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Kuhn, J.
This suit is brought to recover from the defendants as receivers, appointed by a Federal court, of the Pere Marquette Railroad Company the sum of $25 as a penalty for the violation of section 6301, 2 Comp. Laws (3 How. Stat. [2d Ed.] §6656), which reads in part as follows:
“And any railroad corporation, or company owning or operating a railroad in this State that shall permit its engines, cars, or trains to obstruct any public street or highway, for a longer period than five minutes at any one time, shall be liable to a penalty for each offense of twenty-five dollars.”
It is undisputed that oh July 20,1913, the Pere Marquette Railroad Company, while in the hands of .receivers, did obstruct a street in the village of Hartford, Van Burén county, in violation of this section of the statute. A verdict being directed in favor of the defendants by the trial court, the cause is removed here by writ of error. The questions raised by the briefs of counsel are as follows:
(1) A writ of error will not lie from the verdict of a jury without an entry of judgment thereon.
(2) Are receivers operating a railroad under an order of the court liable for a penalty imposed by statute upon railroad corporations when the statute does not by its express provisions include receivers?
On the argument of the cause in this court, a certified copy of the judgment was filed with the court, and the record was amended to show the judgment, by consent of counsel for the appellees, who waived the point.
In directing a verdict in the lower court for the defendants, the learned trial judge relied upon the decision of this court in the case of Robinson v. Harmon, 157 Mich. 272 (117 N. W. 664). It is now urged that in the instant case it is sought to recover a penalty for a violation of a public duty, while in the Robinson Case the penalty inured in favor of a private individual, and recovery was sought by him. In the opinion of this court in the Robinson Case on the rehearing, when the court came to a different conclusion than was arrived at on the first hearing, it was said that in that case ‘The public is not concerned;” but a careful study of both opinions of the court in the case clearly shows that the decision holds that no recovery of a penalty against a. receiver operating a steam railroad will be allowed when the statute does not by its express provisions, include such receivers, and the case of United States v. Harris, 177 U. S. 305, 309 (20 Sup. Ct. 609, 611), is cited in the opinions. In the latter case the action to recover the penalty was brought by the government, and the decision was based squarely upon the proposition that penal statutes must be strictly construed, and the court said:
“It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subjected to a penal enactment,' nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute.
. “It may well be that congress, in omitting to expressly include receivers in these sections, intended to leave them subject to the control and direction of the courts, whose officers they are. It does not, therefore, follow that the statute in question would be without operation, where railroads are in the hands of receivers.”
Mr. Justice McAlvay, in writing the first opinion in the Robinson Case, was of the opinion that the statute in that case was not a penal statute, strictly speaking, but was remedial in its effect, and thus distinguished it from the case of United States v. Harris, supra.
The statute involved in this case being strictly a penal statute, we see no escape from the conclusion that the case comes squarely within the decision in Robinson v. Harmon, supra, and the judgment of the court below must be, and therefore is hereby, affirmed.
McAlvay, C. J., and. Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Stone, J.
In this action, the plaintiff, a man 62 years of age, seeks to recover damages for an injury resulting in the loss of his right arm, on the evening of July 27, 1913, while alighting from a car as a passenger on a passenger train of the defendant going from Toledo, Ohio, to Durand, Mich. The declaration alleges the negligence of the defendant as follows:
“And said plaintiff further avers that said train had proceeded upon its journey from the city of Toledo to the village of Durand, and after said train had stopped at said village of Durand and after an agent and employee of defendant, commonly called a brakeman, had passed through the car upon which the plaintiff was a passenger and had notified plaintiff and the other passengers, upon said car that said train had arrived at the village of Durand and that it was time for plaintiff and said other passengers to depart from said car after said train came to a stop, by calling the station 'Durand/ and while said plaintiff was -in the act of going down the steps of one of the cars of said train, upon which car said plaintiff was a passenger, and as plaintiff was about to step from such car upon what he supposed was the platform of the station house at said village of Durand, the said defendant suddenly caused said train to start forward, and said plaintiff, while in the exercise of all due care and caution on his part, and through the fault and negligence of defendant, was thrown under the wheels of said train and was. dragged along said railroad track for a long distance, to wit, a distance of 50 feet, and plaintiff’s right arm was so crushed and mangled that it had to be amputated at or near the shoulder.”
To the plea of the general issue there was added a notice that, if there was any liability on the part of the defendant, the same was satisfied and discharged by the said plaintiff, and the said defendant was released by an instrument in writing from all liability.
This accident occurred about 11 o’clock p. m. at a point some 600 to 800 feet south of the station at a crossing where the train was required by law to stop. No person save the plaintiff gave testimony of the manner in which the injury occurred. He testified on direct examination as follows:
“After the train left Byron it had been running about 20 minutes and came to a standstill again, slowed down and stopped, the brakeman came through the door and cried out ‘Durand.’ I rose right up and had my arm right on the arm of the seat and stepped out into the aisle and I met him. I looked and saw-others getting up. He went on down, and called out ‘Durand’ toward the other end of the car. I stepped out. As I took the second step down the steps the train started with a jerk and threw me, and I grabbed with my right hand and got something; it was terribly dark, I couldn’t tell what.
“Q. Did you suppose, at that time, that you were going to step off at Durand?
“A. Why certainly, I supposed so.
“Q. When the train stopped and the brakeman came through and announced ‘Durand,’ and you got up and met him in the aisle,' did you follow him out, or did you come out the back door?
“A. I came out the back door and he went right up through.
“Q. And as you got to the back door you heard bim call ‘Durand’ again?
“A. Yes, sir.
“Q. You had got to where the train threw you when you got on the second' step on the train; from there what happened?
“A. As it threw me, I turned my right hand and grabbed something. I went off on the ground with my feet. I saw I was fast; I don’t know what to, but my coat was fast. I ran along and tried to get loose and to get onto the train. I couldn’t do either one. The train was going so fast that I lost my feet, and then -I guess I must have lost consciousness, for I didn’t, know anything until I came to, lying beside the track.”
On cross-examination the following question and answer appear:
“Q. So if your coat had not caught when you jumped off or were thrown off you would have been all right?
“A. Certainly I would. I would have lit on the ground good and walked in. My coat catching is what caused the accident.”
Opposed to this version, as testified to by plaintiff, there were many witnesses who testified to hearing accounts given by the plaintiff of the manner in which the accident happened, which are entirely inconsistent with his testimony. One Thomas Downer, the night watch and marshal at Durand and one of the plaintiff’s witnesses who talked with him at the hospital three or four days after the accident happened, testified on cross-examination as follows:
“Q. Didn’t you say to the doctor that he told you he got off, attempted to get on and slipped?
“A. Something like that; yes, sir.
“Q. Is that what Mr. Brown told you?
“A. Yes, sir.
“Q. He got off and the train started up and he attempted to get on again?
“A. Yes, sir.
“Q. And he fell as he attempted to get on?
“A. Why he slipped, or something like that.”
He testified on redirect examination:
“Q. His clothes were caught?
“A. I don’t know; he,didn’t say anything about his clothes.”
Dr. Fair, an employee of defendant and the physician who amputated the arm, testified as follows:
“ * * * I heard Mr. Brown make a statement to Reifsnider and to myself about the manner in which the accident occurred. When he made the statement he was in the full possession of his faculties. He stated to me, as near as I can remember, he got off the train, the train stopped, and he got off, and it started up again. He found he was out away from town, as it started up, and he caught hold of it to get on, and slipped or dragged or something, and he fell down and his arm got under the wheels.
“Q. Did he make any claim at that time that his coat or anything caught on the train?
“A. No, sir.
“Q. Were you present when he made the statement to Mr. Reifsnider?
“A. I was.
“Q. When he made the statement to Mr. Reifsnider, state whether or not Mr. Reifsnider told him that, based on his own statement, the railroad company was not liable?
“A. He did.”
Elbert Henry, the supervisor of Vernon township, testified:
“*'*** I heard Mr. Brown make a statement as to how this accident happened. He didn’t make it to me personally, and I cannot recollect the men who were in the room when he made it. He said the brakeman came through the train and called out ‘Durand,’ and the train stopped and he got off, and he started to get back on as the train moved, and he slipped and fell.”
Clarence Sproul, a switchman for the Grand Trunk Railroad Company, testified as follows:
“I asked him how he got hurt. He said he got off the train and went to get back on again and slipped.”
Again:
“He said when he got off he thought it was Durand, and found it was not, and went to get back on.”
A. B. C. Doak, a brakeman for the Grand Trunk Railroad Company who was with Mr. Sproul that night, testified to the following conversation with the plaintiff:
“ * * * I asked him how he got hurt, and he said he heard the station called ‘Durand station/ and went out on the platform and got off, or something, and stepped off, and the train started like, and he went to turn back to get on and slipped or fell, something to that effect.”
Roy Cook, another employee of the Grand Trunk, was also present when the plaintiff was picked up, and he testified:
“I heard the conversation that took place between Mr. Brown, Mr. Sproul, Mr. Doak, and myself. Mr. Brown said the brakeman came through the train and hollered ‘Durand/ and he got off, and the train started up and he went to get back on and he fell.”
Oliver J. Fleming, conductor on the Grand Trunk, testified:
“I was down where Mr. Brown was picked up, and so was Mr. Cook and Mr. Doak and Mr. Sproul. Mr. Brown was lying on the outside of the track. * * *
“Q. What statement did he make as to how the accident occurred?
“A. He said when the train stopped he thought he was at Durand and got off, and saw where he was, and went to get back on again; that was about all he could remember.”
' The injury occurred upon Sunday night. After the plaintiff’s arm was amputated in Dr. Fair’s office, he was taken to the Y. M. C. A. hospital at Durand, where he was treated and cared for until the following Saturday, when he went to the University hospital at Ann Arbor, where he remained for some 18 or 20 days.
The evidence of the defendant tends to show that while at the Y. M. C. A. hospital at Durand the plain tiff was visited by the claim agent of the defendant on a number of occasions, and the subject of a settlement was discussed with the plaintiff. It is undisputed that the claim agent stated to the plaintiff, as his opinion, that the defendant was not liable to the plaintiff in any sum according to his own statement, but he offered to settle with him and pay him the sum of $50 and all his hospital expenses. Negotiations were continued for two or three days, the plaintiff refusing to accept $50 and demanding $100 in settlement. Finally, on Friday, August 1, 1913, a settlement was reached with the plaintiff, and the following agreement was signed by him by his mark and witnessed by his son, Allen Brown, Dr. Fair, and the claim agent, the substance of which is as follows:
“In consideration of one hundred dollars and hospital services and doctor’s bills for a period not exceeding (3) three weeks to me paid by Ann Arbor Railroad Company, the receipt of which is hereby acknowledged, I hereby release and discharge the said Ann Arbor Railroad Company from any and all liability for and on account of any claim I have, or may have, against said railroad company by reason of, or in any manner growing out of personal injuries received when I jumped off of an excursion train 1881 feet south of diamond or crossing of Ann Arbor R. R. Co. and Grand Trunk Crossing, and received injuries to right arm and same was amputated, right knee, left hand and right side of abdomen contused and lacerated near Durand, State of Michigan, on or about the twenty-seventh day of July, A. D. 1913, said payment being received in full satisfaction of all claims of whatsoever nature to date.
“And I also agree that this release shall operate as a bar to any and every suit at law or otherwise, which I or. my heirs, executors, administrators, or personal representatives otherwise might or could sustain by reason of the claim aforesaid.”
It further appears that, after the plaintiff had been in the hospital at Ann Arbor for about a week, he received the check of the defendant, at the hands of the said claim agent, for the sum of $100, attached to which was a voucher purporting to be in full settlement and satisfaction of any and all claims substantially as stated in the foregoing instrument. This voucher purported to be signed by the mark of the plaintiff in the presence of two witnesses, one of whom was sworn as a witness and testified to her own signature, but had no recollection of the transaction other than the fact that the plaintiff received $100 by the check of the defendant, which was placed to his credit together with $29, the amount of 'the hospital bill.
While the testimony on behalf of the defendant tends to show that the foregoing claimed release was given and settlement made with the.plaintiff at a time when he was fully competent and understood the entire transaction, the plaintiff testified that he had no recollection whatever of the claimed settlement at Durand, but did admit that he received the sum of $100 from the defendant while in hospital at Ann Arbor, claiming that it was given to him by the defendant because of sympathy with him in connection with his injury, and that the same was so offered and received as a gratuity; that he had never tendered or paid back the same; that he had no knowledge of giving or executing any release until such claim was made after the commencement of this suit; and that he never had agreed to release any claim which he might have against the defendant. This question was submitted to the jury by the trial court.
On rebuttal the following hypothetical question was asked of Dr. Belser, and the following occurred:
“Q. Suppose a man of the age of 63 years in some manner getting off or bn a passenger train fell so far under the wheels of the train that his arm was crush ed in such a manner above the elbow that the arm. was removed, and had lost a lot of blood, and. during the operation there was administered to him 1½ ounces of chloroform, two 1/60 grains of strychnine, some digitalis and Y, grain of morphine after the operation, on the next day ⅛ grain hypodermic injection of morphine and in the mouth some ⅛ grain tablets of morphine, on the next day one ⅛ grain hypodermic injection of morphine and more tablets of morphine of ⅛ grain size, on the next day, Wednesday, three ⅛ grains hypodermic injection of morphine and more morphine tablets of ⅛ grain, and on Thursday, the next day, one hypodermic injection of morphine and more morphine tablets, would he be, or would he not be, able to legally comprehend what he was doing on Friday, the next morning?
“Defendant’s Attorney: I object because it does not state with any degree of certainty the treatment or method in which the morphine was administered or the anaesthetic given to him.
“The Court: Does the number of tablets given appear?
“Plaintiff’s Attorney: It does not, from the testimony.
“Defendant’s Attorney: I object further that the question is not based on the evidence.
“Q. As to the morphine that was administered through the mouth, I understand the testimony to be that it was administered to him through the mouth in tablet form consisting of ⅛ grain, when it was necessary to quiet him?
“The Court: I think he may answer the question. (Exception for defendant.)
“Q. Would he be able to legally comprehend what he was doing on Friday morning?
“A. Well, I think his mind would be_ in rather a depressed and blank condition; I don’t think he would be in a very bright condition.
“Defendant’s Attorney: I move the answer be stricken out, what he thinks about it.
“The Court: Go on. I deny the motion. (Exception for defendant.)
“Q. You may state whether or not a shock such as you say would follow and the drugs which were administered would or would not affect a person’s mental faculties so he might be caused to do certain things and not know it, and the whole week things be done of which he would not remember anything?
“Defendant’s Attorney: I object, that does not conform to the testimony.
“The Court: Answer. (Exception'for defendant.)
“A. I think that could happen.
“Defendant’s Attorney: I move the answer be stricken out as a mere opinion. (Motion denied. Exception for defendant.)”
At the close of the testimony, the defendant asked for a directed verdict on the grounds of a variance between the allegations in the declaration and the testimony of the plaintiff. Also because of the settlement, and the release of the plaintiff, which motion was denied and exception taken. The trial resulted in a verdict and judgment for the plaintiff in the sum of $2,000. There was a motion for a new trial, which motion presented nearly every question raised in the case, and the. further reason that the judgment was contrary to the law and the evidence in said cause, and contrary to and against the weight of the evidence. The motion was denied in writing, to which denial exception was duly taken. The case is before us on writ of error.
The questions raised by appellant by appropriate assignments of error and discussed in the brief and at the oral argument may be summarized as follows:
(1) Is the verdict against the- weight of the evidence as regards the manner in which' the accident took place ?
(2) Is the verdict against the weight of the evidence in regard to the release, and was the circuit judge in error in overruling defendant’s motion to direct a verdict because plaintiff had released the defendant company from liability?
(3) Did the court err in overruling defendant’s objection to the hypothetical question propounded by counsel for plaintiff, above set forth?
1. We have read this record with great care and are impressed with the claim of the appellant that the verdict is against the great weight of the evidence as regards the manner in- which the accident occurred. The plaintiff’s testimony, at the trial, that the jerking of the train threw him off, is equivocal and vague and is flatly contradicted by his own admissions on several occasions shortly after the accident, as testified to by seven witnesses, one of whom was the plaintiff’s own witness, and only one of whom (Dr. Fair) was in any way connected with the defendant company. Defendant requested the court to charge the jury as follows:
“If you find from the evidence that the plaintiff got off the train of the defendant, and attempted to board the train again after the same was in motion, and in so doing was thrown under the wheels of the train and was injured, then he would be guilty of contributory negligence, and your verdict should be no cause of action.”
This request to charge was not given, nor was the substance of it given; although the jury were instructed that if they found that the plaintiff was not injured as claimed in his declaration, by attempting to get off the train, he could not recover.
If the statements previously made by the plaintiff as testified to by the numerous witnesses be believed, then the injury was clearly due to the plaintiff’s own negligence in attempting to get on a moving train, and he could not recover. Blair v. Railroad Co., 60 Mich. 124 (26 N. W. 855); Lake Shore, etc., R. Co. v. Bangs, 47 Mich. 470 (11 N. W. 276); Werbowlsky v. Railway Co., 86 Mich. 236 (48 N. W. 1097, 24 Am. St. Rep. 120); Jacob v. Railroad Co., 105 Mich. 450 (63 N. W. 502).
While the mere number of witnesses contradicting plaintiff’s testimony is not conclusive, yet it is a fact which should not be lost sight of. In our opinion the motion for a new trial should have been granted on the ground that the verdict was against the great weight of the evidence, as to the manner in which the accident occurred, and that it was error to refuse the same. In re McIntyre’s Estate, 160 Mich. 117 (125 N. W. 51).
2. We hesitate to hold that the verdict is against the overwhelming weight of the evidence in regard to the release. There is some testimony in the record that the claim agent, in his conversation with the plaintiff, sought to impress upon the plaintiff that there was no liability on the part of the company, and that everything he gave him was a matter of charity and a gratuity. Upon this subject the claim agent testified on cross-examination as follows:
“ * * * I wanted to impress upon Mr. Brown that I wanted to be perfectly fair with him, and I told him every time I talked with him about the settlement that there was no liability on the part of the company, and that everything I gave him was a matter of charity, and I wanted him to believe it was a matter of charity. * * *
“Q. And all your talks all the time with Mr. Brown was that whatever you gave him was a matter of charity?
“A. It was nothing else. There was no liability.
“Q. You wanted him to believe it?
“A. When I told him; yes, sir.”
There are decisions to the effect that a payment back, or tender, is unnecessary where the money was paid voluntarily or as a donation, and the plaintiff subsequently induced by fraudulent means to execute a paper which turned out to be a release. Likewise, it has been held that, where the amount received was not understood by either party to be in settlement of the disputed liability, a return or tender of the money was not necessary. Simeoli v. Rubber Co., 81 Conn. 423 (71 Atl. 546); Mensforth v. Brass Co., 142 Wis. 546 (126 N. W. 41, 512, 135 Am. St. Rep. 1084). See Marple v. Railroad Co., 115 Minn. 262 (132 N. W. 333, reported with note in Ann. Cas. 1912D, 1084 et seq.).
The testimony of the plaintiff is very positive to the effect that he never knowingly signed, or authorized the signing of, any release. While the testimony opposed to this position of the plaintiff is very persuasive, yet we do not feel like holding, as matter of law, that there should have been an instructed verdict upon the subject of the claimed release.
3. We are of the opinion that the court erred in permitting the hypothetical question to be answered, for the reason that there was no sufficient foundation in the evidence upon which to base such question; and we think there was prejudicial error in the overruling of defendant’s objection to this question. A careful reading of the record shows that there was no positive testimony as to the treatment of the plaintiff. In other words, as objected to by counsel, what the treatment consisted of did not appear with any certainty. The question purports to lay before the witness such facts regarding the administration of certain drugs and opiates during plaintiff’s confinement at the hospital at Durand as would enable the witness to give an opinion as to whether or not the plaintiff would be able to comprehend what he was doing on Friday. The foundation was wholly uncertain. The number of morphine tablets administered was not given at all. The question refers to “some” digitalis; “some” ⅓ grain tablets of morphine; “more” tablets of morphine ; again “more” morphine tablets; and still again “more” morphine tablets. The question did not state at what time of the day the hypodermic injections were given, and it seems to us that it wholly lacks that degree of certainty' which makes the answer of the expert admissible, or of any value. The record shows that the plaintiff’s attorney admitted that the number of tablets did not appear in the testimony,_yet he sought to have the witness testify what would be the condition of a patient on a given day if on the preceding days an indefinite unknown quantity of drugs was administered to him at unknown intervals. This court said, in Turner v. Township of Ridgeway, 105 Mich. 409 (63 N. W. 406):
“As the question was put, it would be impossible for any expert to give an intelligent answer as to whether a fall upon the side would occasion concussion of the spine. It would depend, of course, upon the nature of the fall.”
And so here, it would depend upon the number of tablets of morphine administered, the method of administering, and the time when the doses were given in order to determine the effect upon the patient. Such question and answer were well calculated to mislead the jury.
This court has recently, in the case of Beattie v. J. L. Hudson Co., 180 Mich. 111 (146 N. W. 650), had occasion to pass upon a similar question. In that case Justice Brooke, speaking for the court, said:
“We think it obvious that an opinion based upon facts or information beyond the personal knowledge of the witness, and not in evidence, should not have been permitted to stand. Connell v. McNett, 109 Mich. 329 [67 N. W. 344], and La Londe v. Traction Co., 145 Mich. 77 [108 N. W. 365].”
In our opinion the testimony of this physician was probably largely influential upon, and may have controlled the verdict of the jury as against the numerous witnesses who testified that plaintiff’s condition was in fact that of one competent to execute the release in question.
For the errors pointed out, the judgment of the court below is reversed, and a new trial granted.
Ostrander, Bird, Moore, and Steere, JJ., concurred. McAlvay, C. J., and Brooke and Kuhn, JJ., concurred in the result. | [
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Stone, J.
The bill of complaint in this cause was filed to obtain a construction of the last will and testament of Christopher Glenn, deceased, and for an accounting, Christopher Glenn died in February or March, 1901, the exact date not being shown by the record. He left a will dated February 7, 1901, which was duly admitted to probate. That part of the will relevant to this controversy, is as follows:
“After the payment of my funeral expenses, expenses of last sickness, if any, and any lawful debts which I may have contracted, I give and bequeath to my beloved wife, Sarah Glenn, all property, real and personal and mixed, of which I may die seized or possessed, she to have, hold, use and enjoy the same for and during the term of her natural life, with full power to sell, convey or exchange any or all of said property, real or personal, and without any restrictions whatever as to the amount of said personal property she shall use for her support and benefit should she need the same owing to sickness or other emergency which would require the use of more than the income from said real and personal property.
“After the death of my beloved wife, I direct that the farm or one hundred acres owned by me in the township of Oneida, Eaton county, Michigan, be sold, provided the same has not been sold before that date by my said wife, and the proceeds from the sale of said farm to be divided as follows, when sold: Two- thirds of the proceeds from said sale I give, grant and bequeath to my daughter, Alice Walsh, and the remaining one-third of said proceeds I give, grant and bequeath to Christopher Glenn, Jr., Ellen Teaman, Sarah Trumbull and Mary ■ McMullen, to be divided between them, share and share alike.
“After the death of my beloved wife I direct that the property_ owned by me in the city of Grand Ledge, where I reside, be sold, provided the same has not been sold before that date by my wife and the proceeds from the sale of said city property when sold be divided equally between William T. Glenn and Alice Walsh, share and share alike.
“After the death of my beloved wife and the payment of her funeral expenses, I give, grant and bequeath to my daughter, Alice Walsh, all property of every nature and description which shall then remain after the payment of the bequests from the sale of the farm and city property hereinbefore mentioned.
“I hereby nominate my daughter, Alice Walsh, as executrix and John Strange as executor of this my last will and testament, with full power and authority to sell and convey any real estate of which I may die seized under the direction and with the consent of my wife, for the purposes of division herein stated.”
Complainant is the daughter, and also the executrix of the will, of said Christopher Glenn, deceased. The defendant Backus is the administrator of the estate of Sarah Glenn, deceased, who was the mqther of complainant, and the wife of Christopher Glenn, deceased. The real estate owned by Christopher Glenn at the time of his death is not involved in.this suit, all of it having been sold and the proceeds divided between the beneficiaries named in his will, by mutual agreement between them.
It is the claim of the complainant that by the terms of the will of Christopher Glenn, his wife, Sarah, had the right to the possession, use, and control during her life of the personal property belonging to his estate, and to have the same turned over to her by the com plainant; that, when complainant did turn all of this property over to Sarah Glenn, the latter did not become the absolute owner of it, but whatever remained after her death belonged to the estate of Christopher Glenn, deceased, and complainant, as such executrix, has the right to reduce the same to her possession, to the end that she may close the estate of Christopher Glenn, deceased. Acting in accordance with this view, the complainant, upon the probate of said will, proceeded to inventory the estate, totaling $8,823.67, of which $5,700 was real estate. She presented her account to the probate court, which was duly allowed, and on November 15, 1901, the property, real and personal, was turned over to her mother, Sarah Glenn, less the sum of $794.90, which had been allowed to complainant • as paid in settlement of claims against the estate, and expenses of administration. At the same time Sarah Glenn receipted to complainant for personal property, including cash, notes, and a real estate mortgage, amounting to $2,328.77, which receipt was in the following words and figures:
“Grand Ledge, November 15, 1901.
“Received of Alice Walsh, executrix of the last will and testament of Christopher Glenn, deceased, the sum of three hundred and fifty-eight dollars and seventy-seven cents in cash, and the following personal property, to wit: Notes of Thomas A. and Louisa Walsh, aggregating face value eight hundred fifty dollars; a real estate mortgage of eight hundred dollars given by Charles G. Allen; notes of J. G. Smith, aggregating one hundred twenty dollars, face value; a note of Christian F. Maier for two hundred dollars —being all the personal property of every nature and description belonging to the estate of Christopher Glenn, deceased.
“[Signed] Sarah Glenn” (by her mark).
“Witness to mark:
“W. R. Clarke,
“R. A. Latting.”
It is not seriously contended that Sarah Glenn had anything more than a life estate or interest in the personal property left by Christopher Glenn, deceased. By the will it was clearly intended to give her at most the use of the personal property during her life, and there was present the intent and expectation that she might use some of the principal, if necessary. This implied custody and the right to use. Gee v. Hasbrouck, 128 Mich. 509-513 (87 N. W. 621); Michigan Trust Co. v. Hertzig, 133 Mich. 513 (95 N. W. 531).
It is the claim of complainant that from November 15, 1901, until her death, on February 15, 1911, Sarah Glenn had all of the personal property of the estate of Christopher Glenn in her possession, and managed and controlled it, and that she had also the income from the real estate until it was finally sold and the proceeds divided among the persons to whom it was devised by the said will. She also drew a pension of $144 a year from the United States.
Previous to the 15th day of November, 1901, Sarah Glenn had on deposit in the bank of the Loan & Deposit Bank of Grand Ledge the sum of $940. From' that time on her deposits increased, so that at the time of her death she had certificates of deposit issued by this bank amounting to $4,200. Twenty-two hundred dollars of this amount was represented by certificates in her own name, and $2,000 in two separate certificates, numbered respectively -45,536 and 45,537, of $1,000 each, dated January 2, 1911, in the name of Christopher Glenn estate. The undisputed testimony of the cashier of the bank was that, at the time Sarah Glenn took the $2,000 in certificates in the name of the estate, she stated to him that there was at least that much money belonging to the Christopher Glenn estate in her hands. Before that time the money had been in the bank in her name, and she changed the certificates as above indicated.
The claim of the defendant Backus is that Sarah Glenn could not read or write, signing her name by her mark. While this is true, yet the undisputed evidence is that she was an intelligent, thrifty, and economical woman, and understood her business affairs. It is further claimed by said defendant:
First. That the greater portion of the personal property turned over to her on November 15, 1901, by complainant, and especially the notes of Thomas A. Walsh and Louisa Walsh, amounting to $850, were delivered to complainant by Sarah Glenn soon after they were receipted for, and that Sarah Glenn never had any of the money paid by Thomas A. Walsh.
Second. That the Smith note of $100 and $215 out of the Allen mortgage had already been turned over to complainant.
Third. That the said Sarah Glenn was unduly and fraudulently induced to change the two certificates, of $1,000 each, just before her death, into the name of “C. Glenn Estate,” and that the money represented by the certificates was the money of Sarah Glenn, and not the money of the C. Glenn estate.
Fourth. That in March, 1907, Sarah Glenn, realizing the efforts being made by complainant to get her money away from her half-brothers and half-sisters, went to an attorney and made a property statement, and a will in which she cut off complainant with $1.
Fifth. That the paragraph in the said will reading:
“After the death of my beloved wife, and the payment of her funeral expenses, I give, grant and bequeath to my daughter Alice Walsh, all property of every nature and description which shall remain after the- payment of the bequests from the sale of the farm and city property hereinbefore mentioned”—
should be interpreted to mean, solely, the proceeds from the sale of the farm and city property in Grand Ledge, and that complainant should stand as one of six heirs in the distribution of what was left by Sarah Glenn.
Sixth. That, as the estate of Christopher Glenn is not closed, said estate should not only be charged with the funeral expenses of $236, but should also be charged with the last sickness account of Sarah Glenn.
We will consider the several questions in the order presented.
1. After a careful reading of the record, we cannot agree with the claim of counsel here made. The evidence offered in support of the claim is so indefinite and unsatisfactory that we cannot be governed by it. Of the statement of Sarah Glenn we shall speak later.
2. Counsel for defendant concedes that as to this proposition it finds support only in the statement of Sarah Glenn, made to the attorney who drew her will. That this unsigned statement was self-serving in its character cannot be doubted. It was not made in the presence of complainant, and must be held to be a statement made by Sarah Glenn in her own interest. Drake Coal Co. v. Croze, 165 Mich. 120 (130 N. W. 355.). In Ward v. Ward, 37 Mich., at page 257, it was said:
“Decedent’s declarations were no more evidence for the defense here than they would have been for him in case he had lived and been the contestant and surely he could not have proved his own mere declarations to third parties of his ownership in order to establish his title against the claimant.”
See, also, collection of authorities on this subject in Freda v. Tishbein, 174 Mich. 391-397 (140 N. W. 502, 49 L. R. A. [N. S.] 700).
3. We find no evidence to support this claim. Sarah Glenn visited her banker on two occasions upon the subject of the change of certificates. Her statements there were certainly statements or admissions against her own interest, and in the absence of other evidence must be held to be binding upon her and her estate. Not only did she say that she had at least this sum in her hands belonging to the estate of Christopher Glenn, deceased, but she directed the cashier to change the certificates, and they were found among her papers after her death. We are of opinion that the circuit judge was right in holding that these certificates represented money belonging to the estate of Christopher Glenn.
4. While the evidence shows that Sarah Glenn made such a will, it as clearly shows that she after-wards destroyed the will, and died intestate.
5. We are unable to agree with counsel for defendant that the clause of the will quoted refers to proceeds of the real estate. The will clearly provides that all of the proceeds of the real estate should be specifically disposed of. Two-thirds of the proceeds of the farm were to go to complainant, and the remaining one-third to Christopher Glenn, Jr., Ellen Teaman, Sarah Trumbull, and Mary McMullen, share and share alike. The proceeds from the sale of the other piece of real estate were to be divided equally between William T. Glenn and complainant. It is therefore manifest that there could be no residue of proceeds from the sale of the real estate, and the term “all property of every nature and description which shall then remain” cannot be held to refer to proceeds from the sale of the farm and city property. It must refer to the residue of personal property, or be ineffective.
6. We quite agree with counsel for defendant Backus that under the terms of the will the estate of Christopher Glenn, deceased, should be charged with the funeral expenses of Sarah Glenn. The amount thereof is $236. We think the same rule should apply to the account for expenses of her last sickness. The only evidence on the subject of the amount of the latter is that of the probate register, who testified that it was $65.97. This sum should be added to $236, making $301.97 to be paid by complainant out of the moneys received by her as the proceeds of the two certificates of deposit above described.
We cannot agree with the circuit judge as to the $500 item. We find no evidence to warrant us in holding that complainant is entitled to more than the amount represented by the two certificates of deposit standing in the name of the ^Christopher Glenn estate. Those certificates should be turned over to complainant by the defendant Backus, and the principal and accumulated interest thereon should, upon presentation by complainant, be paid by defendant the Loan & Deposit Bank of Grand Ledge.
The decree of the circuit court, as thus modified, will be affirmed, and the defendant Backus will recover against complainant the costs of this court, to be taxed.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Ostrander, J.
On the 6th day of February, 1901, Hulda Elliott, the deceased, owned 98 acres of land. On that day she executed and acknowledged the instrument proposed as her last will. It is, in form, a warranty deed, with the usual covenants, in which she is grantor and proponent is grantee. The instrument was never delivered to the grantee nor to any one for him. Whether the deceased intended this instrument to be a will was a question submitted to a jury and answered in the negative. Whether the question should so have been answered, by the court or by a jury, with or without the aid of extrinsic, evidence, is matter of contention, and, if the question was properly for a jury, appellant, proponent, desires a new trial because of various alleged errors of the trial court and because of alleged improper arguments of counsel for contestant.
It was said in Clay v. Layton, 134 Mich. 317, 336 et seq. (96 N. W. 458), that cases of this nature fall into three classes:
“(1) Those in which the testamentary intent is clearly deducible from the writing.
“ (2) Those where the instrument is ambiguous, or of doubtful meaning.
“(3) Those where there is nothing to indicate a testamentary intent, but, on the contrary, the instrument is in terms plainly a deed.”
In the first class of cases, it is said, there is no difficulty in holding the document to constitute a will, if properly executed. In the second class, the instrument may doubtless be interpreted in the light of the circumstances. As to the third class of cases, it was there held that extrinsic evidence was not admissible to show a testamentary intent on the part of the deceased grantor.
To which of these classes does the instrument before us belong? Proponent offered whatever testimony was introduced, relies upon it, claims that it is undisputed and that the court should have determined from all the evidence that the instrument is a will, and should so have instructed the jury. A request was preferred to so instruct the jury. It is inferred that it is not the idea or the claim of proponent that the case belongs to the first class of cases. The position of contestant is that it falls within the third class, and that the court should so have ruled. If this position is sound, then we need give no attention to the conduct of the trial.
Proponent points out and claims something for certain recitals in the deed. Following a description of land are the words:
“Excepting the twenty-two acres that I have this day deeded to Mrs. Abigail Cheney of Romulus, Wayne county, Michigan.”
Beginning another paragraph:
“The above description was given and intended for all the real estate that I now own or possess containing ninety-eight acres more or less.”
He calls attention also to the words, written after the certificate of acknowledgment, signed, apparently, by the grantor, but without attestation of witnesses:
“This deed to be null and void if recorded before my death.”
I assume that if the words to which I refer did not appear in the deed and in the margin thereof proponent would not contend that testamentary intent was suggested or could be sought for.
It is clear that the instrument falls within neither the first nor second class. There is nothing upon the face of the instrument to indicate testamentary intent. On the contrary, the language used — and none could be more apt, and none is more constantly employed in conveyances — imports a present grant and nothing else. All that was required to give the instrument validity as a deed, to divest the grantor of title, and put title in the grantee, subject to be divested upon a contingency, was delivery. If the deed had at once been delivered to the grantee, no one would contend that it was ambiguous. No better test than this can. be suggested. In a somewhat similar case (Dodson v. Dodson, 142 Mich. 586 [105 N. W. 1110]), it was said:
“An important question in this case is whether the deeds can be held to be a testamentary disposition of the property described in them. We may premise a discussion of that question by the statement that the circumstances under which they were made, and attending their disposition and custody, are convincing that they were so intended. Indeed, they leave no doubt that such was the testator’s intention. But the rule is that a testator’s intention cannot be given effect as against the plain and unambiguous provisions of a deed, and the rule is settled in this State that where there is nothing in the instrument to indicate a testamentary intent, but, on the contrary, it is in terms plainly a deed conveying a present interest, extrinsic evidence is not admissible to show the contrary. The subject is discussed at length in the case of Clay v. Layton, 134 Mich. 341 [96 N. W. 458].”
Language appropriate to this case was used in Clay v. Layton, 134 Mich. 338 (96 N. W. 466):
“The proposition is to show that certain instruments, which could only become effective by delivery, can be made effective by calling them by another name, and giving them an interpretation which their words do not warrant, through parol evidence tending to show that such was the decedent’s intention.”
There is nothing in any of the decisions of this court which in any manner qualifies the doctrine of Clay v. Layton and Dodson v. Dodson. See Leonard v. Leonard, 145 Mich. 563 (108 N. W. 985) (not a will case); In re Dowell’s Estate, 152 Mich. 194 (115 N. W. 972) (in which the point is not discussed); Lincoln v. Felt, 132 Mich. 49 (92 N. W. 780).
The trial court should have directed a verdict for contestant. The conclusion reached in the court below was right, and is affirmed. Contestant will recover costs from proponent.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). Adhering to former rulings (Griffin v. Kennedy, 148 Mich. 583 [112 N. W. 756]; Horton v. Helmholtz, 149 Mich. 229 [112 N. W. 930]; Haney v. Miller, 154 Mich. 340 [117 N. W. 71, 745]; Haney v. Auditor General, 165 Mich. 681 [131 N. W. 174]; White v. Dunsmore, 167 Mich. 548 [133 N. W. 523]; Powell v. Pierce, 168 Mich. 427 [134 N. W. 447]; Holmes v. Soule, 180 Mich. 526 [147 N. W. 621]), which we are asked by appellant to re-examine and to modify to the extent of holding that some interest in the land remains to the owner after regular sale of it for taxes and after the period of redemption expires, we consider only whether the court erred in striking out the testimony above referred to and directing a verdict for defendant. We conclude that no error was committed. In Backus v. Hoyt, 164 Mich. 407 (129 N. W. 693), we affirmed a decree for a reconveyance of land, it appearing that a legal tender had been made to the tax title holder by the owner of the original title. In Wilson v. Sauble, 181 Mich. 406 (148 N. W. 165), an action of ejectment, we held that a court of equity is the proper forum for determining whether or not the owner of a title cut off in tax proceedings is entitled to a re-conveyance from the tax title owner who refuses it; that he does not acquire title by a tender of money, the right to make which is disputed. In the present case, there is no claim that plaintiff paid the amount which the statute requires to be paid to secure a reconveyance. At best, the testimony of the plaintiff tends to prove an arrangement, never completed, to buy the tax title interest. There can be no question about the right of an owner of land to buy in an outstanding tax title for an agreed price. But, except for the statute, he would be obliged, as against all persons dealing with the owner, and upon the disclosures made by the record, to secure the tax title interest so purchased by some conveyance or writing. The words of the statute negátive the proposition that by any uncompleted private bargaining the interest of the tax title owner can be extinguished. The words, “on the certificate of the auditor general, or his deputy,” have some significance. The word “payment” imports a tender of money and its receipt by the person to whom it is tendered. The benefit of the statute is for those who perform the conditions upon which the benefit attaches. A refusal of a proper tender may be relieved against in equity.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Brooke, J.
The bill of complaint in this cause is filed for the purpose of quieting the title to a strip of ground running from Conner’s creek to the Detroit river. At its northerly or Conner’s creek end it is some 18 or 20 feet wide. At its southerly or Detroit river end, it is about 35 feet wide. Private claims 386 and 392 lie side by side; 392 lying immediately west of 386. The strip of land in question is off the westerly side of private claim 386, immediately east of the line between the two private claims. The record discloses that between Jefferson avenue and Conner’s creek a fence was built many years ago. This fence ran southerly from Jefferson avenue, but did not run the entire distance down to Conner’s creek. It was not built upon a true line between the two private claims, but upon a line a few feet east of the true line, which diverged slightly to the east as it ran south. On the south side of Conner’s creek also, at an early date, there appears to have been constructed a post and wire fence on this same line produced. Between Conner’s creek and the river the land is very marshy, being covered with water, for the most part, at some seasons of the year. The boundary line between the two claims north of Conner’s creek is not in dispute. While there is abundance of evidence in the record that a fence was constructed south of the creek upon the same line as that which ran north of the creek to Jefferson avenue, the record discloses that the fence never ran to the extreme southerly portion of the claim, nor was it constantly maintained. In the year 1906 one Herbert L. Russell, a civil engineer, was instructed to go upon the property, in behalf of the owners of private claim 392, and determine the easterly line of that property. With reference to the fence south of Conner’s creek, he testified:
“In that portion there were evidences of the old fence, the posts of which were standing, and quite a good many of the strands of wire were there, although it was not a complete fence, but it was in very fair line.”
No attempt was made in 1906 to reconstruct said fence, but in 1913 the defendants undertook to build a new fence upon the line occupied by the old one. It is undisputed that this line is, as before stated, some 18 or 20 feet east of the true line at its north end, and about 35 feet east of the true line at its south end, and between this fence and the true line lies the property in dispute.
When the complainants learned, of the attempt on the part of defendants to erect a new fence upon the line occupied at an earlier date by the old one, he filed his bill of complaint. He showed his title to that part of lot 386 which would include the strip in question, and asked a decree quieting the title in him. The defendants claimed title to the strip in question by adverse possession. It is not contended on behalf of the defendants that their (paper) title covers anything east of the east line of private claim 392, but they aver, by the existence of the old fence, the line between private claims 386 and 392 has been established by consent of the early owners and their successors in title, and that acquiescence in said line has existed for a period much in excess of the requisite statutory time. I have pointed out the condition of this fence, as disclosed by the testimony of Mr. Russell, in the year 1906. At that time it had been allowed to fall into entire decay and the line of its location could only be determined from occasional posts and a few strands of wire which still remained. By 1913, when defendants undertook to construct the new fence, Mr. Russell testifies that there were evidences of the same old fence south of Conner’s creek, but at that time it seems practically to have disappeared.
A witness, John Pische, Jr., called’on behalf of the defendants, after giving testimony as to a part of the distance south from Jefferson avenue to Conner’s creek, testified as follows:
“Q. There was also a fence south from the creek in an early day?
“A. Towards the river?
“Q. Yes.
“A. Not in my days.
“Q. You didn’t know that fence?
“A. Not from the creek south; there was a fence there in later years, but not really early days.
“Q. Did the fence ever extend from Conner’s creek in the present channel to the Detroit river?
“A. There was no fence in there only these later years.
“Q. Was there ever a fence more than a third of the way from Conner’s creek down to the river?
“A. I would say that would be less than a third, or about a third.”
On redirect examination this witness testified:
“It is only a few years ago that I noticed that fence. On P. C. 392 and the claims west they pastured cattle before it was platted for the past 15 years.”
Mr. Robert Trombley, an old resident, gave testimony on behalf of defendants, but an examination of his testimony with reference to the fence in question and the occupation of the land on either side of the fence seems to limit its applicability to that portion lying north of Conner’s creek.
The most important testimony given on behalf of defendants with reference to the existence of the fence in question, and of the character of the occupation of the land on either side thereof, was given by Messrs. Houghten and French, ice dealers, who had leases of ice privileges upon land both on 386 and 392.
Mr. Houghten’s testimony is, in part, as follows:
“Q. At the time you went on the land in 1891 or 1892, will you tell the court whether there was any fence along the east dyke side on the property which you leased from Mr. Seitz?
“A. Yes, sir; there was a fence from the channel bank or from the dyke, rather, to Conner’s creek. I don’t think it was a new fence.
“Q. At the time you took possession were you given to understand that your right under the lease stopped at that fence?
“A. Yes.
“Q. Who occupied or owned the land on the easterly side of that fence?
“A. Mr. Conner.
“By the Court: That fence of which you speak was north of Conner’s creek?
“A. South of Conner’s creek.
“By Judge Angell: From Conner’s creek to the river?
“A. (by witness). From Conner’s creek to the dyke, which is close to the channel bank.
“By Judge Angell: And Mr. Conner had the property east of that fence?
“A. Yes, sir. I had the ice rights or privileges to the Conner property and the privilege to put a dredge cut in there, and occupied under that arrangement until quite recently, and have executed leases with the Conner heirs or trustees..
“Q. The dividing line, as you understand it, in 1891, between the two properties you. leased was this fence you speak of?
“A. As far as we knew anything about it; that is what Mr. Seitz gave me to understand was our line when we leased the property. When we cut ice we had not to look for a line, we could go on both pieces of property.
“By Mr. Jones; I move to strike out what Mr. Seitz said or what information he received from Mr. Seitz as incompetent.
“By the Court: I wish Mr. Houghten would describe that fence here which he speaks of, south of the creek up to the dyke.
“Witness; It was a fence of cedar posts, I think, 8 feet apart, as near as I can remember; three boards on it, and two, three, or four strands of wire — three or four strands of barbed wire.
“By the Court: What would you say approximately its length was?
“A. From the bank to Conner’s creek, I never measured it, but I should think offhand, it was 1,200 or 1,500 feet. (Witness continuing) : I think our lease of the so-called Seitz property was four or five years. There were some parts of the fence there in 1891. There were some traces of it there. The last I can remember of it there was some posts there and some wire there. I think the boards were all gone. It was there when I took the property, and there was some of it there when we gave up the property. It has been allowed to get out of repair during the period we were there.
“Q. About how far back from the water of the Detroit river, at ordinary stages, was this dyke you speak of?
“A. Sometimes more than others. Sometimes the water was up, within 20 feet of it and sometimes 50 or 75 feet.”
Cross-examination by counsel for complainant:
“I think we leased from Mr. Richard H. Conner the following year after we leased the Seitz property. It was in 1893. It was a five-year lease, and expired about 1898, and it was renewed for five years more. The lease was practically the same; I don’t think it was changed. That expired in 1903, and when it expired we made another new lease with Richard H. Conner for five years more, and then we made a lease with the trustees of the estate which contains practically the same description as in the lease from Richard H. Conner. I think the description is the same. While that lease was pending the HoughtenFrench Company sold out to the General Ice Delivery Company, which now has a lease or understanding for the use of the property. (Witness, shown the lease from the trustees of the Richard H. Conner estate to the General Ice Delivery Company, says that the description is the same as in the leases that Houghten-French Company had.) We had the ice privileges on the Seitz property and all of the property up to the east line of lot 6, which belonged to Mr. Conner. The only time we paid any attention to the lines was when we had to dig a canal to get in on the east side of the Seitz property.
“Q. And that is the only time you paid any atten-; tion to the line?
“A. That is the only time I looked for the line.
“Q. You dug that canal from the fence east?
“A. No; I think we went east of the fence, if I remember right. We dug that canal partly on the Seitz property and partly on the Conner property; I think we took our chances on that.”
Mr. French’s testimony upon the same point follows:
“I live in Detroit, and have since 1871, and was a member of the Houghten-French Company, and was in the ice business for a great many years.
“Q. Did you and Mr. Houghten take a lease from John Seitz of the frontage part of claim 392 years ago?
“A. Yes, sir.
“Q. And later did you and he take a lease from Mr. Richard Conner of some property lying next east of it?
“A. Yes, sir; I went out of the business five years ago the coming spring, and at that time the leases were still in force, and we were operating there in the ice business. I worked for Mr. John Seitz two or three years prior to the time we made this lease with him, working in the ice business, peddling ice, and cutting and storing it. I have known this property for a good many years.
“Q. When Mr. Houghten took the lease from Mr. Seitz about 1891 or 1892, what can you tell us as to whether there was. any fence along on the marsh running back from the river east of his land?
“A. Yes; there was.
“Q. Where was the fence located?
“A. On the east line. I was told that it was the east line between the marsh; between the old Conner’s creek and the river bank, the channel or the old cut that was there.
“By Mr. Jones: I move to strike out the testimony of what he was told and what was supposed.
“A. I understood it to be our line.
“By Judge Angelí: Is that what Seitz told you?
“A. Yes, sir.
“By Mr. Jones: I object to that.
“The fence at that time was in pretty fair shape. It was a little wire fence, short cedar posts sharpened up nicely and put in there and wire strung. After we made our lease arrangements, we cut hay on the marsh every year if it was not too wet to get in there and cut it. The fence got out of repair. Nobody paid any attention to it; and it was gradually taken away more or less. The posts stood there, more or less; a post stood there. It was not in our way when we cut hay any more than to pick up the wires with the mowing machine. The fence was put in there after Mr. Seitz bought the property from Mr. Warren. I didn’t help put that in. I helped build some north of Jefferson avenue, but I didn’t have any hand in that, but I know it was put there about 1874 or 1875, I think.”
Thereupon the following statement was made by the counsel for the complainant:
“By Mr. Jones: I am willing, if your honor please, on behalf of the complainant, to state that the complainant does not deny, and never has denied, that at one time a fence was existing from Jefferson avenue south about half way to Conner’s creek, as the channel now runs, and from the south line of Conner’s creek a major part of the distance to the Detroit river; that that fence existed a number of years prior to the death of Mr. Richard H. Conner, and in a broken-down fashion at the time of his death. I am willing this statement should go upon the record as an admission from the complainant, or as a statement of fact. Had Mr. William J. Conner been cross-examined upon that point, he would have so testified.”
We have quoted this testimony rather at large for the purpose of showing the character of the proofs upon which defendants must rely in order to establish title to the disputed strip by adverse possession.
It is elementary that the burden of proving adverse possession rests upon the party alleging it. The doctrine is to be construed strictly, and such possession cannot be made out by inference, but. only by clear and positive proof. 1 Am. & Eng. Enc. Law (2d Ed.), p. 887.
As a general rule, where the possession of land is separated from the title, the law will not presume that the possession is adverse, but every presumption is in favor of possession in subordination to the title of the true owner. 1 Am. & Eng. Enc. Law (2d Ed.), p. 888. See, also, cases cited on page 541 in Yelverton v. Steele, 40 Mich. 538. In this case it is said, quoting from Mr. Justice Duncan from a note to Taylor v. Horde, 2 Smith’s Leading Cases, 561, that in order to constitute a bar to the assertion of a legal title by the owner of it, adverse possession must be “an actual, continued, visible, notorious, distinct, and hostile possession.”
While not controlling, the following facts are significant: The deed from Seitz and wife to Joseph H. Berry of private claim 392 does not purport to convey any portion of private claim 386, upon which the disputed strip lies. On the 15th of February, 1906, Mr. Joseph H. Berry deeded to the Detroit Terminal Railroad Company a strip of property for its right of way, described as follows:
“All that certain piece or parcel of land situate and being in the • village of Fairview, county of Wayne, and State of Michigan, and described as follows, to wit: A strip of land 66 feet in width from the easterly side of private claim 392, being the east 66 feet of the said private claim, the said strip extending from Jefferson avenue southerly to the harbor line of the Detroit river, and containing 8 acres of land, more or less.”
The railroad, grantee in said deed, built upon the 66 feet lying west of the true line between the two private claims. No part of the strip in dispute was occupied by said railroad company as its right 'of way under said deed.
From these facts it is argued by counsel for complainant that neither Mr. Berry nor his grantee, the railway company, regarded the old fence line as the true dividing line between the claims in question. The cases of Diehl v. Zanger, 39 Mich. 601, Hoffman v. City of Port Huron, 102 Mich. 417 (60 N. W. 831), Husted v. Willoughby, 117 Mich. 56 (75 N. W. 279), F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251), and Gildea v. Warren, 173 Mich. 28 (138 N. W. 232), relied upon by defendants, and accepted as controlling by the learned circuit judge, seem to us to be clearly distinguishable from the case at bar. In the instant case the fence relied upon as fixing a boundary line by the acquiescence between adjoining landowners never extended the entire distance upon the line claimed by the defendants, and it was not maintained continuously. The character of the land upon their side of the fence should be taken into consideration. It was such as to render actual husbandry impossible, and, probably, even pasturage of little value.
Under the proofs contained in this record, we are of the opinion that it would be carrying the doctrine of adverse possession to a point farther than it ever has attained in this State to hold that this old fence, erected many years ago through a marsh, and which was thereafter allowed to fall into decay and disuse, was sufficient to establish a boundary line between the two private claims, and thereby dispossess complainant of real estate to which he has the legal title.
The decree of the circuit court will be reversed, and a decree will be entered in this court in accordance with the prayer of the bill. .
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, J.
This case was an appeal by four heirs of the deceased from an order of the probate court of Osceola county allowing two annual accounts of E. F. Birdsall, administrator de bonis non of said estate, and was tried before the circuit court of said county without a jury. Said court, having made a finding of facts and conclusions of law, entered a judgment thereon in effect affirming the conclusions of the probate court, dismissed the appeal without costs to either party, and ordered the judgment to be certified to the probate court in accordance with the usual practice.
The facts necessary to be stated in this opinion are that deceased, who during his lifetime was engaged in the grocery business and farming in Evart, Osceola county, died intestate in May, 1907, leaving an estate of real and personal property which was inventoried at the sum of $65,864.89, consisting mostly of real estate, against which there were liabilities in the nature of mortgage indebtedness, with accrued interest, and also unpaid taxes and claims allowed by the commissioners, all amounting to $26,536.43. After his death his son, Edward C. Thompson, was during the same month appointed special administrator of his father’s estate, and later was appointed general administrator. He at once qualified and entered upon the duties of his office. Before his death the intestate executed and delivered quitclaim deeds of certain lands to three of his five heirs. In July, 1907, all of the heirs entered into an agreement which provided that the real estate so conveyed should be appraised as part of the estate of deceased and treated as a credit upon the share of each, after deducting all incumbrances against such property, and that each of the heirs should receive a one-fifth interest in his estate, including the deeded property, and that those who held the deeds should be considered as trustees for all the heirs. The son, from the time he was appointed administrator in May, 1907, acted in such capacity for said estate until December 13, 1909, during which time he filed no account of his acts and doings as such administrator. He filed such an account February 1, 1909, which was not acted upon until November 22, 1912.
In October, 1909, a creditor of the estate filed with the judge of probate a petition for his removal as administrator, upon which a citation was issued, which was never served. Later Blanche Cox, one of the daughters of deceased, filed a petition for the appointment of Elmer F. Birdsall as administrator de bonis non, on November 18, 1909, which was the date of the resignation of the son, Edward C. Thompson, as administrator, which resignation had been requested by the judge of probate. The petition for the appoint ment of an administrator de bonis non was heard and granted December 13, 1909, and the appointment duly made. The details, of this transaction need not be stated further than it is undisputed that the judge of probate had promised the new administrator before his appointment that he would receive $1,000 as compensation for his first year’s services if he would accept the appointment and assume the duties of the office. The new administrator immediately filed his bond, assumed the duties of his office, and took possession of all of the property belonging to. the estate, and has so continued to act, as far as the record shows, up to the time of the hearing of this case. On June 17, 1910, such administrator de bonis non filed an account in the probate court as such administrator, and on January 30, 1911, he filed another account, which two accounts comprise his first annual account of administration of the estate. He filed his second annual account February 20, 1912. Before the hearing upon this second annual account was had three of the heirs of deceased, being the appellants in the instant case, filed objections in the probate court to certain items in both the first and second annual accounts, and also objections to the legality of his appointment and of certain sales and disbursements made by him. These objections were overruled, and an order was made by the probate court allowing the account on April 23, 1912. From such order an appeal was taken under the statute to the circuit court, where the proceedings of the probate court were affirmed. Four of the heirs of Edward C. Thompson have brought the case to this court for review upon writ of error.
This estate, as appears already from the statement of the amount at which it was inventoried, was of considerable size, and, as also appears, was quite largely indebted upon mortgages and unsecured indebtedness. The record shows that its administration before the appointment of the administrator de bonis non was very unsatisfactory, and that at the time Mr. Birdsall undertook the duties of his office was not at all in a satisfactory condition. During the two years covered by the accounts of the present administrator he was actively engaged, and with fair success, in an attempt to relieve the estate from pressing indebtedness in the shape of mortgages and unsecured claims and to bring about a condition whereby as much as possible could be realized from the assets of the estate for distribution to the heirs. It will not be necessary to go into the details of his administration or the items of these accounts, except in so far as may be necessary in considering the specific objections which were made as to some of them and which were overruled by the trial court.
As already stated, the case was tried before the court without a jury, and findings of fact and conclusions of law were duly made and filed. Amendments to these findings and conclusions were proposed by appellants, and were all denied by the court and exceptions duly taken and errors assigned. These are all based upon the formal objections which were filed and considered upon the appeal heard in the circuit court. The errors assigned and relied upon will be considered in the order in which they were presented to this court by the appellants.
First. The first contention of appellants is that the appointment of Mr. Birdsall as administrator de bonis non was illegal, and consequently all his official acts were void, for the reason that his predecessor had not formally been discharged and his account settled. Supporting this claim, sections 9333 and 9334, 3 Comp. Laws (4 How. Stat. [2d Ed.] §§ 11049, 11050), are invoked. These sections read as follows:
“Sec. 9333. If an administrator shall reside out of this State, or shall neglect, after due notice by the judge of probate, to render his account and settle the estate according to law, or to perform any decree of such court, or shall abscond or become insane, or otherwise unsuitable or' incapable to discharge the trust, the probate court .may, by an order therefor, remove such administrator, and every executor and administrator, upon his request, may be allowed to resign his trust, when it shall appear to the judge of probate proper to allow the same: Provided, such executor or administrator shall, prior, and up to the time of his resignation, settle and adjust his accounts with the estate of which he may be executor or administrator: Provided further, that the sureties of such executor or administrator shall not be released from liability until such executor or administrator shall have fully settled and adjusted his accounts as aforesaid.
“Sec. 9334. When an administrator shall be removed, or his authority shall be extinguished, the remaining administrator, if any, may execute the trust; if there shall be no other, the court of probate may commit administration of the estate not already administered to some suitable person, as in the case of the death of a sole administrator.”
The situation in the instant case was that the first administrator had filed his resignation leaving the administration of the estate incomplete and its affairs in an unsatisfactory condition. A necessity arose, as the probate court found, for the appointment of an administrator de bonis non. The record does not show that the resignation was accepted and the administrator discharged. It does show that an administrator de bonis non was at once' appointed and entered upon the duties of his office, and that the former administrator took no further part in the settlement of the estate. It is an admitted fact that the first administrator had not settled and adjusted his accounts up to the time of his resignation. To require him to do so .was within the power of the probate court, a prompt exercise of which would have been highly proper. The statute relied upon by appellants expressly saves the estate, harmless to the extent of an administrator’s bond, stating in express terms that:
“The sureties of such executpr or administrator shall not be released from liability until such executor or administrator shall have fully settled and adjusted his accounts as aforesaid.”
It surely cannot have been the legislative intent to hold up the administration of an estate until such time as a former administrator’s accounts could be adjusted.
We agree with the learned circuit judge that this was a case where the court could very properly commit this administration to some suitable person, as provided by section 9334, supra, and that the statute relied on does not prohibit such appointment.
The second and third objections of appellants and the errors assigned thereon are waived.
The errors claimed and relied upon under the fourth, fifth, and seventh subdivisions of appellants’ brief will be considered together. They are as follows:
Fourth. That the sales of real estate to Mr. Beech and Mr. Glerum were so low. and for such an inadequate price as to be a fraud upon the heirs.
Fifth. That Mr. Birdsall paid claims which were not a proper charge against the estate.
Seventh. Mr. Birdsall paid between $250 and $300 to real estate agents for expenses in connection with the sale of the farm property, which is alleged to be illegal and void.
The fourth group of errors relates to the sales of two parcels of property made by the administrator de bonis non under authority by the court to sell at private sale under which seven other sales were made. The whole proposition turns upon the question of inadequacy of price received for these two parcels. The record shows that considerable testimony was offered and received as to the adequacy of the prices received for the two sales, and that the testimony of the witnesses who were acquainted with the property as to values differed materially. The contention of appellants is that the overwhelming weight of this evidence was against the finding and conclusion of the court. That there is evidence to support the sufficiency of the price received on these sales is not disputed. The court in his conclusions as to value, therefore, was not in error in holding that the prices received were adequate.
Under the fifth subdivision of appellants’ brief the claim is made that the administrator de bonis non paid certain claims that were not proper charges against the estate. The first of these is the sum of $100 paid to Mr. Riek, who held a tax deed against certain lands for the year 1881, which lands were acquired by deceased in his lifetime under a tax deed from the auditor general for the years 1892, 1893, and 1894, subsequent to the tax title of Riek. Some of these lands deceased conveyed by warranty deed to Ezra Pfohl, and the disputed $100 was paid for a quitclaim deed from Mr. Riek of that portion sold to Pfohl. The contention of appellants is that this was absolutely unauthorized and void; that no such claim was ever presented to the commissioners on claims; that the grantee of deceased had made no claim of breach of warranty. The court held that the payment, having been made under the advice of an attorney, with the consent of the probate court, was a proper payment. There is no question as to the good faith of this settlement. It was not a question whether it was a claim against the estate, as the foregoing statement shows. The matter was submitted to a reputable attorney, who advised a settlement, which was accordingly made, and, under the circumstances, we think it was properly allowed.
The next item referred to is the sum of $100, a discount paid to a bank at Evart by the administrator in order to realize needed funds to use for the benefit-of the estate. The record shows that he made inquiry of several banks in attempting to cash a mortgage of $4,500. The act, in our opinion, was one within his reasonable discretion, and the amount was properly allowed by the trial court.
Seventh. Under this subdivision of the assignments of error appellants claim that the payment by the administrator of 2½ per cent, to certain real estate agents for bringing about the sale of what is known as the farm property was illegal and unauthorized, and that the court was in error in allowing the same. That the services were rendered, and that the price charged was not unreasonable, is not in question. Appellants rely solely upon a construction of section 9438, 3 Comp. Laws (4 How. Stat. [2d Ed.] §11149). This statute fixes fees for such services,' to be paid to executors and administrators. Such fees are charged in this administrator’s account, and appellants concede that they should be allowed at statutory rates. The contention that to this may be added the further percentage of $250 as commissions to the real estate agents involves the proposition that on the sale of real estate by an administrator the statutory fees may be disregarded. The exact question has never been passed upon by this court, and is one of considerable importance. In our opinion, the provision of the statute for commissions allowed execu» tors and administrators on the sale of real estate is the measure of compensation for the discharge of such duties, whether the sales were made by the executor or not, and therefore that credit for commissions paid agents for effecting sales of real estate should not be allowed in addition to the statutory fees. This is the construction given by the supreme court, of the State of Missouri to a somewhat similar statute. Jacobs v. Jacobs, 99 Mo. 427 (12 S. W. 457). See, also, In re King’s Estate, 110 Mich. 203 (68 N. W. 154).
The administrator de bonis non elected to take as his compensation the statutory commissions on amounts collected upon all sales made by him, and has included the same in his account; therefore to allow this amount paid to real estate agents for the same services would be a double payment and illegal. The court was in error in allowing this item for commissions paid to the real estate agents, for the reason that it was not authorized.
Sixth. The sixth contention of appellants, which has been left to be considered last because of its importance as to amount and as to the question involved, is stated by appellants as follows:
“(6) That before Mr. Birdsall would accept the appointment of administrator Judge Chase agreed to pay him $1,000 as his fees for his first year’s services, and Mr. Birdsall paid himself. $1,025 as his fees for the first year.”
The only reference by the court to this matter in the findings of fact is as follows:
“I find that Mr. Birdsall has rendered extraordinary service to the estate, for which he is reasonably entitled to extra compensation in the sum of $810.”
And in the conclusions of law we find the following:
“The appeal for commissions and extra compensa tion, amounting in all to $1,025, presented and allowed by Mr. Birdsall with his first annual account, is objected to, because Mr. Birdsall was promised extra compensation if he would assume the duties of the office. The evidence tends to show that Mr. Birdsall was reluctant to take the appointment, and was urged to do so, and was indirectly informed that the probate judge would allow him extra compensation. Such an arrangement would be absolutely void, and it violates every principle of the probate law, and I therefore repudiate it. However, I have no doubt at all but what Mr. Birdsall’s ability as a business man saved to the creditors of this estate and saves to the heirs anything they get. Now, it would not be right to turn him out of court without an extra allowance. And I do not think the heirs can have a single thing to complain of, except the way in which it was brought about; the result was all right, in my opinion. While I set aside the order of the probate court in this respect, I will allow the compensation myself. And I allow it at the same sum as was presented in the court below — $810 extra compensation.”
The court, in the conclusion of law just quoted, repudiated the offer made by the probate judge to the administrator previous to his appointment to pay him for his services during the first year $1,000, as absolutely void and violating every principle of the probate law, and set' aside the order of the probate court allowing compensation. After doing this, the trial court, on its own initiative, allowed $810, the amount in dispute in this matter, as extra compensation to the administrator de bonis non. Appellants contend that such action was erroneous.
A careful reading of all the testimony does not show any oral evidence in the case to the effect that the account of the administrator for compensation was allowed at the time of the hearing of his first annual account, April 4, 1911. All of the witnesses who testified upon the question, including the administrator, agree that the account was before the court at that time and was discussed at length. Several of these witnesses swear positively that it was not allowed at that time, and that the probate judge stated in open court that it would be passed for the present, and the hearing was adjourned. This first annual account was filed in two parts, as already appears in this opinion. The first part was filed July 15, 1910, and the second January 30, 1911. The record shows that an examination of the probate court records made by Mr. Hall, one of appellants’ attorneys, March 20, 1912, showed no such order had been entered, filed, or indexed, and at that time the probate judge for the first time informed Mr. Hall that he had allowed the account in question, but had not made any order concerning it.
The record shows that this account for services, which included commissions for sales of real estate which are not contested, appears attached to, and as a part of, the second annual account of this administrator, which was not filed until February 20, 1912, and was passed upon April 23, 1912. It further appears undisputed that on January 10, 1911, the administrator drew his check No. 108 on the First State Savings Bank of Evart to his own order for $1,025. This check was paid February 8, 1911, and is printed in the record. It is not disputed that this, was in payment of this claim for compensation, and was taken by him from the funds of this estate three months before its presentation and claimed allowance by the probate court.
Portions of what were represented to be the original files and records in this case were presented to this court and used by consent of counsel upon the argument of the instant case and were examined by the court. From these books and papers it appeared that the order claimed to have been made by the probate court was not entered in due course according to the dates of orders before and after it, nor in the journal of the court, but appeared in what was labeled as “Miscellaneous Records No. 2,” which book, it is claimed, was not offered in evidence on the part of the administrator or identified by the probate judge, who, although present in court during the trial, was not produced and sworn as a witness; and it further appeared that the date either on the order or the disputed account was first written April 4, 1912, and the 2 changed to 1, to make it read April 4, 1911. The only proof of this order offered on the part of the administrator was the order itself, as above described, which the record .shows was found in the files of the case in March, 1912. It further appears that the claim that this disputed item for compensation belongs to and is a part of the second annual account is not supported by the evidence of the order itself, which shows that its allowance antedated the hearing of the second annual account by more than one year. Our conclusion is that, from the overwhelming evidence in this case, this disputed account was never allowed by the probate court. The proceedings which are claimed to have resulted in such action on the part of the probate court cannot be dignified by this court as regular judicial action, and must be considered as absolutely void and of no effect. This must be taken in connection with the undisputed agreement of the probate judge to pay $1,000 to the administrator for his first year’s services. The trial court correctly took this view of the matter and set aside the action of the probate court.
The appeal made in this case from the allowance by the probate court for services to the administrator was on the ground that such order was made in pursuance of the agreement of the probate judge, already stated, and was therefore absolutely void. Upon that theory this item was attacked by appellants, and the case was tried in the circuit court. Upon their appeal to this court the same contention is made. They have continually insisted that this was- not an allowance of extra compensation contemplated by the statute, but that it was done in fulfillment' of an agreement. The court held that “such an arrangement would be absolutely void* and it violates every principle of the probate law, and I therefore repudiate it,” and thereupon set aside the order. Thereby the whole order of the probate court was set aside. No part of such an order could survive. It was all absolutely void. As already indicated, this claim for services included no element whatever based upon a claim under the statute for extra compensation. Such claims must be made primarily in, and passed upon by, the probate court. Questions upon the allowance or disallowance of such claims are first raised in the probate court, and only find their way to the circuit court for review by an appeal to that court. Therefore this question of the allowance of' extra compensation under the statute to the administrator in this case was never properly before the circuit court for determination. The court, therefore, was in error in allowing the sum of $810 to the administrator for extra compensation. There was, however, due the administrator from the estate the sum of $215 commissions on sales of personal and real estate to which he was entitled under the statute and which has always been admitted by the appellants to be a legal charge against this estate and which must be allowed.
Some errors are assigned upon the rejection of evidence. They have been examined, and we are satisfied that they do not require consideration. This disposes of all assignments of error which have not been waived in appellants’ brief, except the matter of costs, which we grant appellants.
The judgment of the circuit court is reversed, and, as there are no disputed questions of fact to be de> termined, the case will be remanded to the circuit court, where a judgment will be entered in accordance with this opinion, with costs of both courts against the administrator de bonis non, to be taxed without prejudice to the presentation of the administrator’s claim for compensation to probate court.
Brooke, C. J., and Kuhn, Ostrander, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
Plaintiff seeks compensation in this suit for defendants refusal to accept and pay for certain ice which he claims it contracted for to be delivered in the year 1910. In the year 1909 plaintiff was engaged in the business of farming and putting up ice at or near Waterford, a short distance from the city of Detroit. In November of that year he claims to have entered into a contract with defendant to furnish it ice to supply its retail trade in the city of Detroit. Letters which passed between the parties are relied upon to establish an enforceable contract. On October 20, 1909, defendant wrote plaintiff as follows:
“Mr. E. J. McConnell, Mgr.,
“Waterford, Mich.
“Dear Sirs:
“Am in receipt of your letter relative to lake ice. Kindly advise me your rate, R. R. facilities, etc. We may decide to handle ice next year and have been looking for a good product. We can arrange to store probably 10 cars at time. It will be necessary to get to' rock bottom in order to enable us to handle and make a fair return for our labor.
“Yours truly,
“Harrell & Hoffman Co.,
“Per O. Harrell.”
Eight days thereafter the defendant again wrote plaintiff:
“Mr. E. J. McConnell,
“Waterford, Mich.
“Dear Sir:
“Your letter 27th reed, to-day. I shall be up to see you one day the coming week and look over the situation. Kindly advise by return mail when it will be convenient for you to meet me, etc. I could phone you if you have connection with Detroit.
“Yours truly,
“Harrell & Hoffman Co.
“Harrell."
Following these letters, the parties had several interviews, in which they discussed the subject-matter of the contract, and on November 16th defendant addressed to plaintiff the following letter:
“Mr. E. J. McConnell,
“Waterford, Mich.
“Dear Sir:
“After going over the situation carefully, we have decided to handle ice provided it will not cost us to exceed 90c, per ton 2,000 f. o. b. cars Waterford, and will be willing to enter into a contract to take a minimum of 2,000 tons with privilege of 5,000 tons. You will readily understand that being a brand-new proposition with us it is difficult to estimate probable ton-’ nage; however, you will put yourself in position to furnish us up to the maximum, and it won’t take long after the ice season begins for us to determine our approximate requirements, thus giving you time enough to take on additional business required to get rid of the harvest. Our desire will be to hook up with you for our supply from year to year and be assured we will get our requirements without seeking new source of supply. We have, we might say, made a success in our present time with strong competition and without an iceman within two miles of us we fail to see why we should not find an outlet for a goodly tonnage of ice each season and a steady business the year round.
“We shall expend $600 to try it out next year and will add as it grows.
“Awaiting your acceptance and wishes as to further arrangements, we are,
“Yours truly,
“Harrell & Hoffman Co.,
“0. Harrell, Prest. Mgr.”
To this letter plaintiff replied, accepting the defendant’s proposition. He retained no copy of his letter, but, after laying the proper foundation, was permitted by the court to show the contents of it, which were as follows:
“I accept your proposition of 90c. per ton f. o. b. Waterford. I will go right at once and, order my lumber to put up my icehouse and get ready for you and build them.”
He also stated in the letter that “we would have a written contract drawn up when I come in.”
In reliance on the letter of 'November 16th, and his reply thereto, the plaintiff claims he at once purchased lumber, erected his icehouse and in the winter following harvested over 5,000 tons of ice, 4,500 of which he placed in the icehouse, and the remainder — 600 or 700 tons — was left on the bank of the lake to be used in taking care of immediate deliveries. And he further claims that on February 22d he shipped the defendant five cars, approximately 100 tons of ice, to apply on his contract; that from time to time defendant made various excuses for not ordering any more ice, and finally, on June 10th, it advised him that no more ice would be accepted.
It is the claim of the defendant that whatever negotiations were had were simply preliminary to a contract, which was never entered into upon its part. It admits that it received the five cars of ice, but says that that shipment was an independent shipment, and had no reference whatever to any previous contract. The trial court submitted to the jury the question as to whether plaintiff wrote and mailed to defendant his letter of acceptance; also the question as to whether the five cars of ice were shipped by plaintiff in part performance of his claimed contract. They .were instructed that, if they found in the affirmative upon either one of those propositions, the contract would be a valid one.
The jury awarded the plaintiff a judgment of $3,600. A new trial was applied for, and upon the hearing thereof the judgment was reduced from $3,600 to $3,100. It was clear to the trial court that the jury had accepted plaintiff’s testimony that he had 4,000 tons in his house on June 10th, and had given him 90 cents per ton therefor, without making any deduction for loading the same on the cars at Waterford, which plaintiff admitted would cost 12% cents per ton. To compensate for this omission, the court ordered a new trial in the event plaintiff did not acquiesce in the. reduction. The defendant has removed the proceedings tó this court for review, and its assignments of error raise two questions:
(1) Do the letters establish a valid contract?
(2) Was the judgment rendered for a larger amount than the proofs would justify?
Whether these letters constitute a completed contract, or whether they were but steps in negotiations leading up to one, is a question of the intention of the parties. Gates v. Nelles, 62 Mich. 444 (29 N. W. 73); Wardell v. Williams, 62 Mich. 50 (28 N. W. 796, 4 Ann. St. Rep. 814); Central Bitulithic Paving Co. v. Village of Highland Park, 164 Mich. 223 (129 N. W. 46, Ann. Cas. 1912B, 719). In Mississippi, etc., Steamship Co. v. Swift, 86 Me. 259 (29 Atl. 1063, 41 Am. St. Rep. 545), which considers a like question, the following suggestions are made as an aid in determining the intention of the parties in such cases:
“In determining which view is entertained in any particular case, several circumstances may be helpful, as: Whether the contract is of that class which are usually found to be in writing; whether it is of such} nature as to need a formal writing for its full expression ; whether it has few or many details; whether the amount involved is large or small; whether it is a common or unusual contract; whether the negotiations themselves indicate that a written draft is contemplated as a final conclusion of the negotiations. If a written draft is proposed, suggested, or referred to during the negotiations, it is some evidence that the parties intended it to be the final closing of the contract.”
In order to be enforceable, this contract, under our statute, would have to be in writing. It was in writing. It had few details. The amount involved was not what would be regarded in the commercial world as a large amount. The contract would be considered an ordinary one. There is nothing in the contract which indicates that a written draft should be made before it became binding; in fact, the reverse of that is inferable from plaintiff’s statement in his letter of acceptance, wherein he stated that he will proceed at once to purchase his lumber and erect his icehouse. True, he suggests that the contract be put in writing. This makes against the plaintiff’s contention; but even this suggestion may be construed merely as a desire to have the terms of the contract put into more formal shape. Mississippi, etc., Steamship Co. v. Swift, supra. The question was already settled that the defendant would go into the ice business. The price at which it was willing to contract was stated to plaintiff. The amount of tonnage it would need was stated as definitely as the state of its trade would permit, and it was stated in one of the letters that ten cars could be stored at one time on its siding. There appears to have been nothing left to consider or to agree upon to make it a completed contract, and we are of the opinion, in view of the finding of the jury as to the letter of acceptance, that the contract was a completed one.
The judgment is further questioned because the jury had no basis for finding as large a verdict as they did. The plaintiff testified as to the dimensions of his icehouse. He further testified as to the weight of a cubic foot of ice. We are satisfied from a computation based upon his own figures that the capacity of his icehouse was not as great as' he estimated it. We are further convinced that there was not sufficient allowance made by the jury for the natural shrinkage of ice.
For these reasons we are of the opinion that the verdict should be reduced from $3,100 to $2,500. The plaintiff will be given 30 days after a remittitur is filed to elect to file his consent to a judgment of $2,500. Should such consent not be filed within that time, the judgment will be reversed, and a new trial ordered. Otherwise it will stand affirmed, with costs to defendant in any event.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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MOORE, J.
This case comes here on exceptions before sentence.
The respondent was charged and convicted under section 11591, 8 Comp. Laws (5 How. Stat. [2d Ed.] § 14646), which provides:
“If any officer, agent, clerk, servant, employee or lessee of any incorporated company, foreign or domestic, or if any agent, clerk, servant, employee or lessee of any private person, or of any copartnership, except apprentices and other persons under age of sixteen years, or if any attorney at law, collector or other person, who, in any manner, receives or collects money or any other property for the use of and belonging to another, embezzles or fraudulently converts to his own use, or takes and secretes with intent to embezzle and convert to his own use without the consent of his employers, master, or the owner of the money or goods collected or received, any money or property of another or which is partly the property of another and partly the property of such agent, clerk, servant, employee, lessee, attorney at law, collector or other person, which has come to his possession or under his care in any manner whatsoever, he shall be deemed to have committed larceny. * * * Provided, further, that failure, neglect, or refusal of such officer, agent, clerk, servant, employee, lessee, attorney at law, or other person to pay, deliver or refund to the proper person, company or copartnership such money or goods entrusted to his care, upon demand, shall be prima facie proof of intent to embezzle.”
The information charged the respondent, in four counts, with the embezzlement, “on the 22d day of July, A. D. 1907, and on divers other days and times between said 22d day of July, A. D. 1907, and the 20th day of May, A. D. 1912,” of $210,000 of the money and property of his employer, Fritz Karste, which came into his possession by virtue of his employment as agent and servant. A count for larceny was also included in the information, which count was abandoned on the trial.
There are upwards of 600 assignments of error, a record of upwards of 2,000 printed pages, and the briefs of counsel for appellant contain more than 1,000 pages. It is apparent that a smaller record, fewer assignments of error, and much less voluminous briefs would have presented every meritorious question. We shall discuss but few of the assignments of error, and shall quote but little of the testimony.
For many years Fritz Karste of Sheboygan, Wis., was the owner of a bank in the city of Ironwood in this State. For many years respondent was cashier of this bank. Mr Karste died in May, 1912. Shortly after the death of Mr. Karste, a special administrator was appointed, and a few days later three accountants were employed, who found a shortage in the funds of the bank of upwards of $100,000. Later this criminal proceeding was instituted with the result already stated. After the conviction of the respondent a motion for a new trial was made, which motion was overruled; the trial judge filing an elaborate written opinion stating his reasons for so doing.
The first group, of assignments requiring attention relates to the refusal of the judge to direct a verdict of not guilty, for the reason that the people had failed to make a case against respondent. It would profit no one to review the testimony. We shall content ourselves with saying that there was an abundance of competent testimony which, if believed, justified the verdict.
Another group of assignments relates to the refusal of the court to require the prosecuting attorney to deliver certain written memoranda in his possession made by the accountants to the attorneys for the respondent. The court had allowed to the respondent and his attorneys the fullest access to the books and papers of the bank. This being so, we think his ruling well within his discretion.
Error is assigned to the refusal of the court to grant a change of venue. But two affidavits were made in favor of this motion. A jury was obtained with which the respondent announced himself as satisfied before his peremptory challenges were exhausted. The court did not commit error in this respect. See People v. Swift, 172 Mich. 473 (138 N. W. 662).
A group of assigned errors relate to the conduct of the prosecuting attorney, and especially to his argument to the jury. As the case must be reversed for a reason which will be stated later, we find it unnecessary to decide whether this was reversible error. While zeal in a prosecuting attorney is to be commended, and it is apparent that the attorneys for the respondent were not without zeal, and their conduct was very trying, to say the least, to the prosecuting officer, we are compelled to say that we think the record would be more satisfactory if some of the language used by the prosecutor had been unsaid. See People v. Gotshall, 123 Mich. 474 (82 N. W. 274); People v. Lieska, 161 Mich. 630 (126 N. W. 636); and People v. Huff, 173 Mich. 620 (139 N. W. 1033).
A group of assignments of error relates to the overruling of a motion that the prosecuting attorney be prevented from taking part in the trial because of being interested. The record shows he was a depositor in the Bank of Ironwood. He acted as counsel for the special administrator in some matters growing out of the administration of the estate, but claims that none of them involved the respondent or his dealings with the bank. We quote from the brief of the prosecuting attorney:
“A petition was filed, asking the appointment, in Michigan, of the Wisconsin administrator, and another who was a resident of the city of Ironwood, and obviously friendly to the interests of respondent, who was under arrest and undergoing examination at that time. As the books and records of the Bank of Iron wood contained a large part of the evidence against respondent and would be delivered into the possession of the person or persons appointed administrator in Michigan, the prosecuting attorney was opposed to the appointment of the administrators which respondent’s counsel sought to have appointed. On request of some creditors, Mr. O’Neill appeared gratuitously in the probate court and objected to the appointment of those persons, or either of them which respondent’s counsel was seeking to have appointed. There was no employment, however, by these creditors of the prosecuting attorney, as their private attorney; that is, there was no hiring for compensation. The statement repeatedly made throughout the entire brief of respondent that the prosecuting attorney was employed by 75 per cent, of the creditors of the bank is absolutely untrue, and is unsupported by the record. No proof at any time was offered of any employment of Mr. O’Neill by any creditor of the bank, and the undisputed evidence is that Mr. O’Neill never was employed as attorney for any of the creditors and never acted as attorney for any of the creditors except in the probate proceedings as before stated.”
The trial judge was in grave doubt about overruling the motion, but finally decided to do so.
Section 2556,1 Comp. Laws (1 How. Stat. [2d Ed.] § 1152), defines the duty of prosecuting attorneys. Section 2561 provides:
“No prosecuting attorney shall receive any fee or reward from or on behalf of any prosecutor or other individual for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counsel for either party other than for the State or' county in any civil action depending upon the same state of facts upon which any criminal prosecution commenced or prosecuted shall depend, or in any action for malicious prosecution commenced or prosecuted during his term of office in the county of which he is prosecuting attorney; nor shall any attorney be permitted to prosecute, or aid in prosecuting any person for an alleged criminal offense where he is engaged or interested in any civil suit or proceeding depending upon the same state of facts, against such person directly or indirectly.”
This statute has been frequently construed by this court. People v. Cline, 44 Mich. 290 (6 N. W. 671); People v. Hillhouse, 80 Mich. 580 (45 N. W. 484); People v. Bussey, 82 Mich. 49 (46 N. W. 97); McCurdy v. Insurance Co., 115 Mich. 20 (72 N. W. 996); Harley v. Ionia Circuit Judge, 140 Mich. 642 (104 N. W. 21), and the cases there cited.
In the instant case respondent was defending upon the theory that another than himself caused the shortage in the funds of the bank. The same state of facts which would sustain his conviction if shown would establish his civil liability to the bank. The prosecuting attorney was a depositor in the bank, which gave him a direct interest in its assets, one of which-might be the liability of the respondent. We think this brings him within the language of the statute and the cases cited.
We have examined the other assignments of error, but think it unnecessary to discuss them, as they are not well taken or are not likely to arise again.
The conviction is set aside, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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McAlvay, C. J.
This is a case which originated in the police court of Grand Rapids, from which it was appealed to the circuit court of Kent county, where, upon trial, respondent was found guilty. Respondent has removed the case to this court for review upon exceptions before sentence.
Respondent, who was employed in a cigar store in the city of Grand Rapids, was prosecuted for selling cigarettes to James Sproat, a minor of the age of 17 years, in violation of Act No. 226, Pub. Acts 1909, of this State (2 How. Stat. [2d Ed.] §§ 5295-8), prohibiting such sale. The facts are undisputed. It will therefore be unnecessary to relate the circumstances in detail, except that the cigarettes were not purchased by the minor to be used by him, but for the purpose of obtaining evidence for prosecution.
Respondent, in all the courts in which this case has been heard, as well as in this court, challenges the constitutionality of Act No. 226, Pub. Acts 1909, and particularly section 2 thereof, under which this prosecution was brought, for the reason that it contravenes the provisions of section 21 of article 5 of the Constitution of the State of Michigan, which reads as follows:
“No law shall embrace more than one object, which shall be expressed in its title.”
The title of the act under consideration reads:
“An act to prohibit the manufacture, sale or use of adulterated cigarettes, and prohibiting the use of cigarettes by minors.”
Respondent was arrested and prosecuted under section 2 of this act, which reads as follows:
“Any person within this State who sells, gives to, or in any way furnishes any cigarettes in any form to any person under twenty-one years of age shall be punished by a fine not to exceed fifty dollars, or im prisonment in the county jail not to exceed thirty days for each offense.”
While all of the provisions of this act are not in question, yet we think it will be helpful to a better understanding of the question involved in the case if we quote the entire body of the act, which is not of great length, as follows:
“No. 226. .
“An act to prohibit the manufacture, sale or use of adulterated cigarettes, and prohibiting the use of cigarettes by minors.
“The people of the State of Michigan enact:
“Section 1. Any person within the State who manufactures, sells or gives to any one, any cigarette containing any ingredient deleterious to health, foreign to tobacco, shall be punished by a fine of not more than fifty dollars, or imprisonment in a county jail for not more than thirty days.
“Sec. 2. Any person within this State who sells, gives to, or in any way furnishes any cigarettes in any form to any person under twenty-one years of age shall be punished by a fine not to exceed fifty dollars, or imprisonment in the county jail not to exceed thirty days for each offense.
“Sec. 3. Any person under twenty-one years of age who shall smoke or use cigarettes, in any form on any public highway, street, alley, park or other lands used for public purposes, in any public place of business, may be arrested by any officer of the law, who may be cognizant of such offense; and further, it shall be the duty of all such officers, upon complaint of any person and upon warrant properly issued to arrest such offenders and take them to the proper court. In case the offender is found guilty, the court may impose a punishment at its discretion, in the sum of not to exceed ten dollars or imprisonment in the county jail not to exceed five days for each offense: Provided, that if said minor person shall give information which may lead to the arrest of the person or persons violating section two of this act, in giving to or selling, or in any way furnishing _ said minor person tobacco or cigarettes, and shall give evidence as a witness in such proceedings against said party or parties, the court shall have power to suspend sentence against such minor person.
“Sec. 4. Any person who knowingly harbors any person under twenty-one years of age, or grants to them the privilége of gathering upon or frequenting any property or lands held by him, for the purpose of indulging in the use of cigarettes, in any form, shall be held in the same penalty as provided for in section two of this act: Provided, that no part of this act shall be construed as to interfere with the rights of parents or lawful guardians in the rearing and management of their minor heirs or wards within the bounds of their own private premises.
“Approved June 2, 1909.”
Respondent contends that the provisions of section 2 are not within the contemplation of the entitling of this act, and are therefore void. The act, as indicated by its title, quoted .supra, prohibits the manufacture, sale, or use of adulterated cigarettes, and also prohibits the use of cigarettes by minors. The only prohibition of sale expressly indicated by this entitling relates to adulterated cigarettes. From reading the act above quoted it clearly appears that it only undertakes to prohibit the use of cigarettes by minors in public places, and makes it no offense for a minor to use cigarettes in any other place. In connection with this statement the final proviso contained in the act is illuminating. It reads as follows:
“Provided, that no part of this act shall be construed as to interfere with the rights of parents or lawful guardians in the rearing and management of their minor heirs, or wards within the bounds of their own private premises.”
This statute therefore contemplates that a minor may use cigarettes with the consent of his parents or guardians within the bounds of their own private premises. So it is clear that it was not within the legislative intent to provide anything more than a modified prohibition of the use of cigarettes by minors.
If the offense created by section 2, under which respondent was prosecuted and found guilty,- can be found to be within the fair intendment of the entitling of this act, it must be under the last clause “prohibiting the use of cigarettes by minors.” Doubtless this was intended by the legislature to be in the nature of a prohibitive act, and for that purpose was clearly within the legislative authority. Fairly stated, it was the legislative intent to prohibit absolutely the manufacture, sale, or use of adulterated cigarettes, and to prohibit, to a certain extent, the use of all cigarettes by minors. Whether the provisions of section 2 absolutely prohibiting the sale of all cigarettes to minors can be sustained under this entitling will depend upon whether it can be considered by fair intendment as having a necessary or proper connection with the clause in the title of the act prohibiting the use of cigarettes by minors.
The highest authority states this proposition as follows:
“The generality of a title is therefore no objection to it, so long as it is not mad.e a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.” Cooley’s Constitutional Limitations (7th Ed.), p. 206, and cases cited.
In determining whether or not a statute is broader than its title, the court is confined to a consideration and construction of the title as it has been framed by the legislature. The court cannot speculate as to what the legislature might have intended to say, but must rely solely upon what it has said in the title under consideration.
“The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the Constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so.” Cooley’s Constitutional Limitations (7th Ed.), p. 212.
See, also, Callaghan v. Judge of Superior Court, 59 Mich. 610, at page 614 (26 N. W. 806).
In the instant case the title to this act, as already stated, contains no prohibition upon the sale of cigarettes to minors. It does contain a prohibition as to the use of cigarettes by minors, and the body of the act provides for the prohibition of such use in public places only. By section 2 of the act a criminal offense is created, and a person who sells, gives, or furnishes to any minor any cigarettes is liable to be punished by fine or imprisonment. Taking into consideration this title which the legislature has given this act, and by which we must be guided, it is our conclusion that section 2 by no fair intendment can be construed as having a necessary or proper connection with it.
It follows that the provisions of this section are broader than the title of the act, and to that extent this statute is unconstitutional and void. People v. Beadle, 60 Mich. 22-25 (26 N. W. 800); Ellis v. Hutchinson, 70 Mich. 154 (38 N. W. 14); Grosvenor v. Duffy, 121 Mich. 220-223 (80 N. W. 19). The other question presented does not require discussion.
The conviction will be set aside, and the respondent discharged.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Sharpe, J.
This is an action at law to recover under an insurance policy for the loss of 2 rings of a scheduled value of $4,000.
On October 10, 1947, defendant, Providence Washington Insurance Company, issued an insurance policy to plaintiffs, Edward and Lottie Wolf, limiting coverage to $30,000 on unscheduled personal property, $27,575 on scheduled personal property, $2,200 on item considered separately insured, and $2,500 on unscheduled jewelry and furs. The policy provided, in part:
“Property Covered
“1. Personal property owned, used or worn by the persons in whose name this policy is issued, hereinafter called the assured, and members of the assured’s family of the same household, while in all situations, except as hereinafter provided. * * *
“3. Insurance attaches only with respect to those items in this paragraph for which an amount is shown and only for such amount.”
Attached to and forming a part of the policy was the following:
“Item Sum
No. Schedule of Articles Insured Insured
“1. One ladies platinum diamond emerald cut ring with 2 baguette diamonds in 10% iridium platinum mounting. Emerald cut diamond weighing approximately 2\ ct. being premier color and perfect with a slight chip on the edge . . $3,000
“2. One ladies platinum diamond ring. Center round diamond weighing approximately 2í ct. being cape color and imperfect with 6 round diamonds in the mounting weighing approximately .02 ct. each 1,000.”
The history of the 2 rings is as follows: The $1,000 ring was originally purchased by Edward Wolf and was given to Nora Wolf when she became engaged to Morton M. Wolf, son of plaintiff, in 1937. The $3,000 ring was also purchased by Edward Wolf and given to Nora Wolf about 2 years later to console her when her first born child died. In 1946, Morton Wolf pawned the 2 rings. Edward Wolf redeemed the pledge and took possession of the rings. In November, 1947, plaintiffs together with Morton Wolf and wife went to Florida for the winter season. The 2 couples lived in adjoining apartments which were about 15 feet apart. Nora Wolf wore the rings about 5 times during the month of January, 1948, and also wore them during Christmas week of 1947. She again wore the rings on January 24, 1948, and when she returned she put the 2 rings in a jewelry box on her dresser in her bedroom. The next day she discovered that the rings were missing. The police were notified, but the rings were never found.
