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The Court
held that the bond was sufficient, as there could be no mistake from the whole instrument as to who were the parties that were obligated to perform the conditions and cause the papers, etc., to be filed in the superior court; and that after the papers were filed and the conditions of the bond fully performed the bond became functus officio, and any such irregularities- in it would not thereafter warrant a dismissal of the cause.
Writ granted. | [
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Campbell, J.
The present action is brought to' determine the boundaries of certain water lots in Bay City, extending into the Saginaw River. They both belong to a series of lots extending from one of the city streets towards the river in such a direction that their side lines strike the shore at right angles with the middle thread of the river, but at a different angle with the shore at that point. The shore in front of the city curves inward somewhat. The corporation of Bay City, some years since, established a dock line, which, at the point in question, is nearly or quite parallel with the shore, bat which approaches the shore so as to be at no considerable distance from it at a point below, where a bridge crosses the stream.
The question presented for decision is, whether the side lines of the lots in question, as they extend into the river, should run at right angles with the thread of the stream, or at right angles with the shore at the point of departure. The difference is such that within the line permitted for docking, the divergence is about eighty-seven feet.
This question was decided in Clark v. Campau, 19 Mich. R., 328, where it was held the lines were to be governed by the course of the stream, and the land bounded by lines drawn at right angles with the central thread. Any other rule would subject riparian owners to have their entire access to the stream and all their docking privileges cut off, whenever the local curve of the shore should be such that a line drawn at right angles with their neighbor’s shore line would cross in front of them — a result which would be inevitable where the shore is not altogether straight and parallel with the middle of the stream, and which would also cause great confusion with every subdivision of ownership. It happened in that case that the shore line followed closely the course of the river, and lines drawn from the shore were practically identical with those drawn from the central line; but the decision was based upon the principle that the course of the river itself governed, and not the shore.
There is no distinction in this regard between streams which are subject to easements of passage, and those which are not. Even the beds of navigable tide waters are subject to the disposal of state laws, saving always any public rights that may exist in them; and it is the settled law of this state that any use of lands .under rivers, which is compatible with the full enjoyment of the public easement, belongs with the upland to which it was originally appurtenant, unless sold or granted separately so as to sever it. Even in streams not susceptible of any public use, it can seldom happen that any riparian proprietor can occupy by erections any large portion of its bed, except where it is dammed. ' He cannot so use it as to destroy the benefits -of the water to his neighbors. In each case the right of every owner is subject to some -limitations; and he is compelled to use his own property so as not to injure the rights of others, whether public or individual.
The right of docking out, so as to secure the full benefit of the water front, is limited by the rule that it must not seriously impair the right of navigation. In order to prevent any dispute as to what wharfing will be such an encroachment, it has been provided in some of our city charters that the city may fix a dock line, beyond which such erections shall not extend. In doing this the authorities are supposed to consult the public convenience, and to draw the line in such manner as to subserve this. It is usual, and prac^ tieally almost necessary, to make the frontage thus defined follow straight lines of considerable length, avoiding angles as much as possible, and paying no attention to the sinuosities of the shore. Such lines will not necessarily or usually be exactly parallel either with the shore or with the thread of the stream. They can have no bearing -whatever upon the determination of boundaries, and are meant to determine at what line the depth of water will be found sufficient to meet all the necessities of navigation. So far as they are .valid, it is as limits reasonably and impartially fixed, beyond which all are forbidden to wharf out, and within which every person may lawfully improve his own property. But with the ownership of property the city authorities have no concern.
In all cases of rivers and other running streams which serve as exterior boundaries, the common law, like the law of nations, recognizes the boundary as the middle of the stream, where there is no other intention manifested. Every proprietor whose rights are not terminated at the shore (as they were generally in tide waters) has a right extending to that central thread, and no one on either side reaches beyond it. Whatever his shore lines may be, his exterior line is in the middle of the stream. Accordingly, no other proprietor can lawfully interpose so as to cut him off from that line. But any division or boundary that does not take the central thread as a point of departure, will be certain in many cases to exclude the owner from such an extent, and may deprive him of any water rights whatever. Where there are large indentations of shallow water on one side of a stream, with no corresponding bends on the other, it would often happen that the owner of a frontage within such a locality would be entirely shut in within its outer points. And a person holding a large tract, and subdividing it, could hardly fail by any subdivision, if the shore is not perfectly straight and the river of uniform width (two conditions never found in natural streams),- to cause serious interferences among the adjacent fronts. If the bounds are all to be governed by lines drawn at right angles from the thread to the shore termini, as near an approach will be made to an unvarying measurement as is possible under any ordinary circumstances. It is possible that' any rule which is adopted will in some cases be found difficult of application, and clashing with some other principle with which it may become necessary to harmonize it as far as may be. But no other rule has ever been; suggested which will give every proprietor his title to the thread of the stream; and, as held in Clark v. Campau, we regard this rule as settled and reasonable.
Very much of the confusion which is supposed to exist -on this subject has arisen from confounding things quite dissimilar. The controversies arising concerning riparian ■rights upon waters having no middle thread, properly so called, can have no bearing on rivers. Whether the proprietary right is confined by high or low water mark, or .extends further, it is manifest that upon the open sea or on a bay or other body of water having no defined stream running in a confined and continuous bed, the shore may be the only tangible element of computation or, measurement, and it has very properly in such cases been regarded ■as the most important. But even there some regard has usually been paid to the common sense rules which, would prevent inequalities from being created by any blind adhesion to the accidental conformation of the shore line at the extremity of any riparian property; and regard is paid to extent, as well as to other considerations. — See Crook v. Corporation of Seaford, L. R., 6 Ch. Ap., 551. It is unnecessary to refer to illustrations of this, as they would be of no service in determining the case before us, which is disposed of by our previous decisions.
The defendant’s possession was held in conformity with the principles which we regard as the proper ones to determine the rights of the parties. As the case made finds all the facts, it follows that the judgment below must be reversed, and judgment rendered in favor of defendants.
Christiancy, Ch. J., and Graves, J., concurred.
Cooley, J., did not sit in this case. | [
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Cooley, J.
This is a proceeding by certiorari to review the decision of a circuit court commissioner on an application for the dissolution of an attachment.
The ground of the attachment was that the judgment debtors, of whom the plaintiff in certiorari was one, were about to dispose of their property with intent to defraud their creditors. The chief error relied upon in the affidavit for certiorari was that there was no evidence before the commissioner showing or tending to show that they or either of them had such an intent.
The commissioner’s return certainly shows no such evidence. It is objected, however, that the retufn does not expressly state that all the evidence is returned, and it is therefore presumable that there was evidence to sustain the commissioner’s conclusions. But where the error assigned in the affidavit is the entire absence of evidence on a specified point, it is the duty of the commissioner to return fully; and we think from the commissioner’s return, in which be states that he returns “a statement of all plaints levied or affirmed before me, together with all things touching the same” in the proceeding mentioned, that his purpose has been to make the return a full response to the affidavit. If in fact other evidence was given, defendants in the certiorari should have applied for a further return.
The order of the commissioner must be reversed, and the attachment dissolved. And plaintiff in error must recover costs before the commissioner, and in this court.
Graves and Campbell, JJ., concurred.
Christiancy Ch. J., did not sit in this case. | [
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Per Curiam.
The defendant was convicted of manufacturing marijuana. The Court of Appeals reversed and remanded for an evidentiary hearing regarding the defendant’s motion to quash evidence obtained in the search of his mother’s home. We reverse in part the judgment of the Court of Appeals and reinstate the defendant’s conviction.
i
On May 22, 1994, State Police Trooper Terry Klotz received a telephone call, informing him that a woman named Molly Westrate had approximately two hundred marijuana plants growing in her basement. The caller also stated that Ms. Westrate’s son, James R. Kaufman, had buried in the backyard a stolen gun that might have been used in an armed robbery.
Trooper Klotz discussed the call with Trooper Michael Herendeen. The two decided that they did not have enough information to satisfy the probable-cause requirement for obtaining a search warrant.
Troopers Klotz and Herendeen nevertheless decided to pay a visit to Ms. Westrate’s home. In uniform and driving separate patrol cars, they arrived about an hour after Trooper Klotz had received the telephone call. Testifying on direct examination at the preliminary examination, he explained:
Q. Okay. What did you do when you arrived?
A. Approached the door, I knocked on the door, didn’t get any response. Waited, I don’t know, 20 seconds or so. I rang the doorbell and then — and then I heard some movement and some voices in the back of the house, but no one was coming to the door at that time. I could hear ’em like in the kitchen area possibly. I wasn’t sure. Then I knocked again at which time a female subject came to the door which was Molly Westrate who I’m familiar with.
Q. Okay.
A. I advised her, I said this — I told her what my name was and I told her — Mike Herendeen, we’re both from the state police in Hastings, we were in uniform at the time. I advised her that we were there to get the marijuana out of her basement. '
Q. And what was her response?
A. And she said, “Excuse me?” and I could see the color changing in her face a little bit and she got — and just kind of stared at me and I said — I repeated myself, “We’re here to get the marijuana out of your basement.” At that point she turned around and started to walk away from the door. And I hollered, I said, “Molly,” and she came back to the door again. I said, “The marijuana’s in your basement, isn’t it?” and she said yes it is and we allowed ourselves in— she — Well, she said come on in, she opened the door.
Q. Okay. And what happened once you got in the house?
A. Went into the kitchen area, both myself and Mike Herendeen asked her if anyone else was in the house. She said her husband was there as well as Jim Kaufman. Trooper Herendeen went down into the basement at that time.
Trooper Herendeen testified at the preliminary examination that Ms. Westrate “let us in” and that he soon found himself looking around the basement. He found “nothing really out of the ordinary” until he came to a locked door.
Q. And what did you do?
A. I went to the foot of the stairs and I — I either called her name Molly, or I called Mrs. Westrate. I don’t remember how I addressed her, and she appeared [sic] top of the steps and came down. I told her I would need a key to the — to the locked door and she like — seemed like she patted her — what she was wearing as if feeling for a key and then says I don’t have it, or the key’s upstairs, or something like that, and she turned around and went back up the steps and a few moments later Jim Kaufman came down and he had the key and he unlocked the door to the locked room.
Q. And what did you find?
A. There was a large quantity of marijuana growing in there. There was what we call — we refer to them as grow lights. There was one very large one and then one smaller one. They were on and there were some fans going in the room. It was — what I have experienced in the past as a growing — as the initial growing operation for — for marijuana plants.
The police found 594 plants growing in Styrofoam cups.
The defendant was charged with manufacturing marijuana, under the statutory language in effect at that time. MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c), as amended by 1989 PA 143.
The preliminary examination took place in June 1994. The troopers gave the testimony noted above, and the district court concluded that there was sufficient evidence to bind over the defendant on the charged offense.
At a September 1994 pretrial hearing, the defendant indicated his intention to file a motion to quash the information. Though the file contains no such written motion, the circuit court considered the matter at an October 1994 hearing — defense counsel explained that “it’s going to be done orally. There’s nothing formal filed on it.”
At the hearing, defense counsel discussed the testimony found in the transcript of the preliminary examination, and invited the court to “just kind of skim through that after you hear my remarks . . . .” Though framed as a motion to quash, counsel’s presentation focused on his belief that there had been an illegal search and seizure. Counsel concluded:
So I’d like you to read the complete transcript, which is rather short on this thing and with a view in mind of dismissing this case at this time, your Honor.
The assistant prosecutor likewise based his remarks on the contents of the preliminary examination transcript.
A moment later, defense counsel indicated that he had “no objection if the Court would like to read the police report . . . .” The assistant prosecutor agreed to that suggestion.
After the circuit court read the transcript of the preliminary examination and the police report, it denied the motion to quash. The ruling focused on whether the evidence adduced at the examination was sufficient to warrant a bindover. The court did not address counsel’s claim that the entry and search of the home had been illegal.
A two-day jury trial took place in late November 1994. At the conclusion of the prosecutor’s proofs, defense counsel offered another oral motion:
I’d also like to move for a directed verdict based on the fact that the search was illegal. I realize the Court ruled on this at a motion at a prior time. But based on the proofs that you’ve heard today, I think the case should be dismissed.
The court denied the motion for directed verdict, saying that the prosecution had introduced “strong” evidence of guilt. The court continued:
And with regard to the question of the legality of the search and seizure, the Court did previously decide that and — and even reconsidering it, which I do on a motion such as this, I am satisfied that the Court’s decision was correct and I would reaffirm the decision that the search and seizure was appropriate and did not violate the rights of — of Mr. Kaufman.
The defendant rested without presenting proofs. Following closing argument and instructions, the jury found the defendant guilty of the charged offense.
After denying a motion to remand, the Court of Appeals reversed. The Court ordered that the case be remanded for an evidentiary hearing on the defendant’s motion to suppress the evidence.
The prosecutor has applied to this Court for leave to appeal.
n
A
The Court of Appeals found that the circuit court “erred in deciding defendant’s motion to suppress solely on the basis of the preliminary examination transcript.” The Court of Appeals based this holding on People v Talley, 410 Mich 378; 301 NW2d 809 (1981).
In Talley, this Court faced two related issues:
The first is whether the trial court, relying solely on the preliminary examination transcript, correctly quashed the information against the defendant on the theory that the testimony of the sole witness before the examining magistrate was “inherently incredible” .... The second issue is whether the Court of Appeals, though doubtful of the validity of the trial court’s quashing of the information, correctly affirmed the trial court on the basis of defendant’s Fourth Amendment illegal seizure argument, although the trial court never looked beyond the record of the preliminary examination and the suppression argument had not been the articulated basis of the trial court’s decision to quash. [410 Mich 381-382.]
After holding that the magistrate in Talley did not abuse his discretion in finding probable cause to bind the defendant over on the charged offense, we turned to the issue concerning the seizure of evidence:
Regarding the Court of Appeals affirmance of the trial court due to its own determination of the unconstitutionality of the seizure of the evidence, we hold such determination to have been misdirected since the pretrial hearing on defendant’s motion was not only devoid of any relevant discussion or consideration relating to the existence of probable cause to seize the evidence, but more particularly was made on the basis of the preliminary hearing transcript and not on a full evidentiary hearing. We specifically disapprove of the practice of relying exclusively on preliminary examination transcripts in the conduct of suppression hearings. Accordingly, in lieu of granting leave to appeal, and pursuant to GCR 1963, 853.2(4), we reverse the judgment of the trial court and vacate the judgment of the Court of Appeals and remand the matter to the trial court for the holding of a de novo evidentiary hearing to resolve the issue of whether the arresting officers had probable cause to seize the evidence. [410 Mich 382.]
Later in Talley, we reiterated the point:
We recognize that it has often been the practice of our trial courts to rely exclusively on preliminary examination transcripts in ruling on motions to suppress. This, of course, meant that appellate courts were also limited to the preliminary examination transcripts in passing on search and seizure issues since testimony later taken on the trial, amplifying the circumstances of the search or seizure, cannot be considered. People v Miller, 245 Mich 115, 117; 222 NW 151 (1928). See, e.g., People v Zeigler, 358 Mich 355, 359; 100 NW2d 456 (1960); People v Kaigler, 368 Mich 281, 297-299; 118 NW2d 406 (1962); People v Miller, 26 Mich App 665, 667; 182 NW2d 772 (1970). Today we specifically prohibit this practice in order to promote a more thorough exposition of the events surrounding a contested search or seizure. This, we hope, will aid the trial courts as well as the appellate courts in drawing the difficult line between the constitutionally permissible search or seizure and the constitutionally impermissible one. [410 Mich 390, n 3.]
However, this Court was careful to note that “[t]he issue of whether opposing counsel may stipulate to the trial court’s sole reliance on a preliminary examination transcript in passing on a motion to suppress evidence is not before us, and we therefore do not consider it.” 410 Mich 392, n 4.
B
As indicated, the Court of Appeals relied on Talley in concluding that the circuit court “improperly addressed the motion.” Acknowledging that “[t]here are factual differences between the instant case and Talley,” the Court of Appeals said that it nevertheless believed Talley to be controlling. “Accordingly, the trial court erred in deciding defendant’s motion to suppress solely on the basis of the preliminary examination transcript.”