At the trial, plaintiff Edward Wolf first testified that the $1,000 ring was bought as an engagement ring for Mrs. Lottie Wolf from a man about 35 years ago by the name of Kowal or Kroll and that it was Mrs. Wolf’s engagement ring, and further that it was the only engagement ring he ever gave her. Later in the trial, he contradicted his own testimony and testified that this $1,000 ring was not the engagement stone that he had given his wife Lottie, and then for the first time stated that the engagement ring he had given his wife at the time of their marriage was a small stone, not over a carat, and that the engagement stone had never been lost. Nora Wolf in a signed statement to the adjuster on January 30, 1948, stated that Lottie Wolf had given her the 2 rings, but in a supplemental signed statement made on February 12,1948, stated that the rings were only given her to wear. Lottie Wolf testified that while in New Orleans and Miami Beach, Nora Wolf was permitted to wear the rings 11 or 12 times over a period of 4 months. The rings fitted Nora Wolf and did not fit Lottie Wolf. Edward Wolf admitted that he had been convicted of income tax evasion. No attempt was made by Nora Wolf or Morton Wolf to regain possession of the rings after they had been redeemed by Edward Wolf. It also appears that Edward Wolf, Lottie Wolf, Morton Wolf and Nora Wolf severally testified that the rings in question were the property of Edward Wolf and Lottie Wolf and were loaned to Nora Wolf for occasional wearing.
During the trial, the following was introduced in evidence and made a part of the record:
“Exhibit 9
A. Greenstone’s Sons Jewelers
Metropolitan Building Detroit 26, Michigan Randolph 4654 December 16,1946
“To whom it may concern:
“We have this day appraised for:
Mr. Edward Wolf 974 Sherman Ave. Detroit, Michigan
the following jewelry items for insurance purposes. 1 Ladies platinum diamond emerald cut ring with 2 baguette diamonds in 10% iridium platinum mounting. Emerald cut diamond weighing approximately 2£ ct. being premier color and perfect with a slight chip on the edge.
Valued at.........’.....................$3,000
1 Ladies platinum diamond ring. Center round diamond weighing approximately 2i ct. being cape color and imperfect with 6 round diamonds in the mounting weighing approximately .02 ct. each.
Valued at...............................$1,000-.”
At the close of all proofs, plaintiffs asked the court to direct a verdict in their favor for the reason that there was no evidence establishing that the 2 rings did not belong to plaintiffs; and that the question of the loss should not be submitted to the jury because liability was not denied upon that ground. The motion was denied and the cause submitted to the jury.
The trial court submitted the following questions to the jury:
“(1) On January 25, 1948, were the plaintiffs, Edward and Lottie Wolf, either or both of them, the owners of the 2 rings described in the policy of insurance, exhibit 1?
“(2) On January 25, 1948, were the 2 rings described in the policy of insurance, exhibit 1, permanently lost, stolen or misplaced, resulting in their disappearance ?”
Plaintiffs requested that the trial court give the following charge to the jury:
“(B) I charge you that as to all specifically scheduled articles, it is no defense that such articles were not owned by the assured, since as to scheduled articles, the article itself is insured.”
■ The court refused plaintiffs’ request and gave the following charge to the jury:
“Before the plaintiffs may recover they must satisfy by a fair preponderance of the facts, of the truth; first, that on January 25, 1948, they were the owners of the 2 rings described in the insurance policy, and second, that on the 24th or 25th of January, 1948, those 2 rings and no others were lost, misplaced, stolen, disappeared in a manner resulting in their permanent loss — that is, that they have never been found or received since. If the plaintiffs have established those 2 fundamental facts to your satisfaction by a fair preponderance of the evidence, your verdict‘would be for the plaintiffs and in the amount of $4,435, no more, no less If they have not established those -2 facts to your satisfaction by a fair preponderance of the evidence, your verdict should be for the defendant of no cause for action.”
The jury returned a general verdict for defendant company and answered the specific questions that plaintiffs were not the owners of the 2 rings, but that the loss did occur.
Subsequently, plaintiffs made a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial:
“1. Because the uncontradicted evidence in the case establishes that the .rings at the time of the loss were owned by Edward and Lottie Wolf, or either of them, defendant’s counsel in his argument to the jury having conceded that the rings pawned with the Federal Collateral Company, as testified to by Mr. Powers, were the same rings for which claim was being made in this case, notwithstanding the discrepancy in descriptions.
“2. Because under the terms of the policy the rings themselves were specifically insured, and lack of ownership constitutes no defense. * * *
“(5) Because the verdict of the jury, that plaintiffs were not the owners of the rings in question, is against the overwhelming weight of the evidence.”
The trial court denied both motions. Plaintiffs appeal and urge that under the policy the 2 rings were specifically insured; and that proof of ownership thereof in plaintiffs was unnecessary. It is conceded that Morton and Nora Wolf were not members of plaintiffs’ family as required in the “Property Covered” provision of the policy. In denying plaintiffs’ motion for judgment notwithstanding verdict or a new trial on the ground that lack of ownership of the rings in plaintiffs is not a defense, the trial court stated:
.'“Counsel has raised the point that these rings were covered in a schedule attached to the policy after its original execution, in which they were specifically valued by an appraiser and their value in case of loss determined. Counsel for the. plaintiff contends that this gives them a special status under the policy and that the ownership, use or wearing of the rings, as provided in paragraph 1 of the policy, is not a limitation upon the coverage, but that the articles themselves at the indicated value in the rider are covered, subject only to their being used or in the possession of a stranger so as to stigmatize the insurance policy with the factor of wager. The court cannot adopt this construction and finds that the limitation on the coverage is that provided in section 1, paragraph 1 of the policy, and that the rider is attached for the purpose of settling the amount of loss if the loss itself is' covered by the other provisions of the policy; in other words, that the rider does not either diminish or enlarge the coverage under the policy, but merely provides by a predetermined.method the amount of loss, if it comes within the provisions of the policy.”
The provision in the body of the policy reads as follows:
“Property Covered
“1. Personal property owned, used or worn by the persons in whose name this policy is issued, hereinafter called the assured, and members of the assured’s family of the same household, while in all situations, except as hereinafter provided.”
It is our opinion that the above provision was not intended to be limited in its application. Section 3 of the policy sets forth the limits of liability on 3 categories of property covered by the policy. Category (b)'thereof relates to “personal jewelry, watches, furs, fine arts and other property as per schedules attached hereto.” The schedule is thus incorporated by express reference into section 3. There is no ambiguity in the insurance contract. No conflict between the provisions of section 1 and section 3 as amplified by the schedule. Both can be construed together so as to harmonize without distorting any of the terms. We, therefore, hold that the provisions of section 1 apply to section 3 as amplified in the schedule. The trial court was not in error iii submitting the question 'of ownership of the rings to the jury.
It is also urged that even if the policy covered the rings only if owned by assured, the court was in error in refusing to charge the jury that issuance of the policy was a presumption of ownership in plaintiffs; The record shows that plaintiffs’ counsel offered the following request:
“(C)-I charge you that the scheduling of articles in the insurance policy constitutes an agreement between plaintiffs and defendant that such articles belonged to plaintiffs, and presumptively, therefore, the rings involved in this case were the property of Edward and Lottie Wolf, and the burden of proof is upon the defendant to establish that Edward and Lottie Wolf were not the owners thereof, and also that they were not used by Edward and Lottie Wolf or by members of the family of Edward and Lottie Wolf of the same household.”
Plaintiff establishes a prima facie case of his rights under an insurance policy by its possession unless there is evidence that the property described therein belongs to another. See 46 CJS, p 508. When plaintiff makes a prima facie case, it then devolves upon defendant to go forward with evidence that will explain away the presumption, but the ultimate burden of proof of ownership of the property is upon plaintiff. In the case at bar defendant urges that the evidence of plaintiffs’ witnesses given on cross-examination casts doubt upon its credibility, and that the signed statement made by Nora Wolf to defendant’s investigator wherein she stated that the rings were hers, a gift from her mother-in-law, overcomes the presumption of ownership in plaintiffs. We are in accord with defendant’s claim that' the signed statement of Nora Wolf was admissible in evidence as it tended to cast doubt on the authenticity of plaintiff’s testimony.
In Gillett v. Michigan United Traction Co., 205 Mich 410, 414, we said:
“It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself.”
Under the facts and circumstances in this case it was not error to fail to give the requested instruction.
It is also urged that the trial court was in error in failing to give the following instruction:
“1. The evidence is undisputed that the insurance policy was issued as alleged in the declaration, that the loss occurred, that the premium was paid, that plaintiffs performed all conditions of the policy, and the value of the rings lost is agreed. I therefore direct that you bring in a verdict for the plaintiff for the full amount claimed with interest from June 24, 1948, at 5% per annum.”
When a motion is made to direct a verdict, the evidence must be viewed in a light most favorable to the opposite party. See Cole v. Austin, 321 Mich 548, and Ballinger v. Smith, 328 Mich 23. The interest of the witnesses in the subject matter in dispute, their credibility and the weight to be given their evidence are questions for the jury; and as between direct and circumstantial evidence their relative convincing power is for a jury. See Cuttle v. Concordia, Mutual Fire Insurance Company, 295 Mich 514. In the case at bar there is some evidence which rebutted plaintiffs’ claim of ownership of the rings. Un der such circumstances it was not error to refuse to given the requested instruction.
It is also urged that plaintiffs’ evidence was so overwhelming as to require the court to grant a new trial. It is the rule that on motion for a new trial we only set aside the jury’s verdict where it is clearly against the great weight of the evidence. See McConville v. Remington Rand, Inc., 278 Mich 333.
It clearly appears that Edward Wolf purchased the rings and gave them to Nora Wolf; that Morton Wolf pawned the rings and they were redeemed by Edward Wolf. There is evidence that after the rings were redeemed it was agreed by Lottie Wolf, Morton Wolf and’Nora Wolf that the rings would belong to Edward Wolf; and that Nora Wolf wore the rings with the consent of Lottie Wolf. Although the above evidence was given by interested parties and there is some circumstantial evidence which casts some doubt upon Edward and Lottie Wolf’s ownership of the rings, nevertheless we are constrained to hold that the evidence in favor of ownership of Edward and Lottie Wolf is clearly against the verdict of the jury.
Other issues have been advanced, but in view of the fact that a new trial is granted, there is no need to discuss them.
The judgment is reversed, and the cause remanded for a new trial. Plaintiffs may recover costs.
North, C. J., and Dethmers, Carr, and Bomles, JJ., concurred with Sharpe, J. | [
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McAlvay, C. J.
This is a quo warranto proceeding to try the title to the office of sheriff of Iosco county. The case was first tried in said county, and resulted in a disagreement of the jury. Later a change of venue was granted to the county of Alcona, where a trial was had which resulted in a verdict in favor of relator. Respondent made a motion for a new trial, which was denied by the court, and a judgment of ouster in favor of relator and against respondent was duly entered June 4, 1913, following which relator entered into possession of the office of sheriff, assumed its duties, and still exercises the same. The material facts, briefly stated, out of which this controversy arose, are as follows:
These parties, relator and respondent, were candidates for the office of sheriff at the general election held November 5, 1912, in Iosco county. The result of this election upon the returns made and filed by the inspectors of election showed that relator was elected sheriff by a majority of two votes. November 12, 1912, respondent filed his petition for a recount by the board of county canvassers of certain precincts. Later, on November 13, and November 16, 1912, relator also filed two petitions for a recount of certain precincts. The board of county canvassers proceeded to, and did, recount nine voting precincts, as demanded by the petitions of these parties. The result of this recount changed the result as shown by the returns filed by the inspectors of the election, in showing the election of respondent, John Jordan, to said office of sheriff by a majority of nine votes. A certificate of election was duly issued and given to him. He entered upon the duties of the office at the beginning of the term thereof, January 1, 1913, and so continued to hold such office as sheriff of said county and discharge its duties until he was ousted therefrom by the judgment of the circuit court, as above stated.
In the quo warranto proceedings respondent’s plea to the information and the replication of relator to such plea raised several issues, upon all of which the first trial was had. The second trial began May 22, 1913. Shortly before that date, on May 6, 1913, the parties to this cause, by their respective attorneys, entered into a certain written stipulation relative to the issue to be tried therein, as follows (omitting the formal parts):
“It is hereby stipulated by and between the parties in the above-entitled cause, by their respective attorneys, that all issues raised by the pleadings, in said cause, except the issue relating to Sherman township, Iosco county, be and the same are hereby waived; and it is agreed that the issue raised by the pleadings in this cause as to Sherman township be the only issue to be tried, and that the decision of said issue in Sherman township shall determine the contest between the parties hereto for the office of sheriff, said issue to be submitted to the jury in the same form as the questions submitted to the jury on the former trial.”
This stipulation narrows and restricts the issue to be considered, and excludes from consideration everything except the one question to be submitted to the jury. The matter alleged in the information bearing upon this single issue is all contained within the third paragraph, which, after setting forth the whole number of ballots cast in the township of Sherman at said election for the office of sheriff and the number of ballots cast for each of these parties, as found by the board of election inspectors for said township, gives a like statement relative to the result of the recount of such township for that office, and, claiming that the canvass by the election inspectors for the township was correct, charges that between the time of the original canvass and the recount “said ballot box was wrongfully and illegally opened and tampered with, and certain of said ballots altered, and certain others withdrawn from said box, so as to fraudulently produce the result shown by said recount,” and also—
“That the seal upon said ballot box gave evidence of having been tampered with, and four of the ballots so cast in favor of plaintiff and one in favor of respondent had been marked in different places thereon with squares, crosses, and otherwise, so as to clearly present distinguishing marks, but that none of said markings were upon said ballots at the time of said original canvass and all of which were counted by said board of county canvassers upon the supposition, as plaintiff is informed and believes, that said ballots did not contain such markings when voted and originally counted.”
The record shows a large amount of testimony was introduced upon the trial by both parties. It will be of no benefit to abstract this testimony, and reference to it will be made only as may become necessary.
The case is brought here for review upon writ of error by respondent, upon errors assigned to the rulings of the court in the admission and exclusion of evidence, upon certain portions of the charge of the court as given, upon refusal to give certain requests of respondent, and upon denying a motion made by respondent for a new trial. Such of the assignments of error relied upon by appellant will be considered as may be necessary.
During the trial of the case each of four of the leading witnesses for relator was asked to testify for which of the two parties to this suit he voted at the election in question. Counsel for respondent objected to such testimony as incompetent, immaterial, and irrelevant. The objection was overruled, an exception taken, and each witness testified that he had voted for respondent. In each instance, after the witness had so testified, counsel for respondent moved that the answer be stricken out, for the reasons first given, which motions were denied, and exceptions taken. The first time the question arose and an objection was made to this class of testimony, the court stated to the witness:
“You are not obliged to say whom you voted for for sheriff. If you choose to do so, you may.”
The repetition of like questions to other witnesses by plaintiff’s counsel would indicate that this line of examination was intentional, and it is asserted on the part of relator that the testimony was offered to show the relation of the witnesses to the parties and to the litigation. The witnesses were not related to the parties in the sense in which that term is used, nor were they related to the litigation, other than material witnesses in any case. Examination was permitted relative to matters concerning which, as a general proposition, no witness should be interrogated. These questions were in no way relevant or material to the proof of any fact presented or involved in the issue being .tried. We cannot but conclude that this testimony was prejudicial, and that the court erred in allowing such questions to be answered, and in not striking the answers from the record after they had been given.
The contention of relator, as charged in the information in this case, as appears from the quotation therefrom.in this opinion, was that the first count of the ballots was correct, and that the ballot box had been illegally opened after that count and before the recount, and ballots altered and withdrawn for fraudulent purposes. In support of this contention testimony of witnesses who were present watching the count on election night was introduced, showing in what position and manner the count was observed by them. The election board, and others to the number of seven, were seated at a table upon a platform in the town hall, which was separated from the main floor by a railing. It appears that the hall was full of men, making considerable noise, .and that it was poorly lighted by an oil lamp. One witness testified at length with particularity as to this count observed by him, standing part of the time on the floor and part of the time upon a chair outside this railing sev eral feet from the table, and that he could, in such position, see how these ballots were marked.
To rebut this testimony respondent offered the testimony of a tally clerk, who testified that at former elections at the same place he had undertaken to see the ballots counted by the board on that table when he was outside the railing. He was asked:
“Q. Whether or not you could, standing on the floor outside of the railing, whether it is possible to see how the ballots are marked that are lying on the table ? (Objection.)
“A. It is impossible to see it.”
Upon the objection of counsel for relator that this called for a conclusion, it was stricken out, and an exception taken. Thereupon counsel for respondent further examined the witness to qualify him to testify whether, under like conditions as at this election, standing on the floor or on a chair outside of the railing, he had observed whether the markings on ballots during the count could be seen. Upon the same objection the testimony was excluded. The same testimony was offered by another witness and excluded upon the same ground. This question was also raised upon the motion for a new trial, and denied on the ground that it was opinion evidence. The court must have overlooked the fact that the two witnesses whose testimony was offered for this purpose had testified that they were present at the election in question, knew the situation of the table at which the board of canvassers sat, the railing outside the platform, and had been present at the same place at other times when elections were held, and'had attempted to view the ballots being counted and to see the marks upon them from without the railing, standing upon the floor and on a chair. They had qualified themselves to testify. They were familiar with the surroundings. The testimony offered was competent, and was erroneously excluded. Such questions call for facts, and not for mere opinions, and the answers thereto should have been received. Laughlin v. Railway Co., 62 Mich. 220-226 (28 N. W. 873), and cases cited; Rietveld v. Railroad Co., 129 Iowa, 249 (105 N. W. 515).
The supreme court of Iowa in a more recent case said:
“It is one of the commonest occurrences, upon the trial of cases where witnesses have testified to observations made or objects seen from a given point, for the opposing party to call witnesses who claimed to have made the test from the same point and have them testify that the things alleged to have been seen therefrom are not, in fact, visible.” Gray v. Railroad Co., 143 Iowa, 268 (121 N. W. 1097), and cases cited.
The court was in error in excluding this testimony.
The sole contention presented upon the trial of this case on the part of relator was that between the time of the count by the township board of canvassers of the ballots cast at this election in Sherman township, on November 5, 1912, and the recount, which began November 15th following, by the county canvassers, the ballot box had been unlawfully opened, and some of the ballots marked with distinguishing marks, and the result of the election thereby changed. Upon this contention the relator based his attack upon respondent’s right to this office. Respondent relied solely upon the recount for his title to the office, and his attitude was entirely one of defense. He was charged with having obtained his office as a result of this fraud. His defense was and is that no such fraud has been established.
Both of the parties to this suit invoked the provisions of our statute providing for a recount of the ballots. Under section 3672, 1 Comp. Laws, it is provided, as follows:
“The returns made by the said board of canvassers upon recount shall be deemed to be correct, anything in the previous return from such township, ward or district, to the contrary notwithstanding.”
These quo warranto proceedings are brought under section 3673, 1 Comp. Laws, which provides that:
“For * * * tampering with the ballot boxes before a recount by the board of canvassers, the remedy by quo warranto shall remain in full force together with any other remedies now existing.”
The record shows that after the recount by the board of county canvassers when the ballot box containing the ballots was relocked and resealed by such board up to the time of the first trial of this case, this ballot box and its key were in the sole custody of the township clerk of Sherman township at his house. At that trial it was produced by him and opened, and the ballots were introduced in evidence by the relator.
The record also shows that after, the township canvass the ballots were put back into this box by the board of canvassers, the box was duly locked and sealed, the key was delivered to this township clerk, and the seal to the proper officer. The box was then delivered by the board to the custodian of the town hall, and placed by him and the board in the property room in said building, in which it was securely locked with a spring lock by such custodian, who also securely locked the outer door of said hall,..which was also provided with a spring lock. The custodian alone had keys to the property room and of the town hall. He went with the township clerk, unlocked the building and the property room, and delivered this ballot box to him to take to the county canvassing board for the recount. From which time, as already stated, this ballot box was in the custody of said township clerk until the time of the first trial of this case, except the short time it was in the possession of the county can vassing board. The relevancy of the facts above stated will appear when taken in connection with the discussion of some of the errors assigned now to be considered.
Respondent has assigned errors upon certain portions of the charge of the court wherein the jury is instructed relative to the count and recount, and relative to the ballots, and what the jury could consider in determining the question as to whether they had been tampered with, claiming that in such portions of his charge the court erroneously instructed the, jury. We will consider these errors so assigned in their order, as follows:
“So a recount was had in this case of the ballots of the township of Sherman, and I will say to you at this point that that recount is not binding on us here in this court. We are engaged here in an original investigation of the number of votes that were cast relatively for these two men in the township of Sherman, and the result of the recount made by the board of canvassers is not binding upon us at all. We go back to the ballots themselves, and make our own investigation, and make our own deductions, and make up our own verdict.”
It appears that the court in this charge gave the jury to understand distinctly that the recount by the board of county canvassers was not to be considered of any force or effect. This is more apparent when the following sentence, given later in the charge, is considered:
“Were the ballots tampered with so as to change the result? * * * If you say, ‘No/ then we will take the ballots and use them in determining how many votes each man got.”
The jury was specifically charged that, if no fraudulent tampering with these ballots was shown, the recount could not be considered at all. The statute providing for a recount,, already quoted, clearly indicates that in case of failure to show a tampering with the ballot boxes before a recount “the returns made by the said board of canvassers upon recount shall be deemed to be correct, anything in the previous return from such township, ward or district, to the contrary notwithstanding.” While this portion of the charge would have been proper if it stated that the jury, if the facts warranted, notwithstanding the recount, had a right to find a ballot had been unlawfully tampered with before the recount, yet the sweeping statement it contained that the recount was of no force or effect, and not to be considered, overlooked the status given to the recount by the statute, and was erroneous.
The court further charged the jury:
“Are these ballots different now from what they were election night? Has some one changed them or tampered with them, or marked them in any way different from what they were marked that night, so as to change one or more votes for the office of sheriff? That is the question for you to decide in this case, and in deciding that question you have the right to consider the count that was made on election night and the degree of care that the inspectors used in counting the votes and in keeping the tally, and you have the right to consider the condition of the ballots now.”
The portion of this paragraph that the jury could, in determining whether the ballot box had been tampered with, “consider the count that was made on election night and the degree of care that the inspectors used in counting the votes and in keeping the tally,” is claimed by respondent to have been misleading and erroneous, for the reason that the return of the township inspectors had been superseded and set aside by the finding and return of the board of county canvassers made upon the recount.
The only complaint made by relator in his information to be considered in this case was that the ballot box, after the count made by the inspectors and before the recount, had been opened, and ballots had been marked and changed. Members of the board of township inspectors of election were called as witnesses, and testified in this case relative to the canvass of the votes by this board after the polls were closed, and also as to marks on the ballots at that time. Other witnesses also testified to the same matters. These witnesses did not agree upon the facts. The jury was charged that they could consider the degree of care that the inspectors of election used on election night in counting the votes and keeping the tally. This was calling special attention of the jury to the acts of an official body, the conduct of which was not in issue in the case, and whose return had been superseded by the recount. It was also giving undue prominence to the testimony of these witnesses, which was certainly prejudicial to the respondent. The court was in error in so charging the jury.
The court further charged the jury:
“And you have heard the markings on these ballots described as they appeared on election night, and you have seen these ballots to show how they are now marked, and it is a question for you to determine in this case whether these ballots have been altered; whether any one or more of them have been altered since that election night so as to change the vote for sheriff. * * * Mr. Johnson claims, speaking of these marks on these ballots, that certain marks had been placed on those ballots since election night, that are called distinguishing marks, which destroy the validity of the ballot and put it in such a condition that it cannot be counted for any one.”
Error is assigned upon the frequent statements of the court in the last two paragraphs of the charge above quoted that the jury might consider the markings on the ballots as they appeared at the time of the last trial, as follows:
“Are these ballots different now from what they were election night?”
Also:
“And you have the right to consider the condition of the ballots now.”
Also:
“And you have seen these ballots to show how they are now marked.”
These quo warranto proceedings were begun under the statute for the purpose of determining whether this ballot box had been tampered with after the count by the inspectors of election and before the recount. It already appears that by stipulation this was the only issue to be considered in the case. The investigation, therefore, was limited to that brief time between November 6 and November 15, 1912. The record shows without dispute that from the time the recount was completed by the board of county canvassers when this ballot box was relocked and resealed by such board, the box and the key were delivered to James H. Whitney, township clerk of Sherman-township, and were kept by him continuously at his house for a period of about three months until the first trial of this case, when he delivered them to the clerk of the court. The record also shows from the cross-examination of this township clerk that during this time the ballot box and key were in his possession at his house there was ample opportunity to tamper with the same, and it appears from respondent’s brief, which we do not find contradicted, that such claim was made upon the trial and argument in this case. These several statements of the court in his charge, above quoted, calling the attention of the jury to the ballots as they appeared at the time of the second trial, and saying to the jury, “You have the right to consider the condition of the ballots now,” was erroneous. The court should have instructed the jury that only such changes in the ballots could be considered by them as were shown to have been made before the recount.
There remains to be considered only the error assigned by respondent upon the refusal of the court to grant a new trial. Many of the questions already passed upon in this opinion upon errors assigned during the trial were raised upon such motion. From what we have already said, it follows that the court was in error in denying the motion for a new trial.
For the reasons stated, the judgment of the circuit court is reversed, and a new trial is granted.
Moore, J., concurred with McAlvay, C. J. | [
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Bird, J.
In June, 1905, complainants entered into an agreement with. Joseph Berry of' Detroit, whereby they were to act as his, selling agents, for a period of two years, of certain lots owned by him in Fairview village. Certain preliminary work was necessary to get the lots ready for the market, and it was stipulated that complainants should look after this work, such as grading roads, planting trees, and constructing sidewalks, the cost of which was to be borne by Mr. Berry. The cost of advertising and selling and making collections on deferred payments was to be borne by complainants. Lots were to be sold for cash or on contract. A minimum sale price was fixed at $28.50 per front foot for Jefferson avenue lots, and $200 each for all other lots, plus the cost of the sidewalk appurtenant thereto. The compensation of complainants was stipulated to be all they might realize on a sale over and above the minimum selling price. A down payment of $25 was to be made on all lots sold on contract, and all contracts were to be subject to the approval of Mr. Berry. The preliminary work was carried on by complainants, and the sale of the lots was progressing when Mr. Berry died in 1907. A new contract was then made with the heirs and administrator of Mr. Berry’s estate on substantially the same terms as the original one, save an increase in -the minimum selling price of the Jefferson avenue property to $36.50 per front foot, and an increase to $310 for the other lots. This contract expired on January 1, 1910. On December 31, 1909, complainants ten dered to defendants $300 as the down payment on 12 lots remaining unsold, with themselves named as the purchasers, and demanded the execution and acceptance of the contracts. Defendants refused to approve and execute them, and this bill is filed to compel such execution. They justify their refusal upon the grounds:
(1) That complainants, as selling agents, had no legal right to sell the lots to themselves.
(2) As all contracts were subject to the approval of defendants, they had a right to disapprove of any contract tendered without assigning any reason for their refusal.
1. It is a general rule of law that an agent for the selling of property may not sell it to himself. McNutt v. Dix, 83 Mich. 328 (47 N. W. 212, 10 L. R. A. 660); Green v. Knoch, 92 Mich. 26 (52 N. W. 80). The reason why public policy has so decreed is to prevent the selfish interest of. the agent from coming in conflict with his duty to his principal. In all transactions where the agent’s loyalty is liable to be affected by his selfish interest, the general rule will apply even though no fraud is practiced. McKay v. Williams, 67 Mich. 547 (35 N. W. 159, 11 Am. St. Rep. 597). Measured by this test, is the transaction before us one to which the rule should be applied? The minimum price fixed in the contract belongs to the principal. If a sale is made, the principal is entitled to the minimum sum, plus the cost of the sidewalk, and nothing more. The agent’s diligence in securing the best price obtainable therefor is no benefit to defendants beyond the minimum price. Whether a lot sells for $1 or $100 in excess of the minimum price, the result is the same to, the principalhe neither gains nor loses by the transaction. This differs* widely from a contract which fixes a minimum selling price and a percentage commission. In such a case the principal profits by any price in excess of the minimum, whereas, in the case before us, he profits nothing beyond the minimum price.
Warvelle, in his work on Vendors (vol. 1 [2d Ed.] §226), in discussing-this subject, has the following to say:
’“In accordance with the foregoing rule it has been held' that an agent cannot become the purchaser of property confided to his care, and that a purchase made under such circumstances carries fraud upon its face. But this, perhaps, is carrying the application of the rule to extreme lengths; for the true spirit and meaning of the rule is that the agent shall not so act toward the subject of the agency for his own benefit as to work injury to his principal. He will not, therefore, be allowed to purchase where he has a duty to perform which is inconsistent with the character of purchaser, nor to speculate for his private gain with the subject-matter committed to his care. This may be regarded as the true extent of the rule; and an agent placing himself beyond it may lawfully contract with his principal with relation to the property.”
The case of Synnott v. Shaughnessy, 2 Idaho (Hasb.), 122 (7 Pac. 82), is in point. In this case a similar contract was involved and the same question was raised as to its validity. The court said:
“He [the agent] was at perfect liberty to get all he could above $2,000. He could, with perfect propriety, become the purchaser himself.”
We are of the opinion that, inasmuch as the record shows that the purchase of the property by complainants would be in no wise inconsistent with their duty as agents of the defendants, they had a right to purchase the lots on their own account.
2. The complainants contend that defendants’ refusal to approve the contracts was equivocal, arbitrary and not a good faith refusal. The defendants take the position in this court that their refusal is sufficient without assigning any reason therefor, and in support thereof, cite the familiar case of Wood Mowing Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57). The reserved right of approval in the contract involves the judgment of the defendants, and therefore appears to fall within the doctrine of that case. But it is said that, even in cases falling within that rule, the right must be exercised honestly and in good faith. The dissatisfaction must be actual and not feigned, real and not merely pretended. 9 Cyc. p. 624; Isbell v. Anderson Carriage Co., 170 Mich. 304 (136 N. W. 457). It is also said in Hartford Sorghum Manfg. Co. v. Brush, 43 Vt. 528, that if the purchaser is in fact satisfied, but fraudulently and in bad faith declares that he is not, the condition is performed. The question, therefore, presented is. whether we can say on.the face of this'record that bad faith was the basis of defendants’ refusal to approve the contracts.
The obvious purpose of this undertaking was to dispose of the lots on the subdivision at a satisfactory price. And the only apparent object of reserving the right to approve the contracts was to pass upon the financial responsibility of those desiring to purchase. When complainants tendered the contracts in question for approval, defendants replied requesting a financial statement of complainants. In response to this request complainants refused to make a written statement, but instead referred defendants to their bankers, indicating who they were, and made the following offer of security:
“You hold now, land contracts of various parties, wherein our equity at this date, according to our record, amounts to $10,374.77.
“If at any time we should default in making any payment of principal or interest on any of the contracts submitted by us to you on the 30th ultimo, you are hereby authorized to apply upon any such contract in default, enough of the moneys collected by you from time to time, for us, to satisfy such default in pay ment, and this authority is to be a continuing one until one-half of the principal and all accrued interest is paid upon the contracts so submitted to you.”
The defendants being unmoved by this information and offer of security, the complainants filed this bill of complaint. In their answer the defendants deny they based their refusal on the financial irresponsibility of the complainants. That portion of their answer reads:
“They admit that before refusing to accept said payment on said contracts, they asked for a financial statement showing the responsibility of Messrs. Hutton, Tigchon & Nall, and that such statement was not exhibited to them, but show that their refusal to enter into said agreements was not based upon the financial irresponsibility of the proposed purchaser, but was within their rights as defined by said agreement.”
Later, at the hearing, Mr. Hoyt, who represented the administrator, testified that:
“At the time we declined to make these contracts, we questioned their financial responsibility. We did not get to a point of passing on it because we were not furnished the information for which we asked. Our position in part was that, not having been furnished that financial statement, we would not sell to them. The other part was that they had no right, no legal right, to make this contract for themselves under the sales agreement that we had with them.”
In view of this testimony we must assume that defendants based their refusal to approve the contracts in part, upon the financial irresponsibility of the complainants. In order to meet this objection, complainants referred defendants to their bankers in the city of Detroit, and to further satisfy their misgivings, they offered to permit defendants to retain their equity in lots already sold, amounting to upwards of $10,000, as it was collected, and apply it upon the purchase price of the lots in question. Defendants made no reply to the offer of security, and refrained from making any inquiry of complainants’ bankers. And they say in their testimony that they did not pass upon complainants’ financial responsibility because they were not furnished the information requested. We think it can hardly be said to be consistent with good faith to question a business man’s financial standing, and when it is met by a reference to his banker and an offer of security to ignore the offer of security and refuse to investigate when the avenue leading to the desired information is open. Such conduct would not pass current in the business world as good faith, and we cannot accept it as such. But it is said that the defendants deny they were referred to complainants’ bankers. If we consider this denial as conclusive, the fact still remains that the administrator had at its command all the avenues of information concerning the financial standing of business men about town that a large trust company usually has, and had its desire been to learn the financial standing of these complainants, we cannot believe it would have been very long without the desired information.
Another phase of the testimony which has influenced us in reaching a conclusion on the question of good faith is the fact that complainants have been permitted to become the owners of several defaulted contracts for lots on the subdivision with the knowledge and consent of the defendants. Why their financial ability should be questioned in one case and not in another of like kind is a discrimination not easily understood.
Complainants charge in their brief that defendants were moved to withhold their approval of the contracts because of the enormous increase in the value of the lots since the contract of agency was made. Whatever may have been the motive for their refusal, we are satisfied that their dealings lacked the candor and good faith which their agreement with the complainants demanded of them. For this reason the decree of the trial court must be reversed, and one entered in harmony with these conclusions. The complainants will recover their costs in both courts.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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] |
STEERE, J.
In this suit defendants have appealed from a decree imposing specific performance of a land contract given by them to complainant, covering 80 acres of land in township 3 north, of range 5 west, Eaton county, Mich.
The instrument in controversy was executed in duplicate on July 22, 1913. It was drawn by a reputable attorney, to whose office the parties went after making their agreement, for the purpose of having it put in writing. No question is raised as to the good faith of all parties at that time, nor as to the contract having been drafted as directed, while all were present and after its terms, as prepared, were fully talked over and agreed upon. It was there and then signed by defendants and the authorized agent of complainant. By its terms, briefly stated, defendants agreed to sell and convey to complainant the land therein described for the sum of $6,400 — $1 on the signing of the'contract and the balance, less a mortgage on said premises of $5,300, which the grantee was to assume, not later than August 12, 1913 — defendants to at that time furnish an abstract of title brought down to date and execute and deliver to complainant a full covenant, warranty deed in proper form conveying the absolute fee of said premises, free from all incumbrances, except said mortgage. Said contract follows the form and phraseology commonly resorted to in the preparation of such instruments and embodies the recognized essentials of a land contract, with no unusual provisions or special features, except the following clause, upon which the defense is chiefly based:
“It is specially understood and agreed that this agreement is subject to the terms of a certain contract in writing between Eria A. Rogers and Pearl Rogers, of the one part, and C. G. Stead, of Jackson, Michigan, of the other part, dated July 5, 1913, wherein said C. G. Stead is given an option to purchase said above-described premises, running thirty days from the date thereof, said option by its terms to be operative for sixty days, unless canceled by said Eria A. Rogers and Pearl Rogers subsequent to August 7, 1913, and such cancellation to be effective two days subsequent to date of such registered notice.”
It appears, undisputed, that defendants not only failed to cancel the Stead option subsequent to August 7, 1913, as they legally could have done, but they extended it until August 30th. Defendant Eria Rogers explained to complainant’s agent, who protested against it, that this was done “out of fairness to Mr. Stead,” who, he anticipated, could not or would not do anything until the option expired. Defendant Pearl Rogers testified:-
“We afterwards adjusted the matter with Mr. Stead, and got that option out of the way.”
Whatever the adjustment might have been, Stead never exercised his option. All his right under it expired, and no claim is made that he has or asserts any interest in the property. Any interest or claim which he may have once had was entirely eliminated before this suit was begun.
Previous interviews, proposals,. and requests for defendants to convey said property according to the terms of the contract, accompanied by offers of complainant to fulfill on its part, having resulted in refusal, just before this suit was begun complainant’s counsel, on or about September 9th, visited defendants and tendered a deed for their execution, together with an amount of money sufficient to pay the balance above said mortgage, which complainant was to assume. Defendants again declined to carry out the terms of the contract and refused the tender; their reason for so doing, as outlined in counsel’s brief, being that the instrument was incomplete and but an offer on the part of complainant to purchase the prop erty not later than August 12th upon condition that’ defendants would cancel the Stead option and tender complainant a deed, that defendants were free to accept or reject the offer, and that their act in extending the Stead option, of which complainant had notice, was in legal effect a rejection of the offer.
Their claim that the contract was incomplete is based upon the fact that, at the time of signing it, defendants were the owners of a farm of 240 acres, of which the 80 in question formed a part, and the mortgage of $5,300, which complainant was to assume, covered the entire farm. This mortgage was given January 11, 1912, for the term of 10 years, interest payable semi-annually; the mortgagors, however, having the privilege of paying $100 or more on the principal at any date when interest payments fell due. As to this feature of the case, the testimony shows complainant was ready and willing to pay this mortgage in full at the first opportunity, and intended to do so the following January, when semi-annual interest fell due, had so assured defendants, and offered upon the hearing to pay into court sufficient money to liquidate said mortgage, to be so applied under and by direction of the court. The decree appealed from covers this. Specific performance is decreed only upon condition that full payment be made according to the terms of the contract, including any interest which defendants may have paid since tender and demand of a deed, and payment into court of the amount necessary to pay said mortgage in full, both principal and interest, when the next semi-annual installment of interest would fall due upon the same, at which time it could be paid in full according to its terms.
This contract is beyond question complete as to the subject-matter, the parties, and the price, and even as to the manner and terms of payment, except the claim that, through oversight, inadvertence, or mis take arising from omission to clearly express the intent of the parties, the balance of defendants’ farm is not relieved of the mortgage and might be burdened with it for years, against which it is manifest they should have been protected by express language. Even if the contract was in that particular objectionable for uncertainty, the court by its decree has eliminated that objection, acting well within its authority.
A court of equity may in many cases grant relief justified by conditions shown at the time of adjudication, and is not bound to relate its decrees to the time of instituting proceedings, as must be done when rendering judgment in a court of law. 3 Elliott on Contracts, § 2359. The provision to relieve the balance of the farm from the mortgage, which it is claimed was omitted either intentionally or by mistake, was one favorable to defendants. Complainant has more than once offered, in court and out, to perform the contract with that provision included, and the court has safeguarded that offer.
“If the omitted term or provision of the contract is one that is favorable to defendant, its omission from the writing is not a defense, if complainant is willing and ready to perform the whole agreement, including the omitted term. This is true whether the omission was intentional or by mistake.” 36 Cyc. p. 608.
See, also, 2 Story’s Equity Jurisprudence, §770a; Park v. Johnson, 4 Allen (Mass.), 259; Anderson v. Kennedy, 51 Mich. 467 (16 N. W. 816).
It is contended in behalf of the defense that this was a contract to be performed at the option of defendants, the adverse party, because it .was subject to the Stead option, which they chose not to cancel after August 7th and before August 12th, the date for performance of their contract with complainant; that no provision of the contract in express terms obligated them to cancel the Stead option, and they are therefore relieved of any duty to convey to complainant.
We are unable to place such construction upon the instrument of July 22d. At that time Stead held an option upon the 80 acres, giving him an absolute right to purchase it on or before August 7th. Subject to that right, defendants owned the land and were free to sell it, and after that time, if Stead did not call his option, they could, by taking proper steps, convey to the purchaser, whoever it might be, a good title. This contract of July 22d, if it shows anything, shows that defendants wished to sell and complainant wished to buy the property at the price agreed upon. It states in express terms that “the said parties of the first part hereby agree to sell and convey, and the said second party hereby agrees to purchase,” said property. The price, terms of payment, abstract, etc., are distinctly stated, and date of performance is set at a time when it was within the power of defendants to give a good title, if Stead has not exercised his option, and defendants agreed at that time “by a full covenant, warranty deed in proper form to convey to said second party, or its assigns, the absolute fee of the above premises, free of all incumbrances, except as above stated,” referring to the mortgage of $5,300. Stead’s option was in effect an incumbrance. Under this agreement it was their duty to place themselves in position to.perform when it was in their power to do so. They had that absolute right after August 7th and. before the time set for performance. Up to August 7th, while they did not have that right, they were protected by the terms of the contract, which for that purpose was made subject to the Stead option. The date set for consummation of this contract (August 12th) is convincing evidence of the intent of both parties and their agreement to perform as soon as it was within the power of defendants to do so.
This is not of that class of cases cited by defendants where there are interested third parties against whom specific performance cannot be enforced. All rights of Stead were ended before this bill was filed. An objection which has been fully eliminated before suit is commenced cannot be urged against specific performance. Rank v. Garvey, 66 Neb. 767 (92 N. W. 1025, 99 N. W. 666).
The decree is affirmed, with costs.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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] |
Ostrander, J.
Plaintiff, a farmer, claims that the defendants, also farmers, and neighbors of plaintiff, desired to sell their farm, and said to him, each of them, in substance, “If you can sell it, I will pay you for it,” “I will pay you, and pay you well, for selling the farm;” that he undertook to sell it. He claims,' further, that he found and produced a person who bought the farm and paid for it the sum of $9,000, and that he should be paid as a commission 5 per cent, on this sum. He declared upon the common counts in assumpsit, and gave as particulars of his demand the following:
“To commission on sale of real estate, $9,000 at 5 per cent...........................$450 00
“Said commission to be at the usual rate at Paw Paw, Mich., and said 5 per cent, being said rate as claimed by plaintiff.”
Defendants denied making any contract with plaintiff, and denied that plaintiff sold or found a purchaser for the farm on their account, and asserted that plaintiff’s interest and conduct with respect to the sale arose out of the fact that he wished his brother-in-law, the purchaser, to locate near him. Included in this was a claim that plaintiff, in talking with the intending purchaser, depreciated the value of the farm, calling attention to its run-down condition as affecting the price which should be paid for it. Issue having been joined and the cause tried, a verdict was returned in plaintiff’s favor for $250, and judgment was entered accordingly.
The issues were simple, were plainly for a jury, and, while a considerable number of exceptions were taken and made the foundation for an assignment of errors, we think they are without merit and, with a single exception, that they require no discussion. Plaintiff introduced testimony tending to prove the defendants’ offer and his efforts pursuant thereto, known to defendants, to find a purchaser for the farm. That the farm was sold for $9,000 to a person produced by plaintiff is not disputed. As to the value of his services, plaintiff showed, over objection and exception, the usual commission charged and received by real estate agents and brokers in Paw Paw, and the court instructed the jury that if they reached the question of damages, they should, in determining the amount of them, “be governed by the usual compensation to be paid in Paw Paw for services of this kind —Paw Paw and vicinity.” Error is assigned upon this instruction. In this connection and a subject of assigned error, the court said:
“It is no objection to plaintiff’s right to recover that he has not regularly been in the business of real estate agent. Any person, no matter what his business, has the right to accept employment as agent for another in the sale of real estate. If defendants in fact employed Mr. Morehouse as their agent in the matter claimed by him, they would be as much bound to pay him as if they had made the same contract with a person whose only business was to act as a real estate agent.”
Concerning this, appellants say in their brief, in part:
“If the plaintiff was at the time engaged in the real estate business, there would be no doubt but the defendants would be obliged to take notice of- a custom existing among real estate brokers, but that is not the question with which we are dealing. The plaintiff was not engaged in the real estate business. Then the contract, as related by the’plaintiff himself, would, it seems, negative any intent on the part of the defendant to pay a commission, or any intent on the part of the plaintiff to ask a commission such as persons engaged in the real estate business would expect.
“The parties were farmers, neighbors as it were, and, admitting the making of the contract in the language of the plaintiff, can it be said as a matter of law that the defendant meant more, or that the plaintiff expected more, than to be paid well for the time expended in-producing a customer?
“We believe the proper way to measure plaintiff’s compensation would have been for him to show the amount of time spent in endeavoring to and in procuring a customer, and then to show the value of those services.”
Plaintiff did show, rather generally, what he had done, in his effort to prove that he was the efficient cause of making the sale.
We are of opinion that counsel for appellants is right in his contention to this extent: That upon the measure of damages the question was, What was the fair value of the services rendered by the plaintiff? In determining the fair value of the services, it was not error to consider what real estate men in the neighborhood customarily charged, but it was error to make the customary charge of real estate men the governing factor. . It is not unusual for a neighbor to perform for a neighbor, for hire, special services out of the line and scope of his usual employment. A woman will sometimes, with skill, nurse her neighbor who is sick, or her neighbor’s child, with the mutual understanding that she shall be well paid for what she does. In such a case, the usual wages of a trained nurse ought not to be the measure of her pay, for various obvious reasons, one of which is that the parties did not contract with reference to any such standard of wages.
Can it be said that the error was not prejudicial? Presumptively it was prejudicial. The verdict indi cates that the jury considered that reasonable pay for plaintiff’s services was a sum less than 5 per cent, of the selling price of the farm. In the face of the court’s instruction, they returned a verdict for $200 less than the instrúction called for. Defendants introduced no testimony upon the subject. They say in the brief that because the court, in ruling that testimony of the usual commission was competent, said:
“I am afraid that any other measure of damages than that suggested by counsel for the plaintiff would lead us into a field of exploration that would never dnd. Either he is right upon that proposition or he has no standing in court”—
defendants were thereby precluded from offering any testimony as to the value of the services of the plaintiff, except the testimony of witnesses concerning the prevailing custom among real estate brokers. It is probable that the court would have excluded any testimony offered by defendants upon the subject of the reasonable value of plaintiff’s services. • But counsel should have offered, if in good faith he could have done so, to prove that they were worth some sum less than plaintiff claimed. If he had, and has, no testimony tending to prove, the contract being established, that the services were reasonably worth less than $250, there ought to be no new trial.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
On August 2, 1912, plaintiff was injured by falling through, an unguarded opening at the edge of a platform upon which he was working in the upper part of a one-story building of defendant in which brick was being manufactured. Imputing the accident and his resulting injuries to the negligence of defendant, by whom he was employed, through failure to furnish him a safe place in which to work, he brought this action in the circuit court of Berrien county, where he recovered a verdict and judgment of $600, awarded as compensation for such personal injuries. Numerous exceptions were taken during the trial, and errors have been carefully assigned upon them, presenting in various lights defendant’s reasons why the judgment ought not to be sustained, the condensed substance of which is that no negligence on its part is shown, that the platform was in a reasonably safe condition, that plaintiff is shown by his own testimony to have been guilty of contributory negligence; for all of which reasons a verdict should have been directed for defendant and the verdict of the lower court should now be reversed and no new trial granted.
Defendant owned and operated a plant for the manufacture of brick near the city of Benton Harbor. Clay for making the brick came from a nearby bank and was conveyed into the upper part of the factory building by small dump cars operated on a tramway running from the bank into the building through an opening in its gable end, within the pitch of the roof, at an elevation of over 18 feet above the ground floor upon which the brick machine set, with other equipment above it. They were drawn into the building from about 150 feet distant by a cable, power for which was furnished from the building. The tram car dumped at the side and discharged the clay into a hopper conveniently near the track Over the machin ery, from where it fell into a so-called granulator, thence passing by gravity through other appliances, essential to the process of manufacture until it reached the brick machine at the bottom. In the southeast corner of the building, adjacent to the place of dumping and slightly below the level of the track, was a platform for the person engaged in caring for and dumping the car to stand upon while doing such work. It was 12 feet long by 7 feet wide, and 18 feet above the ground floor, from which it was reached by a stairway. It extended a little over 6 feet to the east of the car track and, had it continued 5½ feet further east, would have connected with the side of the building near where it joined the slanting roof. This left, from the outer edge of the platform to the roof, an opening variously stated to be from 2 feet 6 inches to 3 feet 2 inches wide. Plaintiff fell through this opening to the floor beneath while engaged in dumping a car, striking first upon the line shaft and from there upon a barrel 11 feet beneath, sustaining, as he testified, serious injuries.
The car, known as the Western Side Dump Car, was a small one, holding from 1% to 2 yards of clay, and was emptied by releasing two chain hooks on one side, revolving or tipping the box of the car until its contents slid out, then pulling back or righting the box and refastening the chains. This could easily be done by hand. It was claimed by defendant that such was the proper way, and plaintiff had been so instructed. It was his custom to right the box by reaching; from where he stood on the platform and catching over the edge of the box with the heel of a shovel, which he used around the place of emptying for various purposes, and then pulling towards him until the box was righted. He claimed this was an expeditious and customary way of doing it, practiced by himself and others, including the Mamer brothers under whom he worked, and he had never been instructed to the contrary.
On the occasion in question, while righting a car in this manner, his shovel slipped and he fell backwards, going through the opening at the edge of the platform and next to the wall “head first — right backwards,” as he described the event.
The ground of negligence upon which plaintiff seeks recovery is that by reason of the opening through which he fell being left uncovered and unguarded defendant was culpably delinquent in its duty to provide him a safe place in which to work. Plaintiff was a man of age and experience, familiar with his work and the conditions which surrounded it. He began his employment there in June, and the accident occurred on August 2d. The opening complained of was seen by him daily, and whatever dangers it created were known to him.
It is a familiar and well-settled rule of law that an employee assumes the known risks of his employment, both those ordinarily incident to the nature of it and those arising, and becoming known to him, in connection with it as carried on during his service. It is also a familiar rule that, if the employee continues in an employment with knowledge of dangerous conditions involving an abnormal risk relying upon a promise of the employer to remedy such conditions, he is relieved from the onus of having assumed such risk during a reasonable time for the promised repairs or changes to be made.
Plaintiff claims to have complained to his employers of the dangers which resulted in his injury and to have remained at his employment on the strength of promises to cover the opening and remove the risk. Defendant, denying the existence of any abnormal danger, or any promise to repair, contends in any event it is shown that plaintiff did not continue in the employ by reason of such promise, nor in reliance upon it, and his own testimony discloses he remained for such an unreasonable length of time after the alleged promise was made that, as a matter of law, it affords him no protection, and he therefore cannot recover. Plaintiff’s counsel clearly state the vital issue in their brief as follows:
“There is only one question in this case: Did the time that elapsed between the promise to repair and plaintiff’s injury ‘preclude all reasonable expectation that the promise might be kept?’ ”
Eliminating all issues raised by conflicting evidence and taking plaintiff’s testimony as true, he testified, amongst other things, that in this building there were four men working besides himself, and he had charge of the “whole thing,” looked after all the machinery, did the oiling, if anything needed fixing about the machines he fixed it, “and looked after everything in that room;” that he rigged a jack “up there” for dumping cars, because they were sometimes loaded heavier on one side and hard to lift; that he added one additional plank to the platform, on his own initiative, and placed a railing on the left side of it, about which he first spoke to “them” and was told to “fix it;” that he looked at this hole a number of times; did not know as he was afraid of it, but thought there was some danger of slipping and falling through it; that it would take but a short time, might take longer than 15 minutes but not over an hour, to cover the opening, requiring but two or three plank, and that there were plank in the yard which could be used for that purpose, and were used after he was hurt; that on one occasion Peter Mamer came up, and, noticing the jack which plaintiff had rigged, asked about it, and spoke in that connection of fixing something else also, in reply to which plaintiff said, “Now, Pete, that arrangement I have got is all right, provided there is some more boards put in the floor so if I slip I would not fall down through there,” to which Peter replied that would be done as soon as they could get to it; that George Mamer came up not very long after and talked about the granulator not working very satisfactorily, saying he thought it would be necessary to put some plank in to hold the clay off the knives, and in discussing it plaintiff suggested, “We can use some more plank in that floor there,” and George Mamer then replied, “Well, I will have George Sterling bring some up from downtown, and we will have Bert Balding come up on Sunday morning and fix the floor and the granulator;” that this occurred “about a month,” or “probably a month,” before the accident. Plaintiff gave this promise as the one upon which he relied at least four times in direct and cross-examination saying, when interrogated as to why he remained in the employment with the opening unguarded, and why he did not cover it himself with available material: “They said they would have Bert Balding come over on Sunday and fix it. * * * They intended to fix it and would fix it next Sunday morning” — his last statement of the promise being, “And he said he would have Bert Balding come over Sunday morning and fix the granulator and the floor,” repeating when asked again, that the last promise to repair was about a month before the accident.
Of the influence of this alleged promise to repair, upon his conduct, he was asked and answered as follows:
“Q. Did you have in mind at any time you were talking to Mamers about quitting their employment?
“A. No, sir.
“Q. Did not?
“A. No, sir.
“Q. So that there was nothing that the Mamers said to you, either George or Peter, on the occasions you refer to, a month or a month and two or three days before the injury, that caused you to change your mind in any regard?
“A. No, sir.”
It is difficult to reconcile this testimony with the theory that plaintiff’s continuation in the service was due to or induced by a promise of his employer to remedy the defect. In Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145), although the plaintiff there testified that he had in mind quitting the employment and “was going to leave” if a promise had not been made to fix a defective machine upon which he worked, and he remained relying upon a statement of the superintendent in charge that the defects would be remedied, this court said:
“It is impossible to reconcile plaintiff’s acts with the theory that he remained at work, after he learned the machine was dangerously defective, relying upon a promise from the defendant that it would remedy the defect.”
It was therefore held plaintiff could not recover and a verdict' should have been directed for defendant.
Generally stated, the law upon the question of relieving promises is that when no specified time is designated by the employer in his promise for restoration or establishment of safe conditions, his right to urge as a defense- the assumption of risk by the employee is suspended for a reasonable time in which to perform the promise,- and in such cases what constitutes a- reasonable time in which the employee may remain in the employ, relieved of all assumption of risk, is, as a rule and within rational limits, for the jury to determine under proper instructions according to the facts of each particular case. We must conclude, however, that plaintiff’s testimony in this litigation presents no such issue.
The promise to which plaintiff testified, and upon which he claimed he relied, fixed the time of fulfill ment prior to the accident. He stated distinctly that the promise was to be performed the next Sunday after it was made. Several Sundays intervened before he was injured. This eliminated the element of promise, leaving no issue of fact as to a reasonable time for a jury.
When the period contemplated and agreed upon for removal of the dangerous condition terminated without its performance plaintiff’s position was the same as if no promise had been given and he thereafter reassumed the risk.
“It is clear that in all cases where the circumstances were such that, if the promise had not been given, the servant’s continuance of work would have rendered him chargeable, as a matter of law, with contributory negligence, this defense furnishes a conclusive bar to the action if the injury was received after the expiration of the period during which the servant was justified in relying on the performance of the promise.” 4 Labatt on Master & Servant (1913), p. 3890.
The distinction is pointed out with remarkable clearness in the case of Andrecsik v. Tube Co., 73 N. J. Law, 664 (63 Atl. 719, 4 L. R. A. [N. S.] 913, 9 Am. & Eng. Ann. Cas. 1006). In the concluding paragraph after a thorough review and analysis of the authorities, and discussion of the principles involved, the court says:
“The master, in the making of the promise, and the servant, in acting upon it, fix their mutual relation.
“Where the promise to make the repair is indefinite or inferential as to the time of performance, there may arise a question for the jury of reasonable time — on the part of the master for performance, and consequently on the part of the servant for continuing to incur the risk in the expectation that the master will perform.
“Where, however, the promise is express as to the time of performance, the rule is otherwise.
“A promise made by the master, acted upon by the servant, to repair a specific defect at a definite time thereafter, creates an assumption of the risk by the master. This assumption of risk begins forthwith upon the making of the promise and continues thereafter and throughout the period fixed for the making of the repair; but this undertaking of the master terminates and his liability thereunder ceases at the end of that period. The termination of the master’s undertaking and the termination of the period fixed for the repair are identical.”
In view of these authorities, and for the reasons above given, we are constrained to hold that a verdict should have been directed for the defendant.
The judgment is reversed, and no new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Os- • TRANDER, Bird, and Moore, JJ., concurred. | [
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] |
Brooke, C. J.
The statute, 3 Compiled Laws, §8780 (4 How. Stat. [2d Ed.] §§ 11636-11640), provides:
“Whereupon such child, * * * and the person or persons so adopting such child, shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.”
A child by adoption takes as a lineal descendant of the legatee by force of the statute; not as a lineal descendant by birth, but as a statutory lineal descend ant, and as lawfully in the line of descent as if he were placed there by birth. Warren v. Prescott, 84 Me. 483 (24 Atl. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370); Hartwell v. Tefft, 19 R. I. 644 (35 Atl. 882, 34 L. R. A. 500); Flannigan v. Howard, 101 Ill. App. 616; Id., 200 Ill. 396 (65 N. E. 782, 59 L. R. A. 664, 93 Am. St. Rep. 201); Ultz v. Upham, 177 Mich. 351 (143 N. W. 66).
As I understand the opinion of my Brother Stone, his holding upon this point is in consonance with the above. It is his opinion, however, that the proceedings for adoption were faulty and nugatory, for the reasons pointed out in his opinion. With this conclusion I find myself unable to agree.
The affidavit or consent of Jennie Sterling is in the following language:
“And Jennie Sterling, being the matron of Mercy Hospital, of Detroit, Mich., and being the only person having the custody and control of said minor and lawfully entitled to give consent thereto, so [do] execute this instrument for the purpose of giving consent in writing to the adoption and change of name of said child as aforesaid, and that said child may become the heir at law of said parties so adopting her, I, the said Jennie Sterling, do hereby certify that said minor has been abandoned by its parents and placed with me for the purpose of finding a suitable home for said minor.”
The order of the judge of probate recites that the proceedings were taken in good faith, and that they were based upon the declaration of Ira W. Fisher, and his wife, Matilda, and the consent of Jennie Sterling, the matron of Mercy Hospital, Detroit.
The case of In re Courtright, 167 Mich. 689 (133 N. W. 820), is exactly like the present case, with the exception that the affidavit of Sister Laura recited the fact that she was president and principal officer of the House of Providence, of the city of Detroit.
I am of opinion that the averments contained in the affidavit of Jennie Sterling are sufficient to constitute a substantial compliance with the essential requirements of the statute. It will be observed that she asserts not only that she is matron of Mercy Hospital, but that she has custody and control of said child, and is lawfully entitled to give consent to its adoption.
The probate court for Oakland county, having this evidence before it, made a judicial order based thereon. It is quite obvious that that court was satisfied that the description of the character of Jennie Sterling and the assertion by her that she was the person legally entitled to give consent, taken together, was a sufficient compliance with the statute which requires such consent to be given by “the principal officer of any institution, public or private, in this State or elsewhere.” It is a matter of common knowledge of which we should take judicial notice that papers for use in the probate courts of the State are frequently prepared by those not particularly learned in the law and without that appreciation of legal niceties that characterizes the work of one so learned. A substantial compliance with the statutory requirements should be held sufficient. I am of opinion that the court was justified in the conclusion reached. An examination of the various meanings given to the word matron include the following:
“A head nurse in a hospital; the family head or superintendent of any institution.” Century Dictionary and Encyclopedia, vol. 5.
We find therefore that among the accepted definitions of the term is “a head of any institution.” The adoption proceedings were conducted in good faith and were legally sufficient.
The decree of the court below should be affirmed.
McAlvay, Kuhn, and Moore, JJ., concurred with Brooke, C. J.
STONE, J. The bill of complaint in this cause was filed to quiet the title of complainant in an undivided two-thirds of the lands therein described, being 15.87 acres on section 23 in Avon township, county of Oakland. The land in controversy . was inherited from Hester Roberts in 1858 by her daughter Laura, who was twice married; first to a Mr. Fisher; and after-wards to a Mr. Mastin. On June, 15, 1897, Laura C. Fisher Mastin, being then the owner of the premises, duly made and published her last will and testament. After directing the payment of her just debts, funeral expenses, and the expense of settling her estate, and the placing of suitable markers at her grave, and that the date of her death should be placed upon the monument then on her lot in the Rochester cemetery, and after making certain bequests of personal property to certain persons, the will provided as follows:
“Fifteenth. All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to Harvey Taylor, my executor and trustee hereinafter named, in trust, to be held and controlled by him for and during the life of my son, William Ira Fisher, and from the use and income thereof, I will and direct that my cemetery lot in the Rochester cemetery shall be kept in good order and repair, and that the buildings and fences on my real estate,, from said income, shall be kept up, and the balance of said income, after the expenses of executing the trust, shall be paid to my son, William Ira Fisher, each year, for and during his life, and at his death the residue of my said estate then remaining, to go to his child or children, him surviving, to whom I give and bequeath and devise the same. Provided, however, that in case my said son leave no child or children, or issue of any deceased child surviving at his death, then in that case, the residue of my estate remaining at the death of my said son shall go to my nearest kin living at the time of the death of my said son, to whom I do hereby give and bequeath and devise the same.
“Sixteenth. In case it may be deemed necessary or advisable by my said executor and trustee, I hereby will and direct that my real estate may be sold under the direction of the proper court, and the proceeds thereof invested by my said executor and trustee, to produce an income which shall be used in the manner above herein specified, and I further will and direct that in case of sickness of my said son, or other disability, by which he is unable to earn his living, then and in that case the proper court, upon the application of said executor and trustee, and after a proper hearing and investigation on said application, shall make an order to advance to my said son from time to time such sum or sums from the principal, as may be necessary and required for my said son’s support and maintenance, but I expressly will and provide that my said son shall have no voice in the determination of that question, it being my intention by this provision of my will to save for my said son a home during his lifetime, and to keep him from want, and from being dependent upon others for his living, and this provision should not in any sense be taken as a measure of a want of affection which I have for my said son, but is made for the express purpose of protection for him, and in the manner that I consider will be for his best interest and for his own good, and I urge upon my executor and trustee, and his successor, if any, and upon the court, that this condition and object of my will shall be kept in view, and that this trust shall be strictly carried out.
“Seventeenth. And lastly, I hereby nominate and appoint Harvey J. Taylor, of Rochester, Michigan, to be the executor and trustee of this my last will and testament, hereby revoking any and all former wills by me made.”
On February 26, 1904, Laura C. Fisher Mastín died, seised of said real estate, at the age of 82 years, leaving surviving her but one child, the son, William Ira Fisher, mentioned in her will. Her said will was duly admitted to probate, and her estate administered pursuant thereto by Harvey J. Taylor, the executor and trustee therein named, except as to the trust. On August 14, 1906, the probate court of Oakland county, in the matter of her estate, duly made its final order of distribution therein, which order provided as follows:
“It is further ordered * * * that the real estate of which said deceased died seised be, and the same is hereby, assigned according to the terms of the will of said deceased, and further ordered, that said executor be, and he is hereby, discharged, except as to the trust under said will.”
It was conceded at the hearing of the instant case that the son, William Ira, was a party to that proceeding, and was bound by it. The son, William Ira Fisher, died on May 9, 1910, leaving no child or children surviving, unless it shall appear that the complainant Gladys Irene Fisher was his child by adoption. On May 16, 1911, the complainant, a child of unknown parents, by her next friend, instituted this suit, asserting her adoption by William Ira Fisher and his wife on August 21, 1901, and claiming that as such adopted child she owned said land: First, by inheritance from said William Ira Fisher; and, second, by virtue of the will of his mother, above quoted. To this suit the “nearest kin” of Mrs. Mastín “living at the time of the death of” said William Ira Fisher were made defendants, that complainant’s alleged title might be quieted as to them. These defendants, answering, denied all the material allegations of the complainant’s bill, and asserted by way of cross-bill that they, as Laura C. Fisher Mastin’s next of kin, were entitled to this land by virtue of her will, praying for appropriate relief, and bringing in by process issued on the cross-bill, as cross-bill defendants, Harvey J. Taylor, the trustee, Thomas W. Hacker and James G. Toles, his bondsmen, Matilda Fisher, wife of William Ira Fisher, deceased, and the Detroit United Railway Company, an alleged grantee of part of the premises. Personal service was had upon all of the cross-bill defendants, and the default of all of them for want of plea, answer, or demurrer was duly entered, excepting the cross-bill defendant Matilda Fisher, who filed an answer thereto. The cross-bill of the principal defendants, Aurora Steevens, Emma Drehner, Glendora Drehner, and Merritt Nye, is taken as confessed by all of the cross-bill defendants, excepting Matilda Fisher. At the final hearing of the cause the complainant was granted a decree, and the defendants have appealed.
It is their claim thát complainant is not entitled to the real estate in controversy on any theory:
First. That she could not inherit it from William Ira Fisher, as a child adopted by him, because he did not die seised of it.
Second, (a) That she could not take it under the will of Laura C. Fisher Mastin, above quoted, because a proper construction thereof excludes her, even if she was a child adopted by William Ira Fisher, (b) Because her attempted adoption proceedings were legally insufficient to create that relation.
A citation of authorities is not necessary to show that by this will William Ira Fisher obtained no title to this land. All the interest which he ever had therein ceased at his death, and the probate court had no power to assign to him any interest therein contrary to the terms of the will. Certain proceedings were taken in the probate court under section 9471, 3 Comp. Laws, to determine who were the legal heirs of William Ira Fisher. Of that statute this court, in Lorimer v. Wayne Circuit Judge, 116 Mich. 682, at page 683 (75 N. W. 133), said:
“The act under which the proceedings were instituted does not purport to make the proceedings of the probate court conclusive upon anybody. They are not binding even upon the relator. The petitoner, or other person interested, if not satisfied with the find ings, might, in any judicial proceeding, resort to original evidence, and wholly ignore the action of the. probate court.”
That complainant acquired no part of this land by inheritance from William Ira Fisher, because he did not die seised of it, is too plain for argument.
If complainant acquired any of the land in question, she did so by virtue of the will of Laura C. Fisher Mas-tin. This involves the validity of the alleged adoption proceedings. The claimed adoption order bears date August 21, 1901. The only adoption statute then in force was Act No. 77 of the Public Acts of 1891, as amended by Act No. 141 of 1897, being sections 8776 to 8780, 3 Comp. Laws. Complainant claims that she was adopted in conformity therewith. This is denied by defendants.
Section 8777 provides that such adoption shall be with the consent of the persons thereinafter described, viz.:
Subdivision (d) : “In case such child is an orphan, or is abandoned by its parents or surviving parent, or by its mother, if it be illegitimate, then with the consent of the nearest of kin or guardian of such child, or of the principal officer of any incorporated asylum, hospital or home, of which such child may be an inmate, or of two superintendents of the poor of the county, or the director of the poor of any city or township of which such child is a resident, or of the principal officer of any institution, public or private, in this State or elsewhere, in whose care such orphan or abandoned child may be.”
It is the claim of appellants that there was no attempt to comply with this statute and that the forms used were not adapted to the statute. The pertinent question is whether there was a substantial compliance with the essential requirements of the statute. The application for adoption was as follows:
“Know all men by these presents that we, William I. Fisher and Matilda Fisher, his wife,, of Rochester, Oakland county, Mich., do hereby declare that Gladys Irene Fisher, a minor child, whose parents are unknown, and an orphan of the age of three years on the 20th day of November, 1901, is adopted by us, and each of us, as our child, and that we intend to make such child so adopted our heir, and the heir of each of us, and desire that such child shall hereafter bear our family name, to wit, the name of Gladys Irene Fisher. And we, the said William I. Fisher and Matilda, his wife, do each of us declare that this instrument is executed in good faith, and we do hereby request the judge of probate for the county of Oakland and State of Michigan to make and enter in the journal of said court an order that said William I. Fisher and Matilda Fisher, his wife, do stand in the place of parents to said child, and that said child be their heir at law, and that the name of such child be changed as aforesaid in accordance with the provisions of the statute in such case made and provided.
“And Jennie Sterling, being the matron of Mercy Hospital of Detroit, Mich., and being the only person having the custody and control of said minor and lawfully entitled to give consent thereto, so execute this instrument for the purpose of giving consent in writing to the adoption and change of name of said child as aforesaid, and that said child may become the heir at law of said parties so adopting her, I, the said Jennie Sterling, do hereby certify that said minor has been abandoned by its parents and placed with me for the purpose of finding a suitable home for said minor.
“In testimony whereof, we have hereunto set our hands and seals this 8th day of August, 1901.
[Signed] “Ira W. Fisher. [L. S.]
“Mrs. Matilda Fisher. [L. S.]
“Jennie Sterling. [L. S.]
“State of .Michigan,
“County of Wayne — ss.:
“On this 17th day of August, A. D. 1901, before me, a notary public in and for said county, personally came the above-named Jennie Sterling known to me to be the person who executed the foregoing instrument, and acknowledged the same to be her free act and deed for the uses and purposes therein mentioned.
[Signed] “George F. Standley,
“Notary Public, Wayne Co., Mich.”
The execution of said instrument was acknowledged by the said William I. Fisher and Matilda Fisher, in the same form, on August 8, 1901, before a notary public of Oakland county.
The order of the probate court bears date August 21, 1901, and after its caption was as follows:
“In the Matter op the Adoption and Change op Name op Gladys Irene Fisher, a Minor.
“On reading and filing the declaration duly acknowledged of Ira W. Fisher and Matilda Fisher, his wife, declaring that said Gladys Irene Fisher is adopted by them as their child, and that they intend to make such child their heir, and desire that such child shall hereafter bear the name of Gladys Irene Fisher, and be their heir at law, and on reading and filing also the consent in writing of Jennie Sterling, the matron of Mercy Hospital, of Detroit, Mich., the parents of such child being unknown, she being a foundling, to the adoption and change of name of said child as aforesaid, and it appearing satisfactorily to the court that such proceedings have been taken in good faith, and that said Ira W. Fisher and Matilda Fisher are suitable persons to have the charge of said child.
“It is therefore ordered, adjudged, and decreed that said Ira W. Fisher and Matilda Fisher do stand in the place of parents of said Gladys Irene Fisher, and that said Gladys Irene Fisher be and become the heir at law of said Ira W. Fisher and Matilda Fisher, with all the rights, privileges and duties appertaining thereto as provided by law.
“Joseph S. Stock well, Judge of Probate.”
Upon the trial of the instant case, Mrs. Matilda Fisher testified that she and her husband took the child When it was about five months old, and adopted it when it was about two years old; that she did not know who the mother of the child was, and she testified further as follows:
“I know how long I had her before I adopted her, and when I did adopt her the matron of Mercy Hospital, where she had been, went before a notary public and made an affidavit; she didn’t go before the probate court.
“Q. During the time you had the child was the fact as to whether it was a suitable place for the child to be placed looked after by Mrs. Sterling?
“A. They always looked after them; that was their laws.”
It is the contention of counsel for appellants that the probate court was without jurisdiction to make an order of adoption for many reasons, two of which are that it did not appear that the consent to the adoption was given by the principal officer of any institution in whose care such orphan or abandoned child was; that it cannot be presumed that the matron was the principal officer of Mercy Hospital; that, in the absence of evidence, the court can indulge in no presumptions on that subject; and that it does not appear that Jennie Sterling was the “principal officer of any institution,” because “matron,” as applied to a hospital, means a nurse, which is not a “principal officer.” Further, that the act of 1897 nowhere authorizes adoption on the consent of an individual with whom a child has been placed for the purpose of finding a suitable home, or to whom it has been abandoned by its parents; that-.Jennie Sterling had no authority to consent to this adoption, and that, if “said minor has been abandoned by its parents and placed with me for the purpose of finding a suitable home for said minor,” as stated, then, in the words of the statute, the consent of “two superintendents of the poor of the county, or the director of the poor of any city or township of which said child is a resident” was necessary. This is a statutory proceeding, and the rule seems to be well established that there must be a compliance with all of the essential requirements of the statute, but the statute should not be construed so narrowly as to defeat the manifest legislative intent. 1 Cyc. p. 919. See note to Chehak v. Battles (Iowa), 12 Am. & Eng. Ann. Cas. 144.
In Morrison v. Sessions’ Estate, 70 Mich. 297 (38 N. W. 249, 14 Am. St. Rep. 500), it was said:
“A proceeding which so materially affects the succession of property and the rights of natural heirs is a very important one.”
And attention is called to the fact that it is a proceeding not recognized by the common law of England, and exists in this country only by special statute. This proceeding is far-reaching in its effect upon rights' of inheritance of property, and a strict compliance with the provisions of the statute is essential to its validity. The failure of the court to obtain jurisdiction renders the decree void. Volume 1, Ruling Case Law, title “Adoption of Children,” § 41; Shearer v. Weaver, 56 Iowa, 578 (9 N. W. 907); In re McCormick’s Estate, 108 Wis. 234 (84 N. W. 148, 81 Am. St. Rep. 890).
We had a similar question before us in Re Courtright, 167 Mich. 689 (133 N. W. 820). There the consent of the principal officer was as follows:
“I, Sister Laura, president and principal officer of the House of Providence, of the city of Detroit, said institution having had the care, custody, and control and to which the above-named minor was abandoned, do hereby join in the execution of said instrument,” etc.
In that case the affidavit of Sister Laura, filed in support of the proceedings had on June 12, 1911, contained the following:
“That said infant was abandoned and left at the said House of Providence, and its parents are unknown. _ Deponent further says that the said House of Providence has .had the care and custody of said infant from date of abandonment until February, 1900, when said child was turned over to Mr. and Mrs. Frank Courtright,” for the purpose of adoption by them.
We held the proceedings valid, and the reason therefor is fully stated. The cases are readily distinguished. We are constrained to hold in the instant case that there was not a compliance with the provisions of the statute in the particulars named, and that the probate court had no jurisdiction to make the order of adoption, and that such order was void. It will be observed that the probate court did not, by its order, find that consent was given by the “principal officer” of any institution in whose care such child was.
The complainant, therefore, is entitled to no relief in the case and her bill of complaint should be dismissed, and the defendants given relief under their cross-bill as prayed for therein.
The decree of the court below should be reversed, complainant’s bill dismissed, and a decree entered here in accordance with this opinion, with costs to defendants.
Ostrander, Bird, and Steere, JJ., concurred with Stone, J. | [
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Bird, J.
Plaintiff was injured at the intersection of a highway crossing with the Pere Marquette Railroad in Berrien county, on March 12, 1912. On April 5, 1912, receivers for the railroad were appointed. Suit was commenced by declaration on February 26, 1913. The declaration named the receivers as defendants, but counted upon a cause of action against the railroad company. The return of service shows that the declaration was duly served on the station agent of the Pere Marquette Railroad Company at St. Joseph, in Berrien county. The receivers appeared by counsel and pleaded the general issue. Upon the trial it soon developed by the proofs that the accident occurred prior to the appointment of the receivers. Defendants’ counsel moved for a directed verdict, on the ground that no recovery could be had against the receivers for injuries which were incurred prior to their appointment. It appearing to plaintiff’s counsel that this was a correct statement of the iaw, he thereupon asked the trial court for permission to amend his declaration by striking out the names of the receivers and substituting therefor the railroad company. This request was denied, but, in doing so, the court said:
“If it was a discretionary matter with the court, I should feel inclined to allow, under proper terms and conditions, such amendment, but there is, I am convinced, no power in this court to allow an amendment substituting new parties or the railway corporation; and upon that ground I place the decision.”
Verdict was accordingly directed for the defendants, and the plaintiff has assigned error in this court.
In support of his contention that the trial court had the power, under our statute of amendments, to make the amendment, plaintiff’s counsel cite several cases in which receivers have been substituted by amendment for the company, and the company for the receivers, but in nearly all the cases cited the misnomer occurred with reference to the plaintiff. In the case of a misnomer of the plaintiff, the party proposed to be substituted is usually the petitioner, and therefore no question of service of process arises. But in the case of a misnomer of the defendant, the vital question always is whether the party proposed to be substituted has been served with process. Unless it can be said that the Pere Marquette Railroad Company has been served with process in this suit, the amendment sought by plaintiff is clearly beyond the power of the courts to permit.
A rule which has been sometimes followed in correcting misnomers in pleadings is that:
“Where the right corporation has been sued by the wrong name, and service has been made upon the right party, although by a wrong name, an amendment substituting the true name of the corporation may be permitted.” 31 Cj^c. p. 488.
The declaration in the insant case clearly defined and counted upon a cause of action against the railroad company, and not against the receivers. The return of service shows that a copy of the declaration was duly served upon the railroad company. True, it named the receivers of the road as defendants, but the paper upon its face advised the agent of the railroad company that the negligence of the railroad company was relied upon for a recovery in the suit. In view of these circumstances, we think it was within the power of the trial court to allow the amendment. Solmonovich v. Tramway Co., 39 Colo. 282 (89 Pac. 57); Ward v. Construction Co., 189 N. Y. 542 (82 N. E. 1134); Bainum v. Bridge Co. (C. C.), 141 Fed. 179; Hernan v. Bridge Co., 167 Fed. 930, 93 C. C. A. 330. See, also, Welch v. Hull, 73 Mich. 47 (40 N. W. 797); Tuller v. Ginsburg, 99 Mich. 137 (57 N. W. 1099).
The point is made and argued by defendant that the order denying the motion was a discretionary one, and therefore will not be reviewed by this court, even though it should be held that the trial court had the power to grant the amendment. In support of this contention, the case of Polhemus v. Ann Arbor Sav. Bank, 27 Mich. 44, and Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), are cited. The Lyle Case is not in point, as the question there decided was that a discretionary order would not be reviewed on mandamus. Three of the five justices sitting in that case expressly held that such orders were reviewable upon writ of error. The Polhemus Case is authority for counsel’s contention, but that case must give way, so far as it is in conflict with the many cases since decided by this court, in which it is held that such discretionary orders are reviewable on writ of error. The following are a few of the many cases so holding: Pangborn v. Insurance Co., 67 Mich. 683 (35 N. W. 814); Pratt v. Montcalm Circuit Judge, 105 Mich. 499 (63 N. W. 506); St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249); Skutt v. Kent Circuit Judge, 136 Mich. 477 (99 N. W. 405); Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1); Jones v. Wayne Circuit Judge, 141 Mich. 408 (104 N. W. 692).
In Cleveland v. Rothschild, 138 Mich. 90 (101 N. W. 62), the trial court refused to permit the amendment asked, on the ground of a mistaken want of power. This is the same reason assigned in the Polhemus Case; yet, this court reviewed it upon error. The cases of Welch v. Hull, 73 Mich. 47 (40 N. W. 797), and Wood v. Lenawee Circuit Judge, 84 Mich. 521 (47 N. W. 1103), are analogous cases as to this question.
If we consider the order made in this case as a discretionary one, it is properly here on writ of error.
The judgment will be reversed, and a hew trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Moore, and Steere, JJ., concurred with Bird, J.
Ostrander, J. There was no misnomer of defendants, and no question of discretion was or is involved. The court had no right to permit the elimination of the defendants named in the declaration and the substitution of a new defendant. The judgment should be affirmed. | [
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Stone, J.
This cause is before us for the second time. When first here it was disposed of upon its general merits, and will be found reported in 177 Mich. 495 (143 N. W. 622), where a full statement of the facts appears. The original bill was filed February 23, 1912, and alleged fraud on the part of defendants Hall in the sale by them of a stock of goods at Charlotte to complainant, who gave back to said defendants certain promissory notes secured by chattel mortgage on the stock. Before the filing of the bill defendants Hall had traded said notes and chattel mortgage to Blanche R. Mott (the latter having acted through her husband and agent, Frank H. Mott) for certain real estate in the city of Battle Creek. Blanche R. Mott was made a defendant. She answered, and claimed the benefit of a cross-bill, asking for affirmative relief. She claimed that she had acted in good faith, and, in case defendants Hall were found to have been guilty of fraudulent conduct, she asked to have her property at Battle Creek restored to her; she offering to transfer to said defendants Hall the said chattel mortgage and notes. In the original bill complainant had prayed for the appointment of a receiver, but had taken no further steps therein.
On March 4, 1912, Blanche R. Mott filed a petition in said cause, representing that she had purchased said mortgage on said stock; that it consisted of groceries, meats, and other things which usually go with a groc ery store, meat market, and bakery, and that much of said stock was perishable; that complainant, after filing his said bill to set aside said sale, had closed said store, locked the doors, and turned over the keys to the sheriff; and that the store was then closed. She represented that said stock, if left in that condition, would depreciate, and much of it would become worthless, and her security would be greatly depreciated; that she was vitally interested in maintaining the value of said property; and that all the parties were more or less interested in maintaining it. She prayed that her husband, Frank H. Mott, be appointed receiver—
“To take possession and charge of the said stock of goods, situated in the city of Charlotte, Mich., and to care for and preserve said business, to the end that said business and property may be preserved for the persons who at the final decree of this court it is determined the same belongs to, and that the usual order appointing a receiver be made herein, with the usual power of receivers.”
On March 5, 1912, the court made an order which, after reciting that counsel for defendants waived notice of hearing, of the petition that a receiver be appointed (but not objecting thereto) to take possession and charge of the stock of goods located as above stated, concluded as follows:
“It is ordered, that Frank H. Mott, of the city of Battle Creek, Mich., be and he hereby is appointed: a receiver to receive all and singular the said property hereinbefore in a general way described, the same being the property in litigation in this suit, which was sold by said defendants Eugene H. Hall and Clarence M. Hall, to complainant, and which the bill in this cause is filed to set aside, and upon which a chattel mortgage was given by complainant to defendants Eugene H. Hall and Clarence M. Hall, and that Frank H. Mott, before entering upon his duties as such receiver, enter into a bond in the penal sum of $1,500, with sufficient surety or sureties to be approved of by the register of this court, conditioned for the faithful performance of his duties as such receiver, and that he will be answerable for what he shall receive, and shall dispose of the same as this court shall from time to time direct.
“It is further ordered that the parties to this suit, and each of them, do deliver over to the said Frank H. Mott, as such receiver, all of said property, and that upon such delivery the said Frank H. Mott, as such receiver, make a true and complete inventory and appraisal of all and singular of said property and file the same in the court in this cause.
“It is further ordered that the said receiver shall from time to time make a report to this court of his doings in this behalf, and that he be at liberty to apply to the court for further directions as he may deem necessary.”
Said receiver gave the required bond, and seems to have filed with, or shown to. the circuit judge an inventory of the stock amounting to $2,034.68.
.Upon a subsequent petition of Blanche R. Mott> the court made a further order extending the receivership to include the real estate at Battle Creek which she had transferred to defendants Hall, said receiver to take possession of, collect rents, and pay taxes thereon, etc.
Upon the final hearing of said cause, and on July 22,1912, the court made a final decree in favor of complainant. It ordered defendants Hall to reconvey certain property which they had obtained from complainant, and ordered the Battle Creek real estate to be reconveyed to defendant Blanche R. Mott, and she was directed to deliver up to complainant the promissory notes, and that the chattel mortgage be delivered up and canceled.
Said decree further provided as follows:
“And it is further ordered, adjudged, and decreed that Frank II. Mott, receiver appointed heretofore in this cause, make a final report of all his actions and doings as such receiver to this court, and upon settlement of his accounts as such receiver, he to deliver and surrender all of the property in his hands as such receiver to the defendants Hall, upon payment to him of his expenses as such receiver, and his compensation as such receiver hereafter fixed by the court; and that said Frank H. Mott have a lien on such property for such expenses and services.”
From this decree defendants Hall appealed, and on November 3, 1913, the decree of the circuit court was affirmed, and the case remanded to the circuit court. The cause having been remanded to the circuit court, an order was entered therein on November 25, 1913, requiring the defendants Hall to show cause on December 2, 1913, why the account of said receiver should not be allowed, and the expenses of said receivership paid by said defendants.
The expenses of receivership, as specified in said order, were as follows: Expenses of receivership, $50; attorney fees, $250; receiver’s salary for services, $1,880. At the time this order to show cause was entered no inventory, appraisal, or account of said receiver had ever been filed with the register of the court, nor had any copies thereof been served upon the. solicitor for defendants Hall, but, as we understand the record, such papers had been left or filed with the circuit judge at his chambers. On December 2, 1913, an order was entered in said cause allowing in all respects the said account of the receiver, except that the balance of rent collected by said defendants on the Battle Creek property was found to be $263.72, instead of a larger sum, as claimed by the receiver. This order provided that the.receiver should sell the grocery stock at public sale on December 12, 1913, and that the proceeds of the sale should be used, first, in payment of the debts contracted by the receiver in the purchase of stock, amounting to $751.30, second, in the payment of attorney fees, $250, third, in paying the expenses and disbursements of the receiver of $50, and, fourth, in the payment of the receiver’s salary of $1,880; that all sums after the.payment'of the foregoing items should be paid over to defendants Hall, after deducting from such balance the said sum of $263.72, found to be owing by said defendants to such receiver as balance of rents collected as aforesaid; that if the sum realized by the receiver at such sale should not be sufficient to pay all of the sums aforesaid, that the balance remaining unpaid should stand as a decree against said defendants Hall, and that execution might issue therefor.
On December 8, 1913, defendants Hall filed a motion to set aside the order of December 2d, for the reason that the order appointing said receiver did not authorize him to dispose of the property over which the receivership extended, except as the court should from time to time direct, and that no order or decree had ever been entered in said cause authorizing or empowering said receiver to conduct and carry on business with the property over which he was by said order appointed; that said receiver had without authority or right used the said property for the purpose of carrying on a general grocery business, which had been carried on at a great loss; that said receiver had never been authorized to employ counsel, and that his duty as such receiver had never been such as to justify and authorize the employment of counsel, and that all of the acts and doings of said receiver since the entry of said order appointing him such on March 5, 1912, had been unauthorized and illegal.
On December 11, 1913, said motion came on to be heard. Testimony was taken from which it appeared that said receiver, after the filing of his bond and making an inventory, had proceeded to carry on a retail grocery business with said stock, buying new goods to keep up the stock, and advertised the store as “Mott’s Store.” In the course of his cross-examination said receiver testified as follows:
“Q. You didn’t come down here and inform the court that there were perishable goods there that ought to be disposed of?
“A. Oh, yes; I informed him of that right on the start.
“Q. And you didn’t come down here and get an order authorizing you to make a sale'of this property?
“A. Yes; he told me to.
“Q. Well, told you, but did you make an application to this court for an order authorizing you to sell this property, and give the people notice, or did you come out here and see Charles B. Collingwood, and have a talk with him, and he told you what he thought about it, without any person being in court at all?
“A. Why, I came to him as the head, under which I was supposed to be working.
“Q. Not in court, however?
“A. Why, in his chambers.
“Q. And there verbally, and without notice to any other person, had some conversation with him?
“A. Very short.
“Q. What was it?
“A. After Mr. Stewart had been here and the order was issued appointing a receiver, I prepared my bond in Battle Creek; and I came up the next day and stepped into Judge Collingwood’s office. That was the second time I had ever seen him. I says T have this bond.’ He says, ‘You file them with the register.’ I went into the register’s office, and came back in, and he was doing some business. I says, ‘Well, what are my duties.’ ‘Why,’ he says, ‘you are supposed to go down there and take care of that property.’ And I says, ‘Well, I desire further and definite instructions.’ He says: ‘Mr. Mott, I am simply an officer of the court, and I do not run a grocery business; I know nothing about it. You are appointed for that purpose, and you are to go down there and use your very best judgment, keeping absolute and correct account of your doings, so that you will be ready to file them with this court.’ He says, ‘Keep an accurate account of your transactions;’ and he kind of turned away, and that was all there was to it. He went in to attend to his business, and I went on and took hold of the store, supposing I was to go there, as he specially told me. That was the day I filed my bond and before I had done anything as receiver. * * *
“Q. That is all the authority you have then for your acting, so far as any orders were concerned?
“A. I supposed the full authority was in the order.”
The record also shows that on the hearing of the cause in June, 1912, the receiver had testified that the occasion of his going to Charlotte was that he had been appointed to take charge of the Hall Bros, store, to keep it running while the dispute was being settled; that on cross-examination by defendants’ counsel he testified that he had been there some time conducting the business as receiver; that, as a matter of fact, he had been selling some of the fixtures.
“Q. Do you propose to go ahead and handle this business as a receiver and do whatever you see fit there, whether it is in the business as a going concern ?
“A. I am ready to account for them, and ready to explain it satisfactorily.”
“By the Court: Q. And, Mr. Mott, have you been able out of the receipts of the' business, besides its running expenses to pay anything on this mortgage?
“A. No, sir; I have had to put up money.
“Q. At the close of this case you will be ready to make a report?
“A. Yes, sir.”
On December 18, 1913, an order was made setting aside the sale made on December 12th, by the receiver to Blanche R. Mott; also setting aside that part of the order allowing $250 for solicitor’s fees for the receiver, but allowing the account of the receiver in all other respects. This order provided that defendants Hall should pay the receiver his salary of $1,880, his expenses of $50, and compensation from December 2d at the rate of $30 a week, and that, in default of such payment, the receiver should sell the property in his hands, after not less than three days’ notice; and further, “that said receiver may accept bids from any of the parties to this cause, and if said receiver receives no bid in excess of his fees as above named, he may himself take over said property for the amount of his charges and expenses as allowed above;” and further, “that if at said sale there is any surplus over and above fees and expenses of said receiver, such surplus shall be paid over to the defendants Eugene H. Hall and Clarence M. Hall, or to their solicitor.”
On January 2, 1914, said receiver took over the stock and property in payment of his receivership fees, salary, and expenses, which taking over and so-called sale was confirmed by an order entered on January 19, 1914.
Defendants Hall have appealed from the orders of December 2d, December 18th, and January 19th, above referred to.
It will be noted that the order appointing the receiver did not purport to confer upon him any authority to carry on the retail grocery business, or, in fact, any business. It appears that the receiver at once, after his appointment, proceeded to conduct a retail grocery business with the stock as a basis, buying additional goods to replace stock sold, and advertising the business as “Mott’s Store.” It also appears that the business was conducted at a loss, and that finally the whole property was closed out to pay the receiver’s expenses.
It appears from the evidence taken at the original hearing, above quoted, that the court and defendants Hall and their solicitor knew what was being done by the receiver. Either party might have applied to the court for an order requiring the receiver to sell the stock and pay the proceeds into court to abide the event of the suit, but nothing of this kind was done. The defendants Hall took an unsuccessful appeal to this court, thus prolonging the litigation, and knowing what the receiver was doing. Defendants Hall complain that they were not served with papers and were not advised of the doings of the receiver. The evidence is undisputed that they knew that he was carrying on a retail grocery store with the stock.
The whole proceeding was a most unusual and irregular one. The most charitable view which can be taken of it is that neither the court, parties, nor receiver understood the limited scope of the order. It is a well-settled rule that a receiver has no right to carry on and conduct a business, unless he is authorized or directed by the court so to do; and such authority is not derived from an order of appointment to take and preserve the property. 34 Cyc. p. 283, and cases cited; State Central Sav. Bank v. Chain Co., 118 Iowa, 698 (92 N. W. 712). In that case it was held that the extent of a receiver’s authority is always to be measured by the order of appointment, and such subsequent directions as may from time to time be given. The property is in custodia legis, and the receiver acts for the court, as its creature or officer, having no powers save those conferred upon him by its orders, or reasonably to be implied therefrom. It is true that in that case the statute required all orders to be in writing, but we think such statute declaratory of the general practice. In that case, as in this, the receiver claimed that he talked with the judge about the conduct of the business.
In Terry v. Martin, 7 N. M. 54 (32 Pac. 157), it was held that, in the absence of express authority from the court, a receiver placed in charge of a drug store, pending litigation, had no right to continue the business, and a bill of expenses presented was held properly refused. Many other cases might be cited to the same effect.
The objection to the appointment of the receiver is not available to the defendants Hall now. The decree of the circuit court, affirmed by this court, recognized the appointment and provided for the settlement of his account. It is only with that account that we can now deal.
The receiver was appointed at the instance and in the interest of Blanche R. Mott. It is urged that the store was conducted by the receiver in her sole interest, and that she and her husband, the receiver, have, with the aid of the court, been given the entire property, and that the defendants Hall have been turned out of court empty-handed, in so far as the property involved in the litigation is concerned. We must now take the situation as we find it. It would be impracticable to now set aside the sale. The stock has been in the hands of the receiver, as purchaser, since last January, and probably could not now be identified or followed.
We think the allowance of $1,880 to the receiver an unreasonable one. To. look after and protect the stock, getting leave to sell the perishable portion thereof, and collecting the rent and looking after the property in Battle Creek, probably may have been worth $380. We think that all in excess of that sum was unreasonable and inequitable. The sale should not at this late day be disturbed, but a decree should be entered here disallowing $1,500 of the receiver’s account for services, and a decree in favor of defendants Hall and against the said receiver for $1,500, to be paid on demand, should be entered, and Blanche R. Mott will pay said defendants their costs of this court to be taxed.