Judge Henry William Saad dissented on this point, characterizing Talley as “inapposite.” He added that, “because the uncontroverted facts clearly establish uncoerced consent to search the premises, the trial court properly refused to suppress the evi dence . . . Judge Saad would have affirmed the defendant’s conviction.
c
The question reserved by this Court in Talley— whether parties may stipulate to the use of a preliminary examination transcript to resolve a motion to suppress — was answered by this Court in 1989, when we adopted MCR 6.110(D). That subrule provides:
If, during the preliminary examination, the court determines that evidence being offered is excludable, it must, on motion or objection, exclude the evidence. If, however, there has been a preliminary showing that the evidence is admissible, the court need not hold a separate evidentiary hearing on the question of whether the evidence should be excluded. The decision to admit or exclude evidence, with or without an evidentiary hearing, does not preclude a party from moving for and obtaining a determination of the question in the trial court on the basis of
(1) a prior evidentiary hearing, or
(2) a prior evidentiary hearing supplemented with a hearing before the trial court, or
(3) if there was no prior evidentiary hearing, a new evidentiary hearing.
To date, no appellate decision has addressed the relationship between this rule and Talley. However, we take this occasion to observe the court rule’s specific statement that a ruling on a motion to exclude evidence may be premised on the record of a prior evidentiary hearing.
This approach vests discretion where it belongs— with the lawyers who are trying the case. Subject to the authority of the trial judge, it is the lawyers who are responsible for the introduction of evidence and the presentation of motions. An attorney is to employ professional judgment in deciding whether additional proofs are necessary or desirable from the standpoint of the client. Certainly, there are cases in which further testimony would be harmful to the defendant’s interests, and that determination is normally reserved for defense counsel.
As indicated, the lawyers in this case chose to have the motion decided on the basis of the preliminary examination transcript and the police report. While that approach is inconsistent with a portion of what was said in the 1981 Talley decision, it accords with broader principles regarding the respective roles of defense counsel, the prosecuting attorney, and the court. And it is specifically authorized by MCR 6.110(D).
We see no error in the manner in which the circuit court proceeded. Accordingly, we overrule Talley insofar as it has been understood to mean that counsel cannot agree to have a motion to suppress decided on the basis of the record of the preliminary examination.
For these reasons, we reverse in part the judgment of the Court of Appeals and reinstate the defendant’s conviction. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Boyle, Weaver, and Taylor, JJ., concurred.
Cavanagh and Kelly, JJ., concurred only in the result.
The current language is found in MCL 333.7401(2Xd); MSA 14.15(7401)(2)(d), as amended by 1996 PA 249.
Order entered December 5, 1995, reh den February 23, 1996 (Docket No. 183091).
Unpublished opinion per curiam, issued April 4, 1997 (Docket No. 183091).
The Court of Appeals also ordered that the defendant be resentenced.
The discussion in Talley was noted in People v Bloyd, 416 Mich 538, 542, n 2; 331 NW2d 447 (1982), and People v Nash, 418 Mich 196, 202, n 1; 341 NW2d 439 (1983) (opinion of Bkickley, J.).
The first paragraph of the Court of Appeals opinion ends, “We reverse and remand.” The final paragraph says, “Reversed and remanded for an evidentiary hearing on defendant’s motion to suppress the evidence. We do not retain jurisdiction.” The meaning of the word “reverse” in this context is not entirely clear. If the Court of Appeals has reversed the defendant’s conviction, then presumably a new trial would be in order. However, if the motion to suppress is denied on remand, it is not clear why a new trial would then be necessary. If the motion to suppress is granted on remand, then the prosecutor could theoretically go forward without the suppressed evidence, though that seems unlikely on this record. Perhaps the Court of Appeals means that the denial of the motion to quash (or to suppress) is reversed. In any event, we note that the legend “Reversed” sometimes is insufficient guidance regarding the path a case is to follow on remand.
Concurring in Talley, Justice Levin expressed concern regarding the ability of lawyers to withstand judicial pressure to shortcut the necessary proceedings. 410 Mich 395. We are aware of the constraints placed on judges and lawyers of busy courts, but we are confident that properly conducted proceedings will always be the rule rather than the exception.
In his brief to this Court, the defendant says that the agreement in this case (counsel inviting the court to “just kind of skim through” the transcript “with a view in mind of dismissing this case”) is “not the kind of stipulation the Talley court had in mind.” We disagree. Though inartfully phrased, counsel’s request was clear.
In all other respects, we deny leave to appeal. The case is therefore remanded to the circuit court for the resentencing ordered by the Court of Appeals. | [
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Graves, Ch. J.
The complainant’s counsel on the argument rested his right to maintain the suit and uphold the decree in his favor, on the ground that the bill was one for redemption, and in imputing this character to the bill he was undoubtedly correct.
It is not perceived how any other construction could • be given to it. Assuming this view to be correct, and going on to examine the action, it is first of all material to ascertain what sort of a case the complainant has set forth as entitling himself to intervene in the character assumed. As he has stated it, the substance of the case is, that one Harrison Harwood, a brother, with his own means purchased a described portion of a city lot in Adrian, upon which there was a building, but in order to keep it from his creditors he caused it to be conveyed by the grantor directly to his father-in-law, instead of taking the title to himself; that Harrison Harwood nevertheless went into possession and controlled the property; that at the time ■of this purchase and conveyance the property was under á mortgage from one Taylor, a former owner, to defendant Underwood, dated May 15th, 1855, for nine hundred dollars, payable in three equal annual installments, with annual interest; that some rents were derived from the building, the whole or a portion of which, by arrangement between Harrison Harwood and Underwood, were being received by the latter and applied on the mortgage; that in this state of things, and whilst Harrison Harwood was thus in actual possession, the complainant obtained a judgment against him for one thousand sixteen dollars and forty-four cents damages, and costs, on the law side of the court below; that this recovery was in July, 1856, and that an execution was forthwith taken out and levied on this lot; that both ■Underwood, the mortgagee, and Harrison Harwood, the execution debtor, were informed of this levy; that no other or further step was taken to enforce the judgment or obtain any benefit by legal proceedings on account of the levy; that in July, 1857, which was a year later, Underwood proceeded to foreclose the mortgage under the statute, and that this proceeding terminated by a sale to him by the-sheriff for three hundred and fifty-three dollars in September, and the deposit of a deed; that in May, 1858, Underwood commenced a second time to foreclose under the statute, and pursuant to his notice the sheriff struck the premises off to him at three hundred and forty-four dollars and five cents, and gave another deed to him;' that immediately after this last sale, and in August or September, 1858, and before the time for redeeming under the first sale had expired, the complainant, through another brother, Washington Harwood, who acted in that regard as his agent, inquired of Underwood whether he (the complainant) might not pay him (Underwood) the amount due on the mortgage, and take a transfer of it to secure him (the complainant) for the amount due on the judgment; that after a little delay Underwood finally suggested as a better plan, that the time to redeem should be allowed to run out, saying that all he wanted was his mortgage money, and that ■ he would let complainant have the land on his paying him the mortgage debt; that complainant trusted to this understanding, and allowed the time for redemption to expire; that afterwards Underwood informed Washington Harwood that complainant might have years to make payment in by keeping up the interest, but that no definite time was then agreed on; that in December, 1858, one Tomlin, a copartner of complainant, and acting for him in the matter, proceeded with Washington Harwood to call on Underwood, and then received assurance from the latter of the same nature as those theretofore given to Washington; that in -January, 1857, Tomlin, in company with Washington Harwood, again called on Underwood, when it was arranged that complainant should have until the first of the following April in which to make payment, but that Tomlin should get the building insured for three hundred dollars in Underwood’s name, and that in case the building should burn the insurance should apply on the amount going to Underwood; that in accordance with this arrangement Tomlin effected the insurance and delivered the policy to Underwood; that in February, the month after, the building was destroyed by fire, and the insurance recovered and received by Underwood; that afterwards Underwood, under various pretenses, put off and evaded completion of the business, and at length wholly refused to recognize any right in complainant; that Underwood sold the property to Cross and wife, who, nevertheless, when they purchased were aware of complainant’s claim. The foreclosures • are alleged to have been irregular and void.
The court below decreed that Underwood should pay complainant five hundred dollars, with interest from the 18th of Juné, 1859, and dismissed the bill as to Cross and wife. The complainant acquiesced in this decree, and Underwood :alone appealed. The complainant can claim nothing upon the proofs beyond what the bill warrants. But if he could do .so the evidence does not tend to make his position, upon his own theory of the case, any better than he has marked it out by his pleading. On consideration, it is not perceived how the suit can be maintained as one for redemption. No person can go into a court of equity to redeem a mortgage who shows no subsisting legal or equitable right in or to the estate or any lien or charge upon it.— Grant v. Duane, 9 J. R., 591; Douglass v. Sherman, 2 Paige, 358; Van Ness v. Hyatt, 13 Pet., 294 ; James v. Biou, Owen v. Flask, 2, Sim. & S., 600; Storg Eq. J., § 1023; Adams. Eq., (4 Am. Ed.,) 296; 4 Kent, 162. And the sole title of complainant to insist on redemption, is derived from the mere levy of his execution on this land.- But as the title to the land had never been in Harrison Harwood, the judgment debtor, and he had never held any leviable interest whatever, the levy was ineffectual to constitute any lien or charge, or to invest complainant with any right or title on which to found a suit for redeeming the Underwood mortgage.
Inasmuch as he was a judgment creditor of Harrison Harwood, and the statute saves to creditors the right to pursue property obtained by debtors, and with intent to defraud taken directly in the name of third persons, the complainant might unquestionably, if his own version of the facts is correct, have chosen a course by which he would have put in leading strings any interest open to judgment creditors. But he never did this. He secured no tie whatever. His proceedings were not such as to bind any thing, at law or in equity. — Trask v. Green, 9 Mich., 358; Maynard v. Hoskins, id., 485; Gorham v. Wing, 10 Mich., 486; Garfield v. Hatmaher, 15 N. Y., 475; New York Dry Dock Co. v. Stillman, 30 N. Y., 174 ; Ocean Nat. Bk., v. Olcott, 46 N. Y, 12; Van Ness v. Hyatt, 18 Pet., 294.
The other transactions narrated in the bill, if available as grounds for any legal remedy by complainant, were not suited to serve as the foundation for the remedy chosen. Taking the view of them most favorable to complainant,they point to an arrangement for a purchase of the mortgage right by complainant, and not a redemption. Indeed some of the facts set forth, when considered in the best light for complainant, would seem to indicate that the parties verbally agreed upon a transfer of the mortgage interest by Underwood to complainant, and that this agreement was partially carried out in what occurred respecting the insurance. But they are not facts which by themselves would afford any basis for redemption. How far they might have had influence in favor of redemption, in excusing laches or in repelling or precluding objections on tbe .part of Underwood, if the complainant bad shown himself in a position to seek redemption, it is unimportant to inquire. Tbe case obviously has not been so constituted or proceeded in as to justify tbe court in looking at them as facts belonging to a suit to compel specific performance of an agreement to assign tbe mortgage interest. I think tbe decree should he reversed, with costs, and the bill dismissed, but without prejudice.
Cooley and Campbell, JJ., concurred.
Christiancy, J., did not sit in this case. | [
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Cooley, J.
The act relating to a public park for the city of Detroit, approved April 15, 1871 (Laws 1871, Vol. 2, p. 1822), created a board of park commissioners, with power and authority to adopt plans for a public park, or boulevard, or both, with the necessary avenues or approaches thereto, for the use of the city of Detroit, and for those purposes to select the needful lands either wholly or in part, within the city or any of the adjacent townships, and to make conditional contracts therefor subject to ratification by the common council and a vote of a citizens’ meeting. All purchases for the purpose were limited to five hundred acres, at a cost of not more than two hundred thousand dollars. The common council was authorized to issue bonds to mako the necessary purchases, after their proposition for the purpose had been submitted to and approved by a citizens’ meeting, and the commissioners were authorized to institute proceedings in the circuit court for the county of Wayne for the appropriation of lands which they could not acquire by purchase. After the lands were acquired, the commissioners were to cause estimates to be made and laid before the council annually, of expenditures proposed for the improvement, embellishment and keeping of the grounds, and the common council were required to provide for such expenditure by an issue and sale of bonds, not exceeding fifty thousand dollars in any one year, as it might think proper, but subject to approval by a citizens’ meeting. The act named six prominent citizens of Detroit as the first members of the commission, who were to be divided by lot into three classes, the first to hold office for one year, the second for two, and the third for three years, and their successors were to be appointed by the common council.
The commissioners were duly organized into a board as provided by the act, and proceeded in the discharge of their duties. -Some question having been made regarding the power of the legislature to appoint them, the attorney general instituted proceedings by quo warranto against one of their number, to determine this question, and it appearing that the official authority of the commissioners had been fully recognized by the common council, in whom, with the mayor, was vested the general power to appoint, this court held that though the appointment could not originally have rightfully been made by the state, yet that the recognition of their official character by the appointing power without objection or dissent, was sufficient to constitute them city officers. — Attorney General v. Lothrop, 24 Mich., 235. Subsequent to this the common council filled two vacancies occurring in the board, by confirmation of the mayor’s nominations.
We are informed by the petition in this case that some time in 1871 the park commissioners selected what they deemed the most eligible site for a park, and entered into conditional contracts for the same on favorable terms; that they reported their action to the common council, and that body ordered the proposition for the issue of the bonds necessary to complete the purchase, to be submitted to a citizens’ meeting. Two successive meetings were held to consider it, but there was so much of noise, confusion and violence at these meetings that no intelligent discussion could be had, and no result was reached.
By an act approved March 14, 1873 (Laws 1873, Vol. 2, p. 100), it is supposed much larger powers have been conferred upon the board. They are permitted to “acquire by purchase” lands not exceeding in cost three hundred thousand dollars, and the act declares that whenever the board shall locate the site of a park or boulevard, or both, and shall make such location known to the common council, and lay before that body a statement in writing of the cost of the land acquired by the purchase, and an estimate in writing of the cost of the lands necessary to be acquired which the board has been unable to purchase, the common council shall provide money for such purposes, not exceeding the amount limited by the act, by the issue and sale of city bonds. It will be seen from this that the board of park commissioners are to have discretionary and unrestricted power in the location of the park or boulevard, or both, and in determining the amount of debt the city shall incur for the purpose, within the limits prescribed by the act, and the only discretionary authority left with the council is, that the act authorizes that body to determine the rate of interest on the bonds, not exceeding seven per cent., the sums in which they shall be issued, and the time when they shall be payable, which shall be not less than thirty, nor more than fifty years.
Acting under this legislation, the board reported to the common council on August 13, 1873, that they had located the site of a public park on Jefferson avenue, three miles from the city hall, containing about four hundred and fifty acres; that they had purchased three hundred and seventy-five acres of the four hundred and fifty selected, at a cost of two hundred and twenty-nine thousand one hundred and forty dollars and fourteen cents, and estimated the cost of ¡acquiring the remainder at about seventy thousand dollars, and they requested that the common council would authorize the issue of bonds to an amount not exceeding three hundred thousand dollars, to pay the cost. It is not necessary to state in detail the proceedings of the council on this report; it is sufficient to say that a resolution that ,eity bonds to the amount of three hundred thousand dollars, payable in thirty years, with interest at seven per ¡centum, has failed to receive the approval of that body. And the board of park commissioners now apply to this court for the writ of mandamus, directed to the common council, commanding that body to provide money to the amount of three hundred thousand dollars, for the purpose of purchasing a site for a public park for said city, in accordance with said report, by the issue and sale of city bonds in compliance with the provisions of the act last aforesaid.
Sufficient has been stated of the legislation on the subject to show that all action of the commissioners, up to the time when an issue of bonds is ordered by the common council, is provisional only, and that no debt is contracted by the city, or legal obligation assumed, until affirmative action is taken by that body upon the report of the commissioners. Why this action was required at all, if the council were, to have no important discretionary power in the premises, it is needless for us to speculate, since both parties concede that the purpose of the last act' was to take away the discretionary power that was vested in the council by the first, and that suitable and peremptory language has been employed for that purpose. And we shall consider this case upon the assumption that the parties have correctly construed this legislation.
The failure, then, of the common council to comply with the request of the board of j)ark commissioners has, in their opinion, imposed a public duty upon the judicial department, which we must perform on the facts being properly reported. That duty — to- state it nakedly — is, by the compulsory process of this court, to coerce the city of Detroit into entering into contracts involving a debt for a very large sum for an object purely of local concern, which the legislative body of the city has refused to make.
The proposition that there rests in this or any ocher court the authority to compel a municipal body to contract debts for local purposes against its will, is one so momentous in its importance, and so pregnant with possible con sequences, that ive could not fail to be solicitous when it was presented that its foundations should be thoroughly canvassed and presented, and that we might have before us, in passing upon it, all the considerations that could be urged in its support. In this our desire has been gratified to the utmost; as it is seldom a case receives so thorough and exhaustive an examination by counsel at once so able and apparently so thoroughly convinced of the correctness of their conclusions. And if we fail to notice in our judgment all the considerations that may possibly bear upon the subject, it will nob be because they were not brought to our attention and pressed with ability and force, but because others seem to us conclusive.