McAlvay, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Brooke, J., did not sit. | [
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] |
Kuhn, J.
A clear and concise statement of this case, distinct from argument, is set forth in defendant’s brief as follows:
“The plaintiff alighted from the front end of a Woodward Avenue car going north, at the corner of Martin Place, with the intention of proceeding east to the east curb of Woodward avenue, and thence along Martin Place to Harper Hospital. Somewhere between the car track and the east curb he was struck by an automobile driven by defendant Koppin, and as a result of the injuries received, he died.
“The claim of the plaintiff is that Mr. Levyn had gone but two or three steps towards the east curb when he was struck by the automobile driven by defendant Koppin, who had not given warning of his approach, and was driving the automobile at a rate of speed of from 20 to 25 miles an hour, and that Mr. Levyn was exercising due care and was without negligence on his part. It is the claim of defendant Koppin that, on approaching the street car from which Mr. Levyn alighted, he came to a full stop; that Mr. Levyn alighted from the car at practically the same time he started his automobile, and had proceeded east almost to the east curb of Woodward avenue and past the path of his automobile, when he jumped back into the path of the automobile and was struck; that' he gave due warning of his approach by blowing his horn. Testimony was introduced by the respective parties to substantiate their claims, and the case was submitted to the jury as against defendant Koppin, 'and a verdict of no cause of action was rendered.”
A motion for a new trial being denied by the court, the plaintiffs bring the case here by writ of error, and the assignments of error are grouped by counsel as follows:
“(1) Permitting the defendants eight peremptory challenges instead of four. '
“(2) Error in sustaining objections to questions put to plaintiffs’ witnesses.
“(3) Errors in refusal of certain requests to charge offered by plaintiffs.
“ (4) Errors in the charge of the court.
“ (5) Refusal of a new trial.”
Section 10238, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12944), provides that, “in all civil cases each party may challenge peremptorily four jurors,” etc. The action in this case was begun by summons, and service was first made on defendant Kludt, who appeared by Attorney Fred L. Vandeveer and filed a plea of the general issue. An alias summons was issued for defendant Koppin, and after he was served Mr. Vandeveer entered his appearance also for him. No plea had been filed by Koppin up to the time of the trial, and while a jury was being drawn a question arose as to how many peremptory challenges the defendants were entitled to; the plaintiffs’ counsel claiming that the defendants collectively were entitled to but four peremptory challenges. The court allowed Mr. Yandeveer to withdraw as attorney for defendant Koppin and permitted Mr. Moloney and Mr. Henze to appear for him. Six peremptory challenges were exercised by defendants’ counsel after plaintiffs’ counsel had but one peremptory challenge left. This was objected to, and is'made the basis of an assignment of error.
There was no error in allowing four peremptory challenges for each of the parties defendant, which the statute clearly gives as a matter of right. There cannot be any question that the interests of these defendants were several, and they must be considered separately as parties to the suit. Each of them is entitled to the full number of challenges given by the statute as any other construction would do away with its clear intent. 17 Am. & Eng. Enc. Law (2d Ed.), p. 1182; Stroh v. Hinchman, 37 Mich. 490; People v. Welmer, 110 Mich. 248 (68 N. W. 141); People v. Caruso, 170 Mich. 137 (135 N. W. 968, Ann. Cas. 1914A, 857).
The errors relied upon with reference to the exclusion of testimony arose, it is claimed, from the following: Witness Hindeman, who was the conductor of the street car, was asked,
“Now from the time that you saw the automobile to the moment and the time that Mr. Levyn, or this gentleman whoever he was, got off the car, what opportunity did he have to get out of the way of that automobile?”
The witness answered, “None whatever.” On motion, this answer was stricken out as a conclusion. For the same reason the court ruled out the answers of this witness to the following question:
“If he (Mr. Levyn) had looked in that direction (south), what could he have done to have avoided the injury?”
And of witness Vinnett to this question,
“Could you tell from the rate of speed that that automobile was going whether it started up from a full stop at the intersection of Martin Place?”
We are of the opinion that the rulings of the court were proper and correct, as the questions clearly called for conclusions of the witnesses. No conditions were shown which called for knowledge not possessed by ordinary persons, and the jurors were just as able to draw their own conclusions from the conditions and facts presented to them as these witnesses. With reference to the question asked of witness Vinnett, it is also a matter of common knowledge that it would depend largely upon the type and power of an automobile as to how quickly it could attain a fast rate of speed after having been at a complete stop, and it does not appear that the witness possessed any special or particular knowledge of this type of car, or was otherwise qualified to answer the question.
We now come to the principal grounds for reversal urged by counsel for appellant, which are objections relative to the charge of the court. The defendant Koppin admits that he saw Mr. Levyn alight from the car, and that he was in the highway when struck. He was therefore in the roadway of a public highway and the defendant Koppin was approaching him. The duty of the defendant Koppin under this conceded statement of facts is prescribed by section 7, subd. 2, Act No. 318, of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §§2487, 2493), and in consideration of this duty it was immaterial whether it was in a business district or a residence district. It was his duty to slow down to a speed not exceeding ten miles per hour, give reasonable warning of his approach, and use every reasonable precaution to insure the safety of Mr. Levyn. The serious objection to the charge of the court is that the learned circuit judge did not instruct the jury, as requested .by the appellants’ counsel in their requests to charge, that a violation of a statute by the defendant would be negligence per se, in accordance with the holding of this court in Westover v. Railway Co., 180 Mich. 373 (147 N. W. 630).
It is not claimed by the appellee that such an instruction was given by the court in exact language, but it is claimed that in effect the court did so charge in the following:
“As has been said by one of the judges in the State, and which has been approved, I understand, by the court, the owner of an automobile has the right to use the highways of this State, provided in using them he uses reasonable care and caution for the safety of others, and does not violate the law of the State. If the defendant operated his automobile on a public highway at such a high rate of speed as to prevent him from maintaining control of it, and the rate of speed is unreasonable, then he would be deemed to be negligent. In making use of a vehicle which is operable at a high rate of speed largely in excess of the ordinary vehicles of travel, and which is powerful and of great weight, the operator must enlarge to a commensurate extent the degree of vigilance and care necessary to avoid injuries which by the use of his vehicle is made more imminent. This is partly the language of the statute: It is unlawful for any person to drive a motor vehicle upon the public highways of this State during a period from one hour after sunset to one hour before sunrise without displaying lighted lamps, etc. But that is not in this case. When approaching a person walking in the roadway or public highway, the person operating the vehicle should slow down to a speed not exceeding ten miles an hour, give reasonable warning of his approach, and use every reasonable precaution to insure the safety of such person.”
Later on in the charge he instructed the jury as follows:
“And if you find from the evidence in this case that the said defendant Koppin was operating the automobile driven by him in such a careful and prudent manner, as an ordinarily prudent person would, and that this accident occurred while he was so operating the said machine, then I charge you that the plaintiff in this case cannot recover, and your verdict should be for the defendants.”
We are of the opinion that this language allowed the jury to find that if the defendant acted as an ordinarily prudent person, under all the circumstances, and an ordinarily prudent man might have violated the statute of the State of Michigan, either as to the rate of speed, neglect to sound warning, neglect to slow down, or neglect to take reasonable precaution, they might find the defendant free from negligence. As the question of the violation of this statute was the all-important question in the case, so far as defendant’s negligence was concerned, the plaintiffs were entitled to a clear and explicit instruction as to the legal effect of a violation thereof by the defendant, and this, in our opinion, is not found in the charge of the court as given.
We have examined the other assignments of error as to the charge, refusal to grant a new trial, and newly discovered evidence; but, in view of the fact that the conclusion above arrived at necessitates a new trial, it will be unnecessary to consider them.
The trial court properly directed a verdict in favor of defendant Kludt, who was the owner of the automobile, but was not in the car at the time of the accident. Subdivision 3, § 10, of Act No. 318, Pub. Acts 1909, by which the owner might be held liable under such circumstances, was declared unconstitutional by. this court in Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615, 45 L. R. A. [N. S.] 699).
The judgment is therefore affirmed as to the defendant Kludt, but reversed and a new trial granted as to the defendant Koppin.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Campbell J.:
The relator claims to have been duly elected to the office of Judge of Probate of Oakland county, at a special election held on the first Monday of April, 1861. Van Valkenburgh was appointed in November, 1860, upon the death of Oscar F. North, the previous incumbent, who had just been re-elected for the four years to commence January 1, 1861. Lord, who is in possession of the office, was appointed by the Governor, January 1, 1861, and both he and Van Valkenburgh claim that the election of Andrews was invalid, and each claims the office by virtue of his appointment.
It is not disputed that Van Valkenburg’s appointment was valid, but it is claimed by Lord that his appointment was revocable, and was revoked by the appointment of the latter. It is also claimed that, whether revocable or not, it had determined, and left a vacancy to be filled by appointment.
The Constitution provides that the Judge of Probate shall bo elected, and shall hold his office for four years, and ’■'■until a successor is elected and qualified.” In case of vacancy, the Governor is to appoint a person to continue “until a successor is elected and qualified. When >elected, such successor shall hold his office the residue of the unexpired term.”
These provisions are so free from ambiguity that there Is no room left for construction. A person appointed to fill a vacancy can only be superseded by one who is duly elected, and holds in the same manner as if originally the incumbent until thus superseded. His term of office did not expire on the first day of January, 1861, unless some one elected and qualified was then ready to take the office. As Mr. North was re-elected, and was then dead, the election had then fallen through. This was not a technical vacancy, but it was a case where a new election was expressly provided for by §26 Compiled Laws, which authorizes a special election “ when the right of office of a person elected to any of the aforesaid district or county offices shall cease before the commencement of the term for which he shall heme been elected.” We conceive this to be just such a case.
It is claimed, however, that by the Constitution- the Legislature may authorize the removal of county officers <E in such manner and for such cause as to them shall seem fust and proper” (Art. 12, §7 Constitution). And it is further claimed that, by a statute of 1857, entitled “An Act In relation to vacancies in county offices filled by appointment by the Governor” (L. 1857, p. 420), the absolute right of removal is given in all cases of appointment to fill vacancies, and that Lord’s. appointment amounted to a removal of Yan Valkenburg, whose commission expressly gave him the office for the remainder of North’s term “ unless previously removed by the Governor.”
Without undertaking to construe the act in question,, it is sufficient to remark, that the other clauses of the Constitution already referred to, expressly prohibit the Governor from appointing one Judge of Probate to supersede another already appointed to fill a vacancy. And it rvould also be an unwarrantable construction to hold, that power to authorize removals for a cause to be defined by law, would allow a removal at discretion and without cause. No such power was intended by the Constitution to be vested anywhere. Nor does the form of Yan Yalkenburg’s commission change the case. The duty of the Governor in filling the vacancy was defined by the Constitution, and the limitation, which we are satisfied was placed in the commission by an inadvertant use of a wrong form, was entirely inoperative, and would have been under any circumstances.
The appointment of Mr. Lord was made when Yan Yalkenburg had an existing title to the office, only defeasible by an election; and was therefore void. The only remaining question is, whether Andrews was legally elected. It is objected that the notice was not legal. The law requires the order of the supervisors to set forth, how the vacancy occurred, the name of the officer, the time when the term expires, and the day of election. These all appear in the body of the order, and tbNomission to copy the preamble does not vitiate it. We think the law was complied with.
It is objected, however, that by the law of 1857, an appointment to a vacancy can not be superseded even by an election. Without attempting to determine the meaning or effect of this law, as to other officers, it could not be so interpreted as applicable to Judges of Probate, without an express violation of the constitutional provisions already quoted. We can not regard this law, therefore, as repealing the existing statutes providing for special elections, which are in perfect harmony with the constitutional provision, which clearly designs that no obstacle shall be thrown in the way of permitting elections to keep filled, as well as to fill originally, the office in question.
We are of opinion, that Yan Yalkenburg was entitled to the office until the election and qualification of Andrews, on whom it then devolved; and that Lord is guilty of intrusion ; and judgment of ouster must therefore be rendered, with costs, in favor of Andrews against Lord. The judgment will also contain, as required by law, an adjudication upon the rights of Yan Valkenburg, but no costs are to be awarded against him, as he was not in possession when the information was filed.
The other Justices concurred. | [
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Campbell J.:
The petitioner claims, as a county of the Upper Peninsula, one-half of the specific taxes which have been paid into the State Treasury by mining corporations situated in Houghton county paying a specific tax of one per cent. It appears that a balance of $10,851,03, remains unpaid to the county, and for the issuing of a warrant by the Auditor General a mandamus is now asked of this court..
This is resisted partly on the ground that the application to the Auditor General is not in due form, and partly because it is claimed there has been no legal appropriation.
It appears that the county authorities have been in communication with the Auditor General a long time, and that after various inquiries and negotiations, he furnished a tabular statement exhibiting the balance before mentioned.
The county clerk thereupon drew a draft upon the State Treasurer, payable to the order of the county Treasurer, expressly made on behalf of the county. This draft was, by a special endorsement not negotiable, made payable to the Hon. Daniel Goodwin, as attorney of the county, who held his appointment and powers under a full authority obtained from] the^supervisors of the county. The statute (Compiled Laws, §990) directs the money to be paid to the Treasurer of the county upon the written order of the county clerk. Whether such an order Would be negotiable it is unnecessary for us to decide, as in the case before us a proper county agent is the only person who has been entrusted with its custody. We think the order sufficient in form and substance, connected as it is with" the previous action of the authorities of which we have proof. It is properly directed to the Treasurer, inasmuch as he is the custodian of the funds, although the Auditor’s warrant is also necessary to authorize him to pay the money £ out of the Treasury, and his payment except upon such warrant is forbidden {Comp. L. §171).
The only important question is, whether there has been a sufficient appropriation to authorize the Auditor’s action. By section 7 of article 19 of the Constitution, it is declared that “ one - half of the taxes received into the Treasury from mining corporations in the Upper Peninsula, paying an annual State tax of one per cent., shall be paid to the treasurers of the counties from which it is received, to be applied for township and county purposes, as provided by law. The Legislature shall have power, after the year one thousand eight hundred and fifty-five, to reduce the amount to be refunded.” Whether this language is broad enough to authorize the payment back of this money without legislation or not, there can be no question but that it sets apart the fund as belonging to the counties, and regards the state as merely an agent for its collection. And as we held in the case of Chaffee v. Granger, 5 Mich. 51, no action of the State or its officers could deprive the county of its right to obtain the money in some way. If improperly used, so that the Treasury should not be in a condition to respond, the claim of the county would not, as suggested on the argument, become extinguished or impaired. It would remain like all other liquidated demands a claim payable whenever the Treasury is replenished.
If the money has been diverted to another fund, it should be replaced. It was never destined for general State purposes.
The statute of 1858 (Comp. L. § 990), provides that one-half of the taxes received or which may be hereafter received from the corporations referred to, shall be paid over to the treasurers of the counties from which they respectively have been or may hereafter be received, upon the written order of the county clerk of the proper county. This law is perfectly definite and unequivocal. It points out the mode of payment, and it appropriates all money received or to be received. If this had not already been done by the Constitution, a question we do not deem it necessary to pass upon, this statute is ample to serve as a standing appropriation.
The relator is brought within the law, and is entitled to a mandamus. As the Constitution and statute both require the payment to be made to the Treasurer, the warrant should issue to the Treasurer of Houghton county, who can collect it by himself or an agent duly qualified to act in that behalf by the proper authorities.
The other Justices concurred. | [
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] |
Manning J.:
It has, we believe, always been held that a minor might bind himself by contract for necessaries, and that such contract when executed, if reasonable under all the circumstances, or not so unreasonable as to be evidence of fraud or undue advantage, can not be repudiated by him. We know of no decision holding a contrary doctrine.
From the bill of exceptions, it appears that when the defendant in error went to live with and work for the plaintiff in error, he was fourteen years of age, and that his parents were dead; and that during the four years he remained with the plaintiff in error and assisted him in working his farm, the plaintiff in error not only boarded him and furnished him a home in his family, but clothed him, did his washing and mending, sent him to school, took care of him in sickness, and on one or more occasions furnished him with spending money. And that on the trial in the court below, he offered to prove these things had been done by him for the services of the defendant in error, a¡ d in pursuance of a previous agreement between him and an older brother of the defendant in error The evidence was rejected, and in 'this the court erred The defendant in error was not bound by the agreement made with his brother, if he did not act under it. But if he knew of such agreement, and in pursuance of it went to live with the plaintiff in error, as the latter offered to prove, it would have been evidence from which the jury .might have found a like agreement between him and the plaintiff in error, or. that he had given his assent to, and therefore was bound by, the agreement made with his brother.
The court also erred in charging the jury that the agreement set up was not binding on the defendant in error, if he saw fit to repudiate it.
As the agreement with the brother was not admitted in evidence, the jury must have understood the court as, in effect, charging that if such an agreement was made by the defendant in error himself, and had been executed by him, he was still at liberty to repudiate it. We do not think this is law; but that an agreement made by a minor for necessaries, so far as it has been executed by the parties, is binding on the minor, under the qualifications already stated, and can not thereafter be repudiated by him.
The judgment must be reversed, with costs, and a new trial ordered.
Martin Cn. J. and Campbell J. concurred. | [
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] |
Manning J.:
The instrument for $793.98, it is argued, is not a promissory note, because it is payable with current exchange on New York. It calls for $793.98, if paid in the city of New York; if paid elsewhere it calls for that amount with such additional sum, called exchange, as will make the amount where paid equivalent to $793.98 in the city of New York.
A promisory note must be for the payment of a certain sum of money. Exchange varies from time to time, and might have been more or less when the $793.98 were to be paid than when the instrument was given. Is this fluctuation, to which exchange is subject, such a contingency or uncertainty as the rule requiring a note to be for a sum certain was intended to guard against? We think not. Bills of exchange and promissory notes are commercial instruments, and to facilitate commerce, are subject to certain rules of law not applicable to other contracts. These rules should be liberally construed, and in such a way as to effect the object had in view. Exchange is an incident to bills for the transmission of money from one place to another. Its nature and effect are well understood in the commercial world; and merchants having occasion to use ^heir funds at their place of business, sometimes make the currency at that point the standard of payments made to them by their customers at a different point. Such is the design of the instrument before us; and we believe such instruments are considered by commercial men to be promissory notes. In Pollard v. Herries, 3 B. & P. 335, P. deposited a sum of money with H. in Paris, and took H’s note “payable in Paris, or at the choice of the bearer at the Union Bank in Dover, or at H’s usual residence in London, according to the course of exchange upon Paris.” This instrument was declared on as a promissory note, and spoken of and treated by both counsel and court as a promissory note. It is called a promissory note by the reporter, and treated as such by Mr. Chitty in his treatise on Bills of Exchange, pp. 232, 424. In Leggett v. Jones, 10 Wis. 34, a written promise to pay a sum of money “with exchange on New York,” was held to be promissory note.
There is nothing in the other objection. The note was endorsed by Ely, Brown & McConnell, and every indorsee is the asignee of the endorser. The judgment must be affirmed with costs.
Martin Ch. J., concurred. | [
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Martin Ch. J.:
The Legislature of 1861, by the passage of the Act, No. 125, amendatory of the law of evidence, evidently intended to render all parties (except as is therein excepted) competent witnesses in civil cases only. This is obvious from an examination of the law as it existed before such amendment, and of the amendatory act. As the law stood prior to the act of 1861, all persons could be witnesses except parties nampd in the record, or in whose behalf suit was prosecuted or defended, or the husband or wife of a party. A party could be made a witness only upon an affidavit being made and filed by the adversary party, that facts were within the knowledge of such party which could be proven by no other person. In no' case could a party testify as a witness in his own behalf: he must have been called by his adversary. Under that statute a person accused of crime could not, of course, have been compellable or allowable to testify upon his trial.
The act of 1861 removed all disability of parties, except as therein otherwise provided; and among other provisions contains the following: “Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify, but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross examined upon any such statement.” This provision it is clear has the effect to confine the operation of the act to civil cases, allowing the accused in criminal cases to make a statement or not at his option. The difficulty seems to have arisen from the use of the word “compel;” but had the Legislature designed to allow him. to be a witness, although not compellable, very different language would have been employed from that found in the act, to express such an intention The act declares what he may do; and this declaration excludes the presumption that any. other right was conferred. If the People can not compel him to testify, neither can he force his testimony upon them. Otherwise there would be no reciprocal rights, and the prisoner would possess the double advantage of offering his sworn or 'his unsworn statement at his option. The Legislature did not confer, nor intend to confer, upon a person accused of crime, a right superior to that given to parties in civil actions, either by allowing him' to swear in his own behalf, while he is not compellable to swear at the call of the People, nor by giving him the additional right of making his statement without oath, if safety or caution suggested it. We are therefore of opinion that he can only make a statement, and that such statement can not be upon oath.
There was no error in the ruling of the Circuit Judge, and judgment should pass according to the verdict.
Manning J. concurred.
Christiancy J. concurred in the result.
Campbell J.:
The only question arising in this case is, whether a prisoner on trial can demand to be sworn on his own behalf, to give evidence in the cause.
The statute of 1861, which makes parties competent witnesses, and compellable as well as allowable to testify in the same manner as other witnesses, contains this proviso: “Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify, but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross examined upon such statement.” Laws 1861, p. 169.
Taking this statute alone, without reference to any extrinsic considerations, I think it would fairly be construed as authorizing the defendant to be sworn. And if we looked no further than our other statutes, the changes they have made in the common .law rule would not lead to any other conclusion. They have announced it as our policy to make neither interest, nor suspicion or conviction of crime, any bar to the admission of witnesses, leaving- it to the jury in each case to determine on the credibility of their testimony. If no such objection is to prevail, a prisoner at the bar, whose innocence must be presumed until disproved, is in no worse position of unfitness to testify than others, and such objections as may exist against his credibility are sufficiently apparent here as in other cases. My impressions have been, for these reasons, in favor of such a construction as will permit him to be sworn. But on reflection, and examination of the whole subject, I have come to a different conclusion; although the question is not to my mind entirely free from difficulty. The difficulty is increased by the fact that while the statute of 1861 is substantially borrowed from the English act of 14 and 15 Yic. c. 99, the section of that act refe™ng 1° defendants in criminal cases is changed in a very important and pertinent pfovison. By that act it is declared that “Nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offense, or any offense punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, ox shall render any person compellable to answer any question tending to criminate' himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or-compellable to give evidence for or against her husband.” 1 Phil. Ev. XV. (Ed. of 1860). Our statute omits the provision that such testimony shall not be competent, and expressly permits a statement from the prisoner. This material discrepancy between the statutes introduces an element of difficulty of a serious nature, inasmuch as in all our innovations on the law of evidence, we have attempted, in great measure to follow the English statutes, and adopt their language. And had not the terms used in our own statute referred to a practice the propriety of which has been a subject of consideration for many years, it would be difficult to show any very convincing reason why so plain a variation made in copying a statute should be disregarded or narrowed in its application.
There was, however, much force in the view presented, that the subject is one over which the Legislature has not complete control. The Constitution does not permit any man to be compelled in any criminal case to be a witness against himself: — Const. of Mich. Art. 6, §32, This prohibition would undoubtedly apply as well to prevent questioning without oath as with. The French law, under which the questioning of the prisoner has been by some authorities likened to the “ questioning” by torture, does not put him under oath. Under the law of England (under which our principle that no man should be oom pellecL to criminate himself originated) the witnesses for a defendant charged with felony were never sworn until the statute 1 Anne, § 2, c. 9, was enacted to permit it: — 2 Hale P. C. 283; 4 Bl. Com. 359, 360. And at one time he could not even introduce unsworn witnesses: — Ibid. But while it has been permitted in many cases to examine a prisoner without oath, so far as he was willing to answer, it has been adjudged that a confession or statement or examination under oath, even after a caution given to the prisoner that he need not criminate himself, must be regarded as made under undue influence, and excluded on that account. And this ruling was made under a statute expressly authorizing the examination of the accused: 1 Hale P. C. 585; Rex v. Smith, 1 Stark. R. 242; Rex v. Webb, 4 C. & P. 564; Rex v. Lewis, 6 C. & P. 161; Rex v. Rivers, 7 C. & P. 177; Regina v. Pikesley, 9 C. & P. 124. The statute must have meant one thing or the other, and not both., It must have contemplated nothing but a sworn statement, or nothing but an unsworn statement in all cases. The view of the English judges that an oath, even where a party is informed he need answer no questions unless he pleases, would with most persons overcome that caution, is I think founded on good reason and experience. I think there is no country, certainly there is none from which any of our legal notions are borrowed, where a prisoner is ever examined on oath. And, inasmuch as unsworn examinations and statements are not unfamiliar in criminal jurisprudence, we are bound in view of this to inquire whether the statute cannot be carried out more literally, as well as more naturally, by applying its language to statements not under oath.
Although no statute has yet, so far as I am aware, changed the old rules of practice in England, it is welj knqwn that for many years it has been debated there whether some provision should not be made, whereby a prisoner’s version of facts might be got at, so as to elicit the truth on a trial. Some persons have advocated the entire removal of his privileges as well as disabilities. These views, however, have met little favor. But the question how far an advance could be made without violating the wholesome rule which shields him from any obligation to criminate himself, has attracted attention in Parliament as well as out of it. T have not been able to find any report of the parliamentary investigation, but in an able article on Scottish Criminal Law, published in the North British Review (Vol. 4 p. 312), allusion is made to it, and a suggestion is thrown out that a statement of facts by a prisoner, made voluntarily, as far as he should see fit to explain them, and concerning which he might be cross examined by questions confined strictly to the matters he narrates, would steer clear of the difficulties and injustice attending the^ Scottish and French practice, and materially aid the jury in arriving at the truth; where, without such an opportunity, the prisoner might be unjustly condemned on false appearances. There is also an Essay on Criminal Procedure in England and Scotland in the Edinburgh Review of October, 1858 (Wo. 220), in which an examination is had of the Scottish, English and French systems, making a somewhat similar suggestion, and criticising with some severity the modes of interrogation employed in Scotland and France. The latter is characterized by Lord Brougham, as uthe torture and qiiestion which the prisoner is put to on Ms trial by the Jiidge— Ibid. 185. But while condemning this system, his lordship intimated clearly his views that a change in the English law was necessary. In France, it appears that the prisoner is questioned by the Judge before any witnesses are examined, and is not during such questioning allowed any aid of counsel, although he may decline answering if he pleases. The reports of criminal trials which we occasionally meet, fully bear out the] character which Lord Brougham has given to their judicial questioning. Under the Scottish system, the prisoner is questioned on a preliminary examination, which is, if not often abused, at least very liable to be carried too far; and on the trial this examination is read to the jury, and if the accused declines answering any question, it is written down, and his response or his refusal is given in full. In the great Stirling forgery case, reported in Townsend’s Modern State Trials, it appears that the defendant was subjected to no less than three examinations, besides one had before the Lords of Session in a civil suit in which the same ground was covered, which were all recorded and used on the criminal trial. This proceeding is said by Mr. Swinton to have been an unusual one. See Warren’s Miscellanies, p. 353-4 (Blackwood’s Ed) But it seems nevertheless to have been legal.
It is very manifest that such proceedings are quite as much in violation of the spirit of the constitutional maxim as if the defendant were examined on oath. That maxim was the result of an experience which showed that in the hands of tyrannical prosecutors and courts, less governed by public opinion than in modem times, it was no difficult matter to wrest innocent admissions and statements to purposes of condemnation. According to the theory of the law, both courts and prosecutors are now regarded as bound to see that a defendant be not unjustly convicted: — Regina v. Thursfield, 8 C. & P. 209. But every one familiar with courts knows that, with the best intentions, it is very difficult, when interrogating a person, to abstain from pressing him further than such a theory would strictly warrant, and with that “increasing energy” which is enjoined by the Austrian Code, where prisoners do not answer readily: — Sandford’s Penal Codes, 366. And if we were to hold that a prisoner offering to make a statement must be sworn in the cause as a witness, it would be difficult to protect his constitutional rights in spite of every caution, and would often lay innocent par ties under unjust suspicion where they were honestly silent, and embarrassed and overwhelmed by the shame of a false accusation. But perhaps the worst evil would be the degradation of our criminal jurisprudence by converting it into an inquisitory system, from which we have thus far been happily delivered. Doubtless our system may be improved, but hitherto it has been at least as favorable as any other for the purpose of punishing guilt without oppressing innocence.
I think the statute of 1861, when it permits a statement to be made, is best reconciled with the Constitution by construing such statement to be a narrative of such facts as a prisoner may see fit to state. A cross examination on such a statement would not, therefore, be allowed to go beyond it. It could not properly extend over the entire issue, as it might if he were a general witness, neither could it go into any of the collateral inquiries whereby a witness’ credit or memory is sometimes tested. And while his constitutional right of declining to answer questions can not be removed, yet a refusal by a party to answer any fair question not going outside of what he has offered to explain, would have its proper weight with the jury.
The use of such a statement is pointed out by those who have discussed this subject, and it is by no means trifling. It is a settled maxim in criminal law, that no one should be convicted unless the testimony taken together is not fairly consistent with any theory but guilt. There are many cases where convictions are had in which it is extremely difficult to say whether there was not room for a reasonable doubt, and many more where suspicious facts are susceptible of explanation were evidence attainable. If a prisoner makes a statement which is consistent as well as apparently sincere, it may often remove those doubts. A jury is not bound to believe all that every prisoner says, any more than all that each witness says. Common sense must be applied here as elsewhere. It is not often, however, that a person can make a false statement in detail, which will bear the test of cross - examination and comparison with the proofs. And if a jury is satisfied that a prisoner’s account is so probable and consistent as to remove the difficulties in the cause, it would be absurd as well as unjust to reject it because not sworn to. Originally, as we have seen, the prisoner’s witnesses were not 'sworn, and had this been held a fatal objection to their credibility, judicial proceedings would have been but a mockery.
Instead of being a dangerous innovation, I think there is much reason to regard the statement of a prisoner, made in the way suggested, as by no means a novelty in our law.
In Regina v. Malings, 8 C. & P. 242, a prisoner was indicted for having maliciously wounded one Benjamin Churchill, with intent to do him some grievous bodily harm. Churchill made out a case, and no other person was cognizant of the facts, as he was alone with prisoner when the assault took place. Alderson B. permitted the prisoner to make a statement to the jury before his counsel addressed them, and they were satisfied with his explanation, and found him guilty of a simple, assault only. In allowing this, the judge expressed his opinion of the justice of permitting a prisoner to make such a statement, and remarked that in cases of high treason it was always allowed. It is to be observed also that the only ground of objection raised was that the prisoner had counsel, and should leave all his case in their hands. In Regina v. Walkling, 8 C. & P. 243, the prisoner, although having-counsel, was permitted on the authority of Maling’s case, to read a written statement; but it was said by Gurney B. that it should not be drawn into a precedent. In Regina v. Boucher, 8 C. & P. 141, and Regina v. Beard, 8 C. & P. 142, it had been held that a prisoner who had counsel could not himself address the jury in ordinary cases. In Rex v. Parkins, Ry. & M. 166, it was held that a defendant on trial for misdemeanor could not have the aid of counsel to argue any but law points, if he reserved the right to address the jury himself. See also Rex v. White, 3 Camp. 98. Until 1837 (by act of 6 and 7 W. 4, c. 114) prisoners indicted for felony were not entitled to full defense by counsel; and the rules found in 7 C. & P. 676 for governing the practice in such cases show that the previous practice had in many respects been more liberal in favor of prisoners.
The objections in the cases cited were all based on the fact that the prisoner had counsel to address the jury. How far prisoners had been permitted to go previously, is not to be ascertained from the books of practice; but from the remarks of Alderson B. in Regina v. Malings, it is evident much latitude was allowed. The State Trials show the same thing. And in the modern case of Regina v. Frost, for treason, the prisoner was allowed to address the jury after his counsel had done so, but waived his right to do it. There could be no object in such a prac* tice, except to allow him to tell his own story. See 1 Townsend's Mod. St. Tr. p. 71. The case is also reported on the law points in 9 C. & P. 129.
I think the statements contemplated by our statute are such as were allowed in Regina v. Malings and Regina v. Walking, and are~such unsworn statements as the prisoner may choose to make; and that -the design of the law is to secure that as an absolute right which formerly was a matter of discretion, and granted only in special cases, when a prisoner was defended by counsel; but when not so defended, allowed generally. 'By allowing these I think the terms of the statute are fully complied with, and a practice is introduced Whereby, if fairly carried out, the prisoner may often be enabled to clear up false charges and remove doubts against him. And it seems on the whole to be less in conflict with other important provisions of law, and" especially] less obnoxious to the spirit of the constitutional provision, than allowing the prisoner to be sworn.
I am therefore in favor of allowing judgment on the verdict. | [
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Dethmers, J.
Defendants appeal from a decree enjoining them from enforcing a zoning ordinance so as to prevent plaintiffs’ erection and maintenance-of a clrurcli and school on premises owned by them before adoption-of the ordinance' and situated in a zone thereunder restricted to use for private dwellings only.
The trial court found as a fact, from the evidence in the case, which need not be recounted here, that although the ordinance appeared on its face to allow churches and schools, under special permit only, in 3 zones comprising about 10% of the village’s area while prohibiting them in the fourth zone containing the balance of the village, nevertheless, when applied to existing facts and circumstances, it served, as a practical matter, to exclude churches and schools from the village. The finding is fairly supported by the record.
As authority for the proposition that churches and schools may not be excluded by' ordinance- from residential districts or zones, plaintiffs rely on City of Sherman v. Simms, 143 Tex 115 (183 SW2d 415); Ellsworth v. Gercke, 62 Ariz 198 (156 P2d 242); Roman Catholic Archbishop of Diocese of Oregon v. Balter, 140 Or 600 (15 P2d 391); State, ex rel. Synod of Ohio of United Lutheran Church in America, v. Joseph, 139 Ohio St 229 (39 NE2d 515, 138 ALR 1274); State, ex rel. Roman Catholic Bishop of Reno, v. Hill, 59 Nev 231 (90 P2d 217); North Shore Unitarian Society, Inc., v. Village of Plandome, 200 Misc 524 (109 NYS2d 803); State, ex rel. Tampa Company of Jehovah’s Witnesses, v. City of Tampa (Florida), 48 So2d 78; Western Theological Seminary v. Evanston, 325 Ill 511 (156 NE 778). Defendants undertake, with varying degrees of success, to demonstrate the inapplicability of those cases to the case at bar. In turn, their chief reliance is placed upon Corporation of Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. City of Porter-ville, 90 Cal App2d 656 (203 P2d 823) (appeal dis missed for want of Federal question, 338 US 805 [70 S Ct 78, 94 L ed 487], rehearing denied, 338 US 939 [70 S Ct 342, 94 L ed 579]). There the ordinance divided the city of Porterville into 4 zones, in 2 of which residences only were permitted. The significant factor distinguishing that case from this is that the California court found that “there is nothing in the- record before us to indicate that the church building could not be erected if located in the area zoned for that purpose.” We are not insensitive to the persuasiveness of some of the reasoning in that case to the effect that churches may as lawfully be excluded as may multiple dwellings from single-family residential areas. That, however, is not the question before us. On the basis of the record at bar the question to be determined is whether churches and schools may, in effect, be excluded by ordinance from the entire-village.
The right to full and free use and enjoyment of one’s property in a manner and for.such purpose as the owner may choose, so long as it be not for the maintenance of a nuisance injurious • to others, is one of which he may not be deprived by government without due process of law nor may his property be taken by government without just compensation. US Constitution, ams 5 and 14; Michigan Constitution, 1908, art 2, § 16, and art 13, § 1. The owner’s right to'use is, however, subject to reasonable regulation, restriction and control by the State in the legitimate .exercise of its police powers. The test of legitimacy is the existence of a real and substantial relationship between the exercise of those powers in a particular manner in a given case and public health, safety, morals or the general welfare. Village of Euclid v. Amhler Realty Co., 272 US 365 (47 S Ct 114, 71 L ed 303, 54 ALR 1016); Austin v. Older, 283 Mich 667; Northwood Properties Co. v. Royal Oak City Inspector, 325 Mich 419,
The use. of premises for church or school purposes does not amount to a nuisance. Smith v. First United Presbyterian Church, 333 Mich 1. Does exclusion of church and school from the entire village bear a real and substantial relationship to public health, safety, morals or the general welfare and thus constitute a reasonable and legitimate exercise of the police power! Defendants say that a presumption prevails in favor of the reasonableness and validity of the ordinance unless the contrary is shown by competent evidence or appears- on the face of the enactment and that the burden rests on plaintiffs to show that it has no real or substantial relationship to public health, safety, morals or the general welfare, citing Harrigan & Reid Co. v. Burton, 224 Mich 564 (33 ALR 142); Austin v. Older, supra; Portage Township v. Full Salvation Union, 318 Mich 693; and Northwood Properties Co. v. Royal Oak City Inspector, supra; that plaintiffs offered no proofs in relation thereto; and that, if there are proofs both ways relating to the subject, it is not for this Court to weigh the same but only to see whether there is substantial testimony supporting the conclusion in that regard of the legislative authorities, in which case the latter is to be upheld, citing City of Detroit v. Michigan Railroad Commission, 209 Mich 395 at 433 (PUR1920D, 867); Washington Agency, Inc., v. Commissioner of Insurance, 309 Mich 683 at 687. This is not a case such as those relied upon in this connection by defendants, as; for example, North-wood Properties Co. v. Royal Oak City Inspector, supra, in which the proofs showed merely that the ordinance restricted a certain zone to use for single residences: There was no evidence in that case concerning the effects of the operation of the ordinance, the reasonableness thereof, nor the relationship between the objects sought to be accomplished and the public health, safety, morals or general welfare, for lack of which the presumption of validity was indulged. In the instant case, on the contrary, the ordinance, exhibits and testimony show that the ordinance operates to exclude churches and schools from the entire village. Consequently, we are confronted with an enactment showing on its face that which, combined with the competent evidence in the case, obviates the necessity for resort to the presumption of reasonableness and validity and raises a question for judicial determination.
The ordinance of 1787 for the- governing of the great Northwest Territory, of which Michigan is a part, pronounced a conviction and purpose, reiterated in the Michigan Constitution of 1908, art 11, § 1, which formed the cornerstone of the governmental structures of the territory and of the States subsequently carved therefrom, in these exalted terms:
“Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
Hardly compatible is this with a presumption that exclusion of school and church from an entire municipality is conducive to public health, safety, morals or the general welfare, a presumption which we decline to indulge. A thesis so inconsistent with the spirit and genius of our free institutions and system of government and the traditions of the American people will not be accepted by way of presumption, nor at all in the absence of competent evidence establishing a real and substantial relationship between the attempted exclusion and public health, safety, morals or the general welfare and, hence, the reasonableness and validity of the restriction upon use of private property as a legitimate exercise of the State’s police powers.
Affirmed, without costs, a public question being involved.
North, 0. J., and Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North,' C. J.
This is an appeal from an order dismissing plaintiff’s suit entered in the Michigan court of claims. On December 13, 1950, Edward V. Sittler, plaintiff and appellant herein, filed a verified' petition stating a claim against the board of control of the Michigan college of mining and technology, a defendant and appellee herein. The claim was based on an alleged contract of employment as assistant professor of German for the school year September 19, 1949, to June 10, 1950, at a salary of $4,000. Plaintiff alleged that this contract was executed by B. B. Bennett, who was head of the department of languages; that Professor Bennett had authority to make the contract on behalf of the board of control, and that the contract was also ratified by the board of control. The petition further alleged' that plaintiff had performed his duties as assistant' professor of German from September 19, 1949, to November 10, 1949, at which time his employment: was terminated without justification. Plaintiff! claims damages of $3,186.60, this being the amount’ "he Would have received if his employment had not been terminated. The claimed contract which plain- , tiff relies upon for recovery is contained in a letter written to plaintiff by Professor Bennett, dated September 12, 1949, the pertinent portions of which we quote:
“This letter will confirm our telephone conversation of September 10th.
“The position which you have accepted is an assistant professorship of German with a salary of $4,000 for the 3-term year approximating 9 months. As I indicated Saturday raising the salary above the budgeted amount may make it impossible to grant you a salary increase for the 1950-1951 academic year. I believe it was our understanding that the ' appointment is for a 1-year period but will become a permanent one if both you and the administration of the college are quite satisfied at the end of the first year. # * *
“I am enclosing a formal application blank which you may complete and return to me by mail. If you have available 2 small gloss prints of yourself, please send them along. I shall send to you within the next day or two copies of the texts that have been used in the German work.
“Perhaps some information concerning our payroll procedures would help you in your personal planning. You will go on our payroll on September 19th. Our salary checks always have a 2-week lag. That means that you will receive your first salary check on October 20th. Your checks thereafter you will receive at 2-week intervals. The college pays salary over a full calendar year. That means that you will continue to receive salary checks throughout the summer of 1950. The details of the various deductions we can clarify after you arrive.”
Defendants point out that by the statute which sets up the board of control, the authority to enter into such contracts is vested in the hoard of control. The statute provides:
“The government of the college of mining and technology, the conduct of its affairs, and the control of its property shall be vested in a board of 6 members, not less than 4 of whom shall be residents of the upper peninsula of the State of Michigan, who shall be known as the ‘board of control of the Michigan college of mining and technology.’ ” CL 1948, § 390.352 (Stat Ann § 15.1312).
“As soon as the means in its hands will permit, without incurring indebtedness, said board shall proceed to obtain a suitable location, and lease or erect such buildings, and procure such furniture, apparatus, library, and implements, as may be necessary for the successful operation of said school, and to appoint a principal, and such other teachers and assistants as the board may deem expedient, with salaries, to be paid from time to time, as it may agree, and to regulate their duties; but no agreement shall be valid whereby such board shall be prevented from discharging any one in their employ upon 2 months previous notice.” CL 1948, § 390.354 (Stat Ann § 15.1314).
■ This statute vests the authority to appoint or hire teachers in the board. We are not in accord with plaintiff’s contention that the statutory provision vesting in the board the power “to appoint a principal, and such other teachers and assistants as the board may deem expedient, with salaries, to be paid from time to time, as it may agree, and to .regulate their duties” should be construed as applicable only at the inception of the Michigan college of mining and technology, as provided in section 4 of “the original act in 1885” (Act No 70). It is sufficient to note that substantially the same words relating to the hiring of teachers, et cetera, were originally embodied in PA 1861, No 207, and again embodied in PA 1885, No 70. They are still a part of the statute which presently governs the conduct of the affairs of the Michigan college of mining and technology.
Plaintiff asserts that the power to contract with teachers may he delegated, and in the instant case that it is at least a question of fact if such power were not delegated by the board of control to Professor Bennett. In asserting the board’s right to delegate the power, which by statute is vested in the board, appellant cites People v. Fournier, 175 Mich 364 (Ann Cas 1915A, 1015). However we think the cited case is not in point. It involved only the right of delegating the power of passing upon the right to be licensed as a stationary engineer in the city of Saginaw, which was considered necessary to proper administration of the police power. But the instant case involved the right by contract to bind the State in the operation of one of its educational institutions over a period of time and to expend public funds in greater or less amounts. Powers of the character vested by the above statutory provisions in a board of control of an educational institution maintained by the State cannot be delegated to some subordinate or representative.
“The board of supervisors cannot delegate such powers as the law requires to be submitted to their corporate discretion and judgment.” People, ex rel. Chadwick, v. County Officers of St. Clair (syllabus), 15 Mich 85.
“The statutory authority conferred upon boards of supervisors to regulate the bridging of navigable streams is a trust that must be executed by themselves ; they cannot delegate it to others.” Maxwell v. Bay City Bridge Co. (syllabus), 41 Mich 453.
It follows that plaintiff did not possess a contract under which he could assert rights. Even the letter written by Professor Bennett does not purport. on its face to be a contract. We are mindful that it appears in plaintiff’s opposition to tbe motion to dismiss that on other occasions heads of departments have hired assistant teachers; but such usage or custom, if it ever prevailed, cannot be availed of to enlarge the statutory powers of the board of control so as to include or justify acts which are unauthorized and contrary to the applicable statutory law. See annotations 65 ALB 811; which include Hoffa v. Saupe, 199 Iowa 515 (202 NW 234).
“The extent of the authority of the people’s public agents is measured by the statute from which they derive their authority, not by their own acts and assumption of authority.” Township of Lake v. Millar, 257 Mich 135, 142.
See, also, Vincent v. Mecosta County Supervisors, 52 Mich 340; Schneider v. City of Ann Arbor, 195 Mich 599.
In Roxborough v. Unemployment Compensation Commission, 309 Mich 505, we quoted with approval the following from 59 CJ, pp 172, 173:
“ ‘Public officers have and can exercise only such powers as are conferred on them by law, and a State is not bound by contracts made in its behalf by its officers or agents without previous authority conferred by statute or the Constitution. * ■* * Nor is a State bound by an implied' contract made by a State officer where such officer had no authority to make an express one. # * *
“ ‘The powers of State officers being fixed by law, all persons dealing with such officers are charged with knowledge of the extent of their authority or power to bind the State, and are bound, at their peril, to ascertain whether the contemplated contract is within the power conferred.’ ”
“Persons dealing with a municipal corporation through its officers must at their peril take notice of the authority of the particular officer to bind the corporation, and, if his act is beyond the limits of his authority, the municipality is not bound.” Rens v. City of Grand Rapids (syllabus), 73 Mich 237.
“But the law holds those dealing with a municipal corporation to a knowledge of the extent of the authority conferred, and of the mode of its exercise, and of all illegalities committed by its agents in not pursuing the authority in the manner pointed out, and visits upon them the consequences of violating the law by refusing to enforce such contract at their instance.” McBrian v. City of Grand Rapids, 56 Mich 95, 108.
Plaintiff did not have a contract with the board of control of the Michigan college of mining and technology, nor were the negotiations between plaintiff and Professor Bennett such as to constitute a contract binding upon the defendants in the instant case. Because of an absolute lack of power vested in Professor Bennett to consummate a contract with plaintiff which would be binding upon defendants, nothing appearing in this record would or could constitute ratification of an alleged contract as asserted by appellant. 'While there are presented by the record some controverted issues of fact, nonetheless there are presented questions of law herein considered which are decisive of plaintiff’s right to recover. We are of the opinion that the trial judge correctly granted defendants’ motion to dismiss. Affirmed, with costs to appellees.
Dethmers, Btjtzel, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Btjtzel, J.-
On December 23, 1947, in tbe divorce suit brought by Dorothy Jane Kennedy, plaintiff, against Robert H. Kennedy, defendant, on stipulation of parties, an order withdrawing defendant’s an swer was signed and filed and an interlocutory decree was entered awarding plaintiff a divorce from defendant. At the same time an order of reference was made to the friend of the court for taking of testimony in regard to the alimony and property. The calendar entry indicates that the friend of the court had made a previous report as to the custody of 2 minor children, both boys, one born July 30, 1942, and the other on November 16, 1943. A third child died several years before the suit was begun.
On June 16,' 1948, the court entered a decree nunc .pro tunc as of December 23, 1947. It was filed on June 22, 1948, and became final on June 23, 1948. The provisions of the decree were as follows: It gave plaintiff a divorce and the custody of the 2 minor children until they reach the age of 17 or until the further order of the court, subject, however, 'to a right of visitation, but giving plaintiff the right to take the children out of the State of Michigan, provided she reported to the friend of the court the addresses where the children were staying. Defendant was ordered to pay the friend of the court for the plaintiff the sum of $25 a week for the support of each child, and to pay plaintiff $5,000 as a property settlement, he havjng a net equity valued at $10,000 in a house purchased with his funds. Further details appear in the record on file in this Court in Kennedy v. Kennedy, 325 Mich 613, referred to herein as the original divorce case.
On June 15,1948, defendant by new counsel moved to set aside the stipulation and order withdrawing answer which preceded the interlocutory decree of December 23, 1947. The motion was denied on June .22, 1948. On July 6, 1948, 14 days after the final decree was entered, defendant filed a claim of appeal.
On Spetember 8, 1949, we held in 325 Mich 613, that the record showed neither jurisdiction nor cruelty. The difficulty arose through the neglect to make the proper and necessary showing in a pro confesso divorce case. The decree was reversed, the case remanded to the circuit court for further proceedings, and defendant was permitted to contest the granting of a divorce. In the opinion we referred to the fact that the plaintiff married 4 days after June 23, 1948, when the decree by its terms became effective, and had taken the 2 children with her to Trinidad, British West Indies, outside the jurisdiction of the United States and of this Court.
Upon the remanding of the case, defendant filed a cross bill charging plaintiff with neglect of the children, with extravagance, intoxication, and principally, with her living in a married state in Trinidad with Mr. X, whom she married before the time to appeal from the decree had expired, in fact, only 10 days before an appeal was taken. Mr. X was later identified as Mr. Morrow. An answer to the cross bill denying all charges therein was filed. Plaintiff also filed an amended bill charging defendant with extreme cruelty consisting of excessive and unreasonable demands for cohabitation and contrary to the order of her physician forbidding it, because of a physical breakdown while carrying her first baby; that she was refused medical care which she was in need of after having given birth to 3 children in 3 years; with cruelty and indifference toward the children; with intoxication on frequent occasions; penuriousness; inadequate support forcing her to do sewing for others to obtain money and remaking worn clothes for herself; and, after their separation, with vile and abusive curses and threats. We shall not elaborate on the charges and counter charges appearing in a record of 660 pages. Suffice it to say that the testimony disclosed that defendant was guilty of extreme cruelty, as found by the trial judge.
Defendant contends that plaintiff’s actions subsequent to the first decree constitute extreme cruelty, but disclaims any other reflections upon her conduct in that respect. Plaintiff, before marrying Mr. Morrow, consulted a judge in California who told her that she could remarry at that time. She appears to have done so in good faith. She subsequently returned to Michigan with her 2 sons, but after the first decree was reversed, she again took .the children to Trinidad in November, 1949. Plaintiff testified that she went back to Trinidad partly because the older boy had suffered most severely from asthma and that he was free from it in Trinidad, his general health having noticeably improved. She also testified that while in Trinidad she earned a living working in a dress shop and also in radio work which is not available to her in the United ■States; that she returned to Morrow’s apartment only as a temporary measure as she was unable to find other suitable lodgings in Trinidad; that she and Morrow conducted themselves properly during the latter sojourn in Trinidad. Disinterested witnesses also testified that she always conducted herhelf properly during this time. The trial court so found, notwithstanding the testimony of one “investigator” whom the court did not believe. We shall not disturb its finding. It is fully supported by the testimony.
We conclude, therefore, that the divorce was propferly granted to plaintiff. An independent examination of the record shows that a reconciliation is almost impossible.
:' The trial court in its second decree decreased the award to plaintiff from $5,000 to $1,000 for property settlement and alimony. Plaintiff is clearly entitled to this amount.
The most important question is the custody of the-2 minor children and what is best for them. In the first decree, the trial judge held that plaintiff might remove them from its jurisdiction by notifying the friend of the court. In the present decree, the court ordered that this could only be done with the permission of the court or agreement of the parties. He gave defendant and cross-complainant the right of visitation and temporary custody of the children for a period not to exd'ééd 6 weeks during the months of July and August. Otherwise plaintiff was given the custody ’of the children and defendant and'' crósspláintiff was ordered to pay the friend of the court the sum of $12.50 a week for each child and after 3 years the sum of $15 a week for each child. These provisions are proper. The plaintiff has always been a good mother and devoted to the children. She has looked after their secular and religious education, and kept them well cared for. The defendant and cróss-plaintiff has shown a certain amount of indifference towards the children, as particularly shown by the motions made in this Court, for he did not take advantage of the opportunity of taking the children for a protracted period during the summer, of 1951 when they were offered him, nor did he observe their birthdays or Christmas after the parties were separated.
The children were given the name of Morrow when they were taken to Trinidad. Since their return to Michigan, they have been enrolled in school under the name of Kennedy and are so known. We have béen assured at the oral argument that there will be no further attempt to change their name. The court retains its jurisdiction to determine what is best for the children during their minority. .
The decree is affirmed, but without costs.
North, C. J., and. Dethmers, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Campbell, J.
The controversy in this case is whether Chester B. Turner, one of the heirs at law of Isaac Turner, deceased, is deprived of his right to share in the residue of the estate, after paying legacies, by reason of the grant to him of certain land by a deed which stated as one of tlie considerations the relinquishment of all right to his father the grantor’s estate, as heir or otherwise. This deed was made two years before the will. There is in the hands of the executor $3600 for distribution among the heirs. That sum, divided among them ratably, would not give each as much as the value of the land so granted. The will is printed in full in the report of a former controversy concerning a sum of $5000 to be distributed under it, in 48-Mich. 369. The decision below was against appellant’s right to share. This being so, a short summary will be sufficient.
The will, made in June, 1876, became operative on testator’s death in 1879. It begins by a general recital of his desire to dispose of his property, and to provide for his wife and her child Isaac. It gives his wife a life estate in his homestead, and the use of $7000 during Isaac’s minority, and gives her absolutely his household furniture, implements, horses and carriages. Isaac was to have the reversion of the homestead, and to receive on his majority $2000 out of the $7000, the remaining $5000 to be for her use for life. The will declares that “ at her death said five thousand dollars to revert to my estate.”
In case of the wife’s death during Isaac’s minority he was to have an annuity of $300 a year, and all accumulations from its savings, in addition to the $2000. The legacies to Isaac were to be in lieu of his share in the estate, “ except to the amount of his share in the five thousand dollars which said Elizabeth Miller Turner is to have the use of from the time of said Isaac becoming of the age of twenty-one years until her death; and he is to have said interest in five thousand dollars with the rest of my heirs, even if said Elizabeth shall die before the said Isaac becomes twenty-one years of age.”
It was the opinion of this Court that by the will the testator indicated that Chester B. Turner was not to be nut off from the heirship in the sum of $5000, (which was the fund formerly in controversy,) by reason .of any prior conveyance or advancement, and that the will must be regarded as operating to remove that effect if it would have otherwise operated. While it was not necessarily decided that this action of the will would have a similar operation as to the remainder of the estate, it was so intimated, and we think such is its meaning. The $5000 was by a previous clause to fall into the bulk of his estate on the death of the wife. When it is provided that Isaac is to share in the sum of $5000, “ with the rest of my heirs” it seems to indicate that the persons so referred to are the heirs generally, and not the heirs to that specific sum, which is only set apart from the rest of the property as the measure of Isaac’s share. It would be a somewhat unnatural interpretation to imply in this matter qualifications which should divide the heirs into classes. This record does not show how matters stood in the way of advancements with the rest of the heirs. But if Chester is, as we have held, to take at all under this will as an heir, we can see no reason for dealing with him under the will on any different footing from the rest, and we can conceive no reason why such a peculiar intention should be imputed to the testator. If the will is, as we hold it to be, a practical revocation of any exclusion from inheritance under the grant, nothing appears to indicate that the revocation was meant to be partial or qualified. It would have been a very simple matter to declare such different intention if such was testator’s-desire.
The interesting discussion of the law of advancements- and relinquishments of heirship does not, in our view of the case, require to be considered further.
We think the adjudications below were erroneous, and that appellant is entitled to the same privileges as the other general heirs, and it must be so adjudged and certified.
The other Justices concurred. | [
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Sherwood, J.
Certiorari to review the action of the defendant in detaching a part of the territory of the township of Tallmadge and attaching the same to the township of Allendale in the county of Ottawa, under Comp. L. §§ 480-1. [BLow. St. §§ 486-7].
The plaintiff claims the defendant did not acquire jurisdiction to detach such territory and make such change, because the statutory notice of the proceeding was not given and no map of all the townships to be affected thereby showing the proposed alterations was furnished to the board of' supervisors as required by statute. The action complained of was taken on the following proceedings :
First. A petition to the board of supervisors praying for such action was subscribed by forty-one persons under the heading “Names Allendale,” and by twenty-one persons under the heading “Names Tallmadge.”- The petition stated that they were freeholders of the townships of Allen-dale and Tallmadge. Attaeiied to it is an affidavit of 'William A. Davis, made December 30,1882, stating that twelve or more of them are resident freeholders of Tallmadge; also the affidavit of Robert Prichard, made same day, stating that twelve or more of them are resident freeholders of Allendale.
Second. A notice was also printed having thereto subscribed sixteen of the signatures of each column of the petition, stating that they would apply to defendant January 2, 1883, to detach said territory (describing it) from Tallmadge, and attach it to Allendale. To it was attached the affidavit of Levi Jackson, made December 22, 1882, naming sixteen of the persons whose names were printed to the notice in the column headed “Allendale,” and stating that they are resident freeholders of that township; and also to the affidavit is attached the affidavit of Horace A. Cooley, made December 22, 1882, showing them to be the same who signed the annexed notice. To such notice is also attached the affidavit of Sylvester J. Hall to the same effect as that of Levi Jackson. These three affidavits were attached to a printed notice, the signatures to which are also printed.
Third. The affidavit of William A. Davis attached to a duplicate printed copy of last named notice, made December 22, 1882, named fifteen persons whose names are printed to the notice in the column headed “ Tallmadge,” and stated them to be resident freeholders Of that township; and also another affidavit of William A. Davis attached, made same day, stating that the above-named persons are the same who signed the annexed notice; and also to said notice is attached the affidavit of A. J. Davis, of same date, naming those fifteen persons and saying that they are resident freeholders of the township of Tallmadge.
Fourth. The affidavit of William Gr -Barnes, attached to a duplicate copy of said printed notice (that the application would be presented to the defendant January 2,1883), made January 1, 1883, stating that the annexed notice was pub lished in the Coopersville Observer, a newspaper, &c., once each week for five successive weeks, and that the first publication of it was November 30, 1882.
Fifth. The affidavit of Horace A. Cooley, attached to a duplicate printed notice (same as last mentioned), made December 30, 1882, stating that on November 30 and December 1, 1882, he posted up “true copies” of the annexed notice in five of the most public places in each of said townships, describing the places, and that he caused a “ copy of said notice” to be published in the' Coopersville Observer, a newspaper, etc., once in each week for four successive weeks immediately preceding January 2, 1882.
The aforesaid petition, accompanied by the subsequent proceedings herein stated, was duly presented to the board of supervisors on the 2d day of January, 1883, with a plat of the townships attached thereto, which the petition stated was a map of all the townships to be affected by the division prayed for, and showed the proposed alteration of said townships to be made thereby.
Action was duly had by the defendant on said petition, and prayer thereof granted, and the alteration duly made.
The error complained of relates wholly to the sufficiency of the notice and the map. The statute, speaking upon the subject, says: “ Notice in writing of such intended application, subscribed by not less than twelve freeholders * * shall be posted in five of the most public places in each of the townships to be affected thereby, four weeks next previous to such application to the board of supervisors.” Comp. L. § 481. [How. St. § 48T].
' The words “ written ” or “ in writing ” may be construed to include printing, engraving and lithographing, except in cases where the written signature is required by law. Hnder these statutes counsel for plaintiff argued that while the body of the notice might perhaps be printed or lithographed; still both the original notice and copies posted must be authenticated by the genuine written signatures of the signers, and it being a statutory requirement, it is jurisdictional and must affirmatively be made to appear.
We are not able to agree with learned counsel for plaintiff in this conclusion. We see nothing in the proceedings under review requiring such a construction to be given to the statute. The object of the notice is to inform the people of the townships to be affected, of the designed change or alteration of the boundaries of the townships, and that the necessary proceedings are being taken by persons authorized by the statute to prosecute the same. And this is as well done by the printed notice as by the written; and the former will be much more likely to be noticed and read than if in writing. The whole purpose of the notice, though printed, was surely accomplished in this case, because the record discloses that a very strong and numerously-signed protest was presented on the hearing of the petition before the supervisors.
The Statute of Frauds is quite as mandatory in its language as the one now under consideration, and still the clause requiring the contract to be in writing and signed by the party to be charged, has always been held sufficiently complied with by printed memoranda and signatures. Browne Stat. of Frauds § 356; 2 Story on Cont. § 1453; 1 Pars. on Cont. 544; 3 Pars. on Cont. 8; Edw. on Bills; Durrell v. Evans 1 H. & C. 174; Schneider v. Norris 2 M. & S. 286; Saunderson v. Jackson 3 Esp. 181: 2 Bos. & Pul. 238.
If the printed signature is sufficient in these and other cases to create liability to the extent of millions, it is difficult to see why the notice and signatures in this case ought not to be held sufficient. Com. v. Ray 3 Gray 447; Henshaw v. Foster 9 Pick. 312; Com. v. Foster 114 Mass. 319. It has also been held that the signature of a notary to a protest may be printed, and need not be written. Fulton v. Maccracken 18 Md. 528; Munroe v. Woodruff 17 Md. 159. We find no error in the record upon this point.
The statute requiring the petitioners in this class of cases to furnish the board of supervisors with a map of all the townships to be affected by the divisions showing the proposed alterations, we think was sufficiently complied with in this case. [How. St. § 487].
If the statute is, as claimed by counsel for plaintiff, mandatory, we think he has fallen into an error as to the character and kind of map necessary to be furnished. It does not require the topography, — an exact delineation of the surface and several places in the townships, — to be given, but only the boundaries and sections, or parts thereof, contained in each, together with the place and course of any natural boundaries (as in this instance the stream) constituting the proposed changed limits of the townships. And we think the map furnished in this case quite sufficient for that purpose.
The defect claimed in the proof of posting notices of hearing (one having been posted November 30th and the other December 1st, but the affidavit not showing on'which day the first was posted) is immaterial, as time quite sufficient intervened before the hearing, if both had been served on the latter day.
We find no error in the record and the action of the board of supervisors of the county of Ottawa in the premises must be sustained and the writ dismissed, but without costs.
The other Justices concurred. | [
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Per curiam.
Sherman was a party defendant in a case in justice’s court, which was appealed to and. tried in the circuit court, where judgment passed against him. He brought the case to this Court, where the judgment was reversed anc? a new trial ordered. The case was noticed for * trial, but before it was reached the plaintiff discontinued his suit. The defendant thereupon prepared and served a bill of costs, and the same was taxed by the county clerk. Both parties appealed, and the taxation was reviewed by the circuit judge.
The circuit judge struck out some items in defendant’s bill, and relator insists that this was erroneous. The respondent claims that the circuit judge had a discretion in the case, because it originated in justice’s court, and the statute provides that “ in all cases heard and determinfed 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 peciiliar circumstances of each case.” How. St. § 7026. We do not think this statute has any application to a case in which the plaintiff discontinues his suit. If he goes out of court voluntarily, the recovery of costs against him is a matter of right. Moreover it appears in this case that judgment for costs in favor of the defendant has been duly entered. The right to costs is fixed by the judgment, and the judge’s discretion, if he would otherwise have any, is thereby exhausted. It only remains to see what items of costs the defendant showed before the clerk he was entitled to.
The only items of costs we find improperly disallowed are those of the attendance of the defendant and of two other persons as witnesses. The judge disallowed the charge as to the defendant, on the ground that the judge believed he attended, not as a witness, but to aid in the management of the defense, and he disallowed the charge as to the others because he considered their evidence incompetent. It appears, however, that the affidavit presented by the defendant on the taxation of costs was, as to all three, in compliance with the statute; How. St. § 9002; and where that is the case, and there is no counter showing, the taxing officer must tax for the attendance of the witnesses. In this case there was no counter showing.
It is proper to add, inasmuch as the parties appear to have proceeded somewhat irregularly in this case, that when appeals from the taxation of costs by the clerk are taken to the circuit judge, the party appealing should specially except in writing to such allowances or disallowances as he complains of, and the bill of costs should then go before the ■ circuit judge on those exceptions only, and on the showing and no other that was made before the clerk.
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Cavanagh, J.
Defendant, pursuant to MCL 750.520k; MSA 28.788(11), issued suppression orders in two criminal cases. Upon plaintiff’s complaint for an order of superintending control, the circuit court found the statute constitutional, thereby dismissing plaintiff’s complaint, and the Court of Appeals affirmed. We granted leave to appeal in order to determine whether MCL 750.520k; MSA 28.788(11) is constitutional.
I. Facts
On July 21, 1980, complaints and arrest warrants for three persons were issued in two unrelated matters involving alleged first-degree criminal sexual conduct with child victims. The arrests were effected and, on July 23, 1980, defendant, pursuant to MCL 750.520k; MSA 28.788(11), entered suppression orders in the two cases. That same day, plaintiff, which publishes the only daily newspaper in Midland County, The Midland Daily News, filed a complaint for an order of superintending control in the circuit court alleging that: (1) it knew the identities of the three persons and some of the details of the alleged offenses, (2) its information was obtained from sources other than the district court’s files, and (3) the suppression orders constituted an unconstitutional prior restraint on publication. Accordingly, plaintiff sought: (1) to enjoin defendant from continuing the two suppression orders and from entering similar orders in the future, (2) to have the suppression orders vacated, and (3) to have MCL 750.520k; MSA 28.788(11) declared unconstitutional. Thereafter, on July 24, 1980, the circuit court issued an order to the defendant to show cause why an order of superintending control vacating the suppression orders should not issue. A hearing was held on August 4, 1980, and the circuit court issued its opinion the next day.
In its opinion, the circuit court found: (1) that MCL 750.520k; MSA 28.788(11) did not constitute a prior restraint, i.e., it did not and could not prohibit plaintiff from publishing information which it had concerning the two criminal matters, and (2) that neither the public nor the press possessed federal or state constitutional rights of access to probable cause proceedings. Accordingly, the circuit court ordered that plaintiff’s complaint, be dismissed, and the Court of Appeals affirmed that dismissal.
The Court of Appeals majority found: (1) that there was no prior restraint violative of US Const, Ams I, XIV or Const 1963, art 1, § 5; (2) that the public does not have constitutional rights, under US Const, Ams I, VI or Const 1963, art 1, § 20, of access to pretrial proceedings; and (3) that there is no constitutional right to inspect public records, but only a common-law right which the Legislature may restrict. In re Midland Publishing Co, Inc, 113 Mich App 55, 57-64; 317 NW2d 284 (1982). Conversely, the dissent would have held: (1) that US Const, Am VI and Const 1963, art 1, § 20 require public criminal trials; (2) that it was unnecessary to decide whether the statute constituted an unconstitutional prior restraint; (3) because the preliminary examination is part of the trial, i.e., it must be open to the public; and (4) thus, the statute was unconstitutional.
We granted leave to appeal on June 28, 1983.
II. Issues
In this Court, plaintiff continues to claim that MCL 750.520k; MSA 28.788(11) is an unconstitutional prior restraint on publication, even as interpreted by the circuit court and the Court of Ap peals, and abridges constitutional rights of access to pretrial proceedings.
A. Prior Restraint
MCL 750.520k; MSA 28.788(11) provides: pressed until such time as the actor is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first.”
"Upon the request of the counsel or the victim or actor in a prosecution under sections 520b to 520g the magistrate before whom any person is brought on a charge of having committed an offense under sections 520b to 520g shall order that the names of the victim and actor and details of the alleged offense be sup-
Sections 520b to 520g codify various types of criminal sexual conduct and the attendant penalties. MCL 750.520b-750.520g; MSA 28.788(2)-28.788(7).
The Court of Appeals majority found that:
"Freedom of speech and of the press are guaranteed by federal and state constitutional provisions. US Const, Ams I, XIV; Const 1963, art 1, § 5. As prior restraints on publication are the most serious and least tolerable infringement of First Amendment rights, the party seeking to justify a prior restraint must overcome a heavy presumption of unconstitútionality. Near v Minnesota ex rel Olson, 283 US 697; 51 S Ct 625; 75 L Ed 1357 (1931); Nebraska Press Ass’n v Stuart, 427 US 539; 96 S Ct 2791; 49 L Ed 2d 683 (1976).
"In WXYZ, Inc v Hand, 463 F Supp 1070 (ED Mich, 1979) [aff'd 658 F2d 420 (CA 6, 1981)], the federal court held that orders issued pursuant to the statute at issue here were void as prior restraints. However, in that case the defendant district judge announced that his suppression orders applied to news media personnel as well as to others, and would have taken steps to determine if the news commentators involved were in contempt of court if the federal action had not intervened. To the contrary, in the instant case, the circuit judge held:
" 'If § 520k were construed as the publisher fears, it would certainly constitute a prior restraint upon a publication and would, in this court’s opinion, be clearly in violation of the First Amendment rights of the complainant. An examination of the statute, however, discloses no express authorization to the 'magistrate before whom any person is brought’ to enforce the suppression order authorized by the section against persons not party to the proceedings, nor served with a copy of the order.
" 'The suppression of names and details concerning pending litigation is not new to the jurisprudence of the State of Michigan. Whether the practice is commendable or not, it has existed since long prior to this century. See Jan Schmedding v County Clerk of Wayne County, 85 Mich 1 [48 NW 201] (1891). A suppression order, as the term is commonly understood in the State of Michigan, contemplates only a direction to the court personnel to prevent public disclosure of the official files. The terms of the statute make it clear that the statutory suppression order would also require the closing of the preliminary examination to the public and the press, since the first event upon which the termination of this suppression order is conditioned is the arraignment on the information, unless the case is concluded without bind-over to the circuit court.
" 'So construed, the statute does not constitute a restraint against publication, since it contemplates no sanctions against non-parties publishing information, no matter how acquired. It is a fundamental rule of statutory interpretation that where two constructions are possible, one constitutional and one unconstitutional, the constitutional construction should be adopted. The judges of the 75th Judicial District have, through their attorney, claimed no power to gag or discipline the press, and have, in fact, acknowledged that the statute confers no such power upon them.’
"We agree with the circuit judge’s construction of the statute. So construed, the statute poses no prior restraint problem. See Gannett Co v DePasquale, 443 US 368, 393, fn 25; 99 S Ct 2898; 61 L Ed 2d 608 (1979):
" 'This Court’s decision in Nebraska Press Ass’n v Stuart, 427 US 539 [96 S Ct 2791; 49 L Ed 2d 683 (1976)], is of no assistance to the petitioners in this case. The Nebraska Press case involved a direct prior restraint imposed by a trial judge on the members of the press, prohibiting them from disseminating information about a criminal trial. Since "it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment’s] guaranty to prevent previous restraints upon publication,” Near v Minnesota ex rel Olson, 283 US 697, 713 [51 S Ct 625; 75 L Ed 1357 (1931)], the Court held that the order violated the constitutional guarantee of a free press. See also Oklahoma Publishing Co v District Court, 430 US 308 [97 S Ct 1045; 51 L Ed 2d 355 (1977)]. The exclusion order in the present case, by contrast, did not prevent the petitioner from publishing any information in its possession. The proper inquiry, therefore, is whether the petitioner was denied any constitutional right of access.’ ” Midland Publishing Co, supra, pp 58-60.
We endorse the analysis of the Court of Appeals majority. Obviously, the statute so interpreted does not by any stretch of the imagination constitute an unlawful prior restraint on publication by plaintiff. Indeed, as is clearly implied by the term, a prior restraint is "that [which] prohibits] the publication or broadcast of particular information or commentary * * * that [which] impose[s] a 'previous’ or 'prior’ restraint on speech.” Nebraska Press Ass’n v Stuart, supra, p 556. However, the statute, by its explicit terms, imposes no restraints on any person. Rather, for an event-terminable time, it directs that the "names of the victim[ ] and actor[ ] and details of the alleged offense be suppressed.”_
B. Rights of Access to Court Records
The circuit judge correctly noted that "[a] suppression order, as the term is commonly understood in the State of Michigan, contemplates only a direction to the court personnel to prevent public disclosure of the official files.” Typically, a file ordered to be suppressed is "sealed in an envelope with public access thereto prevented.” In re Times Publishing Co, 276 Mich 349, 350; 267 NW 858 (1936). This procedure, at least in civil cases, has a long history in this state. See, e.g., Times Publishing Co, supra; Burton v Reynolds, 110 Mich 354, 355-356; 68 NW 217 (1896); Schmedding v County Clerk of Wayne County, 85 Mich 1, 4-7; 48 NW 201 (1891); Park v The Detroit Free Press Co, 72 Mich 560, 568-569; 40 NW 731 (1888). The foregoing cases were premised on reasoning that pleadings in private actions were not public records and that the dispute did not become public until proceedings were held in open court. Nevertheless, suppression orders are permissible in criminal actions. Although the files in criminal proceedings were apparently considered public records at common law and although there is a common-law right of access to public records, the Legislature can restrict that right. Consequently, MCL 750.520k; MSA 28.788(11) is a valid restriction on that right.
C. Rights of Access to Proceedings
The Court of Appeals majority analyzed this issue as follows:
"The existence of a constitutional right of access to trials was considered by the United States Supreme Court in Gannett and in Richmond Newspapers, Inc v Virginia, 448 US 555; 100 S Ct 2814; 65 L Ed 2d 973 (1980). Gannett involved a pretrial hearing on a motion to suppress certain evidence; however, much of the reasoning in the majority opinion by Justice Stewart was based on considerations applicable to trials. The Court held that members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials, even though open trials were the norm under common law. The Court noted in passing that the public had no right to attend pretrial proceedings under common law. The Court declined to decide whether the First and Fourteenth Amendments created a constitutional right to attend trials. Instead, the Court held that, assuming arguendo that such a right existed, it was not violated where denial of access was not absolute but temporary, members of the public were given an opportunity to object to closure of the proceedings, and the trial court concluded that the potential prejudice to defendant’s constitutional right to a fair trial outweighed the right of access to the proceedings.
"Four justices dissented in Gannett in an opinion written by Justice Blackmun. The dissenters inferred from the unbroken common-law tradition of public trials in criminal cases that the Sixth Amendment was intended to create a public right to attend trials. The dissenters recognized that pretrial proceedings were not open to the public at common law, but concluded that the pretrial suppression hearing involved in Gannett should not have been closed since under common law pretrial suppression hearings were unknown and objections to the admission of evidence were made at trial.
"In Detroit Free Press v Recorder’s Court Judge, 409 Mich 364, 388; 294 NW2d 827 (1980), the Court considered some of the same questions involved in Gannett. The Court concluded that the Sixth Amendment and art 1, § 20 of the Michigan Constitution created a public right of access to trials. However, Gannett was expressly distinguished as involving a pretrial proceeding. Moreover, the Court relied upon the same type of historical analysis conducted by the dissenters in Gannett, which, as has been seen, does not support a public right of access to pretrial proceedings not open to the public at common law. In view of the foregoing, it does not appear that the Sixth Amendment or the equivalent state constitutional provision require public access to a preliminary examination.
"In Richmond, the Court considered whether the First and Fourteenth Amendments created a constitutional right of access to trials, a question it had expressly refrained from deciding in Gannett. Richmond involved the exclusion of all members of the public from a criminal trial. No opinion in Richmond commanded a majority of the Court, but seven of the eight justices participating found that the First and Fourteenth Amendments created a constitutional right of access to criminal trials. However, the opinion of Chief Justice Burger, joined by Justices White and Stevens, stated that the First Amendment guarantees of freedom of speech and of the press protected a right of access to places traditionally open to the public, such as trials. The opinion of Justice Brennan, joined by Justice Mar shall, emphasized the necessity of consulting historical practice in determining whether a constitutional right of access exists. The opinion of Justice Blackmun approved the historical approach taken in the Chief Justice’s opinion. Thus, the result in Richmond was based on the common-law tradition of open trials. Justice Stewart’s opinion in Gannett, supra, 387-391, demonstrated conclusively that no such tradition requires open preliminary examinations. In view of the foregoing, we cannot say that the First Amendment requires public access to preliminary examinations.” Midland Publishing Co, supra, pp 60-62.
In contrast, the dissent reasoned that, since the preliminary examination is a part of a criminal trial, MCL 750.520k; MSA 28.788(11) violated US Const, Am VI; Const 1963, art 1, § 20. Id., p 65.
First, we note that the press has no greater rights of access to pretrial proceedings than does the public generally. Also, we are persuaded that a preliminary examination is not a part of trial, that the public has no common-law or constitutional rights of access to that proceeding, and that the public’s statutory right of access has been validly restricted.
1. Common-Law and Statutory Rights
As noted previously, common-law rights can be modified or abolished by the Legislature. Thus, even if the public possesses a common-law right of access to preliminary examinations, the Legislature can restrict that right. Consequently, MCL 750.520k; MSA 28.788(11) is a valid restriction on any .common-law right.
Similarly, any statutory right of access has also properly been restricted. Generally, the public does possess a statutory right of access to all courtroom proceedings.
"The sittings of every court within this state shall be public except that a court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying and may, in actions involving scandal or immorality, exclude all minors from the courtroom unless the minor is a party or witness. This section shall not apply to cases involving national security.” MCL 600.1420; MSA 27A.1420.
Although this right has existed since 1846, it is not absolute. Detroit Free Press v Macomb Circuit Judge, 405 Mich 544, 546-547; 275 NW2d 482 (1979).
It is a fundamental rule of statutory construction that "apparently conflicting statutes should be construed, if possible, to give each full force and effect.” State Highway Comm’r v Detroit City Controller, 331 Mich 337, 358; 49 NW2d 318 (1951). It is also well established that a later-enacted specific statute operates as an exception or a qualification to a more general prior statute covering the same subject matter and that, if there is an irreconcilable conflict between two statutes, the later-enacted one will control. See, e.g., State Highway Comm’r, supra; People v Flynn, 330 Mich 130, 141; 47 NW2d 47 (1951); Metropolitan Life Ins Co v Stoll, 276 Mich 637, 641; 268 NW 763 (1936).
MCL 750.520k; MSA 28.788(11) was enacted by 1974 PA 266 and became effective on April 1, 1975. In this case, there is no irreconcilable conflict. Rather, the later-enacted specific statute serves as an exception or qualification of the right conferred by the more general prior statute. Consequently, MCL 750.520k; MSA 28.788(11) is a valid restriction on the public’s general statutory right of access to courtroom proceedings.
2. Constitutional Rights
Finally, the public does not have any constitutional rights of access to preliminary examinations. The relevant federal and state constitutional provisions read as follows:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” US Const, Am I.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.” US Const, Am VI.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the. United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” US Const, Am XIV, § 1.
"Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.” Const 1963, art 1, § 5.
"In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in prosecutions for misdemeanors punishable by imprisonment for not more than 1 year; to be informed of the nature of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to have the assistance of counsel for his defense; to have an appeal as a matter of right; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” Const 1963, art 1, § 20.
As the Court of Appeals majority noted, in Gannett Co, Inc v DePasquale, 443 US 368, 379-391; 99 S Ct 2898; 61 L Ed 2d 608 (1979), the trial court ordered that the press and the public be excluded from a pretrial suppression hearing in a murder prosecution. In a 5-4 decision, the majority held that members of the public have no constitutional right of access to criminal trials under the Sixth and Fourteenth Amendments.
"Among the guarantees that the [Sixth] Amendment provides to a person charged with the commission of a criminal offense, and to him alone, is the 'right to a speedy and public trial, by an impartial jury.’ The Constitution nowhere mentions any right of access to a criminal trial on the part of the public; its guarantee, like the others enumerated, is personal to the accused.” Id., pp 379-380.
See, also, 1 Cooley, Constitutional Limitations (8th ed), p 647. The majority also noted that, although the public at common law enjoyed a right of access to both civil and criminal trials, the common law did not confer a similar right in regard to pretrial proceedings. Gannett, supra, pp 384-391. Finally, although the Court declined to decide whether the First and Fourteenth Amendments conferred upon the public a constitutional right of access to criminal trials, it held that, even if such a right existed, it was not violated when: (1) no objection was voiced when the closure motion was made, (2) members of the public were subsequently given an opportunity to object to closure of the proceedings, (3) the trial court concluded that the potential prejudice to defendant’s constitutional right to a fair trial outweighed the public’s right of access, and (4) any denial of access was not absolute but temporary. Id., pp 391-393. In effect, the Court held that any First Amendment right of access possessed by the public could be balanced against a defendant’s Sixth Amendment right to a fair trial.
The dissenters in Gannett found, upon the basis of the public’s common-law right of access to criminal trials, that the Sixth Amendment was intended to create an identical right. Id., pp 415-433. Further, the dissenters noted that the evidentiary suppression hearing is a "close equivalent” to a full trial on the merits. Also, such a hearing was unknown at common law. Instead, at common law, any objections to the admission of evidence were made at trial. Thus, the dissenters concluded that the public must possess a constitutional right of access to suppression hearings. Id., pp 433-439. However, they too recognized that that right was not absolute. Id., pp 439-446._
In Richmond Newspapers, Inc v Virginia, 448 US 555; 100 S Ct 2814; 65 L Ed 2d 973 (1980), the Supreme Court addressed the question which it had expressly left open in Gannett, i.e., whether the First and Fourteenth Amendments confer upon the public a constitutional right of access to criminal trials. The Richmond trial court, upon defendant’s motion, and absent any objection from the prosecution, had ordered defendant’s trial for murder closed to the public. Although no opinion garnered a majority, seven of the eight justices participating in the case answered the question before the Court in the affirmative. Id., pp 575-580 (opinion of Burger, C.J.), pp 581-582 (opinion of White, J.), p 584 (opinion of Stevens, J.), pp 585, 597-598 (opinion of Brennan, J.), p 599 (opinion of Stewart, J.), and p 604 (opinion of Blackmun, J.). Also, those seven agreed that a determination of the question presented required an historical analysis. Id., pp 564-569 (opinion of Burger, C.J.), pp 581-582 (opinion of White, J.), p 584 (opinion of Stevens, J.), pp 589-593, 597-598 (opinion of Brennan, J.), p 599 (opinion of Stewart, J.), and p 601 (opinion of Blackmun, J.). Finally, six justices were of the view that the public’s First Amendment right of access could be balanced against a defendant’s Sixth Amendment right to a fair trial. Id., pp 580-581 (opinion of Burger, C.J.), p 582 (opinion of White, J.), p 584 (opinion of Stevens, J.), pp 585, 593, fn 18, 597-598 (opinion of Brennan,. J.), pp 600-601 (opinion of Stewart, J.).
Subsequent to the Court of Appeals decision in this case, the United States Supreme Court has decided three more cases dealing with similar issues. First, in Globe Newspaper Co v Superior Court for the County of Norfolk, 457 US 596; 102 S Ct 2613; 73 L Ed 2d 248 (1982), the Supreme Court addressed in greater detail the balancing of the public’s First Amendment right of access to criminal trials and a defendant’s Sixth Amendment right to a fair trial. A state statute required trial judges, presiding over trials involving certain sexual offenses perpetrated against minor victims, to exclude the public from the courtroom during the testimony of the victim. While reaffirming its view that the public possesses a First Amendment right of access to all criminal trials, id., pp 603-606, the Court stated that
"the circumstances under which the press and public can be barred from a criminal trial are limited; the State’s justification in denying access must be a weighty one. Where, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Id., pp 606-607.
The Court also made it clear
"that a rule of mandatory closure respecting the testimony of minor sex victims is constitutionally infirm. In individual cases, and under appropriate circumstances, the First Amendment does not necessarily stand as a bar to the exclusion from the courtroom of the press and general public during the testimony of minor sex-offense victims. But a mandatory rule, requiring no particularized determinations in individual cases, is unconstitutional.” Id., p 611, fn 27.
Rather, the Court implied that the public’s First Amendment right of access to criminal trials can be abridged only after an individualized exercise of the trial court’s discretion. Id., pp 607-610.
In the first of two decisions rendered in 1984, the Supreme Court held that the public’s First Amendment right of access to criminal trials ex tended to voir dire proceedings. Press-Enterprise Co v Superior Court of California, Riverside County, 464 US 501; 104 S Ct 819; 78 L Ed 2d 629 (1984). Once again, the Court emphasized the historical analysis necessary to a proper determination of the question before it. Id., pp 505-508. Also, the Court reaffirmed the balancing test set forth in Globe Newspaper, supra, pp 606-607, and expanded on that test as follows:
"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” 464 US 510.
Finally, the Court made it clear that, prior to abridging the public’s First Amendment right of access, a trial court must consider alternatives to closing the proceedings. Id., p 511.
In its most recent exposition in this area, the Supreme Court held that a defendant’s right to a public trial, conferred by the Sixth and Fourteenth Amendments, extends to a pretrial suppression hearing. Waller v Georgia, — US —; 104 S Ct 2210; 81 L Ed 2d 31, 38 (1984).
"[T]here can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public. The central aim of a criminal proceeding must be to try the accused fairly, and '[o]ur cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant.’ Gannett, supra, at 380.”
The Waller trial court, upon the prosecution’s motion and over the defendant’s objection, ordered a pretrial suppression hearing closed to all persons other than witnesses, court personnel, and the parties and their counsel. In a unanimous opinion, the Supreme Court abandoned the historical analysis which marked its prior decisions, instead analogizing pretrial suppression hearings to bench trials. 81 L Ed 2d 37-39.
"In sum, we hold that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.
"Under Press-Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” 81 L Ed 2d 39.
Finally, the Court stated that "[t]o the extent there is an independent public interest in the Sixth Amendment public-trial guarantee, * * * it applies with full force to suppression hearings.” 81 L Ed 2d 39, fn 5.
Our Court, too, has had occasion to examine related issues. As noted previously, we have recognized that the public’s statutory right of access to all courtroom proceedings, embodied in MCL 600.1420; MSA 27A.1420, is not absolute. Detroit Free Press v Macomb Circuit Judge, supra. In addition, we stated that:
"The statutory right of the public is subject to limitations imposed by the Due Process Clause guaranteeing a defendant in a criminal case a fair trial and by Const 1963, art 6, § 1, vesting the judicial power in one court of justice.” Id., p 549, fn 5.
Finally, in language foreshadowing that of the United States Supreme Court cases already discussed, it was held that:
"The parties may not, by their mere agreement, empower a judge to exclude the public and press. When a motion for closure is made, the judge should, at a minimum, take testimony at a hearing open to all interested parties, explore the constitutional and statutory validity of any proffered justifications for excluding the public and press from any portion of the trial, and determine whether any alternative and less restrictive mechanisms exist. This was not done here and, hence, the closing of the trial was improper.” Id., p 549.
Almost 100 years ago, this Court recognized that the state constitutional guarantee, to the accused of a speedy and public trial and the statutory direction that "[t]he sittings of every court within this State shall be public” conferred upon the accused the right to a public trial. People v Murray, 89 Mich 276, 283-286; 50 NW 995 (1891). However, we also intimated that the public possessed a right of access which complemented the accused’s right to a public trial, but did not distinguish the source of the public’s right. Id., pp 286-291.
More recently, in Detroit Free Press v Recorder’s Court Judge, 409 Mich 364; 294 NW2d 827 (1980), we found that, in addition to MCL 600.1420; MSA 27A.1420, the common law conferred on the public a right of access to criminal trials which an accused could not abridge merely by waiving his or her federal and state constitutional rights to a public trial. Id., pp 373, 376-377, 385-390. However, it was recognized that the public’s right of access might in some cases be limited in order to preserve a defendant’s constitutional rights to a fair trial.
"[U]nder extraordinary circumstances to preserve the due process right of a fair trial, an accused may request that the public’s access to a trial be limited or temporarily denied. Upon such rare occasion, the court must exercise its discretion in balancing competing interests. The judge must always carefully balance the fundamental common-law principle of open trials with the specific unusual circumstance that allegedly endangers a fair trial.
"An accused who seeks closure has the heavy burden to show by a substantial probability that prejudicial error denying the accused a fair trial will result from proceeding in public. In addition, it must be shown by a substantial probability that closure will be effective in dealing with the danger and no alternatives to closure exist that would protect the fair trial right.
"[B]ecause it is not only the accused who has interests in the trial process, any limitation on the public’s right to attend a trial must adhere to a standard that there is a substantial probability that prejudicial error denying the accused a fair trial will result.” Id., pp 390-391.
Although the majority did not do so, those writing separately would have recognized the public’s First Amendment right in the disposition of the case. Id., pp 393-396 (opinion of Levin, J.), pp 396-400 (opinion of Ryan, J.).
Today, we must recognize that both the First Amendment, as applied to the states through the Fourteenth, and Const 1963, art 1, § 5 confer upon the public a right of access to criminal trials. However, that right does not extend to preliminary examinations. Accepting the historical analyses of the foregoing cases, it is clear that the public enjoyed no common-law right of access to proceedings undertaken to determine probable cause. Indeed, no case authority or scholarly writings can be found to suggest otherwise. Rather, that which can be gleaned from history indicates that proceedings leading to a person’s indictment were not open to the public. See, generally, Gannett, supra, p 395 (Burger, C.J., concurring), p 437 (Blackmun, J., dissenting); Plunkett, A Concise History of Common Law (1929); Smith, Sir Thomas, De Republica Anglorum (Alston ed, Cambridge: University Press, 1906). Also, it is important to note that, although the federal constitution guarantees an accused a ’"public trial,” US Const, Am VI, the Fifth Amendment speaks only of "presentment or indictment of a Grand Jury.” Since grand jury proceedings have historically been conducted in the absence of the public, there is no precedent for the United States Supreme Court, pursuant to an historical analysis, to extend the public’s First Amendment right of access to probable cause determinations. Consequently, it must be concluded that the public does not enjoy any federal constitutional right of access to preliminary examinations.
Likewise, although the state constitution has long provided for a "public trial,” originally, it too called for "presentment or indictment of a grand jury.” See Const 1835, art 1, § 11. However, history shows that grand jury proceedings were never public and were not considered part of the trial for purposes of the public’s common-law right of access. Moreover, even if such proceedings were public, the grand jury provision did not survive past the constitution of 1835. Instead, the substance of that right was altered to be "informed of the nature of the accusation.” Const 1850, art 6, § 28; Const 1908, art 2, § 19; Const 1963, art 1, § 20. In any event, the nature of the proceedings employed to determine probable cause has traditionally been subject to legislative enactment. Accordingly, the Legislature has the power to control access to those proceedings. Consequently, it must be concluded that the public does not enjoy any state constitutional right of access to preliminary examinations.
III. Conclusion
MCL 750.520k; MSA 28.788(11) does not constitute an unlawful prior restraint on publication. Rather, for an event-terminable time, the statute merely directs that the court file be withheld from the public. Such suppression is a valid legislative restriction on the public’s common-law right of access to public records.
Implicitly, MCL 750.520k; MSA 28.788(11) also requires that the preliminary examination be closed to the public. However, as history shows, the public enjoys no common-law or constitutional rights of access to that proceeding. Further, although the public generally does possess a statutory right of access to all courtroom proceedings, MCL 750.520k; MSA 28.788(11) is a valid legislative restriction on that right.
Consequently, the judgment of the Court of Appeals is affirmed. No costs, a public question being involved.
Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, and Boyle, JJ., concurred with Cav-ANAGH, J.
113 Mich App 55; 317 NW2d 284 (1982).
The nature of these proceedings necessarily makes the underlying facts unclear. However, it does appear that the suppression orders were entered upon motions of the defendants in the two criminal actions and that the orders merely directed "that the file in the captioned matter be and the same is hereby suppressed.” The parties also seem to agree that sometime on July 23, 1980, plaintiff learned of the suppression orders upon inquiry to the district court. Nevertheless, the substance of the information gained from that inquiry and the effect of the orders is disputed. Plaintiff claims to have been informed that publication of any information pertaining to the two criminal cases, regardless of its source, might result in it being in contempt of court. Conversely, defendant claims that he never presumed to be able to prevent plaintiff from publishing information regarding the two matters and that plaintiff was never threatened with contempt of court if it did so. Obviously, this dispute is irrelevant to determination of the issues involved. Rather, it is the substance of the orders themselves and interpretation of the pertinent statute which are important. This will be discussed when analyzing the merits of plaintiffs claims.
Finally, it appears undisputed that the defendants in the two criminal actions were arraigned on informations on August 1, 1980. Although the issues presented in this appeal thus appear moot, this Court will consider them because they are of public significance and are likely to recur, yet may evade judicial review. Globe Newspaper Co v Superior Court for the County of Norfolk, 457 US 596, 602-603; 102 S Ct 2613; 73 L Ed 2d 248 (1982); Richmond Newspapers, Inc v Virginia, 448 US 555, 563; 100 S Ct 2814; 65 L Ed 2d 973 (1980); Gannett Co, Inc v DePasquale, 443 US 368, 377-378; 99 S Ct 2898; 61 L Ed 2d 608 (1979); Nebraska Press Ass’n v Stuart, 427 US 539, 546-547; 96 S Ct 2791; 49 L Ed 2d 683 (1976); Milford v People’s Community Hospital Authority, 380 Mich 49, 55-56; 155 NW2d 835 (1968); Lafayette Dramatic Productions, Inc v Ferentz, 305 Mich 193, 218; 9 NW2d 57 (1943); Whitman v Mercy-Memorial Hospital, 128 Mich App 155, 158; 339 NW2d 730 (1983); Colombini v Dep’t of Social Services, 93 Mich App 157, 161-162; 286 NW2d 77 (1979); Capitol Cities Broadcasting Corp v Tenth Dist Judge, 91 Mich App 655, 657; 283 NW2d 779 (1979).