The general proposition we have stated may be said to be deduced by the relators from several minor propositions, which we shall endeavor to condense and state in substance as follows:
1. The legislature creates municipal corporations, defines and limits their powers, enlarges or diminishes them at will, points out the agencies which are to exercise them, and exercises a general supervision and control of them as it shall deem proper and needful for the public welfare.
2. The legislature confers upon the bodies it has created the power to make contracts and to levy taxes for their performance, but in matters of public concern it is not limited to conferring a discretionary power, but may exercise compulsory authority where the local officers or agencies neglect or refuse to discharge their public duty in providing for the public needs of the locality, or in voting or levying the proper taxes for public purposes.
3. While the state cannot appoint the officers who are to have charge and management of local affairs, it may apportion the local powers among them as it sees fit, and confide them from time to time to such as are thought most likely to exercise them in accordance with the law and for the public good.
4. As a corollary from the preceding it was entirely competent for the legislature of 1873 to take from the common-council and the freemen where before it was Tested, the power to decide upon a purchase of lands for a park, and to Test it in a board of local officers chosen by the Toters of the city, or their representatiTes in the common council and that as the board of park commissioners, since their recognition as such by the common council, are to be deemed and taken to be local officers, locally chosen, the act of 1873 is to be regarded only as an apportionment of local duties and powers among local officers, and not as an attempt by the state to control unwarrantedly the local gOTernment. For, considered as local officers chosen by the municipality, the board of park commissioners are claimed to be as truly the representatiTes of the people of Detroit as the common council itself, and may as properly be Tested with large discretionary power orer this subject.
5. The common council haring only a ministerial duty to perform after the board had acted, they may be compelled to perform that duty by the usual process.
This is beliered to be an accurate statement, in substance and in our own language, of the positions so ably presented and urged on behalf of the relators; and it must be conceded that if the first four are sound, the fifth must follow logically. The performance of a mere ministerial duty may as well be enforced when it rests upon an aggregate body like the common council, as when incumbent upon a single officer. Tfe may therefore address ourselres at once to the propositions which are supposed to fix upon the council the duty which this proceeding seeks to compel that body to perform.
In People v. Hurlbut, 24 Mich., 44, we considered at some length the proposition which asserts the amplitude of legislatiTe control oxer municipal corporations, and we there conceded that when confined, as it should be, to such corporations as agencies of the state in its gOTernment, the- proposition is entirely sound. In all matters of general concern there is no local right to act independently of the state; and the local authorities cannot be permitted to determine for themselves whether they will contribute through taxation to the support of the state government, or assist when called upon to suppress insurrections, or aid in the enforcement of the police laws. Upon all such subjects the state may exercise compulsory authority, and may enforce the performance of local duties, either by employing local officers for the purpose, or through agents or officers of its own appointment. The same doctrine was declared in People v. Mahaney, 13 Mich., 481, and in Bay City v. State Treasurer, 23 Mich., 503. It was also recognized in the statement that in the levy of taxes for purposes of general concern the municipal bodies cannot demand a right to be consulted, and their consent is immaterial. And we concur fully in the views which have been expressed by other courts in the cases to which our attention was called on the argument, that as regards duties which the people in the several localities owe to the commonwealth at large, they cannot be allowed a discretionary authority to perform them or not as they may choose. Such an authority would be wholly inconsistent with any thing like regular or uniform government in the state.
But we also endeavored to show in People v. Hurlbut, that though municipal authorities are made use of in state government, and as such are under complete state control, they are not created exclusively for that purpose, but have other objects and purposes peculiarly local, and in which the state at large, except in conferring the power and regulating its exercise, is legally no more concerned than it is in the individual and private concerns of its several citizens. Indeed, it would be easy to show that it is not from the standpoint of state interest, but from that of local interest, that the necessity of incorporating cities and villages most distinctly appears. State duties of a local nature can for the most part be very well performed through the employment of the usual township and county organizations, so that if the state alone, in its corporate capacity,, were to be regarded, the conferring of special corporate powers on cities and villages might very well be dispensed with. . It is because where an urban population is collected many things are necessary for their comfort and protection which are not needed in the country, and which the county and township organizations, with their imperfect powers and machinery, cannot well supply, that the state is them called upon to confer larger powers, and to make of the locality a subordinate commonwealth, which, while it shall perform for the state wholly or in part what the county and township officers performed before, shall also be endowed with capacities to provide for its citizens such matters of necessity or convenience as their health, protection, comfort or enjoyment as a political community may demand. Indeed, it is a matter of general observation that the state does not force upon the local community these larger powers, but waits to be solicited to confer them when the people interested shall deem them for their advantage. This is so well understood that in many of the states it has been decided that a municipal corporation may justly be held, when receiving its charter, to contract in consideration of the powers conferred, that its authority shall perform towards all parties concerned, the several duties imposed upon the corporation, and may be held liable in damages for their failure to perform them. And although we have not followed those decisions in this state, the twofold character of these corporations, as organizations on the one hand for state purposes, and on the other for the benefit of the individual corporators, has invariably been recognized' by this court wherever there has been occasion to refer to it.
We also referred, in People v. Hurlbut, to several decisions in the federal supreme court, and elsewhere, to show that municipal corporations, considered as communities •endowed with peculiar functions for the benefit of their own citizens, have always been recognized as possessing powers and capacities, and as being entitled to exemptions, distinct from those which they possess or can claim as conveniences in state government. If the authorities are examined it will be found that these powers and capacities, and the interests which are acquired under them, are usually spoken of as private, in contradiction to those in which the state is concerned, and which are called public; thus putting these corporations, as regards all such powers, capacities and interests, substantially on the footing of private corporations. This distinction is very carefully drawn in Bailey v. New York, 3 Hill, 531, which concerned the New York water works, and also in Small v. Danville, 51 Me., 362 ; Philadelphia v. Fox, 64 Penn. St., 180; and Western College v. Cleveland, 12 Ohio, N. S., 375. It is well stated by Lewis, Oh. J., in Western Saving Fund Society v. Philadelphia, 81 Penn. St., 183, in speaking of a municipal corporation as the owner of gas works: “The supply of gas-light,” he says, “is no more a duty of sovereignty than the supply of water. Both these objects may be accomplished through the agency of individuals, or private corporations, and in very many instances they are accomplished by these means. If this power is granted to a borough or a city, it is a special private franchise, made as well for the private emolument and advantage of the city as for the public good. The whole investment is the private property of the city; as much so as the lands and houses belonging to it. Blending the two powers in one .grant does not destroy the clear and well settled distinction, and the process of separation is not rendered impossible by the confusion. In separating them, regard must be had to the object of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political or municipal
character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred.” In San Francisco Gas Company v. San Francisco, 9 Cal., 453, it is held that in providing light for corporate conveniences, a municipal corporation is on the same footing with a private corporation, and may be held liable on implied contract. In Oliver v. Worcester, 102 Mass., 499, a like distinction is drawn between the public and private capacities and 'responsibilities of municipal corporations. And in Dillon on Municipal Corporations, § 39, pains are taken to collect many authorities to the same effect. Indeed, the history of municipal corporations in the country from which we derive our institutions will show that they first came into existence by spontaneous local action of their members, taken for their own benefit and protection, and that their recognition and employment as agencies of a character which can be called public, considered with reference to the realm at large, was later, and was based rather upon their local, and what may properly be called their private wealth, influence and importance, already existing and established, than upon any necessity that such corporations should be created and should exist for the purposes of general government. The government found convenient instrumentalities in existence, and it made use of them for its purposes; but they were first brought into existence from considerations which addressed themselves to the interests of the corporators, and concerned their individual protection, prosperity and welfare. And the city of London has always been, and is now, vastly more important in its private capacity as a corporation than in its public capacity as an agent of government.
We should not discuss this subject in the present case if the course of the argument had not seemed to indicate that our opinions in People v. Hurlbut had been, to some extent, misapprehended. We intended, in that case, to concede most fully that the state must determine for each of its municipal corporations the powers it should exercise, and the capacities it should possess, and that it must also decide what restrictions should be placed upon these, as well to prevent clashing of action and interest in the state, ilas to protect individual corporators against injustice and oppression at the hands of the local majority. And what we said in that case we here repeat, that while it is a fundamental principle in this state, recognized and perpetuated by express provisions of the constitution, that the people of every hamlet, town and city of the state are entitled to Uhe benefits of local self-government, the constitution has inot pointed out the precise extent of local powers and I capacities, but has left them to be determined in each case by the legislative authority of the state, from considerations of general policy, as well as those which pertain to the local benefit and local desires. And in conferring those powers it is not to be disputed that the legislature may give extensive capacity to acquire and hold property for | local purposes, or it may confine the authority within nar'v-'fow bounds; and what it thus confers it may enlarge, restrict or take away at pleasure.
But it cannot be contended that authority in the legislature to determine what shall be the extent of capacity in a city to acquire and hold property, is equivalent to, or contains within itself the authority to deprive the city of property actually acquired by legislative permission. As to the property it thus holds for its own private purposes, a city is to be regarded as a constituent in state government, and is entitled to the like protection in its property rights as any natural person who is also a constituent. The right of the state as regards such property, is a right of regulation, and though broader than exists in the case of individuals, is not a right of appropriation. The constitutional principle that no person shall be deinived of property without due process of law, applies to artificial persons as well as natural, and to municipal corporations in their private capacity, as well as to corporations for manufacturing and commercial purposes. And when a local convenience or need is to be supplied in which the people of the state at large, or any portion thereof outside the city limits, are not concerned, the state can no' more by a process of taxation take from the' individual citizens the money to purchase it, than they could, if it had been procured, appropriate it to state use. To this extent the corporate right appears to us to be a clear and undoubted exception to the general power of control which is vested in the state.
Whoever insists upon the right of the state to interfere and control by compulsory legislation the action of the local constituency in matters exclusively' of local concern, should be prepared to defend a like interference in the action of private corporations and of natural persons. It is as easy to justify on principle, a law which permits the rest of the community to dictate to an individual what he shall eat, and what he shall drink, and what he shall wear, as to show any constitutional basis for one under which the people of other parts of the state, through their representatives, dictate to the city of Detroit what fountains • shall be erected at its expense for the use of its citizens, or at what cost it shall purchase, and how it shall improve and embellish a park or boulevard for the recreation and enjoyment of its citizens. The one law would rest upon the same fallacy as the other, and the reasons for opposing and contesting it would be the same in each case. And while it may be entirely possible that in any particular instance the interference would be beneficial to the person or the community whose rights are invaded, it is not to be overlooked that an interference to compel a person to sub mit to something for his own. good, may be made use of as a precedent to compel him at some future time to submit to extortion and plunder. The law very properly draws a line between that which is admissible and that which is not, and it does not allow outside dictation in matters purely of local concern, for one very good reason, among others equally good, that the motive for outside interference will very likely be something besides a desire to do good to a community in which the parties interfering have no personal interest, unless of a merely sentimental nature, and whose burdens they are not to share, or enjoyments participate in. All such matters are left to those whose interests will prompt them to act with prudence, and who, because of their interest, and because they relate to matters that must come under their own view and observation, they are presumptively best qualified to decide upon. And while we do not question that where state interference has improperly been invoked in municipal affairs in this state, and state appointments been made for municipal government, the motive has been correct and the appointments been of those who, on personal grounds, were wholly unexceptionable, it may not be improper to state, that in that sister state in which a like power has been most often exercised, and whose legislative precedents were cited on the argument, while the pretense always was that the interference was necessary to correct some local evil or promote some local good, the general result of a disregard of sound principle followed, and a system of corruption and disorder was introduced which it became at last appalling to contemplate. But as bad motives cannot render a constitutional law invalid, neither can good motives legalize usurpation.
We affirm, then, that the city of Detroit has the right to decide for itself upon the purchase of a public park. The next question concerns the agency by which this decision shall be made. Dnder the act of 1871 the final decision was to be made in a citizens’ meeting, but this democratic feature in city government is now taken away, and for the very sufficient reason that a city of the size of Detroit cannot possibly assemble its citizens, to consult and advise upon such subjects, and. must necessarily express the public will through representatives. It is probably true, as stated on the argument, that no public park could ever have been determined upon in citizens’ meeting, and the legislation of 1873, so far as it abolished that feature, was doubtless wise and salutary. At any rate it was clearly within the legislative power, and it only remains to consider whether, under that legislation, the park commissioners in determining upon and purchasing the ground for a park can be regarded as representatives of the people of Detroit.
The argument on this branch of the case is, that the park commissioners, being city officers, the legislature, when they took from the common council and the citizens’ meeting the power to decide finally on the purchase of a park, and conferred it on these commissioners, was only exercising an unquestioned authority in the apportionment of local powers and duties among local officers, as should be deemed most for the local good. The common council, it is claimed, not being a body provided for in the constitution, can have no vested rights in any particular powers or duties, and the rights of local government are just as much regarded, and presumptively as well protected, when the local powers and duties are apportioned among other officers, as when all are left to the judgment and discretion of the council. But whether this is so or not, the right of the legislature to make the apportionment, it is insisted, is unquestionable, and from the nature of the case, unless particular restraints can be pointed out in the constitution itself, must be unlimited.
Conceding, as we already have, the general right of the legislature to prescribe the duties and authority of municipal officers, it would nevertheless be easy to demonstrate that unless there are some limitations upon that right, the constitutional guaranty of local self-government would be without meaning or value. Many things might be suggested so utterly destructive of the local municipal institutions which have been handed down to us, that the most strenuous advocate of legislative authority would admit without hesitation that they were forbidden by the constitution. If we may suppose, for an illustration, that the legislature shall provide that in Detroit a single person may be chosen in whom may be vested the whole legislative authority of the city, and all other authority pertaining to local government of every description and nature, not expressly by the constitution confided to officers specified, it would require unusual boldness in any one who should undertake to defend such a local dictatorship as something within the competency of legislation under a constitution avowedly framed to guard, protect and defend the local powers and local liberties.
We desire to guard in this case against expressing opinions on abstract questions, or upon any not directly involved; and therefore shall avoid the utterance of any views which either of us may possibly hold upon the question which has been suggested, whether the common council may not be so far a distinctive feature in municipal government as to be understood and by implication retained when that government is provided for. The case before us will be disposed of without reaching any such question. This is one in which the powers in question have been •conferred upon the park commissioners after its members were chosen, and it obviously presents a different question from what it would had the powers taken from the common council and the people by the act of 1873 been transferred to the board before the appointment of its members, and the choice been made with reference to the powers to be exercised. The point now to be determined is, whether for the purposes of the purchase proposed the park commissioners can be regarded as the representatives of the people of Detroit chosen to make it.
A representative, as we understand it, is one chosen by a principal to exercise for him a power or perform for him a trust. In that sense the mayor of Detroit is a representative for some purposes, the members of the common council for others, and the members of the board of education for still others. But the idea of a representative implies not merely a person chosen for some purpose, but a person chosen for a particular purpose, and confided in to represent his principal therein. One person may be thought suited to one duty, and another to another; and the right to be represented implies a right not merely to name the person, but also to designate the trust that shall be confided to him. That government would be but a mockery of republican institutions, which, while leaving to the people a choice of officers, should afterwards determine whether any particular officer who had been selected by the people should be a legislator or a judge, a governor or a policeman. The constables of Detroit are chosen by popular vote, and for the purposes of their office are the servants, the agents, the representatives of the people; but it would be absurd to speak of the.people of Detroit as governed by their representatives if after these constables had been chosen for the performance of ministerial and police duties the legislature might so amend the city charter as to confer upon these officers the full powers of local government which, when they were chosen, were vested in the council. It would be difficult to conceive of any action which would more effectually set aside republican government, and deprive the people of their undoubted rights and constitutional liberties, than an act of this nature, which, while it placed no person in power whom the people had not chosen, would nevertheless so pervert the power as to place persons chosen for inferior duties for which they were fit, in the high and responsible positions in municipal government, where the people would refuse to trust them.
The case supposed is of course extreme and wholly improbable, but sometimes to suppose an extreme case is the best method of demonstrating the danger of false doctrines. What we desire clearly to express is simply this: that that is not a representative government in which the people are not permitted to say in what trusts their agents shall represent them. Nor in saying this do we deny the authority of the legislature to modify the powers and duties of existing local officers. It is not doubted that such a power exists, and its exercise tends greatly to the improvement of local administration in many cases. Indeed, it is a necessary power if valuable changes are to be brought about, and its exercise from time to time must always be considered as possible, and therefore always within the contemplation of the people when their officers are chosen. But the changes and modifications, when they relate to matters which concern the private interests and property of the city, must be in the same general direction, and not give authority of other and a higher nature, which might require for its exercise different experience, intelligence, capacity and discretion. And while all legislative as well as judicial bodies should be careful not to be over-nice or technical in considering the changes proposed or made where the object sought is a bona fide improvement in the functions of a representative, so on the other hand is it specially incumbent on all to take care that the mere bodiless shadow of republican government be not by such a method substituted for the reality, and that while the people are suffered to go through the forms of an election, there shall not rest in some authority at a distance, the power to deprive the election of any valuable significance. On this point reference is had to what is said by Justice Graves in People v. Hurlbut, 24 Mich., 114.