Although we intimate no view as to the propriety of injunctive relief, it is clear from plaintiffs subsequent actions that it sought an order of superintending control, pursuant to GCR 1963, 710-711, vacating the suppression orders, premised upon a finding that MCL 750.520k; MSA 28.788(11) was unconstitutional.
See post, p 157.
"The latest decisions of the United States Supreme Court concerning the right of the press or the public to access are Gannett Co, Inc v DePasquale [fn 2 supra] — this case involved a pretrial suppression hearing, and Richmond Newspapers v Virginia [fn 2 supra] — this case involved the right of the public and the press to attend a criminal trial.
"Gannett held that there was no constitutional right of the public or the press to attend pretrial hearings. Dissenting justices did not disagree with the majority conclusion that certain pretrial proceedings could be closed without doing violence to the constitutional rights of the press. Both the majority and dissenting justices agreed probable cause hearings such as the preliminary examination could be closed. Justice Blackmun, writing for the minority, said,
" 'The fact that such proceedings might have been held in private at common law in England or in this country does not detract from my conclusion that pretrial suppression hearings should not be, any more than does the fact that grand juries — or preliminary proceedings such as coroner’s inquests at common law — were and are secret.’ [443 US 437.]
"It is clear that the Gannett court, both majority and minority, found no constitutional provision requiring proceedings to be open to the public or press during the phase of the case in which probable cause is determined.
"Turning to the Richmond Newspapers, this case involved solely the right of the public and the press to attend the trial of a criminal case. Much of the ringing language of the court’s opinion in this case is set forth in complainant’s brief. Unfortunately, the Supreme Court’s entire attention was devoted to access to the trial portion of the criminal justice process. The case is not authority establishing a constitutional right of access by either the press or the public to that phase of the proceedings in which probable cause is determined. A close reading of the case indicates that even the right to public and press access to the trial portion of a criminal case is not an absolute right and might be subject to some restrictions. Justice Potter Stew art, concurring in the judgment of the court, indicates that 'the sensibilities of a youthful prosecution witness, for example, might justify similar exclusion in a criminal trial for rape * * *’ [448 US 600, fn 5] (emphasis supplied). This court is reluctant to hold the statute unconstitutional absent Michigan or United States appellate decisions pointing toward extension of a constitutionally protected right of access to include probable cause proceedings. Neither Gannett nor Richmond Newspapers does this. Perhaps Michigan appellate courts will do so in the future. We hold, at this time, that section 520k does not infringe upon First, Sixth, or Fourteenth Amendment rights of the complainant.”
417 Mich 1041 (1983).
Apparently, plaintiff has abandoned its claim of a constitutional right to inspect public records, and we need not address it. However, we note with approval the analysis of the Court of Appeals majority:
"There is no authority establishing a constitutional right to inspect public records. Plaintiff relies on Cox Broadcasting Co v Cohn, 420 US 469, 496-497; 95 S Ct 1029; 43 L Ed 2d 328 (1975). However, in Cox, Cox Broadcasting and one of its reporters were sued for disclosing the identity of a minor rape victim. The identity was obtained from court records open to the public. The Court held:
" 'Appellee has not contended that the name was obtained in an improper fashion or that it was not on an official court document open to public inspection. Under these circumstances, the protection of freedom of the press provided by the First and Fourteenth Amendments bars the State of Georgia from making appellants’ broadcast the basis of civil liability.’ (Emphasis added.)
"Plaintiff also relies upon Nixon v Warner Communications, Inc, 435 US 589; 98 S Ct 1306; 55 L Ed 2d 570 (1978). In Nixon, the Court pointed out that the courts of this country have generally recognized a common-law right to inspect and copy public records, including judicial records. The Court recognized that the common-law right was not absolute, and noted that in the case before it the right had been modified by the Presidential Recordings and Materials Preservation Act, note following 44 USC 2107. The Court held that neither the First Amendment guaranty of freedom of the press nor the Sixth Amendment guaranty of a public trial required that the press be given access to presidential tapes which had been admitted in evidence at a criminal trial.
"Michigan has long recognized a common-law right to access to public records. Burton v Tuite, 78 Mich 363; 44 NW 282 (1889); Nowack v Auditor General, 243 Mich 200; 219 NW 749-(1928). However, since a common-law right rather than a constitutional right is involved, the Legislature may restrict the general broad right of access to public records. See Booth Newspapers, Inc v Muskegon Probate Judge, 15 Mich App 203; 166 NW2d 546 (1968).” Midland Publishing Co, supra, pp 62-64.
We also note that the press has no greater right of access to public records than does the public generally.
As stated by this Court in another case involving suppression of a court file:
"The silence imposed did not and could not extend beyond the secrecy ordered. That secrecy remained unbroken by defendants. No silence upon the right of free speech or freedom of the press was or could be imposed if the subject-matter was obtained from any source outside of the court records. To hold otherwise would violate rights guaranteed to a free people.
"It may be held that the court had control over its records and the publicity thereof until service of process or judicial action, although this should be sparingly exercised and only to ends commensurate with justifiable needs, but this power cannot be extended to curtailment of free speech or of the press upon information aliunde the records suppressed.
"The case does not call for a dissertation upon the freedom of the press, and we decline to 'carry coals to Newcastle.’ ” In re Times Publishing Co, 276 Mich 349, 350; 267 NW 858 (1936).
As defined by MCL 750.520a(i); MSA 28.788(l)(i), " '[vjictim’ means the person alleging to have been subjected to criminal sexual conduct.”
As defined by MCL 750.520a(a); MSA 28.788(1)(a), "'[ajctor’ means a person accused of criminal sexual conduct.”
Note that, generally, MCL 600.1420; MSA 27A.1420 requires that "[t]he sittings of every court within this state shall be public.” This requirement has been in eifect since 1846. See RS 1846, ch 96, § 17; 1857 CL 4063; 1871 CL 5676; How Stat 7244; 1897 CL 1108; 1915 PA 314, ch IV, § 6; 1915 CL 12252-12253; 1929 CL 13886-13887; 1948 CL 604.5-604.6, as amended by 1961 PA 236, § 1420.
See fn 7 supra. Also, note that the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., does not apply to the judiciary. MCL 15.232(b)(v), (c), 15.233(1), (2); MSA 4.1801(2)(b)(v), (c), 4.1801(3)(1), (2).
As a practical matter, the suppression contemplated by MCL 750.520k; MSA 28.788(11) and by the orders entered in this case implicitly requires the closing of the preliminary examination to the public and a restraint on the actor, the victim, counsel, and court personnel. The former will be discussed in the next section. The latter, although plaintiff can raise the First Amendment rights of third parties, see, generally, Young v American Mini Theatres, Inc, 427 US 50, 58-61; 96 S Ct 2440; 49 L Ed 2d 310 (1976), reh den 429 US 873; 97 S Ct 191; 50 L Ed 2d 155 (1976); Broadrick v Oklahoma, 413 US 601, 610-615; 93 S Ct 2908; 37 L Ed 2d 830 (1973), is not a problem in this case. Indeed, "gag” orders directed to such persons are permissible. Nebraska Press Ass’n, supra, pp 553-554, 564; Sheppard v Maxwell, 384 US 333, 359-363; 86 S Ct 1507; 16 L Ed 2d 600 (1966).
"The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.” Also, see Nebraska Press Ass’n, supra, p 601, fn 27 (Brennan, J., concurring), and Seattle Times Co v Rhinehart, — US —; 104 S Ct 2199; 81 L Ed 2d 17 (1984).
See fn 7 and ante, p 159.
The existence of such a common-law right will be discussed below.
Note that the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., does not apply to the judiciary. MCL 15.262(a); MSA 4.1800(12)(a) and MCL 15.263(7); MSA 4.1800(13)(7); In re 1976 PA 267, 400 Mich 660; 255 NW2d 635 (1977).
See fn 11 and People v Murray, 89 Mich 276, 286; 50 NW 995 (1891).
Generally, the Sixth Amendment public trial provision is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972); Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968).
Generally, the First Amendment freedom of the press and speech provisions áre applicable to the states through the Due Process Clause of the Fourteenth Amendment. Near v Minnesota ex rel Olson, 283 US 697; 51 S Ct 625; 75 L Ed 1357 (1931).
That guarantee has appeared in every one of our state’s constitutions. See Const 1835, art 1, § 10; Const 1850, art 6, § 28; Const 1908, art 2, § 19; Const 1963, art 1, § 20.
See fn 11.
We are not presented with, and need not decide, the question whether and to what extent-those same constitutional provisions, or others, confer upon the public a right of access to civil trials. However, it is important to note that the public’s right of access at common law extended to both civil and criminal trials. See Gannett, supra, pp 384-386.
Also, we do not interpret Waller v Georgia, supra, as recognizing that the Sixth Amendment, as applied to the states through the Fourteenth, confers upon the public a right of access to criminal trials. However, even if it did, the case before us is distinguishable because, in the underlying criminal actions, the suppression orders were entered upon motions of the defendants. See fn 2. Similarly, we do not believe that the state constitution’s public trial guarantee, Const 1963, art 1, §20, confers upon the public a right of access to criminal trials. See fns 25-27 and accompanying text.
Only those proceedings from voir dire through sentencing, inclusive, were generally open to the public at common law.
"It is significant that the sources upon which the Court relies do not concern suppression hearings. They concern hearings to determine probable cause to bind a defendant over for trial. E.g., Indictable Offences Act, 11 & 12 Vict, ch 42, §§ 17, 19 (1848); Cal Penal Code Ann § 868 (West Supp 1979). Such proceedings are not critical to the criminal justice system in the way the suppression-of-evidence hearing is and they are not close equivalents of the trial itself in form. The fact that such proceedings might have been held in private at common law in England or in this country does not detract from my conclusion that pretrial suppression hearings should not be, any more than does the fact that grand juries — or preliminary proceedings such as coroner’s inquests at common law — were and are secret.” Gannett, supra, p 437 (Blackmun, J., dissenting).
See fn 20.
See fns 23 and 24 and accompanying text.
See, generally, chapters VI and VII of the Code of Criminal Procedure. MCL 766.1 et seq.; MSA 28.919 et seq., and MCL 767.1 et seq.; MSA 28.941 et seq. | [
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] |
Cooltey, C. J.
The respondent who is keeper of a hotel in the village of Plainwell, in which there is a bar for the sale of spirituous and malt liquors, was prosecuted and convicted for not keeping his bar closed on Sunday, May 6, 1883. The evidence was that on the morning of that day the clerk of the hotel was in the bar-room and had a servant with him scrubbing it out when a person came in from the street. He appeared to be known to the clerk, who told him he did not want him there Sundays. The man said he wanted some whisky. The clerk told him he must get his whisky Saturday night. After some more words between them the clerk told him if he was going to get the whisky to get it and get out as soon as he could. He got the whisky, handed pay for it to the servant, and went off. The respondent was not at the time present. The clerk testifies that he was somewhere about the house, but he thought he was not up yet; the servant says he was about there shortly afterwards.- There was no evidence in the case to show that respondent assented to the opening of the bar on that day, or 'expected or desired that it should be opened; neither was there any evidence to the contrary. uHe was not a witness on his own behalf.
The case comes to this Court on writ .of error, and the ■only question of importance is whether there was any evidence to be submitted to the jury.
The statute under which the conviction was had provides that “all saloons, restaurants, bars, in taverns or elsewhere, and all other places where any of the liquors,” etc. “ may be sold, or kept for sale, either at wholesale or retail, shall be closed on the, first day -of the week, commonly called Sunday,” etc. How. St. § 2274; Public Acts, 1881, p. 350.
" It will be observed that the requirement that the saloons and other places mentioned shall be closed is positive. The next section of the statute provides that any person who shall violate this, among other provisions, shall be deemed guilty of a misdemeanor, and shall be punished as therein prescribed. In terms, then, the penalties of the statute are denounced against the person whose saloon or other place •for the sale of intoxicating drinks is not kept closed, and no other fact is necessary to complete the offense.
It is contended, nevertheless, that to constitute an offense under the section referred to, there must be some evidence tending to show an intent on the part of the respondent to violate it; and People v. Parks 49 Mich. 333, which was a prosecution under another section.of the same statute, is cited as authority. It should be said of that case that the facts are not fully given in the report, and that there was positive evidence in the case to negative the intent in the respondent that tWt criminal act should be committed. But the case is plainly distinguishable from this. The section under which Parks was prosecuted makes not only the proprietor, but his clerks, agents, etc., individually liable for the conduct prohibited, and imposes upon them severally the duty to abstain from it. The section under which Roby is prosecuted makes the crime consist, not in the affirmative act of any person, but in the negative conduct of failing to keep the saloon, etc., closed.
I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence; and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible. Thus, in Massachusetts a person may be convicted of the crime of selling intoxicating liquor as a beverage, though he did not know it to be intoxicating; Commonwealth v. Boynton 2 Allen 160; and of the offense. of selling adulterated milk, though he was ignorant of its being adulterated. Commonwealth v. Farren 9 Allen 489; Commonwealth v. Holbrook 10 Allen 200; Commonwealth v. Waite 11 Allen 264; Commonwealth v. Smith 103 Mass. 444. See State v. Smith 10 R. I. 258. In Missouri a magistrate may be liable to the penalty for performing the marriage ceremony for minors-without consent of parents or guardians, though he may suppose them to be of the proper age. Beckham v. Nacke 56 Mo. 546. "Where the killing and sale of a calf under a specified age is prohibited, there may be a conviction though the party was ignorant of the animal’s age. Commonwealth v. Raymond 97 Mass. 567. See The King v. Dixon 3 M. & S. 11. In State v. Steamboat Co. 13 Md. 181, a common carrier was held liable to a statutory penalty for transporting a slave on its steamboat, though the persons in charge of its business had no: knowledge of the-fact. A case determined on the same principle is Queen v. Bishop 5 Q. B. Div. 259. If one’s business is the sale of liquors, a sale made by his agent in violation of law.is prima facie by his authority; Commonwealth v. Nichols 10 Met. 259; and in Illinois the principal is held liable,, though the sale by his agent was in violation of instructions. Noecker v. People 91 Ill. 494. In Connecticut it has been held no defense in a prosecution for selling intoxicating liquor to a common drunkard that the seller did not know him to be such. Barnes v. State 19 Conn. 398. It was held in Faulks v. People 39 Mich. 200, under a former statute, that one should not be convicted of the offense-of selling liquors to a minor who. had reason to believe and did believe he was of age; but I doubt if we ought so to (hold under the statute of 1881, the purpose of which very plainly is, as I think, to compel every person who engages in -the sale of intoxicating drinks to keep within the statute his peril. There are many cases in which it has been held under similar statutes that it was no defense that the seller did not know or suppose the purchaser to be a minor; State v. Hartfiel 24 Wis. 60; McCutcheon v. People 69 Ill. 601; Farmer v. People 77 Ill. 322; Ulrich v. Commonwealth 6 Bush 400; State v. Cain 9 W.Va. 559; Commonwealth v. Emmons 98 Mass. 6; Redmond v. State 36 Ark. 58; and in Commonwealth v. Finnegan 124 Mass. 324, the seller was held liable, though the minor had deceived him by falsely pretending he was sent for the liquor by another person. So a person has been held liable to a penalty for keeping naptha for sale under an assumed name, without guilty knowledge; the statute not making such knowledge an ingredient of the offense. Commonwealth v. Wentworth 118 Mass. 441. Other cases might be cited, and there is nothing anomalous in these. A person may be criminally liable for adultery with a woman he did not know to be married: Fox v. State 3 Tex. App. 329; or for the carnal knowledge of a female under ten years of age though he believed her to be older. Queen v. Prince L. R. 2 Cr. Cas. 154; State v. Newton 44 Ia. 45. And other similar cases might be instanced.
If intent were necessary to be found I should be of opinion there was enough in the case to warrant its submission to the jury. The bar was opened' on Sunday by respondent’s servants and on his business while he was about the premises. The purpose for which it was opened was immaterial ; the ofEense was committed by opening it for cleaning as much as it would have been by opening it for the sale of liquors. People v. Waldvogel 49 Mich. 337. But the statute requires the proprietor at his peril to keep the bar closed. The purpose in doing so is that persons shall not be there within the reach of temptation. This respondent did not keep his bar closed and he has therefore disobeyed the law. And he has not only disobeyed the law, but the evil which the law intends to guard against has resulted ; that is to say, there has been, either with or without his assent, — it is immaterial which, — a sale of intoxicating liquors to a person who took advantage of the bar being open to enter it.
I think the circuit court .should proceed to judgment.
Sherwood and Champlin, JJ., concurred.
Campbell, J.
In this case the charge of the judge was properly guarded as to the necessity of showing complicity of respondent in the act charged against him, and as to the presumption of his innocence. But in my opinion the-rules he laid down were inconsistent with the sufficiency of the facts to sustain a conviction. I think this conviction can only be maintained on the principle tMt an agent appointed for a confessedly legal purpose k - esumed to be-authorized to act illegally. I can see no mason why such presumption should be lawful in one case and not in another. In all crimes the presumption of innocence must 1 be the same. The charge here is distinctly criminal, and S while the offense is one of importance to the public order,, \l think that the decisions which set up exceptional rules of evidence to prove it are of dangerous tendency and would not be safe precedents. | [
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Cooley, J.
Much of what was involved in this case in the circuit court was disposed of by the verdict of the jury, and will be the subject of no discussion here. What remains to be considered is, whether the trial judge was correct in his instruction whereby the jury were required to reject a portion of the plaintifE’s claim.
The action was brought to recover for labor and expenses in running and driving logs for the defendant on the Tittabawassee river during the season of 1881. The plaintiff claimed to recover, not upon any express employment by the defendant, or any express undertaking to compensate him for either labor or expenses, but upon an implied contract springing from the statute and the facts in proof. The statute relied upon is the act of 1861. Laws 1861 p. 557 as amended in 1863 — Comp. L. §' 1660 — and again in 1879 (Public Act 85). This statute, as it read when the supposed cause of action arose, was as follows:
“ That if any person or persons shall put or cause to be put into any lake, river, creek or stream of this State, any logs, timber or lumber for the purpose of floating the same to the place of manufacture or market, and shall not make adequate provisions and put on sufficient force for breaking jams of such logs, timber or lumber in or upon such lake, river, creek or stream, or for running or clearing the same from the banks or shores thereof, or for running or driving the same, and shall thereby hinder the removal of any logs from the banks or shores thereof, or shall thereby obstruct the floating or navigation of such lake, river, ci'eelc, or stream, it shall be lawful for any other person, company, or corporation engaged in floating or running logs, timber, or lumber in such lake, river, creek or stream so obstructed, to cause such jams to be broken, and such logs, timber, or lumber to be run, driven and cleared from the banks of such lake, fiver, creek or stream at the cost and expense of the person or persons owning such logs, timber or lumber; and such owner shall be liable to such person, company or corporation for such cost and expense, and such company, person, or corporation so causing such jams to be broken, or such logs, timber or lumber to be run, driven or cleared, may have a lien on such logs, timber, or lumber for his or their reasonable charges and expenses for breaking jams and running, driving and clearing thq same, and shall be entitled to take and retain possession of such logs, timber or lumber wherever the same may be found, or so much thereof as may be necessary to satisfy the amount of such charges and expenses and all costs thereon until the same shall be determined, satisfied and paid in the manner hereinafter prescribed.”
Another section authorized an action of assumpsit to recover the amount of the claim, and plaintiff brought such a suit instead of attempting the enforcement of a statutory lien.
There was evidence which warranted the jury in finding that defendant, in the season of 1881, put a large quantity of logs into the Tittabawassee river for the purpose of floating the same to a place of manufacture or market; that he failed to make adequate provision for breaking jams, or for running or driving the same; that the navigation of the river was, in consequence, obstructed; and that the plaintiff, who was running logs in the river behind those of the ■defendant, in order to move forward his own logs, was compelled to and did expend labor and money upon the logs of the defendant, and that the expenditures were continued until about the 15th day of May, when it became necessary to resort to artificial means to produce sufficient current for further floatage. For the labor expended and the expense incurred up to the day named, the court permitted a recovery, and the question now to be decided concerns what was-done afterwards.
The artificial means resorted to for the purpose of producing a sufficient' current were — -first, the narrowing of the stream at one point by a dam extending a part of the way across it; and second, the bringing down of floods from reservoirs created by dams on the tributaries of the river. All these dams were constructed for this express purpose, and they were either under the control of the plaintiff or he was permitted to make use of them to create floatage in the dry season. «By means of them he was enabled to flood and run the logs of the defendant, and also his own logs, within the booms of the Tittabawassee Boom Company before the fall floods set in.
The defendant insists that he had a right to cast his logs in the river, and leave them there to be floated at such times as the river was navigable in its natural state, and that he could not be held responsible for any money or labor expended in creating artificial navigation, in the absence of contract on his part to pay for it. Of this opinion was the circuit judge, and under his instructions the jury rejected the claim.
Much of the language of the circuit judge in submitting the case to the jury was so general that it would be applicable to cases that in their circumstances might be so far different as to make other considerations important, and to leave room for argument whether a different conclusion ought not to be reached. But, restricting the application of his charge, as the jury were required to do, to the exact case in proof, we are compelled to agree with the circuit judge that notwithstanding the apparent hardship of the case the plaintiff has no redress.
No claim is made on the part of the plaintiff that he is entitled to recover except under and upon the provisions of the statute, and he went to the jury upon the statute and upon what he claimed to have done in reliance upon its provisions. Wc have therefore only to see.whether he brings himself within the statute.
Previous to the amendment of 1879. the statute in terms applied only to “navigable” rivers, creeks'and streams; but by that amendment-lakes were included, and the word “navigable” was dropped out. Much reliance is placed Upon this change .by the plaintiff; and it is contended that the purpose was to extend the statutory remedy to non-navigable waters, and so permit parties to recover where they had performed valuable service on such waters, and also where, in the dry seasons, they had kept up the floatage in the streams commonly navigable, as the Tittabawassee is, by means of reservoirs and other artificial means. On the other hand, the defendant contends that the statute applies only to natural highways, and while they are such in their natural condition; and that it does not assume to give a right to create an artificial navigation, and to charge for floating the logs of non-assenting parties by means of it.
Without stopping to consider how extensive were the changes which were introduced by-the amendment of 1879, or whether a stream of the magnitude and public importance of the Tittabawassee is to be regarded as a public highway at all times, notwithstanding there may be seasons when there is no valuable floatage. upon it in its natural condition, we are of opinion that it is only when the actual “ floating or navigation,” or the labor preparatory thereto, is hindered or obstructed, does the statute assume to give any right of action against non-assenting parties; and that the floating or navigation intended is that which exists in its natural state, and not that which parties may make by means of dams, locks, sluices or in any other manner, when there is none without the artificial aids. We take the statute as we find it, and it is plainly restricted as above indicated, and has for its purpose the protection and Tull enjoyment of existing rights of floatage and navigation, and not of rights which may artificially be brought into existence. Nothing' in the language of the statutes gives any indication that artificial floatage was within the legislative contemplation in enacting it.
If it had appeared in the ease that there was valuable floatage to a limited extent in the natural condition of the stream during the whole season, and that it was rendered unavailable because of the vast quantity of logs cast into the stream by the defendant and others, so that it became necessary to resort to artificial means to make an actual navigation available, the case thus presented would differ from the one which the judge covered by his instructions in this case. It may be that on the evidence it might have been claimed that such was the ease during the season of 1881; but as the plaintiff did not ask to go to the jury upon any such theory, the record does not call for any opinion from us upon it. Neither, it may be added, does the record raise the question of the right of any one to make the bed of the river a storage ground for logs during the dry season to the prejudice of those who, by means of flooding or otherwise, might desire to float their own logs to a place of manufacture or market.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
The argument in this case was mainly upon the construction of a devise and whether parol evidence was admissible to aid in the construction. It appears that in March, 1873, Joel Craft, who was then husband to the defendant, made his last will which contains the following clause:
“After the payment of my just debts and funeral expenses I give, devise and bequeath to my beloved wife, Mary Jane Craft, all my real estate, and all my personal property of whatever nature or kind; also all moneys and credits I give and bequeath to my beloved wife; and in case of her death, then all my real and personal estate shall be divided equally among my children.”
The testator died soon after, leaving children who still survive, and the will was duly probated.
In March, 1882, plaintiff purchased of defendant a parcel of land which had belonged to her husband and to which she had no-title except under the will. A deed was given to consummate the purchase. A copy of the deed is not given in the printed record, but it is stated to be a common warranty deed, short form, and it may therefore be assumed that it contained covenants of seizin and of quiet possession.
It does not distinctly appear whether plaintiff took possession under his deed, but in the month following its date he tendered to defendant a quitclaim deed of the premises duly executed by himself and demanded back the sum of five hundred dollar’s which he had paid as the purchase price. Repayment was refused, and this suit was then instituted. The declaration contains only the common money counts, and the bill of particulars specifies as the cause of action, “ money paid by said plaintiff to said defendant as the purchase money of a certain piece or parcel of land [describing it] and the sale of which property was subsequently rescinded by the plaintiff because of- the fraud of the said defendant, and the mutual mistake of the parties as to the title of the defendant.”
The discussion upon the construction of the will has been very elaborate and thorough, and it may be matter of z’egret that in the view we take of the case we are not at libez’ty to follow it with a view to an expression of opinion upon the interesting question discussed. The circuit judge was of opinion that on any view which might be taken of the will tlze plaintiff had no case ; and we discover no ground on which the coz-rectness of this opinion can be questioned.
The plaintiff made no attempt to show that defendant had been guilty of any fraud, and we must therefore assume that defendant made the sale and received the consideration znoney in good faith. The case for the plaintiff must therefore stand upon the ground that he bought the land uzzder the mistaken belief that defendant had title in fee when her actual estate was for life only. Upon this ground he claims a right to rescind his purchase and reclaim his money, upon the principle that a contract entered into under a mistake of facts is void, and money paid upon it znay be treated as money paid without consideration.
It is to be observed, however, that the only mistake which is pretended in this case is one which goes to the construction and legal effect of the will of Joel Craft. This will was matter of record when the purchase was made, and the question arising upon it and in respect to which the mistake is alleged, was purely a question of law. It may be doubtful, therefore, if the principle the plaintiff invokes is applicable to the ease ; for while mistake of fact may be alleged in avoidancp of a contract, mistake of law, as a rule, is not available for that purpose.
But whether the mistake in this case is considered as one of law or one of fact the plaintiff’s case must fail, because it does not go to the whole consideration of the contract, but is partial only. He bought, as he alleges, under the belief that defendant owned the land in fee, and he finds on investigation that she owns for life only. But as tenant for life her deed conveyed to him the present freehold, and no one can disturb him in the enjoyment so long as she is living. Moreover, he appears to have provided against the contingencies of her title falling short of the complete fee by requiring of her covenants for his protection ; and though these, as we have said, are not set forth in the record, we must suppose they give a right of action for the very defect in the title which the plaintiff claims to have discovered. But whether that is so or not it is certain that the parties took into consideration possible defects in the title and bargained in respect to them. If they were not expressly mentioned in the course of their negotiations, it is immaterial ; for their contract, which we must suppose was deliberately made, covers them.
¥e have, then, a case in which a party bargaining for land has received a conveyance which gives him present seizin, and covenants which assume to protect him in the enjoyment of the land. The conveyance purports to be in fee, and the assurances we must suppose are to him, his heirs and assigns. The plaintiff has therefore received value for the money paid; and if not to the full extent of the payment, the deficiency is uncertain and dependent on contingencies, and does not go to tlie entire consideration. If this contract can be rescinded on the ground of mistake of fact, then every purchase of land the title to which proves in any respect defective must be subject to rescission also, unless the parties have expressly bargained with mutual knowledge that defects existed. If this were the law, covenants would bo of little importance.
The plaintiff has directed our attention to no authorities which can support this action, and we know of none. The general rule is that the action of assumpsit will not lie to try the title to land. Hogsett v. Ellis 17 Mich. 351; Codman v. Jenkins 14 Mass. 93; Boston v. Binney 11 Pick. 1; Baker v. Howell 6 S. & R. 481; King v. Mason 42 Ill. 225; Marshall v. Hopkins 15 East 309; Newsome v. Graham 10 B. & C. 234. If the supposed conveyance had been altogether void by reason of there having been no such land (D' Utricht v. Melchor 1 Dall. 428) or because the instrument itself -was a mere nullity (Tollenson v. Gunderson 1 Wis. 113) or because the deed was given to carry into effect an execution sale which was void (Putnam v. Westcolt 19 Johns. 73) or if the trade had been brought about by fraud, and the vendee had rescinded it on that ground, as he lawfully might (Early v. Garrett 9 B. & C. 928; Vining v. Leeman 45 Ill. 246; Warren v. Tyler 81 Ill. 15; Masson v. Bovet 1 Den. 69) the right to reclaim the money in this form of action might be' admitted. But in this case there is no ground for claiming that the conveyance was void either because ineffectual in itself or because of the vendee having been induced by fraud to accept it. The deed unquestionably conveyed something, and it contained covenants which were designed to protect all it assumed to convey. The mistake of the parties, if there was any, did not go to the entire consideration of the purchase. The purchaser is not therefore at liberty to rescind because of it. Buckles v. Northern Bank of Kentucky 63 Ill. 268; Templeton v. Jackson 13 Mo. 78.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Curtis was, tried in the Cass county circuit court and convicted of murder in the second degree. Errors are assigned on rulings during the trial and in instructions to the jury. Macom "Wilson was the person killed.
The facts bearing on the case are these. On the 15th day of August, 1883, the respondent with many others attended a colored people’s celebration at a place called Osborn’s Grove, in .Calvin township. Clay "Wilson, a brother of deceased, had a temporary grocery on these premises near the south end, east of the north and south highway. Levi "Wilson, another brother, was in the company, as well as Ami Curtis, a brother of respondent. After the celebration was ended, and just in the edge of the evening, Levi "Wilson and Ami Curtis got into an altercation. Levi had a knife which according to some of the witnesses he used in a threatening manner towards Ami.. He also had stones which he threw at the latter. There is some doubt just how this fight began, but they were chasing each other round a wagon that stood there, when Maeom Wilson came up and threw a stone at Ami Curtis and as some witnesses swore was threatening him further with another stone, when he was shot by some one claimed to have been respondent. It is agreed that respondent fired a revolver, and that deceased 'was hilled by a ball'of 32-caliber, while-respondent claims his revolver was much smaller. Several witnesses testify to another shot about the same time, which was not fired by respondent.
The controversy was — -First, whether respondent shot deceased at all; and second, if he did, whether the act was-murder, manslaughter or innocent homicide. The bearing of most of the questions presented is_ towards the degree-of blame, if any. Some questions bear on the entire absence of complicity in the shooting.
A number of objections apply to the admission or exclusion of testimony as to sayings and doings of respondent and others during the earlier part of the afternoon. The testimony indicated that the crowd consisted of neighbors- and persons acquainted, and it appears that during the final quarrel there was a crowd at the place of the fight, and some noise and excitement.
The first question discussed arises out of the reception by the' court of declarations made by respondent at 2 o’clock in the afternoon on the grounds. On objection made to the question whether respondent made threats, the court remarked : “ Suppose he said he meant to kill the first person he met, and then did it, — the witness may answer.” The witness then swore — “ I heard the defendant say he was-going to knock down three men and kill one, before he left the ground.” Defendant’s counsel moved to strike out this as not referring to deceased. The court struck out what was said about knocking down, and left what was said about killing; and this threat, as the court treated it, was. made prominent in the subsequent charge of the court as. to malice.
Whether this declaration was admissible or not, it was in our opinion wrong to strike out the part relating to knocking down three men. Taken all together it was open to the natural construction that it was no more than braggadocio, while standing alone it might have a more serious meaning. The whole statement should have been let in or .all ruled out.
The court allowed other evidence of defendant’s talk of ■a similar character to be shown, but refused to allow testimony that Levi Wilson was stropping his knife on his boot and trying to cut people and made threats, and that other persons made similar threats.
This difficulty was thus allowed to be shown to have had ■some connection with the previous gathering and yet evidence was only allowed as to defendant’s conduct, while that •of others was shut out. In our view all of the transactions ■of the afternoon were proper and should have been received. There is a great deal of testimony indicating more or less commotion and disturbance in the afternoon, and it is impossible not to see that many things might have been made much more intelligible, if this testimony had been let in fully instead of partially and only as it bore against the respondent. All of the Wilsons as well as some others were mixed up in the disturbance, and defendant’s conduct must be viewed in the light of ail the surroundings. This is especially true as to Levi and Macom Wilson, whose conduct was the apparent provocation to defendant’s assault, if 'he committed one, and must necessarily have a close relation to his exeusability. It was as much defendant’s right to inquire into their conduct and appearance, as if he had himself been the person assaulted instead of his brother.
It appeared on the post mortem examination that the bullet was larger than would fit the pistol which defendant ■claimed to have been in his possession. When the prosecution gave evidence that defendant had fired a revolver, and another of their witnesses testified he heard a revolver go off and saw Macom Wilson shot, but did not know who .shot him, but that he saw defendant have a revolver, the prosecuting attorney asked what was the size of defendant’s, revolver. The court interrupted him and said : “ Mr. Carr,, you have shown that this bullet was found in the body of Macom, that this bullet killed him, and defendant fired, and that is enough, and the size of the revolver ha,s nothing to •do with the case, and you need not go into the size of the revolver at all at this stage of the trial.” This was not only a statement of fact made in such a way as to tell the jury a case had been made out, which the court has no right under such circumstances to do, but it-prevented the prosecutor from doing his duty to tlie prisoner, by giving all of his testimony fairly in the opening. It was an essential part of the prosecutor’s case to show that the ball came from defendant’s pistol, and it was his duty to do this by making —as he seemed disposed — a full sliowiug.
James Byrd testified that he saw defendant at the time of the affray and that his revolver was a small one of 22 calibre, and that there were two shots fired. He testified on cross-examination that there were several persons having revolvers out, and that these were of different sizes, but he was not allowed on re-examination by defendant to tell what persons he saw with such revolvers, the court saying it was immaterial if they were not the persons engaged in this affray. As there was no claim that defendant fired two shots, and as it was certain that such a revolver, as he-was shown by witness to have had, could not have been the vreapon that killed the deceased, this testimony was of obvious importance. And it was error to shut out any of the immediate surroundings of the affray. If defendant did not do the killing it is evident some one else took a most important part in this affray, and it was important to know who it was.
Ami Curtis, the brother of respondent, gave a very full account of the difficulty, and of the conduct of the two Wilsons and the attack on himself, and among other things said he backed up from Levi Wilson when he came at witness with his knife, because witness was afraid he would cut him, as he had cut several men, and witness was afraid he would do so to him. The court struck this out, and also refused to allow witness to testify as to Levi’s character as to peaceableness when in liquor. The materiality of this testimony cannot be doubted. Eespondent was witness’s brother and claims to have acted in his defense, and the danger to Ami was the occasion for it. It is manifest that a violent and quarrelsome man, armed and aggressive, would make any sensible person apprehensive of mischief and justify him in seeking protection. Moreover in this case, in his charge, the court very strongly urged the fault of Ami Curtis in this affray as chargeable not only to himself but to respondent. Other testimony of violent conduct of Levi was also shut out, as well as evidence of liis quarrelsome character. The testimony showed that all" of the persons concerned were neighbors, and this character could not have been properly ignored in any such controversy and quarrel. There was much other very direct testimony of his actual violence that day ruled out. All this was against the right of the prisoner, and actually tended to his prejudice.
The charge is objected to on several grounds most of which relate to what was said concerning the duties and liabilities of persons in such affrays. Much of the charge is based on assumptions of duty which may arise in cases where there are but two persons engaged, and there are no exciting surroundings, but which are not appropriate when there is such a riotous affray as appeared here. It is not in our judgment admissible to require of persons involved in such a tumultuous scene the possession of coolness and deliberation. It is unavoidable in such scenes for the participants to lose their self-control to some extent, and coolness would often be the strongest evidence of malice in one who commits violence under such circumstances.
The respondent was entitled and bound to take an interest' in the life and safety of his brother. There was no difference in the testimony as to his being in danger, and all the instructions which confined the right of respondent to helping him only when he was entirely without fault were unwarranted. The court refused to charge that a brother might interpose against a felonious or serious bodily harm, unless the assailed party was entirely blameless, and this was contrary to the well-settled principle that a dangerous felony may be prevented by one who is not himself in the wrong, directly or by complicity.
It was not, we think, proper to charge as a matter of law that the use of a deadly weapon by respondent was a strong circumstance tending to show malice. On the contrary we have had great doubt whether it was proper in this case to leave the question of malice to the jury at all. The case was one of those fights in which usually there could be no guilt worse than manslaughter in any one who acted on provocation. Neither respondent nor his brother began the affray, and we have discovered no testimony authorizing the inference that there was space for cooling time, or opportunity for withdrawal by Ami without danger. It is unreasonable to regard their reciprocal advances and retreats as creating each time new rights and duties.
Tiie court charged repeatedly that if Ami was in fault at all, respondent could not be justified, and the court told the jury that if Ami had made an insulting remark in Levi’s presence, although not sufficient to justify an assault it was so far liable to provoke as to put Ami in fault and deprive him of his rights, and put respondent in fault for defending him. This is not supported by any authority and is a dangerous doctrine. It is equivalent legally to saying that while words will not justify a dangerous assault they will preclude a person from resisting it, and in that respect the •charge was altogether inconsistent. To hold, as was here intimated, that it put a man in the wrong so as to deprive him of all defensive rights in an affray begun by the other party is entirely unwarranted.
"We do not think it desirable to go at length into the •charge, which appears to us to be throughout open to the ■criticism that it bore very heavily against respondent and ■subjected him to such restrictions and presumptions as would make it almost impossible for any one to interpose to save his relatives from brutality and danger. We have indicated sufficiently the character of the errors relied on, and we abstain from multiplying remarks on similar questions which would require the same criticism.
The judgment must be reversed and a new trial ordered. The prisoner must be remanded to the custody of the sheriff of Cass county, and must be allowed bail if he desires it, in a moderate amount.
The other Justices concurred. | [
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Champlin, J.
We are all of opinion that a peremptory mandamus should issue in this case.
The action out of which these proceedings arose was replevin brought by one Nathan Wolf against Frederick, who, as sheriff of Mecosta county, had served attachments against the goods of one Abram Markson. These attachments were three in number, issued on behalf of different plaintiffs, two of them bearing teste January 20, and one January 22, 1883. The sheriff seized the goods on the 23d of January, and afterwards, on the same day, Wolf replevied the goods from the-sheriff. Issue was joined in this cause, and the sheriff gave notice, under his plea, of his special interest in the goods as sheriff by virtue of the attachments, and other special matter of defense. The replevin suit came on to be tried May 15, 1883, before judgments had been obtained in the attachment suits, and resulted in a verdict for defendant, and also that he had a lien or special property in the goods by reason of the several writs of attachment, specifying them; and they also found that the plaintiff was the general owner of the goods subject to the attachment liens of defendant, and that the defendant did not unlawfully detain them. It appears that before the cause was submitted to the jury, the attorneys for the defendant expressly waived a return of the property mentioned in the writ, and elected instead thereof to take a judgment'for the special interest of the defendant. This was erroneous.
Section 6754, Comp..L. 1871, (How. St. § 8342,)provides:
“ When either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages, in all cases arising under this chapter; and the finding ■of tlie jury, or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties.”
This section must be construed in connection with § 6763, (How. St. § 8351) namely :
“ If any goods or chattels which are replevied had been attached, they shall, in case of judgment for a return, be held liable to the attachment, until final judgment in the suit in which they were attached, and for thirty days thereafter, in order to their being taken in execution; and if such final judgment be rendered before the return of the property, or if the property when replevied was seized and held on execution, it shall be held subject to the same attachment or seizure for thirty days after the return, in order that the execution may be served thereon, or the service thereof completed, in like manner as it might have been if such property had not been replevied.”
It is apparent from the foregoing sections that in the plight in which this case was at the time of trial, no judgment for the value of the special interest of the defendant in the goods could be taken. There was no way of determining at that time what the value of his special interest was. No judgment had been obtained fixing the amount, and it was legally possible that no judgment would be obtained at all, in which case his special interest would at once cease. It is evident that the section of the statute first above cited refers to liens other than those of attachment or execution, while the latter section controls in all cases where goods are held by attachment or execution, and in the latter case the only judgment that can be taken is for a return of the property. The design of the law is to protect the rights of parties by restoring the goods to the hands of the officer in order to enable him to complete the execution of his process which had been obstructed by the proceedings in replevin. Parties are thus enabled to try the title and ownership of the property seized and the liability of the same to be taken in execution or attachment, and while these proceedings are in progress the goods may be considered as in custodia legis. , If the officer’s lien is established by showing that the goods were liable to be seized as the property of the debtor, they are to be returned to him; otherwise not. The statute in this respect is mandatory, and it is the duty of the court in such cases to render a judgment for a return of the property.
When, therefore, in this case the defendant’s attorneys discovered their error, and moved the court for leave to withdraw the waiver of judgment for a return of the property, and that judgment be entered for a return of the property taken under the writ of replevin, he should have granted the motion. Instead of this he denied the motion with costs, including an attorney fee of ten dollars, and seeks to justify his action “ upon the ground that the said circuit court had not the power to change the said verdict of said jury and the judgment that had been duly rendered and entered thereon, and to substitute in its stead a new and different verdict, and to render and cause to be entered another and different judgment thereon.”
The verdict and judgment referred to as entered in the journal of the court [and as given in the court’s return to the order to show cause in this case] read as follows:
Nathan Wolf v. Eli Frederick.
The jury heretofore impaneled and sworn in this cause sat together again and heard the arguments of counsel and the charge of the court, retired from the bar under the charge of Thomas Shaw, Sr., an officer of court duly sworn for that purpose, to consider of their verdict to be given, and after being absent for a time, return into court and say upon their oath that the said defendant did not unlawfully detain the goods and chattels mentioned, in manner and form as the said plaintiff hath in his declaration in this cause alleged, and the jury by whom the issue joined in this cause was tried homing found, by their verdict, that the said defendant did not unlawfully detain the goods and chattels in the said'plaintiff’’s declaration specified as is therein alleged, and the sand jurors having further found that the said defendant has a lien upon or special property in said goods and chattels by reason of a certain writ of attachment issued out of this court, wherein Sydney A. Cushing, Moses W. Thompson, Charles A. Olmstead and Lovell S. Snow are plaintiffs, and Abram Markson is defendant, and a further lien or special property in said goods and chattels under and by virtue of a writ of attachment issued out of and under the seal of this court wherein Daniel J. Cushing is plaintiff and said Abram Markson is defendant, and a further lien or special property in said goods and chattels by a writ of attachment issued out of and under the seal of this court, wherein Charles M. Marshall, Marshall E. Rumsey and Arnold Walker are plaintiffs, and Abram Markson is defendant; they also find that the said plaintiff is the general owner of the said goods and chattels subject to the lien aforesaid of the said defendant, and the jury by whom the issue joined in this cause was tried having found, by their verdict, that the said defendant did not unlawfully •detain the goods and chattels in the said plaintiff’s declaration specified as is therein alleged; and the jury having found as hereinbefore set forth, therefore it is considered that the said plaintiff take nothing hy his suit and that the said defendant do go thereof without da/y; and it is further considered that the said defendant do recover against the said plaintiff the amount of the claims of the said Sydney A. Gushing, Moses W. Thompson, Charles A. Olmstead ■and Lovell 8. Snow and of the said Daniel J. Cushioig and of the said Charles M. Marshall, Marshall E. Rumsey and Arnold Walker to be assessed and not exceed in amount the sum of seventeen hundred and sixty-seven dollars; and that said defendant is not the general owner thereof, hut heioig the amount of his special property in the said goods and chattels so hy the jurors in form aforesaid found, together with his costs and charges by him about his defense in this behalf expended to he taxed, and that the said defendant have execution thereof.
And it is further ordered that all proceedings in this cause, except taxation of costs, be stayed until the first day of the next term of this court to enable the plaintiff to move for a new trial, settle bill of exceptions or take such steps as he may be advised.
Read, approved and signed in open court.
C. C. Fuller, Circuit Judge.”
This record shows that the verdict of the jury was not entered separately and afterward a judgment rendered thereon, but that the two were combined in one entry. There" is no difficulty in separating or distinguishing that portion of the entry which is the verdict of the juryj from the judgment entered, presumably by the clerk, nor in vacating that portion which is the judgment of the court, without interfering with or affecting the verdict of the jury as recorded. The motion did not call upon the circuit court to change the verdict of the jury, nor was it necessary that he should do so in order to vacate the judgment entered and enter a new one for a return of the property replevied.
There is no doubt that the court possessed the power to-vacate the judgment entered, on the motion made, and to enter the proper judgment required by the mandate of the law. The amendment asked was In furtherance of justice.. It is not claimed that any unnecessary delay had occurred before the attention of the court was directed to the error; nor is it claimed that the rights of third persons would be prejudiced by making the amendment.
Under such circumstances courts have frequently exercised the power, not only after the lapse of terms of the court, but of years. 6 Cush. 354; Balch v. Shaw 7 Cush. 284; Usher v. Dansey 4 M. & S. 94; Atkins v. Sawyer 1 Pick. 351; Tilden v. Johnson 6 Cush. 354; Hall v. Williams 1 Fairf. 278, 288; Close v. Gillespey 3 Johns. 526; Waldo v. Spencer 4 Conn. 71; Fay v. Wenzell 8 Cush. 316; Rugg v. Parker 7 Gray 172; Bacon v. Lincoln 2 Cush. 124; Holmes v. Remson 2 Cow. 410; Marsh v. Berry 7 Cow. 344: Owners &c. v. Hale 1 Doug. (Mich.) 313; Lyman v. Becannon 29 Mich. 466; Kenyon v. Woodward 16 Mich. 332; Cook v. Perry 43 Mich. 625.
The circuit judge is directed to vacate the order denying the motion to amend the record, and to amend the record by vacating that portion of the journal entry printed in italics in his return to the order to show cause, and to enter a judgment in favor of the defendant and against the plaintiff in the replevin suit, for a return to him of che property described in the writ of replevin. The judgment so entered will take effect from date of entry, and parties will have the same rights and remedies to obtain a review of such judgment as they would have had if entered at the time of the rendition of the verdict.
Let a peremptory writ of mandamus issue.
Inasmuch as the entanglement in which this case has been brought was owing, in the first instance, to the error of the defendant’s attorneys, no costs will be allowed.
The other Justices concurred. | [
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] |
Sherwood, J.
The claimant and Evered E. Ghadwick named in this case were brothers, and previous to the decease of the latter, for several years prior to April 4, 1879, carried on business together as copartners at Decatur in this State. At that date the copartnership was dissolved, a settlement had, anda division of most of the property made between them. A third brother, Theodore, assisted and arranged the settlement, which was finally concluded between the parties, and made the division of the property for them, and both' the settlement and division of the property was reduced to writing at the time by him.
Upon the division of the property the deceased was found indebted to claimant in the sum of $1878.78, and therefor gave his note, dated April 5, 1875, due in ten days for that amount.
After the dissolution the deceased continued business in the store until he died, paying $250 as rent for claimant’s half interest therein.
The plaintiff’s claim presented against the estate of E. E. Chadwick to the judge of probate for allowance, consisted of the said note, rent of claimant’s half of the store from the time of settlement till May, 1882, some other miscellaneous items, and an item of $500 for money borrowed, in all amounting to the sum of $3717.55, upon which credit was given for a large number of items amounting to $1,-147.5S. The claim was allowed the claimant with interest, in probate court, at the sum of $1168.05. The administrator took an appeal to the circuit, when the amount allowed ■claimant was reduced by the verdict of the jury to the sum ■of $375.75, and the claimant now brings error.
The principal contest at the circuit was as to the $500 item for money borrowed by the deceased on the 15th day of April, 1879. The administrator denied that the deceased ever borrowed the money as claimed. The brother, Theodore, testified that he was present on the 15th of April, when the money was loaned by the claimant to the deceased, and saw the transaction, and saw the latter enter the item in his book K, which, with the entry therein, was introduced in evidence. The claimant then made proof of the other items in his account, by admissions and otherwise, and rested his case.
The defendant then placed Marion Ohadwiclc (who was son of the deceased, twenty-four years old, and administrator of his father’s estate) upon the stand, and lie testified that after the dissolution he worked in his father’s store and commenced taking charge of the books and looking after the business generally ; that on the 12th of April, 1879, his father returned from Chicago; that on the 15th of April his mother and other ladies were in the store, and .he commenced to state what they did.
Counsel for claimant here objects to what the ladies did and what goods were placed in the store that day, as immaterial. The court permitted the testimony. This testimony was offered as tending in some way to show that the claimant did not make the loan to his brother. The testimony given was subject to the objection taken, though we think the answer given’could have hardly influenced the result.
The administrator sought to avoid or contradict the positive testimony of Theodore Chadwick that he was present and saw his brother let E. E. Chadwick have the $500 on the 15th of April, and for this purpose was permitted to ■show, against objection of claimant, that deceased kept a cash account; that some of the entries were made by the witness and some by his father; that he had the book in the court-room, and on his cross-examination said he kept the book.
í£ I got the items entered out of the drawer at night. There was always cash in the drawer at night. I was generally there myself. The cash-book represents what I took ■out of the drawer myself. I think I'kept a correct account of the cash received by my father in and about his business there. I was generally there to know what he did receive. If he received any when I was not there I would generally see it when I got back, on the book. I would not know anything about transactions my father did when I was not present. I do not find any place where my father is debited with $500 to cash account. If the money was not put in the drawer I would not put it on the book. If it was placed in the safe I would, not make an entry on the cashbook.”
We th'ink the objection was well taken to this testimony. It was irrelevant and immaterial and should have been excluded. The testimony lacks the element of certainty; and it nowhere appears that the money claimed to have been borrowed had any connection with the business of the store, or that on the store-books would have been a proper place for it to have appeared.
The testimony of Marion Chadwick to the effect that he was present on several different occasions when conversation occurred between the deceased and claimant about o'her claims claimant held against deceased, but never heard him say anything about the $500, was also incompetent and had no tendency to show the money was not borrowed.
The same is true of the testimony of the witness Nose-warren, which was objected to. Jurors believe testimony competent for the purpose for which it is admitted, and though very slight evidence of the fact sought to be proved? its weight cannot be controlled by the court; hence the danger of irrelevant testimony of this kind. Much of the negative testimony put in this case was not only irrelevant, but clearly misleading, and. the testimony offered from various witnesses that they did not know of deceased having, any such amount of money about him or in his hands or “ about the establishment,” was of the same character and mischievous. It should not have been allowed.
The testimony of Marion Chadwick relating to the set-off, being derived entirely from an inspection of the book or from what the deceased told him, was clearly hearsay and immaterial, and it was error to admit it.
It is not disclosed what connection a purchase of goods in Chicago by the deceased eight or ten days before the $500 was borrowed, on a credit of 30, 60 and 90 days, had with the issues in the case; still the fact was admitted as relevant and competent testimony. It certainly had no tendency to prove the money was not borrowed as claimed, and should not have been admitted.
The widow of the deceased was allowed to testify that she did not know of her husband borrowing any money of claimant. This was irrelevant, and this, with the other testimony of the same class, was hurtful to claimant’s interests. She had also been permitted to testify to a conversation she claimed to have heard between her husband and the claimant the next day after the settlement, which was prejudicial to rights of complainant and was offered as such. On the rebuttal the claimant took the stand- and proposed to contradict the witness, but was refused leave so to do by the court on the ground that he was prohibited by statute from testifying as to that matter. This ruling was correct. The case comes within the statute and the former ruling of this Court in Downey v. Andrus 43 Mich. 65.
It is usually improper to let the jury take the testimony, consisting of books, papers and depositions etc., with them to the jury-room. The jury are to receive the testimony in ■open court. The plaintiff, however, waived the irregularity by allowing it to be done in this case without objection. It is unnecessary to discuss the case further.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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] |
Campbell, J.
Tliis is a bill filed by a surety against the principal debtor, two surviving co-sureties and the representatives of a third, to obtain contribution towards a debt which complainant paid in full. The bill also attempts to reach property of the deceased co-surety alleged to have been conveyed in fraud of complainant. The ground of action was that in 1870, Jesse W. Turner, desiring to get rid of an injunction granted against him at the suit of Benjamin Atwood, in Kalamazoo county, complainant and "William Lynn, Cyril Tyler and Eli H. Collar signed a bond with Turner agreeing to perform any decree which might be rendered in said cause. The decree, which was in a foreclosure suit, being granted in favor of Atwood and affirmed by the Supreme Court, was executed, and resulted in a deficiency after sale. Suit was then brought on the injunction bond, and judgment rendered in May, 1879, for $1402.55 and costs, which complainant paid. He now alleges that the other sureties and principal are irresponsible, and asks relief - to the extent of half his outlay, against the estate of Lynn, who is dead. And he seeks to reach the property of Lynn conveyed under the following circumstances:
On May 26, 1876, Lynn conveyed to his son George W. Lynn, by deed not recorded till November 9, 1877, a farm known as the northwest quarter of section 12, town 4 south of range 9 west, (except a small parcel of half an acre,) for a consideration expressed in the deed at $12,000. George W. Lynn mortgaged the property, by mortgage bearing date the same day with the deed, for $1200. This-mortgage was not recorded until May 23, 1879. .William Lynn also transferred considerable personal estate to his son George with the farm.
This conveyance to George W. Lynn was made, if cor reetly dated, but a short time before the foreclosure decree, which was rendered in June, 1876; and the record of George W. Lynn’s ’mortgage to his mother, the defendant Maria Lynn, was recorded on the day when the verdict was rendered on the bond against complainant.
William Lynn died intestate m September, 1878, and, so far as appears, left no estate. An administrator was appointed, who is a defendant in this cause. Complainant claims that the dealings with George were fraudulent, and seeks to subject the property to the payment of Lynn’s half of the debt, the other parties being insolvent. Maria.Lynn and the remaining children of William Lynn are brought in as in fact enjoying the possession with George as heirs of their father.
Defendants answered, claiming the benefit of a demurrer, and also setting up the good faith of the bargain and dealings. Testimony was taken on this subject. The court below dismissed the bill on the ground that the jurisdiction belonged to the court of probate, and was beyond the equity powers of the circuit court. It is also claimed that complainant is not entitled to relief because not a judgment creditor.
We think the court erred in taking this view of the jurisdiction. The determination of the terms of contribution involved an inquiry into the liability and solvency of Turner, Tyler and Collar as well as of Lynn’s estate, and these complex equities could not be settled before the probate court or commissioners. To that extent, at least, the bill wa's well founded on any theory, and inasmuch as the jurisdiction was necessary to determine Lynn’s share, there was nothing left after such determination to be ascertained. And while it would probably be convenient for purposes of administration to have this amount in some way certified and found in the probate records, there could be no revision of it after the decree once fixed the sum of the liability. The bill could not properly be dismissed.
A somewhat different question arises concerning relief against the property. But inasmuch as Lynn’s insolvency might have some effect on the other sureties, it seems to have been necessary to inquire whether he was insolvent in fact. So that, at any rate, there was sufficient ground for investigating the facts. It depends, therefore, on the result of that investigation how far we need inquire into the further questions as to relief.
The value of the land in question is variously estimated. It does not appear to have been worth $12,000, but it may be roughly placed at between six and seven thousand dollars. We are inclined to credit substantially the defendant’s theory, that George W. Lynn, -who had been working for his father for some years, was anxious to set up for himself and wished to have his pay for his past services to enable him to purchase a smaller farm. The claim is that it was proposed that he should take this, and give a mortgage to his mother for $1200 and pay off debts of about $800, cancel his own claim, and support his parents. The evidence is not satisfactory upon all these points, but it is, we think, beyond question that a very considerable part of the consideration, in order to make up the full value of the property, would consist of the agreement to support Lynn and wife. As against his creditors no such provision could be sustained. It would be a provision for the direct benefit of the grantor. It is difficult to believe the arrangement was not made with some idea on George’s part that the scheme was for the purpose of defeating the recovery on this suretyship obligation. But, be this as it may, William Lynn could not make such an arrangement lawfully, and the whole matter appears to have been left at loose ends, without any such action as could place George in the position of a bona fide purchaser who had paid the consideration in full. It is evident that the amount left open was considerably larger than would suffice to pay this debt, and we think George must account for it.
The only remaining question is whether this relief can be granted in the present case. The objection made is that complainant is not a judgment creditor, and that the bill should be filed by the administrator of William Lynn, under the statute, to avoid the conveyance on behalf of the creditors who were to indemnify him for so doing. It does not appear that other creditors have proved claims, or sought to-have this done. And' in our opinion the facts having all been investigated and the conclusion having been pertinent to the inquiry, there is no reason for circuity of action. Complainant is -entitled to the same consideration as an ordinary judgment creditor, since his position as a judgment defendant defines his rights as perfectly as a new judgment would. And, inasmuch as the administrator is a party to the record, every one interested is before the Court, and full justice can be done.
The decision is not put upon the ground of holding heirs responsible as such. Our probate system has abolished that method. But the case is one of a creditor seeking relief against a conveyance made in his fraud.
We think that a decree must be made that complainant is entitled to contribution from William Lynn’s estate in the sum of one-half of the judgment and costs paid by him, with interest from the date of payment, and that unless George W. Lynn pay the amount, with costs of this Court and of the circuit court, within four months, then a sale may be made by a circuit court commissioner of so much of the land as is necessary, subject to the mortgage to Mrs. Lynn.
The decree must be reversed, with costs of both courts, and a new decree entered accordingly.
Graves, C. J., and Cooley, L, concurred. Sherwood, J, did not sit in this case. | [
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Champijn, J.
The respondent was charged with larceny from the person of Milton H. Butler, September 1, 1881. He was brought to trial in October, 1883, in the Recorder’s court of the city of Detroit, which resulted in a conviction. The case comes here on exceptions before judgment.
That the crime of larceny from the person was committed was not questioned, but whether the prisoner was the person who committed it was disputed. Evidence was introduced tending to prove the identity of the prisoner as the one who commifted the offense; and the question as to whether he was the guilty party was fairly submitted by the court to the jury ; and so long as there was evidence having a tendency to prove the fact we cannot disturb the conclusion at which they have arrived.
A person by the name of J ames McGuire, who was at the time of the larceny on the police force, and who helped to arrest the parties who robbed Butler, was present in court at the time of trial. His mame was indorsed on the information as one of the witnesses for the People. He was .not present at the robbery, but assisted in making the arrest at the foot of Woodward avenue. The prosecution was about to rest the case when the counsel for respondent requested the court to direct the prosecuting attorney to-call James McGuire as a witness, which he declined to do and the respondent’s counsel excepted. And this is claimed to be error; and in support of the proposition the case of Wellar v. People 30 Mich. 23 is cited. That case is distinguishable from the present in two important particulars-— first, it was a case of homicide; and second, the witnesses referred to were those who could give testimony going to-the proof of the corpus delicti. And the court said “ The fact that the name of a witness is indorsed on the information does not of itself involve any necessary obligation to do any more than have the witness in court ready to be examined.” It was not claimed that McGuire was present at the robbery, and upon the question of identification he was no more qualified to testify than any other person who-had acquaintance with the person to be identified.
There is no error in the record and the Recorder’s court, is advised to proceed to judgment.
The other Justices concurred. | [
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] |
Sherwood, J.
The information in this ease charges the defendant with the larceny of a pair of horses and harness at Cadillac, in Wexford county, of the value of $200, and being the property of Nose Ann Cramer. A conviction was had at the circuit and the case comes before us on exceptions before judgment.
The respondent claimed that he obtained the property and its possession from two young men who had it in charge for the owner and for sale, and who gave him a bill of sale thereof, and that he had no wrongful or felonious intent in obtaining it and disposing thereof.
On the other side it was claimed in behalf of the People that the respondent had followed the young men and the property from Kalamazoo to Cadillac, where through fraud and false pretenses- to them, and with the felonious intent to defraud the owner of the property, he contrived to secure possession of the same under a pretended bill of sale, paying nothing therefor, and subsequently sold the property to another party.
Upon these theories the case was tried and the jury found a verdict against the defendant. The respondent moved before the circuit judge for a new trial. The motion was heard and granted. A second trial was had with a like result.
At the close of the People’s proofs, the respondent’s counsel moved for his discharge upon the ground that a case of larceny was not disclosed by the evidence. This motion was denied by the court and we think he ruled correctly. Motion was then made for a new trial based upon two grounds — -first, that the verdict was against law and the evidence given in the ease; second, that the sheriff did not keep the jury in a private place till they rendered their verdict, but brought them from their room into the court-room about an hour before they rendered their verdict. It does, however, appear that they were not permitted to leave their room until after they had agreed upon the verdict and the judge so finds the fact.
We are not permitted to 'review the discretion of the circuit judge on a motion for a new trial, but if we were we see nothing in this motion requiring the court to-grant it.
There were no exceptions taken to the charge, which seems to have been well considered. The only question raised upon the bill of exceptions is, Was respondent entitled to his discharge when the People rested their case ? We have carefully examined the record and the points presented by the respondent’s counsel and we are clearly of the opinion that the case was a proper one for the jury, and that the circuit judge committed no error in so ruling.
The trial seems to have been very fair and the case clearly presented to the jury on the law, which we have no doubt was properly regarded, and the decision upon the facts we cannot disturb.
The circuit judge is therefore advised to render judgment upon the verdict.
The other Justices concurred. | [
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Sherwood, J.
On the 3d day of February, 1883, the plaintiff, by George A. Farr, its attorney, sued out of the ■circuit court for the county of Ottawa, a writ of attachment against the property of defendants. The attachment was founded upon an affidavit of the attorney for plaintiff, ■stating in substance, among other things, that he had good reason to believe, and did believe, that the said defendants were about to sell, assign and dispose of their property with intent to defraud .their creditors, and that they had sold, .assigned, disposed of and concealed their property with the like intent, and that the said defendants fraudulently contracted the debt respecting which the suit was brought. The claim upon which the suit was commenced was a promissory note made by the Michigan Barge Company for the sum of $5000, due February 23, 1883, and indorsed by Ferry '& Bro., that being the firm name of the other two defendants. The defendant, The Michigan Barge Com pany, as appears from the record, was composed of defendants Thomas W. Ferry and Edward P. Ferry, and John Furlong, Henry GL Bigelow, Andrew Thompson and Dwight “Cutler. The stock of the company consisted of $200,000, in shares of $25 each, and the defendants Ferry owned all of it except $675, which was divided among the other stockholders, — F urlong having $600, and the other three $25 each. The property of the Barge Company consisted of thirteen barges and several other boats, and an interest in others. On the day the attachment issued, the sheriff of Ottawa county levied the same upon eight vessels of various kinds belonging to the defendant, the Barge Company.
On the 5th of May, 1883, the Barge Company filed its petition in the circuit court in said county of Ottawa, and moved thereon for a dissolution of the attachment. A hearing was had upon the petition before the circuit judge, who, on the 26th day of June, 1883, entered an order dissolving the attachment, and restoring the property attached to the defendant. These proceedings are now before us for review on certiorari.
The proceedings are taken under Comp. L., ch. 201 [How. St. ch. 275.] They are judicial, and not according to the course of the common law. Chandler v. Nash 5 Mich. 416. The statute requires the circuit judge or circuit court commissioner to hear the proofs and allegations of the parties, and if a good and legal cause for suing out the writ is not satisfactorily made to appear to the court upon such hearing, it is his duty to dissolve the attachment and order the property restored to the defendant. The affidavit of the plaintiff, his agent or attorney, is prima facie sufficient cause for issuing the writ; but upon the facts being denied in the petition for a dissolution, the burden is cast upon the plaintiff to make good the cause he alleges by other competent proof in addition to that contained in his affidavit for the writ. He must maintain the affirmative of the issue thus made up in order to sustain his lien created by a levy under his writ. Macumber v. Beam 22 Mich. 395; Brown v. Blanchard 39 Mich. 790; Powers v. O'Brien 44 Mich. 317. The writ issued upon his information and belief that the causes alleged existed. He is called upon by the petition for dissolution to sustain by proofs his charges. Hyde v. Nelson 11 Mich. 354. So far as the original suit is concerned, the application to dissolve is entirely an interlocutory proceeding and does not touch or affect the merits thereof. Edgarton v. Hinchman 7 Mich. 352; Gray v. York 44 Mich. 415. It is in the nature of a motion may be disposed of at chambers. Gray v. York supra. A hearing, however, is required, and a tidal of a question of fact must be had; and there is no reason why the rules governing the trial of such issues should not be applied by the court upon the hearing. Questions both of law and fact are to be adjudicated by him. Chandler v. Nash supra. In this case sufficient proof of either of the three causes alleged in the affidavit for the writ to satisfy the circuit judge, would secure a continuation of the lien obtained.
We cannot review the decision of the circuit judge on the testimony unless there is an entire absence of proof on some material point. Brown v. Blanchard supra; Cicotte v. Morse 8 Mich. 424; Berry v. Lowe 10 Mich. 9; Hyde v. Nelson 11 Mich. 353; Linn v. Roberts 15 Mich. 443; State Bank of Fenton v. Whittle 41 Mich. 365; Schall v. Bly 43 Mich. 401. Questions of law arising in the ease, when properly presented, are open to review in this Court. Hyde v. Nelson supra; McGraw v. Schwab 23 Mich. 18; Johnson v. De Witt 36 Mich. 95.
Keeping these rules in mind, we now proceed to the examination of the questions raised upon the record and the rulings of the circuit judge in the cause.
On the 12th day of June, 1883, the hearing on the application to dissolve was had before the circuit judge. On the 19th day of May previous, one Joseph O’Brien replevied four of the boats from the sheriff, three of which were being proceeded against at the time in the United States 'District Court for the Western District of Michigan in admiralty by other parties.
The plaintiff produced testimony (which was undisputed) from the annual reports of the Michigan Barge Company, made pursuant to law (Comp. L. § 2688), showing that in 1882 the amount of its capital stock actually paid, in was $200,000; that nothing remained unpaid, and it owed nothing ; and that in 1883 it owed but $2601.51. T. W. Ferry was its president and Andrew Thompson was its treasurer, and at some time, through one or both of these officers, the -company procured a rating at Bradstreet’s Commercial Agency as owning property worth $200,000, while the plaintiffs testimony strongly tends to show that the property was not worth more than $100,000, several of the witnesses putting it below $70,000. It further appears from the i-ecord that the plaintiff obtained the note in suit from the firm of Joseph W. Orvis & Co., in New York city, in December, 1882, and that during the three months previous said firm placed upon the market and sold paper made by different parties and indorsed by Ferry Bros, to the amount of $70,000; that the indorsements were made by Thomas W. Ferry ; and that $25,000 of said paper was given by the Michigan Barge Company, $20,000 becoming due December 20, 1882, and one note of $5000 was due the 23d of January previous. After this paper had been presented to Orvis & Co., T. W. Ferry assured them that it was perfectly good, “ as good as could be made,” and referred Orvis & Co. to the rating of the Barge Company and of Ferry Bros, (the latter being represented as worth $250,000 to $500,000) in the commercial agencies, and gave them to understand that his firm and the Barge Company were entitled to these several ratings, and referred the purchasers to these ratings to show the financial condition of the parties whose paper was offered for sale; and that Orvis & Co., relying upon their statements, purchased the paper and in a few days thereafter sold the note sued on to the plaintiff upon the representations of T. "W. Ferry communicated to him by Orvis & Co. It further appears that when the moneys were received upon the paper disposed of by Orvis, it was ultimately passed to the credit'of T. W. Ferry with Gilman, Son & Co., in New York. At the time of the sale of the note in suit to Orvis & Co. and its transfer by them to tbe plaintiff, the testimony shows, and it is undisputed, that the indebtedness of the Barge Company', which was also secured by Ferry Bros/ indorsements, was between $50,000 and $60,000, of $35,000 of which E. P. Ferry admits he had knowledge.
From these facts the plaintiff asked the circuit judge to find that the indebtedness of the defendants in suit was fraudulently contracted. The court passed upon this question in the negative, and we cannot disturb that finding, provided he heard all the evidence offered upon that point, however much we might feel inclined to disagree with such finding.
T. ~W. Ferry at this time was president of the Barge Company, and his firm owned all but $675 of the $200,000 stock. He aided in the sale of the Barge Company’s notes, to the knowledge of its officers and managers. Ferry & Bro. not only controlled its operations, but were really the Barge Company; and we fail to see any good reason why the Barge Company should not be bound by T. ~W. Ferry’s representations so far as they had any bearing upon the sales and transfers of the note in suit.
Ve think the circuit judge erred in rejecting the report made by T. "W. Ferry to Bradstreet’s agency, and upon which the plaintiff: claims to have relied and acted in this-case. The business of these agencies is well known to the commercial community. Indeed it is said by Justice Rapallo, in Eaton, Cole & Burnham Co. v. Avery 83 N. Y. 31, that “ the business and office of these agencies are so well-known, and have been so often the subject of discussion in adjudicated cases, that the courts can take judicial notice of them. Their business is to collect information as to the circumstances, standing, and pecuniary ability of merchants and dealers throughout the country, and keep accounts thereof, so that the subscribers to the agency when applied to by a customer to sell goods to him on credit, may by resorting to the agency or to the lists which it publishes, ascertain the standing and responsibility of the customer to whom it is proposed to extend credit. A person furnishing information to such an agency in relation to his own circumstances, means and pecuniary responsibility, can have no-other motive in so doing than to enable the agency to communicate such information to persons who may be interested in obtaining it, for their guidance in giving credit to the party; and if a merchant furnishes to such an agency a wilfully false statement of his circumstances or pecuniary ability, with intent to obtain a standing and credit to which he knows that he is not justly entitled, and thus to defraud whoever may resort to the agency, and in reliance upon the false information there lodged, extend a credit to him, there is no reason why his liability to any party defrauded by those means should not be the same as if he had made the false representation directly to the party injured.” In these views of the learned judge we entirely concur. They are supported by Commonwealth v. Call 21 Pick. 515 and Commonwealth v. Harley 7 Met. 462. We think a person furnishing information to a commercial agency as to his means and pecuniary responsibility, is to be presumed to have done so to enable the agency to communicate the same to persons interested for their guidance in giving credit to him, and so long as such intention exists, and the representations reach the persons for whom they were intended, it is immaterial whether they passed through a direct channel or otherwise, provided they were reported by the agency as made by the party.
It is claimed the representations given by Ferry to the agency were in writing, and the plaintiff did not offer the original. The original was copied by the witness, and then it was handed back to Ferry. Plaintiff gave defendant’s attorney notice to produce the original, which was not done, and Ferry was m Europe. Under the circumstances we think the testimony offered was proper, and should have been received.
It is not claimed that the note in suit was not lawfully given by the Barge Company; and the record, we think, tends to show that these notes were under T. W. Ferry’s control from the time they were issued until sold, and were sold under his direction and for his benefit, with the assent of the Barge Company; and under such circumstances the company must be bound by Berry’s doings in the matter. Its liabilities are no less than an individual’s would be under like circumstances.
It is the duty of this Court in reviewing proceedings in this class of cases to consider the rulings of the circuit judge in excluding testimony which is competent and relevant in support of plaintiffs case where the attachment has been dissolved ; otherwise the plaintiff might be deprived entirely of the benefit of his writ, when his evidence was at hand to show the intent to defraud charged against defendant. In nothing that has ever been said by this Court was a contrary ruling intended. Witness Akeley testified that he was acquainted with the Barge Company’s property, and that he held a mortgage on the property. Counsel for plaintiff then asked witness the following questions:
“ Of $20,000 ? On what particular barges ? ”
“ Was there any consideration passing from you to the company for that mortgage ? ”
“ Have you ever paid the company anything for the mortgage ?”
Each of these questions was objected to and the objection sustained. One of the causes mentioned in the affidavit upon which the writ issued was that defendants had disposed of their property with the intent to defraud their creditors. Certainly the amount for which the mortgage was given, and whether anything had been paid for it, were material facts bearing upon that point; and the plaintiff was entitled to the testimony called for.
Several of the officers of the company were examined by the plaintiff’s counsel to ascertain the situation of the property of the Barge Company, the amount of its indebtedness and by whom and when it was held. Answers were given with great apparent reluctance, and it was with much difficulty that any information at all could be obtained uf>on the points desired. While the secretary and treasurer of the Barge Company denied, on the application to dissolve the attachment, that it was about to dispose or had disposed of its property with intent to defraud its creditors, he was unable to give the amount of its indebtedness or what disposition had been made of its properly.
Further discussion of the case is unnecessary. The errors mentioned relieve us from the consideration of the other points raised by counsel.
The order of the circuit judge dissolving the attachment must be set aside and the application dismissed with costs of both courts.
The other Justices concurred. | [
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Champlin, J.
Bennett died April 3,1881, and his estate was being administered in the probate court of Wayne county. Commissioners were appointed to hear and allow claims against the estate. Mary F. Smith presented to the commissioners for allowance a promissory note máde by the decedent, a copy of which is as follows:
“$366.53. Plymouth, April 30, 1877.
“ .On demand after date, for value received, I promise to pay Mrs. F. Smith or bearer, three hundred and sixty-six 53-100 dollars.
This note was signed by Mr. Bennett. On presenting the note to the commissioners, Mrs. Smith was sworn by them and examined respecting matters concerning the note which, if true, must have been equally within the knowledge of the deceased. She was not represented by attorney. She was interrogated by one of the commissioners, and her statement was taken down by a stenographer brought there by the commissioner for that purpose. The commissioners disallowed the claim, and she appealed to the circuit court, and on the trial in that court the claimant introduced the note in evidence and rested her case.
The defendant then produced T. C. Sherwood as a witness, to whom were exhibited ten checks, and he testified that the signature thereto was the genuine signature of d H. Bennett. They were all payable to bearer, except one dated February 26, 1878, which was payable to Mary F. Smith or order, for $90.58. This check was endorsed with the name of Mary F. Smith, respecting which signature the witness testified thaf he was familiar with the signature of plaintiff, and that in liis opinion the signature of Mary F. Smith to this check was genuine; that he would not swear that it is hers; that the checks were all paid at the First National Bank at Plymouth, because they bore the cancellation mark of that bank. The witness further testified that on or about September 29, 1877, he met deceased and plaintiff in Plymouth, and deceased told him, in the presence of plaintiff, to pay her one hundred dollars and endorse it on the note; that Mrs. Smith said that she had not the note with her; that. Bennett directed him to' pay her the money, and he would give him a check for it; that he paid her the money and made out a check, and deceased signed it a day or two afterwards, and that check was given to the bank as a voucher for the money he paid to plaintiff. It also appeared from the testimony of this witness, who was the cashier of the bank, that Bennett was in the habit of drawing checks payable to persons in his employment, or bearer, and presenting them himself at the bank, and drawing the money to pay his men. The checks produced were selected from a large number of similar ones, and from these five are selected by defendant’s attorney, which aggregate the sum of $367.11, being fifty-eight cents more than the amount of the note. Two of these checks were those above-mentioned, dated September 29,. 1877, and February 26, 1878. The others bore date, and were payable as follows: April 30, 1877, to Mrs. F. Smith or bearer, $59.58 ; July 21,1877, to Mary Smith or bearer, $100; January 11,1878, to Mrs. M. F. Smith or bearer, $20.
On the examination before the commissioners she was questioned respecting these checks, and on the trial in the circuit the commissioners were sworn for the estate and were permitted to testify to what the plaintiffs swore to before the commissioners in response to questions put to her by them. These were offered and admitted on the ground that they were admissions of claimant, the tendency of which admissions went to show that she had received the checks from Bennett to apply as payment upon the note. After reading the checks in evidence, the defense rested. The claimant was then called in her own behalf, and gave testimonj>' explanatory of her delay in not collecting the note during the life-time of Mr. Bennett, and also contradictory of the testimony relative to her admissions, given by witnesses for the defense. She was asked: “Did you state before the commissioners that this note was given for a balance due ?” To which she replied: “ I don’t think I did; it certainly has not been paid.’.’ Although no objection was made to this reply the court directed the last part of the answer to be stricken out. Counsel then called her attention to the testimony of the witness Sherwood relative to the payment to her of the $100, and then put to her the following question: “You may state as "to your recollection of any such transaction as that ”. This question was objected to on the ground that it was matter equally within the knowledge of Mr. Bennett and the witness, and the testimony was excluded. On the cross-examination she was examined at length as to the testimony given by her before the commissioners, and also in regard to matters which were generally within the knowledge of the deceased; after which the plaintiff rested her case. Whereupon the defendant’s counsel then read in evidence Mrs. Smith’s testimony before the commissioners, taken by his clerk, a stehographer. This testimony, as before stated, related almost exclusively to matters equally within the knowledge of Mr. Bennett and the claimant.
We think the method of proceeding adopted by the defense in this case, in introducing the commissioners to prove the ad missions made by tbe claimant before them on tbe hearing of her claim called out by them on their examination of Mrs. Smith made it competent for her to testify fully upon the subject-matter of such admissions. Where a party whose testimony, if objected to, would be excluded under the provisions of the statute (2 How. St. § 1545) is giving testimony' in a cause, and the opposite party calls out facts equally within the knowledge of the deceased, and after-wards seeks to prove the.statements so made under oath in. a controversy between the same parties, as admissions, he must be held to have waived the inhibition of the statute, and the witness may testify fully in respect to the subject-matter of the admission, although it be equally within the knowledge of the deceased. When, therefore, in this case the defendant had placed the commissioners on the witness stand and proved the admissions made by Mrs. Smith in her testimony given before them relative to the payment of the note and the checks, it was competent for Mrs. Smith to testify relative to the same subject-matter that the note had not been paid, and it was error for the court to strike out such testimony, or exclude her evidence upon the points covered by such admissions, and if the court afterwards treated the testimony thus erroneously stricken out as being in evidence, it was not error.
The defense requested the court to charge the jury as follows: “1. If the note in suit was paid by Mr. Bennett in his- life-time to Mrs. Smith she cannot recover. 2. If Mrs. Smith received the money on the checks offered in evidence, and the $100 which Mr. Sherwood swears he paid her, she cannot recover. 3. If Mrs. Smith received the money on the checks offered in evidence, and the $100 which Mr. Sherwood swears he paid her, the burden of proof is upon her to show that the money was not paid to be applied on this note. 4. If Mrs. Smith was paid any money by Mi’. Bennett or his agents, after the date of the note in question, the amount or amounts so paid must, under the testimony in this case, be deducted from the amount of the note. 5. The checks of Mrs. Smith show that she received the amount of money mentioned in the checks.”
The court refused to charge each of these requests, and defendant excepted thereto. A request to charge must be founded upon some testimony in the cause in order to constitute error in case of refusal, and we find no testimony returned in this record to base the first request to charge upon.
A showing that the note was payable on demand and was not presented for payment for four years, did not raise a presumption that the note was paid in the life time of the maker. No period short of that prescribed by the Statute of Limitations is sufficient to raise a presumption of payment.
The second request was properly refused. As the case was left at the close of the testimony, it was not an admitted fact that if she had received the checks and the money paid her by Mr. Sherwood, such checks were given toward the payment of the note. It was a question for the jury to determine, and it was an element in the controversy which the request ignored.
The third request, relating to the burden of proof, was rightly refused. The debt was established by competent evidence, and the burden of proof was upon the debtor to show payment of the debt. Adams v. Field 25 Mich. 16; Wakeman v. Akey 29 Mich. 308. Merely showing that Mrs. Smith received the money on the checks offered in evidence, and the $100 which Sherwood says he paid her, would not show payment of the debt. The cheeks may have been given for the purchase price of goods or for money advanced for some particular object other than the payment of the note, and hence the burden of proving payment by the debtor was not discharged until he had shown that the checks were received as payment. The judge charged the jury substantially that if Mrs. Smith received the checks or the money on them in payment of the note, she could not recover. This issue as to whether the plaintiff received the money on the checks produced in evidence as payment of the note in question was submitted by the court to the jury, and they found against the defendant.
The subject-matter of the fourth request was given to the jury with proper instructions. The court stated to the jury the substance of the testimony of Mr. Sherwood respecting the payment to her of one hundred dollars at the request of Mr. Bennett. He also commented upon the testimony of Mrs. Smith, wherein she states that she had no recollection of receiving the $100; and then the court used this language:
“ The general rule of law is that where the testimony is positive of a witness, a fair, candid person, and the cashier seems to be so — the rule is that unless that testimony is denied by some preponderance of proof, why, unless you have some reason to believe the other witness, you would be entitled to receive that as true, viz.: that there was $100 paid to Mrs. Smith. He states further that he drew a check — at least filled up a check — at the request of Mr. Bennett, simply as a voucher for this $100 which was given to Mrs. Smith, so as to keep his cash account straight at the bank.”
Mr. Frazer. “ I will ask your honor to state that it was simply a note that was paid.”
Gourt. “ That is what I said; there was no special note described; she may have had half a dozen notes.”
To this last remark of the court the defendant excepted; and if it appeared that the defendant was prejudiced by the remark, it would be ground for reversal. It is evident, however, that the jury did allow and deduct from the amount of the note the $100 referred to; consequently the error does not prejudice the defendant.
The fifth request to charge is clearly erroneous. It assumes that Mrs. Smith indorsed the check. This was a fact for the jury to determine, and the request was therefore properly refused. Exhibit A is the check referred to by the witness Sherwood as having been drawn by him and signed by Bennett, as a voucher between him and the bank. The record does not state the objection made to its admission. The fact of payment had been proved prior to the making of the check, and the plaintiff was not shown to have had any connection therewith. Its only purpose was that of a voucher between Bennett and the bank, and it was properly excluded as evidence against the plaintiff.
Complaint is made of the language of the court in charging the jury wherein he says : “ He (referring to Mr. Yoorhees) says that these checks were produced, and he says that she says that she didn’t remember anything about it; and then again supposed that they were right &c. But she comes upon the stand and denies that flatly. She says that that note was not paid, and that the checks did not pay it;” and defendant claims that there was no testimony to justify it. The record discloses the fact that there was a direct conflict between the testimony of Mr. Yoorhees and the plaintiff, relative to what occurred at the interview she had with him concerning the checks and note; and on page eleven of the printed record she says: “ I said, I don’t recollect anything about these checks, Mr. Yoorhees ; this I do know, I have never had my pay upon that note, and I propose to do something about it.” And again, “ That she didn’t acknowledge to Yoorhees the payment of the checks, but told him she did not remember anything about the checks.” Moreover we think the trial judge fairly submitted the testimony given by these two witnesses to the jury in his charge from which we quote as follows :
“Now, gentlemen,in conclusion,if you believe that Mrs. Smith admitted to Mr. Yoorhees, or before the commissioners when she was sworn — if you believe that she admitted to them that these checks were not only paid to her, but that they were paid to take up this note, why of course, that would be the end of the case ; it would show the note was paid. But if you do not believe these cheeks were delivered to her for the purpose of payment upon this note, or if you do not believe that they were delivered to her at all (as I said before, it does not follow that they were delivered to her, — on their face it merely gives her name) and if you do not believe that these checks were delivered to her, of course the defendant does not make out his case, because the defendant must 'satisfy you by what is called preponderance of proof that this note is paid. It is matter entirely for you, gentlemen, to determine what weight you will give this testimony. If you believe Mrs. Smith, this note is not paid; but if you believe the testimony on the part of the defendant that these checks were intended to apply, and did apply and did constitute payments, why they would pay this note except some eighty-five cents, with regard to which a mistake is claimed.”
Nothing further need be said. We find no errors that justify a reversal of the judgment. It must be certified to the circuit court for the county of , Wayne that no error appears in the proceedings before it, the claimant to recover costs of this Court.
The other Justices concurred. | [
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] |
Sherwood, J.
The bill in this case was filed on the 6th day of May, 1882, against the defendant and one John T. Manley. On the 28th day of October, 1882, on payment of all costs, the bill of complaint was dismissed as to John T. Manley. The complainants were a firm doing business hr Detroit, and at the time the bill was filed were creditors of John T. Manley to the amount of $3872.89. The goods for which this credit was given were obtained by Manley between the 1st day of January and the 20th day of March, 1882. On the 24th day of January, 1882, Manleyr, to obtain the goods, made a statement to the complainants showing he had merchandise on hand worth about $7000, and other assets amounting in the aggregate to $23,628, and that liis liabilities were $3000. On the 4th day of April, 1882, the defendant Cumings obtained a judgment against John T. Manley by default, in the Superior Court of Grand Rapids, for the sum of $19,186.90, service having been obtained upon Manley in Grand Rapids a few days prior thereto. About the middle of April, 1882, the complainants sued out a writ of attachment in the court of common pleas in the county of Fulton, in the state of Ohio, and levied it upon the property of Manley in that county. This seizure however was confronted by a prior alleged attachment levied in a suit brought by Cumings upon the Grand Rapids judgment in the common pleas court in Fulton county aforesaid.
The bill in this case was filed to obtain a decree declaring the Grand Rapids judgment and the notes upon which it is based, fraudulent, and a writ to enjoin the defendant Cumings from talcing any steps to enforce the judgment, and from talcing any proceedings in any suit in this State for the recovery thereof, or making use of it in the court of common pleas in Ohio for the purpose of establishing priority of lien over that of complainants. The circuit judge by decree granted the relief prayed and defendant appeals.
No demurrer was interposed to the complainants’ bill; neither was the benefit of one claimed in the answer. The answer denies all the fraud charged in the bill and admits the indebtedness to complainants, and Manley’s insolvency as alleged. The property attached and the lien sought to be protected as against defendant’s pxdor lien lies in the state of Ohio.
The coux-ts of this State have no jurisdiction in or control over any of the pxnceedings of courts in the state of Ohio. Her courts then cannot be interfered with, as courts, in their action in enfox’cing and protecting the rights of suitors in property lying within their several jurisdictions. We do xiot understand the injunction in this case to go or intend to go to that extent. The Superior Court of Grand Rapids may entei’tain a suit in equity to vacate or anxend a judgment obtained by imposition or fraud within its jxirisdiction ; but it cannot restrain an action brought upon such judgment in a neighboring state, nor dictate the proceedings therein. But a neighboring state will respect the decision of the Grand Rapids court annulling a judgment, when an action is sought to be maintained upon such judgment within its jurisdiction. Under the facts as they appear without dispute in this case, we think the complainants may proceed in equity to protect their levy by showing the Grand Rapids judgment void, without having first obtained judgment against Manley. Heyneman v. Dannenberg 6 Cal. 376; Tyler v. Peatt 30 Mich. 63; Hale v. Chandler 3 Mich. 531; Fearey v. Cummings 41 Mich. 376; Hinchman v. Town 10 Mich 508; Scales v. Scott 13 Cal. 76; Massie v. Watts 6 Cranch 148; Bank of Bellows Falls v. Rutland & Burlington R. R. Co. 28 Vt. 470.
The record in this case upon the subject of conspiracy and fraud is very voluminous, and we think shows that the defendant and John T. Manley did conspire together for the purpose stated in the bill of complaint, and that the credit obtained from the complainants was for a fraudulent purpose, and that it was in pursuance of and a part of such fraudulent scheme of the. defendant and the said Manley that suit was instituted in the Superior Court of Grand Rapids by the former against the latter, and a judgment obtained for the defendant in this case, which is now being-prosecuted inFayette county in the state of Ohio. ¥e think it is impossible to come to any other reasonable conclusion on reading the testimony in the case. It is unnecessary to review in detail the evidence in giving our views. It could be of interest to no one except the parties, and they are already familiar with all its various features and phases.
A large portion of the testimony was objected to, and notice was given by defendant’s counsel of a motion to suppress certain portions of complainants’ depositions, but the record does not show -that the motion was pressed or heard and no action appears to have been taken by the court in' the matter. In arriving at our conclusions in the case we have not considered such portions of the testimony as were objected, to and which were improper under the objections made.
Several questions were presented upon the argument which we do not find it necessary to discuss in passing upon the case, the question upon which the decision of the ease must rest being so largely one of fact. Neither can we overlook the superior advantages possessed by the court below in this case in determining the credit to be given to the testimony of the various witnesses.
We think the decree of the judge of the Superior Court of Grand Kapids, in chancery, should be affirmed and the complainants must recover their costs.
The other Justices concurred. | [
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Brickley, J.
In this case we must decide whether MCL 418.115; MSA 17.237(115) violates the Equal Protection Clauses of the state or federal constitutions by partially excluding plaintiffs employer from coverage under the Worker’s Disability Compensation Act and thereby denying plaintiff the ability to make a claim for disability benefits.
Plaintiff first worked for defendant in 1967. During the next few years plaintiff intermittently worked for defendant, mainly during haying and potato seasons. In the spring of 1969, plaintiff worked a couple of Saturday afternoons cultivating fields for defendant. In June of the same year plaintiff worked 2 to 3 days per week, 5 to 7 hours per day for defendant while working part time for another employer. Throughout that summer plaintiff worked 4 to 5 hours per week for defendant while also holding other jobs. In late August or early September, plaintiff began working full time for a Mr. Johnson. While still working for Johnson, plaintiff worked one day for defendant during potato season. On that day, September 30, 1969, plaintiff, then age 18, was injured.
The injury occurred when the plaintiff was caught in a self-loading wagon. As a result of the accident, plaintiff is a quadriplegic confined to a wheelchair. Plaintiff was eligible for lifetime medical benefits which have been supplied and are not at issue in this appeal. MCL 418.115(e); MSA 17.237(115)(e)._
Defendant’s two sons also worked for him. The elder, Bruce, owned his own farm in 1969, but still worked 10 to 20 hours per week for defendant and was paid a salary. The other son, Nelson, lived on defendant’s farm and worked there full time for a salary. When Nelson was away for five months in the National Guard, a neighbor worked 3 to 4 hours per day for defendant.
Two haying seasons occurred each year on defendant’s farm. During the first, defendant hired 4 to 5 full time employees for a 2 to 3 week period. Later in the year defendant would hire the same number of full time employees for approximately one week. During potato season defendant hired 8 to 10 people who worked approximately 20 hours per week for 2 to 2-1/2 weeks.
In 1977, the hearing referee awarded disability benefits on the basis of his understanding that Gallegos v Glaser Crandell Co, 388 Mich 654; 202 NW2d 786 (1972), held that the agricultural exclusion in § 115 was unconstitutional. The WCAB affirmed the referee in 1981, but substituted the board’s own narrative findings. Each member interpreted Gallegos differently, but all concurred in affirming the award of benefits.
The Court of Appeals denied defendant’s application for leave to appeal. Judge Cynak voted to grant the application. This Court subsequently remanded the case to the Court of Appeals for consideration as on leave granted. GCR 1963, 853.2(4); 413 Mich 872 (1982).
The Court of Appeals, in an unpublished opinion per curiam, decided April 1, 1983 (Docket Nos. 63830, 63831), affirmed the decision of the WCAB. The Court interpreted Gallegos to mean that "all distinctions between private and agricultural employers violate the equal protection clause of the Fourteenth Amendment.” The Court struck the words, "other than agricultural employers” from MCL 418.115(a), (b); MSA 17.237(115)(a), (b). It found that plaintiff was injured during a period in which the defendant regularly employed three or more employees at one time. Thus, it determined that at the time of the injury defendant was an employer subject to the act under § 115(a) as modified. The defendant and the Attorney General, appearing on behalf of the Second Injury Fund, applied for leave to appeal to this Court. We granted leave to appeal, 418 Mich 881 (1983), and now reverse.
The statute at issue in this case, MCL 418.115; MSA 17.237(115), provides:
"Sec. 115. This act shall apply to:
"(a) All private employers, other than agricultural employers, who regularly employ 3 or more employees at 1 time.
"(b) All private employers, other than agricultural employers, who regularly employ less than 3 employees if at least 1 of them has been regularly employed by that same employer for 35 or more hours per week for 13 weeks or longer during the preceding 52 weeks.