The city of Detroit is found to have accepted the state appointees as its representatives in the park commission; but for what purpose and on what understanding? Obviously it was with the purpose and on the understanding that they should have the powers and perform the duties pointed out in the act of 1871. The people did not accept them as mayors, or common councilmen, or members of the board of education, or water commissioners. The right to choose their representatives in all these offices they understood was still reserved to themselves. In empowering the commissioners to act for them they may be supposed to have addressed them substantially in the language of the act of 1871, and informed them they had been chosen to examine lands for the site of a park, and to report their opinion if they found one suitable, but that the question whether one should be purchased or not was expressly reserved to the common council and the people. They did not say to them, we choose you our agents for any thing the legislature may hereafter direct you to do on our behalf;' but we choose you our agents to perform this particular duty.
The powers specified in the act of 1871, though requiring for their proper discharge a high order of intelligence and cultivation, were nevertheless purely advisory at first and administrative afterwards. How is it with the powers specified in the act of 1873 ? Are they the same in nature or alike in grade ? In one sense it may be said they are similar in kind, because they relate to the same subject, that is to say, to the establishment of a city park. But obviously a power to advise the city to buy property if its citizens shall choose to do so, and shall voluntarily incur the cost, is not the same in degree or iii nature with a power to bind the city irrevocably to a purchase which its citizens may protest against, and to compel them to incur a heavy debt for an object they may not desire. An agency to advise one to make a purchase has no relationship to a power to make it for him whether he will or no, and forcibly, by the aid of legal process, to appropriate his property to pay for it.
There is indeed no real similarity in the powers to be exercised under the act of 1873 to those specified in the previous act. The latter were limited, and reserved all substantial powers to the council and the people; the former are powers of final action, and place the commissioners, in matters of the very highest importance, over both council and people. In making contracts and creating debts for the city, the commissioners are in effect exercising a power of taxation, which is one of the highest attributes of sovereignty, and the distance between their former power to advise, and the power now claimed to compel, can only be adequately measured when it is perceived that the one belongs to the lowest grade of powers, while the power to tax is the highest that can exist in local municipal government. No precedent entitled to respect can justify such a change of powers; for, from the very dawn of our liberties the principle most unquestionable of all has been this: that the people shall vote the taxes they are to pay, or be permitted to choose representatives for the purpose.
We eannot therefore say that'the board of park commissioners are representatives of the city of Detroit for the purpose named, because to do so would be to hold that the shadow is the same as the substance, and that servant and ruler are convertible terms. The high and responsible trust created by the act of 1873, which concerns and will concern the happiness and prosperity, the health and comfort of that city for an indefinite future, the people of Detroit have not been permitted to fill. The persons named for it are the appointees of the legislature, and not of the city, and however disinterested and honorable may have been their course, and however wise and beneficent their contemplated action, we have no power to aid it by legal process, because, concerning as it does the private corporate interests of the city, it has been had without the consent of the city expressly or by implication given.
The mandamus prayed for must be denied.
Christiancy, Ch. J., and Graves, J., concurred. | [
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Cooley, J.
This suit was upon what was claimed to be an acceptance of an order drawn by Joseph Cline upon E. B. Hubbard & Co., for the payment of one hundred and forty dollars. On the trial this order was offered and received in evidence, without objection. On the face of it was written the following words: “ Paid on this order forty dollars. R. B. Hubbard & Co.” The circuit judge decided that this indorsement did not constitute an acceptance of the bill, except as to the sum of forty dollars paid thereon, and therefore directed judgment to be entered for defendants.
It is suggested in this court that this judgment was right, even though the reason assigned for it may be wrong, inasmuch as the plaintiff gave no evidence that defendants composed the firm of R. B. Hubbard & Co., or that the indorsement was made by them, and it does not appear that the paper sued upon was filed with the justice before whom the case originated. This suggestion has no force. The fair import of this record is that the defense was planted on the legal effect of the indorsement, and if the judge’s ruling upon that was incorrect the judgment cannot be supported. The defendants had a right to waive all formal proofs if they saw fit to do so, and they seem to have done so here.
Our statute requires an acceptance to be in writing, but it does not prescribe in what form of words it shall be expressed. The authorities require very little to make out an acceptance. Any thing written by the drawee indicating an intent to accept, is sufficient. — Bailey on Bills, 168; 1 Pars. Bills and Notes, 281-2. To say “accepted,” or “honored,” or “seen,” is sufficient, even though no signature is appended. — Story on Bills, § 243; 1 Pars. Bills and Notes, 282. And the mere writing of the drawee’s name across the face of the bill is an acceptance, for this, as Judge Cowen well remarks, is a still clearer indication of intent to accept than any of the single words mentioned, and is a very common mode of acceptance. — Spear v. Pratt, 2 Hill, 582.
In this case the name is thus written on the order, and this is conceded to be sufficient, unless something appears to restrict the effect of this endorsement. The circuit judge seems to have thought the words, “ Paid on this order forty dollars,” written over the name, qualified the acceptance by limiting it to that sum. In reaching this conclusion he must have inferred several things which were not proved: 1. He must have inferred that this statement of payment was written by E. B. Hubbard and Co.; because if it had been written by the holder of the order, as an acknowledgment of a payment made to him, it is clear it could not qualify the effect which the law in its absence would give to defendants’ signature written across the order. 2. He must have inferred that it was written at the same time the name was subscribed; for it could certainly have no qualifying effect if written either before or afterwards, even though written by defendants. And, 3. If the acceptance was to be limited to the forty dollars, so that the obligation of the acceptors was discharged by the payment at the very moment it was assumed, the judge must have inferred some reason not apparent on the record for what would seem the very needless and idle subscription of the parties’ names; for nothing could apparently be more idle than to write their names upon the paper at all, if they were to incur no obligation by doing so.
All reasonable inferences, it seems to us, are against the conclusion reached in the court below. The indorse ment of a partial payment on an order would naturally and properly be made by the holder, because it would be his acknowledgment that the payment had been made; and though it might be made by the party paying, if desired or consented to by the holder, it would still be in effect the act of the latter, who by permitting it on a paper in his own possession and control, would presumptively ratify and adopt it as furnishing evidence of what had been paid him. The presumption, therefore, would be that the receipt upon this order was the act of the holder instead of the defendants. . But had there been proof of their having written it, it would be impossible to draw the inference that they wrote their names for the purpose of authenticating or giving evidence of the payment. Evidence could be needed for nobody’s protection or benefit except their own; and to sign their own name by way of furnishing evidence in their own favor, would at least be an unusual and unnatural thing for them to do. If any signature was important for that purpose, it was that of the party receiving the money, and not that of the party paying.
To suppose the name was subscribed to the receipt in order to show that no obligation to pay more was intended to be assumed, is, as already stated, to suppose the parties did an entirely unnecessary act, the effect of which, to say the least, was to lead to a possible inference of intent to charge themselves, when, if they had written nothing at all, their freedom from obligation would have been entirely clear. For if they had simply paid the forty dollars and taken a receipt therefor in the usual way, either by endorsement on the order or by a separate writing, the statute would have exempted them from responsibility. No other conclusion is reasonable than that these parties subscribed their names by way of obligating themselves to pay the order.
The judgment must be reversed, with costs, and a new ¡trial ordered.
The other Justices concurred. | [
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Christiancy, Ch. J.
It is hardly necessary to say, that as the defendant could not in any event be entitled to recover beyond the value of the property, and there was no evidence of its value except that furnished by the appraisal made under and returned with the writ of replevin, which was only $107 10, the allowance of the amount of $208 (because that was the amount of defendant’s lien) was clearly erroneous. Upon the hypothesis that the defendant was entitled to recover at all, his recovery should have been limited to the value as shown by the appraisal.
But, there being no other evidence upon the point, we think this appraisal was prima facie evidence of the value, and if the defendant was entitled to recover at all, he was entitled to recover to the amount of the appraisal; upon this point the case comes within the principle of our decision in Worthington v. Hanna, 28 Mich., 580.
Should this be the only error, this being a case made, we might correct this error by merely reducing the judgment to its proper amount.
But there are several other questions raised which we proceed to consider.
We see no error in. the admission of parol evidence to prove the official character of the persons mentioned as trustees at the time the mortgage was executed. It was sufficient prima facie proof to show that the persons named were acting trustees or such officers de facto of the society, which would furnish the presumption that they were so de jure; and for this purpose parol evidence was clearly admissible. — Cahill v. Kalamazoo Mutual Ins. Co., 2 Doug. (Mich.), 124; Druse v. Wheeler, 22 Mich., 439. The testimony was, that they were such trustees at the time, and the evidence further shows that they acted as such, and this evidence was uncontroverted. And if the defendant was allowed to go further, and to show by parol their actual election and qualification as such (which, when necessary to be shown at all, might be required to be shown by the record), parol proof of such facts could in no way prejudice the plaintiff, since those facts were unnecessary to be proved by the defense, the official character of the trustees named being sufficiently shown without the objectionable evidence.
The next objection is to the parol proof of the contents of the written notice of a meeting of the society for the first of August, which the defendant testified he read to his congregation on three successive Sabbaths in the month of July, and showing the object for which such meeting was called. And in' connection with this, may also be considered the question arising upon the objection to the proof by parol evidence of “what directions the meeting gave to the trustees, as to giving mortgages upon the property of the society.”
The object of introducing the evidence upon both these points, so far as we can judge from the case, seems to have been to show the power of the trustees to execute the mortgage under which the defendant claimed, for which purpose it seems' to have been thought necessary to show that the trustees gave the mortgage in pursuance, and with the vote or directions, of a meeting of the society, duly notified for the purpose.
To authorize the trustees to execute a mortgage of real estate (and there were such mortgages executed by them 'on the same occasion), it would have been necessary under section 3062, Compiled Laws, as amended in 1869 (Sess. L. 1869, p. 67), that they should have “ the assent of two-thirds of the voters present at a meeting of the society, duly and specially called for the purpose;” and in such case, and so far as such meeting and such vote, or the consent of the society was necessary to the giving of the present mortgage, the notice of such meeting, as well as its action, or any vote or direction it may have given, must have been proved by the best evidence, the written notice itself, and the record of the meeting, or the loss or inability to procure the written notice or record, must have been shown before secondary evidence could have been given of its contents. This certainly would be clearly so of the contents of the record, and I think equally of the contents of the notice; as the written notice was not one delivered over to the parties receiving it, but merely read by, and therefore (in the absence of evidence to the contrary) to be presumed to have remained in the possession of, the defendant, who is seeking to prove the notice to establish a claim of right in himself. Its non-production, therefore,' and a resort to secondary evidence, are open to the same suspicion as parol evidence in ordinary cases where the fact sought to be proved is the contents of a written instrument.
But the provision of the statute requiring a vote of the society at a special meeting called for the purpose, does not apply to a mortgage or sale of personal property. The statute, it is true, grants express power to sell or mortgage real estate, in pursuance of a vote at a meeting thus called, and is silent as to the power to sell or mortgage personal property; and for this reason, and because the amendment of the same section in 1861 (Sess. L. 1861, p. 228), which first gave to religious societies express power to execute mortgages, authorized the trustees to execute mortgages upon any of their property, extended the power only to the securing of liabilities incurred in the erection or repair of their churches, meeting houses and other buildings, and the act of 1867 (Sess. L. 1867, p. 100) amending the same section, only added to this the right to execute such mortgages upon the property of the society to secure the payment of liabilities for the purchase of sites for such buildings, and the section, as amended in 1869 (first above cited), only extends the power to real estate, — the plaintiff’s counsel therefore infers and insists that the trustees, under this statute, had no power to execute a mortgage upon the personal property of the society.
But we think there is no sufficient ground for such an inference. The power to mortgage or sell real estate of such religious societies, for many peculiar reasons, might have been a doubtful one without some enabling statute; but that the trustees, who in fact constitute the corporation, would, without an enabling statute, have the right to sell an organ, a chair, stove, or carpet, which they might happen to own and wish to dispose of, can hardly admit of a doubt; and generally the power to sell includes the more limited power to mortgage. And we think the power to execute a mortgage upon their personal property, to secure their debts, is one which is incident to the existence of a corporation, and that it requires some express or clearly implied prohibition by the legislature to take it away. — Angell & Ames on Corp., §§ 187, 191, and authorities cited; 2 Kent's Com., 280.
It was usual in England to restrain both the power of acquisition, and the power of sale of ecclesiastical corporations, and a similar policy has been adopted in some of the American states in reference to the real estate of such corporations; and certain restrictions of this kind will be found in our own statutes.
But these restrictions are confined to real estate; and our statute furnishes no clear intimation of any intention to limit the power of such corporations to sell or mortgage their personal property. As a common-law incident, therefore, of their corporate existence, we must hold that they have the power.
No meeting or directions of the society, therefore, being necessary to give the trustees power to execute this mortgage, if in other respects valid, the error upon this particular point, in admitting the evidence, could not in any way prejudice the plaintiff; though, if admitted for the purpose of having the further effect to show an employment or hiring, or a ratification of the hiring of the defendant, as pastor, by the congregation, it would have been erroneous, and the action of the meeting cannot therefore be considered as in proof for this purpose.
As to plaintiff’s objection that it was not proved that the parties who executed tbe mortgage ever bad any title to the property, or right to mortgage the same, and that if a mortgage, it was only that of the parties whose names, were signed to it, we infer from the argument that this is intended to be based upon, and claimed to follow as a consequence from, the misnomer of the corporation insisted upon under the next point, and that it was not intended to refer to the mere form of execution. The property was shown by the plaintiff’s evidence to be the property of “The First Orthodox' Congregational Society of Middle-ville.” But the mortgage purports on its face to be given by “ The trustees of the Orthodox Congregational Ohu-rch of Middleville,” and it is insisted that this is an entire misnomer, and we are naturally to infer that there are two ■ corporations, one of each name, at Middleville.
It is not necessary to say what might have been the result upon this point, had there been no ’proof of identity. No great exactness, it is true, was observed by the trustees in describing the corporation by the exact corporate name given in the certificate. In the body of the instrument they describe themselves as “The trustees of the Orthodox Congregational Church of Middleville,” but, in signing, they leave out the word “ Orthodox.” But all understand these religious societies authorized by the statute are what are usually and properly enough known as churches.
The plaintiff’s counsel himself makes quite as great a mistake, and quite as essential a misnomer, when he assumes, as he'does in his brief, that it is the “society” which constitutes the corporation; whereas, the statute makes the trustees constitute the corporation — Comp. L. 1871, §§ 3059, 3060, 3061. The fact that the name, as given by the certificate, would, when applied to the statute, make the true corporate name “ The trustees of the First Orthodox Congregational Society,” etc., might, under evidence that there were two Congregational churches at Middle-ville, render the name given in the mortgage (which omits the term “"First”) doubtful, and perhaps, without evidence showing that there were two Congregational churches there, evidence might be required to show the identity. But the great object of a corporate name, like that of an individual, is to identify the corporation, and it may be known by several names, as well as a natural person; and when the variance from the exact designation given by the statute is no greater than it is here, I can see no good reason to doubt the propriety of parol evidence tending to identify the corporation whose organization was shown by the certificate, with that which executed the mortgage. — Angell & Ames on Corp., §§ 99, 284, and cases cited.
Here such evidence was given, wholly uncontradicted, as placed the identity beyond question. It was proved by the parol evidence, to which, as we have seen, there was no good legal objection, that the three persons who, as trustees, executed the mortgage, with two others named, “ were ” (I quote from the record) “the trustees of said First Orthodox Congregational Society of Middleville,” etc. It was that corporation against which the plaintiff had obtained his judgment; and it is for the attempt which his counsel claims the evidence shows, to evade the payment of this judgment, that the chattel mortgage was void. In short, the whole case shows, beyond all reasonable question, the identity of the corporation. The court must so have found, to give the judgment he did. He was asked for no special finding, and no exception was consequently taken to that conclusion, except what was taken on other grounds, to some of the evidence tending to prove it, and this, as we have seen, was not well taken.
The mortgage was therefore properly admitted in evidence.