"(c) All public employers, irrespective of the number of persons employed.
"(d) All agricultural employers of 3 or more regular employees paid hourly wages or salaries, and not paid on a piecework basis, who are employed 35 or more hours per week by that same employer for 13 or more consecutive weeks during the preceding 52 weeks. Coverage shall apply only to such regularly employed employees. The average weekly wage for such an employee shall be deemed to be the weeks worked in agricultural employment divided into the total wages which the employee has earned from all agricultural occupations during the 12 calendar months immediately preceding the injury, and no other definition pertaining to average weekly wage shall be applicable.
"(e) All agricultural employers of 1 or more employees who are employed 35 or more hours per week by that same employer for 5 or more consecutive weeks shall provide for such employees in accordance with rules established by the director, medical and hospital coverage as set forth in section 315 for all personal injuries arising out of and in the course of employment suffered by such employees not otherwise covered by this act. The provision of such medical and hospital coverage shall not affect any rights of recovery that an employee would otherwise have against an agricultural employer and such right of recovery shall be subject to any defense the agricultural employer might otherwise have. Section 141 shall not apply to cases, other than medical and hospital coverages provided herein, arising under this subdivision nor shall it apply to actions, brought against an agricultural employer who is not voluntarily or otherwise subject to this act. No person shall be considered an employee of an agricultural employer if the person is a spouse, child or other member of the employer’s family, as defined in subdivision (b) of section 353 residing in the home or on the premises of the agricultural employer.
"All other agricultural employers not included in subdivisions (d) and (e) shall be exempt from the provisions of this act.”
In Gallegos, the plaintiffs also challenged the constitutionality of § 115(d). There the plaintiffs were migrant workers employed to harvest cucumbers. They were compensated on a piecework basis and were injured during their employment. The WCAB denied each plaintiff’s claim for benefits on the authority of the piecework exclusion and correctly ruled that it did not have the authority to decide the constitutional question.
The Court of Appeals granted plaintiffs’ application for leave to appeal and subsequently affirmed the decision of the WCAB. Gallegos v Glaser Cran dell Co, 34 Mich App 489; 192 NW2d 52 (1971). The Court stated the issue before it as follows:
"The precise question then is whether the creation of classes within the act, thereby allowing for coverage to permanent salaried or wage-earning [farm] laborers while denying coverage to temporary piecework laborers (such as migrant workers) is such unreasonable and arbitrary discrimination as to deny the latter equal protection of the laws guaranteed by the [state and federal constitutions].” 34 Mich App 491-492.
After deciding that the plaintiffs’ rights to travel were not violated, the Court further held that "it cannot be said that the legislative decision to amend the act so as to include certain farm laborers while continuing to exclude others was arbitrary or totally without reason.” Id., p 497. Finally, the Gallegos Court of Appeals stated: "In upholding the constitutionality of [§ 115(d)(3)] i.e., the exclusion of piecework farm laborers, we in no way imply approval of the [legislative treatment of migrant workers].” Id., p 498.
This Court granted leave to appeal in Gallegos and "the arguments of appellants and appellee [each] posit[ed] the issue as piecework.” (Williams, J., concurring in part and dissenting in part, 388 Mich 676.) Specifically, in Gallegos the "[pjlaintiffs argue[d] that the exclusion from workmen’s compensation benefits of those agricultural workers who are paid on a piecework basis * * * denies those workers the equal protection of the laws.” (T. G. Kavanagh, J., concurring in result, id., p 670.)
The majority in Gallegos held that "the provisions of § 115(d) * * * violate[d] the plaintiffs’ rights to equal protection” under the state and federal constitutions. Id., p 659. Notwithstanding the narrow issue before the Court, the bulk of the majority opinion discussed the different treatment given agricultural employers and nonagricultural employers under § 115 generally. The majority stated that its "difficulty [was] with the classification of agricultural employers” because "[agricultural employers * * * are accorded a special treatment and classification of their employees not accorded any other private or public employer.” It thus held: "[s]uch treatment is impermissible, clearly discriminatory, and has no rational basis.” Id., p 668. Plaintiff in the case at bar argues that "[t]his language demonstrates beyond dispute that the Gallegos Court moved to strike down all distinctions based on the classification of agricultural employers.” Plaintiff concludes that Gallegos means that agricultural employers "must provide coverage to the same extent and under the same circumstances as non-agricultural employers.”
Clearly, it was not necessary for the majority in Gallegos to decide whether it is permissible for the Legislature to distinguish between the two types of employers in order to decide whether employees paid by the piece and those paid by wages may be treated differently. Nonetheless, the majority did so hold. We now find that because Gallegos was decided on issues not necessary to the resolution of the case and without a lower court record or briefing on the broader issue of distinctions between employers, it is now necessary to undertake a further analysis of that issue. Our inquiry, then, is whether the Legislature may exempt from the WDCA certain agricultural employers without violating plaintiff’s right to equal protection of the law.
The standard of review for social and economic legislation generally is applicable to evaluate provisions of the workers’ compensation act in question here. Johnson v Harnischfeger Corp, 414 Mich 102, 113; 323 NW2d 912 (1982). This legislation is primarily social and economic, involving property rights, not fundamental rights, and is so subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. The statute will be set aside only if there is not any set of facts which can reasonably be conceived to justify it. McAvoy v HB Sherman Co, 401 Mich 419, 453; 258 NW2d 414 (1977). Where the legislative judgment is drawn in question by an equal protection challenge, a court’s inquiry must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Thus, we must uphold the validity of § 115 unless plaintiff bears his burden of showing that the classification therein is arbitrary and does not bear a rational relation to the object of the legislation. Johnson, supra, p 113.
Michigan’s first workers’ compensation statute was 1912 (1st Ex Sess) PA 10. Under the act, farm laborers, domestic servants and casual workers were treated differently than all other employees. 1912 (1st Ex Sess) PA 10, § 2. In 1943, farm laborers were expressly excluded from coverage under the workmen’s compensation act. 1943 PA 245, § 2a. In 1965, the Legislature revised much of the workmen’s compensation act, including the section which has since evolved into § 115. 1965 PA 44, § 2a. The 1965 version of the agricultural exclusion is essentially similar to § 115 with respect to the provisions at issue in this litigation. The legislative intent as to 1965 PA 44, § 2a, is accordingly relevant to a determination of the purposes and object of the current partial agricultural exclusion.
Prior to the 1965 revision, a concurrent resolution was adopted by the House of Representatives and Senate authorizing a joint special interim committee to investigate and study the entire structure of the workmen’s compensation system in Michigan. The committee report stated the following with respect to agricultural employees:
"The Committee received substantial testimony, both pro and con, with respect to covering additional labor by the Act. At the present time both agricultural and domestic servant labor can be covered on a voluntary basis. Reports indicate that the total year-round farm labor force in the State of Michigan, including family help and hired labor, is approximately 149,500 persons. This figure, however, includes farmers themselves, farm wives, sons, daughters, and other relatives. It appears that the aggregate number of full time hired farm workers is between three and five thousand persons. The Committee heard testimony alleging that the costs would be prohibitive to bring all agricultural, workers within the Compensation Act. However, there is a strong argument for bringing permanent agricultural employees and domestic servants under the purview of the compensation law. It is the recommendation of the Committee that consideration be given to additional coverage for these groups.” 1965 Journal of the House, pp 77-78. (Emphasis added.)
Thus, it appears that the Legislature exempted certain smaller agricultural employers from WDCA coverage because it believed that coverage would create an undue-economic burden on them. The Legislature further intended to bring larger agricultural employers and their permanent full time employees under coverage. All other private employers are covered if they regularly employ three or more employees at one time or if they have regularly employed one person for 35 or more hours a week for 13 weeks or longer during the preceding 52 weeks. § 115(a), (b). We are required to uphold the validity of § 115 if the employer classifications are rationally related to the purpose of preventing undue hardship to agricultural employers by exempting them from the WDCA in certain circumstances.
We hold that the classifications drawn by the statute are rationally related to the permissible goal of recognizing the economic uniqueness of Michigan’s agricultural employers.
The Legislature could have reasonably concluded that agricultural employers needed to be protected from the additional overhead of workers’ compensation insurance premiums. The Legislature could have further decided that an excessive administrative burden on small agricultural employers would result if WDCA coverage were required. The casual and often familial nature of agricultural employment might make it administratively onerous for small agricultural employers to determine which employee should be covered. For example, small farmers often trade labor between themselves, friends, neighbors, and family. Requiring the small farmer to keep records on and insure each casual or temporary employee could effect a serious drain on time and resources.
The wisdom of this policy of partial agricultural exclusion is not before us, nor is the question whether a similar exclusion should have also been given to other small businesses. It is settled that legislation will not fall merely because the Legislature does not address all evils at one time. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979).
The lawmakers could also consider the fact that farmers, unlike those in other sectors of the economy, ordinarily have no power to raise their prices to absorb the additional overhead costs occasioned by premium costs of workers’ compensation insurance. Ross v Ross, 308 NW2d 50, 53 (Iowa, 1981).
Since the plaintiff has failed to show that a separate classification for agricultural employers in § 115 bears no rational relationship to a legitimate legislative goal, we hold that the challenged classification is constitutionally sound and does not violate plaintiff’s right to equal protection of the law.
Any portions of. Gallegos inconsistent with this opinion are hereby overruled.
Turning to the statute as applied to the instant case, we find that the facts are undisputed. The defendant did not have three or more regular employees who had worked 35 or more hours per week for 13 consecutive weeks prior to the accident. § 115(d). The last sentence of § 115 provides in part: "All other agricultural employers not included in [§ 115(d), (e)] shall be exempt from the provisions of [the WDCA].” Hence, except as the parties have agreed with respect to medical benefits under § 115(e), the defendant was exempt from coverage under the WDCA at the time of the injury, thereby rendering the plaintiff ineligible for benefits.
Reversed and remanded.
No costs as a public question is involved.
Williams, C.J., and Ryan, Cavanagh, and Boyle, JJ., concurred with Brickley, J.
Clerk’s Note: The following opinion was filed December 28, 1984, but was revised after the signing of the majority opinion._
Const 1963, art 1, § 2; US Const, Am XIV. The plaintiff merely argues that Gallegos v Glaser Crandell Co, 388 Mich 654; 202 NW2d 786 (1972), applies to this case. Defendant, however, argues that Gallegos does not apply or, alternately, that the classification included here is constitutionally permissible. The Court of Appeals based its holding on the Fourteenth Amendment to the United States Constitution. Our conclusion is the same under either.
The first haying season begins near the end of June and lasts 2 to 2-1/2 weeks. The second haying season occurs in late August and lasts approximately one week. Potato season starts at the end of September and continues for 2 to 2-1/2 weeks.
In light of our holding, we find it unnecessary to decide whether defendant regularly employed three or more employees at one time within the meaning of § 115(a) at the time of plaintiffs injury.
Under 1943 PA 245, § 2a, employers of farm laborers could voluntarily bring their employees under the workmen’s compensation act by-purchasing a valid compensation insurance policy for their benefit.
The argument that this separate classification of agricultural employers is necessarily a deprivation of the employee’s rights is debatable in view of the fact that the workers’ compensation system involves a tradeoff of the employees relinquishing their common-law tort remedies in favor of the lesser burden of establishing a valid claim for benefits. Agricultural employees not covered by the WDCA, of course, retain the common-law right to sue their employer. | [
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Levin, J.
The question presented in these consolidated cases is whether a defendant in a criminal case may, after a conditional plea of guilty, appeal a decision denying a motion to suppress evidence.
We hold that he may do so where, as here, the defendant could not be prosecuted if his claim that a constitutional right against unreasonable search and seizure was violated is sustained and the defendant, the prosecutor, and the judge have agreed to the conditional plea.
I
Gregory Jordan and Allen Reid were charged with kidnapping, armed robbery, and criminal sexual conduct. During the investigation, evidence was obtained on the basis of a warrant sworn to by Philip A. Denomme, Youth Officer for the Bloomfield Township Police Department. Denomme stated in the affidavit that a confidential informant, who had been reliable in the past, impli cated Jordan, Reid, and David Hardy in the abduction and rape under investigation.
Relying on Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978), and alleging that the warrants were based on an affidavit that was either false or made in reckless disregard of the truth, the defendants joined in a pretrial motion to suppress the evidence obtained on the basis of the warrant. A hearing was held at which Denomme and two other police officers testified that they had been present when the informant provided the information included in Denomme’s affidavit. Denomme also testified that he had later paid the informant $100 for the information supplied at the meeting. A fourth officer testified regarding the informant’s statement that he had information regarding the incident. The defense called the informant, who testified that, although he had met with the officers and told them he knew the defendants, he had denied any knowledge of the incident. The judge denied the motion to suppress, and defendants subsequently pled guilty to reduced charges.
Under the terms of their pleas, all three defendants reserved the right to appeal the denial of their motion to suppress. After sentencing, defendants appealed.
In Jordan, the Court of Appeals affirmed the defendant’s conviction in an unpublished memorandum opinion. The Court of Appeals held that a conditional guilty plea is valid, and affirmed the denial of the motion to suppress.
In-Reid, a different panel of the Court of Appeals ruled that a conditional guilty plea is invalid and said that a defendant may not plead guilty while reserving the right to appeal and then on appeal challenge the validity of a search warrant. Reid’s plea was set aside and the cause was remanded either for the taking of an unconditional plea of guilty or for trial. Justice Cavanagh, then a Judge of the Court of Appeals, writing in dissent, would have sustained the validity of the conditional guilty plea.
II
A defendant’s right to appeal a criminal conviction is secured by the Michigan Constitution. A defendant may voluntarily and knowingly waive that right.
Jordan and Reid argue that the judge did not have the authority to accept a conditional plea and thus that they pled guilty without an adequate understanding of the value of commitments made to them in exchange for their pleas. This misapprehension, the defendants argue, rendered their pleas involuntary and requires that the pleas be set aside and their convictions reversed.
We disagree. We hold that a defendant may appeal from a denial of a Fourth Amendment or a Const 1963, art 1, § 11 search and seizure claim where, as here, the defendant could not be prosecuted if his claim that a constitutional right against unreasonable search and seizure was vio lated is sustained and the defendant, the prosecutor, and the judge have agreed to the conditional plea.
A
The United States Supreme Court has ruled that a guilty plea does not insulate all claims from review. In Blackledge v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628 (1974), the Court held that a defendant had a right, although he had pled guilty, to claim on appeal that the trial court was without jurisdiction. Federal courts have also held that a guilty plea does not waive a claim on appeal that the conviction is violative of the Double Jeopardy Clause, that the statute pursuant to which the defendant was charged is unconstitutional, or that the indictment or information does not state an offense.
Some federal courts allow a conditional guilty plea whenever a substantial constitutional claim is involved. Although the United States Supreme Court has not squarely considered the validity of a conditional guilty plea, it has, in dictum, spoken with apparent approval of a New York statute allowing a conditional plea. _
It is well established in this state that a defendant may appeal from a conviction on a plea of guilty claiming that the procedure for taking a plea of guilty prescribed by GCR 1963, 785.7 was not followed, that he was not provided with the opportunity to obtain counsel, or that the plea was not an understanding and voluntary plea or was otherwise obtained in violation of his constitutional rights.
In addressing the question whether a defendant may appeal from a plea-based conviction, this Court has not adhered to a strict "jurisdictional/ non-jurisdictional” distinction. In People v Alvin Johnson, 396 Mich 424, 444; 240 NW2d 729 (1976), this Court said that notwithstanding a plea of guilty, a defendant may raise "the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally obtained evidence without which the people could not proceed * * (Emphasis supplied.)_
In People v White, 411 Mich 366, 387; 308 NW2d 128 (1981), this Court extended the rationale of Johnson to include the claim of entrapment, stating that "[a] claim of entrapment does not involve an assessment of guilt or innocence, but rather expresses a policy that there should be no prosecution at all. In this respect, it is like a jurisdictional defect which is not waived by a plea of guilty.”
The people acknowledge that they could not have proceeded with this prosecution without the evidence that Jordan and Reid sought to suppress.
B
It has been asserted that allowing a defendant to plead guilty and thereafter to appeal a non-jurisdictional issue could result in further overcrowding of the appellate courts. The state, however, has no legitimate interest in discouraging a defendant from appealing an adverse ruling in order to reduce the appellate caseload. The issues involved in an appeal may not be presumed to be frivolous.
The procedure for interlocutory review of a defendant’s pretrial motion does not provide an adequate opportunity for appellate review of trial court rulings. Such review is granted only infrequently, not as a matter of course. In any event, if interlocutory review is granted, it presents no less a strain on appellate resources than appeal following a plea of guilty or trial.
A defendant may have a legitimate legal defense notwithstanding his factual guilt. As Justice Cav- Anagh stated in dissent in Reid, "[a] qualified plea does not cause the courts to consider claims to which a defendant 'was not entitled.’ It merely allows a defendant to say, 'Yes, I did the act, but I contest the state’s ability to present its case against me.’ There may be a number of reasons why a defendant would feel he had a legitimate legal defense to the state’s prosecution, but that it would be futile or impossible for the defendant to say that he did not do the act with which he was charged.” 113 Mich App 262, 269; 317 NW2d 589 (1982).
It is argued that permitting an appeal from a guilty plea would deprive the plea of finality, create delay, and interfere with the deterrent effect of punishment. In cases where the defendant chooses to go to trial in order to preserve his right of appeal, however, not only is finality not achieved, but a successful appeal may result in two trials and two appeals. See People v Reid, supra, p 270 (Cavanagh, J., dissenting).
Ill
Jordan argues that the evidence obtained on the basis of the search warrant should be suppressed pursuant to Franks v Delaware, supra. In that case, the United States Supreme Court held that
"where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”
A hearing was held after the informant said that he had not made statements to the police implicating the defendants in the Bloomfield Township abduction, rape, and robbery. The judge determined that the defendants had not sustained their burden, enunciated in Franks, of showing by a preponderance of the evidence that Officer Denomine had recklessly or intentionally made false statements in the affidavit upon which the search warrant was based.
The defendants argued in the circuit court that if, as here, the informant denied having made the statements attributed to him by the officer, the inquiry must come to an end and the affidavit must be reviewed with the challenged material set to one side. We decline to take such a narrow view of the scope of the Franks hearing. At a Franks hearing, evidence may be suppressed only upon a showing that false material essential to probable cause was knowingly or recklessly included. Both the people and the defendant may present evidence.
In the case before us, three police officers testified that they had been present when the informant made the statements implicating the defendants. The judge found that the defendants had not sustained their burden of showing that the affidavit contained false statements. We conclude that his decision was not clearly erroneous.
IV
In sum, we hold that a defendant in a criminal case may, after pleading guilty, appeal a decision denying a motion to suppress evidence where, as here, the defendant could not be prosecuted if his claim that a constitutional right against unreasonable search and seizure was violated is sustained and the defendant, the prosecutor, and the judge have agreed to the conditional plea. If they so agree, the defendant may offer a conditional plea of guilty, and, after his conviction on such a plea, he may appeal from the adverse ruling on his search and seizure claim. If the defendant’s claim is sustained on appeal, he may withdraw his plea of guilty.
The convictions are affirmed.
Williams, C.J., and Kavanagh and Brickley, JJ., concurred with Levin, J.
MCL 750.349; MSA 28.581.
MCL 750.529; MSA 28.797.
MCL 750.520b; MSA 28.788(2).
This Court denied an application by David Hardy for leave to appeal. 419 Mich 853 (1984).
113 Mich App 262; 317 NW2d 589 (1982).
Const 1963, art 1, § 20.
See, e.g., People v Alvin Johnson, 396 Mich 424, 439; 240 NW2d 729 (1976); Tollett v Henderson, 411 US 258, 267; 93 S Ct 1602; 36 L Ed 2d 235 (1973).
Jordan and Reid pled guilty pursuant to an agreement with the judge and the prosecutor that their pleas would not constitute waivers of their right to appeal the denial of their motion to suppress. Because their pleas were accepted on the understanding that their right to appeal that issue was not waived, their pleas did not waive their right to appeal the suppression issue. Regardless of one’s view of the conditional plea, these defendants must either be permitted to appeal on the merits or have their pleas set aside.
Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975).
Haynes v United States, 390 US 85; 88 S Ct 722; 19 L Ed 2d 923 (1968); United States v Ury, 106 F2d 28 (CA 2, 1939).
Kolaski v United States, 362 F2d 847, 848 (CA 5, 1966).
See United States v Burke, 517 F2d 377 (CA 2, 1975); United States v Mendoza, 491 F2d 534 (CA 5, 1974); United States v Clark, 459 F2d 977 (CA 8, 1972) But see United States v Benson, 579 F2d 508 (CA 9, 1978); United States v Matthews, 472 F2d 1173 (CA 4, 1973); United States v Cox, 464 F2d 937 (CA 6, 1972).
Lefkowitz v Newsome, 420 US 283, 292-293; 95 S Ct 886; 43 L Ed 2d 196 (1975).
Three states provide by statute that a defendant may appeal an order denying a motion to suppress evidence, notwithstanding a prior plea of guilty. California Penal Code, § 1538.5(m); Wisconsin Statutes Annotated, § 971.31(10); New York Code Crim Proc, § 710.70(2) (McKinney).
Other states authorize conditional pleas by judicial decision. See, e.g., Nickels v State, 545 P2d 163 (Alas, 1976); Cooksey v State, 524 P2d 1251 (Alas, 1974); State v Hutchinson, 349 So 2d 1252 (La, 1977); State v Lain, 347 So 2d 167 (La, 1977); Dorsey v Cupp, 12 Or App 604; 508 P2d 445 (1973). But see, e.g., State v Dorr, 184 NW2d 673 (Iowa, 1971); State v Turcotte, 164 Mont 426; 524 P2d 787 (1974).
More than one commentator has suggested that there is no clear and useful definition of the term "jurisdictional”:
"The obvious difficulty with 'jurisdictional error’ is that it is not self-defining; it is a label one attaches to those constitutional defenses that are already determined — by some anterior standard — to deserve to be heard.
"In conclusion, for purposes of defining the kinds of claims that survive a guilty plea, the notion of jurisdictional error is either fallacious or useless: if understood in its technical sense as a term of art, it fails to explain the cases; if understood more broadly as a term for the guilty plea cases alone, it is superfluous.” Westen, Forfeiture by Guilty Plea — A Reply, 76 Mich L Rev 1308, 1330-1334 (1978).
A study of conditional guilty pleas concludes that "[e]xperience with conditional pleas in New York and California indicates that a relatively small number of additional appeals are generated; no 'flooding’ of appellate courts has resulted.” Note, Conditional Guilty Pleas, 93 Harv L Rev 564, 573 (1980).
The Court of Appeals did not reach this issue in Reid. | [
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] |
Champlin, J.
Complaint was made against the defendants and one Charles Peters before a justice of the peace of the township of Grant, Clare county, for a violation of the Act of 1881 relative to the sale of spirituous liquors. The complaint was as follows:
“ On the 22d day of July, A. D. 1882,' at the village of Clare, in the county aforesaid, (the said- 22d day of July, A. D. 1882, being a week day,) Burton Husted, Charles Peters and Frank Parish, (he, the said Burton Husted, not being a person whose business it is and -was at that time to deal in drugs and medicines), did not close at the hour of nine o’clock on said 22d" day of July, A. D. 1882, a certain saloon in the village of Clare, in said county, which said saloon he, the said'TBurton Husted, was then and there the proprietor and keeper, the said saloon being then and there a place in said village where malt, spirituous, and intoxicating liquors were sold at retail. But that the said Burton Husted kept, the said saloon open on the said 22nd day of July, A. I). 1882, until twenty minutes past eleven o’clock in the afternoon of said day, contrary and in violation of Act 259 of the Session Laws of 1881.
“And the said Charles Peters and Frank Parish being then and there clerks, servants and agents of the said Burton Husted, and they as such clerks, servants and agents of said Burton Husted, not being persons whose principal business it is and was at that time, to deal in drugs and medicines, either for themselves or for their principal, Burton Husted, did not close at the hour of nine o’clock on the 22d day of July, A. D. 1882, a certain saloon in the village of Clare, in said county, which said saloon one Burton Husted was then and there the proprietor and keeper, the said saloon being then and there a place in said village where malt, spirituous, and intoxicating liquors were sold at retail. But that the said Charles Peters and Frank Parish kept the said saloon open on the said 22d day of July, A. I). 1882, until twenty minutes past eleven o’clock in the. afternoon of said day, contrary and in violation of Act No. 259 of the Session Laws of 1881.
On the trial before the justice, Husted and Parish were-convicted, and appealed to the circuit court where they were again! tried before a jury and found guilty.
The defendants then moved in arrest of judgment upon the ground that “the complaint made in said cause, and upon which the defendants were tried, does not charge any offense under the law.”
The statute under which complaint was made reads as follows:
“ All saloons, restaurants, bars, in taverns or elsewhere, and all other places where any of the liquors mentioned in sections one and two of this act are or may be sold, or kept for sale, either at wholesale or retail, shall be closed on the first day of the week, commonly called Sunday, on all election days, on all legal holidays, and until seven o’clock of the following morning, and on each week-day night from and after the hour of nine o’clock until seven o’clock of the morning of the succeeding day.” [How. St. § 2274.]
The particular defect claimed to exist in the complaint consists in failing to charge that the saloon was not closed from and after nine o’clock at night, but uses the term “afternoon,” the word “night” not appearing in the complaint. It is a well-settled rule of criminal pleading that a complaint or information upon a statute must state all the facts and circumstances which constitute the statutory offense ; but, except in cases where the statute enumerates several elements'as combining to create a crime, it is not necessary that the words of the statute should be precisely followed; and words of equivalent import or more extensive signification which necessarily include the words used in the statute, may be substituted. The complaint is clearly within the rule. It alleges that on the 22d day of July, 1882, being a week day, defendants did not close their saloon at the hour of nme o’clock, but kept it open until twenty minutes past eleven o’clock in the afternoon of said day. This is equivalent to saying that the defendants did not keep their saloon closed on that particular “ week-day night from and after the hour of nine o’clock until seven o’clock of the morning of the succeeding day.”
Counsel for defendant insists that the complaint names an impossible time, and he cites Webster’s and Worcester’s unabridged dictionaries to prove that the word “ afternoon ” signifies from “noon” until “ evening,” and that “night” is the time from sunset until sunrise. Accurately and properly speaking the definitions are correct. But we think the distinction as applied to the complaint in this case is too critical. The pleader was not referring to the period of time between “ noon ” and “ evening,” but to the hours that had elapsed since the hour of noon, and when that is ■stated to be until twenty minutes past eleven o’clock'it is pretty certain that in this latitude it was after the hour of nine o’clock at night.
The circuit court is advised to proceed to judgment.
The other Justices concurred. | [
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] |
Graves, C. J.
On the 29th of November, 1882, Com-stock filed his petition under the provisions for enforcing mechanics’ liens (Comp. E’. ch. 215, as amended by Act 258 of the session of 1879) [I-Iow. St. ch. 290] on the equity side of the Superior Court of Grand Eapids. It was ordered to be presented on the 9th of December. December 6th .an amendment was filed, and on the same day the petitioner took a subpoena to answer, returnable -in twenty days from the 18th of December. It was teste’d in the name of the judge of “ the Superior Court of Grand Eapids, at the city of Grand Eapids,” and was served the same day. January 6, 1883, the defendant entered his appearance by solicitor and required service of a copy of the petition. January 30, 1883, the defendant put in a general demurrer. It was headed as follows: “State of Michigan—The Superior Court of the City of Grand Rapids—Charles C. Comstock, petitioner v. Charles P. McEvoy, defendant."
The petitioner thereupon gave notice that on the 28th of April he would “ call up in said court for disposition a certain paper writing purporting to be a demurrer,” etc., '“which writing had found a place in the files of the Superior Court of Grand Eapids in chancery,” in the “ cause of Charles C. Comstock v. Charles P. McEvoy." April 30th the following order was made: “ This cause being brought on before the court upon objections on the pa/rt of sañdpetitioner to the hearing of a certain demurrer on file herein, for the reason that said demurrer is not entitled in this cov/rt, and counsel having been heard for the respective parties, — Everett D. Comstock, of counsel for said petitioner, in support of said objections, and Henry E. Eallass, of counsel for defendant, in opposition thereto, — and due -deliberation being thereon had. Thereupon it is ordered, adjudged and decreed, and this court doth hereby order, ad judge and decree, that said objections are not well taken, and! that said demurrer is sufficiently entitled in this court, and that said defendant is entitled to be heard thereon; whereupon it is ordered that the hearing on the said demurrer do-now proceed.” May 3d the court allowed the demurrer with costs. The order made no provision in terms for dismissing the petition, but it seems to have had the effect to-put an end to the proceeding. So both parties have regarded it. The petitioner appealed, and stated in his claim that he appealed as well from the order of April 30th as from that of May 3d dismissing his petition.
The objection that the caption of the demurrer was erroneous, because in giving the style of the court three superfluous words were inserted, is the merest technicality. Whenever a party proposes to hold his adversary to the utmost strictness in a matter of practice he virtually demands the application of the same stringent rule to himself, and if he would take advantage of a harmless deviation he must be certain that his steps therefor are absolutely faultless. The rule is here applicable. If the inaccuracy pointed out was sufficiently serious to be made the object of a motion, it was not perfect practice to move that the demurrer should not be heard. It was not precisely regular to ask for such relief. The proper application was to have the demurrer taken off the files. The assumption to deal with it differently was,, technically speaking, an implication that it had a place in the cause, and if it had the court could not regularly disregard it. But the objection had no merit under any view.
Had the variance appeared in an affidavit or in some other sworn paper, and where it would be possible for questions to arise under the lawr against perjury, it may be that the matter would stand on more important reasons than any which exist now. The paper was an unsworn pleading. There was no ambiguity. There was no halting between two courts. The court described was the'very same court from which the subpcena emanated. The laws creating the courts are public, and we know that Grand Bapids has only one Superior Court and that it is a municipal court; and virtually, as styled by the demurrer, “ the Superior Court of the city of Grand Bapids.” The added words did no harm. No one could be misled and the court might well consider them as surplusage. With great propriety they might have been stricken out.
Passing to the causes of demurrer we have no occasion to notice more than one, and that is that in the case stated by the petition, the supposed lien had become extinct several months before the petition was filed. The basis of the lien was the furnishing of lumber for respondent’s building.
The statute regulating the subject provides — -first, that the claimant must file in the office of the register of deeds the notice specified in Comp. L. § 6790 [How. St. § 8378] and serve a copy; second, that within thirty days succeeding the furnishing the material he must make an affidavit of the amount actually due him over and above all set-off, and for which he claims such lien, and file it in said office, and at the same time file therewith proof by affidavit of due service of the notice of lien on the other party. But immediately following this emphatic requirement we find a clause which looks to a non-compliance with it, and undertakes to determine what shall be the effect. The words are ‘‘and unless such affidavits are so filed such lien shall cease and determine as to all persons except as to such owner, part owner, lessee, or person holding under any land contract or otherwise.” Third. Then comes another section, which declares positively that the lien shall not continue more than sixty days after the filing of the foregoing affidavit of amount due, unless proceedings have meanwhile been commenced for the enforcement of the lien. See Pub. Act No. 258 of 1879.
It appears from the petition that the claimant’s debt was due and payable on the 8th of April, 1882, and that the lumber which formed the consideration was furnished prior thereto. And we have seen that this proceeding was not commenced until November 29th, or nearly eight months afterwards. Neither of the affidavits provided to be filed has been made. And this fact, it is claimed on the part of the petitioner, tabes the case out of the operation of the sixty-day clause altogether, and confers perpetuity on the lien as between the original parties.
This is not a correct construction. No doubt all parts of the statute are to be consulted, and as far as may be harmonized, and every clause be so interpreted, if practicable, that it may have some, real efficiency. If the thirty-day clause stood alone, it may be admitted that the effect would be to allow the claimant to withhold the affidavit and maintain his lien indefinitely against the debtor, or at least for the period allowed by the general statute of limitations. But the case is changed by the addition of the second provision. There the terms are positive. No discretion to the claimant is given or implied. True, the language is not as guarded as it should have been, but the sense is not fairly doubtful. The design is not hard to discover. The period of sixty days is fixed unconditionally. But according to the verbiage of the statute the days are to be counted from the filing of the affidavit, although, according to the words of the provision for that proceeding, the claimant may always, as in this case, omit to file the affidavit entirely. If the letter of the law is adhered to, the claimant may elect, in virtue of the prior clause, to make no affidavit, and thereby deprive the sixty-day period of any time to begin, and thus practically destroy it.
This sixty-day-provision was designed to protect the debtor or party sought to be charged, and it was not intended that the claimant should have the option to say whether it should or should not have substantial operation. The purpose was to prescribe a positive limit beyond which no proceedings could be newly commenced. But according to the argument in favor of the petition, the position of the claimant is just what it would be if this provision had not been inserted. It includes a permission to him to render it futile, and in so doing to perpetuate his hold upon the debt- or’s realty indefinitely or until cut off by some extrinsic provision. This brings the matter to a result which is most evidently untenable. Further reasons are at hand, but it is scarcely necessary to present them.
The provision in question confers no discretion on the claimant, and he is not invested with any dispensing power. The sixty-day period must run whether he files the affidavit or not. If he does file it, the sixty days will begin then; if he does not file it, it may be ascertained and allowed by going back to the time of the furnishing the materials, and including ninety days therefrom. In that case the two periods may be combined, and the essence of the provision will be preserved.
The conclusion is that the lien had ended before the petition was filed, and that the decision of the court below was correct and should be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
Newburn sued defendant in replevin to recover certain goods held by defendant as sheriff upon attachment levies against Mary E. Pierson, on which judgments had been rendered to something-over $1100. New-burn claimed to have bought the goods from Mrs. Pierson for the price of $1500, of which he had paid $300, the rest being put on short time. The testimony of Mr. and Mrs. Pierson agreed that the price was $1500, but that Mrs. Pier-son had not authorized her husband, who made the sale, to sell except for that amount in cash. Pierson testified that Newburn knew this, and that they together deceived Mrs. Pierson into supposing he had paid in full, and that she did not know of the fraud until after this attachment.
The court in substance instructed the jury that if the facts were as above stated the sale was void as to Mrs. Pierson and title never passed to Newburn, and she could not by subsequent ratification cut off the attachment. They were further instructed that if Mrs. Pierson sold the goods to Newburn for $300 cash and the rest on time, with intent to defraud her creditors, the plaintiff could not recover.
It is certainly questionable whether there was any evidence of her consent to such an arrangement or of any fraudulent intent. But if there was not, then the sale was, upon all the testimony, made without any authority at all and passed no title without further ratification. "We can .see no reason why in such a case Newburn can set up any rights against her creditors which he could not set up against herself. They, assert her title, and he is not entitled on such a transaction to prevail against her title. ITe took her property without right, and it did not cease to be hers. If she sold on the other terms, such a sale might, with the-surrounding circumstances, justify a jury in considering the question of fraud. In either case we think Newburn was liable to the consequences which the court below applied,, and the rulings were not erroneous.
The judgment must be affirmed with costs.
Sherwood and Champlin, JJ. concurred.
Cooley, C. J.
I have not been able to see how the creditors were at liberty to raise the question of the validity of the sale to the plaintiff under the facts of this case. The defect in the sale, if there was one, was an excess of authority in the agent in selling; and this the owner might or might not insist upon- as she pleased. Nobody else could make the election for her; and there is strong evidence of election in this case to affirm. | [
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] |
Campbell, J.
Plaintiffs being a firm known as Kinney, Adams & Co., sued defendant for items of an account verified under the statute. Defendant put in a plea accompanied by a sworn statement of set-off in a larger amount. Defendant recovered judgment for a balance, and plaintiffs bring error.
Objection is made that there was no regular notice of set-off. This objection has no force. The set-off was not only claimed, but sworn to. By stipulation the correctness of both sides of the account was admitted, but the question of the admissibility of the set-off was left open.
It is claimed that it could not be received, because it formed a part of unsettled partnership dealings. The plaintiffs in their firm capacity had formerly entered into an arrangement with defendant to carry on business on terms which, it is claimed, created a partnership. The items of set-off consisted of the purchase price of half of defendant’s stock, which plaintiffs bought of him and put in as capital. Also of rent which they agreed to pay defendant for premises used in the business. By the agreement under which their respective rights arose defendant leased to plaintiffs, by their firm name, an undivided half of the premises and fixtures and appurtenances for two years at $250 for the first year and $300 for the second year, payable at the end of each year. They were also to buy one-half of his stock at cost, and at the end of two years defendant was to buy at cost their half of stock then to be on hand. There were further articles as to partnership rights and duties.
Plaintiffs claim that their obligation to pay defendant for the interest sold and leased was part of the partnership business, and payment to be made by partnership settle- meet. This is not the true view of the arrangement. Before they could put in any of this property as their own capital they must buy it, and until sold to them it was on no different footing than if owned by a third person. It was defendant’s separate property, and they could only get it by purchase. It could only be theirs to put in after they had bought it. The agreements to buy this stock and to pay the rent were separate transactions, preliminary to and independent of any of the partnership business.
If thus separate they might be prosecuted for like any other individual liability, and formed no necessary part of tlije partnership accounting. It could therefore make no difference if it were true, which is at least very doubtful, that in a chancery cause for such an accounting reference may have been made to them in the pleadings or testimony. A pending and undetermined chancery proceeding is no bar or obstacle in itself to a legal action, whatever may be the force of a final decree.
It is claimed further that the court below prevented plaintiffs from showing payment of the defendant’s claim. We find nothing in the record to indicate such a ruling. Some questions of an ambiguous character were ruled out on the ground that they involved an attempt to prove a parol agreement to vary a written one. Plaintiffs took no steps to correct this view of their proposition, and the court ruled correctly on the hypothesis thus tacitly accepted. No questions were asked calling for proof of actual payment beyond this.
There is no error in the record.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Sherwood, J.
There is no dispute about the facts in this case so far as it is necessary to consider- them in disposing of the questions raised. Jerome B. Waldo, late of Ingham county, died on the 18th day of- May, 1880. His two children and only heirs at law, the complainant and Mary Allen, claim that at the time of his death he was owner in fee of a large amount of real estate in Ingham county. The defendant (claiming to be his widow) holds the legal' title of record to the real estate in question, through two deeds made to her by Jerome B. Waldo before his death. But the heirs claim that she deeded it back to him before he died, and that lie held the deed (which was unrecorded) when he died. The defendant admits that the unrecorded deed existed, but claims that it was never delivered, and never was intended to be if she outlived her husband, Jerome B. Waldo.
The purpose and object of the bill of complaint in this case is to obtain a decree establishing the title in fee to the lands therein mentioned, in complainant and Mary Allen as children and heirs at law of deceased.
It appears from the record that Mary Allen, in May, 1881, filed her bill of complaint, making the parties to this suit defendants therein, for the purpose of accomplishing the same object sought by the bill in this case; that the case was finally heard on appeal in this Court on the merits, and the complainant’s bill dismissed. See Allen v. Waldo 47 Mich. 516.
Prom the facts as they now appear before us, the complainant should have joined with his sister as a party complainant in the first suit, but failing to do so, he was properly made a party defendant therein, and as such, is subject to all thé legal consequences necessarily resulting therefrom. The complainant was not only a party to that suit and the adjudication therein, but privy in blood and estate with the complainant in the same. Both were alike interested in the subject-matter of the litigation; both claimed under the same conveyance and as heirs at law of the same ancestor. They each claimed, not separate and distinct moieties, but equal, undivided interests in the entire property ; and we-think that if one is concluded by the final decision made in this Court in the former case, then equally so is the other. Prentiss v. Holbrook 2 Mich. 376; Hale v. Chandler 3 Mich. 535; Cooley’s Const. Lim. 47-51, and cases cited; 1 Greenl. Ev. §§ 180, 322, 323, 535, 536; Herm. on Estoppel §§ 46-49, 59.
The right now claimed by complainant could have been as fully asserted and maintained in the former suit as in this. It was competent for the court in that case, upon the pleadings and such proofs as were proper in the case, to make a decree determining and establishing the rights and interests of each of the parties without the necessity of a cross-bill or other proceeding for affirmative relief. 1 Barb. Ch. Pr. 339; Thurston v. Prentiss 1 Mich. 194; Elliott v. Pell 1 Paige 262; Jones v. Grant 10 Paige 348. The complainant was a necessary -party' in the first suit—see Story's Eq. Plead. (6th ed.) §§ 72, 150 and cases there cited — and being-such party he was a party to every issue joined and litigated in it that could in any way affect his intérests or his rights, and must be concluded by the decree upon -those issues, and if he did not maintain his rights the decree is no less binding so long as he had the opportunity and neglected to do so.
We think the first suit and decree are clearly a bar to the present action, and that the decree of the circuit judge sustaining defendant’s plea and dismissing complainant’s bill was right and must be affirmed with costs.
The other Justices concurred. | [
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Sherwood, J.
Plaintiffs during the years 1874, 1875, 1876, 1877 and 1878 were engaged in manufacturing and transporting square oak timber to market. The lumber was obtained in Gladwin county on one of the tributaries of the Tittabawassee river, and the latter was used by them in running the timber down to the Saginaw during each of those years. It was a navigable stream for floating rafts, logs and timber from Edenville to its mouth.
. The defendant is a corporation ; was organized in 1864, and during the years above mentioned was engaged in the business of running, driving, booming, rafting and delivering logs on the Saginaw, Tittabawassee, Chippewa and Pine rivers and their tributaries.
The plaintiffs, in their declaration, state their cause of action in six different counts, and allege, in substance, that the Tittabawassee is a navigable stream; that in each of the five years above mentioned they placed in said river rafts of square timber to be floated down the river, and that the defendant obstructed the navigation of the stream by means of booms placed across the river, whereby the plaintiffs’ rafts were stopped, delayed, broken up and some of the timber lost. Each count avers that the defendant placed its booms across the river, intending to prevent the plaintiffs from proceeding down the river with their timber, and the last three counts state that the defendant wrongfully, wilfully and unlawfully obstructed the navigation of the river by means of the booms — the cause of action as stated really being the act of the defendant in obstructing the navigation of the river without any right to do so, intending thereby to prevent the plaintiffs from floating their timber down the stream.
Defendant pleaded the general issue. The cause was tried by jury; at the close of the testimony the court directed a verdict for the defendant and judgment was entered in accordance therewith. The plaintiffs bring error. The return contains all the testimony given on the trial, and the only error assigned is the court’s instruction to the jury.
The statute under which the defendant corporation is organized sufficiently apprises the parties of what the defendant may lawfully do, and the evidence shows it has been conducting the business authorized ever since its organization, and there is no question made by the parties but that its field of operation extended to those portions of the Tittabawassee river where the obstructions complained of were made or occurred.
The defendant in doing its business placed a boom across the river a short distance above the village of Midland, known as Pier boom, and at a point about seven miles above the mouth of the river placed another, known as the Bryant trip, these two being among, if not the only, obstructions of which the plaintiffs complain. At least, it is claimed that the booms thrown across the river at each of these places caused the other obstructions from which plaintiffs claim to have been injured.
The logs which the defendant haft charge of were placed in the river above the booms, many of them coming in from the tributaries of the Tittabawassee, and the plaintiff’s logs when they entered the river, were preceded by several miles of logs several feet deep.
The Tittabawassee empties into the Saginaw river, and it is the business of the defend ant to take the promiscuous mass of logs, float them down the Tittabawassee, and at the booms separate and put them into rafts, and in that condition deliver them to their respective owners along the Saginaw ♦river or at the mills. The defendant has no control over the amount of logs to be put in the river, nor the manner of putting them in, and neither puts in any logs itself nor causes them to be put in. Many times it is necessary to stop the mass of logs going down the Tittabawassee river to allow those in the tributaries to enter it, and vice versa, in order to secure to each person an equal chance in the use of the river, and when this is done, and the river is full, the tendency is to cause a jam. In order to separate the logs and raft them, it is frequently necessary to place them in side or rafting booms, and many times considerable river space is required for that purpose. "The Bryant trip is used for the purpose of stopping the logs and letting them through into the side booms.
It does not appear from the evidence that the Bryant trip-was used for any other purpose. These booms were evidently intended to'facilitate the navigation of the stream, and are supposed to be placed at the most advantageous points for that purpose. We think the proofs clearly show that thejogs could not be safely handled without placing-them into rafts on the Tittabawassee river. When stopped, the logs form into a' jam or dense mass, piled one upon another, from bank to bank, so that a raft of timber above or in the jam cannot be moved any faster than the mass of logs until those below have been displaced or carried down the stream. The evidence shows the plaintiff’s timber rafts-were run down into the jams which formed above the Pier boom and Bryant trip, and were then delayed, and were-moved no faster than the logs forming the jams. No other obstructions are complained of. It is claimed by defendants-that the testimony tends to show that whenever rafts reached the boom or trip they were permitted to pass with as little-delay as possible.
The statute under which the defendant corporation was organized, authorized the formation of corporations for the purpose of “running, driving, booming and rafting logs” on any of the streams or waters within this State. They have power to acquire, use and hold, by lease or purchase, all such real and personal estate as may be necessary for the* purpose of carrying on the business of the corporation. The Act further provides that such boom or booms shall be so constructed and used, as far as practicable, as to allow the free passage of all boats, vessels, crafts, logs, timber, lumber and all other floatables along such waters. Power is also granted to make all necessary contracts “ for driving, boom, ing, rafting and running logs.” Sess. L. 1864, p. 23, secs. 1 and 14. By the Laws of 1873, section 14 was amended so that the proviso above referred to reads as follows: “and provided further, that such boom or booms shall be so constructed, and so far as practicable used, as to allow the free passage of boats, vessels, crafts, logs, timber, lumber, or other floatables along such waters.” This section was again amended in 1875, but the foregoing provision in relation to the construction of booms, was retained, and has since remained the same. Laws 1875, p. 30; Laws 1881, p. 237.
Under its charter the defendant has the pow'er and right on the streams where it may lawfully do business, to construct, use and maintain all necessary booms for its business, provided that such booms shall be so constructed and, so far as practicable, used as to allow the free passage of boats, vessels, logs and other floatables along such waters. The location, extent, manner of construction and number, is left to the determination of the defendant, subject only to the restrictions mentioned.
Any person has a right to use the stream" to the extent he may choose, provided he does not encroach upon the rights of any other person to do the same thing. Navigable streams are to be used in common and for commercial purposes, and no one person or company of persons, under enactments of the Legislature or otherwise, have the right to monopolize their use. They may be used by all persons having business upon them, and when many persons make use of them, and to the extent of their full capacity, there is danger from ■encroachments upon each others’ rights, and it is entirely proper for the government to regulate their use under such •circumstances, and it may very properly authorize corporations to look after and control, within reasonable regulations, their use by persons having business thereon. For this purpose the defendant corporation was organized, and, while acting under proper and reasonable restrictions in the performance of its duties, its action is legal, and it cannot be held liable, though damages result therefrom.
The statute does not limit the extent of the business which may be done upon the rivers. The defendant, therefore, is obliged to accept the condition of things as it finds it, and drive down the river and separate and deliver the logs and timber in the shortest time possible under the circumstances, when there is water sufficient to float the property in its charge. So far as relates to the use of the stream, defendant has the same rights, no more and no less, than each individual would have for whom it does business had they not employed the defendant to drive their logs.
As we have already said, the defendant puts no logs in the stream, neither is it authorized so to do. The preservation of a free passage of boats, logs and other property down the river is not made a condition to the company’s doing business, but it is required to preserve such “ free passage as far as practicable.” To say as far as possible would be, in some instances, to destroy the usefulness of the stream almost entirely, because the amount of logs carried down the stream might be so limited that no one person’s could touch those of any other, and thus, would be defeated the object of the law in making the stream a public thoroughfare, and the best interests of all the parties seriously jeoparded.
In determining whether in any particular instance it is practicable to preserve the free passage required by the law, it is necessary to take into account the size, character and capacity of the stream, and the extent of the business re quired to be done upon it. Much more difficulty is experienced in a small or shallow stream than in a large or deep one in preserving a free passage, when the streams are covered with logs, so that what may be considered best, most reasonable and practicable must necessarily depend upon the situation on any given occasion, and the amount of business to be carried on. It will also be readily discovered that when jams occur the logs must cease to run, and no man-can say to another: “You had no right to put your logs into the stream,” and it is equally true no man desires to obstruct the free passage of his neighbor’s or his own logs. Neither can logs, after they have gone promiscuously into the river, be selected out and each parcel placed in the raft or delivered to the owner, until they have been stopped long enough to be conducted into side booms for that purpose. These things are necessary to be done in carrying on the business of the defendant, and if proper care and expedition are used in so doing it is all that can be expected of defendant. By the defendants so doing, navigation of the stream is aided and improved and the transportation of property of all persons along the rivers greatly facilitated, and it is evident that without such aid the business in the vicinity of these rivers in the great lumber regions of our State could not be done.
It has always been proper to stop a mass of logs in a river for the purpose of securing the rights of several owners of the same, or to prevent their loss or destruction. Of course, when this is done on the small streams, navigation is of necessity for the time being impeded. The only question which can arise in such cases is whether the stoppage of the logs was done in a reasonably prudent manner, and was continued no longer than was necessary to accomplish the object. If there has been want of care and diligence, or any neglect on the part of the company, either in doing the business or in constructing the booms, and damage ensued, then it will be liable for the injury or damage which is the immediate and necessary consequence of such want of care and diligence, negligence or wrong.
If the defendant has any power which an individual has not, it is the right to construct booms in the streams necessary to facilitate the running of the logs, but not to delay them. Of course, whatever was done in this case was intentionally done by the defendant, and although no wrong or injury was intended by defendant to plaintiff, still, if such wrong was committed, it cannot escape the legitim ate1 and necessary consequences. During the years in which damages are claimed the defendant took charge of all the logs in the Tittabawassee river below the mouth of the Tobacco, which is a tributary, and in the vicinity of which the plaintiffs manufactured their square timber.
The plaintiffs’ testimony tends to show that in the fall of 1874, and during the winter following, they manufactured one thousand pieces of square oak timber, of which nine hundred and fifty pieces were rafted into cribs in the Tobacco river; that on April 7, 1875, cribs containing two hundred and fifty pieces were run out in the Tittabawassee and down the same within four or five miles of Midland pier ; that the pier was closed, causing a jam at that point, and by this obstruction the cribs were delayed six weeks. After passing this pier they ran down to Baily’s bridge, when they encountered another jam caused by the closing of Bryant trip. At this point they were delayed eight weeks, and thereafter they were four weeks in passing Bryant trip. So that they were from the 7th of April until about the 1st of September in running these two hundred and fifty pieces from Edenville to the mouth of the Tittabawassee. About the 15th of May, 1875, the remaining seven hundred pieces entered the Tittabawassee from the Tobacco, and after running down two miles below Eden-ville struck a jam caused by the closing of Midland pier. Of this parcel, 180 pieces were run through Bryant trip during the summer, the cribs having been broken in the jams; about 100 pieces were lost; 420 pieces were at great expense recovered from the bottom of the river and from the shores where they had been crowded out by the jam, and passed the Bryant trip about the 1st of July.
This statement of the operation of the defendants with the plaintiff’s timber sufficiently indicates its doings in each of the, other seasons claimed for, and we therefore omit further detail. We may, however, say that we discover nothing in the record showing any unusual stage of water in the Tittabawassee during either of the years mentioned.
The record also shows that plaintiffs were prevented from opening the pier or booms and breaking the jams by the defendant, and thus were obliged to take the timber below. Bryant trip at such times as defendant permitted them to pass that point. There is testimony tending to show that if the plaintiff had been allowed to break the jams and open' the booms asj requested, andas they might have done for the years 1875, 1877 and 1878, they could have run their timber from the mouth of the Tobacco to the mouth of the Tittabawassee, without the loss of any timber, within one week. There is also evidence tending to show that with a liberal expenditure of money on the logs in the Tittabawassee river in each of the years in which plaintiffs claimed to have been injured, the defendant might have greatly expedited the running of the plaintiff’s timber.
It is claimed in the plaintiff’s declaration, on the first count, after making the other proper preliminary averments, that said defendant, intending to pi-event said plaintiffs from proceeding with their said timber in, upon and along the waters of the Tittabawassee river, and to cause them great injury and damage by its agents and servants, did abridge and obstruct and dam said river at many points in such a manner as to greatly hinder, delay, prevent and prejudice the plaintiff in the free navigation thereof by placing booms across the river for that purpose, * * * whereby they suffered great damage. The second and third counts contain the same averments. The last three counts aver that the defendant by its agents and servants wrongfully, willfully and unlawfully did dam, abridge and obstruct the Tittabawassee at many points by placing booms across the river, intending thereby to prevent the plaintiffs from proceeding along the river with their timber and to cause ■them great injury and damage, and that they did thereby sustain great damage.
Under the declaration containing these averments the ■circuit judge held in his direction to the jury that the law gives the defendant the right to impede navigation to a certain extent, but no further than is necessary for carrying on the business it .authorizes. The company has a right to take the logs down, and if, after the exercise of reasonable skill and diligence, it delays parties above, it is not responsible. 'The court further stated, “Now, a man who commences a ■suit, must commence it upon a theory which will make the •defendant liable if the facts are proved. If the plaintiff in ^this case can recover, in my judgment it must be upon the theory that, in the exercise of the right given by law to this boom company, they were guilty of negligence, they were .guilty of carelessness, they did not do what the law granted them the right to do, or did it in an unlawful manner, and ■in consequence of that fact the plaintiff suffered damage.” And because the declaration did not recognize the right of defendant upon the river, and no negligence was charged therein, and none claimed to be shown by the plaintiff, the circuit judge directed the verdict for the defendant.
All obstructions to the free use of navigable streams are prohibited by the law of the land. Angelí on Water-courses, 554; Hart v. City of Albany 9 Wend. 571. Constitution .art. xviii, § 4. Still such free use or navigation does not necessarily mean navigation of the streams in their natural •condition unobstructed and unimpeded. Benjamin v. Manistee River Improvement Co. 42 Mich. 634.
The State may authorize the improvement of these natural highways by water; but it is precluded from doing so itself by article xiv, § 9 of the Constitution. This defendant was not authorized to improve the Tittabawassee river, but .simply to use it, for other parties, as a natural person might do,.to the extent of the powers granted to the defendant. This defendant corporation was created for the purpose of .aiding and facilitating the floatage of logs and timber along the Tittabawassee river, among others; and the statute does not authorize it to retard or destroy such floatage. Its busi-' ness was not to improve the channel of the river, but relieve its waters of their burden of logs. To obstruct the-natural and free passage of cribs and rafts of logs by the entire obstruction of the channel, was prima facie unauthorized and wrong. It was a public nuisance. Hall v. Tittabawassee Boom, Company 51 Mich. 377. The statute giving the defendant existence, can be invoked for protection only-in the performance of lawful acts.
The claim made in the declaration is for acts charged to-have been done wilfully and unlawfully, totally obstructing navigation on the river. The acts charged are not those of negligence arising from acts of omission or of commission,, but of prima- facie positive wrong, acts which the defendant has prima facie no right to do. "We think there was testimony tending to support these charges contained in the declaration. It clearly appears by the testimony of plaintiff’s witnesses, that in one instance the defendant, by reason of the course pursued, was from the month of April to the month of September in getting his logs from the mouth of the Tobacco to the mouth of the Tittabawassee, when one week would have been sufficient if the obstructions had been removed and the rafts been allowed to pass down with the natural current. The question of negligence was not necessarily involved in the case. The action is case, and the motives of the defendant’s agent are immaterial. Isle Royale Mining Co. v. Hertin 37 Mich. 332. The defendant sought to justify its action as necessary, reasonable, right and proper in the premises under its chartered authority. This necessarily involved a question of fact, which we think should have been submitted to the jury under proper instructions from the court.
The judgment must be reversed with costs and a new trial granted.
Campbell J. concurred.
Cooley J.
I think there was some evidence in this case to go to the jury, and concur in the reversal.
Graves C. J. concurred. | [
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Cooley, C. J.
The plaintiff, on October 25, 1882, took out summons against the defendant, from the circuit court for the county of Kalamazoo, and also at the same time caused William A. Gibbs to be summoned as garnishee of the defendant. The defendant at the time was understood to be out of the State, and he was proceeded against as a non-resident. The statute in such case permits of the service upon the defendant abroad, or of a substituted service within the State; allowing sixty days for the purpose. How. St. §§ 80S?, 8088. No service whatever was made in the principal suit within the time. For some unexplained reason two writs appear to have been taken out against the defendant at the same time, one of which was filed without action, and the other was returned 'by the sheriff some time after the return-day, with a return thereon that he was unable to serve it upon the defendant. A further summons, purporting to be an alias, was taken out February 8, 1883, which was duly served on the defendant. Subsequently, motions were made to dismiss both the original suit and the garnishment, and the motions were granted.
In dismissing the principal suit the circuit judge is understood to have proceeded on the idea that a suit under the statute to reach moneys and effects of a non-resident by garnishment, was a proceeding in rem, and if service failed to be made in some form within the statutory time it could not be kept alive by successive writs. We do not think this the proper view to take of the proceeding. If the defendant should come to the State so that service could be had, we have no doubt of the right of the plaintiff to take out an alias for that purpose. Indeed, the principal suit should proceed as in other cases whenever that is practicable; the exceptional service being only provided for cases in which the ordinary and more proper service cannot be made.
The judge was also of opinion that the alias writ was improperly sued out because the return on the prior writ was not in due form of law. The return was certainly informal, but the officer should have been directed to amend it if anything depended uppn its regularity in form. But if the last writ had no proper basis as an alias, it was not for that reason void. If the first suit had gone down, this should have been treated as a new writ for a new suit, and sustained accordingly.
The judgment must be reversed and the proceedings remanded.
The other Justices concurred. | [
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Cooley, J.
The only question important to the decision of this case is, whether an officer’s return of service of process is conclusive upon the parties to the suit in which the process issued, when brought in question in some collateral suit or proceeding.
Michels, it appears, on August 10,1874, procured an attachment from a justice of the peace against the chattels of Stork, and put it into the hands of Constable John Gnau for service. The constable made return that by virtue of the writ he did, on the 10th day of August, 1874, seize the goods and chattels of the defendant mentioned in the inventory annexed thereto, and that on the 12th day of August, 1874, he served upon the defendant a copy of the writ and inventory, duly certified by him, by leaving the same at his usual place of abode with his wife, a person of suitable age and discretion, whom he informed of its contents. What further was done in the attachment suit does not appear.
The present action is trover for the conversion of the property which the constable returned that he had attached. The plaintiff claims that the constable did not attach the goods at all, but that the officer and the defendant together took them away, and that they were immediately left by the officer with the defendant, and plaintiff never saw them afterwards. The officer was a witness in the case, and testified to having attached the goods and handed them over to defendant for safe-keeping; and the plaintiff in his testimony admitted that the officer told him there was an attachment on the goods at the time he and the defendant took them. It was contended, however, that the constable was not acting in good faith, and that the seizure of the goods was a mere pretense to get them into the possession of defendant.
The question in this Court arises upon the following instructions of the trial judge:
“ If Mr. Gnau made a levy upon those goods, seized them under an attachment, and they were in his possession, and he delivered up the possession of them afterwards to Michels, if that is all that took place, then Michels is not liable; lie would not be liable in trover, nor would he be liable in trespass. On the other hand, if this was a mere scheme between Gnau and Michels to get possession of those goods, and the writ of attachment was not levied in good faith upon the goods, but the mere determination was to get the goods in Michels’ possession, and Michels and Gnau understood it and did it for that purpose and no other purpose, then Michels would be liable.
“ So you see, gentlemen, it is a matter- of a good deal of importance to determine, in the first place, whether Mr. Gnau really served this writ of attachment on those goods. It does not make any difference whether he pursued the proper steps or not, because Michels would not be responsible for the conduct of the officer in that regard, unless he was an active participant in it and directed the officers to do that which was against the law.
“Now, Mr. Gnau’s duty undoubtedly was, when he seized those goods, to take them in his possession or pnt them in the possession of somebody who acted as his agent. The object of attachment is to seize the goods and have them forthcoming at the end of suit, provided judgment is-taken.
“ Now, if he put an attachment on the goods, really seized them, and you find the evidence shows that, that is the end of this case. I don’t care what was done afterwards; sufficient for the purposes of this case, neither the action of trespass nor of trover would lie. But if he and Michels went there and took possession of those goods for the purpose of giving them to Michels, and not for the purpose of levying the attachment, and it was not levied, then, never mind what the officer returned, Michels would be liable. That is all there is in it.
“ Now, you are to determine whether Mr. Gnau did really levy an attachment on that property or not. If he did, that, ends the suits. Tou are to determine, in the second place,, if he did not levy an attachment, whether he and Michels went there to get the goods into Michels’ possession simply for that purpose, and not for the purpose of levying the attachment. If Michels thought that Gnau had attached the goods, and Gnau had the proper papers to attach them —and for the purposes of this case I charge you that he did have — then Michels would not be responsible; that is, if he was acting in good faith in the transaction.
“Tou see the question is a very simple one. It all turns on whether Michels and Gnau went there for the purpose of levying that attachment or whether they went there for the purpose of giving Michels possession of those goods, without any regard to the attachment.
“ I charge, as a matter of law, it makes no difference what the officer returned, so far as Michels was concerned ; Michels had no direction or supervision over him in making a return ; if he never made any return on that attachment at all, that would not hold Michels responsible. The only part or object that any of these matters have in this suit is as coloring the conduct of Michels and the officer together. But if Gnau had levied that attachment without making any return, Michels would not be responsible, because he has no control over the officer. But it is for you to determine, as a matter of fact, whether an attachment was really put on.”
The purport of this instruction is, that the return is to be taken as prima facie evidence of the facts stated in it, but that it may be contradicted by parol evidence, and if the jury are convinced by such evidence that the return is untrue, they are at liberty to disregard it. And the jury in this case did disregard it, and gave judgment for the plaintiff, grounding their action upon a finding that no attachment had in fact ever been made.
Had the suit been brought against the officer for a false return, it is conceded that the plaintiff would have been at liberty to show the falsity of the return by any evidence fairly tending to show it. -He might do this also by affidavit on a motion in the same suit to set aside the return ; and this is not an uncommon proceeding when the truth of the return is disputed. Chapman v. Cumming 17 N. J. 11; Carr v. Commercial Bank 16 Wis. 50; Bond v. Wilson 8 Kan. 228; s. c. 12 Am. Rep. 466. It has also been held that the officer’s return may be contradicted in equity in a proceeding instituted to set aside a judgment founded upon it. Owens v. Ranstead 22 Ill. 161; Newcomb v. Dewey 27 Iowa 381; Bridgeport Savings Bank v. Eldredge 28 Conn. 556; Bell v. Williams 1 Head 229; Ridgeway v. Bank of Tennessee 11 Humph. 523. See Fowler v. Lee 10 G. & J. 358; s. c. 32 Am. Dec. 172; Leftwick v. Hamilton 9 Heisk. 310. It is also held that the officer’s return is not conclusive as to facts stated therein which he must learn by inquiry of others; as, for example, that the person upon whom the process was served was the incumbent of a certain corporate office, such as that of president of a bank. St. John v. Tombeckbee Bank 3 Stew. 146; Rowe v. Table &c. Co. 10 Cal. 441; Wilson v. Spring &c. Co. 10 Cal. 445. See Chapman v. Cumming 17 N. J.11; Sanford v. Nichols 14 Conn. 374; and compare State v. O’Neill 4 Mo. App. 221. And a person not a party or privy to the proceeding in which the return is made, is never concluded by it from showing the real fact. Nall v. Granger 8 Mich. 450. And where suit is brought upon a foreign judgment, it seems to be competent to disprove jurisdiction by showing, in contradiction of the officer’s return, that no service was made upon the party defendant. Knowles v. Gas-light &c. Co. 19 Wall. 58; Thompson v. Whitman 18 Wall. 457; Carleton v. Bickford 13 Gray 596; McDermott v. Clary 107 Mass. 501; Gilman v. Gilman 126 Mass. 26; s. c. 30 Am. Rep. 646; Bowler v. Huston 30 Grat. 266; s. c. 32 Am. Rep. 673; Lowe v. Lowe 40 Iowa 220.
None of these cases are analogous to the one before us ; but it must be conceded that there are cases which are directly in point, and which tend to support the instructions. Cunningham v. Mitchell 4 Rand. 189; Butts v. Francis 4 Conn. 424; Watson v. Watson 6 Conn. 334; Hutchins v. Johnson 12 Conn. 376; Smith v. Law 5 Ired. 197; Joyner v. Miller 55 Miss. 208; Abell v. Simon 49 Md. 318; Gary v. State 11 Tex. App. 527; Dasher v. Dasher 47 Ga. 320; Elder v. Cozart 59 Ga. 199; Jones v. Commercial Bank 5 How. (Miss.) 43; s. c. 35 Am. Dec. 419. The Georgia cases appear to be based upon a statute. If it were important now to examine the other cases critically, some of them might perhaps be distinguished, but their tendency is unquestionably as above stated.
On the other hand, the ruling of this Court in Green v. Kindy 43 Mich. 279 is distinctly adverse to the instructions. It was there held that the return of a sheriff to a writ of replevin, in which he certified that the plaintiff in the suit had not filed a forthcoming bond, was conclusive upon the parties, and would preclude any such bond being set up. This case, which seems to have been overlooked on the trial, is in entire accord with the English authorities. Anonymous Lofft 372; Bentley v. Hore 1 Lev. 86; Flud v. Penington Cro. Eliz. 872; Rex v. Elkins Burr. 2129; Harrington v. Taylor 15 East 378; Goubot v. De Crouy 2 Dowl. P. C. 86. But it is also in accord with the great preponderance of authority in this country. In New York the doctrine was strongly asserted in a case in which a constable had served his own process, which the law of that state allowed. “The constable’s return,” says the court, “is conclusive against the defendant in the cause in which it is made. He cannot traverse the truth of it by a plea in abatement or otherwise; but if it be false, the defendant’s remedy is in an action against the constable for a false return.” See Allen v. Martin 10 Wend. 300; Boomer v. Laine 10 Wend. 525. In Pennsylvania it was said in an early case: “ It is a well-settled principle, applicable to every case, that credence is to be given to the sheriffs return; so much so, thatthere can be no averment against it in the same action. A party may make an averment consistent with the sheriff’s return, or explanatory of its legal bearing and effect, where the return is at large; but he cannot aver a matter directly at variance with the facts stated in return, and contradictory to it, and showing it to be false. If a party be injured by the false return of the sheriff, his remedy is by action on the case against the sheriff who makes it.” Knowles v. Lord 4 Whart. 500; s. c. 34 Am. Dec. 525. Like decisions were made in Zion Church v. St. Peter’s 5 W. & S. 215; Diller v. Roberts 13 S. & R. 60; and the doctrine is recognized in Paxson’s Appeal 49 Penn. St. 195. It has also been distinctly and strongly affirmed in Massachusetts cases. Slayton v. Chester 4 Mass. 478; Bott v. Burnell 11 Mass. 163; Winchel v. Stiles 15 Mass. 230; Bean v. Parker 17 Mass. 591; Campbell v. Webster 15 Gray 28; Dooley v. Wolcott 4 Allen 406. In New Hampshire it is said: i£ As between the parties, the return of the sheriff is conclusive upon all matters material to be returned; and cannot be contradicted by such parties or their privies, or by bail, endorsers, or others, whose rights or liabilities are dependent upon the suit. The remedy for a false return is by suit against the sheriff, and not by defeating the proceedings in which such return is made.” Bolles v. Bowen 45 N. H. 124, following Brown v. Davis 9 N. H. 76; Wendell v. Mugridge 19 N. H. 112; Angier v. Ash 26 N. H. 99; Messer v. Bailey 31 N. H. 9; Clough v. Monroe 34 N. H. 381. To the same purport are the Kentucky cases. Trigg v. Lewis’ Ex’rs. 3 Litt. 129; Smith v. Hornback 3 A. K. Marsh. 379. In Vermont and Maine the cases in Massachusetts have been followed with approval. Eastman v. Curtis 4 Vt. 616; Swift v. Cobb 10 Vt. 282; Wood v. Doane 20 Vt. 612; Stratton v. Lyons 53 Vt. 130; Gilson v. Parkhurst 53 Vt. 384; Stinson v. Snow 10 Me. 263; Fairfield v. Paine 23 Me. 498; s. c. 41 Am. Dec. 351. Tlae decisions in Indiana are to the same effect. Rowell v. Klein 44 Ind. 290; Splahn v. Gillespie 48 Ind. 397; Stockton v. Stockton 59 Ind. 574; Clark v. Shaw 79 Ind. 164. So are those in North Carolina, Arkansas, Minnesota and Nebraska. Hunter v. Kirk 4 Hawks 277; Rose v. Ford 2 Ark. 26; Tullis v. Brawley 3 Minn. 277; Johnson v. Jones 2 Neb. 126. In Illinois the English rule has been recognized: Fitzgerald v. Kimball 86 Ill. 396; though it is said some exceptions are made to it in the furtherance of justice in that state. Pyan v. Lander 89 Ill. 554. What the exceptions are is not pointed out in that case; but in the subsequent case of Hunter v. Stoneburner 92 Ill. 75, 79, we have the following statement as the result of prior decisions: “ It is in rare cases only, that the return of the officer can be contradicted, except in a direct proceeding by suit against the officer for a false return. In all other cases, almost without an exception, the return is held to be conclusive. An exception to the rule is, where some other portion of the record in the same case contradicts the return, but it cannot be done by evidence dehors the record.”
These citations are sufficient, and more than sufficient, to justify the’ previous ruling by this Court. It follows that the instruction complained of was erroneous, and it must be reversed with costs and a new trial ordered.
Graves, O. J. and Sherwood, J". concurred. | [
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] |
Craves, C. J.
Ejectment, and verdict for defendant by direction of the court.
September 17, 1860, Enoch N. Chambers died seized of the premises. He left a will, a copy of which is given below. It is the same the Court had before it in Shaw v. Chambers 48 Mich. 355. But there the inquiry was of a different nature, and the opinion was confined to the question. It is a misapprehension to suppose that it bears on the nature of the legal interests given to the devisees.
At the testator’s death no issue had been born to him, but his wife, Mary E. Chambers, who survived him, was then pregnant, and the child, a son, was born on the twenty-third of December following. April 30, 1862, the child died, and in September of the next year Mrs. Chambers, who was childless, and remained unmarried, also died. She left a'will by which she devised the premises in fee-simple absolute, and the defendant holds that title.
The husband, Enoch N. Chambers, left brothers and sisters, and the plaintiff claims that the title now in question devolves to them and did not pass by the will, and he holds and asserts that title. His position is not entirely clear. It seems to be this : that the will operated merely as a gift of the property as personalty to Mrs. Chambers for life, subject to a charge for the support of the unborn child during its minority, and subject further to the condition that in case the child should reach majority, it should take one-half of the corpus; that the child having died during minority, and the life interest having determined, the residuary and possessory interests are in the brothers and sisters, or rather in the plaintiffs who holds their rights.
For the purpose of this case we have no occasion to review the will in all its aspects, or in reference to the contingencies which are possible.
We are not called on to define the boundary between the rights and interests of the mother and the child. "We are to ■connect the provisions of the will with the events, and ascertain its effect on the legal title in issue. Turning to the will, the mind is immediately struck with two very significant indications, and, as there are no conflicting signs or repugnant implications, they become substantially conclusive.
First. The testator intended to dispose of all his estate, both real and personal. It was his purpose not to die intestate in respect to any property or any interest in any property. It was clearly not his intent to leave a remainder to be disposed of under the Statute of Descents or of Distribution. And in our opinion the provisions of the will were sufficient to carry out the intent.
Second. The wife and the expected child were the exclusive objects of his bounty. He referred to no one else. His mind was to give all, and to these two. That the child was competent to take is not questioned. The interest vested on the testator’s death. Comp. L. §§ 4080, 4097; [How. St. §§ 5529, 5546.] The possession only was postponed. The entire estate passed to the mother and child absolutely, and whether the quality or quantity which went to the one as against the other was either more or less, is not important. On the death of the child the whole centered in Mrs. Chambers, the mother, and it was subject to such disposition as she elected to make.
The result in the circuit court was therefore correct, and the judgment must be affirmed with costs The case must be’ remanded, however, to enable the plaintiff to exercise his statutory right-in regard to another trial.
The other Justices concurred.
Know all men by these presents that I, Enoch N. Chambers, of the town of Burton, county of Genesee and state of Michigan, being of sound mind and in the full possession of my faculties, but in feeble health of body, and knowing the uncertainty of the continuance of life, and being desirous of making a certain and specific disposition of my property, do hereby declare this my last will and testament.
I”give and bequeath to my wife, Mary E. Chambers, all my real estate, lands, tenements, &c., together with all my chattels, personal moneys, credits, &c., that shall remain after discharging my legal debts; to have and hold the same in sole possession and to enjoy the sole use and benefit thereof during the term of her natural life: provided, that if any heir or heirs of my body shall hereafter be born to her, such heir or heirs shall receive out of such property above named or out of the proceeds or annual income thereof, all needful and proper support, maintenance and education during the minority of such heir or heirs, and until it or they shall have attained unto legal age.
I do hereby further direct that in case of the birth and arrival at legal age of any such heir or heirs above named, such of the above-described property or of the proceeds thereof as shall remain at that time unexpended shall be then divided and given, the one-half thereof to such heir or heirs and one-half thereof to its (their) mother, said Mary B. Chambers; provided, that if the said Mary E. Chambers shall be at that time deceased, then no division of said property shall be made, but the whole thereof shall be given into and remain in the possession of such heir or heirs. And I do hereby further direct that for the more efficient execution of the above provisions, and for the purpose of securing a larger income unto, and a better support for, the said Mary E. Chambers and the said heir or heirs (if any), that the above-described property, real and personal, shall be exchanged (sold) by the administrator of this instrument for money, or (and) for interest-bearing securities, bonds, mortgages, &c., at such times and in such manner as shall be in their discretion (judgment) advisable. And I do hereby appoint Harlow Whittlesey of the town, county and state aforesaid, as executor of the provisions of this instrument in conjunction with my wife, the said Mary E. Chambers. In testimony whereof I have hereunto set my hand and seal this eighth day of September, A. D. 1860.
Enoch N. Chambers., [l. s.]
witnessed hv ) H. Whittlesey, Duly witnessed by f H McAllister. | [
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Kavanagh, J.
This case concerns the construction of the non-fugitive extradition statute, being MCL 780.3a; MSA 28.1285(3-1/2) of the Uniform Criminal Extradition Act. MCL 780.1 et seq.; MSA 28.1285(1) et seq.
Plaintiff was arrested on a warrant issued by the Governor of Michigan on a request for extradition by the Governor of Maryland. The Maryland Governor’s request was based upon plaintiff’s indictment by a Maryland grand jury for the crime of manslaughter by motor vehicle, Art 27, § 388 Maryland Compiled Laws, a misdemeanor carrying a three-year maximum penalty.
The charge arose out of an accident in Frost-burg, Maryland, involving a tractor-trailer rig owned by plaintiff. The accident was described in the report of the National Transportation Safety Board:
"On February 18, 1981, a tractor-semitrailer loaded with building supplies was traveling eastbound on US Route 40, a two lane mountain highway approaching Frostburg, Maryland. The combination vehicle apparently lost braking control and passed and sideswiped a pickup truck as it descended the steep three-mile grade. It continued eastbound and entered the city limits of Frostburg at a high rate of speed striking eight vehicles and pushing these vehicles into six additional vehicles. The combination vehicle continued eastbound through the crowded downtown business district and finally veered to the right into a three story commercial building after several consecutive vehicular impacts.
"The force of impact drove the tractor and a previously struck vehicle inside the building causing the floor and right front corner to collapse. An explosion and fire erupted immediately. Three persons were fatally injured and twelve other vehicle occupants sustained injuries of varying degrees. No pedestrians were reported injured.”
The rig was leased to Direct Transit Lines, Inc., and was being operated by one of Direct’s employees at the time of the accident.
Under the terms of the lease, plaintiff was responsible for maintaining the vehicle and the Maryland indictment was based on the assertion the plaintiff had "intentionally and knowingly” adopted and enforced a policy of poor maintenance which contributed to the accident.
The prosecuting authorities claim this brought him in violation of the statute which reads as follows:
"Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, motor boat, locomotive, engine, car, street car, train or other vehicle in a grossly negligent manner, shall be guilty of a misdemeanor to be known as 'manslaughter by automobile, motor vehicle, motor boat, locomotive, engine, car, street car, train or other vehicle,’ and the person so convictéd shall be sentenced to jail or in the house of correction for not more than three years, or be fined not more than $1,000.00 or be both fined and imprisoned.” MD Code, art 27, § 388.
Inasmuch as it is not claimed that plaintiffs acts were performed in Maryland, in effect Maryland charges that plaintiffs "grossly negligent” acts in Michigan caused the deaths in Maryland in violation of the statute.
The statute under which the warrant was issued provides:
"Sec. 3a. The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 3 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this act not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom, and the requirements contained in subdivision (d) and (e) of section 3 of this act shall not apply to such cases.” MCL 780.3a; MSA 28.1285(3-1/2).
The Newaygo Circuit Court granted plaintiffs petition for habeas corpus, finding that the charging papers did not have the effect of charging the plaintiff with having committed an act in Michigan intentionally resulting in the crime with which he is charged in Maryland as required by the statute.
The Court of Appeals reversed, Deur v Newaygo County Sheriff, 125 Mich App 642; 336 NW2d 852 (1983), holding that under the statute there need not be an intention that a crime result in the demanding state, but rather only that the act committed in the asylum state be intentional and subsequently result in a crime in the demanding state. In arriving at this conclusion, the Court of Appeals stated:
"The crucial language, therefore, is that portion of § 3a which requires that the accused be charged with 'committing an act in this state * * * intentionally resulting in a crime in the state whose executive authority is making the demand.’ The adverb 'intentionally’ does not, grammatically or phraseologically, modify the noun 'crime’ but the participial phrase 'committing an act.’ To construe the statute otherwise would raise ignorance of the law to the level of a complete defense, and would also mean that deliberate acts not intended to have criminal consequences would carry with them no criminal responsibility.” Id., p 647.
We do not agree with the Court of Appeals interpretation of MCL 780.3a; MSA 28.1285(3-1/2). We cannot accept the grammatical construction used to find the word "intentionally” modifying the phrase "committing an act.” A general rule of statutory construction is that "[w]ords or phrases shall be read in context and construed according to the rule of grammar and common usage.” Uniform Statutory Construction Act, 1965, § 2; Mc-Caffrey, Statutory Construction, § 21; Crawford, Construction of Statutes, § 196; 2A Sands, Sutherland Statutory Construction (4th ed), § 47.01, text and commentary. The rules of grammar and common usage would require the adverb "intentionally” to modify the word or phrase it precedes and not the word or phrase that comes before it. Follett, Modern American Usage (New York: Hill and Wang, 1966), p 54;-Fowler, Modern English Usage (New York: Oxford University Press, 1965), position of adverbs, p 462. If "intentionally” was intended to modify the phrase "committing an act,” the statute should have read "any person in this state charged in such other state in the man ner provided in section 3 with [intentionally] committing an act in this state, or in a third state, resulting in a crime in the state whose executive authority is making the demand * * *.”
We hold that the non-fugitive extradition provision of the Uniform Criminal Extradition Act requires the accused to have committed an act in the asylum state coupled with an intent that such act result in a crime in the demanding state.
This requirement is consonant with the general rule that no state or nation can, by its laws, directly affect, bind or operate upon property or persons beyond its territorial jurisdiction, Sexton v Ryder Truck Rental, Inc, 413 Mich 406; 320 NW2d 843 (1982), citing 73 Am Jur 2d, Statutes, § 359, p 492. While Sexton dealt with a civil tort action, we applied the same rule in People v Devine, 185 Mich 50; 151 NW 646 (1915), where the accused was charged with polygamy.
Maryland, through the use of the non-fugitive extradition provision of the Uniform Criminal Extradition Act, here seeks to give extraterritorial effect to a penal statute seeking to regulate unintentional conduct. This issue was covered by Justice Holmes in Strassheim v Daily, 221 US 280; 31 S Ct 558; 55 L Ed 735 (1911). In Strassheim, the accused had been indicted in Michigan for bribery and also for obtaining money from the state by false pretenses. The accused, Daily, did not act in Michigan relating to the charged crimes. In reversing an order on habeas corpus discharging Daily, Justice Holmes, writing for the Court, stated, pp 284-285:
"If a jury should believe the evidence and find that Daily did the acts that led Armstrong to betray his trust, deceived the Board of Control, and induced by fraud the payment by the State, the usage of the civilized world would warrant Michigan in punishing him, al though he never had set foot in the State until after the fraud was complete. Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power. ” (Emphasis added.)
In effect, in Strassheim, Michigan was allowed to apply its penal laws extraterritorially because, while not being present in Michigan, the accused was found to have committed acts outside of Michigan intending them to have a detrimental effect in Michigan.
Strassheim was decided in 1911. The Uniform Criminal Extradition Act was drafted in 1926. The language used by Justice Holmes in Strassheim and the language used in the non-fugitive extradition provision of the Uniform Criminal Extradition Act are similar. The timing and similarity in language convince us of the intent by the Uniform Act drafters to adopt the Strassheim reasoning. The Report of the Committee on a Uniform Act for the Extradition of Persons Charged With Crime, Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings (1926), pp 585, 587, we think implicitly acknowledged an intent requirement for non-fugitive extradition. The committee, in explaining the inclusion of § 6 on non-fugitive extradition, stated:
"On the same theory [comity] we have included a provision as section 6 of this draft, authorizing the extradition of persons who may have never, fled from justice at all, but who have committed homicide across the border of a state by shooting or other means coming within the common judicial conclusion that the crime is committed at the place where the person is killed.”
The use of homicide in explaining the non-fugi tive extradition provision we are persuaded indicated that the committee envisioned non-fugitive extradition only for intentional crimes. This would be consistent with the language and reasoning of Strassheim.
The Michigan Legislature adopted the Uniform Criminal Extradition Act in 1937. The pertinent language of § 6 of the act was adopted without change and appears in MCL 780.3a; MSA 28.1285(3-1/2). Thus, our statute pertaining to non-fugitive extradition, MCL 780.3a; MSA 28.1285(3-1/2), we are satisfied, requires an accused to have intended that an act in the asylum state result in a crime in the demanding state.
The Court of Appeals stated that to require an intention that a crime result would allow deliberate acts to carry no criminal responsibility. We disagree. Intent can be inferred from a defendant’s deliberate acts. But a crime based on negligence can never meet the requirement of this statute.
In addition to the grammatical reading of the statutory language and the legislative history indicating an intent to include a requirement that the accused intend that a crime result in the demanding state, there are other reasons for such a requirement. First, the accused has the right under our system of criminal justice to know what acts are proscribed and what conduct on his part shall subject him to criminal jeopardy. Also, the asylum state has a legitimate interest in exposing and learning of those acts taking place within its jurisdiction with the intent that a crime be committed in a sister state.
While we have held that the asylum state has no power to inquire into the guilt or innocence of the person whose extradition is demanded, In re Doran, 401 Mich 235; 258 NW2d 406 (1977), rev’d on other grounds 439 US 282 (1978), there is an obligation to make certain that the requirement be met that the extradition statute be satisfied before permitting one to be surrendered to the executive authority of another state. In this case, it is apparent from the facts that Mr. Deur did not commit any act in the State of Michigan intentionally resulting in the crime with which he is charged in the State of Maryland. The requirements for a valid extradition under that statute not having been met, we vacate the Court of Appeals order discharging the writ of habeas corpus. The writ is reinstated.
Williams, C.J., and Levin and Cavanagh, JJ., concurred with Kavanagh, J. | [
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This matter has come before the Court pursuant to the recommendation of the Judicial Tenure Commission that, based on the findings of the commission, the respondent be publicly censured and suspended, without pay, from the discharge of all judicial and administrative responsibilities for a period of 60 days. The Court has reviewed this matter and has heard the arguments of the commission and of the respondent and concurs in the conclusion of the commission that the activities of the respondent found by the commission to have occurred constituted violations of the dictates of GCR 1963, 932.4(a), 912.1, 912.2(a)(5) and of the Code of Judicial Conduct, Canons 1, 2A, 2B, 2C, 3A(1), 3A(5), 3B(1), 3B(2), 3C, and 5C(1).
As to the recommendation of the commission the Court observes that the respondent has been defeated by the electors in his bid for reelection as a district judge. The Court is content to let this order together with the commission’s decision stand as public censure of the respondent and to impose no further discipline in this matter in view of the decision of the electorate as to respondent’s judicial future. | [
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Stone, J.
Complainant filed his bill of complaint pray ing for the specific performance of an agreement made between him and the defendant Rose Mathis, the memorandum in writing of which is as follows:
“$50.00.
“Received from Isaac Smith, of Detroit, Michigan, the sum of $50.00 to apply on purchase price of $9,500.00 for the following piece of real estate in Detroit, Michigan: the southwest corner of Alfred and Hastings street, same extending 95 feet on Hastings street, and 53 feet on Alfred St., together with buildings at present on same. I agree at once to furnish said Smith with a Burton or Union Trust abstract, brought down to date, and showing perfect title in myself. Immediately after furnishing said abstract and its being found perfect by said Smith’s attorneys I agree to enter into the usual Burton form land contract with said Smith, he to pay $1,-950.00 more at time of execution of said contract, and the balance in payments each quarter of $175.00, interest at rate of 6% per annum, being also payable quarterly and to be included in said $175.00 payments, and to be deducted therefrom. Should said title not be satisfactory to said Smith’s attorneys, I agree at once to return to him the $50.00 deposit. The entire principal still due at end of ten years shall be payable at that time.
her
“Mrs. Rose X Mathis.
mark
“Sept. 26,1910.
“Witnesses:
“ Benjamin Frumin.
“L. Siegel.
“ I hereby agree to all above terms and conditions.
“Isaac Smith.”
Complainant by his bill further represented that he had always been ready and willing to comply with the terms of said agreement on his part to be performed; that at the time of the signing of said agreement he paid $50 in accordance with its terms, and thereupon it became the duty of said defendant Rose Mathis to have prepared and brought down to date either a Burton or Union Trust abstract showing title in herself; that complainant had frequently requested her to prepare such abstract, so that he might pay to her $1,950 upon the execution of a land contract, in accordance with the terms of the aforesaid agreement, yet the said defendant refused to comply with the agreement on her part, although he had always been ready and willing to pay said sum and fully perform his part of the agreement whenever said defendant would make and deliver to him such abstract, showing perfect title in herself, and a contract executed within the terms of said agreement. He further represented that after the making of said agreement said defendant had conveyed, or threatened to convey, the said property to her husband, Edward Mathis, for the purpose of hindering complainant in obtaining the enforcement of said contract.
By her separate answer the defendant Rose Mathis admitted that she was the owner of the property described in the bill of complaint. She averred that at the time of the signing of the agreement there was pending in the Wayne circuit court, in chancery, a divorce suit between the two defendants, and that at the time of the beginning of said divorce suit there was filed in the proper office a notice of Us pendens against the property described; that, in addition to that, the court had allowed an in junction to issue against this defendant restraining her from in any manner assigning, transferring, or disposing of said property; that at the time of signing the agreement she was under a severe mental strain and on the verge .of a nervous prostration, resulting from the care she gave to her minor children while suffering from a severe illness, and also was suffering from disgrace and humiliation inflicted upon her by the conduct and actions of her husband, and was mentally and physically incompetent to properly realize the importance and meaning of entering into an agreement of sale for this property; that there were certain representations made to her by the complainant and his representatives that if this defendant desired to repudiate the agreement of sale she was privileged to do so at any time within two weeks thereafter; and that within said two weeks after the signing of the agreement of sale this defendant did tender and offer the return of the #50 mentioned in said agreement, which was refused by the complainant, and for that reason admits having refused to comply with the terms of the agreement. She denied that there was any intent on her part to hinder complainant from enforcing his agreement, and admitted having conveyed the property in question to her former husband, Edward Mathis, and averred that the conveyance to him was a part of an agreement between them in their property settlement, and that at the time of such conveyance to Edward Mathis he likewise quitclaimed any and all right, title, and interest which he claimed in the property in question, and other property, as more fully appears in the bill of complaint in the divorce case.
In and by an amended answer, subsequently filed, defendant Rose Mathis averred that in the said representations made to her by the complainant, at the time she signed the agreement, it was stated that, if she desired to rescind the memorandum of sale, she was privileged to do so at any time within two months thereafter, and she averred that within the said two months after the signing of said memorandum she did tender and offer the return of the #50 therein mentioned, which tender was refused by the complainant; that complainant never claimed to have bound himself to take the property on the terms contained in said memorandum; and that it was specifically agreed and understood that unless said injunction was dissolved and this defendant’s title entirely cleared within two months from September 24th, 1910, said memorandum was not to become operative, and neither party thereto was to be bound thereby. And she averred that said injunction was not dissolved, nor was this defendant’s title cleared within said two months. She denied that on September 24, 1910, or at any time thereafter, before she informed said complainant of her intention not to sell said property, did complainant bind himself in any way or form to buy said property on the terms set forth in said memorandum; that, if there was any acceptance by complain ant, it was subsequent to the date of the signing of the agreement, and after she had tendered back the money received by her from complainant; that the agreement signed by this defendant was written in longhand writing, of which there was no copy, and such original and only memorandum of sale, at the time of the signing, was taken by the complainant after this defendant had signed the same, but there was no delivery thereof, at any time by this defendant; and that the complainant was the only person of the parties to the memorandum to have the same in his possession, no duplicate or copy having been given to this defendant.
The separate answer of defendant Edward Mathis alleges that he does not know what were the terms of the agreement; he denies that Rose Mathis was the sole owner of the property; avers that the conveyance to him was for the purpose of securing this defendant for the interest which he had in the property here involved, and also in other pieces of property which were standing in the name of said Rose Mathis as set forth in his bill of complaint for a divorce, to which he prays reference, and he makes reference to the same notice of lis pendens as referred to by the other defendant. After the filing of a general replication, the cause was heard upon the pleadings and proofs taken in open court. The files in the divorce case were offered in evidence by defendants. They showed that the bill was sworn to September 17, 1910, that it was filed September 19, 1910, and an injunction was served upon Mrs. Mathis September 20, 1910, restraining her from selling this property. Upon May 12, .1911, a stipulation was filed withdrawing the bill.of complaint, and on the same day an order was made by the circuit judge permitting the bill of complaint to be withdrawn.
Defendant Edward Mathis offered no evidence to support his claim of ownership of the property here involved. It did appear, however, that there was an agreement whereby Mrs. Mathis was to pay Edward an additional sum of $1,100, and to secure him by executing a satisfactory conveyance of the property here involved to him, to secure him the payment of said $1,100 j that she gave him a deed which was never recorded, and Edward Mathis executed a quitclaim deed to the son, and the latter paid the $1,100. This was April 29, 1911, and Mrs. Mathis gave a deed to her son as security for the $1,100. The bill of complaint and a Us pendens in the instant suit were filed April 28, 1911. This cause was heard May 16, 1912. There was much conflict in the evidence upon the following subjects:
Upon what date the memorandum of agreement was signed by Mrs. Mathis (by her mark), she and some of her witnesses claiming that it was signed on Sunday, which claim was denied by complainant and other witnesses. We have inspected the original instrument. It originally bore date September 24, 1910, but the figures “ 24 ” have been changed to “26.” We take notice of the fact that September 24, 1910, was Saturday, and September 26th was Monday. . After reading the record, we agree with the trial court in reaching the conclusion that the transaction did not take place on Sunday.
Also, there was a sharp conflict as to whether, as matter of fact, it was orally agreed and understood by and between the parties that there was to be no contract, or deal, or binding transaction, of any kind, unless defendant Bose Mathis could give a clear title in two months.
There was also conflict in the evidence as to when complainant added and signed the sentence at the bottom of the memorandum, reading as. follows: “I hereby agree to all above terms and conditions. Isaac Smith ” — it being the claim of complainant that it was done at the time Mrs. Mathis made her mark thereon, and the defendant Mrs. Mathis denying this, and claiming that it was added later. It is undisputed that the words were on the paper when it was produced at the hearing. It is also undisputed that complainant paid Mrs. Mathis $50 at the time she put her mark to the paper, and that complainant took the paper, and that Mrs. Mathis did not retain any copy or duplicate. It is disputed when Mrs. Mathis offered or tendered back the $50; she testifying and claiming that she did it within two months, and complainant claiming and testifying that it was six months after the date of the paper. Upon the hearing of the cause the circuit judge dismissed the bill of complaint with costs to the defendant Rose Mathis. It may be well for us to state the reasons. therefor, as given by the trial judge. They were as follows:
“ I am not satisfied from the proofs in this case that complainant has established his right to what he desires by a fair preponderance of proofs, but I do determine as facts in the case that at the time this deal was entered into and at the time this paper writing was executed by the defendant, it was agreed and understood between the parties that, unless a good and perfect title could have been given by Mrs. Mathis to the complainant in this case, this deal, as it is called, should be declared off within * * * two months. It does appear in the proof in this case that an injunction of this court- prevented for some considerable time thereafter a performance of that part of her bargain by her, and, that being so, then the deal did under the terms of the deal come to an end. If that part of the contract can be read into the contract, and it seems from the case that has been read and cited here that it can — in other words, where the deal itself is contingent upon the happening of a certain event, or the converse of it, the nonhappening of a certain event, it makes little difference, so far as the principle is concerned, whether or not she will get the property clear, or whether the property will be clear. The understanding on her part was simply to perform the terms of this bargain if the property should be clear of the incumbrance of the mortgage. * * * I will state this, that I do think these cases apply. Now I am inclined to think that they do apply with full force, and even if you take the paper writing itself, by itself, and alone, that it shows that it lacks the mutuality that makes the contract binding upon both parties.”
The complainant has appealed, and the two important questions presented are: (1) Was the learned circuit judge right in admitting and considering evidence that it was agreed by parol at the time the memorandum of agreement was entered into, that unless a good and clear title could be given by Mrs. Mathis to complainant within two months the deal should be called off ? (2) Taking the paper writing by itself, does it lack that mutuality necessary to make the contract binding upon both parties ? And this may involve the question whether it was necessary for the complainant to sign the paper to render it enforceable.
1. Upon the first proposition counsel for defendant Rose Mathis urge that the circuit judge did not err in considering this testimony, and they rely upon Cleveland Refining Co. v. Dunning, 115 Mich. 238 (73 N. W. 239), and Ada Dairy Ass’n v. Mears, 123 Mich. 470 (82 N. W. 258), and certain Federal cases. In the first case cited it was held by this court that parol evidence that a written order for the purchase of goods was with the understanding that it was to be obligatory only in case the purchaser should be allowed to cancel a similar order previously given to another person was not inadmissible as varying the terms of a written contract. In that case Justice Hooker said:
“ The making and delivering of a writing, no matter how complete a contract according to its terms, is not a binding contract if delivered upon a condition precedent to its becoming obligatory. In such case it does not become operative as a contract until the performance or happening of the condition precedent. _ Proving this is not an attempt to vary the terms of a writing admitted to have been executed and delivered with the understanding that it should take effect.”
An examination of the above cases will disclose that neither of them involved any question of the statute of frauds.
Complainant’s counsel claim that in the above-cited cases the arrangement sought to be shown was a condi tion precedent to the contract coming into existence at all and might be shown by parol evidence; that this holding does not apply to the facts of a case like the present one, where the contract was to take effect at once, and where money was paid and accepted upon the contract át the time of its being made, and where it was at most a condition subsequent; and they cite Mail & Express Co. v. Wood, 140 Mich. 505, 516 (103 N. W. 864, 869), where this court said:
“ The defendant’s counsel seeks to justify the admission of the testimony and the direction of a verdict on the ground that by the terms of the oral agreement the order was not to become obligatory until the goods were distributed, on the authority of Cleveland Refining Co. v. Dunning, 115 Mich. 238 [73 N. W. 239]. We do not think the proofs bring this case within the ruling of this court in Cleveland Refining Co. v. Dunning, supra. In that case the defendants signed an order for 10 barrels of oil upon the understanding that it was to be obligatory only in case the defendants should be allowed to cancel a similar order previously given to the Standard Oil Company. There was a clear understanding that the cancellation of the one order was to be a condition precedent to the taking effect of the other.”
In the instant case the memorandum of the agreement was clearly within the terms of the statute of frauds (section 9511, 3 Comp. Laws, 4 How. Stat. [2d Ed.] § 11395), and was required to be in writing. - We shall cite cases upon the next point to be considered, to the effect that, where the vendee has accepted such a memorandum, it must, in the absence of fraud, be taken as conclusive, not subject to variation by parol evidence, and, if it contains all of the requisites of a valid land contract, it is binding on both parties. Evidence is not admissible, which, conceding the existence and delivery of the contract or obligation, and that it was at one.time effective, seeks to nullify, modify, or change the character of the obligation itself, by showing that it is to cease to be effective, or is to have an effect different from that stated therein, upon certain conditions or contingencies, for this does vary or contradict the terms of the writing. 17 Cyc. p. 643, citing many cases, including Central Sav. Bank v. O’Connor, 132 Mich. 578 (94 N. W. 11, 102 Am. St. Rep. 433), which fully supports the doctrine.
We are of opinion that the circuit judge erred in holding that the case of Cleveland Refining Co. v. Dunning, supra, applied here, even if the facts were as he found them to be.
2. Taking the memorandum by itself, even if not signed by complainant, at the time it was delivered to him, does it lack that mutuality necessary to make the contract binding upon both parties ?
This court has frequently held that, under our statute above referred to, every contract for the sale of lands is void, unless the contract, or some note or memorandum of it, is in writing, and is signed by the vendor, or his agent lawfully authorized by writing. It does not require .the purchaser to sign the agreement, and, if he accepts it, he is liable on the written contract, though his own assent is verbal. Holland v. Hoyt, 14 Mich. 238; Scott v. Bush, 26 Mich. 418-420 (12 Am. Rep. 311); Burke v. Wilber, 42 Mich. 327 (3 N. W. 861); Mull v. Smith, 132 Mich. 618 (94 N. W. 183); Miller v. Smith, 140 Mich. 524 (103 N. W. 872). In the case last cited Justice McAlvay, speaking for this court, said:
“ The suit was brought upon the written agreement signed by defendants, above set forth. The writing is unambiguous and complete, and requires no extraneous evidence to explain its meaning. It is fundamental that no oral evidence to change or vary its terms would be admissible. As far as this record shows, the writing was signed by defendants with full knowledge of its contents. It is a clear agreement for the sale of certain real estate, properly described, for a certain price, upon certain terms, and acknowledges the receipt of part payment. Plaintiff, having accepted this agreement by making part payment, became a party to it. In the case of Mull v. Smith, 132 Mich. 618 [94 N. W. 183], where, in relation to a mem orandum for the sale of real estate, the questions here raised were discussed, the court said:
“ ‘When the memorandum of the oral contract is in writing and signed by the vendor, it is not the contract, but a memorandum, which makes it binding upon him if accepted by the vendee. This is valid evidence of the contract. But can it bind him if not binding upon the vendee ? The statute differs from the English statute, which binds the one sought to be charged only when he has signed it. Under such a statute it may be doubtful if, relying solely upon the memorandum signed by himself, the vendor could enforce or recover damages for the breach of the contract. * * * But whether this is so or not, we cannot doubt that, before either party can make the contract the basis of a suit or action, the element of mutuality must be discernible. See Wilkinson v. Heavenrich, 58 Mich. 574 [26 N. W. 139, 55 Am. Rep. 708]. * * * It being admitted that the vendor has made and the vendee accepted such a memorandum, it must, in the absence of fraud, be taken as conclusive, not subject to variation by parol evidence, and, if it contains all of the requisites of a valid contract, it is binding on both; otherwise not.’ ”
See, also, Orr v. Kenny, 150 Mich. 159 (114 N. W. 228); Adams v. Hotel Co., 154 Mich. 198 (117 N. W. 551, 19 L. R. A. [N. S.] 919).
Upon this branch of the case defendants’ counsel cite the following cases: Wilkinson v. Heavenrich, 58 Mich. 574 (26 N. W. 139, 55 Am. Rep. 708); Wardell v. Williams, 62 Mich. 50 (28 N. W. 796, 4 Am. St. Rep. 814); Bowen v. Lansing, 129 Mich. 117 (88 N. W. 384, 57 L. R. A. 643, 95 Am. St. Rep. 427). In Wilkinson v. Heavenrich, supra, the decision was based upon another section of the statute of frauds which requires the writing to be signed by the parties to be charged therewith. We have sought to show that, in the case of the sale of real estate, the statute only requires the contract or memorandum to be signed by the vendor. In Wardell v. Williams, supra, the paper differed so widely from the one in the instant case that it is readily distinguished. It was a mere offer, never accepted and upon which nothing had been paid. It provided that a mortgage was to be given by the purchaser — which distinguishes it from the instant case, for here the vendee was to give his personal promise to pay the purchase price. In Bowen v. Lansing, supra, it was held that in equity, under a land contract, the land belongs to the vendee, but it was not held that his personal promise to pay the purchase price was an interest in land, or that the legal title was in him, as it would be in case of a deed to him and a mortgage back to secure the payment of a purchase price.
We think that the memorandum of agreement, when accepted by complainant, became a binding contract upon both parties. We attach no importance to the fact that a copy, or duplicate of the memorandum, was not retained by Mrs. Mathis. It was forthcoming at the hearing, and there is no question that it was signed, and its contents understood by her. We cannot agree with defendants’ counsel when they say:
“It must be conceded in this case that, had Mrs. Mathis desired to make Smith take the property, she could not have done so.”
At the time of the filing of the bill in the instant case, Mrs. Mathis held the title to this property, and the injunction had ceased to be of force. Subsequently, the title went to the son as security for $1,100.
We are of opinion that the equities of the case are with complainant, and that he is entitled to have specific performance of the contract as prayed for in his bill of complaint. The decree should authorize complainant to pay off the incumbrance, and have credit therefor upon the contract.
The decree of the circuit court is reversed, and a deoree for complainant will be entered in this court in accordance with this opinion. The complainant will recover his costs in both courts to be taxed.
Stbhre, C. J., and Moore, McAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred. | [
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] |
Steere, O. J.
The only proposition in this suit wherein the parties litigant are in accord is their desire to be divorced. Complainant in his bill and defendant in her cross-bill each ask and urge that relief, but each imputes their admitted wreck on the sea of matrimony to the malfeasance of the other. The most' strenuous efforts of each, as indicated by their evidence, are devoted to rescuing from the wreck what salvage is possible, in the shape of reputation, property, and the surviving children born of their marriage. In their respective pleadings each charges the other with extreme cruelty and other forms of gross misconduct inimical to domestic harmony, which necessarily render a continuation of their relations as husband and wife intolerable and impossible. Each particularly contends for the care, and custody of their two sons, aged, respectively, years and 1 year. The pleadings having been perfected and issue joined in this suit, it was duly brought on to be heard, on pleadings and proofs taken in open court, before the Bay county circuit court in chancery on March 7, 1912, and was apparently concluded the following day.
On April 12, 1912, an opinion was rendered by the trial judge in which neither was held blameless; but it was found that sufficient facts alleged in defendant’s cross-bill had been established to entitle her to a'divorce on the ground of cruelty, and a decree accordingly was authorized giving her the custody of the two children until the elder should arrive at the age of five years, when the complainant should have care and control of him; defendant thereafter to retain the younger as before, complainant to pay the actual disbursements of the suit, and their former home valued at between $3,000 and $4,000, title to which they held as tenants by entireties, to be divided. Following this opinion, and before any decree was settled, de fendant made a change of solicitors, and proceedings were had resulting in the case being opened, and the testimony of 36 witnesses was heard relating mainly to the fitness of the respective parties to have the care and custody of their children, developing a bitter contention of broad range, involving the antecedents and parents of each. Subsequently an opinion was filed by the court adhering in chief essentials to his former decision, and on July 31, 1912, a decree was signed along the lines already stated, granting defendant a divorce on her cross-bill, giving her both children until August 1, 1914, when the oldest boy, Walter, who would then be five years of age, should be given into the custody and control of complainant, who, in addition to paying up certain back alimony and actual disbursements of the suit, was to pay complainant $13 per month until said August 1, 1914, dividing the real estate as heretofore stated; subsequent disposition of the children being also held subject to the further order of the court, with leave to defendant to make application for further allowance should certain contingencies arise. From this decree she has appealed, because, as stated in the brief of her counsel—
“ She is not satisfied with the provision therein giving the care, custody, control, and education of Walter Weiss, the minor child of said parties, to the complainant after he becomes five years of age. She also asks that the award of property and alimony to herself be fixed at such an amount as, in the opinion of the court, shall be just to her, and in accordance with the modification of the decree in the particular of which she complains.”
It appears from the record of this case that complainant was 23 years of age when they were married and defendant 20. They are German Americans, raised in the township of Frankenlust, Bay county, where the parents of each settled in an early day. They both now make their respective homes with their parents, in said township, who own farms and are substantial, prosperous, and respectable members of the German settlement located there. These young people appear to have been well brought up in good homes, by thrifty, industrious, and moral, Christian parents, and bore good reputations in the communities where they were raised. They, with their parents, were members and attendants of the churches near their homes. Complainant was well educated, had been away to college, and taught in the public schools of the county. When married he was employed in a hardware store in Bay City, in which he had an interest, but which was subsequently destroyed by fire. Defendant appears to have been well reared and morally trained, living without reproach at home with her parents until she was married to complainant. The charges each now makes against the other, if true, not Only would render them totally unfit to have the rearing of children, but brand each as of quarrelsome, immoral, vicious, and criminal tendencies which should ostracize them from decent humanity. It is evident from this record, taken as an entirety, that the criminations and recriminations of both are sadly exaggerated and illustrate in tragic fashion the extremes to which a revulsion of domestic impulses sometimes carries. The two respectable families of the parties have been drawn into this chapter of domestic infelicity and made an issue by reason of the litigants each residing with their parents and wishing to take their children there, involving the fitness of the proposed homes into which the children would go. Any detailed statement or review of the bitter charges and conflicting testimony found in this lengthy record would be unprofitable and demoralizing, and is unnecessary.
It is contended in behalf of defendant that, under its decision granting her a decree, not finding her an unfit person to have the custody, care, and control of her children, but, on the contrary, finding that she was a proper person^ by awarding both to her until the oldest reaches five years of áge and the youngest until legally qualified to choose for himself, the court was logically and legally bound to award her both without qualification under section 8689, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11537), which provides:
"Section 1. The People of the State of Michigan enact, that in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of twelve years, and the father of such children shall be entitled to the care and custody of all such children of the age of twelve years or over: Provided, that any probate court or any court of competent jurisdiction, may, on petition and hearing thereof, make and enforce such order or orders as it may deem just and proper as to the care and custody of such minor children, excepting in cases where an order or decree may have been made by any court in chancery regarding such children: And provided, further, that nothing in this act shall prevent any court of competent jurisdiction from making and enforcing any such order or orders as it may deem just and proper as to the care and custody of such minor children in the same manner and with like effect as it could if this act had not been passed.”
It can be said of the foregoing section, taken as a whole, that it was intended as a general guide for the courts when in doubt as to which of the parents is the more fit, or when neither is shown to be unfit. It has been construed as meaning that prima facie the mother is best entitled to the custody of very young children, favoring her in that respect, and as meaning there should be preponderating reasons in favor of the father before it is otherwise provided. Klein v. Klein, 47 Mich. 518 (11 N. W. 367); In re Knott, 162 Mich. 10 (126 N. W. 1040).
The statute in question has never been construed as qualifying or restricting the inherent, broad, discretionary powers of a court of chancery to adjudicate as to the custody and control of children whose interests are before it, according to the varying elements for consideration arising in each case, and to make such disposition of each child as its best interests appear to demand. On the contrary, it was said in Re Knott, supra:
"There is nothing in either provision (sections 8689- 8701) which interferes with the right of a court of competent jurisdiction, upon investigation and upon consideration of the best interests of a minor child, to commit said child to the custody of either the father, the mother, or some other suitable person.”
The fact that the parents are equally good, or equally bad, or even that one in some respects may be better than the other, is not necessarily the final test. Other considerations bearing on the welfare of the child may turn the scale.
By section 8631, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11468), the discretionary power of the chancery courtis affirmed in clear language. When a decree of divorce is granted, “ the court may make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them, shall remain;” and by the nest section (8632) the court can afterwards from time to time revise and alter its previous orders on the subject “as the circumstances of the parents and the benefit of the children may require.” Such course has been recognized as proper and ratified by this court. Griffin v. Griffin, 154 Mich. 536 (118 N. W. 1); Stone v. Stone, 161 Mich. 565 (126 N. W. 710). The trial court recognized the possibility of such a contingency and provided for it in the decree. In his opinion the chancellor says:
“ Under the provisions of 3 Comp. Laws, § 8632, the duty of the court in respect to the care and custody and maintenance of these children is a continuing duty. This section, among other things, was in mind when the order was made granting practically a rehearing upon the indicated question. The question as to what order should be made in respect to the care, custody, and maintenance of the children of the parties was one to which I gave my most careful thought and best consideration before making the decision of April 12th. I have gone over the matter again and have reconsidered it in the light of the additional testimony and arguments of counsel made thereon, and reach practically the same conclusion as reached in the first opinion quoted. * * * I know of no case that I have been called upon to decide that I have given more earnest thought to in an attempt to reach such conclusion as would be for the best interest of the children and justice between the parties.”
It is a salutary and well-recognized elementary rule of equity jurisprudence that one seeking aid from a court of chancery must come with clean hands, and, if not, the court will decline to act, leaving the parties where it finds them. That rule, as applied to divorce, means that it is a remedy provided only for the innocent and injured party, and, if the evidence discloses that both have shown ground for divorce, neither is entitled to it. It must be conceded, however, that there is a growing tendency in divorce cases to at times relax that rule, on grounds of public policy or the peculiar exigencies of the special case under consideration, and adopt one of comparative rectitude or turpitude. This record, taken as a whole, breathes the suggestion that defendant’s divorce comes more logically under the rule of comparison. The court did not, and we think could not, find her blameless, and says:
“The defendant is not free from fault, and many reasons appear to favor a decree against her, but upon a careful weighing of the testimony and a consideration of the circumstances inclines me to a decree in her favor.”
It is manifest, so far as human foresight can discern, that the enmity and bitterness which has developed precludes possibility of reconciliation. Neither has appealed from the decree so far as divorce is concerned; complainant has acquiesced in all its provisions, and defendant complains only of the disposition of the eldest child and, contingently in that connection, of the allowance for its support.
Though chancery cases when appealed are, as a general proposition, heard de novo, in view of the position and claims of the respective parties, the condition of the pleadings, and the testimony, taken as a whole, we do not feel called upon to directly consider more than the one ques tion of the disposition made by the court of the oldest child, so tenaciously opposed on this appeal by defendant.
While the wishes and affections of the parents for the child are not to be ignored, they are a secondary consideration. The primary consideration is the welfare and happiness of the child, from the standpoint of education, moral and religious training, good influences, care, kind treatment, pleasant environments, and future prospects.
It is evident that the court, disinterested except in the discharge of a grave official responsibility, so viewed the matter. He made a thorough and unusually exhaustive investigation, and opened the door for all evidence the litigants proposed, and patiently heard everything which either side had to offer. The advantage of hearing and seeing the witnesses is not to be overlooked, and that is of particular importance in a case of this nature where personal bitterness, parental affection, family pride, and even neighborly partisanship tincture the testimony and lead the witnesses to extremes beyond the possibility of reconciliation. Not only the families, but the neighbors, have loyally lined up, and warmed up, on the respective sides where kinship and friendship naturally place them.
That both parents are fond of their children, would be kind to them, and care for them as best they could, we have no doubt; neither do we doubt that their zeal in the matter is quickened by a desire to prevent each other from being gratified in that particular. Both of them are sojourning with their parents, and neither has an independent home of his or her own to take their children to. The environments and home life where, so far as now appears, these children will be, are what the grandparents make them. In recognition of this, much testimony was introduced for defendant attacking the habits, character, and home life of complainant’s parents, which was spiritedly reciprocated by complainant as to defendant’s parents.
It was shown that in the home of complainant’s parents beer and wine are kept and sometimes indulged in, and children have been allowed to partake. This also ap peared true of the home of the defendant’s parents. We discover little distinction in that respect. The township of Frankenlust was settled by a German- colony. They have vineyards and make wine and beer, using these beverages in moderation at their homes, according to their domestic and social customs. At their social and religious gatherings, hospitalities in that particular are extended to the teachers of their schools and pastors of their churches the same as other guests, without opprobrium or thought of wrongdoing. Whatever may be said of this in the abstract, we see no reason to discriminate on that ground.
Taken as a whole, the testimony leaves the impression that these families are respectable and respected, their members stand above the average in their communities, and lead moral, industrious, and wholesome lives. We think enough is shown to satisfy the court that each of the litigants has peculiarities of temperament, and faults which must be taken into account.
The welfare of both children must be considered by the court from every point of view, including their future prospects. The care, attention, and disposition toward them of the grandparents, into whose homes they go, is an element of much importance. It could well be thought that family pride and rivalry, as well as family affection, would result in each of these boys being more kindly treated, more carefully reared and better provided for, both in the present and future, if each of the families had one of them; and such a course might eventually better tend to a conciliation and co-operation between the grandparents, if not the parents. Primarily the court decides as a legal question between the parents, but* the line of testimony introduced by the contending parties inevitably gives unusual importance to the relations of the children with their grandparents also.
We have endeavored to examine the testimony critically and have come to the conclusion that the result reached by the learned circuit judge should not now be disturbed.
The decree is affirmed, without costs.
Moore, Stone, Ostrander, and Bird, JJ., concurred with Steere, O. J.
Brooke, J. The record showing affirmatively that the mother is not morally unfit to care for her children, I am of opinion that the custody of both should have been awarded to her until each became 12 years of age. 3 Comp. Laws, § 8689 (4 How. Stat. [2d Ed.] § 11537).
McAlvay and Kuhn, JJ., concurred with Brooke, J. | [
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Moore, J.
The facts in this case are not in dispute. The bill is filed to quiet title to real estate by removing a cloud therefrom, arising from an assessment levied by defendant as the cost of paving a public street running past property owned by complainant.
The complainant is the owner of lots in the block lying between Sixth and Seventh streets, and Madison and Elliot streets, in Grand Haven. The street which was paved was Seventh street. Lot 6 of complainant’s property fronted on Madison street running back on Seventh street. This lot was the only lot in the pareé! owned by complainant that was in the paving district as established by the city. The other lots were outside of the paving district.
We quote from the brief of complainant:
“The ward tax roll for the year 1910 is conceded to have been the last preceding ward tax roll in reference to said special improvement proceedings; and it is also conceded that in said ward tax roll for 1910 the entire 8£ lots owned by complainant were valued and assessed for State and county taxation, in one parcel, at $10,000. The assessment roll made by the special assessors, and duly confirmed April 17, 1911, fixed an assessment of $400.09 against the entire 8£ lots owned by complainant as its share or portion of the cost of the improvement, which amount thereby became a lien upon the entire of complainant’s said property. Complainant and appellant contends that only lot 6 was subject to assessment, and that the remaining 7| lots, having been omitted from the assessing district, and not being shown on the maps and drawings in connection with the improvement, were unlawfully included in the assessment made and confirmed for the cost of said improvement. It is further claimed in behalf of complainant and appellant that the value of said lot 6, as fixed by the said 1910 ward tax roll, is $1,176.47, which said sum bears the same relation to the $10,000, at which the entire parcel was assessed, as said lot 6 bears to the 8£ lots owned by complainant and valued as one parcel, and that the maximum amount lawfully assessable against said lot 6 on said valuation of $1,176.47 is 25 per cent, thereof, or $294.12. Complainant’s bill admits liability for the full amount lawfully assessable against said lot 6, but alleges that the excess over $294.12 is unlawful and should be removed as a lien or cloud upon its title to said lot 6, and alleges, also, that no assessment was lawfully assessable against the remaining 7£ lots, and that the lien of $400.09 placed upon said lots by the confirmation of said assessment is a cloud upon the title thereto which complainant and appellant is entitled to have removed.”
The court below sustained the validity of the tax as made.
Section 3196, 1 Comp. Laws (2 How. Stat. [2d Ed.] § 5718), reads in part as follows:
“In no case shall the whole amount to be levied by special assessment upon any lot or premises for any one improvement exceed twenty-five per cent, of the value of such lot or land, as valued and assessed for State and county taxation in the last preceding ward tax roll.”
Section 3876, 1 Comp. Laws, which is a part of the general tax law of the State (1 How. Stat. [2d Ed.] § 1821), reads in part as follows:
” Any person owning an undivided share, or other part or parcel of real property assessed in one description, may pay on the part thus owned by paying an amount having the same relation to the whole tax as the part on which payment is made has to the whole parcel.”
The city council established an assessment district. This included lot 6. As before stated, it did not include the other lots. This being the situation, it was not competent to spread the assessment on the lots outside of the assessment district in the way it was done. See Whitney v. Village of Hudson, 69 Mich. 189 (37 N. W. 184). A decree should have been granted as prayed by the complainant.
The decree is reversed, and one may be entered here in accordance with this opinion, with costs of both courts to complainant.
Steers, C. J., andMcAivAY, Brooke,.Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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43
] |
Ostrander, J.
Plaintiff lived on the north side of a highway, 20 to 25 rods east of the defendant’s railroad, 3 miles north of the village of Kalkaska, in Kalkaska county. The railroad, which there runs north and south, crosses the highway at right angles. This action is for damages for the alleged negligent killing of plaintiff’s 18 months old daughter at the crossing August 13, 1910. The negligence of defendant alleged in the declaration is a failure to blow the whistle for the crossing; failure to Ting the engine bell, and failure to maintain a proper lookout from the engine for persons or objects upon the crossing. The trial court was of opinion that the failure to give the statute signals could not be considered to be the proximate cause of the injury, and confined the jury, upon the subject of defendant’s negligence, to the question whether the killing of the child was—
“ The direct and natural consequence of the failure of the engineer and fireman on the engine of said train to keep and maintain a reasonably careful lookout to avoid injury to persons on said highway crossing.”
The jury returned a verdict for the plaintiff, upon which judgment was entered.
The single question presented by appellant is whether there was any testimony to support the verdict. The substance of all testimony given is returned. It appears that the child had strayed from her home. Looking for her about the premises and not finding her, the mother went upon the highway to the railroad. She discovered the child, fatally injured, but still alive, lying on the south side of the highway, east of and a few feet from the railroad track, near or against the fence. The material circumstances and the existing conditions proven may be stated in few words. The child weighed from 20 to 25 pounds, and was between 2k and 3 feet in height. She is otherwise descfibed as the ordinary child of that age. She could walk. No witness was produced who claimed to have seen the child after she left the house and before her body was discovered by the mother. Defendant’s fast passenger train, south bound, had just passed the crossing. The mother saw it when she was looking for the child. The time was 4:22 or 4:23 in the afternoon. The train was on time and running somewhat faster than 40 miles an hour — from 40 to 50 miles. The child’s neck and left arm were broken, her great toe split, there was a bruise over her left eye, and a mark, a dent, on her left hand. All evidences of injury, except the broken neck, were on the left side of her body. The skin was not broken, nor was the clothing torn; but the clothing was soiled and dirty. The child wore a string of very small beads, glass beads, some of which the mother found on her person, and some were afterwards found 3 feet, and some 5 or 6 feet, from the east rail of defendant’s track, and, as the record is understood, south of the wagon road and near the fence. Whether search was made for beads in other places is not shown. Footprints of a child, going west, were found 6 feet south of the wagon road and about 16 feet from the south highway fence, going to the' ends of the ties. Whether they were made by this child, or corresponded with others made by her, does not appear.
The defendant’s roadbed at the crossing was slightly above the natural level of the land, and the traveled way was graded to correspond with the level of the tracks. There were cattle guards on each side of the highway; and fences, parallel with the highway, and on each side of it, were built from the cattle guards, at a point about 5 feet from the rails, to the right of way lines and fences. These fences were ᣠfeet high, constructed of posts and. boards, the boards placed 6 inches distant from each, other. From the posts nearest to the cattle guards, running towards the track, wing fences were in place, the bottom boards of which were longer than and approached nearer to the rails (to within 3 feet) than the boards above them. The fences were in good condition. The railroad for a mile north of the crossing was straight, and, except the fences, there was nothing to obstruct the view. The grade of the railroad descended slightly to the south. The engineer and fireman in charge of the locomotive on the occasion in question gave testimony. Both testified that they did not see the child, or know until the next day that a child had been injured. They both testified, also, that the usual and a careful lookout was maintained from the locomotive at the crossing, that the train was on time, and nothing occurred to interfere with the maintenance of a proper lookout.
None of the testimony tending to establish the foregoing- facts is disputed by oral testimony. Other testimony given was that on the morning of the trial a witness placed a piece of board 8 feet from the tracks, went up the tracks 600 feet, and from that point “ I could just see the edge of the board without looking through the fence.” The size of the board and how it was placed were not shown. The wing fences nest to the track were not then in the condition they were in when the child was injured. A witness testified that he placed a board 6 inches wide and 3 feet high in the center of the highway 30 feet from the track. Going north on the track 150 feet, he could, he said, see, the board through the fence. From a point 400 feet north he could not see the board at all. Defendant’s engineer testified that his position in the cab of the locomotive was some nine feet above the rails, or ground; that approaching a crossing he must be pretty close to it to see over the crossing fence, within 100 feet to see the traveled part of the highway over the fence; that from the cab one cannot see the highway on both sides of the highway for 16 feet from a distance of 600 feet; that 8 feet on either side of the rail was the farthest he could see on account of the fences; that he could see that distance for three-quarters of a mile, and the range of vision would widen but little as the crossing was approached until he was right at the crossing; that the motion of the engine interferes somewhat with observation of small, or any, objects. The fireman did not testify positively that he was watching the particular crossing, because his duties sometimes made such observation impossible. The engineer testified that he was always observing when the fireman was not, and when the train was running.
Testimony was given concerning the atmospheric disturbance caused by a train in motion and the probable effects thereof upon a small child standing near the track; it being a contention of the defendant that the known facts and circumstances support an inference that the child was not struck by the train, but was thrown down and rolled upon the earth. Upon this subject the testi mony is that the draft caused by the train would have a tendency to throw down, if standing, and cause to roll on the ground, objects of small weight; and that mail bags thrown off a train had been seen to follow the train 200 feet.
It is obvious that the jury, if it followed the instructions of the court, found the enginemen to have been negligent in observing this crossing; and that a proper lookout would have, or should have, discovered the presence of the child on or near the track in time to protect her. It is equally obvious that it is by inference or by conjecture only that these conclusions can be arrived at. It is the peculiar province of juries to draw inferences of fact; but they must draw them from facts which are admitted or proven upon the trial, and they must be consistent with the admitted or proven facts from which they are drawn. And when inferences are permitted to outweigh the positive testimony of witnesses, not impeached generally, the proven or admitted facts and the necessary or reasonable inferences therefrom should be inconsistent with such testimony. No reason can be given in a case like this for finding that the testimony of the enginemen is untrue, unless it is that their testimony is opposed to and contradicted by other proven facts and circumstances and the necessary or reasonable inferences to be drawn therefrom. The proven fact that the child received the injuries described is not inconsistent with the testimony of the enginemen. That she was struck by the train is not a necessary inference from the fact that the injuries described were suffered by her; and if it is a reasonable inference that she was struck by the train, or by some part of it, it does not follow that she could have been or should have been discovered upon the highway by one maintaining a proper lookout from the engine. There are 5,280 feet in a mile, and, when moving at the rate of 40 miles an hour, a train moves 3,520 feet in a minute, and 4,400 feet in a minute, if moving at the rate of 50 miles an hour. The men on the engine, in the performance of their duty, must examine, as well as vision and movement will permit, both approaches to a highway crossing. Right of way fences are required by law; and the difficulty of seeing a small object, hidden by such a fence as has been described, until the train has approached so noarly to the crossing that the line of vision is over, and not through, the fence, is apparent. To warrant the inference, in face of their testimony, that these enginemen were not observing the crossing, it must be assumed that the child was standing or sitting in a position not obscured by fences and practically upon the rail. The proven facts do not make necessary or reasonably support such an assumption. We conclude that there is no testimony to support the finding that the child was hurt as a direct and natural consequence of the failure of the engineer and fireman on the engine of the train to keep and maintain a reasonably careful lookout.
Plaintiff introduced testimony tending to prove that the statute signals were not given. It is said by appellee that this testimony and the claim of negligence founded thereon should have been submitted to the jury. The appellate court is not usually concerned about errors claimed to have been made against a nonappealing party. Hughes v. Railway Co., 78 Mich. 399 (44 N. W. 396). The point is not discussed by appellant. It is of importance here as affecting the right of plaintiff to a new trial, for which reason we consider it. We are referred by appellee to Battishill v. Humphreys, 64 Mich. 494 (31N. W. 894); Marcott v. Railroad Co., 47 Mich. 1 (10 N. W. 53); Keyser v. Railway Co., 56 Mich. 559 (23 N. W. 311, 56 Am. Rep. 405). If the signals were not given, there was a distinct violation of law, and therefore evidence of negligent conduct of defendant’s servants. Whether such conduct was unimportant depends upon whether we can, say that the failure to give signals could have had noj effect upon the conduct of the child. In Marcott v. Railroad Co. it appeared that a child 2£ years old was killed by defendant’s train, and testimony tended to prove that the statutory signals were not given, which, it is said, “ we cannot, as matter of law, say had no effect on the result.” There was evidence of efforts of bystanders to rescue the child after the approach of the train was discovered ; efforts which might have been sooner exerted. In Keyser v. Railway Co., a child years of age was run over. The question of failure to give signals does not seem to have been a point of importance in this court, although the failure to fence the right of way was regarded as a fact of importance. In Battishill v. Humphreys the injured child was three years old. It was said that whether the signals were given was a question for the jury, and was properly submitted to them. We are impressed that we should not say, as a matter of law — that is, indulge a conclusive presumption of fact — that if proper signals had been given, they would not have affected this child as they are intended to affect all who hear them. Undoubtedly, the precocity, environment, and previous instruction of the child, if known, would afford some aid in determining what its conduct would be likely to be in such a case. The law requires the signals to be given for the safety and protection of all persons lawfully upon the highway; and we think it was for the jury to determine whether failure to give them, if there was such failure, was a material fact.
The judgment is reversed, and a new trial granted.
Steers, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ.', concurred. | [
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Ostrander, J.
In the district court of the county of Polk, State of Iowa, Oomptograph Company, as plaintiff, began a suit at law against Burroughs Adding Machine Company, defendant. Out of and under the seal of that court, letters rogatory were issued'to William Van Dyke, a notary public for the county of Wayne, State of Michigan, to examine on their corporeal oath or affirmation Al-van Macauley, Joseph Boyer, and Alfred J. Doughty upon interrogatories accompanying the said letters and to certify, seal up, and forward the same to the clerk of said county. The statute of this State (3 Comp. Laws, § 10138, 5 How. Stat. [2d Ed.] § 12782) provides that courts of record in this State shall have the power to compel the attendance of witnesses and the giving of their testimony, and the production of books, papers, and other evidences before commissioners or persons authorized to take testimony, and also under commissions or letters rogatory issued out of any court of any other State or of the United States or of any foreign government or country. In such cases the method of compelling the attendance of witnesses is provided by statute, and is by subpoena or summons. Sections 10148 and 10150 (5 How. Stat. [2d Ed.] §§ 12793, 12795). It is further provided (section 10153):
“If any witness attending before any judge, officer or commissioner, pursuant to a summons, or brought before them, or either of them, shall, without reasonable cause, refuse to be examined, or to answer any legal and pertinent question, * * * the officer issuing such summons shall, by warrant, commit such witness to the common jail of the county in which he resides, there to remain until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged according to law.”
Mr. Van Dyke filed his petition in the Wayne circuit court, setting up the issuance of the commission, and praying for process against the witnesses named therein. Process issued and was served. The witnesses appeared before the commissioner, answered certain of the interrogatories, and declined to answer others, setting forth their reasons for so declining to answer. The Burroughs Adding Machine Company also filed objections to the said interrogatories, and they are substantially the objections given by the witnesses themselves. The commissioner reported the matter to the circuit court for the county of Wayne, and set up by way of his amended petition the proceedings had before him, a copy of the pleadings in the Iowa court filed by the Burroughs Adding Machine Company, a copy of the objections to interrogatories as well as the interrogatories themselves, and prayed for an order requiring the witnesses, respectively, to appear and answer the petition, that said witnesses be ordered to make answer under oath to all of the interrogatories ‘propounded by petitioner to them, respectively, which they had theretofore declined to answer, and that each be ordered to answer fairly, fully, and without evasion the last and general interrogatory propounded to them, and, in default, that they or either of them continuing to decline or refuse to answer said interrogatories be punished for contempt and be committed to the common jail of the county, etc. The petition was answered, a hearing was had thereon, and the circuit court for the county of Wayne thereafter made its order in the premises, determining that certain interrogatories propounded to each of said witnesses were not legal or pertinent and need not be answered; that certain other interrogatories were legal and pertinent, and should be answered.
To review the proceedings so had in the circuit court for the county of Wayne and the order and determination aforesaid, the Burroughs Adding Machine Company and the witnesses hereinbefore named jointly sued out of this court the writ of certiorari, contending that:
es (1) Proceedings to compel the giving of testimony by deposition cannot be instituted on the relation of the commissioner by whom the deposition is to be taken, and a proceeding so instituted does not confer jurisdiction upon the court.
“ (2) The court cannot, in this proceeding, compel an answer to any interrogatory, unless it finds that such interrogatory is material and relevant to the issues shown by the pleadings.
“ (3) The party proposing the testimony has the burden of showing its materiality and relevancy, and no such showing is here made.”
We are confronted at the outset with the question, not raised by counsel, whether there should be a review of the proceeding upon certiorari. It cannot be supposed that every proceeding of this nature may be interrupted, and the order made therein in the court below be reviewed and set aside or affirmed, as the case may be. On certiorari questions of law only are reviewable, and it is the general rule that, when an order or judgment is reversed in certiorari proceedings, the whole case falls. It is an end to the case. It is true the proceeding is not after the course of the common law. It is special and statutory, and in one view of it an order requiring a witness to answer interrogatories is final. But the questions involved in such a proceeding are addressed to the court issuing the summons or subpoena. The tendency of testimony to prove a fact — its relevancy — is not determined by fixed rules, but by a process of reasoning. The scope of an issue of fact is also usually determined, not by rules, but by tbe exercise of judgment involving a process of reasoning. It is true this court reviews on error rulings admitted or excluding testimony as relevant or irrelevant, treating the questions presented as questions of law, and in such cases they are questions of law as distinguished from questions of fact, affecting directly therights of parties litigant. In a proceeding such as we are considering here, the rights particularly and immediately involved are the rights of witnesses; the rights of parties litigant depending finally upon the judgment and determination of a foreign court. The conclusion that a witness should or should not answer a particular interrogatory, that testimony will or will not probably be relevant, does not in this proceeding, as it does upon the trial of the case, become a question of law reviewable by an appellate court, and, although the question might finally come to us in the exercise of original jurisdiction in habeas corpus proceedings precisely as it comes in the first instance to the court below, this furnishes no reason for a general review of the judgment of that court in deciding that interrogatories shall or shall not be answered.
It may be said, however, that the question of the jurisdiction of the court below is raised. It was not raised in that court, and, assuming that notwithstanding that fact it may be raised in the appellate court, the contention is without merit. The proceeding was instituted, so far as the jurisdiction of the court is concerned, when, upon proper application, process was ordered to be issued. The power of the court issuing process to control recalcitrant witnesses is not denied. It exercised that power when it made the order complained about. If the better practice is for the commissioner to report the proceedings had before him to the court, leaving the court and the party in whose behalf the testimony is desired to take further proceedings, a point not decided, jurisdiction of the court does not depend upon the fact that the commissioner pro forma, and not the party, brings upon the record the matters which ought to be considered. It may be said that in determining the questions presented to it the court below adopted and applied a faulty rule, and that whether it did or did not is a question of law reviewable in this proceeding. If a faulty rule was adopted and applied, it is nevertheless certain that this court may not in the exercise of its appellate jurisdiction examine the evidence which was presented de novo, apply the proper rule, and make the proper order. We have concluded, the questions having been briefed and argued, to give, so far as it is important, our construction of the statute which is involved, with a statement of the true rule to be applied in such cases, and, without vacating or setting aside the order of the circuit court for the county of Wayne, to give the plaintiffs in certiorari leave to move that court to revise its order if such revision, in view of the rule announced, is thought to be proper.
The court may require a witness to answer any legal and pertinent question. The limiting words, legal and pertinent, are not found in section 10138 or in section 10139. Undoubtedly, the sections must be read together. The judge who made the order was of opinion that it was not his duty to inquire with detail into the merits of the controversy, and determine that the testimony proposed to be taken could not be material to the issue, but that the true rule to be followed in such cases is—
“That unless the matter of the interrogatories cannot possibly enter into the merits of the case, the question should be answered, and the objection disposed of on the trial.”
In support of this he refers, in his written opinion, to Covey v. Campbell, 52 Ind. 157; In re Merkle, 40 Kan. 27 (19 Fac. 401); Wilcox v. Dodge, 53 Hun (N. Y.), 565 (6 N. Y. Supp. 368); Fry v. Trust Co., 2 Misc. Rep. 520, 22 N. Y. Supp. 386; Matter of Randall, 90 App. Div. (N. Y.) 192 (85 N. Y. Supp. 1089). It is not objected that any of the questions proposed are not legal if they are pertinent. The question debated is whether within the meaning of the statute they are pertinent. The words “ legal ” and “ pertinent ” employed in this statute mean the tests which the courts use in determining whether testimony is or is not admissible. Testimony which is relevant is not necessarily admissible, because some more or less arbitrary rule of the law of evidence, some privilege of the witness, constitutional or other, some rule of public policy, may require its exclusion. Testimony may be relevant, and be admissible, and yet have slight probative value. The court in ruling that certain testimony is admissible says, in effect, that it tends to prove the fact to which it is directed, is fit to be considered by the jury for that purpose, and is not excluded by any rule of the law of evidence or by any other governing rule.
“The judicial tests of relevancy have this peculiar quality, in contrast with that of proof or evidence in general, or in any other department of investigation: (1) The required probative value is somewhat higher than it need otherwise have been, because the purpose is to select only such material as is worth laying before the jury; (2) the required probative value, on the other hand, is far shorter than full proof, because the judge merely puts upon the material its ticket of admission as relevant, and leaves the weight, or final persuasive effect, for the jury to determine.” 1 Wigmore on Evidence, § 29.
“ Pertinent ” has been defined:
“Belonging or related to the subject or matter in hand; fit or appropriate in any way; adapted to the end proposed; apposite; material; relevant.” Webster’s International Dictionary.
Under the head of “General rules as to relevancy,” Mr. Greenleaf (Law of Evidence [15th Ed.], vol. 1, § 50) says:
“ The production of evidence to the jury is governed by certain principles. * * * The first of these is, that the evidence must correspond with the allegations, and be confined to the point in issue.”
“ It is not necessary, however,” he says (section 51a), “that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although, alone, it might not justify a verdict in accordance with it.”
The following definition of “relevancy” is taken from 2 Bouvier’s Law Dictionary (Rawle’s Revision), p. 866:
“Applicability to the issue joined. That quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit. See 1 Greenl. Ev. § 49. Two facts are said to be relevant to each other when so related ‘ that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or nonexistence of the other.’ Steph. Dig. Ev. art. 1. This is relevancy in a logical sense. Legal relevancy requires a higher standard of evidentiary force. It includes logical relevancy, and demands a close connection between the fact to be proved and the fact offered to prove it. The fact, however, that it is logically relevant does not insure admissibility; it must also be legally relevant. [United States v. Ross] 92 U. S. 281; it is, however, the tendency of modern jurisprudence to admit most evidence logically relevant. Chamb. Best Ev. 251, note.”
The difficulty in most cases will be not so much in applying the test here indicated when the issues are understood, but in ascertaining what the issues are, or may be, in chief, and in rebuttal, and whether it is likely that collateral issues may arise. If it can be seen that the testimony offered may be admissible as affecting any issue involved in the suit in which it is offered, the question calling for it should be answered. This is a workable rule which in its application preserves the rights of witnesses. It imposes, it is true, a considerable burden upon the court called upon to enforce it to become informed respecting the issues involved, or likely to become involved, in a suit prosecuted in a foreign tribunal, so that it may determine whether testimony which is offered is legal and pertinent; but our statute is in conformity with a general rule of State comity. The consequences of the refusal of a witness to answer interrogatories, when ordered to do so by the court, are considerable and ought not to be visited upon the witness for anything less than a refusal to do what the statute requires him to do. As to the parties to the litigation, they can be affected by the testimony only if the trial court admits it.
The rule indicated differs somewhat from the one stated and applied by the court below, requiring more care in its application — a positive rather than a negative determination. The opinions and expressions of other courts upon the subject are not harmonious. Of those referred to in the opinion filed below, the one in the Matter of Randall, 90 App. Div. (N. Y.) 192 (85 N. Y. Supp. 1089), is fairly indicated by the following words taken from the majority opinion of the court:
“It is enough for us now to say that the testimony sought to be elicited and the identification of evidence, which may be used, may be competent and may be received upon the trial; beyond reaching this conclusion, we are not required to go.”
In Wilcox v. Dodge, 53 Hun (N. Y), 565 (6 N. Y. Supp. 368), the objection made upon the settlement of interrogatories was that certain of them should not be asked under section 829 of the Code, and they were stricken out. What the statute provision referred to is does not appear. It is to be inferred that it creates a privilege of the witness. In ordering the interrogatories restored, the Supreme Court said:
‘ ‘ The witness is a competent witness and his evidence can be excluded only upon objection taken that the case comes within the purview of section 829. And there are circumstances where during the progress of the trial the party seeking to avail himself of section 829 may be precluded from the benefit of the protection granted by this section because of the introduction of evidence upon his own part. Now it is impossible for the court to say whether during the progress of the trial such circumstances may not arise as will authorize the defendant to introduce this evidence. Such being the fact, although it may appear that such evidence cannot be admitted if the objection is taken under section 829, yet it is not absolutely certain but that it may become competent in consequence of something that takes place upon the trial. Under these circumstances, therefore, there seems to be no reason for anticipating that which may or may not happen upon the trial. No harm can possibly be done by allowing the defendant to put these interrogatories, and if the proper objections are raised upon the trial, the judge presiding can afford ample protection to the plaintiffs. We think, therefore, that the interrogatories should be allowed subject to legal objections to be taken at the trial.”
The headnote to the Indiana case is:
“ A question in a deposition, which may in the course of the trial become relevant, should not, before the trial, be suppressed for alleged irrelevancy.”
In Fry v. Trust Co., reported, also, in 2 Misc. Rep. 520,. 22 N. Y. Supp. 386, the opinion contains the following:
“ If, as it is reasonable to believe from the statements of the learned counsel for the appellant, there is a conflict of testimony, and the credibility of witness is involved, the plaintiff is bound to prepare for that emergency, and to endeavor to show that the greater weight is with the plaintiff. It is in view of these considerations, and of others, that in settling interrogatories the courts have used the word ‘ pertinent.’ There may be combinations of circumstances which convince one that now or hereafter a question is not, and will not be, pertinent. But the general object is not merely to ask, Does the question seem pertinent in the present ? but also how it would seem upon the trial. Such is the result of the decision in Uline v. Railroad Co., 79 N. Y. 175 [53 Am. Rep. 123, note].”
The Kansas decision does not seem to be in point. As sustaining generally the rule announced are many decisions of Federal courts where the proceeding was at law; and see, also, Brown v. Clark, 14 Pa. 469; Interstate Commerce Commission v. Baird, 194 U. S. 25 (24 Sup. Ct. 563); Ex parte Peck, 3 Blatchf. (U. S.) 113 (Fed. Cas. No. 10,885); In re Judson, 3 Blatchf. (U. S.) 148 (Fed. Cas. No. 7,563); United States v. Railroad Ass’n, (C. C.) 154 Fed. 268. While the precise question was not raised nor discussed by counsel in that case, the decision in St. John v. Wayne Circuit Judge, 161 Mich. 299 (126 N. W. 218), is in accord with the views herein expressed.
The order of the court below is affirmed, without costs, with leave to plaintiffs in certiorari to apply to the court below for a revision of its order.
Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred. | [
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Brooke, J.
This case has been before this court upon two former occasions (159 Mich. 99 [123 N. W. 573]; 162 Mich. 617 [127 N. W. 800]). A perusal of those opinions will advise the reader of the facts necessary to a full understanding of the question now raised. It appears that, after the decision of this court (162 Mich. 617 [127 N. W. 800]), the parties went to trial upon the merits, with the result that a verdict of no cause of action was rendered. It further appears that the circuit court had, prior to the decision (162 Mich. 617 [127 N. W. 800]), entered judgment for costs against this plaintiff (in the certiorari proceeding) amounting to $38.95; that execution was issued upon said judgment; and that plaintiff was forced to and did pay said sum in order to avoid a levy. This court held, in reviewing the judgment rendered in the case upon appeal, that the judgment rendered in the certiorari case was void for the reasons set out in the opinion (162 Mich. 617 [127 N. W. 800]).
It is therefore clearly apparent that plaintiff was compelled to pay the sum of $38.95 by means of a process of court issued upon a void judgment. It is equally clear that he is entitled to recover this sum from the defendant.
After the last decision of this court, and on April 27, 1911, the circuit court vacated the judgment theretofore rendered against plaintiff in the certiorari case. This action was taken upon motion of the plaintiff and left the certiorari proceeding pending exactly as if no judgment ever had been entered therein. On March 27, 1912, plaintiff (defendant in the certiorari case) brought the case on for hearing and moved for judgment dismissing the writ, with costs, and for the restitution of the sum of $38.95, paid by him to defendant under the void judgment. This the court declined to do, saying:
“I think it is within my right and authority to take notice of the fact that the proceedings are entirely null and void, and to enter an order dismissing the proceedings, and in that dismissal I will authorize the defendant, who is the plaintiff in the original suit, to tax a motion fee of $10; and, in order to get the matter on the record, I will make such a disposition of the case and enter an order dismissing the case and requiring the plaintiff in this certiorari to pay the defendant a motion fee of $10.”
An order was thereupon entered as follows:
“ In this cause the order of the court is that these proceedings be dismissed with an attorney fee of $10 to the defendant in certiorari, Peter Swantek, and against the plaintiff in certiorari, Stephan JarmozsM.”
The plaintiff reviews this judgment by writ of error, contending that he should have been given judgment for restitution of the $38.95, costs which he had already paid under the void judgment.
While this disposition of the matter would have been entirely equitable, we are unable to discover any legal warrant for making it. The statute (1 Comp. Laws, § 951, 5 How. Stat. [2d Ed.] § 12397), provides just the remedy the plaintiff seeks in cases where a justice’s court judgment has been paid and is afterwards reversed in the circuit court. The legislature, however, has not seen fit to extend the operation of this statute to void judgments pronounced by circuit judges, which after payment are reversed. We are of opinion that plaintiff’s only remedy is to bring an independent action for the money which he was required to pay under the void judgment.
The judgment herein is affirmed.
Steers, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. | [
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] |
Campbell, J.
Plaintiff sued a large number of defendants as jointly liable to him for his services as attorney in defending some patent suits concerning the right to use certain hard-rubber material in dentistry. He declared spe cially and with the common counts for these services, and also set up two judgments rendered in Jackson county for the same causes of action. Upon trial the court below ordered a verdict for defendants.
The counts which describe the judgments do not set them out in such a way as to make out any legal liability under them against all these defendants) and the proofs are not any more definite. It appears affirmatively that no jurisdiction existed to bind more than a part of them, and there can be nothing claimed for them under the issue as presented. They may, therefore, be laid aside.
The ground for asserting a claim against the defendants jointly is that they are claimed to have become members of an association combined for the purpose of legal resistance to the claims of a patentee, and that plaintiff was employed by their officers.
There is no testimony tending to show any immediate personal employment of plaintiff by the defendants, jointly or individually, so as to justify this joint action. But it was-claimed that they stood on the footing of partners bound by the action of their designated managing members.
The testimony indicates that several of the defendants, at various times, became members of an association which,, so far as pertinent to this inquiry, required them to pay five-dollars each into the treasury and to pay such assessments as should be levied pro rata, on pain of being left out of the association and its privileges. The officers were to employ counsel, and money was to be paid on the order of the president and secretary.
~We can find in this arrangement nothing analogous to a partnership. There was no common business and nothing-involving profit and loss in a business sense. No one was empowered to make contracts binding on the subscribers personally, and no one was to be liable except for assessments nor even for those except as he saw fit to pay them to keep his membership. It was nothing more than a combination which may have made the parties in some respects responsible to each other, but which did not, we think,. authorize any contract with third persons which should bind any member personally beyond his assessments. As plaintiff was not only aware of the articles but showed that he acted under them and in furtherance of them in various ways, no question arises in the nature of an equitable estoppel.
¥e are not concerned on this record to consider whether plaintiff has any other adequate means of securing compensation. The only question now is whether these defendants are his joint debtors. W e think they are not.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Cooley, C. J.
Action for assault and battery. The plaintiff was tlie sole witness to the facts upon which she relied for a recovery. The defendant contradicted flatly the story told by the plaintiff, but he also claimed, and put in evidence to show that the plaintiff was afflicted with a certain disease, and that women having that disease are likely to have hallucinations under which they imagine that assaults like the one complained of are made upon them.
The case was tried b}7 jury and judgment rendered for defendant. The plaintiff complains of a considerable number of rulings made by the trial judge on questions of admissibility of evidence and the case has been fully and ably argued upon the errors assigned by her. "W"e have considered them all, and have reached the conclusion that while the judge might, and perhaps in some cases ought to have ruled differently, yet that no such qrror appears as would justify the reversal of the judgment.
The case was one wlii.ch justified a good degree of liberality .in the admission of evidence. The parties were directly opposed in their testimony, and the jury would be likely to accept the statement of the pne who was best supported by the circumstances. The plaintiff was cross-examined at great length on her previous history, and seems to have been willing to make full explanations on most subjects. To questions whether she had not made charges similar in nature against two other persons objection was made, but we have no doubt it was proper to allow them, and also to prove the facts if she denied having made the charges. The probability that a woman who conducts herself properly will be frequently assaulted is very small, and every new complaint therefore tends to cast doubt upon those which preceded it. It was also proper to ask the plaintiff whether she did not within a.few hours after the alleged offense tell a confidant of a similar case but make no mention of this ; and then when she denied it, to allow her to be contradicted. The jury would be very likely to infer that an outrage just committed and not mentioned under such circumstances was not committed at all.
It was also proper, after it had been proved that plaintiff was afflicted with a particular disease, to show by experts that a considerable proportion of women thus diseased were liable to hallucinations respecting the conduct of men towards them. There was indeed no direct evidence that plaintiff was ever the victim of hallucinations; but nevertheless she might be without the fact being known ; and so long as the main facts to which she testified were in dispute, the circumstance which might produce delusion was not without significance.
But upon this branch of the case a wrong was done to the plaintiff, which we cannot pass without rebuke. She appears to be a woman without means, and she went for necessary medical treatment to the hospital of a medical college where she would be treated without charge. The reason for this gratuitous treatment is understood to be that the students attending the college have the benefit of such, instruction as comes from actual attendance upon surgical operations and other treatment. To submit to treatment before a class of students must often be mortifying to a modest woman; but if she is poor there is nothing disgraceful in it, and it ought not to be the subject of controversy or comment elsewhere with a view to her annoyance. The public as well as the woman herself is interested in her having the attention and treatment her case requires and she is to be commended for going for it, instead of being exposed to ridicule or to disparaging suggestions. Therefore, in this case, after it had appeared that the woman had been treated by a competent physician, the question whether the treatment was not in presence of a class of medical students should never have been asked, or if asked, should have been promptly overruled. It could have had no purpose except to afford a ground for unfavorable inferences respecting her modesty ; and these, if unjust, would subject the woman to a great cruelty when her only fault was her poverty. In most such cases unfavorable inferences would unquestionably be unjust; and it would therefore be inexcusable to suggest them in any case without direct evidence rendering their justice probable.
We cannot believe, however, that the plaintiff’s case was injured by this evidence. Indeed it was more likely to be aided; for a jury is certain to be quick to detect anything which appears like an insult to a woman in their presence, and to resent the insult if in their power to do so. It is not likely the plaintiff’s counsel failed to call the attention of the jury to any unnecessary and apparently baseless insinuations against his client, and he would be reasonably certain to have the sympathy of the jury with him -in very plain and pointed comments. We do not think, therefore, that we ought to disturb the judgment for the improper admission of this evidence.
When defendant was on the stand he was asked, with a view to discredit him, whether he had not improperly approached a certain judicial officer, and whether he had not in a certain election been charged with buying votes. These and other similar questions were overruled. Obviously they had no bearing on the case on trial. A man cannot be said to be more likely to assault a woman because of being guilty of tbe conduct suggested- The ruling was correct.
Nothing further in the case seems to us to require comment. and the judgment must be affirmed.
The other Justices concurred. | [
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Campbell, J.
This was an action of assumpsit for money had and received, begun in the circuit court for the county of Charlevoix, to recover back the amount of certain town ship taxes paid under protest, as illegal. The illegality-urged on the trial consisted in raising money to refund to the town treasurer funds which it was alleged had been stolen. The whole amount of taxes paid under protest was $32.47, as set forth in the bill of particulars, and the portion of this for which the jury gave a verdict was $3.60. Upon this judgment was rendered for plaintiffs with costs of suit. No error was assigned on the allowance of costs. There was no reduction by set-off.
Several questions arose on the trial, but most of them become unimportant in the view we take of the case. We are inclined to think there was evidence enough to go to the jury. But it appeared from the testimony of Orvis D. "Wood,- who was the party taxed and who paid the tax, that he was a member of the board of supervisors, being supervisor of Charlevoix, and as such voted for imposing the whole tax in question, and he, according to his own statement, knew of the moneys stolen, and was familiar with the money matters of Norwood. The court refused to charge that if he, knowing the condition of the township funds, made no objection before the board of ^supervisors, but on the contrary voted for levying the tax, he should not recover.
■ The tax law expressly authorizes the board of supervisors to examine into the certificates of money to be raised in townships, and directs that “they shall hear and duly consider all objections made to raising any such moneys, by any tax-payer to be affected thereby.” Acts of 1882, p. 15 § 24.
Under these circumstances the plaintiff can hai’dly be allowed to complain of his own act, and recover back taxes which probably would not have been laid if he had made timely objection. We think this objection should have been considered, and that there was error in ruling against it.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Cooley, J.
Trover for the conversion by defendant of two hundred shares in the Conrad Non Mining Company. Defendant was secretary and treasurer of the company, and it is not disputed that he had the shares and disposed of them-. The question is whether he was warranted in what he did.
The evidence for the defense tended to show the following state of facts: The Conrad Iron Mining Company is a corporation, and in October, 1880, it had ten stockholders, each of whom owned two thousand shares. The company was in need of money, and an informal meeting of the stockholders was held at which it was agreed that each of them should put two hundred shares of his stock in the hands of defendant to be disposed of by him for the company at two dollars a share. This agreement was carried out so far as the other shareholders were concerned, but not by the plaintiff. Defendant, however, had possession of the certificates for all the plaintiff’s shares, and in December, 1880, when plaintiff called upon the defendant for his certificates, those representing eighteen hundred shares were delivered over to him, and the rest retained and canceled. Eor those canceled, new certificates were subsequently issued and disposed of by defendant, who relied, in disposing of them, upon the October agreement. Plaintiff denied that he agreed to put the two hundred shares into defendant’s hands as was claimed by defendant, and he gave evidence which he contended showed that he paid to or for the company, in money, all that could be justly claimed from him. He also produced 'evidence to show that the proceeds of the shares put into defendant’s hands and sold had been misappropriated.
In submitting the case to the jury the circuit judge instructed them as follows:
“ It appears, gentlemen, from the evidence in the case that a corporation known as the Conrad Iron Mining Company was organized and incorporated with ten .stockholders -of which the plaintiff was one and the defendant La Eue was another. The amount of stock was twenty thousand shares. Each was entitled to two thousand shares of stock. It seems the certificates of stock were duly filled out and signed by the president and the secretary, and that a certifi- ' cate of two hundred shares belonging to the plaintiff in this •case was left with the secretary; or, in other words, it was never delivered by the secretary of the company to the plaintiff in this case. The plaintiff claims that he was entitled absolutely to that stock, and that the defendant having taken and used it, or disposed of it without his authority, converted it. It will depend, gentlemen, upon the arrangement made between these parties. The defendant claims that sometime in October, 1880, the stockholders of the company got together for the purpose of ascertaining what •should be done. It is claimed that the stockholders then and there agreed that each should place in the hands of the secretary and treasurer of the company two hundred shares ol the stock of the corporation, to be sold by him at not less than two dollars a share, but at the best attainable price, the proceeds of which were to go into the treasury of the company, to be used in carrying on and paying the necessary, expenses in carrying on the mine. If you find it w'as agreed between the plaintiff and the other stockholders then and there that they should so place two hundred shares •of stock for that purpose, and that the plaintiff did leave that stock in the hands of the defendant La Eue, who was then the treasurer as well as the secretary of the company, to be used for that purpose, I charge you as a matter of law that that would entitle and authorize the defendant La Eue to sign and execute the necessary papers to transfer that stock to a bona fide purchaser. It wouldn’t be necessary, in order to entitle him to transfer the stock, that the plaintiff in the case should have made an assignment in writing, ■or sign the assignment which is usually in blank upon the backs of the certificates. If he placed it in his hands for that purpose, he said substantially to Mr. La Eue, you may do any act which I might do necessary to transfer a good title to that stock. This would authorize La Eue either to cancel the stock and issue a new certificate to the purchaser •or to make an assignment in the plaintiff’s name and then transfer it.
Much had been said to you in regard to the misappropriation of these funds by the defendant La Rue after the stock was sold. I charge you, gentlemen, as a matter of law, that you have nothing whatever to do with that. If this stock was sold pursuant to that agreement and the money placed into the hands of the treasurer, no misappropriation of the funds by La Rue, no payment of extravagant bills, would be evidence tending to show that he had converted the stock as claimed in this case. He would be liable in another action, but not in an action of this kind by the plaintiff.”
The plaintiff insists that this charge was erroneous; that if the evidence for the defense was believed, the October understanding amounted only to a promise by each of the stockholders that he would make a gift to the company, and that this promise, so far as plaintiff was concerned, was recalled when he demanded his stock, and defendant had no right to act upon it afterwards. This is plausible, but we do not think it is the correct view to take of the case.
The ten stockholders were all concerned in a joint undertaking in which they severally had equal interests. Their promise to put two hundred shares each in the hands of defendant for the benefit of the undertaking was a promise to each other as well as to the company, and was in no sense a mere gift. Each promise gave support to the others, and this plaintiff was not at liberty to withdraw after others, in reliance upon his promise, had performed theirs. Underwood v. Waldron 12 Mich. 73; Comstock v. Howd 15 Mich. 237; Baker v. Johnston 21 Mich. 319; Stevens v. Corbitt 33 Mich. 458; Michigan &c. R.R. Co. v. Bacon 33 Mich. 466; Tower v. Detroit &c. R. R. Co. 34 Mich. 328. And the judge was quite right in holding that the question of misappropriation could not be tried m this suit. If there was a misappropriation it was of corporate property; not of property belonging to this plaintiff.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Champlect, J.
This suit was instituted by plaintiff before-a justice of the peace, where she obtained a judgment, and the defendant appealed to the circuit court where a trial was had and a written finding of facts and conclusions of law were found by the circuit judge as follows:
“ 1st. The defendant was, previous and up to April 16,. 1875, a banker doing business at Eaton Eapids, said bank not being opened after the night of April 15th.
2d. A few days before April 16, 1875, plaintiff applied-to have a. draft cashed at the bank, said draft being drawn in Australia, upon an English bank, and payable in gold, which had a fluctuating value.
3d. The cashier, one Ostorn, took the draft, agreeing to-send it to the correspondent of the bank, and to allow and pay plaintiff whatever amount such correspondent should credit draft, upon receiving ad vices from such correspondent.
4th. Said draft was forwarded, and on April 14th, draft received credit at Detroit for $65.50.
5th. On the morning of April 15th, plaintiff’s son inquired at defendant’s bank about the matter, but -was informed that no advices had been received. -
6th. About 2 p. m. of the same day (April 15th) defendant received advices from his correspondent. A certificate-of deposit was thereupon filled out to plaintiff, which was the usual custom of the bank where persons had no account. This certificate was never delivered to plaintiff, nor has she-received anything upon said certificate or claim.
7th. The plaintiff lived a short distance from Eaton Eapids, in the country.
8th. Plaintiff’s son called again for the money on April 16th, but found the bank closed.
9th. Defendant for some years previous and up to the time of his failure, had caused an entry of $10,000 to appear as a credit upon his books, which sum was fictitious, and was done for the purpose of increasing his credit, but plaintiff did not know or actuupon this fact.
10th. On April 13,1876, proceedings in bankruptcy being pending against the defendant in the district court of the United States for the "Western district of Michigan, an offer of composition was made by defendant, which was, on August 19, 1876, accepted and confirmed by two-thirds of his creditors in number, and one half'in value, which pro-: ceedings were afterwards, in all things, duly confirmed by said court on the 29th day of August, 1876.”
On the foregoing statement of facts the circuit judge found the following conclusions of law:
“ 1st. By the dealings between the parties plaintiff became a creditor of defendant on his receiving credit for said draft.
2d. By the composition with creditors and confirmation defendant’s liability wras extinguished. ;
3d. Judgment should be rendered in favor of the defendant for costs.”
The defendant excepted to the findings of the court upon the facts and law, and insisted that plaintiff should have judgment for the amount of her claim.
Objection is made to the exception taken that it is too general and indefinite; that it identifies no proposition specifically, and points out no distinct error. We shall regard the exception taken as equivalent to an exception that the facts found by the circuit judge do not support the judgment. If the facts found do support the judgment it must be affirmed. It is somewhat difficult to determine from the findings the legal relations existing between these parties relative to the draft in question. We are inclined, however to agree with the circuit judge to the effect that she became a creditor of defendant, and that the obligation to pay the plaintiff the amount of the draft did not arise out of any fiduciary relations which are saved from being discharged under the Bankrupt Act.
The fact, then, that she became a creditor of defendant, and that the debt has not been paid, entitles her to a judgment, unless, under the facts found, the debt has been discharged under the provisions of the Bankrupt Act. Do the facts found by tbe circuit judge in tbe tenth paragraph above quoted effect such discharge ? It is not found that he "received a discharge as an adjudicated bankrupt, but certain facts are set forth in the 10th clause of the finding relative to a composition in bankruptcy proceedings pending against defendant.
The Act of Congress, passed June 22, 1874, (18 Stat. at L., ch. 390, sec. 17,) provides a scheme by which an insolvent or bankrupt debtor may effect a compromise with his creditors. Without attempting to set out the provisions of this law in detail, it is deemed sufficient for our purpose to refer to some of the more prominent features of the Act. It contemplates the passage of a resolution for composition containing the proposal of the debtor; to be operative it must be passed by a meeting of his creditors who constitute a majority in number and three-fourths in value, and must be confirmed by the signatures thereto of the debtor and two-tliirds in number and one-half in value of all the creditors of the debtor. Such resolution, together with the statement of the debtor as to his assets and debts, must then be presented to the court, and the court must, upon notice to all the creditors of the debtor, and upon hearing, inquire whether such resolution has been passed in the manner directed by said section; and if satisfied that it has been so passed, it shall, subject to the provisions hereinafter contained,'cause such resolution to be recorded, and statement of assets and debts to be filed ; and until such record and filing shall have taken place, such resolution shall be of no validity. And the section provides that “ the provisions of a composition accepted by such resolution, in pursuance of this section, shall be binding on all the creditors whose names and addresses and the amounts of the debts due to whom are shown in the statement of the debtor produced at the meeting at which the resolution shall have been passed, but shall not affect the rights of any other creditors.”
The foregoing reference to the statute shows how far short the facts found by the court come of constituting a legal discharge of the debt due to plaintiff. It has been held that the section should receive a strict construction, because it is in plain derogation of common right. It compels the dissenting minority of creditors to accept just so much on their claims as the debtor and the requisite majority of the creditors resolve that all shall accept. In re Shields 15 N. B. R 532. In order to show the debt admitted to exist is discharged, the facts should be found showing, at least, a substantial compliance with the law. The finding of the court below did not show that plaintiff’s name and address and amount of her claim were embraced in the statement of the debtor produced at the meeting at which the resolution was passed ; and if it was not, the law expressly saved her rights, and she was not in the least affected by the composition. Nor does the finding show that the resolution was ever recorded. Until it was, such resolution was of no validity. In short, the finding fails to show that this debt was barred or discharged, and consequently the facts found by the circuit judge do not support the judgment rendered in the court below.
That judgment is therefore reversed, and the plaintiff will be entitled to a judgment here for the'one hundred and five dollars damages, and costs of both courts.
The other Justices concurred. | [
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Campbell, J.
The only question in this ease is, whether under the charter of Detroit, as existing previous to July, 1881, suit could be brought by the city for unpaid personal property taxes.
The charter provided very fully for the enforcement of such collection by process from the Eeceiver of Taxes, who could at any time after default collect the amount by levy on any personal property of the delinquent within any part of the city. No provision was made to sell lands, except for the land taxes.
It has always been recognized as the law of this State, that where such a specific remedy is provided in the tax law as the proper method of collection, no suit will lie unless specially provided for, and then only as so provided. Staley v. Columbus 36 Mich. 38; McCallum v. Bethany 42 Mich. 451; Putman v. Fife Lake 45 Mich. 125. Such is the weight of authority elsewhere under similar conditions. See Cooley on Taxation 13.
Nothing has been pointed out in the charter which directly or impliedly favors any different doctrine. And it may be suggested that in the recent revision of the charter in 1883, the, language of the old charter was radically changed, not only by declaring such taxes to stand as personal debts, but also by providing expressly for suits on default, and limiting those suits without reference to amount to the circuit court for the county of Wayne, — thus shutting out actions before justices, and before the Superior or Eeeorder’s courts, and the courts of other counties. Charter, chap. 10, § 10.
We think the action did not lie.
The judgment must be reversed witn costs of both courts, and judgment entered on the finding for defendant.
The other Justices concurred. | [
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] |
Sherwood, J.
The plaintiff, in the month of November, 1879, resided in Detroit and was in possession of and keeping the hotel known as the Biddle House, containing a very large number of rooms, all of which were furnished witli gas-pipes and fixtures for the purpose of lighting the same, and which had been so lighted for many years.
The defendant corporation was duly organized under the Act of the Legislature for the formation of gas-light com pañíes, approved February 12, 1855, and located in Detroit. On the 15th day of November aforesaid the defendant, in pursuance of said Act of the Legislature and the charter and by-laws of Detroit, was and had been for some time previous carrying on the business for which it was organized, supplying the citizens at hotels and private dwellings with gas in such quantities as desired, and among others had connected its quipes with those of the Biddle House, and for some time previous had been supplying it with gas as its proprietors desired. On that day the defendant refused to supply the Biddle House longer unless its proprietor, the plaintiff, would keep on deposit with the company $100. It was receiving at that time about $60 worth of gas per week, and its requirements were increasing.
The plaintiff regarding the demand as unreasonable, declined to make the required deposit, and tendered, the defendant $Y5 and demanded that the company should furnish him gas at the Biddle House to that amount. This the defendant refused to do and cut off the service at the hotel.
The plaintiff claims that it was the defendant’s duty to furnish him with the gas required, and upon the terms demanded ; that he has suffered great injury to his business in consequence of the defendant’s neglect so to do. And he brings his suit in this case to recover his damages. A trial was had in the Superior Court of Detroit, and the judge directed a verdict for the defendant^ The plaintiff brings error and the case is now before us on a bill of exceptions containing all the testimony.
The questions presented and argued before the judge of the Superior Court by counsel for defendant were — First, the plaintiff could not recover for the reason the defendant was under no legal duty or obligation to supply any citizen of Detroit with gas; and second, if such duty was imposed upon the defendant, the conditions upon which the defendant proposed and offered to perform it were reasonable. The court disagreed witli defendant’s counsel in the first position, but sustained them in the second. I agree with the judge of the Superior Court that it is the duty of the defendant, upon reasonable conditions, to supply the citizens of Detroit who have their residences and places of business east of the center of Woodward avenue, with gas wherever the defendant has connected its mains and service pipes with the pipes and fixtures used at such residences and places of business and the owners or occupants shall desire the same.
The defendant is a corporation in the enjoyment of certain rights and privileges, under the statutes of the State and charter and by-laws of the city, and derived therefrom. These rights and privileges were granted that corresponding duties and benefits might inure to the citizens when the rights and privileges conferred should be exercised. The benefits are the compensation for the rights conferred and privileges granted, and are more in the nature of convenience than necessity, and the duty of this corporation imposed cannot therefore be well likened to that of the innkeeper or common carrier, but more nearly approximates that of the telegraph, telephone or mill-owner. The company, however, in the discharge of its duty may govern its action by reasonable rules and regulations, and when it has done so all persons dealing with it, as well as the company itself, must yield obedience thereto. The statute under which the defendant company is organized provides it may ordain and enact by-laws for that purpose ; but the record discloses no such action taken on the part of the defendant; neither does it show any general action or custom of the company in making terms with, or for supplying gas to, proprietors of hotels or other persons except as required in this case.
The president of the defendant company was sworn and examined, and testified that the defendant made weekly or monthly collections for gas furnished. He further said that the defendant refused to let the plaintiff have a supply for the Biddle House unless he would first sign a contract with the company therefor, and in addition thereto keep on deposit with the company the sum of one hundred dollars so long as it furnished him with a supply ; that the plaintiff tendered the defendant $75, and demanded that the company should supply the house and offered to give good personal security for payment and performance on his part to the extent it should be furnished or the company require; and that the company refused to accept the terms proposed by plaintiff, or furnish his house with gas as required.
This corporation is authorized and permitted to do business in Detroit only upon the ground of public convenience, and that benefits may accrue to its citizens.
It is true that neither by the charter of the company, its articles of association, or the t)y-laws of the city authorizing its existence there, has it the exclusive right to manufacture and sell gas. It is, however, within the experience of us all, and I may say, I think, with great propriety, within the judicial knowledge of the courts, that the manufacture and supply of inflammable gas for the purpose of lighting cities, villages, stores, hotels and dwellings, is not a domestic or family manufacture. It is carried on almost exclusively by public or associated capital, and to make it a paying industry requires the exercise and enjoyment of certain rights and franchises only to be acquired from municipal or state authority. Associations of this kind, as has been well said, “are not like trading and manufacturing corporations, the purview of whose operations is as extensive as commerce itself, and whose productions may be transported from market to market throughout the world.” It is not a trading corporation; its product is designed for the citizen, and the extent to which it is used depends upon home consumption in the immediate neighborhood and community in which the manufacture is wrought. It is in the strictest sense a local commodity, and not commercial. It can only be used by consuming it, and hence can have no place with articles of trade. The success of the company greatly depends upon the necessity of the citizens in the vicinity of its location, and its operations may seriously affect the public policy and individual convenience of the community. The nature of the article made, the objects of the company, its relations to the community, and the rights and privileges it must necessarily exercise, give the company a public character, and, to a certain extent, a monopoly which can never be tolerated, only upon the ground of some corresponding duty to meet the public want. Such duty rests upon this defendant, and I think it requires the company to furnish to this plaintiff, at the Biddle House, the supply of gas demanded, under reasonable rules and regulations, but among all such as might be mentioned, it is with the defendant to adopt-and rely upon such as it may select. This is its privilege.
The duty of the company towards the citizen, and that' of the citizen towards the company, is somewhat reciprocal, and any rule or regulation or course of dealing between the parties which does not secure the just rights of both ought not to be adopted, and cannot receive the sanction of the courts.
"When the defendant company made the connection of its service pipes and mains with the pipes and fixtures of the Biddle House, it imposed upon itself the duty to supply the house and premises upon reasonable terms and conditions with such amount of gas as the owner or proprietor might require for its use, and pay for, so long as the company should exist and do business.
If the defendant, as one of such conditions, required the plaintiff to give sufficient security that he would make such payment and perform such conditions, before making such service, I think it would have been reasonable, but in the place of such security the defendant demanded a deposit of money with the company, as had been its custom. This the company had a right to do. The condition was a reasonable one. The requirement of *a special contract between the parties, in addition to the deposit of money, may not be unreasonable, still it was quite unnecessary. The law implies all the contract needed, and courts will enforce it in all cases to the extent necessary to secure the rights of the parties.
I think the judgment of the Superior Court should be -affirmed.
The other Justices concurred'. | [
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Cooney, J.
The writ of error in this case brings before the Court the proceedings had in the circuit court for the county of Wayne on the probate of the will of Emilie Campau, late of the city of Detroit, who had died March 25, 1881. The will with a codicil thereto had been duly probated in the probate court for Wayne county, and the contestants had appealed to the circuit court, assigning as the sole reason for appeal, “ that the said will was obtained by undue influence exercised upon said testatrix.” The trial in the circuit court occupied the attention of that court for seventeen days, and resulted in a verdict sustaining the will. The contestants assigtffor error eighty-seven rulings on the admission of evidence, twenty-five refusals to instruct the jury as requested, and twenty-four instructions actually given or remarks upon the evidence. Most of the exceptions appear to be relied upon in this Court, and will be considered so far as they seem to have importance.
The trial judge in his charge to the jury gave a personal history of Miss Campau, as it was disclosed by the evidence, and as this summary was objected to in some few particulars only, it may be assumed to have been in other particulars correct, and it is accepted as such in the statement which follows. It appears from this that Miss Campau was a daughter of Barnabas Campau, Senior, an old French resident of Detroit, who died about the year 1845 leaving a considerable estate which he divided by will equally among his four children, Alexander M., Barnabas, Jr., Emilie and Angelique. The mother, who was of another French family, the Cicottes, had died before he did, and Angelique was married to Charles Piquette. At an early day, but exactly when does not appear, Emilie went to reside with her sister Mrs. Piquette, and continued to reside with her after the father’s death until the sister herself died as hereinafter stated. Two boys named John and Charles L., were born to Mrs. Piquette after her father’s death, and two girls, Elise and Emilie. Mrs. Piquette’s husband appears to have died early : the date is not important.
Miss Campau is described by the witnesses as a feeble and somewhat sickly person from her earliest days, but the full significance of these terms, as they make use of them, it is difficult to gather. It is plain, however, that as a child she was not as strong as an ordinary child of her age, and that as a woman she was not as strong as an ordinary woman of her age. She was tall, and perhaps her somewhat slender and attenuated form, together with the fact that she was pale and sallow, may have given the impression that she was sickly, and sickly would perhaps describe her appearance to a person using ordinary language; but she apparently was not in general sick in the ordinary sense of the term. At the same time she was not so strong physically as other persons commonly are.
Miss Campau went to school as other children did. Witnesses speak of having been in school with her from 1825 to 1828, when she appears to have been from sixteen to nineteen years of age. She learned to read and write, but how much more she learned we are not informed. The intimations in the evidence are that she was backward in her studies, and that she was favored somewhat by her teacher on account of her poor health. All the evidence tends to show that she was timid and shy in the extreme, and hesitated to meet strangers, and this continued to some extent through life. One of the witnesses for the contestants, who perhaps knew as much of her as any one except the immediate family of her sister, describes her as a recluse who did not seem inclined to talk much and did not talk much and did not visit, or go into society, or attend public entertainments. She was a pious lady, and devoted to her church, which was the Catholic.
The Piquettes, together with Miss Campau,' lived in Springwells, adjoining Detroit, a number of years; after-wards they moved into Detroit and occupied a house on Jefferson avenue next to that of Judge Moran, where they lived ten or twelve years. They then moved across the way into a house known as the Beattie or Field House. In 1870 Elise Piquette was married to Major Mitchell of the United States army, and for a time lived with him at Fort Washington, but he resigned his commission after a time, and brought his wife to Detroit, where he entered upon the sti;dy of the law occupying while doing so an office adjoining that of Mr. Levi L. Barbour who will be further mentioned hereafter.
In 1872 Mrs. Piquette died. In 1871 Emilie Piquette went to Europe under the protection of Governor Baldwin, expecting to meet a lady friend who was then there. In the spring of 1875 Major Mitchell was advised by his physician to take a trip to Europe for his health, and he and his wife decided immediately to go. When this decision was communicated to Miss Campau, she said at once, “ Why can I not go with you ? ” When Mrs. Mitchell went to Miss Campau’s rooms a day or two later, she found that preparations by her aunt to accompany them were already under way. Before this time John Piquette had died, and Charles L. Piquette had married the lady who is now one of the contestants, and had taken his wife to Europe. This last event seems to have taken place in May, 1871, and Miss Campau, if she had remained at home, would have been unattended by any of the family.
Major Mitchell and his wife, (she being one of the proponents of the will) left for Europe in March, 1875, taking with them their two children. Miss Campau went with them, taking along Mrs. Duggan as attendant and companion. They landed in Liverpool, where they remained a few days for rest, and where Miss Campau and Mrs. Duggan drove about together to see what they could see from the carriage. They then went on to London, where they remained several days, and from there they went to Paris. In Paris they met Emilie and her friend who had apartments together, while the Mitchells and Miss Campau had apartments in another part of the city. There Miss Campau remained until April, 1876, and Mrs. Mitchell also most of the time, though she seems to have made a visit in the mean time to Switzerland and Italy.
While the Mitchells and Miss Campau were on their way to Europe, Charles L. Piquette and his wife passed them on the ocean, returning. In the fall of that year Charles and his wife went back, and joined the Mitchells and Miss Campau in Paris the latter part of December. In April the Mitchells and Miss Campau returned to Detroit, leaving Charles and his wife in Paris, where they remained until July or August following, when Charles died, and his wife immediately returned to Detroit with his body. Two children had been born to Charles previous to his death, only •one of whom survived him. Another was born the following December.
In July, 1876, Miss Campau had a somewhat serious illness, and was attended for a number of days by Dr. Morse Stewart. About that time she determined to make her will which she seems to have had in contemplation before, and to have spoken of her intention to some persons. Mr. Levi L. Barbour had transacted some business for the Mitchells before they went abroad and while they were absent, and she sent for him to consult him on the subject. Previous to this time Mr. William B. Moran had been acting for Miss Campau, and her papers were in his hands; but Miss Campau with the aid of maps and memoranda was able to give descriptions of her property, and after several conversations a will was drafted which was afterwards copied and executed. The description of one or two parcels of land was not accurate, but the errors were perhaps not important. The date of this will is August 17, 1876, and it was witnessed by Mr. Barbour and Dr. Stewart. By it she gave property valued at $30,000 in trust for Thomas S. and Albert Campau ; about $25,000 to Alexander M. Campau ; about $5000 to Mrs. Duggan, and the remainder, in three equal shares, was given to the two daughters of her sister and the children of her deceased nephew Charles. There were also gifts of $500 each to the Catholic organizations known as the Sisters of Charity, the House of Providence, and the Little Sisters of the Poor. Mr. Barbour was named executor, and with him was associated Francis P. B. Sands, of Washington, D. C., in the expectation, as the will states, that he was soon to marry Miss Emilie Piquette. This expectation was fulfilled soon afterwards.
The body of Charles L. Piquette was brought to Detroit shortly after this will was executed. It seems that the marriage of Charles had been somewhat hasty and private, and that none of his family knew the lady except his sister Emilie, who had barely been introduced to her. The bride was not French and not a Catholic, but Miss Campau when she was presented, greeted her kindly, and as Mrs. Piquette who testifies to the interview, says: “ I told her I was not a Catholic, but I would do my duty by Charles Piquette, and she said, ‘ I know you will.’ ” Miss Campau also greeted her kindly on her return from Europe on this last occasion.
For some reason which is left wholly to conjecture, for the evidence does not tend to explain it, Miss Campau soon decided to make a new will. She sent for Mr. Barbour and had several consultations with him on the subject, and according to his evidence he took from her full memoranda for the purpose, and after considering these in detail with her, drew a will which he left for her examination. This in some particulars was not satisfactory to her, and he drew another, which she finally executed October 26,1816. The property which the will undertakes to dispose of is supposed to be of the value of $150,000. The important changes made by it from the first testamentary disposition are that it reduced considerably the gifts to the children of Charles L. Piquette, and increased those to Mrs. Sands and Mrs. Mitchell. That this will was executed with full understanding and deliberation is testified very strongly and clearly by Mr. Barbour; and Dr. Stewart, who witnessed it with Mr. Barbour, is equally clear that the will was executed with full capacity. Mr. and Mrs. Sands, Mrs. Mitchell and Mr. Barbour were named in the will as executors and trustees.
After the marriage of Mr. and Mrs. Sands, Miss Campau and Mrs. Mitchell — then a widow — followed them to Washington, and took apartments at the Bbbitt House. Mrs. Duggan and the children of Mrs. Mitchell accompanied them. In the summer of 1877 they went for a time to Atlantic City; the next summer they went to Sweet Springs, Virginia; in 1879 they went to Coburg in Canada and in 1880 to Deer Park. At Deer Park Miss Campau had a shock of paralysis, from which she recovered wholly or partially and returned to Washington. She had another attack in January, 1881, from which she never re-' covered, and she died March 25, 1881. In January, 1879, she had executed at Washington a codicil to her will, which was witnessed by James Hoban, Mary A. Long and Mr. Barbour. By this codicil a farm in Washtenaw county and $8000 in cash were given to Alexander M. Campau in lieu of the gift to him before made, and a change was made in the devise for the benefit of Thomas S. and Albert Campau, to provide for a mortgage which Miss Campau had given. The due execution of this codicil is testified to by. Mr. Hoban and Mr. Barbour.
Such is a brief summary of the life history of this lady as the circuit judge gathered it from the evidence. It should be added, as contestants attached much importance to the fact, that Miss Campau all her life-time made use of an amanuensis for her correspondence, as well that of a family as of a business nature, and that she is not shown to have made much use of books at any period of her life: When it is further stated that Mrs. Mitchell by a second marriage has become Mrs. Hoban, we have perhaps sufficiently completed the family history so far as it has importance in this controversy.
That the prima facie showing on behalf of the will and codicil is very full and complete is scarcely open to question. When the case was given to the contestants they directed their attention at once to the question of testamentary capacity, and they called witnesses by whom they undertook to show that Miss Campau had never been mentally competent to manage her own affairs; “ that from birth she was feeble in body and stunted in mind, necessarily, from the mere absence of communication with her fellow-creatures;” that “she was practically under guardianship all her life, — first, under that of her sister and then under that of her niece;” that “ actual letters of guardianship were not necessary to obtain the care of her person or property, or to prevent waste, all this being secured without letters, and the troublesome necessity of accounting being avoided;” in short, that from lifelong defect of will and intellect she was incapable of a testamentary act, and was of necessity a mere puppet in the hands of others.
"Whether it was competent for the contestants to go into evidence to disprove testamentary capacity under the issue made by them for the circuit court, is a question which seems not to have been made in the circuit court, and will therefore not be discussed now. The statute (Comp. L. § 5219) requires the party appealing from the probate court to .assign the reasons for his appeal; and the sole reason assigned in this appeal was “ that the said will was obtained by undue influence exercised upon said testatrix.” Under that allegation it was undoubtedly competent to show weakness of intellect and feebleness of will, because these are ■commonly the conditions of undue influence; but that the ■contestants might go further and dispute testamentary capacity after restricting their appeal as is above shown, is ,a question upon which, under the circumstances, opinion is reserved. A summary of the evidence given for the contestants on the point of capacity is here given, so far as is needful to show its bearing and tendency.
Dr. Samuel Truedell was the first witness. He gives us to understand he was a family friend ; a claim, however} for which little support is found in his evidence. He saw ifche decedent four or five times in all; the last time being some twenty years before the will was executed.' He never had more than a few words with her, but was impressed with her weakness of intellect. Two occurrences in particular seem to have influenced his judgment of her mental powers. One was when one morning lie came upon her unexpectedly in the house when her toilet was incomplete, and she ran and hid herself; and the other when, being ill in bed at tbe time of a call made by him upon tbe family, sbe said immediately without waiting for any question, “ I am better’,” and turned ber face away from bim. It was tbis last occurrence that especially impressed tbe doctor unfavorably, and be does not think Miss Campau was capable of dictating a will, or of doing any difficult business. Tbe premises given seem very narrow for so broad a conclusion. Tbe doctor never visited Miss Campau, professionally or otherwise; be never prescribed for her; but possibly she may have feared be was proposing to do so when sbe turned ber bead away so promptly and with so pointed an intimation that medical aid was not needed. In that case tbe act would have indicated will, even if wanting in wisdom. On his cross-examination tbis witness gives very strong if not conclusive evidence that bis real opinion concerning her capacity was not at tbe time so low; for be testifies that at one time as justice of tbe peace be took .and certified tbe acknowledgment of a deed executed by ber, and tbis, as an honest man, he would never have done bad he deemed ber mentally incompetent.
J. B. Delisle bad seen the decedent in 1856 and again in 1868. On tbe first occasion sbe signed a lease for bim, which be seems not to have been afraid to take, and on the second be endeavored unsuccessfully to make a purchase from herself and her sister. Mrs. Piquette, we are informed, was willing to sell, but after Miss Campau bad said to ber a few words in a voice so low that be did not distinguish tbe words, Mrs. Piquette informed him that ber sister refused to sell. Mr. Delisle “judges” from what be saw, that Miss Campau was incapable of transacting business in relation to property. ■a very singular judgment in view of the fact that sbe actu_ ally did transact business in relation to property on both occasions, and on tbe second exercised a controlling mind in a-espect to tbe matter in hand, not only for herself but for her^sister.
Josette Conner went to school with Miss Campau when -they were girls, and last saw ber forty-four years before tbe will was executed. Sbe testified that Miss Campau as a girl was timid and sedate, — not as lively as others; that sbe answered questions sometimes, but appeared sickly and left conversation mainly to her sister. She got along with her' studies apparently with some indulgence, was kind to her friends and was liked by them. The witness did not think her competent to do business, but she states no fact which can lead anybody else to that conclusion.
J£. C. Abbott saw Miss Campau twice, the last time apparently being prior to 1842. On the first occasion the witness had gone to Mr. Piquette’s to take “refreshments” with him. The refreshments he took there, we are told, were sometimes cider and sometimes “ a little good old whisky.”' He thinks on that occasion the refreshments were not yet-brought in. Mr. Piquette was about to give him an introduction when she turned right about and left the room, so-that he did not speak to her at all. If Miss Campau knew what he was there for — as there is reason to infer from his-evidence that she did- — -her conduct might have been somewhat impolite, but the indications of sense in it are unmistakable.
Alexcmdrine M. Willis, mother of Thomas S. and Albert Campau, testified to having been acquainted with Miss Campau from her youth. She speaks of her as having been always an invalid, very nervous and very shy, seldom going out except to church, very generous in gifts and very pious. Mrs. Willis had taken part with her in business transactions,, especially in the partition of valuable lands, which she-thinks Miss Campau understood, and would not have hesitated to take a deed from her. The following is an extract from the cross-examination of this witness.
“ Counsel. Mrs. Willis, do you wish to be understood,, from your knowledge of Miss Campau, that you would not have accepted a deed from her of a piece of property %
Witness. I think generally I would have accepted.
Counsel. Now Mrs: Willis—
Witness. Although I want you to understand that I do-know there is a very great difference between a deed and a will.
Counsel. No doubt.
Witness. A will is very different.
CouMsel. Then you think she might have had capacity to- execute a deed and understand it, but not a will. Is that right ?
Witness. Yes sir. It does not involve anything like a will. I think she could have understood that.”
It is very evident it is not the case of the contestants that is supported by this testimony.