It was talked over (as the defendant testifies) among the trustees, in his presence, that the plaintiff “had just recovered a judgment against the society for nearly a thousand dollars” (evidently alluding to the judgment upon which plaintiff’s execution issued), “and that an execution would probably soon be taken out upon such judgment;” [the evidence shows it was issued on the 16th of September following] ; “ and all of the property of the society seized and levied upon by the sheriff, unless they took steps to forestall such action by giving mortgages upon all of such property.” And it was further shown that in pursuance of this expressed purpose, this mortgage, and two mortgages amounting to two thousand eight hundred dollars upon the real estate of the society, were executed on the 5th of August. And the plaintiff contends that this, per se, rendered the mortgage void. Doubtless it was very strong evidence tending to show fraud; and this point might well have been urged before the circuit judge on the trial. But this was, after all, only evidence of fraud; and we cannot, upon a case made, weigh evidence, or determine the facts.
But we may, nevertheless, upon this case made, be compelled to arrive at the same result as if the mortgage had been expressly found by the circuit judge to be fraudulent; for, if we can see from the case as made, that there was no evidence tending to support any particular point essential to sustain a judgment for the defendant, it is our duty to reverse the judgment..
The point was taken against the admission of the mortgage, that it was not proven that there was any indebtedness of said society to the defendant; because it was not shown that the society had ever employed him as its pastor, or agreed to pay him any salary.
This objection was not good against the introduction of the mortgage, because that might have been followed. up by the proof of the employment, and agreement of the society to pay the salary. But the question arises here, whether there was any such proof, either before or after the introduction of the mortgage. If not, there was no proof of the consideration for the mortgage, and the question then arises, whether the mortgage, or (which is the same thing) any judgment for the defendant, could be sustained. The defendant’s evidence tended to show that the mortgage was given to secure him for the amount due him on what he calls his salary. The statute (Comp. L., § 3071) provides: “Nothing in this act contained shall be construed to give such trustees the power to fix or ascertain the salary or compensation to be paid any minister or priest, curate, rector, or parson, but the same shall be ascertained and fixed by a majority of such society, entitled to vote at the elections of trustees.” Pastor is but another name for minister or parson. I have been unable to find any evidence tending to show that defendant’s salary was thus fixed, or that the society or its voters had ever agreed to pay him auy sum or compensation whatever. The defendant’s own testimony is all there is upon this question, and it is peculiar; he says “he was employed to act in that capacity ” [pastor] “ by Albert D. Badcock and Charles McQueen, and that for his services said Badcock and Mo-queen agreed to pay him a salary of seven hundred and twenty-five dollars per annum.” He does not say, nor does his language, taken together, fairly imply, that he was hired by them, or his salary fixed, or that they agreed to pay, as trustees j and as all the trustees together had no such power, and if they possessed it, it would require at least a majority to fix the salary, the inference is quite strong that these two individuals did not undertake to hire him, or fix his salary, in their capacity of trustees, with the intention of binding the society. It is by no means an unprecedented thing for individuals to hire and pay a salary to a minister without calling upon the church or congregation for aid.
Nor is there any evidence tending to show that the society ever ratified this agreement of Badcock and Charles McQueen to pay this or any salary or compensation. And it may be doubted whether there would be any such evk dence, if the notice of the meeting, and the transactions of the meeting alluded to on the first of August, had been properly in evidence; but, as already stated, this notice, and the proceedings of the meeting, were not properly in evi dence. And if it be said that it might be inferred, from the evidence of his having officiated as pastor without objection from the congregation, that they ought to pay him what his services were reasonably worth, it may be replied that this would not be so if Badcoek and McQueen had hired him on their own account, and not on that of the society; and that, at all events, there is no evidence of the reasonable value of his services, or whether they were worth any thing. No consideration for the mortgage is therefore shown. And as the mortgagee distinctly swears that it was made with the expressed design of hindering; Walrath from collecting his debt by execution, it must be considered a fraud against him, until shown to be otherwise by proof of such consideration. As no such evidence was given, the defendant failed to establish any claim to the property, and the judgment must be reversed, and a judgment entered in this court for the plaintiff in replevin for the recovery of the property, with his costs in both courts..
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Cooley, J.
In an action of trespass for assault and battery, brought in justice’s court, and resulting in a verdict for the plaintiff of five dollars, the defendant appealed to. the circuit court, where, by consent, the parties amended their pleadings. In amending the declaration, the plaintiff increased the ad damnum to a sum beyond the- jurisdiction of a justice; . but no objection was made to this, and a trial was had by jury upon an issue of fact, and a verdict rendered for the plaintiff of ten dollars. Thereupon the court rendered judgment for the plaintiff for the damages found, and also for full costs, against not only the defendant, but also against bis sureties on the appeal.
On error, several objections are made to this judgment. First, it is insisted that after an amendment had been made to the declaration, increasing the sum demanded to one beyond the jurisdiction of a justice, the suit in effect became a new suit in the circuit court, and must proceed as such thereafter, and could no longer be regarded as an appealed case. The consequence would be a discharge of the sureties on the appeal, and possibly a different result as to the award of costs. The defendant in error disputes this position, relying upon certain cases in other states which are supposed to justify an increase in the sum claimed after an appeal has been taken, without in any manner affecting the identity of the case in the circuit with that in which appeal was taken.
The first case referred to is Palmer v. Wylie, 19 Johns., 276, where under a statute which provided that the court of common pleas, after it had possessed itself of a cause by appeal from a justice, should “proceed and give judgment as the very right of the case shall appear, without regard to the previous trial had thereon,” the supreme court of New York held that the common pleas might render a judgment exceeding the justice’s jurisdiction. The case is not reasoned, the court simply remarking that the statute “dispenses with all matter of form, and every thing inconsistent with the mere justice of the case between the parties.” This case was followed in Jackson v. Covert, 5 Wend., 139, in an opinion equally concise, the court contenting itself with saying that “the plaintiff below, it is true, would not have recovered more than fifty dollars had the defendant submitted to the justice’s judgment; but when he appealed to the common pleas, that court was not limited in jurisdiction, and the plaintiffs were entitled to recover all the damages they could prove, if they were entitled to recover any thing.”
We do not find these cases applicable to our statute. We have no corresponding provision to that referred to in the case in Johnson, and which the court understood to authorize the common pleas to proceed in the case precisely as though it were a new one in that court. The ease of Dressler v. Davis, 12 Wis., 58, arises .under a statute more like that of New York than like onr own. In that case, after an appeal from a justice, the plaintiff so amended his declaration as to claim damages beyond the justice’s jurisdiction, and recovered verdict for the sum claimed. The statute provided that the action should be tried in the appellate court as cases originally brought there; and the court was of opinion that the New York cases were in point, and that the statute would permit any amendment and any recovery which might have been made or had in a case commenced in the appellate court. This ease, therefore, like the cases in New York, rests upon a peculiar provision of statute not adopted here. Our statute throughout treats the case in the appellate court as the same case which was tried before the justice, only brought up (where the appeal is general) for a new trial. Amendments to the pleadings, or the filing of new pleadings in the cause, are allowed “ as right and justice between the parties may require” (Comp. L., § 5458), but this has never been understood in this state as warranting the introduction of a new cause of action, or such a variation in the plaintiff’s claim as would have ousted the justice of jurisdiction if made in the court below. And we are referred to no other cases more nearly in point than those above mentioned.
The plaintiff in error, James Evers, was sole defendant in the court below, and he emulated with the plaintiff that “either party may amend the pleadings therein as they may desire,” and he made no objection to the amended declaration which claimed the increased damages, but pleaded to the merits, and after verdict against him, for the first time, in order to limit the recovery of costs, insisted that the case ceased to be a case on appeal when the amendment was made. These facts render the present case peculiar and exceptional, and we are of opinion that when the defendant pleaded to the amended declaration, which on its face purported to be amended in pursuance of his stipulation, as it was in fact, he precluded himself from insisting afterwards that it was not an amendment in the appeal case, but the institution of a new suit. In this ease, at least, where the recovery in the circuit court was not beyond the jurisdiction of the justice, and where there is no reason to suppose the parties intended any new suit, we think justice requires us to overrule the objection if ,the rules of law will admit of our doing so. And Ave think the previous rulings of this court will justify this course.
In Wells v. Scott, 4 Mich., 347, a plaintiff claimed in justice’s court a sum beyond its jurisdiction. The defendant took no objection on that ground, and the plaintiff recovered judgment. The defendant appealed to the circuit court, where a second trial on the merits was had, and the plaintiff again had judgment. On error to this court the objection for the first time was taken, that the justice had no jurisdiction of the case. The court held that the objection came too late, and that the party, by going to trial in the circuit court upon the merits, without raising any objection to prior proceedings, must be regarded as having vvaived any errors he might otherwise have taken advantage of. This case was approved and followed in Tower v. Lamb, 6 Mich., 362. In both cases there Avas a recovery beyond the jurisdiction of the justice, and the proceedings before the justice Avere void for Avant of jurisdiction. The defendants in each case treated them as valid, and appealed them to a higher court where the jurisdiction was ample, and where, consequently, it was competent to Avaive the defect which existed below. In this case there Avas no defect below, and if it is competent for a defendant on appeal to waive such a defect by a mere failure to bring it to the notice of the court, still more clearly must it be competent for him by his express assent to Avaiv^e that which only becomes a defect at all by relation back to the case as it stood before appeal taken. He has consented in an appellate court, to havrn the case put in this shape, and as the jurisdiction of that court is unlimited, his objection that the case is no longer the same is purely technical, and should not be allowed under the circumstances.
But the defendant, by his consent .to the amendment, could not bind the sureties on the appeal. They undertook by their recognizance to abide the result of the case ■which was appealed, and any radical change in, the case, made without their consent, would discharge them. If the court had possessed the power to' order or allow such an amendment irrespective of the stipulations of the parties, the sureties would have been bound by its action, because their obligation must be understood as contemplating a possible exercise of such power; but it could not be understood as making them responsible for such acts of their principal as are not contemplated by the statute, and such as could only bind him personally on the principle of estoppel. The undertaking of the sureties is strictisswii juris, and is not to be enlarged by a proceeding of this nature, probably had without their knowledge, and which would operate as a fraud upon them if it could bind them. The judgment as to them must be reversed, with costs of this court.
The remaining question relates to the costs which wrere awarded below. The statute (Comp. L., § 7388) provides that in certain actions, among which is that for assault and battery, the plaintiff shall recover no more costs than damages. The court awarded full costs, amounting to $238 16f though the recovery of damages was ten dollars only. We are of opinion that the section of the statute referred to has no application to a case tried on appeal. The statute relating to appeals provides that “In all cases heard and determined on appeal, the costs, or such part thereof as to the court shall seem just, may be awarded to either party, as the court may deem just and right between the parties; in view of the particular circumstances of each case.”— Comp. L., § 5459. We think this'means all the costs, and not merely such portion thereof as does not exceed the damages found. The policy of the law is to give the circuit courts a large discretion as to costs in cases of appeals, and one purpose had in view is the discouragement of vexations appeals. That purpose would be defeated, if in cases like the present, the defendant could remove the case from the justice’s court with a reasonable assurance that the litigation would be largely at the expense of the party he had wronged, and who, in seeking a remedy, had shown .no disposition to make it oppressive, but had sought the court of least jurisdiction and least expense, and been content with the small award made him there. It was not the plaintiff, but the defendant, whose litigation appears to have been found vexatious in this case, for the verdict was increased in the circuit court, and the jury by increasing it in effect expressed their own opinion that the appeal was without good reason. To deny the plaintiff costs in such a case, would be to visit him with a penalty which the reason of the law could not possibly apply to his case. We think the judgment as against the principal defendant below should be affirmed, with costs. It will be ordered accordingly.
There is nothing in the objection of the defendant in error, that the judgment as to the sureties should have been removed to this court by certiorari, instead of by writ of error. A joint judgment was taken against them and their principal, and the mode adopted to review it was the only one applicable to the case.
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Campbell, J.
Blair recovered a judgment below for damages in an action for an assault and battery, which is now brought up for review upon the charges of ‘the judge.
In examining such a case, we are not concerned with the correctness of the charge except in so far as it is complained of, and then only so far as it can be legitimately complained of by the plaintiff in error.
The court made certain charges of its own motion, granted certain requests of both parties, and refused others. The exceptions to the charges given by the court outside of the requests are somewhat general and indefinite; but as the only points urged by counsel are closely connected with specific requests, they can be disposed of without confusion.
The assault arose out of a visit from Blair to Dresser, and a conversation, beginning with some talk about trespassing cattle, led to some insulting remarks and finally to blows. The first blow, according to Dresser’s own version of the facts, came from him. Upon the other facts of aggravation on both sides there was conflicting testimony.
The principal questions discussed arise out of the charge of the court concerning the right to recover exemplary damages, as affected by the fault and provocation of the plaintiff below.
The charge complained of is that “ if the jury find that there was a reasonable excuse for the defendant, arising from the fault and provocation of the plaintiff, but not sufficient to entirely justify the act done by the defendant, the jury may in their discretion find no exemplary damages, but only nominal damages.”
No exception appears to be directly pointed at this sentence, which is only a part of the charge, and the court afterwards charged the jury, in response to a request of the defendant, in the precise language requested, which was the same used in the above sentence, except that it directed the jury that they could not in such a case find exemplary damages, or any thing but nominal damages. If there was any error in the first statement it was corrected by the second specifically, and no complaint can be permitted against a charge which is given as desired.
This charge deprived the plaintiff below, upon the supposed hypothesis, even of his actual damages, and certainly went far enough on any theory which defendant could suggest.
As the brief submitted is confined to this point, we need consider no other.
There is no error in this ruling that the plaintiff in error can complain of.
Graves, Ch. J., and Cooley, J., concurred.
Christiancy, J., did not sit in this case. | [
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Mallett, C.J.
We granted leave to determine whether the Court of Appeals erred in affirming summary disposition for the defendants on governmental immunity grounds. Plaintiffs decedent hanged himself on overhead bars in a police station holding cell that were exposed because wire mesh that had been placed over them to help prevent suicides had been tom away. This case presents the question whether the tom mesh constitutes a building defect within the meaning of the public building exception to the governmental tort liability act, MCL 691.1406; MSA 3.996(106). This Court has previously concluded that exposed overhead bars in a general holding cell were not a building defect, Jackson v Detroit, 449 Mich 420; 537 NW2d 151 (1995). This Court has also previously held that a claim could proceed under the public building exception where a cell at the Wayne County jail, specifically designated for individuals with mental conditions, was allegedly defective because it did not contain adequate safety measures, such as adequately padded walls. Lockaby v Wayne Co, 406 Mich 65; 276 NW2d 1 (1979).
The plaintiff argues that the city’s installation of mesh rendered these cells as cells designed to prevent suicide and that the tom mesh constituted a building defect in this particular suicide-resistant cell. I agree. Consequently, I would reverse that portion of the Court of Appeals decision upholding summary disposition for the defendants on governmental immunity grounds. Nevertheless, I would find that defendants were entitled to summary disposition on the underlying negligence claim. Because the plaintiff could not establish that the suicide was foreseeable, she could not establish that the defendants owed a duty to prevent the suicide. Consequently, I would affirm summary disposition for the defendants on this basis.
I. FACTS AND PROCEEDINGS
Decedent, James Johnson, was a city of Detroit employee. On the afternoon of December 29, 1991, a Detroit police sergeant, on his way to work at the third precinct, saw Johnson pass a portable electric generator through an opening in a fence surrounding the Detroit Department of Public Works yard. The sergeant, after returning from the precinct with assistance, followed tracks made by a cart Johnson had used to transport the generator. The officers arrested Johnson and took him to the third precinct station.
Officer Ralph Heatlie, the individual defendant in this case, processed Johnson before placing him in a holding cell in the felony cellblock used for temporary detention of felony prisoners awaiting arraignment. Because Johnson was cooperative, Heatlie rewarded him by placing him in a cell containing a toilet. He first took the standard precautions of removing Johnson’s hat, gloves, belt, wallet, lighter, and shoelaces. Tragically, however, Johnson managed to kill himself by tying one sleeve of his sweatshirt to an overhead horizontal bar in his cell and the other around his neck. Officer Heatlie discovered Johnson after hearing shouting and banging noises from the cellblock area, made by other prisoners in cells across from Johnson’s. It took Heatlie a “short period. Maybe a couple minutes” to return to the area because he had to secure a prisoner that he was working with at the time.
Efforts had been made at this precinct to prevent hangings by welding wire mesh approximately one and one-half inches below the overhead bars that formed the ceiling. However, in this particular cell, the mesh was tom away. While officials were apparently aware of the tom mesh, they had not yet repaired it. Precinct commander Leamon Wilson had requested repairs, on an emergency basis, in a memo to the Deputy Chief for Management Services dated September 17, 1991, more than one hundred days before Johnson’s death. Further, Officer Heatlie, on first becoming aware of the problem, decided to close the cell until repairs were made. However, because of the lengthy delay in repairing the mesh and because this was one of only five cells containing a toilet, Heatlie decided to renew use of the cell.
Plaintiff Barbara Johnson, the decedent’s wife, filed this action for wrongful death, and asserted the public building exception in order to avoid a governmental immunity defense. Defendants filed their motion for summary disposition at the close of discovery pursuant to MCR 2.116(C)(7), (8) and (10).
The trial court granted summary disposition for the defendants on governmental immunity grounds. MCR 2.116(C)(7). The Court of Appeals affirmed. We granted leave to consider whether the tom wire mesh constitutes a building defect within the meaning of MCL 691.1406; MSA 3.996(106).
n. LAW
A STANDARD OP REVIEW
In reviewing a trial court’s grant of summary disposition on governmental immunity grounds under MCR 2.116(C)(7), we must review the complaint to deter mine whether the plaintiff has pleaded facts justifying application of an exception to governmental immunity. Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992); Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). While review under MCR 2.116(C)(8) allows only consideration of the pleadings, our review under MCR 2.116(C)(7) and (10) also must include consideration of all documentary evidence submitted by the parties. Patterson v Kleiman, 447 Mich 429; 526 NW2d 879 (1994).
Under MCR 2.116(C)(8), we accept all well-pleaded factual allegations as true and construe them in a light most favorable to the nonmoving party. Wade, supra; Skinner v Square D Co, 445 Mich 153, 161-162; 516 NW2d 475 (1994). MCR 2.116(C)(10) motions are properly granted when there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Skinner, supra. Under MCR 2.116(C)(10), the nonmovant has the burden of providing evidence to support the conclusion that there is a genuine issue of material fact. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 113-115; 469 NW2d 284 (1991). See also MCR 2.116(G)(4). When reviewing summary disposition under MCR 2.116(C)(7), the contents of the complaint are accepted as true unless specifically contradicted by affidavits or other documentation submitted by the moving party. Sewell v Southfield Public Schools, 456 Mich 670, 674; 576 NW2d 153 (1998).
With these standards as a guide, I turn to a discussion of governmental immunity and the public building exception to governmental immunity, and their applicability to this case.
B. GOVERNMENTAL IMMUNITY
Governmental agencies, like the city of Detroit and its agents, generally are immune from tort liability for actions taken while performing governmental functions. MCL 691.1407(1); MSA 3.996(107)(1).
The act’s broad grant of immunity is subject to five narrowly drawn statutory exceptions, including the public building exception. Since Ross v Consumers Power Co, supra, the defining case concerning interpretation of the governmental tort liability act, this Court has broadly interpreted immunity under the act and has narrowly construed the exceptions to immunity. With this basic principle of interpretation in mind, I once again explore the scope of the public building exception.
C. PUBLIC BUILDING EXCEPTION
The public building exception allows suits against governmental agencies where a dangerous or defective condition of the building itself is alleged to have caused the injuries and where certain other criteria are met. The act states:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. [MCL 691.1406; MSA 3.996(106).]
While the language of the exception is fairly straightforward, it has been difficult to state a single test that controls its application, especially in cases where the adequacy of supervision or the injured party’s contributing causation is involved. Our cases interpreting the public building exception, however, do reveal certain general principles that are helpful in determining whether and under what circumstances the exception applies.
One of the overarching principles, repeatedly cited by this Court in our decisions discussing the public building exception since Ross, is the maxim that in enacting the building exception, the Legislature intended to impose a duty to maintain the safety of public buildings, not necessarily safety in public buildings. Reardon v Dep’t of Mental Health, 430 Mich 398, 415; 424 NW2d 248 (1988). Thus, the alleged defect must be a defect of the building itself and not merely a transient condition, such as accumulated grease or oil on a hallway floor, Wade v Dep’t of Corrections, supra, or inadequate supervision in an otherwise adequate facility, Schafer v Dep’t of Mental Health, 430 Mich 398, 417; 424 NW2d 248 (1988); Hickey v Michigan State Univ (On Resubmission), 439 Mich 408, 424; 487 NW2d 106 (1992).
A public building may be defective because of improper maintenance or repair, faulty construction, absence of safety devices, or improper design. Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979). As recently noted in de Sanchez v Dep’t of Mental Health, 455 Mich 83; 565 NW2d 358 (1997), this Court has had some difficulty discerning when a design defect may actually constitute a defect in a public building sufficient to invoke the public building exception.
While a design that in some way impedes the ability to supervise users of the building might in some cases constitute a design defect, the design must directly contribute to the injuries. Hickey, supra at 424. In other words, “where the essence of a tort claim is negligent supervision, a plaintiff cannot transform the claim into a building-defect claim merely because a superior building design would have improved the ability to supervise.” de Sanchez, supra at 95.
Although language in some of this Court’s previous decisions, such as Schafer and Hickey, supra, may have appeared to suggest that where adequate supervision could have prevented the injuries, the building exception was inapplicable, this Court made clear in de Sanchez that where the essence of a tort claim is a defective building, summary disposition may not be granted merely by claiming that proper supervision would have prevented the injuries. Instead, as long as a physical defect in the building itself coincides to cause the injury, the public building exception might apply even if negligent supervision is also involved.
Another important principle, first discussed in Bush, supra, is that courts must examine whether the building is defective in light of the uses or activities for which it is specifically assigned. Bush involved a high school student who was seriously burned by an explosion during a chemistry class that was being temporarily held, because of overcrowding, in a general classroom lacking laboratory safety equipment. This Court held that the trier of fact must determine whether the room was defective when used as a chemistry room, and if so, whether the defect was a cause of the plaintiffs injuries. Regarding the importance of examining the intended use, this Court stated:
[T]he lack of certain safety devices did not render the classroom defective per se; it is ordinarily unnecessary to install laboratory safety equipment in classrooms. In determining whether a place is safe, one must consider the use or purpose it serves. A building may be safe for one use or purpose, but not for another. A school is not a school because it is called one, but because it is used and functions as one. If a hospital is converted into a prison, the building must be maintained as a safe prison, not as a safe hospital. The room in which [the plaintiff] was injured had by use become a physical science room, and therefore had to meet the standards of a physical science room although it had once been a mathematics room. [Bush, swpra at 732.]
The principle of intended use also controlled in Lockaby, supra. That case, like this one, involved an alleged defect resulting in injuries to an individual in a holding cell. In Lockaby, the injured individual was known to have a mental condition and was placed in a cell specifically designated for such individuals. He suffered an injury to his spinal cord after striking his head against the cell wall. His complaint alleged, among other things, that a lack of adequately padded walls in the cell constituted a defect. Citing Bush, this Court held that the lack of adequately padded walls might be a defect in a cell designated to hold individuals with mental conditions. Consequently, we held that the plaintiff had pleaded a cause of action so as to avoid governmental immunity.
Conversely, in other prison suicide cases, where the cell was intended for temporary detention or for holding a general population and was not specifically equipped to prevent suicides, this Court has held that otherwise benign installations used by the arrestee to hang himself were not defects. Hickey and Jackson, supra. In Hickey, an intoxicated individual hanged himself from the bolts securing a heating unit in a temporary detention cell at the Michigan State University Department of Public Safety. Explaining that the intended use principle announced in Bush controlled, this Court stated:
Msu’s holding cell was specifically intended and assigned for temporary detention. Even the plaintiff did not argue that the cell was used for any purpose except the temporary lockup of arrestees. We must, therefore, determine if this cell, with the installation of the heating unit, specifically used and assigned for temporary detention, was dangerous or defective. We hold that it was not. [Hickey at 425-426.]
After discussing the impossibility of making a jail or holding cell suicide-proof, we further explained:
There would seem to be no limits on the possibility of suicide in an ordinary lock-up cell, particularly one that was only being used for temporary custody, even the temporary custody of an inebriated individual. To suggest that any physical feature of a jail cell, otherwise benign, that can conceivably become a part of a plan of one who is desperately driven to self destruction can become a “dangerous or defective condition” under the public building exception statute, simply crosses the outer limits of any reasonable reading of the intent of that statute when considered in the context of its history, purpose, and wording. [Id. at 426.]
Likewise, this Court in Jackson, supra, found that a cell with exposed overhead bars was not defective for the specific use and purpose for which it was assigned, that of a general holding cell. As in this case, the decedent in Jackson hanged himself from exposed overhead bars. Even though Mr. Jackson, unlike the decedent in Hickey, was known to be suicidal, that fact did not transform the intended use of the cell from that of a general holding cell to that of a cell designated for suicidal prisoners. The designated use as a general cell controlled.
In summary, a defect will be found only where the alleged problem relates to safety of a public budding, not just to safety in a public building. Thus the alleged defect must be one of the building itself. While an improper design may constitute a defect, no defect will be found if the essence of the tort involves inadequate supervision. Further, courts must examine the intended use and the specific designated purpose of the building or room in order to determine whether a defect exists. Thus, while overhead bars in a gen eral holding cell are not a defect, Jackson, supra, exposed overhead bars might constitute a defect in a cell specifically designed or equipped to prevent suicide by the installation of wire mesh.
HI. ANALYSIS
A. BUILDING DEFECT
The determinative question in this case is whether the installation of mesh over the overhead crossbars, in order to help deter suicides, renders the cell a suicide-deterrent cell, specifically assigned to deter hangings from the overhead crossbars. Because I think that these cells, with the installed mesh, were intended to function as suicide-deterrent cells, I would hold that the public building exception applies. The plaintiff has presented evidence sufficient to establish that this suicide-deterrent cell was defective in light of its intended purpose because the mesh designed to prevent access to the overhead bars was tom away. The plaintiff also has presented evidence that the defendants had notice and a reasonable time to repair the defect and did nothing. Consequently, the pleadings and supporting documentary evidence are sufficient to allow the plaintiffs claim to go forward.
While the cell involved here is typically used to hold a general population and functions as a general holding cell, once the mesh was installed to deter suicides, it functioned in fact as a suicide-deterrent cell. As we noted in Bush, “[i]f a hospital is converted into a prison, the building must be maintained as a safe prison, not as a safe hospital.” Id. at 732. Similarly, once this cell was converted to a suicide-deterrent cell, the city was obligated to maintain it as a safe sui cide-deterrent cell, in that it had a duty to maintain the specific safety feature designed to accomplish this purpose in good repair.
As a suicide-deterrent cell, the analysis this Court applied in Lockaby controls. A defect in a feature designed to protect the inmate or arrestee from his own devices comes within the building exception if the plaintiff can show that the defect was a contributing cause of the injuries. As we noted in de Sanchez, supra, the fact that other causes also might be involved, such as inadequate supervision or the arrestee’s own actions toward self-destruction, does not necessarily preclude application of the public building exception.
B. NEGLIGENCE
i
I note that merely because a plaintiff is able to plead a claim to avoid governmental immunity, in this case on the basis of the public building exception, does not necessarily mean that the defendants are liable. Our conclusion that the public building exception applies to plaintiffs claim merely establishes that the city undertook a duty to maintain this suicide-deterrent cell in good repair. The fact that the city has this general duty does not necessarily establish a duty owed to this particular plaintiff in the facts of this case. Establishing a building-defect claim circumventing governmental immunity does not negate traditional tort law principles. Perhaps a statement of the obvious, plaintiff still must demonstrate the elements of her negligence claim.
2
In this case, the defendants filed their motion for summary disposition not only on the ground of governmental immunity, but also on the ground that there was no genuine issue of material fact. MCR 2.116(C)(10). The trial court’s order granting defendants’ motion for summary disposition cited not only MCR 2.116(C)(7), the governmental immunity provision, but also cited MCR 2.116(C)(10). Although the Court of Appeals did not reach this alternative ground, except with respect to the gross negligence claim against defendant Heatlie, I would hold that summary disposition under MCR 2.116(C)(10) was proper because there was no genuine issue of material fact on the underlying negligence claim.
In her negligence claim, the plaintiff has to establish that the defendant had a duty to this particular decedent, that it breached that duty by placing the decedent in the defective cell, and that the breach was a proximate and factual cause of the decedent’s death. A defendant does not owe a duty to an unforeseeable plaintiff. In this case, plaintiff failed to present a genuine issue of material fact establishing the existence of a duty owed to plaintiff’s decedent because defendants were actually unaware, and it was not reasonably foreseeable, that the decedent was suicidal before placing him in the defective cell. See Hickey, supra at 438-439.
In support of their motion for summary disposition, which was brought after the close of extensive discovery, defendants city of Detroit and Officer Heatlie offered the deposition testimony of Officers Heatlie and Wylie. Both officers testified that the decedent gave no indication that he was suicidal. Conversely, the plaintiff presented nothing to refute this evidence and did not offer any evidence that the suicide was reasonably foreseeable.
Where the events leading to injury are not foreseeable, there is no duty, and summary disposition is appropriate. Groncki v Detroit Edison Co, 453 Mich 644, 657; 557 NW2d 289 (1996). In this case, the defendants had no notice that the decedent might attempt suicide, and therefore they cannot be held responsible for failing to prevent the decedent’s death. This death was not reasonably foreseeable. Tragic as it was, defendants cannot be held responsible for the unforeseen suicide of the plaintiffs decedent. Consequently, I would uphold the trial court’s granting of summary disposition to the defendants under MCR 2.116(C)(8).
IV. CONCLUSION
While the plaintiff has established evidence sufficient to allow her claim to go forward under the public building exception to governmental immunity, the underlying negligence claim fails because it was not reasonably foreseeable that the decedent would attempt suicide.
The tom mesh rendered this cell, which was intended to function in fact as a suicide-deterrent cell, defective within the meaning of the public building exception. The evidence also supports a conclusion that the city had notice of the tom mesh and had reasonable time in which to repair it.
Although summary disposition was improper on the ground of governmental immunity, it is proper on the underlying negligence claim. The uncontroverted evidence at the close of discovery and as presented at the summary disposition stage showed that defendants could not have suspected that the decedent was suicidal. Consequently, there was no duty to prevent this unforeseeable death.
For these reasons, I would reverse that portion of the Court of Appeals decision upholding summary disposition for the defendants on the ground of governmental immunity and would affirm summary disposition on the underlying negligence claim.
According to documentary evidence submitted by the parties, the other four cells containing a toilet were already occupied.
MCR 2.116(C)(7) allows summary disposition if
[t]he claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.
MCR 2.116(C)(8) permits summary disposition if “[t]he opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(10) permits summary disposition if “[ejxcept as to the amount of damages, there is no genuine issue as to any material fact . . . .”
Unpublished memorandum opinion, issued March 5, 1996 (Docket No. 172383).
454 Mich 907 (1997).
Specifically, the governmental tort liability act provides that
all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. [MCL 691.1407(1); MSA 3.996(107)(1).]
The other four exceptions are (1) the highway exception, MCL 691.1402; MSA 3.996(102), (2) the negligent use of a government-owned motor vehicle exception, MCL 691.1405; MSA 3.996(105), (3) the proprietary function exception, MCL 691.1413; MSA 3.996(113), and (4) the government hospital exception, MCL 691.1407(4)(b); MSA 3.996(107)(4)(b).
This Court has previously noted that to apply the public building exception, a plaintiff must prove the following: (1) that a governmental agency is involved, (2) that the public building in question is open to the public, (3) that a dangerous or defective condition of the public building itself exists, (4) that the governmental agency had actual or constructive notice of the alleged defect, and (5) that the governmental agency failed to remedy the alleged defect after a reasonable period of time. Hickey v Michigan State Univ (On Resubmission), 439 Mich 408, 421; 487 NW2d 106 (1992). Most of our public building exception decisions, like this case, involve interpretation of the third prong of this five-part test.
The dissent insists that the character of the cell involved here is identical to that at issue in Jackson, supra, i.e., it functions as a general holding cell and not as a suicide-deterrent cell. The dissent’s analysis suggests that the intended use of these general cells, all equipped to be suicide deterrent, changes with each detainee ushered into them, depending upon that detainee’s demonstrated proclivity toward suicide. This illogical result is not required by this Court’s opinion in Bush, as suggested by the dissent. Bush held that where the defendant knew that a general classroom would be used to conduct a chemistry class, it might be defective if it was not equipped with appropriate safeguards necessary for chemistry experiments. Similarly, in this case, where the defendants knew that the general holding cells would be used to hold a general detainee population, including some suicidal individuals, when it was, in fact, used to hold a suicidal individual and did not contain appropriate safeguards, it was defective. Once again, all the cells were, in fact, used and equipped to hold a general detainee population and a population with a known risk of suicide. Their intended use was to function as general suicide-deterrent cells.