Sylvester Lamed, who was born in September, 1820, and was therefore ten or eleven years younger than Miss Oampau, went to school with her and had an acquaintance which ceased when he was in his fourteenth year. As he remembers her when he was six or seven years of age “ she was in many respects the direct opposite of her sister Angelique • both in person and in mental faculties; the one being very bright, — Angelique,—the other very infirm and a kind of clouded and obscured intellect; an infirm intellect I would rather say.” He had seen her in Labbie Oampau’s store, and when persons would come in who were strangers she. would exclude herself, draw asidewould go into another room, and if we children were playing-together, she would not join in our plays; she was exceedingly quiet, talked but little, and had a very singular peculiarity of hanging down her head.” She seems to have got along with her lessons in school, though her scholarship was poor; and the witness gives us his deliberate judgment, which he had from his sixth year to his thirteenth, inclusive, to form, that “from my knowledge of her capacity I did not deem her at the time that I knew her, competent to make a will, or to make this will.” This application of the very clear but somewdiat precocious judgment to the particular will in controversy is deprived of some of its force by the subsequent concession of the witness that perhaps Miss Oampau, during the forty-seven years when he had not known her, ■might have acquired due capacity; and possibly the jury might not have been so strongly impressed as the witness was with the evidence of a “ clouded ” or “ infirm ” intellect afforded by the want of interest of a young woman of sixteen or eighteen in the plays of boys of six or seven.
Louis Cicotte testifies to nothing of importance except that in making a purchase of land from Miss Oampau and Mrs. Piquette, Miss Campau said she would do in respect to the trade what her sister did.
Gathourine Sanders was nurse for Mrs. Piquette during her last illness. She had not known Miss Campau before, but saw her there three times, but did not hear her speak until she took leave of her in going away. The first time Miss Campau sat “ scrooched ” down upon the stairs with a calico garment on and her face to the wall; the other two times the witness merely saw her come into the room. To-say that one is “ scrooched ” down, as we infer, is to express in somewhat contemptuous language the idea that one has sat down without proper regard to dignity of appearance; and this or the calico dress, or something else not explained, but which was certainly nothing said by Miss Campau, so-impressed this woman that she informs us “ from my knowledge she did not look like she had sound senses.” The only conversation that took place between them is then given by the witness. After Mrs. Piquette had died, the witness went to Miss Campau’s room to bid her good-bye. “ I told her I was going. ‘ Oh,’ she says, ‘ stay.’ I said, c No; I must go.’ ‘Well,’ she says, ‘stay another month;’ and I said ‘No; I must be going home;’ and she said nothing more.” Nothing unnatural appears in this; nothing indicative of the absence of “ sound senses.”
H. JST. Brevbort testified to having gone at one time to take Miss Campau’s acknowledgment of the execution of a deed, and to having certified to it “ through Miss Emilie Piquette,” without seeing the grantor or having any personal communication with her. The unfavorable deductions from this evidence affect the officer rather than the party. We can understand a woman in sickness, or from mere personal convenience, requesting another to act for her in such a case if she supposed it admissible; but how the officer, who of course knew better, could consent to make the untrue certificate, is not so readily understood.
Theodore G. WiLliams testified to having transacted a large amount of business as the agent of Miss Campau, and to having paid out for her over $50,000. The business was transacted through Mrs. Piquette or Charles Piquette, and when he went to the house he did not ask for Miss Campau herself. Nothing in his evidence, however, indicates that he did not consider Miss Campau competent while he was acting as her agent, and he at one time asked of her an important business accommodation, which we cannot for a moment suppose he would have solicited from any one not fully competent to judge what was for her interest.
The contestant Fanny F. Piquette, now by a second marriage Fanny E. Van Dyke, gave an account of her friendly relations with Miss Campau in Detroit, Paris and "Washington. Miss Campau, as she shows, was tenderly attached to her first husband, to whom she gave “ a handsome chest of silver” on his marriage, and she was also fond of his children for whom the contestant is now acting. One purpose of taking her testimony would seem to be to show that Miss Campau might naturally have been expected to make these children the objects of her bounty. Mrs. Van Dyke speaks of Miss Campau as a kindly woman, feeble in body and intellect, and who once, when she had dyspepsia, sobbed and acted like a child because they would not let her have the food she wanted. The witness owned a one-twelfth interest in Belle Isle, near Detroit, and'joined the other owners, including Miss Campau who owned a fourth, in selling it to the city of Detroit for $200,000, and it did not occur to her at the time, or when they united in a lease of fisheries, that there was on the part of Miss Campau any want of competency. Both the sale and the lease were later in date than the codicil to the will.
F. V. Gicotte testified that in his opinion Miss Campau was incapable of executing with proper intelligence the will in question. He had not seen her except, perhaps, to bow to her for thirty years before her death, and he testifies to nothing within his personal knowledge as constituting a basis for his opinion, except an impression derived from observation that in health she was feeble, and in mind below the standard of ordinary women.
Such was the evidence introduced by the contestants to show want of testamentary capacity. Much evidence was given by the proponents in rebuttal, some of which was •taken under exception, and the trial judge gave instructions on this branch of the case of which the contestants complain. If the evidence for contestants shows, or fairly tends to show, a want of capacity, they were entitled to take the sense of the jury upon it; but if they produced no evidence which tended to meet and rebut the case made for the proponents, and which, standing by itself, would support a verdict in their favor, it is very plain that they could not have been injured by any rulings against them on this branch of the case.
So far were the contestants from meeting the case made by the proponents, that they gave it support by nearly every witness. "We see in their evidence the picture of a lady, never strong in body and at times decidedly an invalid, kindly in manner, generous to friends, but shy and reserved in the presence of strangers, reserved in her conversation and without a taste for literature or public amusements, who lived a long life of quiet goodness in the practical assertion of equal legal rights and powers witli others, and passed away without the question of her legal equality being ever made. She had a considerable fortune, which came from her father, and the trial judge remarks upon it as an important fact in the family history, that while the father by his will appointed trustees for the estate given to Mrs. Piquette, he seems to have made no such provision in the case of the property given to Miss Campau, but left it without restrictions to her disposal. It remained at her disposal for thirty-five years or'more; she had in respect to it large business transactions; she appointed in succession'1 three business agents; she made deeds and leases which no one hesitated to accept, and she made numerous gifts. The last important transaction was with the city of Detroit, and required a payment to her of fifty thousand dollars, and we hear of no question being made respecting the propriety or legality of the payment.
These facts do not tend to show incapacity; they show the reverse most distinctly and unmistakably. Only a perverse or a misguided jury could have found for the contest ants upon them. The physical weakness which was shown, the nervousness and reserve, and the disinclination to make use of the pen, prove by themselves nothing to the point, for they are perfectly consistent with great mental powers, and are sometimes met with when such powers unquestionably exist. But if it be conceded that this woman was below the mental capacity of average women, which is all that the evidence tends to prove, the case for contestants is still far from being made out. There is no rule of law which prescribes average capacity for a testamentary act; if there were it would disable a large portion of every community ; perhaps one-half of it.
No witness for the contestants ventured to say that Miss Oampau was an idiot. No one expressed the opinion that she was insane. No one said her faculties were impaired by old age. No one thought her incapable of dealing in property by deed. The conclusion of the whole matter as respects capacity is best given by Mrs. Willis, who, while conceding the competency to make a deed, denies the competency to make a will. “That,” she informs us, “is different.”
There is probably little doubt that this remark embodies an opinion, or at least an impression that is far from being uncommon. It is an impression for which the law is not accountable, though the manner in which the law is sometimes used and abused may give it some countenance. In law one who is competent to deal in property on the basis of contract is competent to dispose of property by will. With surviving relatives there is often a very different rule; and persons who have gone through an active life with business competency unquestioned, are denied testamentary capacity the moment a will is produced which does not meet the desires or expectations. Something will then be brought forward to show that the testator was, as respects the particular act, an imbecile. He was perhaps below the general average in intellect, or he had some idiosyneracy which, when presented in the proper light, may be thought to resemble or to indicate insanity, or there was a taint of insanity in the family blood, or something in his history was so peculiar or mysterious as to afford ground for a hope that if properly handled a jury may believe or imagine or guess there was something wrong about him, and refuse to sustain the will. The grounds for a contest are as likely to be found in the case of a man of strong mind as any other, if he had his peculiarities, as most such men do. Fraser v. Jennison 42 Mich. 206. But they would be abundant in the case of a lady like Miss Campau, as the enormous record of over seventeen hundred printed pages conclusively shoves. The simple, kind, reserved, domestic, benevolent and pious lady while living, becomes the imbecile as soon as her will is opened. But the law regards her case with different eyes. , If she could buy and sell, and give deeds and leases, and make gifts by delivery, she could make gifts by will also.
Ve have not commented upon the fact, which of itself would be conclusive against the case of the contestants, that not one of the witnesses who ventures to express an opinion against the mental capacity of Miss Campau, pretends to-base the opinion upon personal intercourse or observation had or made within twenty years of the time when the will was executed. The witness Sanders might be considered an exception if the opinion she expressed, when taken with the grounds for it, were not so manifestly preposterous. A woman even though wealthy may wear a cheap garment in the privacy of her own home if she pleases, and she is not to be judged as to “ sound senses ” on two casual views of her face, even though she does, when some great calamity is impending, like that of the death of an only sister, seat herself upon the stairs with her face to the wall. Some of the evidence it is difficult to treat with seriousness; and one-might suppose that the circuit judge, fatigued with the long-trial, admitted it from a sense of humor and by way of recreation and relief. This is particularly the case with the-evidence of Mr. Earned, who at the ripe age of sixty-two-gives. to court and jury the sage criticisms he mentally made of .the powers and capacities of his elders at that period of life when others of corresponding age would be just entering upon easy lessons in reading and spelling. If Miss Campau could be supposed to have known that she was being made the subject of such profound judgments by youthful critics on the one side, and such summary judgments by strange nurses on the other, her shyness, and hanging down of head, and avoidance of human society would not seem so mysterious or so unreasonable as it appears to contestants now.
If there were any pretense that the evidence tended to show idiocy, it would not be so important that the witness did not see the decedent in her later years; for an idiot is not supposed to acquire capacity in the lapse of time. In this case idiocy is not only not pretended, but is disproved by the contestants. What they claim is that Miss Campau was mentally weak and feeble; and this they attribute to the lack of bodily vigor and health. Imbecility of mind from such a cause might pass away; and evidence concerning it ought to be directed to the time when the act was done which made the mental state important. Such was not the case with the evidence given on behalf of these contestants. The witnesses who knew Miss Campau in her later years bore testimony to her capacity. But it was not needful, because the capacity was not successfully assailed.
The other branch of the case concerns the alleged undue influence. The charge, as has been said, imputes the wrongful influence to Mrs. Mitchell, now Hoban. As complaints are made of the rejection of some evidence by the court, it will be proper to consider the case as it would have stood if contestants had given all the evidence they professed to offer. It would then have appeared that by reason of Miss Campau’s residence with her, and her very quiet and reserved habits of life, Mrs. Mitchell had every opportunity to reach Miss Campau with se}fish and improper influences; that she was made a medium in Miss Campa,u’s business communications with agents; that the business agent of decedent was changed, and the same person employed who had before been agent for Mrs. Mitchell; that Mrs. Mitchell was aware of the contents of the two wills contemporaneously with their execution, and did not dis close their contents to others ; and that she paid the legacy of $8000 to Mr. A. M. Campau, who thereupon took a trip abroad, instead of staying to contest the will, as he was expected to do. All these things, taken severally, seem innocent enough. It was certainly not improper for Mrs. Mitchell to pay A. M. Campau the money which she conceded was his of right; and if he was in fault for going abroad afterwards, she was not to be blamed for it, unless she was in some manner connected with or responsible for his going; and of that there was n'o evidence whatever. More, over, Mr. A. M. Campau or any other member of the family was under no obligation, legal or moral, to take part in such a litigation; and if he purposely turned his back upon it, a presumption of good motives may very properly arise in his favor. If Mrs. Mitchell knew the contents of the two wills and failed to disclose them, she may well be excused for doing so, irrespective of any desire the testator may have expressed to that effect. The family quarrel over testamentary dispositions comes soon enough if it is postponed until the person making them has been decently laid in the grave. There was not a particle of evidence that Mrs. Mitchell or any one else actually did influence or attempt to influence the making or altering of a will by Miss Campau, or that she had anything to do with the employment of Mr. Barbour to draft the will, or for any other purpose, or that she resorted to any trick or artifice to keep friends or relatives of Miss Campau away from her, or that any of them were kept away, in fact, or that the will and codicil, as drawn’, represented anything else than the desires of the decedent, deliberately formed and carefully dictated by her to the scrivener. What contestants can forcibly urge on the facts is that Mrs. Mitchell had every opportunity for abusing her aunt’s confidence; but if we were to suspect improper conduct whenever there was opportunity for it, nobody could be secure against suspicion at any time. But ground for suspicion and ground.for judgment are very different things. Judgment must be based upon evidence, and of evidence of undue influence there was none in this case.
The judgment sustaining the will I think should be affirmed with costs.
The other Justices concurred. | [
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] |
Sherwood, J.
This action is replevin for a quantity of wheat and oats raised by Carter, as Mrs. Sutherland’s tenant, on her farm, she having on the 1st day of January, 1880, leased the same to Carter for three years,, he agreeing to pay her one-half the hay, grain, roots and fruits, and in good season and good order, as her share for the rent, and deliver the same to her on the farm. They were to share equally in all pasturage and the profits therefrom.
The parties seem to have got along, without difficulty until October, 1882, when Carter threshed the grain. At this time when the threshing was completed the plaintiff asked to have her half of the grain delivered to her according to the terms of the lease. This Carter refused to do, and immediately carried the wheat off from the farm to a neighbor’s barn (said neighbor being the other defendant named in the record) and locked it up. Plaintiff went to the barn and demanded her half of the grain again, of both the defendants, and they refused to comply with her request and she therefore brought this suit.
The case was tried by the court and plaintiff recovered her damages and costs, the property having been taken on the writ and delivered to plaintiff.
' The defendant Carter brings error and the case is before us on findings by the circuit judge.
In addition to the facts above stated the circuit judge found that at the time the demand was made and the suit brought the grain was an undivided mass, but was of the same general kind, quality and value ; and the value of the grain.
‘The court found as conclusions- of law that the plaintiff became owner of one-half the grain raised, and that under the facts in the case she was entitled to maintain her suit against Carter therefor.
We think the circuit' judge was correct. The plaintiff was tenant in common of the grain, and after it was threshed she was entitled to her one-half thereof, and it was Carter’s duty to deliver it to her when she demanded it upon the farm. It was her property, and the action will lie in such a case under the facts found in this record. Wells on [Replevin § 205; Kaufmann v. Schilling 58 Mo. 219; Inglebright v. Hammond 19 Ohio 337; Ryder v. Hathaway 21 Pick. 305; Warner v. Cushman 31 Ill. 283; Tayl. Landl. & T. 19 (6th ed.) and authorities cited under note 5; Caswell v. Districh 15 Wend. 379; Crouse v. Derbyshire 10 Mich. 479; Fiquet v. Allison 12 Mich. 328; Kindy v. Green 32 Mich. 310.
The judgment must be affirmed with costs..
The other Justices concurred. | [
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] |
Cooley, J.
[Replevin for eleven hundred cedar telegraph poles.
The plaintiff in the years 1880 and 1881 was engaged in the business of getting out ties, posts and telegraph poles from lands belonging to himself and others in the vicinity of Spalding in Menominee county. The poles in question were cut in the winter of 1880-81, and as plaintiff claimed were delivered to him by one Leon Lacroix under a verbal contract whereby Lacroix had engaged to cut poles for plaintiff on lands owned by him on section six in township thirty-eight north of range twenty-six west. The poles, however, were not all cut on section six, but some were cut on the southwest quarter of section eight, and some on the south half of the northwest quarter of section eight. The defendant Archibald, on the other hand, claimed that eight hundred of the poles were cut by Lacroix from the northwest quarter of section eight, and that the remainder were bought by Lacroix from one Poquin, who had cut them on some part of section eight. It is not disputed that all the lands from which poles were taken belonged to the plaintiff.
Lacroix was a witness for defendant, and testified that he got out 800 of the poles on the northwest quarter of section eight, and that he bought the others of Poquin. He was then permitted to state, under objection by the plaintiff, that he went to Spalding to see if he had cedar land for sale, or jobs to give; that Spalding said he did not know whether there was cedar on the land or not, but told him to go to Hagerson and what Hagerson said would be all right; that he did go to Hagerson, who sent one Allen with him to look at a forty on section eight; that Allen made his report to the office, and witness then went to Hagerson and told him he had seen the cedar and would take it at a price which had been talked about, and Hagerson said “All right” ; that witness had dealings with Spalding and had a pass-book, and Hagerson took the pass-book and made an entry as follows: “Dec. 30, 1879. Stumpage on N. £ of N. W. \ of sec. 8, $85.” The Allen mentioned was foreman for plaintiff, and showed people land when they wanted to buy.
Similar evidence was given of a purchase by Poquin of cedar trees on another part of section eight, but it was testified by Poquin that after he had cut for a time Hagerson told him to stop cutting, because the trees cut were in the way of other persons who were using a wood road. Po-quin interpreted this as leaving him at liberty to cut, provided he did not obstruct the road, and he continued to do so, and sold what he cut to defendant. He cut ties on the same land at the same time, and delivered them to the railroad company with directions to pay the price to Spalding.
Plaintiff’s objection to all this evidence was that it tended to show a parol sale of an interest in lands. Such a sale, it was truly said, would be void under the Statute of Frauds: Russell v. Myers 32 Mich. 522; Putney v. Day 6 N. H. 430; s. c. 10 Am. Dec. 470; Owens v. Lewis 46 Ind. 488: s. c. 15 Am. Rep. 295, where numerous authorities are collected. This position is not disputed by the defendant.
Put it does not follow, because a sale is void under the Statute of Frauds, the purchaser can derive no title under it. Such a sale is void only at the option of the parties concerned ; and if they elect to treat it as valid, it may become effectual for all purposes. And commonly, even if not wholly affirmed, it will operate as a license which will protect the purchaser against liability for anything done under it prior to any act of revocation.
A license very often assumes the form of a sale, and it only fails to become a sale because of not being put in legal form. If we believe the testimony of Lacroix and Poqixin, such was the case here; they bargained for a purchase from Spalding with his agent Hagerson, but the subject of the bargain was an interest in lands, and to render it effectual a deed was necessary but was not given. The whole transaction was therefore invalid from the first, and either party might have refused to recognize or act upon it. If they had done so, no rights could have sprung from the negotiations. But Lacroix and Poquin went on and cut the poles, without objection or protest, except as hereinbefore mentioned, and. the question now is, what rights were acquired by them or what liabilities incurred thereby? Had they done 'the cutting under an oral permission given as a mere favor to them, or for the benefit of Spalding himself, the permission would have been a license which would have given them ample protection; but it was not the less a license by reason of having assumed the form of a sale, and been paid for. The essence of the license is in the permission to do what was done; the purpose or consideration of the permission is commonly of no importance.
But the attempted sale was not restricted in its force to the protection of the parties from being held trespassers for what they may have done under it; for to the extent that trees were cut under it before revocation it took effect as a sale, and passed the title to the licensee who thereby became purchaser under it. The permission to cut and remove must be understood as continuous until actually recalled ; and as fast as the trees were severed from the realty by the cutting, the contract of sale attached to them as chattels, and the parties cutting were entitled to remove them as their own. This doctrine is abundantly affirmed in our own decisions: Greeley v. Stilson 27 Mich. 157; Haskell v. Ayres 35 Mich. 90; Webmore v. Neuberger 44 Mich. 362; and is also generally recognized elsewhere as a reference to a few of the leading fiases will show. Yale v. Seely 15 Vt. 221; Claflin v. Carpenter 4 Met. 580; Erskine v. Plummer 7 Me. 447: s. c. 22 Am. Dec. 216; Pierrepont v. Barnard 6 N. Y. 279; Owens v. Lewis 46 Ind. 488: s. c. 15 Am. Rep. 295. It was suggested on the part of the plaintiff that to give the transaction this effect it should be shown that he had actual knowledge that the cutting was proceeding ; but this was not important: he was bound to assume his consent would be acted upon.
The plaintiff contends that whatever authority Poquin had to cut-poles was revoked; and we have seen how he construed what was said to him on that subject. Whether he was right or wrong in this construction was a question for the jury: McKenzie v. Sykes 47 Mich. 294; but the plaintiff did not request that it be specifically submitted to the jury, and there is no ruling of the circuit judge in respect to it for us to review.
It is, as we think, of no importance in the case that the invalid sale was made by Hagerson instead of by Spalding in person. Had Hagerson, without authority to sell interests in lands, assumed to grant such licenses at his own instance, they would have been void even as licenses; but here the case which the jury believed was that the parties who bargained with Hagerson were sent to him for that purpose by Spalding himself; and if that was the ease the licenses granted stand on no different footing than if Spalding in person had given them.
Some other points are made in the brief for the plaintiff, which we have considered and do not think are well taken. They rest so exclusively upon the peculiar facts of the case that their discussion could do nothing towards settling any general principle, and is therefore unimportant.
We find no error in the record, and the judgment must, be affirmed with- costs.
The other Justices concurred. | [
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] |
Campbell, J.
Clarke filed a bill to obtain an accounting from Pierce and Linsley for his share of the proceeds of certain lumber business carried on upon joint account. Defendants were a Vermont firm, doing business in Burlington, and Clarke came to Saginaw under an arrangement with them to handle and ship lumber on their account, to be chiefly disposed of by them. There is some conflict about the extent and precise character of the business done. The chief contest was concerning Clarke’s right to have defendants account for the proceeds of the business, and concerning his share in the results.
As the case chiefly involves facts, and as we concur in the conclusions of the court below, we need not discuss the testimony. Ve have no doubt .that Clarke was to have one-half of the profits, and that he was entitled to compel defendants to an accounting. He is not confined to his remedy at law, whether they were partners or not. The jurisdiction for accounting covers all fiduciary relations where the duty of keeping and rendering accounts exists, and while there are cases in which the common-law remedy may be adequate, we do not think the present case is such that he ought to be turned out of a court of equity to seek an action at law. There is certainly strong reason for holding that a partnership existed, although in a somewhat limited way. But we deem this of no moment, as he has set out his claim fairly, and has established it in substance. The consideration of the items of charges and credits is not now proper, because it belongs more strictly to the accounting.
The decree must be affirmed with costs and the cause remanded for further proceedings.
The other Justices concurred. | [
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] |
Sherwood, J.
The Daniels Italian Marble & Burial Case Company made its three promissory notes for the sum of $500 each, payable to the order of William L. Bancroft, James Goulden, Taylor Daniels, Wallace Ames, George Emill, William Stewart and Nathan S. Boynton, at the First National Bank of Port Huron, and which were dated April 2d, May 10th and June 9th, respectively, and each bearing interest at the rate of ten per cent, per annum. The notes were regularly discounted at and became the property of the bank, on the transfer all the payees becoming indorsers, William Stewart being the last; and complainant claims his indorsement was procured by the others after they had all indorsed the note.
On or about the 20th day of June, 1877, the bank brought suit upon the three notes in St. Clair county circuit court, commencing the same by declaration. Service, however, was not obtained on Boynton and Daniels. William Stewart alone appeared and defended, claiming as his defense that two of the indorsers had been released without his consent by the holder. A final judgment was rendered in said cause in the circuit court in favor of the plaintiff, and against all the indorsers, for the sum of $1944.34 damages, and costs of suit, which were taxed at the sum of $66.16. Stewart appealed from the judgment rendered at the circuit to this Court, and the judgment at the circuit was reversed. A re-trial was had, the bank recovered, and Stewart again appealed to this Court, and the judgment was affirmed. The liability • of Stewart was thus clearly established. 40 Mich. 348 and 43 Mich. 257.
Before the last judgment was rendered, however, Daniels left the State, and was insolvent, as was also the maker of the note and said Khill and Boynton, and it is claimed that Bancroft had no property that could be reached on execution, and was also a non-resident. It is also claimed that Goulden was vice-president and a director in the bank, and suggested or directed the levy of the execution issued upon the judgment upon the property of William Stewart, from whom the entire judgment, amounting to the sum of $2270.66, was collected.
On the 2d of February, 1881, William Stewart died, leaving a will, and the complainant, as his executrix, now brings this suit for contribution against the defendant, he being really the only solvent party liable who is within the jurisdiction of the court. The complainant had judgment for one-half the amount paid by her testator, and defendant brings error.
The judgment at the circuit, and its affirmance by this-Court in 43 Mich., establishes the liability of the defendant upon the notes to the bank; and there is nothing in the special findings in this case which would relieve the defendant from the liability to contribute. The amount he should contribute depends upon the amount paid by the plaintiff and the responsibility of the other co-sureties. In equity one of several sureties who pays the debt for which all are bound may recover from the solvent co-sureties so> much of the sum thus paid on the insolvent share as would fall upon them were such sum equally divided between the solvent sureties. Story’s Eq. Pl. 496; McKenna v. George 2 Rich. Eq. 15; Rynearson v. Turner ante. p. 7.
The case of Rynearson v. Turner involves the same questions presented in this case. The whole subject was there gone into and the principles which should govern the action of the court and the reasons therefor were very clearly and forcibly stated by Mr. Justice Campbell, with whom I fully concur. That case necessarily governs this, and the'ruling must be the same.
The defendant claims that at law the complainant could only call upon him to contribute an equal share with each of the other sureties, counting both solvents and insolvents; and having elected to proceed in equity for contribution,, she must show that her testator has, in all things pertaining-to the claim she makes, done equity ; and that he has failed so to do in this: 1st, he made an agreement before any suit, was brought by the bank, with three of the indorsers, that if the indorsers were obliged to pay the notes, four of them should share the amount equally; 2d, that William Stewart greatly delayed the collection by useless contests in the courts, which were not made in good faith, and that by the delay the responsibility of Ames and Bancroft was lost.
Upon the first point it is not pretended that there was any consideration for the agreement claimed, or that at the time it was made any suit had been commenced against any of the indorsers. If this agreement had been binding and the parties sought to carry it out, there was no difficulty in Bancroft, Ames and Gould en paying in their part. It is conceded Stewart was perfectly responsible and the bank was ready to take the money, or any part thereof, on the claim. It is not easy to discover how the delay in payment by Stewart of his one-fourth could have prejudiced the payment of the balance by the other three parties to the alleged agreement.
Second. Either one of the other three might have paid the bank its claim or his share of the same, without waiting for the termination of the suit. If he had paid the whole he would have had his right of action, either at law or equity, for contribution against the others at once. This being the case it necessarily follows that Stewart, by the contest he made, deprived his co-sureties of no rights legal or equitable, and subjected them to no additional burden, unless they chose to receive it.
We find no error in the record, and the judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Cooley C. J.
The plaintiff in this case declared in assumpsit “ for that the said defendant agreed to sell, and did contract in writing to sell, to said plaintiff two two-seated full-top buggies ; that said defendant failed to comply with his said contract of sale and to deliver one of the two-seated full-top buggies, which was of great value, to-wit, of the value of three hundred dollars; that, although often requested, and said buggy has been fully 'paid for by said plaintiff, yet said defendant has failed to deliver said buggy, to plaintiff’s damage of three hundred dollars.”
“Also for that said defendant agreed to ánd did sell and contract to deliver other two-seated full-top buggy; yet the said defendant did not in fact sell and deliver such buggy as he had contracted to deliver as aforesaid, but only one buggy that answered such description, to'plaintiff’s damage three hundred dollars.”
The case was tried by the circuit judge without a jury, and findings were made of fact and law which are given in the margin. The defendant requested further findings on some points, which were refused, and he also excepted to some of the findings as having no evidence to support them; but in neither particular do we think the record discloses ■any error. He also excepted to the conclusions of law, and such of the exceptions as appear to us to require attention are here noticed.
It is contended for the defendant that it is obvious from tlie findings he did not intend to obligate himself to the delivery of anything that he did not have; that if the carriage on the fair grounds did not answer the description in the bill of sale, the parties were under mutual mistake as to the fact, and therefore the contract as to the carriage in respect to which suit is now brought was ineffectual. One answer to this is that the parties seem to have understood per fectly that the one was selling and the other was buying a carriage of a definite description, and the plaintiff in paying for the stock has paid for such a carriage. The only mistake made was in assuming that a certain carriage then on hand answered the description. It turned out that it did not. If this mistake would entitle the party to any relief in equity it certainly will not at law. The defendant has promised to deliver the carriage, and he must do so or account for its value.
It is further suggested on the part of the defendant that the proper view to take of the contract of sale is that it is a contract for the sale of the livery stock which the defendant then had, including the carriage on the fair grounds; and if the defendant refuses to accept any part of the property as not being within the description in the bill of sale, he must rescind the contract entirely; he cannot rescind in part and affirm in part. This is an ingenious suggestion, but not a sound one. The plaintiff purchased property which was particularly described, and he is entitled to have what he bought. He does not propose to rescind the contract or' any part of it; he demands the fulfilment of the whole of it, and brings this suit for the failure on the part of defendant to perform in one particular. His right seems to us, as it did to the circuit judge, to be clear.
There is a further suggestion that, under the evidence, the carriage that was upon the fair-grounds may be held to be a full-top carriage; but this is not admissible under the findings.
The judgment must be affirmed.
The other Justices concurred.
This cause having been tried before the court without a jury, and a written finding of facts having been requested, I therefore find the facts therein as follows:
1. That on or about January 6, 1883, the plaintiff purchased a livery', stock consisting of horses, carriages, etc. of defendant in which was described two two-seated full-topped carnages, and received from defendant a bill of sale thereof, a copy of which is attached to these findings marked Exhibit A, and which is made a part hereof.
2. That said stock sold and transferred by said bill of sale was in part, at the time of said sale, located upon Kent street in the city of Grand liapids, and a part, being the remainder, was located on the fair grounds just south of the city. Plaintiff received that part of said stock at the barn on Kent street in said city, at the time of the execution of said bill of sale, and was to take possession of that part located at the fair grounds where it was located on the fair grounds.
3. When the agreement was being talked up Dexter Barker, the agent for defendant in charge of the stock in question, stated to the plaintiff that the two-seated full-top carnage at the fair ground was a better carriage than the two-seated full-top carriage at the barn on Kent street.
4. That said plaintiff made no examination of the carriages at the fair grounds at any time, but in fact relied upon the representations made in the city, where the trade was consummated, and upon the bill of sale given, the entire consideration of which, including incumbrances assumed, was the sum of twenty-five hundred dollars.
5. That when negotiations were first opened, some days before they were closed, Ii-win Lampson, a son of the plaintiff, sent another son to the fair grounds who reported to Irwin but not to his father, the plaintiff, what carriages he saw there, but this knowledge was not brought to plaintiff in any manner, and he relied upon the representations made and agreement given, reduced to writing as aforesaid.
6. There was not at the fair grounds any two-seated full-topped car riage, and defendant has never delivered to the plaintiff but one two-seated full-topped carriage. There was at the fair ground a half-topped carriage, the top covering one seat, and the carriage of less value than the one called for by the said bill of sale. Plaintiff never accepted the carriage in lieu of the one called for by the contract, and never in any manner took possession of it or had to do with it, and it still remains at the fair grounds where placed by defendant’s agents.
7. That immediately upon said plaintiff ascertaining that there was no two-seated full-topped carriage at the fair grounds (and shortly after the trade was closed), and only the half-topped carriage was there, he notified defendant of the fact, and that he would not receive such half-topped carriage in lieu of the two-seated full-topped carriage called for by the bill of sale, and that the only reply or claim of defendant was that the half-topped was a full-topped carriage. Plaintiff did in fact, at the time of the sale or shortly thereafter, take possession of the entire stock covered by said bill of sale, except the two-seated full-topped carriage, which the defendant failed to produce and deliver to him at all times.
8. That the full-top two-seated carriage called for by the bill of sale was worth the sum of one hundred and fifty dollars, and plaintiff, by reason of defendant’s failure to deliver the same, was damaged, in that sum.
9. That at the tirhe of the execution of said bill of sale, there was drafted by the agent of the defendant, a chattel mortgage upon the property described in the bill of sale from plaintiff to defendant, and the same was then and there executed by said plaintiff and delivered to said defendant, a copy of which said chattel mortgage is hereto attached and made a part of these findings of fact, and is marked Exhibit B.
10. That the suit was commenced on the 23d day of March, 1883, and on the 6th day of April, 1883, said plaintiff procured a loan of some money from John J. Belknap,-Esq., city clerk of Grand Rapids, and gave him a chattel mortgage to secure the same upon his stock of livery; that said Belknap drafted this, his own chattel mortgage, from the one on file in his office, given to defendant as aforesaid, and in describing said stock in detail, described two two-seated full-top carriages, and so drafted, the same was signed and delivered by plaintiff to said Belknap. That by the execution of this Belknap mortgage and the mortgage to defendant, plaintiff did not intend to claim or exercise ownership over the two-seated half-top carriage, and did not in fact, as neither of the same described it. A true, correct copy of said chattel mortgage to said Belknap is hereto attached, made a part of these findings of fact and marked' Exhibit C. That plaintiff paid no farther attention to the description of property in this chattel mortgage, and did not notice the description of two two-seated full-topped carriages, but that they were included in sriid description.
As conclusions of law from the foregoing facts I find:
1. That defendant having executed and delivered to said plaintiff his bill of sale under the circumstances set forth in the findings of facts, was legally obligated to comply with its conditions and to' deliver, or cause to be delivered, to said plaintiff two two-seated full-topped carriages.
2. That plaintiff, by the execution of the chattel mortgage to defendant, before having knowledge of the breach of the conditions of bill of sale, and by the execution of the chattel mortgage to Belknap, did not waive the breach and accept the half-top carriage in lieu of the one called for by the bill of sale, and its terms relating to the controversy in this cause.
3. Defendant having failed to deliver the two-seated full-topped carriage called for by the bill of sale, and by none of his actions or conduct has plaintiff waived his right to insist upon the bill of sale, executed and delivered by him to the plaintiff, and having delivered only one such carriage, is liable to respond in damages for the carriage not delivered to said plaintiff, and for its value.
4 That plaintiff is entitled to recover the value of the carriage not delivered, from said defendant, and to a judgment against said defendant for $150 and interest from March 6, 1883, being the sum of $15460, and his costs of this suit to be taxed, and judgment is directed accordingly.
Robert M. Montgomery, Circuit Judge.
[The exhibits are omitted. They describe the carriages as “ two two-seated full-top carriages.”]
Amendments to the findings were afterwards made on application of the defendant as follows:
1. The defendant became the owner of the livery stock referred to in said findings on the second day of January, 1883. The representations made by Dexter Barker, as stated in the 3d paragraph of the findings of fact herein, were made previous to that time, and were made to Irwin Lampson, plaintiff’s agent, instead of to the plaintiff. Said Barker was continued in the possession of the property by the defendant, and subsequent negotiations were had with him by the plaintiff, Barker acting as defendant’s agent, which negotiations resulted in the giving of the bill of sale in question, January 6, 1883.
2. The defendant had never seen the carriage at the fair ground, and • did not know its particular description.
3. Irwin Lampson was acting as the agent,for tlio plaintiff in respect to the negotiations for the purchase of said livery stock at the time he sent another son of the plaintiff to the fair grounds as stated in said findings, and such other son was sent by said Irwin to examine that portion of said livery stock that was at the fair grounds.
4. The carriage at the fair grounds referred to in said findings, had a full-top over one of the seats, and a two-seated carriage having a top extending over both seats is known in the trade as an extension top, and are also classed as full-topped carriages.
5. A two-seated carriage having a full top over one seat is not known in the trade as a full-topped carriage, in contradistinction to an extension top.
6. In the negotiations of said livery stock by the plaintiff, there were lists made of the different articles included in said slock, with estimates of the value of each, and the sale was finally made for a gross amount, which was several hundred dollars less than the amount of the valuation made by such lists.
7. At the time of the making of the mortgage by the plaintiff to John J. Belknap, the plaintiff directed said Belknap to make said mortgage to cover the said property as that covered by the mortgage given by the plaintiff to the defendant, as stated in said findings. Said mortgage toBelknap was unpaid at the time of the trial herein, and was of 'record in the office of the clerk of the city of Grand Rapids.
8. I am asked to find as to whether in the dealings between the parties, which resulted in the giving of the bill of sale by the defendant to-the plaintiff, it was not the intention of the defendant to sell and of the plaintiff to purchase all of a certain, livery stock then owned by the defendant, and which included the carriage at the fair grounds, and which did not include more than one two-seated carriage having a top covering both seats. I find in answer to this, that the negotiations-between the parties related to the entire livery stock owned by the defendant, but that the plaintiff did not intend to purchase but a single carriage having a top covering both seats, but on the contrary relied upon the representations of Dexter Barker made to Irwin Lampson, as hereinbefore stated, and the statements contained.in the bill of sale given, him, that there was two two-seated, full-topped carriages in the stock purchased by him. The stock which the defendant owned in fact, included but one two-seated carriage having a top covering both seats.
9. Notice to Irwin Lampson of the character of the carriage at the fair grounds was not notice to the plaintiff. The sending by Irwin Lampson of his brother to examine said stock at the fair grounds, and the subsequent report of this brother to said Irwin, was not in legal effect notice to the plaintiff of t-lie character of the carriage at the fair grounds, which precludes him from maintaining this action.
10. The plaintiff by first declaring in justice court for breach of warranty in the bill of sale to him, did not make an election which precluded him from maintaining an action upon the causes stated in his-amended declaration herein. Said amended declaration was filed'without objection at the time of the trial herein, the defendant’s attorney having previously consented that the' plaintiff might file an amended declaration.
11. The plaintiff can maintain this action for a failure to deliver one. of a number of articles purchased for a gross amount for the whole» without having first offered to rescind the entire contract. | [
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] |
Campbell, J.
Complainant, who is a judgment creditor of Jonathan Sherman, brought his bill to have a deed made by Sherman to ITall, his son-in-law, declared fraudulent and void as against his execution rights. It appeared on the hearing that the sheriff levied on the land before bill filed. The bill as originally drawn omitted this averment, but it was not demurred to, and the testimony was taken on the whole issues. On the hearing the bill was allowed to be amended so as to include this charge, and wo think that as the case stood it was proper.
The sale was made while complainant was urging his demand, and appears, as we think, to have been in contemplation of the judgment. The consideration alleged was $4000, of which $3000 was paid down in cash and a mortgage assumed for most of the remainder and paid.
The testimony consisted largely of facts bearing on the lack of means of Hall to purchase, and of the failure of Sherman to show what had become of the alleged payment. There is a conflict of testimony on the leading facts. The land has remained as before under the management and possession of Sherman, who claims that this is only because his wife has become lessee, which she has, unquestionably, by a written lease, which complainant claims is one of the fraudulent contrivances.
It would not be profitable to discuss all the facts at large. The circuit judge became satisfied that the fraud had been perpetrated, and set aside the conveyance as to complainant’s rights. We are of opinion that this conclusion is' justified by the peculiar testimony of Sherman quite as much as by the facts sworn to by others. In such a conflict, where the testimony cannot all be harmonized, we must use onr best judgment in comparing it.
"We see no reason for disturbing the decree, which must be affirmed. As only Hall appealed, costs must go against him alone in this Court.
The other Justices concurred. | [
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] |
Campbell, J.
Plaintiffs, as lessors of a building, sued defendant on the common counts for use and occupation. The claim they set up on trial was for rent under the covenants of a written lease.
Defendant based her defense on the substitution of a new verbal agreement whereby plaintiffs undertook to repair the building, and she sets up by way of recoupment, damages to her goods in the building.
The agreement which she sought to establish but which the circuit court held insufficient, was that the property was out of repair and she omitted to pay a part of the rent. Plaintiffs gave her notice to quit, and she accepting the notice, at once made arrangements to go into another building, but was induced to remain on the landlord’s agreement to put the premises in order.
As the court took* the case from the jury, and as the whole controversy essentially turns on the legal sufficiency of such an arrangement as defendant sets up, there is no need of touching the minor questions, except possibly as to the form of the pleadings. It seems to have been claimed below that the declaration was really a declaration on the covenants of the lease, and the defendant’s notice attached to her plea not sufficient to reach it. We do not think the declaration can be regarded as based on the written lease, in terms or in effect. Use and occupation may be sued for generally or specially, without reference to the form of the lease, and where the common counts are used such a defense as defendant relies on is proper under the general issue without any notice, except perhaps for a judgment for damages b}r way of recoupment, which the present notice is broad enough to cover, as we think it is also sufficient under plaintiff’s own theory. The question therefore recurs upon the defense itself.
The main reasons set up against it are that it changes a written instrument, and is without consideration because a promise to pay the same rent already covenanted to be paid' is only a promise to -do a duty and forms no consideration for promises by the landlord.
It is agreed on both sides that the original lease did not require the landlord to repair. But defendant offered to show that he had given her notice to quit, and she had accepted it by proposing to act upon it by seeking other premises. This clearly justified her in treating the term as ended. The new agreement, while it adopted the annual rental of the old one, was a distinct and independent lease, valid although verbal, because for less than a year, and fixed 'the rights and duties of both parties. The change in terms negatives entirely the idea that it can be regarded as a continuance of the old lease. There is no rule of law-forbidding the relinquishment of existing contracts and the substitution of new ones in their stead, and that is what was done here.
It was error, therefore, to refuse to allow legal force to the claims of defendant, and the judgment must be reversed, and a new trial granted accordingly.
The other Justices concurred. | [
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Cooley, J.
Action for injury to the ' person. The declaration alleges that on' February 8, 1881, plaintiff was in the employ of defendant as a brakeman on a freight train running from Port Huron to Valparaiso, Indiana, through the city of Flint, and that defendant “did not carefully, skillfully and without negligence run its trains over said road, and did not keep such road and all its appurtenances in good, safe and proper condition, and did ndt keep its. station grounds and platforms, at the city of Flint aforesaid, free from ice, snow and other matter dangerous to the safety of persons employed on said road, and did- not on the day aforesaid and at the place aforesaid provide its engine, then used in making up trains and moving the van which the plaintiff was at work upon, with a skillful and competent engineer, but in all the matters aforesaid neglected its duty in the premises and operated its engine by a fireman who had neither skill, experience nor capacity for such work, and suffered its station grounds, track and platform to become covered with slippery ice and snow, and the space from the track to the platform was obstructed with dangerous snow-heaps so that the whole track,' platform and premises, at the place aforesaid were in an unsafe and dangerous condition through the negligence of the said defendant: By means whereof the plaintiff, while performing his duties as brakeman with all due care and diligence on his part, and in consequence of such negligence and default of the defendant, was thrown with great forc§ and violence from the van upon which he was riding, onto the platform aforesaid, and by. reason of the ice and snow thereon was carried and thrown from such platform over the ice and snow bank aforesaid against the defendant’s track, on the line of its road, and by reason of the negligence and unskillfulness of the fireman aforesaid, while so lying near the track, was run upon by an engine of the defendant, and his left arm broken and mangled,” etc.
On the trial the plaintiff showed that at the time and place named his arm was run upon, and broken and mangled by an engine as alleged, but there was no evidence whatever that any negligence or unskillfulness in the fireman was in any manner concerned in the injury, and it was testified by himself that he voluntarily jumped from the van, and was not thrown from it as he had alleged. His account of the accident is in substance this: The train was manned by one Strickland as conductor and one Flynn and himself as brakemen. It was at Flint, where it had just arrived from Battle Creek. He set the brakes and stopped the train, and then went into the van to put away the flags and get ready for supper. Within four or five minutes the conductor came in and told them they had to go right back to Battle Creek, and they must hurry as quick as they could and get supper. In a minute or two they coupled on behind the caboose and turned away out on the switch, backing towards the west switch near Saginaw street. They then started and went east towards the station. Plaintiff then had his clothes off, preparing for supper. The conductor hallooed to him to get off and get his supper,' and Flynn said, they had better go or they would get left, so he hurried on his clothes, and as he proceeds to say :
“ I got off and run probably two or three steps, probably three or four — -I don’t know how much exactly — and I struck some ice that had been left there from where they had probably been cleaning, and I slipped towards the track and glanced off slanting towards the rail. When I struck the old ice and snow I laid on my back, and something struck my left shoulder; I couldn’t say whether the box of the journal, or the cylinder of the engine, and shoved me probably eight feet forward, till my feet reached where it was a little low, and I couldn’t hold myself any longer, and my back lay on a bank of snovr slanting towards the track, and I slid down between the two, and laid in that shape to protect myself as well as I could. My left arm was run over. I got up after the engine passed, and looked on the ground, and I saw from where I first slipped that there was no ice — probably might have been a little ice — and saw where I slipped, probably a foot and a half or two feet, where there was some old snow left there, the cause of my slipping. This was on the platform. The size of the piece of old snow or ice on the platform was three or four feet wide, and maybe the length of eight feet. It was not where I first struck the platform. If I hadn’t struck the old ice I would have been all right. As I ran ahead, not being able to stop short, I struck this piece of old ice and slipped off from the platform, slanting towards the track. The bank of old ice and snow piled up along the way, more or less, nearly level with the platform, slanting towards the track from the platform, caused me to slide down to the rail. This occurred a little after five o’clock: it wasn’t dark, but cloudy.”
This being the statement of the plaintiff himself we may assume was the strongest statement of negligence against the defendant that could truthfully have been made. The circuit judge was of opinion that it made out no cause of action and so instructed the jury. The only question before us is whether there was error in this conclusion.
The gravamen of the plaintiff’s complaint is that the de fendant has been guilty of negligence to his injury. The only negligence which the evidence tends to establish consists in the failure to beep the ground along by its track, at the place where the injury occurred, free from snow and ice. This, it is said, it was the duty of the railroad company to do, and it should have been made by the company the duty of some of its servants to look after it and see that it was done. Whether provision was made for this does not appear. If it was, and the neglect of duty was that of the servant rather than that of the company, it is conceded that the plaintiff is not entitled to recover: Davis v. Detroit & Milwaukee R. R. Co. 20 Mich. 105; but the plaintiff contends that this duty, like the duty to provide suitable and safe machinery, is one the company cannot delegate, and it is responsible for any injurious consequences resulting from the neglect to perform it. It becomes necessary, therefore, to determine whether any such duty is made out.
It is to be observed that no complaint is made of the track being unsafe or out of order; what is said is, that alongside the track where the brakeman had occasion to alight, and where this plaintiff did alight, the footing was unsafe by reason of the snow and ice not having been removed from it. This place was in the vicinity of the station; but it might have been anywhere else on the line; for the occasions for a brakeman to leave his train are occurring constantly at considerable distances from the station on either side, as trains are loading, making up or passing each other, and also occasionally at places remote from stations; so that an accident like that which happened to this plaintiff might have occurred from a like cause at any point on the line. If therefore it is negligence in the defendant to fail to provide against the possibility of such an accident at one point on its line, it is negligence to fail in the like provision at any other point, though the degree of negligence will doubtless vary with the proximity to the station where the occasions for leaving the train will be most numerous. It seems to result that the defendant at its peril must keep the ground near its track free from snow and ice for its en tire length. It is also to be observed that these substances are not the only ones that might cause a similar accident. A stick, a stone, a piece of baggage or freight lying near the track might in like manner cause a brakeman to stumble and fall, and the company at its peril must provide against the likelihood of such a casualty. So stringent a rule has never been applied to railroad companies, nor could it be without making them insurers against a species of accident which could seldom occur without carelessness on the part of' the person injured.
It was said on the argument that the plaintiff was “ commanded ” to jump from the car, and that this, under the circumstances, .was an improper command and was the cause of the injury. The suggestion has no force. The plaintiff was called to his supper under circumstances implying haste; but there was no command to jump from the train, and the plaintiff determined for himself his action in that regard. If a farmer were to call to his hired man to drive mischievous cattle away, and in hastening to'do so the man should stumble upon an obstruction and injure himself, it might with the same reason be said that the “ command” caused the injury, as to say so in this instance. There was nothing in the call to supper that was either negligent or improper, or from which the conductor had any reason to anticipate injurious consequences. It was not necessary, therefore, to consider what would have been the rule had the plaintiff been acting in obedience to an improper command.
The question which the record presents is not whether this railroad company exercised the highest possible care; very few employers do that, whether they be railroad companies; or master mechanics, or manufacturers or farmers; and the law does not require it, and it may be added that nobody expects it. Whoever engages in any service takes upon himself the ordinary risks of the employment. This is familiar law, and there is nothing in this case to make it in any way exceptional so far as the application of the rule is concerned. The cases of Fort Wayne &c. R. R. Co. v. Gilder sleeve 33 Mich. 133; Mich. Cent. R. R. Co. v. Smithson 45 Mich. 219; McGinnis v. Canada Southern Bridge Co. 49 Mich. 466; and Batterson v. Chicago & G. T. Ry. Co. 49 Mich. 184 have covered this case so completely that nothing remains to be said by us upon it.
The fact that the planking or platform extended as far out as where the accident occurred, does not apjiear to be one of any importance in the case. The accident occurred from running along upon the icy ground near the cars; and the liability to be injured was neither increased nor diminished by the ice extending somewhat over the planking.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, C. J.
November 1st, 1881, the decedent, who was:then a widow bearing the name of Olive L. Brunthaver, entered into the following written agreement with the defendant.
“An article of an agreement between Olive L. Brunt haver, of Erie, Monroe county, Michigan, of the first part, and N. Shepardson, M. D., of Eremont, Ohio, of the second part, witnesseth:
That said party of the first part agrees to furnish to the said party of the second part the suin of three thousand dollars, to be used in the drug business at such place or places as they both may agree upon; and that said party of the second part agrees to give his entire time and experience to the party of the first part in attention to said drug business ; that said party of the first part also agrees to furnish said party of the second part a team, harness and wagon for the express use of said drug business, and that said party of the first part and said party of the second part are to share alike in the profits of said drug business after all the expenses has been paid; that said agreement is to hold good for the term of ten years, unless the party of the first part and the party of the second part agree mutually to withdraw from said drug business, or by their consent change it into some other business; also that the party of the first part and the party of the second part agree that after all the expenses has been paid, the remaining profits, if any, are to be used in the increase of said drug business, both sharing alike in all profits and losses.
In witness whereof we have this day Nov. 1, 1881, subscribed our names.
N. Shepardson, M. D.
Olive L. Brunthaver.”
’ At this time the defendant had a wife living, who was prosecuting proceedings against him for a divorce.
The decedent was holding a mortgage against him for $600, and on the 19th of November, 1881, and nearly three weeks subsequent to the foregoing agreement for going into the drug business, he executed and delivered to her the following paper:
“Erie, Monroe Co., Mich.,. November 19th, 1881.
This is to certify that I have this day made a full and complete settlement with Mrs. Olive L. Brunthaver, and to pay up all my indebtedness to her I have sold to her my two bay mares, harness and buggy for four hundred and fifty dollars, to be delivered to her at any time which she may wish. I also state that I have bought out all interest and right of J. B. Miles, of "Wyandotte, in the Miles drug-store! drugs and fixtures, in my name,, but for Mrs. Olive L. Brunthaver, and with her own money, I acting as her agent by reason of a power of attorney, — said drug-store to be conducted in my name, but for her special interest and profit, — paying for the same twenty-nine hundred dollars of money given me by her for the purpose above stated.
N. Shbpardson, M. D., Agt.
I further state that I have in my possession a combination safe bought of Mr. Peck, which belongs to Mrs. Olive L. Brunthaver, and which is used for the purpose of keeping her papers and money in. Said safe to be used in the said drug-store at "Wyandotte, Mich., for her benefit, and to be delivered with the balance of stock and fixtures into her hands whenever said Olive L. Brunthaver chooses, as she has free and full control of them.
N. Shbpardson, M. D.”
The mortgage was discharged by decedent at the date of this paper. He had already engaged in the drug business at Wyandotte, under the arrangement of November first. June 3d, 1882, the former wife of defendant obtained a decree of divorce from him, and five days later he intermarried with decedent and she died about six weeks afterwards.
The defendant having possession of the mares with the buggy and harness specified in the writing of November 19th, the plaintiff, as special administrator of decedent, claimed the property as belonging to her estate, but the defendant refused to deliver it. The plaintiff then seized it on this writ of replevin. Hnder the rulings of the circuit judge the jury found in favor of defendant.
The plaintiff relied on the writing of November 19th, and the defendant resisted the.action chiefly on two grounds: fi/rst, that the writing of November 19th was not meant to have effect as between the parties, but was simply a contrivance to make it appeal’ that the defendant was not the owner aud to perpetrate a cheat: second, that by means of the instrument of November 1st the decedent andhimself became copartners, and in pursuance of the same agreement this property was furnished by decedent for the use of the firm, and that on her death the right of use and possession devolved to him as surviving partner.
The first proposition was based on defendant’s testimony. He swore that the reason for giving the instrument of November 19th was “'to prevent his first wife and her lawyers getting hold of this property, coming onto the store or anything connected with it; and that it had nothing to do with the payment of any debt; and that he had no settlement with Mrs. Brfinthaver on that day, except that the mortgage had been settled and she signed the discharge on that day; and that there was no settlement on that day in regard to what had been done with her funds in the drugstore ; that he had a power of attorney from her at that time; and that he himself put into said drug-store purchase about six hundred dollars.” The circuit judge adopted as correct the theory of these propositions, and left it to the jury to find in defendant’s favor, if satisfied the facts were as supposed. We are compelled to differ from the circuit judge.
As to the first proposition, it was not competent for the defendant to impeach the paper of November 19th by any such showing as he was allowed to offer. He was not to be permitted to set up that the instrument was a fraud; that it was concocted to screen his property from justice; that the design of the transaction was to conceal his effects so as to preclude his wife, who was suing for a divorce, from having such interest as the law might give her in case the truth was not covered up. The ruling operated to allow him to allege his own turpitude to show that his agreement was a scheme to impose on the court having cognizance of the divorce proceedings, and perpetrate a fraud upon his wife. Public policy will not tolerate such a defense.
The second proposition is equally untenable. What particular effect in point of law may have been wrought to the partnership agreement by the subsequent paper we have no occasion to consider. Admitting that the defendant and the decedent were brought into the partnership relation by the first agreement, the fact is certain that the subsequent intermarriage of the parties worked an instantaneous dissolution of the relation, — Pars. Partn; (3d ed.) 399,462; Lindl. Partn. (3d. ed.) 240, 241, — and the right over this property by the defendant ceased. The firm being dissolved, the privilege to use and hold the decedent’s team, which was nothing more than an incident, terminated at the same time. There was no longer a legal right. The subsequent possession was no more than a license which ceased at her death. lienee, the claim that the defendant was entitled to continue in possession as surviving partner had no basis.
The defendant was allowed to testify concerning several matters which' must have been equally within decedent’s knowledge, and at the same time unknown to others. It is scarcely necessary to refer separately to these rulings. ¥e are not able to affirm them. Downey v. Andrus 43 Mich. 65.
These views dispose of the case as it appears on this record.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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] |
Champlin, J.
This is an action of trover, brought by the plaintiff against the defendant for the conversion of certain ¡line lumber. The defendant pleaded the general issue and gave notice as follows: .
“ Upon the trial of the above entitled cause the defendant will give in evidence, under the general issue above pleaded, one certain tax-roll for the year 1882, upon which was listed and assessed the taxes upon the real and personal property of the township of Golden, (township number 15 north, of range number 18 west,) Oceana county, Michigan, upon which was listed and assessed a tax for the year 1882 upon the property of the plaintiff for a large sum of money, to-wit, two hundred dollars, and a warrant of the supervisor of said township, attached to said assessment roll of said township of Goldpn, for said year 1882.
■ And the defendant will further give in evidence as aforesaid, and show, that the said defendant, Clark B. Genung, is, and was at the time of the alleged injury complained of in said plaintiffs declaration, the township treasurer of the township of Golden, aforesaid.
And the said defendant will further give in evidence upon the trial of said cause, under said general issue above pleaded, that said tax-roll of said township of Golden for said year, 1882, with the warrant thereto attached, was placed in the hands of said defendant, as such township treasurer, by the supervisor of said township of Golden, to- wit, on or about tbe first day of December, A. D. 1882. The said defendant, township treasurer as aforesaid, did as such treasurer, and by virtue of said tax-roll with said warrant thereto attached, with the name of said plaintiff listed upon said tax-roil and opposite the tax above named on said tax-roll, for the tax upon property of the defendant listed and assessed upon the property of said plaintiff, did seize; levy upon and take into his possession, as the township treasurer of said township of Golden, the goods, chattels and personal property of said township, described in said plaintiff’s declaration, and sold a sufficient amount of said goods, chattels and personal property to satisfy the amount of the tax so levied and assessed upon the property of said defendant in said township, as directed by said supervisor’s warrant, for the purpose of satisfying the said tax so levied and assessed by said supervisor, and listed upon said roll, as directed by said warrant attached to said tax-roll.”
On the trial the plaintiff proved title to the property, and its value. He also showed the seizure and sale by defendant. The plaintiff is a resident of Dow, Allegan county, and has been for the last fifteen years. The defendant produced in evidence the tax-roll of the town of Golden for the year 1882, with the supervisor’s warrant annexed, from which it appeared that plaintiff was assessed thereon for personal property, for State, county, township, highway and school taxes. The defendant was township treasurer of Golden, and levied upon and sold the property described in plaintiff’s declaration, in order to collect the tax in question, which was the conversion complained of.
Plaintiff claims that there was a total want of jurisdiction in the supervisor to levy any tax against him, because he was a non-resident of the township, and “ did not hire or occupy a store, mill, place for sale of property, shop, office, mine, farm, storage, manufactory or warehouse in the township of Golden on the second Monday of April, 1882and he also claims “ that the State and county tax assessed to him are excessive, and hence the warrant is void on its face, and could afford no protection to the officer, even if • there had been jurisdiction to levy the tax.” If we grant the facts are as claimed, the conclusion does not follow that the plaintiff is entitled to recover in this form of action against the officer. Merely an excess in the amount of a tax which the supervisor had a right to assess would not render the warrant void, so as to make the officer acting under it liable in an action of tort for enforcing collection of the taxes on his roll. ^ To so hold would make it necessary for the collector to re-cast the entire taxholl, or otherwise to act at his peril. If an excess in the amount of a single tax “ makes the warrant void on its face, so as to afford no protection to the officer,” then it could afford no protection to the officer in the collection of any of the other taxes on the roll, although in every respect legal. A proposition that leads to such absurd consequences cannot be sound law. The warrant, being fair on its face, was sufficient to protect defendant from personal responsibility, as a wrong-doer, against the illegalities claimed to have been committed by the supervisor. Bird v. Perkins 33 Mich. 28.
The judgment of the circuit court is affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, C. J.
The complaint in this case charges that “on the 12th day of March, A. H. 1883, at the township of Centerville and in the county aforesaid [Leelanaw], Henry Kropp, of said township of Centerville, did sell and furnish to him, the said complainant Frank Bodus, a certain quantity, to-wit, one pint of spirituous liquor as a beverage^ without first having executed and «delivered to' the county treasurer of said Leelanaw county the bond required by section nine (9) of Act No. 259 of the Public Acts of Michigan for the year 1881, contrary to the form of the statute in such case made and provided.” The respondent pleaded not guilty to this complaint, and on trial was convicted. The proof was that he made sale of a single pint of spirituous liquor as charged. There was no showing that he was engaged in the business of selling spirituous or other liquors, except the sale which has been mentioned.
The statute provides- “ that it shall not be lawful for any person except druggists to sell, furnish to, or give any spirituous, malt, brewed, fermented, or vinous liquors, or any beverage, liquor or liquids, containing any spirituous, malt, brewed, fermented, or vinous liquors, without first having executed and delivered to the county treasurer of the county in which such business is proposed fo be prosecuted or carried on, the bond required by section nine of this Act.” How: St. § 2270. The bond referred to is the bond required to be given by dealers, and approved by the proper public authorities. Another section imposes a penalty for the violation of the section above recited.
It is contended for the respondent-that the statute applies only to persons engaged in the sale of spirituous and other liquors as a business ; and that the complaint is fatally defective for not showing that the respondent was such a person. And further, that even if the complaint is sufficient the offense is not made out .without evidence that respondent was so engaged in business. This view of the statute was presented in the circuit court and was overruled.
We think the circuit court ruled correctly. The statute punishes single sales by those who have failed to give the required bond, and the offense is made out by proof of the sale and by the fact that the bond has not been given. There is perhaps an assumption in the statute that a party-does not sell unless he purposes to make such sales his business, but his intent in that regard is not made an ingredient in the offense, and does not become the subject of evidence.
The conviction is affiftned.
The other Justices concurred. | [
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] |
Levin, J.
In these cases, consolidated on appeal, the plaintiffs, who were employers of the defendants, seek to enforce against the defendants the employee’s agreement to compensate his employer if, within a given period of time after termination of employment, the employee provided services for a client of his employer.
Defendant Kosco is an accountant. Defendant Roche is an insurance agent. Defendant Independent Agencies, Inc., is a Michigan corporation engaged in the insurance business. Both Kosco and Roche admit they provided services for clients of their former employers.
The contracts of employment provided that the employee would be deemed to have agreed to purchase from his employer the goodwill or business of the employer in respect to a client or customer of the employer to whom the terminated employee rendered service within three years, in Follmer, or five years, in Nolta-Quail-Sauer, following termination of employment for a purchase price determined in accordance with a formula set forth in the agreement. The defendants claim that those contractual provisions violate the statute providing that hereby declared to be against public policy and illegal and void.” MCL 445.761; MSA 28.61.
"[a]ll agreements and contracts by which any person, copartnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are
In Follmer, the circuit court denied defendant’s motion for summary judgment and granted plaintiffs motion for partial summary judgment, holding that the contractual provision did not violate the statute, that the provision was neither unreasonable nor an unreasonable restraint of trade under common-law standards, and that the provision set forth an agreed valuation and not liquidated damages or a penalty.
The Court of Appeals affirmed, holding that the challenged provision did not prevent the defendant "from engaging in his chosen profession” nor "from openly and notoriously competing with plaintiff.” Although the provision for compensation will discourage defendant from acquiring plaintiffs clients, that is permissible under the statute. The covenant does not violate the common law as an unreasonable restraint of trade, and the "damage figures are not a penalty, but an agreed upon valuation of damages.” _
In Nolta-Quail-Sauer, the circuit court granted plaintiffs’ motion for summary judgment saying that "the subject agreement as sought to be enforced under Count V is not illegal or contrary to public policy * * *.” The court denied defendants’ motion for summary judgment. The Court of Appeals rejected defendants’ argument that the agreement was without adequate consideration, but held that the clause which plaintiffs sought to enforce was proscribed by the statute and void as against public policy. _
We hold that the contractual provisions are not violative of the statute relied on by the defendants, and for reasons hereafter stated remand for further proceedings.
I
The challenged contractual provisions seek to protect the employers from the use by their employees of information acquired in the course of their employment. While an employee is entitled to the unrestricted use of general information acquired during the course of his employment **4 or information generally known in the trade or readily ascertainable, confidential information, including information regarding customers, constitutes property of the employer and may be protected by contract. Even in the absence of a contract, an employee has a duty not to use or disclose confidential information acquired in the course of his employment. Such information is often treated as a "trade secret.”
Both accountants and insurance agents have an opportunity to learn information of a confidential nature in the course of their employment. 11 An accountant establishes a relation of confidence with his clients. Because of the nature of the relationship, an accountant may obtain information concerning the client’s personal finances and methods of keeping records. It has been said:
"the business of a certified public accountant is such that the person who actually performs the labor incident thereto acquires an intimate knowledge of the business of the client, preparing audits of the business, income tax returns and other matters very confidential in their nature, and vital to the business itself * * *. [A]s the client learns to know the accountant the desire of a client to have the particular accountant do his work increases to the point where it is almost impossible to change the accountant, owing to the confidential knowledge he has of all the important and vital matters concerning the business * * *.” Racine v Bender, 141 Wash 606, 608; 252 P 115 (1927).
An insurance agent similarly has an opportunity to learn confidential information regarding the customer’s special needs and desires, the expiration dates of his insurance policies, and other valuable information. In reversing a trial court’s decision voiding the nondisclosure provisions of an insurance agent’s employment contract, the Supreme Court of South Dakota said: customer obtained in a confidential business relationship. See Masden v Travelers’ Ins Co, 52 F2d 75, 77 (CA 8, 1931). They also contain expiration dates which are valuable in the highly competitive insurance business since policies are seldom cancelled during their term. State Farm Mutual Automobile Ins Co v Dempster [174 Cal App 2d 418], 344 P2d [821,] 825 [1959].” 1st American Systems, Inc v Rezatto, 311 NW2d 51, 58 (SD, 1981).
"In selling these contracts, he relied on the entire file, not merely a customer list or the expiration dates. * * * Moreover, the files contain personal data on each
An employee who possesses confidential information regarding a client is in a position to exploit that information for the purpose of obtaining the patronage of the client after leaving his employer’s service. In view of the risks presented by an employee’s knowledge of confidential customer information, and the perceived unfairness of allowing the employee to gain a competitive advantage by using it, an employer may protect himself from the unauthorized use of such confidential information by obtaining an agreement that, in the event the employee obtains the patronage of former clients, he will be obliged to pay the employer according to an agreed formula.
An employer is not, however, entitled to enforce a contractual provision which would require an employee to pay for using information labelled confidential which is not in fact confidential. Accordingly, in each case, a determination must be made whether the employee has in fact had access to confidential information which provides him with an unusual opportunity to obtain the patronage of particular clients of his former employer.
Since no such determination was made in the instant cases, they will be remanded for determination of that factual issue. If, on remand, the plaintiff makes the requisite showing, the contractual provision designed to compensate the plaintiff for defendant’s use of confidential information in obtaining the patronage of plaintiffs clients may be enforced.
II
An agreement requiring an employee to pay for using confidential information in obtaining the patronage of his employer’s customers does not violate the statute. See Glucol Mfg Co v Schulist, 239 Mich 70, 74; 214 NW 152 (1927).
Whether such an agreement is characterized as in restraint of trade or not, it must be reasonable to be enforced. To the extent such an agreement provides reasonable protection for the confidential information of the employer, it does not violate the statute and is enforceable. To the extent it goes beyond what is reasonably necessary for the protection of confidential information, it is unenforceable. The courts thus must scrutinize such agreements and enforce them only to the extent they are reasonable.
In determining whether the provisions of such an agreement are reasonable; the courts consider three interests: the public interest, the former employee’s interest in continued employment, and the interest of the employer. Of particular impor tance is the client’s interest in being free to form business relationships with whomever he pleases.
An agreement that unduly limits a former employee’s freedom to go into business for himself or another, or extracts an excessive price for the privilege of doing so, is unreasonable and hence unenforceable. A court may, however, enforce such a contractual provision to the extent that it is reasonable by substituting a reasonable amount for the amount provided in the agreement. These cases aré also remanded for a determination of the reasonableness of the contractual provisions.
Affirmed in Follmer and reversed in NoltaQuail-Sauer, and, in both cases, remanded for proceedings consistent with this opinion.
Williams, C.J., and Kavanagh, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred with Levin, J._
The agreement in Follmer provides in part:
"If, at any time within three (3) years after the termination or expiration hereof, Employee directly or indirectly services any client of Employer, he shall immediately purchase from Employer the goodwill associated with such client. In view of the difficulty in evaluating goodwill, it is hereby agreed that the price of said goodwill shall be measured by the billable time spent by Employer and/or his employees in servicing such client during the 12-month period immediately preceding the date of termination or expiration extended at the billing rates in effect as of such date, but in no event, less than Two Thousand ($2,000.00) Dollars for each such client. It is mutually agreed that this amount will be paid by the Employee to the Employer over a five (5) year period of time with 20% down and the balance in sixty equal payments, including interest at 8-1/2% per annum.”
The agreement in Nolta-Quail-Sauer provides in part:
"5. In the event of termination of Employee’s employment for any reason, if Employee shall, within a period of five (5) years following the termination of his employment with the Company, directly or indirectly provide insurance services for any customer of the Company, Employee shall be deemed" to have elected to purchase the insurance business with respect to such customer from the Company, and upon demand, shall pay to the Company in cash an amount equal to three (3) times the first year’s insurance sales commission payable with respect to any insurance policy purchased by such customer in connection with insurance services rendered by Employee. This provision shall not be deemed a waiver of any rights of the Company against Employee for breach of any provision of this Agreement.”
On appeal to this Court, defendants argue that the contractual provision violates the statute, drawing a parallel between this case and Bernstein, Bernstein, Wile & Gordon v Ross, 22 Mich App 117; 177 NW2d 193 (1970). Defendant suggests that the practical effect of the agreement is to prohibit him from providing services for any of Follmer’s clients, because of the amounts of money that he must pay under the contract. Defendant argues that, although he is free to provide services for other clients and other accounts, the agreement is still a partial restraint of trade and as such violates the statute. Defendant submits that it will be difficult for him to survive on his own without the benefit of his established client contacts.
Defendant further argues that assuming that the plaintiff has a property interest, the agreement could have been drafted more narrowly to protect only trade secrets, including customer lists. A more rational payment schedule could have been provided. Thus, the agreement extracts more than is necessary to protect plaintiffs interests. Defendant argues that the $2,000 minimum payment imposed an undue hardship upon him because it effectively prohibits him from practicing on his own, and that the agreement injures the public and the clients who have decided to employ his services.
Defendant submits that summary judgment should not have been granted because the agreement’s reasonableness was a question of fact and that the agreement extracts a penalty and not fair liquidated damages because it disregards the principle of just compensation in requiring defendant to pay the same amount of money without regard to whether there was solicitation.
Plaintiff answers that defendant is not prohibited from competing and that nothing in the agreement prevents or limits him from doing so in whatever manner he chooses. The covenant in question is merely a contractual agreement of purchase and sale. Accounting practices are frequently bought and sold. Defendant’s obligation did not arise because plaintiff required him to purchase anything, but because defendant freely elected to represent plaintiffs former clients. The terms of the agreement, providing for a 20% down payment and payment in five yearly installments at 8-1/2% interest are reasonable.
The agreement, plaintiff argues, does not violate the statute, because defendant has not agreed "not to engage in any avocation,” etc. Agreements have been upheld which far more substantially discourage competition in Couch v Administrative Committee of Difco Laboratories, Inc, 44 Mich App 44; 205 NW2d 24 (1972), Woodward v Cadillac Overall Supply Co, 396 Mich 379; 240 NW2d 710 (1976), Tweddle v Tweddle Litho Co, 80 Mich App 418; 264 NW2d 9 (1978), and Bannert v American Can Co, 525 F2d 104 (CA 6, 1975), cert den 426 US 942 (1976), reh den 429 US 874 (1976). This is a far more compelling case for the application of those principles, because defendant forfeits nothing, and cannot be restrained from representing anyone. Bernstein and Stoia v Miskinis, 298 Mich 105; 298 NW 469 (1941), relied on by defendant, involved covenants not to compete, and as such are distinguishable. —
Plaintiff argues that the agreement is not unreasonable at common law because defendant has not "contracted himself out of a trade” and the agreement does not "destroy competition and thereby create [a monopoly].”
Finally, plaintiff argues that the agreement does not set forth a penalty or liquidated damages, but rather an agreed valuation.
On appeal to this Court, plaintiff argues that the "purchase of business” provision is not a penalty imposed against Roche for competing with his former employer, but rather is fair and agreed compensation for the loss to plaintiff of its property — particularly customers and confidential information identifying those customers. Plaintiff argues that the agreement does not prevent Roche from competing with plaintiff in the insurance business. If it deters Roche from competing, it does so no more than the provisions approved in the previously mentioned cases.
Plaintiff stresses the investment that insurance companies make in building their businesses and developing customer goodwill, states that it guards its lists of customers and information concerning the customers’ insurance needs, expiration dates of policies, and premiums charged, and shared that information with Roche under a promise of confidentiality. Plaintiff emphasizes that Roche was encouraged to develop client contacts, was reimbursed for the reasonable costs of client development, and that he was supported in this endeavor by advertising at the company’s expense. Plaintiff notes that Roche acknowledged in his deposition that information concerning "expirations” provides an agent with a definite advantage. Plaintiff argues that the formula agreed upon for valuing the goodwill sold was reasonable and "not inconsistent with industry practice.”
Plaintiff argues that the purchase price set forth in the employment agreement was neither a penalty nor a forfeiture, but an agreed upon valuation for the value of the property. Such an agreed upon valuation is permissible where it is difficult to ascertain or estimate the actual damages for breach of contract. The value agreed upon is not so excessive as to amount to a constructive bar on competition (which would call for a reformation to a reasonable amount).
Defendants’ answer that the plaintiff is attempting to prohibit Roche from competing "by imposing a monetary penalty for providing insurance services to customers who happen to be former customers of the Employers.” Defendants argue that paragraph 3 of the employment agreement (no longer relied upon by plaintiff) is a bald restraint of trade and that paragraph 5 is merely the penalty provision for the enforcement of paragraph 3. Defendants contend that Michigan courts are reluctant to enforce covenants not to compete. Defendants argue that the plaintiff no longer claims that Roche wrongfully appropriated confidential information or trade secrets (apparently because it relies only on Count V of its complaint and has dropped the other counts). In any case, defendants say there was no evidence to suggest that Roche wrongfully used trade secrets or confidential information to plaintiff’s detriment. Defendants argue that if plaintiff had the good-faith intention of allowing Roche to purchase insurance business, it would not have included paragraph 3 (the prohibition on selling insurance to plaintiff’s customers) in the employment contract.
Defendants argue that Roche never solicited any of plaintiff’s customers after termination of his employment. All the customers came to him. Defendants argue that the payment is unreasonable because it means that any time Roche sells insurance to a former customer, he must pay plaintiff three times his first year’s commissions.
Defendants submit that the deposition testimony of Roche, relied on by plaintiff, referred to the sale of an entire insurance agency, and not to "casual sales of individual insurance customers” and thus does not support a finding of reasonableness with respect to that formula. The cases involving agreed valuations did not consider the Michigan statute prohibiting anticompetitive agreements, and that statute clearly prohibits this agreement.
"It has been uniformly held that general knowledge, skill, or facility acquired through training or experience while working for an employer appertain exclusively to the employee. The fact that they were acquired or developed during the employment does not, by itself, give the employer a sufficient interest to support a restraining covenant, even though the on-the-job training has been extensive and costly.” Blake, Employment Agreements Not to Compete, 73 Harv L Rev 625, 652 (1960).
See also: Restatement Agency, 2d, § 396(b); Seavey, Agency, § 152(A), (D); Anno: Former employee’s duty in absence of express contract, not to solicit former employer’s customers or otherwise use his knowledge of customer lists acquired in earlier employment, 28 ALR3d 7, § 4. Cf. Russell v Wall Wire Products Co, 346 Mich 581, 590; 78 NW2d 149 (1956):
"[T]he law does not protect knowledge so general as to be common property in the trade.”
Manos v Melton, 358 Mich 500, 508-509; 100 NW2d 235 (1960); Insealator, Inc v Wallace, 357 Mich 233, 248-251; 98 NW2d 643 (1959); Russell v Wall Wire Products Co, fn 4 supra, pp 590-591; Dutch Cookie Machine Co v Vande Vrede, 289 Mich 272, 282-283; 286 NW 612 (1930).
Some commentators have suggested that trade secrets and confi dential information are not forms of property, but are nevertheless protected because of the relation of confidence between the employer and the employee. See, e.g., Note, Trade Secrets Law After Sears and Compco, 53 Va L Rev 356, 364 (1967):
"Historically two principal justifications have been advanced for the protection of trade secrets: (1) the protection of a property right, and (2) the preservation of a confidential relationship with a person who has expended time and creative effort in developing new ideas. However, the Supreme Court laid the property right theory to rest in E I DuPont de Nemours Powder Co v Masland [244 US 100, 102; 37 S Ct 575; 61 L Ed 1016 (1917)], where it concluded that the property being protected was simply the 'secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith.’ This left the confidential relationship as the sole basis for protection of trade secrets. In an oft-quoted phrase, Mr. Justice Holmes stated that 'the property may be denied but the confidence cannot be.’ ”
Similar statements have been made by this Court:
"The essence of the wrong is the breach of confidence, the betrayal of the trust placed in the recipient. As phrased in 4 Restatement, Torts, § 757, p 4:
" 'The theory that has prevailed is that the protection is afforded only by a general duty of good faith and that the liability rests upon breach of this duty; that is, breach of contract, abuse of confidence or impropriety in the method of ascertaining the secret.’ ” Russell v Wall Wire Products Co, 346 Mich 581, 585-586; 78 NW2d 149 (1956).
But see 1 Milgrim, Trade Secrets, § 1.01[2], pp 1-7 if.
2 McCarthy, Trademarks and Unfair Competition, §§ 29:2-29:4.
"[W]here one obtains a trade secret of another either under contract not to divulge the same or because of a relation of confidence or through his employment, he will not be permitted afterwards to make use of such secret for his own benefit or to disclose it to others without the consent of the original possessor of the secret. O & W Thum Co v Tloczynski, 114 Mich 149 (38 LRA 200, 68 Am St Rep 469 [1897]); Sanitas Nut Food Co v Cemer, 134 Mich 370 [96 NW 454 (1903)]; Glucol Manufacturing Co v Schulist, 239 Mich 70 [214 NW 152 (1927)].” Dutch Cookie Machine Co v Vande Vrede, fn 5 supra, pp 279-280.
See also Milgrim, fn 6 supra, § 3.01:
"[T]he law permits the owner of a trade secret to make his secret known to others subject to the contractual duty not to use nor to disclose the secret. The courts observe that whereas the owner of a trade secret has no exclusive right as against independent discoverers, he is permitted to use and disclose his secret pursuant to contractual restrictions, or in reliance upon an implied contract or a confidential relationship.”
"Unless otherwise agreed, after the termination of the agency, the agent:
"(b) has a duty to the principal not to use or to disclose to third persons, on his own account or on account of others, in competition with the principal or to his injury, trade secrets, written lists of names, or other similar confidential matters given to him only for the principal’s use or acquired by the agent in violation of duty.” Restatement Agency, 2d, § 396(b). See also Seavey, Agency, § 152(A), (D); Anno: fn 4 supra, § 4.
Milgrim, fn 6 supra, §§ 2.09[7], 2.09[8], See also McCarthy, supra, § 29.2, and cases cited at fn 7; Anno: fn 4 supra, § 7.
Both contracts acknowledge that there would be confidential information and prohibit use or disclosure.
In Follmer, the contract provided:
"7. Employee shall not disclose or use at any time, except as part of his employment hereunder, either during or subsequent to his employment, any secret or confidential information of knowledge obtained by Employee while employed by Employer either from Employer, its other employees, or its clients.”
In Nolta-Quail, the contract provided that because:
"* * * Employee * * * may receive or contribute to valuable confidential information with respect to the identity, personnel and insurance needs of customers of the Company, and * * * the Company develops and uses such information which it wishes to protect by keeping it secret and confidential for its own use and benefit, * * *
"Unless Employee first shall secure the Company’s written consent, Employee shall not disclose or use at any time either during or subsequent to his employment with the Company, any information with respect to the identity, personnel and insurance purchases or needs of customers of the Company of which Employee becomes informed during said employment, whether or not developed by Employee, except as required in Employee’s duties to the Company, and shall retain all such information in trust in a fiduciary capacity for the sole benefit of the Company.
"2. * * * Upon termination of his employment, Employee shall return all records and documents of or pertaining to the Company, including but not limited to customer lists, reservation lists, sales manuals and all other records then in his possession and shall not make or retain any copy or extract thereof.
"7. In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to an injunction restraining Employee from disclosing or using, in whole or in part, the proprietary confidential information described in paragraph 1 hereof; from rendering any services to any person or legal entity to whom such information, in whole or in part, has been disclosed or is threatened to be disclosed * *
See also Faw, Casson and Co v Cranston, 375 A2d 463 (Del Ch, 1977); Scott v Gillis, 197 NC 223; 148 SE 315 (1929); Ebbeskotte v Tyler, 127 Ind App 433; 142 NE2d 905 (1957). Cf. Foti v Cook, 220 Va 800; 263 SE2d 430 (1980) (partnership agreement).
See also American Republic Ins Co v Union Fidelity Life Ins Co, 295 F Supp 553 (D Or, 1968), remanded for further proceedings 470 F2d 820 (CA 9, 1972); United Ins Co of America v Dienno, 248 F Supp 553 (ED Pa, 1965); Clark-Lami, Inc v Cord, 440 SW2d 737 (Mo, 1969); Corroon & Black-Rutters & Roberts v Hosch, 109 Wis 2d 290, 300; 325 NW2d 883 (1982) (Abrahamson, J., dissenting). But see American Hardware Mutual v Moran, 705 F2d 219 (CA 7, 1983).
The value of such confidential information has been recognized by other courts:
"It seems obvious that both parties appreciate the value of the employer’s list of clients, the data concerning the client’s business, the fees paid to the employer for the services rendered in accounting or auditing services and other similar confidential information which became open to the appellee as a result of her employment.” Ebbeskotte v Tyler, 127 Ind App 433; 142 NE2d 905 (1957).
"Foti and his partners understood the value to the firm of its list of clients, of the data concerning the clients’ various businesses, of the information collected during the making of previous audits, of the financial responsibility of the firm’s clients, and their promptness in paying accounting fees, and of such other information, some of a confidential nature, about clients as would normally be obtained by a partner in an accounting firm.” Foti v Cook, 220 Va 800, 805-806; 263 SE2d 430 (1980).
"A party who develops or possesses confidential information or trade secrets belonging to his employer should not be allowed complete freedom to terminate his association and then use this very knowledge to undercut the employer who had taken him into his confidence. This conduct, which amounts to a virtual 'stab in the back’ gives a competitor an unfair advantage and is inconsistent with our principles of fair play.” United Ins Co of America v Dienno, 248 F Supp 553, 557 (ED Pa, 1965).
"The courts will pierce any subterfuge ostensibly justifying the exaction of a noncompetition covenant by the employer. For example, the mere fact that the employer puts self-serving statements in the 'Whereas’ clause of an employment contract to the effect that many trade secrets will be disclosed cannot itself determine the existence of such secrets in the absence of hard proof:
" 'In self-serving "Whereas” clauses, an employer cannot state that he is going to confide something unique and hush-hush, and then merely disclose the A-B-C’s or Mother Goose Rhymes, and make that the basis of irreparable injury.’ ” McCarthy, fn 7 supra, § 29:16, p 437, quoting from Arthur Murray Dance Studios, Inc v Witter, 62 Ohio L Abs 17; 105 NE2d 685 (1952).
The employer need not prove that the employee "solicited” the client. The distinction between solicitation and non-solicitation is, at best, somewhat artificial and subjective. An employee who arguably has not actively "solicited” clients of his former employer by communication with them either before or after his employment terminates may nevertheless have made use of confidential information in obtaining their patronage.
"All agreements and contracts by which any person, co-partnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.” MCL 445.761; MSA 28.61.
Compare, e.g., O & W Thum Co v Tloczynski, 114 Mich 149; 72 NW 140 (1897) (agreement protecting trade secrets not in restraint of trade) with Scott v Gillis, 197 NC 223; 148 SE 315 (1929) (agreement in restraint of trade).
Weickgenant v Eccles, 173 Mich 695, 699-700; 140 NW 513 (1913); Stoia v Miskinis, 298 Mich 105, 118; 298 NW 469 (1941); Hopkins v Crantz, 334 Mich 300, 304; 54 NW2d 671 (1952).
"[I]f, considered with reference to the situation, business and objects of the parties, and in the light of all the surrounding circum stances with reference to which the contract was made, the restraint contracted for appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them and not specially injurious to the public, the restraint will be held valid.” Hubbard v Miller, 27 Mich 15, 19 (1873).
Hubbard v Miller, 27 Mich 15, 21-23 (1873); Hopkins v Crantz, 334 Mich 300, 304; 54 NW2d 671 (1952):
"The court has the authority to enter a decree according to the facts so as to make the area of restriction a reasonable one.” | [
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] |
Cooley, C. J.
Plaintiff sues the township to recover the amount received by its treasurer on a sale of his property to satisfy a tax assessed against him, and for which he insists he was not liable. He was. not a resident of the township, but had property within it, for which, under certain ■circumstances, he might be there taxable. The circuit judge in submitting the case to the jury told them there was no evidence tending to show that the plaintiff was liable to taxation in the township. Nevertheless he seems to have submitted the question of his liability to them as one ■of fact, and they found for the defendant. This was error, .and requires a reversal of the judgment.
The point is made for the defense that, if plaintiff was not liable to taxation, mandamus is his proper remedy; the amount of the liability being determined by the law itself when the question of fact is determined. But the ■question of fact is not one which can be conveniently tried on mandamus. It will usually involve disputed questions of residence and business, which would render an issue for a jury necessary, and it is therefore more proper that the party should take his controversy immediately to the court ■of original jurisdiction instead of bringing it first to this Court that we may send it there. Besides, the duty of the defendant to satisfy the plaintiff’s demand does not arise upon contract, but from the seizure and sale of his prop erty, and the case differs radically in that particular from Dayton v. Rounds 27 Mich. 82, and the cases following it,, upon which the argument for defendant is based.
The principal questions are, whether the township is liable at all, and if so, for what taxes. It is contended for the defendant that the township treasurer in collecting and paying over taxes is not the agent of the township, but is only an officer whom the electors of the township are required by State law to elect for the performance of certain duties, in some of which the township is concerned, while others concern the State, the county or other municipalities.. This seems to be the view held under the statutes of New York, where it is said the town as such has no treasury,, and the tax collector, after paying over specified sums of money collected to the supervisor, commissioners of highways, superintendent of schools and. overseers of the poor,, pays the residue to the county treasurer. Lorillard v. Monroe 11 N. Y. 392. But the township system in this State is considerably different. We have a township treasury, People v. Bringard 39 Mich. 22, and the township, treasurer, after collecting the taxes, retains in it all except the State and county taxes until orders are presented upon which he may lawfully pay them out. [How. St. § 103S.} The State and county taxes he pays over to the county treasurer. Ibid. The New York cases have therefore no. application.
It was not claimed in this case that the township was liable for the amount of the State and county taxes received by the treasurer, but it is insisted that for all moneys which were to be retained in the township treasury it was liable. This would include school and highway taxes, which the treasurer pays out on orders from the proper school and highway authorities, and which, it appears in this case, he had paid out before the suit was instituted. There is an apparent hardship in holding the township liable for moneys thus paid over; but on the other hand when the plaintiff traces his moneys to the treasury of the township it would seem plain that a right had accrued in his favor which could, not be discharged by subsequent action of the township authorities to which he was in no sense a party. The defendant has received his money and must account to him for it; not to any one else.
It appeared in the case that a portion of the treasurer’s collections was made in township orders ; but that was of no importance. The orders were received at the township treasury as money and were the equivalent of money to the township.
The judgment must be reversed and a new trial ordered.
The other Justices concurred. | [
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] |
Ryan, J.
The plaintiffs in this case are three retired fire fighters who are eligible for both duty disability pensions under Saginaw’s Policemen and Firemen Retirement System, and workers’ compensation benefits. We are called upon to decide two issues. The first is whether the plaintiffs’ duty disability pensions are subject to the offset provision found in § 129.1 of the Saginaw pension ordinance, so that their pension benefits can be reduced by the amount of workers’ compensation benefits they receive. Both the Saginaw Circuit Court and the Court of Appeals held that the plaintiffs’ pensions are not subject to such an offset. We agree.
The second issue presented for review is whether § 161 of the Michigan Worker’s Disability Compensation Act, MCL 418.161; MSA 17.237(161), which allowed police or fire fighters to waive the provision of the WDCA in lieu of "like benefits” prescribed in a municipality’s charter, is applicable to the facts of these cases. We hold that it is not, because the pension plan here was not prescribed in Saginaw’s charter, but rather was provided by ordinance. Vasser v Muskegon, 415 Mich 308; 329 NW2d 690 (1982) (opinion by Williams, J.).
All three plaintiffs in this case, James H. Ban-nan, George J. Kaufman, and Raymond J. Hale, were employed as fire fighters by the City of Sagi naw. In 1978, each' plaintiff filed a complaint against the city in the Saginaw Circuit Court, contesting the city’s practice of deducting from his disability pension benefits the full amount of weekly workers’ compensation benefits he received. The deductions were made pursuant to § 129.1 of the Saginaw City Ordinance. The consolidated actions involve similar facts, all of which were stipulated in the trial court.
Mr. Bannan was employed by the city from 1942 until 1967. Since March 1, 1967, he has received weekly workers’ compensation benefits of $69 or $3,588 annually, pursuant to a decision of the Bureau of Workers’ Disability Compensation. Mr. Bannan became 55 years of age on March 1, 1969, and was retired by the city on May 23, 1969, under the duty disability retirement provision of the city’s pension ordinance. Ord. No. D-l, ch 5, art 1, § 123.1. At this time, he became entitled to an annual pension of $3,479.06. However, since May 23, 1969, the city has deducted the full amount of weekly workers’ compensation benefits paid to Mr. Bannan from the amount of pension benefits to which he is entitled as a disability retirant. Since the amount of his workers’ compensation benefits exceeded his pension benefits, he has received no money from the Policemen and Firemen Retirement System of Saginaw. The amount of offsets in controversy totals $26,383.65.
Mr. Kaufman worked for the city from 1938 until 1973. He became 55 years of age on May 20, 1971. On November 21, 1974, the city voluntarily began paying Mr. Kaufman weekly workers’ compensation benefits, paid retroactively to September 20, 1973, of $104 per week or $5,408 annually. The parties stipulated in the trial court that Mr. Kauf man is entitled to duty disability retirement status as of September 20, 1973. The annual pension to which he is entitled is $10,408.84. Mr. Kaufman’s pension benefits have also been offset by the amount of workers’ compensation benefits received, and the amount in controversy is $33,040.65.
Mr. Hale worked as a Saginaw fire fighter from 1949 until 1974. On March 9, 1974, the city voluntarily began paying him workers’ compensation benefits in the amount of $106 per week, or $5,512 annually. He became 55 years of age on September 14, 1974, and was granted a duty disability pension on that date, in the amount of $8,035.30 annually. As with Messrs. Bannan and Kaufman, the city deducted the full amount of Mr. Hale’s workers’ compensation benefits from his pension benefits. The accumulated offset in controversy is $28,254.65.
In a consolidated opinion, the circuit court found in favor of the plaintiffs. Applying established rules of statutory construction, it concluded that § 129.1 of the city’s pension ordinance, which mandates the offset of workers’ compensation benefits against pension, benefits, is not applicable to a duty disability retirant after he attains 55 years of age. The judgments entered in favor of each of the plaintiffs required the city to reimburse the plaintiffs for pension payments wrongfully withheld, awarded interest on the amount due, and enjoined the city from deducting workers’ compensation benefits paid or payable from future pension bene_fits payable to the plaintiffs. The Court of Appeals affirmed in a per curiam opinion decided October 7, 1982. Bannan v City of Saginaw, 120 Mich App 307; 328 NW2d 35 (1982). The city’s application for rehearing was denied on November 18, 1982. We granted leave to appeal. 418 Mich 880 (1983).
I
Application of Offset Provision (§ 129.1) of Saginaw Pension Ordinance to Over-55 Duty-Disabled Retirees
Saginaw’s pension ordinance, which contains the city’s Policemen and Firemen Retirement System, provides for an offset of workers’ compensation benefits against pension benefits:
"Any workmen’s compensation which may be paid or payable to a member retirant or beneficiary on account of his city employment shall be offset against any pensions payable to such member, retirant or beneficiary. In case the present value of the workmen’s compensation is less than the pension reserves for the pension payable under this ordinance, the present value of such workmen’s compensation shall be deducted from such pension reserves and such pensions as may be provided by the pension reserves so reduced shall be payable under the provisions of this article.” Ord. No. D-1, ch 5, art 1, § 129.1.
The plaintiffs retired under §§ 123-124, which provide for work-related disability pensions. Section 123 provides, in part:
"A member who becomes physically or mentally totally incapacitated for duty, as a policeman or fireman in the employ of the city, by reason of a personal injury or disease, which the board of trustees finds to have occurred as the natural and proximate result of causes arising out of and in the course of his employment with the city, and the medical director, after a physical examination of such member, certifies to the board that such member is physically or mentally totally incapacitated to perform the duties of a policeman or fireman in the employ of the city, shall be retired by the board upon written application filed with the board by the said member or his department head. * * * [Appeal procedure omitted] * * * Upon his retirement he shall be entitled to a pension provided in Section 124.” Ord. No. D-l, ch 5, art 1, § 123.1.