Consequently, the defendants’ focus on the decedent’s actions as the real cause of his death misses the mark. While I recognize that the language in Hickey concerning the impossibility of making a suicide-proof cell can be read to suggest that an individual’s own efforts at self-destruction preclude a finding that an otherwise benign feature might be a defect, this is not necessarily determinative. If a cell is designed or equipped to be suicide deterrent, lack of compliance with reasonable safety measures could indeed constitute a defect of the building when viewed in light of its intended use. For example, the question in Bush was not whether the classroom could be made accident-proof, but whether lack of reasonable safety devices contributed to the injuries. Certainly creative and unforeseen implements of self-destruction cannot always be eliminated. However, when a cell is intended to function as a suicide-deterrent cell, a defect may exist where reasonable steps are not taken to maintain its safety features in good repair. | [
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Graves, J.
The controversy in this case originated in conflicting claims to certain timber cut on the south half of the south east quarter of section 19, and the south west quarter of section 20, in township 4 north, of range 13 west, in this state. The defendant in error recovered in replevin that portion of it consisting of pine, and the plaintiffs in error complain of rulings at the trial.
The bill of exceptions indicates numerous questions, but a portion seem to have been abandoned, and some others are not regularly raised, or are so clearly untenable as not to justify discussion. I gather from the record and the brief of plaintiffs in error that there are but three or four points which are worthy of examination.
The defendant in error, Robert M. Moore, being owner of the land on which the timber was afterwards ent, conveyed it to one William Bradley by warranty deed dated, November 19th, 1866, but acknowledged on tbe 21st of the same month.- Bradley by warranty deed dated October 12th, 1867, conveyed to Lansing Kinnison, and the latter by warranty deed bearing date the 4th day of January, 1868, conveyed an undivided half to Michael Hinton. Neither of these deeds contained any exception or reservation- of timber, and on their face they purported to convey the land and standing timber as well. If taken as they read they served to invest Kinnison and Hinton with the title to the land and timber as tenants in common having equal interests. Kinnison and Hinton then united in an instrument of conveyance to one Mores S. Bowen, bearing date. September 22d, 1868, and which purported to be, and was in form, a warranty deed of an undivided half of the standing pine and whitewood.
The result of these dispositions, as indicated by the instruments, was that Kinnison and Hinton were equal tenants in common of the land, blit that, as to the standing pine and whitewood, Kinnison, Hinton and Bowen were owners in common in the proportion of an undivided half in the latter, and an undivided quarter in each of the two former. The timber seems to have been cut by these parties or by their authority, and the plaintiffs in error claim as purchasers from and under them, and so trace their title back to the deed from defendant in error to Bradley in 1866.
There is no dispute about these respective conveyances of the land, aside from the interest in the timber. It appears, however, that on the day of the acknowledgment of the deed from the defendant in error to Bradley, that is the 21st of November, 1866, the latter gave back to Moore, the defendant in error, an instrument in writing which, besides covering these and other parcels of land, was of the tenor following: “Whereas I have this day purchased of Bobert M. Moore of Allegan county, the following descriptions of land, to wit:” [The description of these and other lands then follow.] “This is to certify that all the sawing pine and whitewood timber that is now upon the above described tracts of land belongs to the said Eobert M. Moore, who is sole owner thereof; and that the said Eobert M. Moore has by agreement thirty months from this date to remove the same. Dated Allegan, Nov. 21st, 1866.
William Bradley.”
The court below held that this instrument was of force to clothe defendant in error with the right to the timber as against Bradley and all others claiming from him with notice, subject to the qualification as to time. The plaintiffs in error maintain that it was of no force except as a bare revocable license to remove the timber, and that the subsequent unqualified grant from Bradley to Kinnison actually revoked it.
There was nothing to raise an inference that the deed from Moore to Bradley was delivered later or earlier than the time of its acknowledgment, and we must therefore assume that it was delivered at that time. — Blanchard v. Tyler, 12 Mich., 339 ; Dresel v. Jordan, 104 Mass., 407, 417. And as this paper given back by Bradley to Moore was of that date, referred to the deed as given on that day, was connected with the deed in sense, and as there was no evidence to separate the taking effect of the two instruments, they should be regarded as parts of a single transaction.— Kittle v. VanDyck, 1 Sand. Ch. R., 76 ; Cunningham v. Knight, 1 Barb. S. C., 899. And to ascertain the sense and meaning of the parties they should be read and construed together. — Bronson v. Green, Walk. Ch. R., 56; Norris v. Showerman, ib., 206; Norris v. Hill, 1 Mich., 202; Dudgeon v. Haggart, 17 Mich., 275; Rawson v. Lampman, 1 Seld., 456 ; Clap v. Draper, 4 Mass., 266 ; Rogers v. Smith, 47 N. Y., 324; Stocking v. Fairchild, 5 Pick., 181; Makepeace v. Harvard College, 10 Pick., 298; Carpenter v. Snelling, 97 Mass., 452; Hills v. Miller, 3 Paige, 254; Cow. & H. Notes, 1420.
It is not a matter of any vital importance that the parties may not have looked upon the disposition they were engaged in making about the timber, as a distinct and independent operation, and did not employ precise or technical language. The material inquiry is, what construction is due to what they did, and what view ought the law to take of their actual arrangement. We must not forget the positions and relations the parties occupied, nor the nature of the business they were about, nor the character of the interests they respectively wished to secure. Bradley was to have the land in fee simple. His interest was to be something general and permanent. Moore was to have the sawing pine and whitewood so far as he should get it off in thirty months. His interest was to be exceptional and temporary. It was not strange that the parties were much less formal and particular in that part of the transaction which concerned the partial and temporary right than in that which related to the general and durable interest. But is'there any doubt as to -what was intended? The transaction was really single. When Moore conveyed to Bradley it was understood as part and parcel of the arrangement his conveyance was given to carry out, that this timber should then belong to Moore, but that his right to enter and take it should only continue for thirty months.
This idea is unequivocally expressed in the writing given at the same time, and intended to carry out one branch of the identical arrangement of which another branch was to be carried out by the deed. Manifestly something more was designed than a bare permission to enter in order to take timber. It was expressly declared that Moore should have property in the timber at the very time. He was then constituted “ sole owner,” or secured in the “ sole ownership.” The parties cautiously attended to this consideration as their first and leading idea in respect to this feature of the' transaction. It appears to have been first in their minds and as something distinct from a right to enter, and is provided for in explicit terms. A right to enter is expressed in a subsequent clause, and is mentioned as a matter of “ agreement,” and as if it were a matter of second thought. The adoption of these separate provisions respecting ownership and the right of entry, together with the particular circumstances, most clearly denotes that it was in the minds of the parties that Moore should hold an interest, as well as a right of entry. The -written understanding that he should “ own ” the timber was as much a part of the principal transaction as the grant of the land, and it found its consideration in that transaction, and it ought to be allowed to operate as was intended, unless prevented by some rule of law, and I am aware of no such rule. Whether the technical effect of the arrangement was to preserve to Moore the conditional right, or to transfer it to him, is, in my judgment, a thing of no practical importance. That it was one or the other is unquestionable, and my brethren are inclined to regard it as substantially a transfer or release. — Goodtitle ex dem. Edwards v. Bailey, Cowp., 597; Wickham v. Hawker, 7 M. & W., 63 ; Rowbotham v. Wilson, 8 H. of L. Cases, 348. It served to secure to Moore as against Bradley, and all others having notice,' the existing ownership of such of the timber as he should take off in thirty months. The arrangement was a lawful one to fix the right in Moore, and it is not very important to find a term which will precisely define it.
The point suggested in the’ brief, that the writing only applied to severed timber, is not well taken. If any such limitation had been intended, it is reasonable to suppose that some expression would have been used to indicate it. But no such expression appears. On the contrary, the language is broad and general, and well adapted to denote standing timber. Besides, there is no evidence that any part of the sawing pine and whitewood was severed, and yet the writing called for “all” the sawing pine and whitewood then upon the land. If we defer to probabilities it is very improbable that the whole had been severed; and unless it had been, the word “all” must have been used, according to the construction contended for, to denote a part, and not all. This is hardly reasonable.
The next question is whether there was any evidence for the jury that Kinnison, when he bought of Bradley, had notice of Moore’s right to the timber. Upon this point the case appears to me to be clear. That there was evidence conducing to show notice to Kinnison when he got his deed and before he made any payment, seems unquestionable. The evidence relating to notice, it is true, was not harmonious, and was open to different interpretations. But it was for the jury to find how the fact was. The witness Voorhoost, who acted for Bradley in selling to Kinnison, testified that he delivered the deed in November, 1867; that he conversed with Kinnison about the timber; that he told him Moore had reserved a strip of pine; that Kinnison asked him if he knew it was on the parcel he was buying, and that he, Voorhoost, replied that he could not tell, but if there was pine on it it belonged to Robert M. Moore; that Kinnison then inquired how he could find out if Moore had pine on that land; that it was then agreed that he (Voorhoost) should write to Moore. It was further shown in evidence that Voorhoost did write to Moore and inquire as to the pine on this land, and request an answer, and that Moore, on account of some delay in getting the letter, omitted to make any reply. In a subsequent part of his .examination, Voorhoost, by way of explanation, testified that it was his impression that he informed Kinnison that Robert M. Moore had reserved pine on the land sold to Bradley, and if the pine was on this land it belonged to Robert M. Moore.
Horace D. Moore testified to a conversation in December, 1867, with Kinnison aud Hinton in relation to Robert M. Moore’s claim to the timber. It seems that this witness had been negotiating with Kinnison and Hinton for logs from these lands, and he stated that he asked Kinnison' why he did not tell him about the reservation of the timber, as it would have- ended their talk about the logs; that Hinton replied that that would make no difference, as they had got a deed of the land; that Kinnison then remarked: “Mr. Voorhoost told ns that the timber was reserved, but that made no difference; we have got the deed of the land, and got it recorded first.” Kinnison also testified on this subject at considerable length. His evidence differs in several particulars from that before mentioned, but it tends to show that when he bought he had notice that Moore claimed pine on some of the lands in the tract sold to Bradley, and that he took his deed subject to an open question as to whether the pine claimed by Moore was or was not.on the land he was buying, and that it was to be subsequently ascertained from Moore, through correspondence opened by Voorhoost with Moore, how this was. Whether this evidence was such as should, in our opinion, have satisfied the jury, is wholly immaterial. It was sufficient to require their judgment, and it was very fairly submitted to them. I think no error was committed in this part of the case. No point is made in the brief of plaintiffs in error upon the proof of notice to other parties.
•The assignment of error founded upon the supposed rejection of a question to Horace D. Moore is unsupported by the record. No such question appears to have been put to that witness. A similar question was put to another witness and rejected, but no error is assigned on this ruling.
The remaining objection to be noticed is that the court erred in charging the jury that the detention of the logs was not disputed. For the point is reduced to this by the assignment of error. Now what is the meaning of this word “detention” in reference to replevin? In Clements v. Flight, 16 M. & W., 42, which was an action of detinue, the word “detain,” as used in that form of action, was held to mean that the defendant withheld the goods and prevented the plaintiff from having the possession of them. Nothing more, I am persuaded, would be needed to show a detention to satisfy our replevin laws.
What was the case here ? William E. Sawyer, a witness for the plaintiffs in error, testified in their behalf as follows : “ I sold the logs in question here, that were replev ied, to O. R. Johnson and Francis B. Stockbridge. I sold them for Kinnison, Hinton and Bowen. I made the bargain. Talked with O. R. Johnson and Francis B. Stock-bridge at different times. I was authorized by the parties I have mentioned to make the sale. They requested me to make a sale of the logs, and to have an oversight in regal'd to them.”
The defendant in error testified as follows: “ I had a conversation with Mr. Stockbridge before this suit was brought, in regard to these logs, at his store, and with Mr. Johnson, on the road going towards Diamond Springs. Johnson spoke to me about these logs, and told me I had better go and replevy them, for he said he would not give them up unless I replevied them. He said they had made a trade with Sawyer. I had notified Mr. Stockbridge previous to this about owning the timber, and he bought it.”
The record contains other matters importing that the plaintiffs in error asserted a right of property and of possession adverse to the defendant in error and inconsistent with his claim, and the record discloses nothing different. Indeed the case was tried on both sides upon the theory that the plaintiffs in error insisted upon their title and right of possession as valid and exclusive, and that they were entitled to a return, or judgment for the full value. In point of fact they actually recovered for the whitewood which was involved in the same controversy. In view of the undisputed facts, and considering the course of the trial, there was no room for saying that the plaintiffs in error did not withhold the logs and prevent the defendant in error from having the possession of them, and it was eminently proper for the court to so inform the jury and to that extent simplify their investigation.
This disposes of every material point raised by the record and noticed in the brief of plaintiffs in error, and as no error is shown the judgment should be affirmed, with costs.
The other Justices concurred. | [
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Cavanagh, J.
The issue presented is whether the American Federation of State, County and Municipal Employees Council 25 and Local 1416 timely filed suit against the board of education of the school district of the city of Highland Park for breach of a collective bargaining agreement between the two parties. We find that suit was timely filed, thus, we would affirm the decision of the Court of Appeals.
i
On May 2, 1984, the board posted notices regarding two openings for custodian positions. Union members Alvin Casey and Larry Anderson applied for the positions. Despite being the two most senior bargaining unit applicants, the board decided to hire two persons who were not employed by the district. Moreover, the two men who were hired were related by blood or by marriage to members of the school board.
On June 30, 1985, the board laid off union members holding the positions of bus driver and security guard, while also denying them certain benefits such as vacation pay, holiday pay, and “bumping rights.”
At all pertinent times, the union and the board were parties to a collectively bargained agreement governing the terms and conditions of certain bargaining unit employees, including custodians, building safety officers, bus drivers, and security guards. The parties’ collective bargaining agreement included a grievance procedure culminating in nonbinding arbitration as a method for resolving disputes between the parties.
The provision of the collective bargaining agreement in question states in relevant part:
8-Grievance Procedure
It is the intent of the parties to this Agreement that the grievance procedure set forth herein shall serve as a means for a peaceful settlement of disputes that may arise between them as to the application and interpretation of this Agreement and disciplinary action or other conditions of employment. Further, it shall serve to settle complaints by a bargaining unit employee, or by the Union in its own behalf.
(a) A grievance is a complaint by a bargaining unit employee, or by the Union in its own behalf ....
* * *
(d) All grievances shall be handled by the following procedures:
Any maintenance and operational employee who feels his rights and privileges have been violated shall have the right to Union representation in presenting his grievance in the following order:
Step 1 To the Maintenance Shop Foreman ....
Step 2 To the Director of Maintenance and Operations
Step 3 To the Assistant Superintendent ....
Step 4 The Union may appeal the decision of the Superintendent ... to the Board of Education ....
* * :|=
(g) Arbitration — within ten (10) school days after delivery of the Board’s decision, a grievance may be appealed to advisory arbitration by the Union. . . . The arbitrator’s decision shall be advisory only and shall not be binding upon any party except in matters involving wages, discharge or suspension.
Pursuant to the collective bargaining agreement, the union filed grievances and ultimately submitted the matters to arbitration. The arbitrator issued an award in favor of the union; however, by the terms of the collective bargaining agreement, the arbitration was nonbinding, and defendant refused to accept the arbitrator’s award.
On April 15, 1991, plaintiffs instituted the present cause of action in circuit court, alleging a violation of the collective bargaining agreement. Defendant moved for summary disposition, stating that the stat ute of limitations precluded the complaint because the suit was filed more than six years after the breaches of contract were allegedly committed.
The circuit court held in favor of the board and entered summary disposition against the union. It stated that the grievances were filed in July 1984 and February 1985, respectively. The court held that the statutory period of limitations for the two claims expired in July 1990 and February 1991. Therefore, the suit that was filed in April 1991 was time barred.
The union appealed in the Court of Appeals, which reversed. In a two-to-one decision by Judge Marilyn Kelly, the Court held that the nonbinding arbitration provision was mandatory; therefore, the union was required to exhaust its contractual remedies before filing suit. Under equitable tolling principles, because the union filed suit within six years of the arbitrator’s decision, the suit was timely. 214 Mich App 182; 542 NW2d 333 (1995).
The dissent, by Judge Clifford Taylor, held that while the grievance procedure was mandatory, the nonbinding arbitration was permissive. Therefore, the union did not have to exhaust its contractual remedies before filing suit. The dissent held that the union should have filed suit at the time the contract was breached; thus, the complaint by the union against the board was time barred, and the principles of equitable tolling should not apply. Id. at 191-194.
n
The issue presented is one of first impression. In fact, to our knowledge, there is no case in the country dealing with precisely the same issue. This is so because the parties have negotiated a unique collec tive bargaining agreement, providing a mandatory grievance procedure that ends with nonbinding arbitration in all matters, except those dealing with wages, discharge, or suspension. To understand why this combination is unique, we must first examine the terms used to describe the methods of dispute resolution between parties.
The grievance procedure is the process by which the parties have chosen to settle their disputes. Typical grievance procedures provide a multistep process of resolution and appeal. The grievance procedure (which we will refer to as the multistep process of appeals not including arbitration) and arbitration may be mandatory or they may be permissive. If the procedure is mandatory, the aggrieved party may be forced to complete the grievance procedure before bringing suit in court. If the procedure is not mandatory, the aggrieved party may choose to complete the grievance procedure first, but is not required to do so, before filing suit.
The grievance procedure and arbitration can also be either binding or nonbinding (sometimes referred to as advisory). This simply means that, if binding, the parties must adhere to the decision of the arbitrator or the person of highest appellate authority under the grievance process. If nonbinding, the parties are not bound by the decision of the final appellate authority or arbitrator, but they may mutually agree to abide by the decision if they so choose.
Most collective bargaining agreements provide for some sort of grievance procedure (mandatory or permissive) and binding arbitration. Over the past two decades, the courts have spent most of their time determining whether the terms of a particular grievance procedure are mandatory or permissive. As will be explained in more detail below, as a general rule, most courts have held that grievance procedures set out by the parties are mandatory. In those cases, almost all the procedures ended in binding arbitration. In fact, as we noted in Breish v Ring Screw Works, 397 Mich 586, 594; 248 NW2d 526 (1976), at that time, approximately ninety-six percent of contracts had provisions that resulted in final and binding arbitration as the result of the grievance procedure. Our situation today is unique because we have a rare combination: mandatory grievance procedures culminating in nonbinding arbitration.
Having stated this general background, it is important to understand the underlying arguments of the parties, and those arguments that the parties are not making. The union asserts that regardless of whether the final step of a grievance procedure is nonbinding, the entire process of going through the grievance procedure and arbitration is mandatory under the terms of the contract. Therefore, because the grievance procedure and arbitration are mandatory, the statute of limitations should be tolled until the completion of both steps.
The board, on the other hand, argues that regardless of whether the grievance procedure and arbitration are mandatory under the contract, if they end in a nonbinding result, it would be futile for the parties to exhaust the entire procedure before filing suit.
Having stated the positions of both sides, we note that, contrary to the position taken by both the majority and dissent in the Court of Appeals, the issue is not whether the arbitration provision was mandatory. Rather, regardless of whether the grievance procedure or arbitration is mandatory, if the process ends with something nonbinding, should the statute of limitations be tolled?
As this opinion will examine in the next section, there is a strong body of case law that favors exhaustion of grievance procedures before filing suit. Equally persuasive is a body of case law suggesting that if an agreement cannot provide a binding result, the aggrieved party may file suit before exhausting contractual remedies. Our task today is to resolve the apparent conflict that occurs when the two areas of law are merged.
m
Since the beginning of the twentieth century, employees have banded together to form labor unions to protect themselves from unfavorable conditions at the workplace. As a tool for achieving their goals, unions and management have negotiated collective bargaining agreements, which are contracts that govern the terms and conditions of employment. Unlike contracts of adhesion, parties to a collective bargaining agreement usually are able to negotiate on an even playing field. Thus, both employers and unions are free to negotiate the relative terms of their contracts, and are able to settle on mutually agreed conditions governing the employees’ working conditions. As a result, an entire body of federal labor law interpreting collective bargaining agreements has emerged over the decades.
A
In 1960, the United States Supreme Court decided three federal cases now known as the Steelworkers Trilogy. These cases gave birth to a family of labor law that has continued until today. They establish a strong presumption in favor of using negotiated grievance procedures for resolving disputes over the interpretation or application of a collective bargaining agreement. In United Steelworkers of America v American Mfg Co, 363 US 564; 80 S Ct 1343; 4 L Ed 2d 1403 (1960), the Court stated that the policy favor ing negotiated dispute resolution mechanisms “can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.” Id. at 566.
Only five years later, the United States Supreme Court issued a decision reinforcing the principle that contractual grievance procedures should be used. In Republic Steel Corp v Maddox, 379 US 650; 85 S Ct 614; 13 L Ed 2d 580 (1965), the Court stated:
As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. . . . [U]nless the contract provides otherwise, there can be no doubt that the employee must afford the union the opportunity to act on his behalf. [Id. at 652 (citations omitted; emphasis added).]
As stated by the Court, federal courts must presume that the grievance procedures are mandatory unless otherwise expressly stated in the contract. Even language providing that an employee “may” discuss a complaint with a union committeeman before embarking on the next step of a grievance procedure does not demonstrate that an employee may ignore the contractual remedies provided under the agreement. Indeed, the Court stated that the
[u]se of the permissive “may” does not of itself reveal a clear understanding between the contracting parties that individual employees, unlike either the union or the employer, are free to avoid the contract procedure and its time limitations in favor of a judicial suit. Any doubts must be resolved against such an interpretation. [Id. at 658-659.]
However, as noted by the board in this case, Republic Steel was decided on the basis of a grievance procedure that resulted in binding arbitration. Emphasizing the importance of binding arbitration, the Court stated that the policy favoring exhaustion of grievance procedures would be undermined if the Court held otherwise because “it would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement.” Id. at 653.
Later, in Clayton v Int’l Union, United Automobile, Aerospace & Agricultural Implement Workers of America, 451 US 679; 101 S Ct 2088; 69 L Ed 2d 538 (1981), the United States Supreme Court distinguished the Republic Steel decision. The Court was faced with deciding whether an employee was required to exhaust the internal union appeals procedure before seeking redress from a court. The Court stated that the policies behind the exhaustion requirement are only advanced where the internal procedures either grant the aggrieved employee full relief or reactivate his grievance. The Court held:
Where internal union appeals procedures can result in either complete relief to an aggrieved employee or reactivation of his grievance, exhaustion would advance the national labor policy of encouraging private resolution of contractual labor disputes. In such cases, the internal union procedures are capable of fully resolving meritorious claims short of the judicial forum. Thus, if the employee received the full relief he requested through internal procedures, his [federal labor] action would become moot, and he would not be entitled to a judicial hearing. Similarly, if the employee obtained reactivation of his grievance through internal union procedures, the policies underlying Republic Steel would come into play, and the employee would be required to submit his claim to the collectively bargained dispute-resolution procedures. In either case, exhaustion of internal remedies could result in final resolution of the employee’s contractual grievance through private rather than judicial avenues.
By contrast, where an aggrieved employee cannot obtain either the substantive relief he seeks or reactivation of his grievance, national labor policy would not be served by requiring exhaustion of internal remedies. In such cases, exhaustion would be a useless gesture: it would delay judicial consideration of the employee’s [federal labor] action, but would not eliminate it. The employee would still be required to pursue judicial means to obtain the relief he seeks under [federal labor law]. Moreover, exhaustion would not lead to significant savings in judicial resources, because regardless of the outcome of the internal appeal, the employee would be required to prove de novo his [federal] suit that the union breached its duty of fair representation and that the employer breached the collective-bargaining agreement. [Id. at 692-693.]
While this language tends to support the position of the board in this case, the opinion noted the difference between contractual grievance and arbitration procedures that are negotiated by the parties to a collective bargaining agreement “and are generally designed to provide an exclusive method for resolving disputes,” and internal union procedures that do not arise under the terms of a contract. Id. at 695-696. The Court stated, “Because of this distinction, the policies underlying Republic Steel, encouraging pri vate resolution of grievances arising out of the collective-bargaining process, are not directly applicable to the issue whether to require exhaustion of internal union procedures.” Id. at 696. Therefore, the Court held that if the internal grievance procedures are inadequate, “the employee’s failure to exhaust should be excused, and he should be permitted to pursue his claim ... in court under [federal labor law].” Id. (Emphasis added.)
The only case that we find extending the holding of Clayton to the collective bargaining context is a federal district court decision from the Eastern District of Pennsylvania. However, the case is only reported in the Labor Relations Reference Manual, not in any federal reporter. In Metropolitan Dist Council of Philadelphia v Pomerantz & Co, 149 LRRM 3056 (1995), the court, in a cursory four-sentence paragraph, stated that where a collective bargaining agreement merely contemplates a series of meetings among various representatives from the disputing parties that result in nonbinding arbitration, the exhaustion requirement does not “impede” the plaintiff’s ability to demand direct resolution in court. However, we note that Pomerantz does not address the identical issue presented here, because, in this case, the contract specifically provides that the grievance procedure “shall” be exhausted. This mandatory language is a far ciy from the agreement in Pomerantz, which stated that the procedure “merely contemplates a series of meetings” between the union and the employer.
B
As can be seen from the cited cases, there are two distinct areas of law relevant to this case. One area supports the proposition that grievance procedures are deemed mandatoiy unless specifically stated otherwise, and those procedures must be exhausted internally; the other supports the proposition that exhaustion is not required where the result is not the exclusive remedy of the parties. As we stated earlier, we are forced to resolve the apparent conflict when the two areas are merged.
We would hold that where the parties have expressly agreed that a particular grievance procedure “shall” be the method of resolving disputes, we will not punish the employee for exhausting those procedures before filing suit, even if the result is nonbinding arbitration. However, we recognize that the uniqueness of this case dictates its result.
We agree with the proposition stated by the United States Supreme Court in Clayton, supra at 696, that in cases where the contract does not specifically state otherwise, “[i]f the internal procedures are inadequate, the employee’s failure to exhaust should be excused, and he should be permitted to pursue his claim . . . .” (Emphasis added.) We do not feel that our decision today conflicts with the principles stated in Clayton. While the employee in Clayton was “excused” from exhausting the internal union procedure and was “permitted” to go to court to enforce his claim, we do not feel that he would have been required to file suit before exhausting his contractual remedies. Nor do we feel that the Court would hold against the union representing an employee the fact that the employee exhausted his contractual grievance procedure before filing suit, especially where, as here, the union was a party to a contract that expressly stated that the employee “shall” follow a four-step grievance procedure. We feel this principle is consistent with Republic Steel. Therefore, where the language of a contract expressly states that a grievance shall be handled in a particular manner, we would allow the statute of limitations to be tolled while the union or employee is exhausting that mandatory procedure, regardless of whether the result is nonbinding.
c
We agree with the Court of Appeals in this case that the six-year period of limitation for breach of contract actions applies. MCL 600.5807(8); MSA 27A.5807(8). A claim accrues, for purposes of the statute of limitations, when suit may be brought. Harris v City of Allen Park, 193 Mich App 103, 106; 483 NW2d 434 (1992); Smith v Treasury Dep’t, 163 Mich App 179, 183; 414 NW2d 374 (1987). For contract actions, the limitation period generally begins to run on the date of the contract breach. Id. Here, the claims accrued on the dates the grievances were filed, which were July 1984 and February 1985, respectively. We also agree with the Court of Appeals that plaintiffs’ claims should have been equitably tolled. We would hold that the statute of limitations will be tolled until exhaustion of mandatory grievance procedures provided under a contract.
We note that we need not decide whether the arbitration provision under the collective bargaining agreement was mandatory. As the dissent in the Court of Appeals noted, the grievance procedure (steps 1-4) was mandatory. 214 Mich App 191. The grievance procedures were completed in September and November 1985. Suit was filed in April 1991, less than six years after the completion of step 4 of the grievance procedure. Under the six-year period of limitation, suit was timely filed even if arbitration was not mandatory. Therefore, we need not address whether, under the terms of this unique contract, the arbitration clause was also mandatory.
In conclusion, where a collective bargaining agreement expressly states that a party “shall” use the grievance procedures provided under the terms of the contract, we would hold that the union or employee is not required to file suit until the grievance procedure is exhausted, even though the result is nonbinding arbitration. Under such circumstances, the applicable statute of limitations should be equitably tolled until the conclusion of the mandatory grievance procedures.
We would affirm the decision of the Court of Appeals and would remand this case for a determination whether defendant breached the collective bargaining agreement.
Mallett, C.J., concurred with Cavanagh, J.
“Bumping rights” are an employee’s right to replace another employee in a different job description in the same or lower classification, thus, taking over the position.
Step 4 of the grievance procedures was completed on September 17, 1985, and November 12,1985, respectively. The arbitration award for both procedures was dated October 16, 1990.
Actually, the collective bargaining agreement provided that arbitration would be nonbinding in all matters except wages, discharge, or suspension. Initially, the union argued that the grievances in question involved wages, and thus, arbitration was binding. The board disagreed, arguing that the disputed grievances did not involve wages and, thus, arbitration was not binding. The parties submitted the issue whether arbitration was binding. The arbitrator held that the grievances did not involve wages; therefore, his decision was nonbinding. Because the parties do not raise that issue here, we assume for purposes of this appeal that the arbitration of the grievances in question is nonbinding.
In a situation in which the procedure is binding, generally a party may only seek limited review of the decision in court if it is alleged that the decisionmaker somehow exceeded the scope of authority. Otherwise, the decision is the exclusive remedy of the parties. If the decision is nonbinding, the parties may not sue to enforce the award, but they may sue to enforce the provisions of the underlying collective bargaining agreement.
Counsel for the board stated at oral argument:
If you submitted to non-binding arbitration as being mandatory, I would submit that that would make no difference. That would be a distinction without a difference because at the end of the day you don’t have a decision that forces the union and the employer to abide by it. If you have something that in effect does not give you full relief, you do not have the exhaustion requirement.
He also conceded:
If the Union chooses arbitration, the Board theoretically must go through with it. There’s no provision to opt out.
He stated later:
[A]gain, the grievance procedure is only viewed under the contract as being mandatory if you want to pursue the advisory arbitration.
Therefore, whether the arbitration clause is mandatory is not an issue.
United Steelworkers of America v American Mfg Co, 363 US 564; 80 S Ct 1343; 4 L Ed 2d 1403 (1960); United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574; 80 S Ct 1347; 4 L Ed 2d 1409 (1960); United Steelworkers of America v Enterprise Wheel & Car Corp, 363 US 593; 80 S Ct 1358; 4 L Ed 2d 1424 (1960).
We note that internal union procedures differ from contractual grievance and arbitration procedures. The former are typically created by the union constitution and are designed to settle disputes between the employee and the union, while the latter are created by contract between the union and the employer and are designed to settle disputes between the employer and employee. Cf. Clayton, supra.
This is especially true where there was a dispute between the parties regarding whether arbitration of the grievances in question was nonbinding. See p 79, n 3.
We note that to the extent that this decision may be inconsistent with our prior decision in Ensley v Associated Terminals, Inc, 304 Mich 522; 8 NW2d 161 (1943), we expressly overrule it. Ensley was decided before the enactment of the National Labor Relations Act, 29 USC 151 et seq. and the claim would now be preempted by federal law. Furthermore, since the United States Supreme Court’s decisions in the Steelworkers Trilogy, n 6 supra, we have consistently used federal precedent for guidance in matters concerning labor law. See, e.g., Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309; 550 NW2d 228 (1996); Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Michigan Transportation Authority, 437 Mich 441; 473 NW2d 249 (1991); Bay City Ed Ass’n v Bay City Public Schools, 430 Mich 370; 422 NW2d 504 (1988). | [
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Campbell, J.
In this case the plaintiffs recovered judgment in assumpsit in the circuit court for Kent county, in an original action, for less than one hundred dollars, and costs were awarded them; and this is alleged as error.
Costs were allowed on the ground that the plaintiffs’ claim exceeded two hundred dollars, and was reduced by set-off. Defendant insists that the reductions were payments and not set-offs.
It appears that each dealt with the other on an understanding that the articles furnished on either side should be applied on the other in part payment, and that when the accounts were closed the balance should be paid in cash.
The suit was brought in 1872. The last items of account were in Februarjf, 1871. It appeared, "however, that the accounts remained open and unsettled, and that defendant, who was found in- arrears, never rendered any account of items or prices until after suit brought.
Whatever may have been the case if defendant had furnished plaintiffs with his account, the plaintiffs cannot be held in fault for not applying payments before their amount was furnished, and, inasmuch as defendant was in fault for not paying or tendering the balance which was due, we think the court was justified in treating the case as one of set-off It does not appear that this question was raised on the trial, and there was a notice of set-off filed with the plea. It is presumable from the whole record that the question was regarded on the trial as one of set-off, as there is nothing to indicate the contrary, and the circuit judge has so taken it.
Without deciding whether the facts might have been treated as involving payment instead of set-off, if defendant had rendered his account, we find no error in the ease as presented on the record.
The judgment is affirmed, with costs.
The other Justices concurred. | [
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