Section 124 provides:
"124.1 A member, who retires at or after his attainment of age 55 years on account of disability, as provided in Section 123, shall receive a disability pension computed according to Section 118. Upon his retirement he shall have the right to elect, in lieu of his straight life disability pension, to receive his disability pension under an option provided for in Section 120.
"124.2 A member who retires prior to his attainment of age 55 years on account of disability, as provided in Section 123, shall receive a disability pension computed according to Subsections 118.1 and 118.3. For the exclusive purpose only of computing his disability pension his credited service shall be increased by the number of years, and fraction of a year, in the period from the date of his disability retirement to the date he would attain age 55 years. Upon his attainment of age 55 years his disability pension shall be recomputed using a final average salary determined according to the salaries at the time he attains age 55 years for the ranks used in computing his final average salary at the time of his disability retirement. In no event shall such recomputed disability pension be less than the disability pension he received prior to his attaining age 55 years. Upon his retirement he shall have the right to elect, in lieu of a straight life disability pension, to receive his disability pension under an option provided for in Subsection 120. To his attainment of age 55 years his disability pension shall be subject to Sections 128 and 129.” Ord. No. D-l, ch 5, art 1, §§ 124.1, 124.2 (emphasis added).
Each of th& plaintiffs retired at or after age 55 pursuant to § 124.1. Section 124.1 contains no reference to the workers’ compensation benefits offset provision of § 129.1. In contrast, § 124.2, which applies to members who retire before age 55, expressly provides that the § 129.1 offset provi sion is applicable to duty disabled retirees until they reach 55 years of age. The question, therefore, is whether the § 129.1 offset provision applies to duty disabled retirees who retire under § 124.1, as did these plaintiffs.
Finding an ambiguity in the pension ordinance, the Court of Appeals employed three familiar rules of statutory construction and applied them to the ordinance to interpret its meaning. Bannan, supra, pp 319-321. Firstly, applying the rule that specific provisions control over general ones in the same statute, the Court of Appeals found that "the last sentence of § 124.2 took precedence over the more general provision of § 129.” Bannan, supra, p 320. Secondly, the Court of Appeals noted that all language in a statute is presumed to have meaning and no part of a statute should be treated as surplusage. In response to the city’s argument that the purpose of the last sentence of § 124.2 is merely to emphasize that under-55 duty disabled retirees are subject to the § 129 offset, the Court of Appeals stated that such an interpretation would render the last sentence of § 124.2 surplusage. Bannan, supra, p 320. The Court therefore concluded that the logical interpretation of § 124 is that the offset applies to duty disabled retirees until age 55, but does not apply thereafter. Ban-nan, supra, p 320. Thirdly, the Court of Appeals construed the ordinance as a whole, finding that § 129 is expressly cross-referenced in three different sections: "(1) in § 122.1 relating to a retirant taking a nonduty disability retirement; (2) in §§ 127. l(b)-127.1(e) pertaining to pensions payable to widows, children, and dependents; and (3) in § 124.2, as previously noted, pertaining to a duty-disabled retiree up to 55 years of age.” Bannan, supra, p 320. The Court concluded that, since § 124.1 does not refer to § 129, the general offset language of § 129 "only applies when expressly cross-referred.” Bannan, supra, p 321. Therefore, the Court of Appeals held that the trial court correctly determined that the § 129 offset does not apply to the plaintiffs, duty disabled retirees who retired after attaining age 55 under § 124.1. Ban-nan, supra, p 321.
Appellant, City of Saginaw, contends that the same rules of statutory construction employed by the Court of Appeals compel the opposite conclusion.
We are satisfied that the Court of Appeals interpretation of the pension ordinance is the correct one, and we agree with the reasoning and result of that portion of its opinion. Moreover, this interpretation is consistent with the policy behind the pension system involved in this case, which is funded in part by mandatory wage contributions. Ord. No. D-l, ch 5, art 1, § 131.2. Members of the system do not participate in the federal social security system. They may take a voluntary retirement at age 55. See footnote 2. We agree with the plaintiffs’ contention that to deprive duty disabled retirees of their earned retirement income, after they have become 55 years of age, is contrary to the underlying purpose of the pension ordinance.
Our holding that the § 129.1 offset does not apply to these plaintiffs is also consistent with the policy of liberally construing-pension laws in favor of the intended beneficiaries. O’Connell v Dearborn Pension Board, 334 Mich 208, 214-215; 54 NW2d 301 (1952). For these reasons, we hold that the pension benefits of duty disabled retirees who retire pursuant to § 124.1 of Saginaw’s pension ordi nance, Ord. No. D-1, ch 5, art 1, are not subject to the § 129.1 offset of workers’ compensation benefits.
II
Applicability op § 161 op Worker’s Disability Compensation Act
The second issue presented is whether § 161 of Michigan’s Worker’s Disability Compensation Act, MCL 418.161; MSA 17.237(161), is applicable to the facts of this case. In pertinent part, § 161 provided:
"Policemen, firemen, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like beneñts, may waive the provisions of this act and accept in lieu thereof such like beneñts as are prescribed in the charter but shall not be entitled to like benefits from both. Nothing contained in this act shall be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees.” MCL 418.161; MSA 17.237(161). (Emphasis added.)
Saginaw’s City Charter contains the following language:
"A complete retirement system shall be provided for policemen and firemen of the city by general ordinance.” Ch XVI, § 1, amended effective January 1, 1965.
The Policemen and Firemen Retirement System is set forth in the city’s ordinances, as discussed above. The issue, then, is whether the "like benefits” provision contained in § 161 of the WDCA is applicable where the retirement plan is provided by ordinance, adopted pursuant to a general provision in the charter.
In its discussion of this issue, the Court of Appeals distinguished Johnson v Muskegon, 61 Mich App 121; 232 NW2d 325 (1975), in which a different panel of the Court of Appeals held that benefits received under a disability retirement plan prescribed in Muskegon’s City Charter were "like benefits” under § 161. The Court found that Johnson was distinguishable from this case, in part because the pension benefits in Johnson were set forth in the city charter. Bannan, supra, p 322. The Court further held that the disability benefits in this case are "primarily retirement benefits,” and therefore not "like benefits” under § 161. Visiting Judge R. B. Martin concurred in the per curiam opinion below, but found it unnecessary to decide whether the pension and workers’ compensation benefits were "like benefits” because the pension benefits are provided by ordinance and, therefore, § 161 is inapplicable.
After the Court of Appeals released its decision in this case, we decided Vasser v Muskegon and Plough v Muskegon, 415 Mich 308; 329 NW2d 690 (1982). In those companion cases, we were confronted with the precise issue presented here. Vasser and Plough involved facts similar to these. A fireman and policeman employed by the City of Muskegon were granted duty disability pensions. Muskegon’s retirement plan had previously been prescribed in the city charter, but, in 1973, the charter was amended to read as follows:
"A complete retirement system shall be provided for policemen and firemen of the City of Muskegon, by general ordinance.” Vasser, supra, p 312.
In both Vasser and Plough, the Workers’ Compensation Appeal Board affirmed the hearing referee’s decision that the plaintiffs were required to elect between pension benefits and workers’ compensation benefits pursuant to § 161 and Johnson v Muskegon, supra. The Court of Appeals affirmed the WCAB. Vasser, supra, p 318.
In Vasser, this Court was equally divided on the issue of the applicability of § 161 to cases in which the benefits are prescribed in an ordinance adopted pursuant to a general provision in the charter. Justice Williams, in an opinion joined by Chief Justice Fitzgerald and Justice Ryan, held that "the language clearly states that the like benefits must be prescribed in the charter, and, thus, there is no room for judicial interpretation.” Vasser, supra, p 320. The opinion states:
"We are bound by the clear statutory language and thus conclude that like benefits must be prescribed in the charter itself for MCL 418.161; MSA 17.237(161) to be applicable. We hold that the pension heneñts in these cases being received pursuant to an ordinance do not satisfy the statutory language, even though the ordinance was enacted pursuant to the charter.” Vasser, supra, p 321 (emphasis added).
In response to Muskegon’s contention that § 161 is applicable because the city charter refers to the retirement plan, Justice Williams stated that such a reference fails to satisfy the clear language of the statute. Vasser, supra, p 321. Moreover, the distinction between a charter pension plan and a plan provided by ordinance "is more than a matter of form,” since a home-rule city’s charter may only be amended with the electorate’s approval, while the enactment of an ordinance is a much simpler procedure. Vasser, supra, p 321. Justice Williams’ opinion concluded that, under the clear and unambiguous language of the statute, the plaintiffs, if entitled, could receive both the pension benefits and workers’ compensation benefits. Vasser, supra, p 323.
In an opinion authored by Justice Levin, however, three members of the Court were "of the opinion that the details of 'like benefits’ need not be set forth in the charter.” Vasser, supra, p 326. Instead, they construed the words "having charter provisions prescribing like benefits” as meaning the charter may direct, authorize, or provide for "like benefits.” Holding that the reference to a policemen and firemen retirement system in the Muskegon charter satisfied the relevant language of § 161, Justice Levin went on to conclude that the benefits provided by the Muskegon ordinance were "like benefits.” Vasser, supra, pp 326-327. Thus, the Court of Appeals decision was affirmed by an equally divided Court.
For the reasons given by Justice Williams in his opinion in Vasser, we are persuaded that § 161 is not applicable to the case before us. Where the language of a statute is clear and unambiguous, the court’s role is to apply it as written. Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307 (1971).
Our resolution of this issue makes it unnecessary for us to determine whether the pension benefits in this case are "like benefits” under § 161 of the WDCA, MCL 418.161; MSA 17.237(161).
The decisions of the Court of Appeals and the circuit court are affirmed.
Williams, C.J., and Brickley, Cavanagh, and Boyle, JJ., concurred with Ryan, J.
Ordinance No. D-l (Saginaw Administrative Code), ch 5; art 1 (hereinafter "pension ordinance”).
Saginaw fire fighters may take a voluntary retirement at age 55. Ord. No. D-l, ch 5, art 1, § 102.1(u).
Two other provisions of the pension ordinance also contain express references to the § 129.1 offset. Ord. No. D-l, ch 5, art 1, § 122.1 (nonduty disability retirees); §§ 127.1(b)-127.1(e) (pensions payable to widows, children, and dependents).
This statute was amended, immediately effective July 24, 1983, to read as follows:
"Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state providing like benefits, may waive the provisions of this act and accept like benefits that are provided by the municipality or village but shall not be entitled to like benefits from both the municipality or village and this act; however, this waiver shall not prohibit such employees or their dependents from being reimbursed under section 315 for the medical expenses or portion of medical expenses that are not otherwise provided for by the municipality or village. This act shall not be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees.” MCL 418.161; MSA 17.237(161).
The parties apparently agree that, since the plaintiffs’ complaints were filed and the decisions of the circuit court and Court of Appeals rendered before this amendment was enacted, it does not apply to this case. Therefore, we express no opinion as to its meaning or applicability.
In Cichecki v Hamtramck, 382 Mich 428, 435; 170 NW2d 58 (1969), we stated that " '[l]ike benefits’ must be legally enforceable rights dependent on the charter and not reliant on the good will of the city council.”
Justice Kavanagh and Justice Coleman concurred. Justice Riley took no part in the decision. | [
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Campbell, J.
This was an action by a tenant against his landlord for disturbance in his enjoyment. The main dispute was concerning the validity of the lease. The testimony tended to show an agreement by parol in April for a year’s tenancy from the beginning of May. The court below held that an agreement by parol for a full term of a jear, to begin in the future, was void under the Statute of Frauds. That statute provides that all contracts for the leasing for more than one year of lands shall be void unless in writing. Comp; L. § 4694. [How. St. § 6181.] ' The only other provision supposed to be involved is that which declares that every agreement which by its terms is not to be performed within one year must be in writing. Comp. L. § 4698. [How. St. § 6185.]
The distinction between an agreement for a lease and the lease itself was pointed out in Tillman v. Fuller 13 Mich. 113. It is very well settled that a lease may be made to take effect in fixture, and that the estate does not begin with the contract, bxxt with the future pei’iod. Young v. Dake 5 N. Y. 463; Trull v. Granger 8 N. Y. 115; Wood v. Hubbell 10 N. Y. 479. It is held in New York, under a statute corresponding to ours, that an agreement by parol for a future term not exceeding one year is valid, and not within the statute. Young v. Dake 5 N. Y. 463. That case is well considered, and is, we think, a fair constmction of the statute, which ought not to be given a strained meaning. The same doctrine has been adhered to in that state, and is re-affirmed emphatically in Becar v. Flues 64 N. Y. 518, where a tenant was held liable for the agreed rent, who had never gone into possession, and had declined to do so.
Concui-ring, as we do, in this view of the law, we think the court below erred in its ruling, and should have allowed a recovery of damages for tbe injury done plaintiff. We note further in tbe record that tbe right of possession seems to have been determined in plaintiff’s favor in proceedings before a commissioner, and we cannot understand why on any theory bis recovery, to some extent at least, was questionable. But as tenant for a year be was of course entitled to larger damages.
Tbe judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Brickley, J.
The questions in this case are whether the creation of a drilling unit by the Director of the Department of Natural Resources, in his capacity as Supervisor of Wells, amounts to a pooling of the legal interests of those whose lands are within the unit, and, if so, whether the Supervisor of Wells may permissibly allocate the production royalties of the well to lands within the unit which are not underlain by oil or gas. We answer the first question in the negative and, therefore, do not reach the second question.
Plaintiffs have leased the oil and gas rights in their 80-acre farm to Shell Oil Company, retaining a 1/8 interest in the production as a royalty. They claim that the Supervisor of Wells, by establishing a 240-acre drilling unit, pooled their royalty interest with the interests of other royalty owners. Plaintiffs further claim that the Supervisor of Wells has ordered royalty payments to be made to all royalty holders on the basis of the relation that each royalty owner’s surface acreage bears to the 240-acre drilling unit. Since it is undisputed that approximately 100 acres of the drilling unit are not underlain by the oil and gas pool, while most of plaintiffs’ land in the unit is underlain by oil and gas, plaintiffs claim that their royalty has been reduced by the amount allocated to the owners of "barren” land. The Supervisor of Wells, Shell Oil Company, and the Northern Michigan Exploration Company (NOMECO), on the other hand, contend that the legal interests of the royalty owners within the unit were pooled by private action pursuant to the leases granting Shell Oil Company and NOMECO the oil and gas rights in the lands within the drilling unit. They also contend that royalties are being properly paid on a surface-acreage basis pursuant to those same leases. In a series of opinions, the Court of Appeals agreed with plaintiffs. We now reverse.
I
An overview of the statutes and regulations regarding the Supervisor of Wells’ power over oil and gas is necessary for an understanding of this case.
The mission of the Supervisor of Wells is to prevent waste in oil and gas drilling. MCL 319.1; MSA 13.139(1), MCL 319.5; MSA 13.139(5). Waste is broadly defined to include the waste of oil and gas and gas pressure, unnecessary surface destruction, and, generally, anything that would tend to unnecessarily damage the above- or below-ground environment. MCL 319.2(1); MSA 13.139(2)(1). More particularly, the drilling of unnecessary wells is twice defined as waste. MCL 319.2(1)(3); MSA 13.139(2)(1)(3), MCL 319.13; MSA 13.139(13). In part, MCL 319.13; MSA 13.139(13) provides:
"The drilling of unnecessary wells is hereby declared waste as such wells create fire and other hazards conducive to waste, and unnecessarily increase the production cost of oil and gas to the operator, and thus also unnecessarily increase the cost of the products to the ultimate consumer.”
To prevent unnecessary wells, and, therefore, prevent waste, the supervisor may establish drilling units. The establishment of a drilling unit prevents unnecessary wells because the size of the unit depends on the area that can be drained by one well, and only one well is allowed in a drilling unit:
"To prevent the drilling of unnecessary wells the supervisor, after conference and recommendation by the board, may fix a drilling unit for each pool. A drilling unit, as contemplated herein, means the maximum area which may be efficiently and economically drained by 1 well and such unit shall constitute a developed area as long as a well is located thereon which is capable of producing the economically recoverable oil or gas thereunder. Each well permitted to be drilled upon any drilling unit shall be located in the approximate center thereof, or at such other location thereon as may be necessary to conform to a uniform well spacing pattern as adopted and promulgated by the supervisor after due notice and public hearing, as provided in this act.” Id.
Furthermore, no one may drill for oil and gas without applying for and receiving a drilling permit from the Supervisor of Wells. MCL 319.23; MSA 13.139(23).
When there is but one owner of all the land in the area the supervisor has designated as a drilling unit, that owner alone may simply apply for a permit to drill. If, however, different persons own the lands within the unit, problems arise. If an individual owner’s land is smaller than the size of the drilling unit established for the oil or gas pool, the owner will be prohibited from drilling, unless unique circumstances would allow a well to be drilled on that land without waste. Therefore, so that the owners of land within a drilling unit can join together to apply for a drilling permit, there is the concept of pooling.
The term "pooling” has been defined as a term "properly used to denominate the bringing together of small tracts sufficient for the granting of a well permit.” Williams and Meyers, 8 Oil and Gas Law, p 554. Private pooling agreements generally provide for the manner in which the production of the single well in the unit will be distributed to the landowners. See 8 Williams and Meyers, supra, pp 555-556. On the subject of pooling, MCL 319.13; MSA 13.139(13) provides:
"The pooling of properties or parts thereof shall be permitted, and, if not agreed upon, the supervisor after conference with and recommendations by the board, may require such pooling in any case when and to the extent that the smallness or shape of a separately owned tract or tracts would, under the enforcement of a uniform spacing plan or proration or drilling unit, otherwise deprive or tend to deprive the owner of such tract of the opportunity to recover or receive his just and equitable share of the oil or gas and gas energy in the pool. * * * All orders requiring such pooling shall be upon terms and conditions that are just and reasonable, and will afford to the owner of each tract in the pooling plan the opportunity to recover or receive his just and equitable share of the oil or gas and gas energy in the pool as above provided, and without unnecessary expense, and will prevent or minimize reasonably avoidable drainage from each developed tract which is not equalized by counter drainage. The portion of the production allocated to the owner of each tract included in a drilling unit formed by voluntary agreement or by a pooling order shall, when produced, be considered as if it had been produced from such tract by a well drilled thereon.”
Additionally, the Supervisor of Wells has promulgated the following rules regarding pooling:
"The lessees or lessors, or both, of separate tracts or mineral interests which lie partially or wholly within an established drilling unit may pool or communitize such tracts or interests to form full drilling units and to develop such units in accordance with the provisions of these general regulations and any applicable order of the supervisor.” 1979 AC, R 299.1204.
"The supervisor may require the pooling of tracts or mineral interests within a drilling unit when the owners of such tracts or mineral interests have not agreed, or do not agree, upon the pooling of said interests to form full drilling units in accordance with these general regulations and any applicable spacing order. Such compulsory pooling shall be done on a basis which will permit each owner of an interest within a drilling unit the right and opportunity to receive his just and equitable share of the production from the unit. Compulsory pooling shall be adopted by the supervisor only after public hearing as provided in R 299.2004, after conference with and recommendation by the advisory board, for the purpose of preventing waste, and to prevent the drilling of unnecessary wells.” 1979 AC, R 299.1205(1).
II
The Northern Trend, a relatively narrow trend of Niagara rock, 12 to 23 miles wide, extends across the northern portion of the lower peninsula. Small areas of gas-bearing reefs (normally limestone formed by the bodies of marine - animals surrounded by non-porous rock) are scattered throughout. The present case involves lands over the Grant 13-23N-12W Salina-Niagaran Formation Pool (Grant-13 Pool).
In 1968, appellant Shell Oil Company entered into from 10,000 to 15,000 oil and gas leases in the northern lower-peninsula area. Among those leases are the ones involved in the present case.
On April 25, 1968, plaintiffs leased to Shell Oil Company the oil and gas rights in their 80-acre farm (two quarter-quarter sections). Also in 1968, other leases were entered into by either Shell Oil or NOMECO with Charles and Anna Svec, and Herbert and Bessie Davis. These leases account for nearly all the land and property rights involved in the present case and were on similar terms. As is typical in the industry, the lessor-landowner retained 1/8 of the production from the land as a royalty, while the lessee received the 7/8 working interest in the oil and gas.
Special Order No. 1-73 of the Supervisor of Wells established 80-acre drilling units for the Northern Trend. This order did not relate to any particular land, but, in effect, forbade drilling more than one well on an area consisting of adjoining quarter-quarter sections. In paragraphs F, G, and H it provided:
"(F) Communitization to Form Drilling Units
"All royalty and working interests within a drilling unit shall be communitized and each royalty owner therein shall participate in the royalty from the well drilled thereon in the relation that the acreage of such owner bears to the total acreage of the unit.
"(G) Statutory Pooling
"In the event there are divided or undivided interests within any unit subject to this order, and the parties are unable to agree on a voluntary plan for the development of the unit, their rights and equities shall be determined by the Supervisor of Wells following a public hearing held in accordance with the provisions of the statute specified herein.
"(H) Exceptions
"Exceptions to this order may be granted by the Supervisor of Wells in accordance with the provisions of the statutes specified herein.”
At the time plaintiffs entered into their lease, no seismic data were available. Surveys were undertaken by Shell in 1972 and by NOMECO in 1973. In 1974, the Grant-13 pool was discovered. Three exploratory wells were then drilled. One well, at the southern end of the pool, is on plaintiffs’ land, originally within an 80-acre drilling unit established by Special Order No. 1-73 and made up of 40 acres of plaintiffs’ land and 40 acres of Svec land. Studies showed the three wells to be located over a common gas reservoir comprising some 400 acres.
In 1974, Shell obtained a drilling permit for the 80-acre Komrska-Svec unit. Then, with the obvious intention of seeking an expanded drilling unit, Shell and NOMECO acquired from Consumers Power Company (NOMECO’s parent corporation) and Herbert and Bessie Davis leases covering an additional 15 acres, filling in all gaps in what Shell and NOMECO would propose as a 240-acre drilling unit.
On December 16, 1974, Shell petitioned the Supervisor of Wells to expand the 80-acre Komrska-Svec drilling unit to 240 acres. Following public hearings, the supervisor, on April 15, 1975, granted the petition over the opposition of the plaintiffs. Among his findings of fact was that one well was capable of draining 240 acres and that 80-acre units would result in unnecessary wells in violation of statute.
On July 31, 1975, Shell and NOMECO entered into an agreement to operate the well, now known as Komrska-Svec No. 1-23, in the now expanded drilling unit. Shell was to be the operator, with full control over drilling. Shell and NOMECO then filed with the Register of Deeds of Grand Traverse County a Declaration of Pooling dated September 26, 1975. The agreement purported to pool the lands in question within the 240-acre unit under the authority of the leases given by the owners of the lands within the unit. Paragraph 16 of plaintiffs’ lease, and of the other leases with some minor differences, provides:
"Lessee is hereby given the right, at its option, at any time and from time to time during the continuance hereof, and whether before or after production, to unitize and pool for development and operation purposes all or any part or parts of leased premises, or rights therein, with any other land in the vicinity thereof, or with any leasehold, operating, or other rights or interests in such other land so as to create units of such size and surface acreage as lessee may desire, but containing not more than 88 acres; provided, however, a unit may be established hereunder containing not more than 640 acres, plus 10% acreage tolerance, if unitized only as to gas rights or only as to gas and condensate. Each unit shall be created by lessee’s recording an instrument identifying the unit so created. Any well drilled or operations conducted on any part of any lands so pooled shall be considered a well drilled or operations conducted on leased premises under this lease, and there shall be allocated to the portion of leased premises included in any such unit such proportion of the actual production from all lands in such unit as such portion of leased premises, computed on an acreage basis, bears to the entire acreage of such unit. The production so allocated shall be considered for the purpose of payment or delivery of royalty to be the entire production from the portion of leased premises included in such unit in the same manner as though produced from such portion of leased premises under the terms of this lease.”
In the meantime, on June 23, 1975, plaintiffs sought review of the Supervisor of Wells’ order expanding the unit. Following a remand to the supervisor for procedural reasons, the circuit court affirmed the order of the Supervisor of Wells expanding the drilling unit. Plaintiffs then took the case to the Court of Appeals.
Plaintiffs attacked the practice of creating drilling units by adding together only quarter-quarter sections of land, instead of simply having the drilling unit follow the contour of the pool. This practice, in combination with the mandated surface-acreage basis for allocating production contained in paragraph F of Special Order No. 1-73, acted to allocate plaintiffs’ royalties to the barren land of others. The Court of Appeals, however, found the use of quarter-quarter sections to establish drilling units to be a reasonable practice.
The Court found that establishing a drilling unit along the exact boundaries of a pool would require the wasteful drilling of many wells to determine the pool’s exact perimeter. The propriety of paragraph F of Special Order No. 1-73 was not decided because the Court found that an administrative remedy existed. The Court suggested that plaintiffs apply to the supervisor for an exception to Special Order No. 1-73 pursuant to paragraph H of that order, declining to assume that the supervisor would not grant an "appropriate adjustment.” The Court noted that MCL 319.13; MSA 13.139(13) requires that production must be allocated on "terms and conditions that are just” when the supervisor compels the pooling of properties, which, to the Court of Appeals, meant that in the absence of evidence of the depth of the pool, production should be allocated in the proportion a royalty owner’s land underlain by the pool bears to the entire pool. The Court refused to consider the applicability of plaintiff’s lease with Shell Oil Company, finding that issue not properly before the Court. 85 Mich App 173, 180; 270 NW2d 550 (1978).
Plaintiffs moved for a rehearing. The Court of Appeals, after being informed by the Supervisor of Wells that the allocation of production was a matter of contract and that the supervisor would not reallocate production in a manner different from that provided in the lease between plaintiffs and Shell, granted the motion. The Court of Appeals ordered the case remanded to the Supervisor of Wells for a reallocation of production in accordance with its prior opinion stating that the lease between plaintiffs and Shell could be offered as a defense to the reallocation.
On remand, the supervisor, after hearings, again held against plaintiffs. The supervisor found that plaintiffs’ lease to Shell authorized Shell to pool the lands in the drilling unit and allocate production on a surface-acreage basis. He also found that Shell had used its power under the lease to pool and allocate. He found that paragraph F of Special Order No. 1-73 voiced but a preference for surface-acre formulas but did not impose the formula on persons who had agreed otherwise. The supervisor stressed that the creation of a drilling unit did not, by itself, pool anything. He ordered that the production of the well be allocated per paragraph 16 of the lease.
The case returned to the Court of Appeals. After setting forth the history of the case and the supervisor’s argument that pooling was accomplished pursuant to paragraph 16 of the lease, the Court stated:
"The fallacy with the supervisor’s holding is that the pooling and creation of drilling units was not done by Shell. The pooling and creation of drilling units was done by the Supervisor of Wells under MCL 319.13; MSA 13.139(13), which provides:
" 'To prevent the drilling of unnecessary wells the supervisor, after conference with and recommendation by the board, may fix a drilling unit for each pool. A drilling unit, as contemplated herein, means the maximum area which may be efficiently and economically drained by 1 well * * *.
" 'The drilling of unnecessary wells is hereby declared waste * * *.’
"This case is remanded to the Supervisor of Wells to adjust the allocation of royalties using the formula set forth in our original opinion.” 115 Mich App 294, 300; 320 NW2d 403 (1982).
We granted the applications for leave to appeal filed by Shell and NOMECO and the Supervisor of Wells. 417 Mich 1042 (1983).
Ill
The essence of this case is plaintiffs’ claim that when the drilling unit was expanded to 240 acres, barren land was included within the unit, transferring some of plaintiffs’ 1/8 royalty interest to the owners of barren land. Had this transfer occurred at the direction of the Supervisor of Wells, we might have to agree with plaintiffs that the action violated the statutes of this state. Michigan is an ownership-in-place state. That is, a surface owner owns the oil and gas beneath his land. Attorney General v Pere Marquette R Co, 263 Mich 431; 248 NW 860 (1933); Quinn v Pere Marquette R Co, 256 Mich 143; 239 NW 376 (1931). MCL 319.13; MSA 13.139(13) provides that when the Supervisor of Wells pools separate ownership interests within a drilling unit and allocates production to those lands he must do so on "terms and conditions that are just and reasonable,” giving each landowner the "opportunity to recover or receive his just and equitable share of the oil or gas.” An order of the supervisor allocating production to barren lands might not meet such a standard. However, we find that the Supervisor of Wells has not pooled the properties involved in the present case. Nor has he allocated the production of the well. Those events took place as a result of private contracts, and, for that reason, plaintiffs’ claim must fail.
The purpose of a drilling unit is the prevention of unnecessary wells. MCL 319.13; MSA 13.139(13) allows the Supervisor of Wells to establish the size of the drilling units in an entire pool. That portion of the statute relating to drilling units makes no mention of altering ownership interests when determining the proper size for drilling units in a pool. Indeed, the ownership of the land involved is not even considered when determining the proper size for the units. 1 Summers, Oil and Gas, § 83, p 279. Therefore, we cannot agree with plaintiffs and the Court of Appeals when they state that plaintiffs’ ownership interest was pooled with the interests of others when the 240-acre drilling unit was established.
We find the case law relied upon by plaintiffs to be quite distinguishable. Hladik v Lee, 541 P2d 196 (Okla, 1975), Petroleum Reserve Corp v Dierksen, 623 P2d 602 (Okla, 1981), Ward v Corporation Comm, 501 P2d 503 (Okla, 1972), and Sunray DX Oil Co v Cole, 461 P2d 305 (Okla, 1967), cert den 396 US 907 (1969), do indeed all suggest that the creation of a drilling unit acts to pool the interests of all royalty holders within the unit and supersedes private agreements. However, drilling units draw their nature from the statutes which authorize their existence. The Oklahoma statute on point provides for the mandatory pooling of royalty interests and for the allocation of production to royalty holders:
"In the event a producing well or wells are completed upon a unit where there are, or may thereafter be, two or more separately owned tracts, any royalty owner or group of royalty owners holding the royalty interest under a separately owned tract included in such spacing unit shall share in the one-eighth (1/8) of all production from the well or wells drilled within the unit, or in the gas well rental provided for in the lease covering such separately owned tract or interest in lieu of the customary fixed royalty, in the proportion that the acreage of their separately owned tract or interests bears to the entire acreage of the unit.” 52 Okla Rev Stat § 87.1(e).
Interestingly enough, the Oklahoma statutes refer to only the automatic pooling of royalty interests. No mention is made of automatic pooling of working interests, that is, the 7/8 interest of the lessees within the unit. Apparently, for that reason, the Oklahoma Supreme Court has made the following statement:
" 'Under Oklahoma law, upon entry of spacing order by Oklahoma Corporation Commission, royalty interests arising from land covered by such order are pooled by operation of law, but working interests therein are pooled only upon a voluntary agreement or upon a separate commission forcing unitization.’ ” Petroleum Reserve Corp v Dierksen, supra, p 605 quoting the syllabus of Whitaker v Texaco, Inc, 283 F2d 169 (CA 10, 1960).
Of course, the Michigan statutes make no mention of the automatic pooling of royalty or working interests in connection with the establishment of a drilling unit. We must therefore conclude that the creation of a drilling unit pools no ownership interest whatsoever. Courts of other states, in quite different fact situations, have apparently reached the same result under their own statutes. See Schank v North American Royalties, Inc, 201 NW2d 419 (ND, 1972); Amoco Production Co v North Dakota Industrial Comm, 307 NW2d 839 (ND, 1981); Alexander v Holt, 116 So 2d 532 (La App, 1959); Hughes v Cantwell, 540 SW2d 742 (Tex Civ App, 1976). The issue which now must be decided is exactly when did the pooling occur in the present case.
Arguably, it was not the creation of the drilling unit which pooled the properties within the unit, but, instead, the pooling and the allocation of production occurred at the time the drilling unit was created because of the existence of Special Order No. 1-73. Again, paragraphs F and G of Special Order No. 1-73 provide:
"(F) Communitization to Form Drilling Units
"All royalty and working interests within a drilling unit shall be communitized and each royalty owner therein shall participate in the royalty from the well drilled thereon in the relation that the acreage of such owner bears to the total acreage of the unit.
"(G) Statutory Pooling
"In the event there are divided or undivided interests within any unit subject to this order, and the parties are unable to agree on a voluntary plan for the development of the unit, their rights and equities shall be determined by the Supervisor of Wells following a public hearing held in accordance with the provisions of the statute specified herein.”
Plaintiffs contend that the lands in the unit were pooled together and production was allocated to those lands by force of paragraph F of Special Order No. 1-73. The Supervisor of Wells, however, claims that paragraph F merely states the obvious, that pooling, either voluntary or involuntary, will occur and that the supervisor has a preference for the surface acreage allocation method. The supervisor claims that paragraph G of Special Order No. 1-73 is the actual pooling provision and it allows the supervisor to pool and allocate only when the parties fail to agree.
The view of the Supervisor of Wells, the party who is charged with the enforcement of the statutes and the party who wrote Special Order No. 1-73, is entitled to deference. See Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513, 519; 158 NW2d 473 (1968); Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977). Nevertheless, we must reject the view of the Supervisor of Wells. While paragraph F could be read in a manner which would permit voluntary pooling, we disagree that the surface acreage allocation method in that paragraph is permissive.
Paragraph F is written in mandatory language and offers not even the suggestion that any formula other than a surface-acreage method would be acceptable for allocating the production of a well. Of course, if both paragraphs F and G refer to the allocation of production, they are in conflict; F mandates allocation under the surface-acreage method, while G allows the parties to agree on the allocation of production. We need not attempt, however, to reconcile these conflicting provisions. If paragraph F mandates pooling or the allocation of production by reference to surface acreage, it is void.
MCL 319.13; MSA 13.139(13) clearly provides that the Supervisor of Wells may only pool lands or allocate production if the parties have not agreed to do so. In part, it states:
"The pooling of properties or parts thereof shall be permitted, and, if not agreed upon, the supervisor after conference with and recommendations by the board, may require such pooling in any case. * * * All orders requiring such pooling shall be upon terms and conditions that are just and reasonable, and will afford to the owner of each tract in the pooling plan the opportunity to recover or receive his just and equitable share of the oil or gas * *
To the extent that an administrative order conflicts with a statute, the order is void. See Coffman v State Bd of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951); Chesapeake & OR Co v Public Service Comm, 59 Mich App 88; 228 NW2d 843 (1975). Therefore, paragraph F cannot be read to pool lands or allocate production when the parties have already done so.
The question remains whether these properties have ever been pooled. The answer is found in the private contract between plaintiffs and Shell. In their lease to Shell, plaintiffs, in paragraph 16, delegated to Shell the power to pool plaintiffs’ lands with the land of others in the unit. Shell took unequivocal action to do so by filing its declaration of pooling in the office of the Register of Deeds of Grand Traverse County. Plaintiffs’ lease specifically provides that the allocation of production in a pooled unit shall be on a surface-acreage basis. Having been given no reason why the contractual agreement in the lease between plaintiffs and Shell should not be respected, we can look only to that lease to determine the rights of the parties. Since plaintiffs delegated the power to pool to Shell and agreed on the formula to allocate the production of the well, it is on those terms that the agreement must be enforced.
Reversed.
Williams, C.J., and Ryan, Cavanagh, and Boyle, JJ., concurred with Brickley, J.
Kavanagh and Levin, JJ., concurred in the result only._
MCL 319.3; MSA 13.139(3) provides that the "director of the department of natural resources shall act as the supervisor of wells.”
This action was initiated by Adeline Werp and her father, Joseph Komrska. Manufacturers National Bank has been substituted for Joseph Komrska, now deceased, under a trustee agreement.
Although the Oklahoma courts use the phrase "spacing unit,” that phrase is synonymous with the phrase "drilling unit.” See 52 Okla Rev Stat, § 87.1(c).
All parties agree that the term "eommunitization” is a synonym for pooling.
Although paragraph G refers to the "statutes specified herein,” no statute is specified therein. It is possible, although not suggested by the supervisor, that paragraph G refers to the joinder of undivided interests under MCL 319.101 et seq.; MSA 13.140(1) et seq., or, perhaps, even to unitization under MCL 319.351 et seq.; MSA 13.139(101) et seq.
Plaintiffs can hardly contend that they relied on paragraph F of Special Order No. 1-73 and, therefore, did not attempt to change the terms of paragraph 16 of their lease through negotiations. They signed the lease in 1967, while the order was not issued until 1973. At the time they signed their lease, it was just as likely that most of their land was barren. Moreover, plaintiffs could have simply refused to lease their oil and gas rights. Had they not leased their rights and had oil or gas been discovered on other lands within the unit they could have forced the supervisor to pool their land on "terms and conditions that are just and reasonable.” MCL 319.13; MSA 13.139(13). | [
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Williams, C.J.
The issue in this case is what should be the proper test for standing to seek suppression of illegally seized evidence where the requirements for both standing and the offense charged involve proof of a possessory interest. This issue relates to the police seizure of a stolen trailer from the open access parking lot of an abandoned restaurant. As to whether the defendant in this case has standing to challenge the search and seizure of that trailer, due to the inadequacy of the record we think it appropriate to remand this case to the trial court for a new suppression hearing. In addition, since the determination of the standing issue may make it unnecessary to resolve a second issue of whether the evidence resulting from the seizure should have been excluded, we will not reach this latter issue.
Defendant claimed "automatic standing,” citing People v Godwin, 94 Mich App 286; 288 NW2d 354 (1979), and arguing that because Const 1963, art 1, § 11 varies slightly from US Const, Am IV, it requires a more liberal interpretation. Godwin relied on Jones v United States, 362 US 257; 80 S Ct 725; 4 L Ed 2d 697 (1960). Plaintiff contended that the test of "reasonable expectation of privacy” set forth in United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980), which overruled the "automatic standing” test of Jones, applies.
For this Court, this issue under art 1, § 11 of the Michigan Constitution is for all intents and purposes an issue of first impression since Jones and Salvucci. For the United States Supreme Court, this issue under Am IV was settled in Salvucci. Under Salvucci, pp 92, 95, the test for standing is a "reasonable expectation of privacy.” Furthermore, Salvucci, p 85, expressly overruled the Jones test of "automatic standing.”
This Court’s first inquiry must be whether there are any policy considerations which commend the "automatic standing” test over the "reasonable expectation of privacy” test, and whether anything in the differences in language between art 1, § 11 and Am IV requires us to choose one test over the other. Upon consideration, we conclude that there are no policy considerations which incline us to adopt the "automatic standing” test and that there is nothing in the differences in language between art 1, § 11 and Am IV that requires or suggests the adoption of the "automatic standing” test. We adopt a "reasonable expectation of privacy” test consonant with our search and seizure precedents. We reverse the judgment of the Court of Appeals and overrule Godwin.
I. Facts
Defendant Smith was charged with receiving and concealing stolen property of a value over $100, to wit: a 45-foot van-type trailer. MCL 750.535; MSA 28.803. Following the preliminary examination, defendant, inter alia, filed a motion to suppress the trailer as evidence against him. Thereafter, an evidentiary hearing was conducted at which only one witness testified. That witness, Norman Anderson, was an investigator from the Wayne County Prosecutor’s Office.
In October of 1979, Mr. Anderson was provided with information concerning the theft of certain automobile transmissions. He learned that the stolen transmissions had been sold to a company in Dallas, Texas. In November of 1979, Mr. Anderson went to Dallas to investigate this report. He interviewed several employees of the recipient company. He was told that two tractor-trailer rigs had delivered the transmissions. One of the tractors was a Peterbilt and the other was a Ken-worth. The trailers were silver and appeared to be new. In addition, Mr. Anderson received four checks that had been given to the drivers of the vehicles in payment for the transmissions. One of the checks had been made payable to a Mr. Carr, and the other three were made payable to defendant Smith. The checks were indorsed by the parties and were marked with their operator license numbers. All of the checks had been cashed. These facts weye the basis of a different case against Messrs. Carr and Smith.
Several days after Mr. Anderson returned to Detroit, an attempt was made to locate Mr. Carr and defendant Smith. On the morning of November 14, 1979, while in the company of FBI agent Tom Love and State Police officer Lyle Schroeder, Mr. Anderson went to Mr. Carr’s residence on Gainesboro, four and one-half blocks from Avon and Grand River in Detroit. They knocked on Mr. Carr’s door, but no one answered. The officers drove away, and at the intersection of Avon and Grand River they saw two tractor-trailer rigs parked in an abandoned restaurant lot. There was a fence around the lot, with two large openings in it for access. Upon closer inspection of the vehicles, the officers observed that one of the tractors was a Kenworth and the other was a Peterbilt. Inside the window of the Peterbilt, one of the officers saw a nameplate bearing defendant Smith’s name. The trailers looked relatively new. The Kenworth tractor was still attached to one of the trailers, and the Peterbilt was parked immediately in front of the second trailer. The first trailer bore vehicle identification numbers (VIN) indicating that it was a Fruehauf. The other trailer was unmarked except for two mud flaps on which were printed the name Fruehauf.
The officers ran a check on the license plates of the vehicles. They learned that the license plates on both trailers were registered to defendant Smith. In addition, although the plates had different numbers on them, they had both been assigned to the same Fruehauf trailer. The officers located the VIN on the first trailer and discovered that it was the trailer to which both license plates had been assigned. They were unable to find the VIN on the second trailer. They found the spot where the VIN plate is normally located, but the plate had been removed. The rivet marks were still apparent. The trailer also looked as though it had recently been painted.
Mr. Anderson left the scene and returned to the police station. The State Police officer remained at the scene. In an effort to find out where the hidden VIN on the second trailer might be, Mr. Anderson attempted to contact someone in the commercial theft department. Mr. Anderson was unsuccessful in his attempt and thus decided to call Fruehauf. An employee of the company told him where the hidden VIN was located on Fruehauf trailers. Mr. Anderson returned to the parking lot. He had been gone for approximately 1 to 1-1/2 hours.
When Mr. Anderson arrived at the lot, he crawled under the second trailer to look for the hidden VIN, but he was unable to find it. Apparently, different manufacturers put the hidden VIN in different locations. The officers then compared the physical appearance of the first trailer, which they knew to be a Fruehauf, with that of the second trailer. The two trailers were substantially dissimilar. The officers concluded that the second trailer was not in fact a Fruehauf. The officers then called a tow truck to have the trailer removed. About 1 to 1-1/2 hours later, the tow truck arrived. The trailer was towed to Cover Service in Romulus. One of the officers called the National Auto Theft Bureau to have the trailer identified. Personnel from the bureau arrived the next day, located the hidden VIN, and confirmed that the trailer was stolen.
Mr. Anderson testified that approximately 3 to 3-1/2 hours elapsed from the time he first saw the trailer until the time the trailer was towed away. Mr. Anderson further stated that after they first discovered the trailer, they discussed the possibility of obtaining a search warrant, but decided against it. No search warrant of any kind was ever obtained.
Upon the basis of the above information, the trial court granted defendant’s motion to suppress, ruling that the officers should have obtained a warrant before they seized the trailer. On appeal, the prosecutor contended that defendant lacked "standing” to challenge the propriety of the seizure. The Court of Appeals rejected this argument, holding that defendant had "automatic standing” to challenge the seizure under art 1, §11 of the Michigan Constitution, and that the police were obliged to obtain a warrant before they seized the trailer. People v Smith, 118 Mich App 366; 325 NW2d 429 (1982).
II. Defendant’s Contention as to Standing
To begin with, the issue here is not whether the government had the right to seize the trailer. The issue is whether the defendant had "standing” to object to the introduction of evidence of the results of that seizure.
"Standing has been called one of 'the most amorphous [concepts] in the entire domain of public law.’ ” Flast v Cohen, 392 US 83, 99; 88 S Ct 1942; 20 L Ed 2d 947 (1968). "Standing” relates to civil as well as criminal matters. The basis for "standing” to challenge a search or seizure may be possession, physical location, or right to privacy, among others.
Defendant contends there is another and differ-. ent basis for standing from any of the above, i.e., "automatic standing,” "where the defendant is charged with an offense that includes as an [essential element of the] offense charged the possession of seized evidence at the time of the contested search and seizure.” Defendant relies on the Michigan Court of Appeals case of People v Godwin, supra. Godwin relied on Jones v United States.
It is true that both Godwin and Jones support defendant’s contention. However, the "automatic standing” rule of Jones was limited in Rakas v Illinois, 439 US 128, 142-143; 99 S Ct 421; 58 L Ed 2d 387 (1978), and overruled in United States v Salvucci, supra, p 85. Defendant, however, does not discuss the federal law and relies on Const 1963, art 1, § 11 and Godwin rather than on US Const, Am IV.
If defendant convinces us that the rationale in Godwin and Jones is superior to that in Rakas and Salvucci and that Const 1963, art 1, § 11 should be construed to grant defendants greater "standing” rights than they possess under US Const, Am IV, we should consider adopting the "automatic standing” rule. However, we are not so convinced on either score.
Defendant’s arguments for his rationale fail to persuade us for at least the following three reasons:
1. The self-incrimination rationale on which God-win and Jones rely is inapplicable because, in fact, trial procedures protect defendant against self-incrimination.
2. The "automatic standing” rule attempts to invoke an art 1, § 11-Am IV right vicariously, but the art 1, § 11-Am IV right, like other rights, is personal.
3. While we have on occasion interpreted art 1, § 11 more liberally than the United States Supreme Court has interpreted Am IV, we do not find anything in the differences in language between the state and federal constitutions or in our precedents that requires us to adopt defendant’s position.
III. Self-Incrimination Rationale for Standing Is Inapplicable
The first reason for rejecting defendant’s rationale for suppression is that it relies on the right against self-incrimination, but there is actually no self-incrimination involved. Defendant urges the "automatic standing” rule to protect against placing the defendant in a so-called "dilemma.” The "dilemma” was posited by the United States Supreme Court in Jones v United States, supra, p 262, to support the adoption of the "automatic standing” rule under the Fourth Amendment. It was premised upon the fact that various federal circuit courts of appeal at that time had required the defendant to have “standing,” either to “have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched.” Jones, supra, p 261. Since at that time there was no rule barring the admission against the defendant at trial of evidence introduced at a suppression hearing, the defendant frequently found himself faced with the “dilemma” of choosing between establishing “standing” by alleging that he possessed the item, thereby risking the possibility that such evidence would be used against him at trial, or not establishing “standing” and not being permitted to seek suppression of illegally obtained evidence. The Jones Court found this situation intolerable in cases where possession of the seized evidence was an essential element of the charged offense. In these cases, possession would both confer “standing” and convict. Therefore, the Jones Court sought to remedy this situation by giving the defendant "automatic standing” to seek the suppression of evidence.
In the instant case, defendant does not allege that he has been pinioned by this “dilemma.” In fact, in the wake of Simmons v United States, 390 US 377, 390-394; 88 S Ct 967; 19 L Ed 2d 1247 (1968), no . defendant can find himself faced with this "dilemma.” The Simmons Court held that pursuant to the federal constitution a defendant’s suppression hearing testimony cannot be used as evidence of guilt against the defendant at trial. We have recognized the principle set forth in Simmons, and we reaffirm our commitment to that principle. See People v DeClerk, 400 Mich 10, 18-19; 252 NW2d 782 (1977). As a consequence, the fundamental tenet upon which the "dilemma” was posited has been eliminated, and along with it the "dilemma” itself. See United States v Salvucci, supra, pp 89-90. See also Brown v United States, 411 US 223, 228; 93 S Ct 1565; 36 L Ed 2d 208 (1973). Therefore, we cannot accept the "dilemma” as supporting the adoption of the "automatic standing” rule.
The Court of Appeals in this case chose to follow the rationale of Justices Marshall and Brennan in their dissent in Salvucci. 118 Mich 374. In his opinion, Justice Marsháll argued:
"I cannot agree that Simmons provides complete protection against the 'self-incrimination dilemma’ * * *. Respondents contend that the testimony given at the suppression hearing might be held admissible for impeachment purposes and, while acknowledging that that question is not before us in this case, the majority broadly hints that this is so. * * * The use of the testimony for impeachment purposes would subject a defendant to precisely the same dilemma, unless he was prepared to relinquish his constitutional right to testify in his own defense, and would thereby create a strong deterrent to asserting Fourth Amendment claims. * * * Simmons, therefore, does not eliminate the possibility that a defendant will be deterred from presenting a Fourth Amendment claim because of 'the risk that the words which he utters may later be used to incriminate hijn.’ ” 448 US 96, 97.
With due respect to the Court of Appeals and Justices Marshall and Brennan, we cannot agree that the possibility of defendant’s testimony in favor of suppression being used to impeach him in the main trial justifies the "automatic standing” rule. It is one thing to protect a defendant from the dilemma of having to testify that there was possession to obtain standing at the cost of having that testimony used to incriminate him at trial. It is an entirely different proposition to give defendant protection against exposure of his lying at trial by denying the use of his suppression motion testimony. See People v Graham, 386 Mich 452; 192 NW2d 255 (1971); Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). However, we agree with the majority in Salvucci that the issue whether the Simmons privilege should extend to exclude such impeachment is best treated in a proper case. Salvucci, supra, p 94.
In sum, we do not find merit in any of the above arguments advanced that defendant should have "automatic standing” to argue suppression of evidence because of an allegedly illegal search or seizure, because with the Simmons change in procedure the defendant’s right against self-incrimination is not jeopardized.
IV. Constitutional Rights Are Personal Only
The second reason for rejecting defendant’s rationale for suppression is that the "automatic standing” rule attempts to invoke the rule for suppression of illegal search or seizure evidence vicariously, although the art 1, § 11-Am IV right is personal. At the outset, we note that constitutional protections are generally personal. They cannot be asserted vicariously, but rather only "at the instance of one whose own protection was infringed by the search and seizure.” Simmons v United States, supra, p 389. This Court enunciated this principle as follows:
"The right to suppression is personal to the one whose right to privacy was violated.” People v Warner, 401 Mich 186, 203; 258 NW2d 385 (1977) (opinion of Williams, J.).
Stated differently, only an individual who "belongs to the class for whose sake the constitutional protection is given” can seek to invoke its protection. New York ex rel Hatch v Reardon, 204 US 152, 160; 27 S Ct 188; 51 L Ed 415 (1907). See People v Warner, supra, pp 203, 209; People v Norwood, 312 Mich 266, 272; 20 NW2d 185 (1945), and cases cited therein; People v Oaks, 251 Mich 253, 255; 231 NW 557 (1930); People v Joshua, 32 Mich App 581, 585; 189 NW2d 105 (1971), lv den 386 Mich 758 (1971), cert den 409 US 853; 93 S Ct 183; 34 L Ed 2d 96 (1972); United States v Salvucci, supra, p 86; Rakas v Illinois, supra, pp 133-134; Brown v United States, supra, p 230; Aiderman v United States, 394 US 165, 171-172, 174; 89 S Ct 961; 22 L Ed 2d 176 (1969); Simmons v United States, supra, p 389; Jones v United States, supra, p 261. In urging us to embrace the "automatic standing” rule, defendant is necessarily advocating a departure from the above well-settled principles because the "automatic standing” rule would provide a defendant with "standing” regardless of whether he was asserting his own rights or those of another. See Rakas v Illinois, supra, p 135, fn 4.
V. Should the Michigan Constitution Be Interpreted More Liberally Than the Federal?
The third reason for rejecting defendant’s rationale for suppression is that he fails to advance any meritorious reason why art 1, § 11 should be interpreted any differently than Am IV. Defendant argues that this Court has traditionally imposed higher standards under art 1, § 11 than the United States Supreme Court has imposed under the Fourth Amendment. The two provisions follow:
"The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.” Const 1963, art 1, § 11.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” US Const, Am IV.
The defendant seems to argue that the more liberal standing under the Michigan Constitution has been attributed to the difference in wording between art 1, § 11 and the Fourth Amendment. See People v Secrest, 413 Mich 521, 525; 321 NW2d 368 (1982). He points out that where the Fourth Amendment uses the word "effects,” the Michigan provision substitutes the word "possessions.” He concludes that this distinction provides a basis for affording greater rights under art 1, § 11 than those enjoyed under the Fourth Amendment and that, hence, we should adopt the "automatic standing” rule.
We acknowledge that in the past we have on occasion offered defendants greater protection under art 1, § 11 than the Supreme Court of the United States has offered under the Fourth Amendment, and in a proper case we will do so again. We are unable to accept, however, defendant’s suggestion that this has consistently been the case. In People v Secrest, supra, p 525, we stated that the differences in wording between art 1, § 11 and the Fourth Amendment could provide a basis for imposing higher standards under art 1, § 11 than under the Fourth Amendment:
"There are differences in wording between the two. As a result, we have imposed a higher standard under the state provision than the federal where the item seized is not one within the proviso of the third sentence of art 1, § 11. People v Moore, 391 Mich 426, 435; 216 NW2d 770 (1974). People v Beavers, 393 Mich 554, 567-568; 227 NW2d 511 (1975) ”
Nonetheless, we have never stated that the difference in wording between art 1, § 11, exclusive of the proviso of the third sentence, and the Fourth Amendment mandates a higher standard in every case. In fact, this Court, in People v Nash, 418 Mich 196; 341 NW2d 439 (1983), specifically stated that "we have not * * * created any per se higher standard” and that we will only accord defendants greater rights "where there is compelling reason.” In the present case, we are not persuaded that such a compelling reason exists.
In fact, we are not even convinced that the difference in wording is indeed a difference in meaning as it affects this case. The terms "possessions” and "effects” are virtually identical in meaning and are often used interchangeably. Webster’s New Collegiate Dictionary (2d ed), p 262, supports this conclusion in that it defines "effects” as "[g]oods; possessions” (emphasis added).
Thus, we reject defendant’s argument that the difference in wording between art 1, § 11 and the Fourth Amendment requires adopting the "automatic standing” rule which would offer defendants greater protection under the state constitution than under the federal constitution.
VI. "Reasonable Expectation op Privacy” Test
Since neither constitution nor public policy requires or commends the "automatic standing” test, the next obvious question is what test should this Court adopt for search and seizure "standing.” In the past we have employed various tests to determine whether a defendant has "standing.” We now find that the development of jurisprudence has made these tests obsolete. We therefore adopt a new test, the "reasonable expectation of privacy” test.
A. Prior Michigan Standing Cases
Historically, the earlier Michigan standing cases used a possessory test. People v Norwood, supra, p 272 (rights in the premises); People v Oaks, supra, p 255 ("merely a tenant of a stall in [another’s] garage” — "not defendant’s home” insufficient); People v Bartoletta, 248 Mich 499, 501; 227 NW 763 (1929) ("[w]hether the officers were in and at the saloon in violation of the constitutional right of its proprietor to be secure against unreasonable searches and seizures is no concern of defendant” driving a car full of beer to a saloon); People v Azukauckas, 241 Mich 182, 184; 216 NW 408 (1927) ("[t]he protection accorded homes may well be left to the householder to assert and we can see no reason for letting the 'guests’ raise the question of immunity”); People v Anscomb, 234 Mich 203, 206; 208 NW 45 (1926) ("difficult to see how this defendant could complain of an act unlawfully committed in the search of another’s home”). All these cases arose during the era of Prohibition and demonstrate two things. First, "standing” is related to ownership. Second, "standing” is a personal right that cannot be exercised vicariously.
These cases parallel the contemporary federal case law to a considerable extent. See Jones v United States, supra, pp 265-267. However, it is a parallel development rather than .a. following of precedent, because the Michigan cases were decided at a time when the states were free to fashion their own rules as to the exclusion of evidence. Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961); Wolf v Colorado, 338 US 25; 69 S Ct 1359; 93 L Ed 1782 (1949). See also 78 ALR2d 246, 250-251.
The next significant and only other search and seizure standing case is People v Gonzales, 356 Mich 247; 97 NW2d 16 (1959). In Gonzales an automobile was stopped by two police officers after they observed that a headlamp was not burning. The driver was taken back to the scout car by one of the officers for purposes of issuing a citation. Meanwhile, the second officer ordered the passengers, one of them the defendant, out of the car "so he 'could check it.’ ” People v Gonzales, supra, p 251. He then saw the butt of a pistol sticking out from under the front seat and picked it up. The defendant admitted ownership of the gun, and a search of his person uncovered a .38 caliber cartridge. On the merits, the Court held that under these facts the police had no right to search the car in which defendant was riding.
With reference to defendant’s "standing” to attack the constitutionality of the search and seizure, and without citation of authority, this Court stated:
"Further, we believe that on the facts in this case defendant had the right to raise the constitutional objection. There is no showing of any waiver of the objection by anyone. And though defendant apparently had only the status of a passenger, when the first requirement of the search (and a material one to its outcome) was that defendant remove himself from the seat in the automobile where he had a right to be, we regard the search as directly affecting him.” People v Gonzales, supra, p 257.
It is clear from its language that this Court was particularly impressed with defendant’s right to be in the car. See People v Sims, 23 Mich App 194, 198-200; 178 NW2d 667 (1970), aff'd 385 Mich 621; 189 NW2d 41 (1971).
Gonzales preceded the federal Jones case by a year, but its holding was similar to that of Jones in rejecting the refusal to grant standing to "guests” and "invitees.” Jones, supra, p 265. Thus, Gonzales, without expatiating on the subject, moved away from the narrow "ownership” test for standing of the previous cases. Jones, however, did speak more fully to what Gonzales had in fact indicated. Jones spoke as follows:
"We are persuaded * * * that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in the homeland of the common law. See Occupiers’ Liability Act, 1957, 5 and 6 Eliz 2, c 31, carrying out Law Reform Committee, Third Report, Cmd 9305. Distinctions such as those between 'lessee,’ 'licensee,’ 'invitee’ and 'guest,’ often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.” Jones v United States, supra, pp 266-267. See Rakas v Illinois, supra, p 143; People v Sims, supra, pp 198-200.
B. Choosing a New Standing Test Turning to formulating a new standard, it is appropriate to recognize viable old principles. We begin with the fundamental tenet that constitutional protections are personal. Only an individual who "belongs to the class for whose sake the constitutional protection is given” can seek to invoke its protection. New York ex rel Hatch v Reardon, supra, p 160. See People v Warner, supra, pp 203-210 (opinion of Williams, J.); People v Norwood, supra, p 272, and cases cited therein; People v Oaks, supra, p 255; People v Joshua, supra, p 585. See also United States v Salvucci, supra, p 86; Rakas v Illinois, supra, pp 133-134; Brown v United States, supra, p 230; Alderman v United States, supra, p 174; Simmons v United States, supra, p 389; Jones v United States, supra, p 261. In the context of art 1, § 11, this means that the rights guaranteed by that provision can only be asserted "at the instance of one whose own protection was infringed by the search and seizure.” See Simmons v United States, supra, p 389. To establish standing to seek art 1, § 11-Am IV suppression, a defendant must show that he has a protectable interest under art 1, § 11.
This brings us to the critical question. What is the interest protectable under art 1, § 11?
The question is appropriately phrased in this manner, because it is clear that standing and the protectable search and seizure interest have been virtually synonymous. When the protectable interest was ownership of a home, standing was based on that ownership interest. When, with Gonzales and Jones, the protectable interest expanded from ownership, then the standing test was likewise expanded.
Of course, in Rakas, supra, p 139, the opinion goes so far as to indicate that the concept of standing should be abandoned altogether and that we should use only the protectable interest test. Rakas stated:
"we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.”
Later, the Rakas opinion, p 140, talks of "dispensing with the rubric of standing.”
We need not here consider the utility of officially dispensing with the term "standing,” because this time-honored tool will in all probability remain in the vocabulary and lexicon of lawyers for a long time. It is not an empty label. It is a working concept.
So what is the present magnitude and quality of defendant’s right to protection under art 1, § 11? The long and short of it is that this Court has firmly enunciated and entrenched the definition of the right against unreasonable search and seizure in the test of "reasonable expectation of privacy.” As recently as December of 1983, in People v Nash, supra, pp 204-215, we agreed that Fourth Amendment interests were only "implicated when the governmental activity infringed on a justifiable, or reasonable, expectation of privacy” and that art 1, § 11 did not mandate a different standard. As long ago as April 1975, in People v Beavers, supra, pp 562-566, this Court clearly employed the "reasonable expectation of privacy” test in defining the scope of art 1, § 11 for purposes of ascertaining whether participant monitoring was within its ambit. In fact we relied on Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), in reaching our conclusion.
As a consequence, both logic and experience uphold the propriety of making the test for standing the "reasonable expectation of privacy” test. We now so establish it.
VII. Parameters of the "Reasonable Expectation of Privacy” Test
In adopting the "reasonable expectation of privacy” test to determine standing, it is obvious that the parameters of this test are not delimited by a fine line. It offers no exact template that can be mechanically imposed upon a set of facts to determine whether or not standing is warranted. It does, however, provide the normal common-law value of general direction and practical flexibility.
Justice Powell in his concurring opinion in Rakas, supra, pp 152-155, wrote a useful primer on the "reasonable expectation of privacy” test. We concur with the following remarks, and hold them applicable to art 1, § 11:
"The ultimate question, therefore, is whether one’s claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances. As the dissenting opinion states, this standard 'will not provide law enforcement officials with a bright line between the protected and the unprotected.’ See post, at 168. Whatever the application of this standard may lack in ready administration, it is * * * faithful to the purposes of the Fourth Amendment * * *.
"In considering the reasonableness of asserted privacy expectations, the Court has recognized that no single factor invariably will be determinative. Thus, the Court has examined whether a person invoking the protection of the Fourth Amendment took normal precautions to maintain his privacy — that is, precautions customarily taken by those seeking privacy. See, e.g., United States v Chadwick, 433 US 1, 11; 97 S Ct 2476; 53 L Ed 2d 538 (1977). ('By placing personal effects inside a double-locked footlocker, respondents mani fested an expectation that the contents would remain free from public examination’); Katz v United States, supra, at 352 ('One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world’). Similarly, the Court has looked to the way a person has used a location, to determine whether the Fourth Amendment should protect his expectations of privacy. In Jones v United States, supra, for example, the Court found that the defendant had a Fourth Amendment privacy interest in an apartment in which he had slept and in which he kept his clothing. The Court on occasion also has looked to history to discern whether certain types of government intrusion were perceived to be objectionable by the Framers of the Fourth Améndment. See United States v Chadwick, supra, at 7-9. And, as the Court states today, property rights reflect society’s explicit recognition of a person’s authority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual’s expectations of privacy are reasonable. See Alderman v United States, 394 US 165; 89 S Ct 961; 22 L Ed 2d 176 (1969).”
In People v Nash, supra, where we equated the protectable interest of the Fourth Amendment with the protectable interest of art 1, § 11, this Court expressed its agreement with the principles set forth in Justice Powell’s concurring opinion in Rakas. We stated:
"An expectation of privacy is legitimate if the individual has an actual, subjective expectation of privacy and that actual expectation is one that society recognizes as reasonable. United States v Knotts, 460 US 276; 103 S Ct 1081; 75 L Ed 2d 55 (1983). Whether an expectation of privacy exists in both the subjective and the objective sense is determined by scrutinizing the totality of circumstances surrounding the alleged intrusion. United States v Hawkins, 681 F2d 1343 (CA 11, 1982). See Rawlings [v Kentucky, 448 US 98; 100 S Ct 2556; 65 L Ed 2d 633 (1980)]; Rakas, supra (opinion of Powell, J., concurring).” People v Nash, supra, p 205.
In accordance with the foregoing, we wish to emphasize that the expectation of privacy must be one that society is prepared to recognize as reasonable. In Rakas, supra, p 141, fn 9, the United States Supreme Court disparaged the idea "that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile.” In a slightly different vein, Jones, supra, p 267, referred to "those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises.”
In sum, we hold that before a defendant may attack the propriety of a search or seizure, that search or seizure must have infringed upon an interest of the defendant which art 1, § 11 was designed to protect. In making this determination, the court must decide whether the defendant had an expectation of privacy in the object of the search and seizure and whether that expectation is one that society is prepared to recognize as reasonable. The court should consider the totality of the circumstances.
VIII. Conclusion
Application of the foregoing principles to the case before us is very difficult because of the inadequacy of the record. The issue of standing was first raised in the Court of Appeals. Neither the prosecutor nor defense counsel argued the standing issue in the trial court and only one witness testified at the suppression hearing. As a consequence, the trial judge made no factual findings on the issue of standing.
In light of these circumstances, we deem it appropriate to remand this case to the trial court for a new hearing on the issue of defendant’s standing to challenge the seizure of the trailer in question.
The judgment of the Court of Appeals is reversed and the cause is remanded for further proceedings consistent with this opinion.
Ryan, Brickley, and Boyle, JJ., concurred with Williams, C.J.
Kavanagh, J.
Defendant was charged in Detroit Recorder’s Court with receiving stolen property, MCL 750.535; MSA 28.803, which consisted of a 45-foot aluminum trailer. Asserting an unconstitutional search and seizure, counsel for defendant moved to suppress evidence of the trailer. The trial court granted the motion, and the prosecution appealed, urging reversal on the grounds that defendant lacked standing to contest the search. The Court of Appeals affirmed.
We would affirm, and hold that any defendant against whom the state intends to offer evidence obtained in violation of Const 1963, art 1, § 11, has standing to challenge its introduction.
Police officers, while investigating the sale of stolen vehicle transmissions shipped in tractor-trailer rigs, happened upon such rigs parked in the lot of a restaurant in Detroit. One of the trailers was seized, without a warrant, and towed to a police compound in Romulus where, the next day, it was examined for a hidden vehicle identification number.
In response to defendant’s motion in the trial court to suppress the evidence obtained by the search and seizure without a warrant, the prosecutor contended that various exceptions to the warrant requirement justified the police conduct. On appeal from the trial court’s order suppressing the evidence, the prosecution challenged, for the first time, defendant’s standing to contest the search and seizure. Recognizing that the automatic standing rule of Jones v United States, 362 US 257; 80 S Ct 725; 4 L Ed 2d 697 (1960), for cases like the present one, had been overruled by United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980), the Court of Appeals nonetheless concluded that it "is still applicable in Michigan as it provides greater protection to the citizens of this state from unreasonable searches and seizures.” People v Smith, 118 Mich App 366, 374; 325 NW2d 429 (1982). The Court finally concluded that the seizure was unlawful and that the evidence was correctly suppressed.
In this Court, the prosecution pursues its challenge to defendant’s standing. We are urged to follow the United States Supreme Court in Salvucci and reject the rule of Jones that automatically confers standing on a defendant charged with a crime which includes possession as an essential element. In place of that rule a defendant must establish that he was a victim of an invasion of privacy because Fourth Amendment rights are personal and may not be asserted vicariously. A defendant has standing to challenge a search and seizure, the prosecution contends, only if he can demonstrate an invasion of a reasonable expectation of privacy in the property seized or the place searched.
The United States Supreme Court’s interpretation of the Fourth Amendment, upon which the prosecution bases its argument, confers standing only upon those whose subjective expectation of privacy has been invaded, see Rakas v Illinois, 439 US 128; 99 S Ct 421; 58 L Ed 2d 387 (1978), and Rawlings v Kentucky, 448 US 98; 100 S Ct 2556; 65 L Ed 2d 633 (1980). But this would understate the breadth of Michigan’s constitutional safeguard. What the Court in Katz v United States, 389 US 347, 350; 88 S Ct 507; 19 L Ed 2d 576 (1967), said about the Fourth Amendment applies with equal force to our own art 1, § 11: "the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.’ That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. ” (Emphasis added.) Art 1, § 11 of the Michigan Constitution protects the "person, houses, papers and possessions of every person.” (Emphasis added.) Not only is privacy in a place protected, but so are persons, houses, papers, and possessions protected from unreasonable searches and seizures.
We do not believe that only those defendants whose own privacy has been invaded by government officials may challenge the introduction of evidence unlawfully seized. Art 1, § 11 states that "[t]he person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures.” (Emphasis added.) This section operates as a general injunction against the government, prohibiting its agents from conducting unreasonable searches and seizures. If a search and seizure contravenes this section, the resulting evidence has been acquired unlawfully, regardless of whether it is offered in evidence against one whose own subjective expectation of privacy has not been invaded by the search and seizure. Such tainted evidence may not be admitted in court.
The rule which excludes evidence obtained in contravention of art 1, § 11 likewise does not depend for its efficacy upon the particular defendant against whom such evidence is proffered. The evidence is excluded to enforce a constitutional safeguard. The government may not prosecute an individual with evidence it has obtained unlawfully because the government is not above the law. The integrity of the judiciary forbids the courts from participating in, and thereby condoning, unlawful conduct by officials.
All of these reasons underlying the exclusionary rule apply whenever the state seeks to admit evidence obtained in violation of art 1, § 11. That safeguard always prohibits unreasonable searches and seizures. Any criminal defendant, therefore, has standing to challenge the introduction of evidence allegedly obtained through an unlawful search and seizure. And if it was so obtained, it is inadmissible regardless of whether it was obtained in violation of the challenging defendant’s rights. This view renders it unnecessary to address the prosecutor’s challenge to the automatic standing rule of Jones, supra.
The prosecution argues that, even if defendant has standing, the seizure of the trailer and subsequent search for its identifying number were lawful acts and that the evidence should not have been suppressed. The argument asserts that because the trial court found that there was probable cause to believe the trailer was evidence of a crime and because it stood in an open parking lot no warrant was needed to seize it.
We recognize that the Court of Appeals stated that the trial court had so found, 118 Mich App 376, but our own reading of the trial court’s opinion reveals that the court did not find that the investigating officers had probable cause to believe the trailer was evidence of a crime. The trial court said:
"At the time of the seizure of the trailer, the officers had, at best, some suspicions that the vehicle was involved in a theft-related offense.” People v Smith, unpublished opinion of the Recorder’s Court of Detroit, decided April 3, 1980 (Docket No. 79-08198).
We are not persuaded to disturb this finding. At the very least, in order for a seizure of private property without a warrant to be considered reasonable under art 1, § 11, there must be probable cause to believe it is evidence of a crime. See People v Trudeau, 385 Mich 276; 187 NW2d 890 (1971), cert den 405 US 965; 92 S Ct 1169; 31 L Ed 2d 240 (1972).
We are in accord with the trial court’s observation that:
"The plain view exception does not authorize police officers to seize everything in sight, only those items which the officer has probable cause to believe are evidence of crime. * * * The plain view exception is inapplicable to the facts at hand since the officers had conceded that the purpose of the impounding was to determine the true identity of the vehicle, not because the vehicle was thought to contain contraband or to be a stolen vehicle.”
We would affirm.
. Levin, J., concurred with Kavanagh, J.
Levin, J.
The defendant, Lee Brady Smith, is charged with receiving or concealing a stolen motor vehicle. The question is whether he should be accorded automatic standing to contest the seizure. We would hold that he has automatic standing to contest the seizure.
I
When the police seized the stolen vehicle, it was located on a vacant lot in Detroit. A search warrant had not been obtained. Nor was there probable cause to believe that the vehicle was stolen when it was seized.
Smith moved to suppress evidence of the trailer on the ground that it was illegally seized. The Recorder’s Court granted the motion. The Court of Appeals rejected the argument that Smith lacked standing to challenge the seizure and held that he had automatic standing to challenge the seizure under Const 1963, art 1, § 11, and that the police should have obtained a warrant before they seized the trailer. We would affirm the judgment of the Court of Appeals.
II
The United States Supreme Court developed the standing requirement as a limitation on the exclusionary rule. SAbsent a standing limitation, a de fendant could object to the admission of evidence whether or not he had a possessory or proprietary interest in the evidence seized or the premises searched. Imposition of a standing requirement has been justified on the basis that the right to protection from unreasonable search and seizure is a personal right that may not be asserted vicariously.
Standing was at first accorded only those defendants who had a property right in the premises searched or the evidence seized. That rule came to be known as the “trespass doctrine” and depended on the strength of the defendant’s possessory interest in the property seized or searched. The trespass doctrine thus depended on common-law property concepts.
The trespass doctrine posed a dilemma for defendants charged with crimes in which an essential element was possession of the property seized. A motion to suppress required proof that the defendant had an interest in the property seized; however, testimony that showed his interest in the property could be used by the prosecution at his subsequent trial. The defendant was called upon to surrender his right against self-incrimination to assert his right to be free from unreasonable searches and seizures or his latter right to retain his former right.
The United States Supreme Court resolved the dilemma in Jones v United States, 362 US 257; 80 S Ct 725; 4 L Ed 2d 697; 78 ALR2d 233 (1960). The Court held that when a defendant is charged with a crime an essential element of which is possession of the item seized, he has automatic standing to object to a search or seizure. The Court reasoned that to reach a contrary conclusion would , permit the government to benefit from the contradictory positions of asserting that the defendant had an interest sufficient to be charged with possession, but insufficient to have standing to object to the search or seizure. This became known as the "automatic standing” rule. The Court added that when a defendant proved that he was legitimately on the premises of the place searched he had standing to object to use of evidence seized during the search.
The Court subsequently abandoned the rules announced in Jones and substituted a requirement that the accused be able to assert a reasonable expectation of privacy in the premises searched. The concept of a reasonable expectation of privacy, developed in Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), extended the reach of the Fourth Amendment to provide greater protection of individual constitutional rights than had been accorded under prior decisions. The concept of a "reasonable expectation of privacy” was first articulated in Justice Harlan’s concurring opinion in Katz in which he suggested that the protection of the Fourth Amendment extended to all searches of areas in which one has such an expectation.
Justice Harlan, speaking for the Court, subsequently relied on "reasonable expectation of privacy” in Mancusi v DeForte, 392 US 364; 88 S Ct 2120; 20 L Ed 2d 1154 (1968). The Court held that the defendant had standing to object to the search of an office that he shared with others and the seizure of papers from that office. Both Jones and Katz were cited with approval in the Court’s opinion thereby indicating that the reasonable expectation of privacy formulation was thought to be consistent with the Jones test.
The "legitimately on the premises” test came under attack in Rakas v Illinois, 439 US 128; 99 S Ct 421; 58 L Ed 2d 387 (1978). The Court concluded that substantive Fourth Amendment doctrine subsumed the Jones standing requirements and rejected the "legitimately on the premises” test as a measure of those rights. Absent a showing that one has a reasonable expectation of privacy in the premises searched, the defendant lacks standing to object to the search. Justice White argued, in his dissent, that the Court’s new test was inconsistent with the purpose of the Fourth Amendment.
Automatic standing was abandoned in United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980). The Court declared that Simmons v United States, 390 US 377; 88 S Ct 967; 19 L Ed 2d 1247 (1968), had resolved the dilemma addressed in Jones. In Simmons, the Court had held that testimony given by a defendant during a suppression hearing could not be used by the government to prove the essential elements of the crime with which the defendant was charged. In Salvucci, the Court said that the rule announced in Simmons eliminated the major justification for the automatic standing rule. The Salvucci Court held that "defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated.” 448 US 85. The test then became, whether "the defendant * * * had an expectation of privacy in the area searched.” Id., p 93. A defendant who had a possessory interest in the item seized or a defendant who was charged with a crime involving the element of possession was no longer automatically accorded standing to object to the search and seizure.
Although earlier in the term in which Salvucci was decided the Court had ruled that illegally obtained evidence may be used for impeachment purposes, it failed to note that evidence offered at a suppression hearing might be used to impeach the defendant should he take the stand during trial. While the trial court will instruct the jury that testimony offered to impeach a defendant may not be used in considering his guilt, the jury will find it difficult to distinguish between evidence offered by the prosecution to prove its case and testimony offered to impeach the defendant once he takes the stand. Simmons thus failed to eliminate the dilemma sought to be resolved by the automatic standing rule.
When evidence obtained in a search is offered against more than one person, there may be different decisions on their motions to suppress, under the Salvucci rule. While all the defendants might be "legitimately on the premises,” charged with a possessory offense, and have an interest in the evidence seized, one may be found to have a "reasonable expectation of privacy” and others may be found to have no such expectation. This has been called the " 'lightning rod’ theory of standing.” United States v Baskes, 433 F Supp 799, 804, fn 6 (ND Ill, 1977), aff'd 687 F2d 165 (CA 7, 1981). The theory is so termed because one defendant obtains the benefit of the constitutional protection and the others do not.
The "reasonable expectation of privacy” test is no more consistently applied by the courts than the "trespass doctrine” was applied. A significant deficiency inherent in the "reasonable expectation of privacy” test, evidenced in Rakas, is that the courts tend to look to their own intuitions to determine whether one should be accorded an expectation of privacy in a particular area. It has been observed that "Katz * * * offers neither a comprehensive test of fourth amendment coverage nor any positive principles by which questions of coverage can be resolved. * * * In the end, the basis of the Katz decision seems to be that the fourth amendment protects those interests that may justifiably claim fourth amendment protection.” Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 385 (1974).
A survey of decisions applying the reasonable expectation of privacy test shows inconsistent application.
Ill
The concept that the constitutional proscription of unreasonable search and seizure protects property rights as well as privacy rights is consistent with Katz. Katz extended Fourth Amendment rights to include privacy rights. It did not abrogate previous doctrine that the Fourth Amendment protected property rights. This reading of prior decisions and of the constitutional protections has served as the basis of a number of state supreme court decisions that have retained the automatic standing rule. A state may recognize greater restrictions on search and seizure under its constitution than have been recognized under the United States Constitution.
The New Jersey Supreme Court construed the term "effects” in the New Jersey Constitution to confer standing on the defendant when he was the owner of, or had a possessory interest in, personal property seized by law enforcement officers. State v Alston, 88 NJ 211, 227; 440 A2d 1311 (1981). The court said "that the constitutional protection against unreasonable searches and seizures extends to people’s 'effects’ as well as to their 'persons’ and 'houses’ * *
The Supreme Court of Washington reaffirmed the "automatic standing” rule under the Washington Constitution. State v Simpson, 95 Wash 2d 170; 622 P2d 1199 (1980). The rationale was twofold: a construction of the Washington Constitution, and a concern that the right against self- incrimination was inadequately protected by the rule announced in Simmons.
In State v Settle, 122 NH 214; 447 A2d 1284 (1982), the Supreme Court of New Hampshire retained the automatic standing rule for possessory crimes pursuant to the New Hampshire constitutional provision regulating searches and seizures, which, like Michigan’s constitutional provision, protects "possessions” from unreasonable searches and seizures. The court concluded that the word "possessions” provides a greater degree of protection of individual rights than is provided by the Fourth Amendment which protects only "effects.”
The Supreme Court of Pennsylvania also retained the "automatic standing” doctrine pursuant to the Pennsylvania Constitution. Commonwealth v Sell, 504 Pa 46; 470 A2d 457 (1983). The court concluded that the charge of a possessory offense is sufficient to establish standing and declined to adopt the "amorphous 'legitimate expectation of privacy’ standard.” Id., pp 66-68.
The rule announced in Simmons inadequately protects a person’s right against self-incrimination guaranteed by Const 1963, art 1, § 17. This Court should recognize that a person charged with a possessory offense has "automatic standing” under Const 1963, art 1, § 11, and that Smith has the right to object to an illegal seizure and subsequent search of the trailer, possession of which is an element of the offense with which he is charged.
IV
The Court of Appeals held that the only warrant exception that might be applicable is the "plain view” doctrine. It held that the plain view doctrine was inapplicable because the seizure failed to meet the requirements set forth in Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971). We agree.
There are three requirements that must be met to validate a seizure under the plain view doctrine. They are: the law enforcement officers must be validly on the premises, the discovery of the item must be inadvertent, and it must be immediately apparent that the item is incriminating evidence.
The third requirement was not met here. This requirement is not satisfied unless the property appears to be incriminating without prying or a search of any kind. Commonwealth v Bowers, 217 Pa Super 317; 274 A2d 546 (1970), and State v Murray, 84 Wash 2d 527; 527 P2d 1303 (1974), cert den 421 US 1004 (1975).
The seizure of the trailer occurred before the police located the VIN and checked it against the stolen vehicle lists. The police had subjected the vehicle to thorough searches to locate the hidden VIN plate and had been unable to locate it. After the seizure, a special unit was notified and conducted the search to locate the VIN plate. The need for such efforts shows that it was not immediately apparent that the trailer was stolen.
V
The "automatic standing” doctrine first announced in Jones is embodied in Const 1963, art 1, § 11, for crimes in which possession is an essential element. Because Smith was charged with a possessory offense, he has standing to object to the admission of evidence of seizure of the trailer. The warrantless seizure of the trailer failed to satisfy the requirements of the "plain view” doctrine set forth in Coolidge v New Hampshire, supra, and the evidence should be suppressed.
VI
The standing doctrine developed by the United States Supreme Court as a limitation on the exclusionary rule has a questionable doctrinal basis. Ordinarily any person who is significantly affected adversely by governmental action may assert that the governmental action is violative of a constitutional limitation. Requiring a person who is the object of governmental action to show more than that he is so adversely affected by the asserted constitutional violation, appears to be inconsistent with traditional standing doctrine. To impose greater restrictions on the assertion of constitutional limitations designed to protect personal liberty is questionable. We should reconsider the legitimacy of the standing doctrine. See Alderman v United States; 394 US 165, 200-211; 89 S Ct 961; 22 L Ed 2d 176 (1969) (Fortas, J., concurring in part and dissenting in part); People v Martin, 45 Cal 2d 755; 290 P2d 855 (1955). The constitution proscribes unreasonable searches and seizures and does not state or incorporate a standing requirement based on expectation of privacy.
In the instant case, because Smith is charged with a possessory offense, decision does not require that we do more than recognize that the concept of "automatic standing” is embodied in Const 1963, art 1, § 11.
We would affirm the judgment of the Court of Appeals.
Cavanagh, J., concurred with Levin, J.
The defendant does not argue that he has "standing” to challenge the seizure under Am IV of the United States Constitution. US Const, Am IV; US Const, Am XIV. Since today we adopt a standard nearly identical to the federal standard, see United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980); Rakas v Illinois, 439 US 128; 99 S Ct 421; 58 L Ed 2d 387 (1978), defendant’s "standing” rights under the federal constitution will be the same as those under the Michigan Constitution.
Of course, it is not necessary that the' wording of the Michigan Constitution be different from that of the United States Constitution in order for this Court to interpret our constitution more liberally than the United States Supreme Court interprets the language of the federal constitution. It is true that this Court cannot interpret a similar provision in the Michigan Constitution less liberally than the United States Supreme Court interprets the United States Constitution, but the opposite is not true. Cf. People v Beavers, 393 Mich 554, 562; 227 NW2d 511 (1975), with United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971) (participant monitoring). See also People v Turner, 390 Mich 7; 210 NW2d 336 (1973) (entrapment); People v White, 390 Mich 245; 212 NW2d 222 (1973) (double jeopardy). To the extent that People v Secrest, 413 Mich 521; 321 NW2d 368 (1982) (discussed below) implies that this Court can impose a higher standard under the state than the federal search and seizure provision only because of differences in language, it is obviously wrong. Furthermore, Secrest does not show how the differences in language justify a higher standard under the Michigan Constitution. The point here, however, is that there is no difference in art 1, § 11 that compels a different interpretation and there is no persuasive policy reason to commend a different interpretation in this Court’s discretion.
We note at this juncture that defendant contends that this Court should not have reviewed the "standing” issue because the prosecution did not raise the issue in the trial court. Normally, this Court will not consider issues not raised both in the trial court and the Court of Appeals. See People v Crawl, 401 Mich 1, 30-32, and fn 20; 257 NW2d 86 (1977) (opinion of Levin, J.). In fact, in People v Tyler, 399 Mich 564, 571; 250 NW2d 467 (1977), aff'd 436 US 499, 512, fn 7; 98 S Ct 1942; 56 L Ed 2d 486 (1978), we declined to review the exact issue present herein because the prosecutor failed to raise it in the Court of Appeals. See also People v Warner, 401 Mich 186; 258 NW2d 385 (1977). In the instant case, the prosecutor did raise the issue in the Court of Appeals. Because we agree with the Court of Appeals that the resolution of this issue is necessary to a proper determination of the case, 118 Mich App 370, and because this issue has caused much confusion and courts have failed to apply the true rule of law, People v Crittle, 390 Mich 367, 371; 212 NW2d 196 (1973), we consider it at this time. See People v Crawl, supra, pp 30-32, and fn 20 (opinion of Levin, J.). And see State v Hutchinson, 404 So 2d 361, 365-366 (Fla App, 1981).
See, e.g., Shavers v Attorney General, 402 Mich 554, 586 ff.; 267 NW2d 72 (1978), cert den sub nom Allstate Ins Co v Kelley, 442 US 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979).
See, e.g., People v Warner, 401 Mich 186, 200-209; 258 NW2d 385 (1977).
See, e.g., People v Norwood, 312 Mich 266, 272; 20 NW2d 185 (1945).
See, e.g., People v Gonzales, 356 Mich 247, 257; 97 NW2d 16 (1959).
See, e.g., Salvucci, supra, pp 92, 95.
Defendant’s claim on the merits was accepted by the trial court. 118 Mich App 374.
See fn 1.
See fn 2.
It should be noted that although the Jones Court relied in substantial part on Rule 41(e) of the Federal Rules of Criminal Procedure, the decision has subsequently been interpreted as being equally applicable to the "standing” required by the constitution to attack an unconstitutional search or seizure. See Rakas v Illinois, supra, p 132, fn 2, citing United States v Calandra, 414 US 338, 348-349, fn 6; 94 S Ct 613; 38 L Ed 2d 561 (1974), and Alderman v United States, 394 US 165, 173, fn 6; 89 S Ct 961; 22 L Ed 2d 176 (1969).
Referring to Simmons, where the defendant’s suppression hearing testimony was used against him at trial in the government’s case in chief, the Court in United States v Salvucci, supra, pp 89-90 stated:
"The Court found that, in effect, the defendant was
" 'obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.’ [Simmons], at 394.
"This Court’s ruling in Simmons thus not only extends protection against this risk of self-incrimination in all of the cases covered by [the "automatic standing” rule], but also grants a form of 'use immunity’ to those defendants charged with nonpossessory crimes. In this respect, the protection of Simmons is therefore broader than that of [the "automatic standing” rule]. Thus, as. we stated in Brown v United States, 411 US 223, 228; 93 S Ct 1565; 36 L Ed 2d 208 (1973), '[t]he self-incrimination dilemma * * * can no longer occur under the prevailing interpretation of the Constitution [in Simmons].’ ”
Defendant also suggests that Simmons is not broad enough because it does not protect against the possibility that the prosecutor’s access to suppression hearing testimony could provide him with information advantageous to trial preparation. This argument, however, is applicable to nonpossessory as well as possessory offenses, and hence in order to protect against such a possibility, "automatic standing” would have to be accorded to all defendants. Even the defendant herein does not advocate that we adopt such a posture. See United States v Salvucci, supra, p 93, fn 7.
See fn 2.
In Sims, this Court summarily affirmed a Court of Appeals decision which acknowledged and discussed Jones v United States and People v Gonzales. We do not read Sims as adopting Jones under art 1, § 11. Rather, Sims, although relying on Gonzales, which was decided under art 1, § 11, seems to have been based upon the Fourth Amendment. Alternatively, Sims could be read as having been decided solely under Gonzales and art 1, § 11. All references to Jones were nothing more than dicta. In any event, to the extent that Sims can be read as an adoption of Jones under art 1, § 11, we reject it in accordance with the discussion in the first portion of this opinion.
MCL 750.535; MSA 28.803.
The facts are set forth more fully in the opinion of the Court, ante, pp 8-11.
People v Smith, 118 Mich App 366; 325 NW2d 429 (1982), lv gtd 414 Mich 876 (1982).
Two separate exclusionary rules are applicable in this state: the federal exclusionary rule, and the Michigan exclusionary rule. The former was first announced in Weeks v United States, 232 US 383; 34 S Ct 341; 58 L Ed 652 (1914). The latter is the rule developed under Const 1908, art 2, § 10, and first announced in People v Marxhausen, 204 Mich 559; 171 NW 557; 3 ALR 1505 (1919).
From 1919 until People v Pennington, 383 Mich 611; 178 NW2d 471 (1970), was decided, the scope of the Michigan exclusionary rule was limited solely by the Michigan Constitution as construed by Michigan courts. In Pennington, this Court recognized that Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), which mandated application of the Fourth Amendment and the federal exclusionary rule by state courts in cases in which evidence was obtained by state officers established the principle that the federal standard establishes minimum protection. Michigan courts may provide greater protection than is afforded by the federal exclusionary rule,, but they may not provide less protection.
See Rawlings v Kentucky, 448 US 98; 100 S Ct 2556; 65 L Ed 2d 633 (1980); United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980); Rakas v Illinois, 439 US 128, 133-134; 99 S Ct 421; 58 L Ed 2d 387 (1978); Brown v United States, 411 US 223, 230; 93 S Ct 1565; 36 L Ed 2d 208 (1973); Alderman v United States, 394 US 165, 174; 89 S Ct 961; 22 L Ed 2d 176 (1969) ("Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted”).
Commonwealth v Sell, 504 Pa 46, 51; 470 A2d 457, 460 (1983). See also Dutile, Some Observations on the Supreme Court’s Use of Property Concepts in Resolving Fourth Amendment Problems, 21 Cath UL Rev 1, 4-10 (1971); White & Greenspan, Standing to Object to Search and Seizure, 118 U Pa L Rev 333, 338 (1970); Note, Standing up for Fourth Amendment Rights: Salvucci, Rawlings, and the Reasonable Expectation of Privacy, 31 Case W Res L Rev 656, 660 (1981). See generally Hall, Search and Seizure, § 2.2; Edwards, Standing to Suppress Unreasonably Seized Evidence, 47 N W L Rev 471 (1952).
The “trespass doctrine” was not applied consistently by the courts. See Coon v United States, 36 F2d 164 (CA 10, 1929), and United States v Stappenback, 61 F2d 955 (CA 2, 1932). In Coon, the court denied the defendant standing to object to the search of a building that he was using as a temporary residence. His occupancy of the building was merely "incident” to the primary use to which he put the building, manufacturing whiskey illegally. Therefore, Fourth Amendment rights could not be asserted because the building was not his "house.” 36 F2d 165.
In Stappenback, on the other hand, the court ruled that one of the defendants had standing to object to the search and seizure of papers found in a pocket of his coat. Although the defendant was not present during the search and did not have an interest in the premises searched, he had standing to object because he was in constructive possession of the coat during his absence. 61 F2d 957.
The "trespass doctrine” was followed by the "constitutionally protected areas” test. Note, Standing Up for Fourth Amendment Rights, supra, p 662. "This test recognized that certain areas presumptively were protected from government intrusion unless the plain view doctrine applied.” Id. This test in turn lost favor in Katz; however, it, seemingly, has returned, in modified form, as the "reasonable expectation of privacy” test.
See Jones v United States, 362 US 257, 265-266; 80 S Ct 725; 4 L Ed 2d 697; 78 ALR2d 233 (1960):
"They have denied standing to 'guests’ and 'invitees’ (e.g., Gaskins v United States, 95 US App DC 34, 35; 218 F2d 47, 48 [1955]; Gibson v United States, 80 US App DC 81, 84; 149 F2d 381, 384 [1945]; In re Nassetta, 125 F2d 924 [CA 2, 1942]; Jones v United States, 104 US App DC 345; 262 F2d 234 [1959]), and employees, who though in 'control’ or 'occupancy’ lacked 'possession’ (e.g., Connolly v Medalie, 58 F2d 629, 630 [CA 2, 1932]; United States v Conoscente, 63 F2d 811 [CA 2, 1933]). The necessary quantum of interest has been distinguished as being, variously, 'ownership in or right to possession of the premises’ (e.g., Jeffers v United States, 88 US App DC 58, 61; 187 F2d 498, 501 [1951], affirmed, Jeffers v United States, 342 US 48 [72 S Ct 93; 96 L Ed 59 (1951)]), the interest of a 'lessee or licensee’ (United States v De Bousi, 32 F2d 902 [D Mass, 1929]), or of one with 'dominion’ (McMillan v United States, 26 F2d 58, 60 [CA 8, 1928]; Steeber v United States, 198 F2d 615, 617 [33 ALR2d 1425 (CA 10, 1952)]).”
See also Dutile, fn 6 supra; White & Greenspan, fn 6 supra.
Judge Learned Hand stated the defendant’s dilemma in Connolly v Medalie, 58 F2d 629, 630 (CA 2, 1932):
"Men may wince that admitting that they were the owners, or in possession of contraband property; may wish at once to secure the remedies of the possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.”
In Jones, fn 7 supra, the defendant was "legitimately on the premises” of an apartment owned by a friend that was searched by government agents resulting in seizure of drugs and charging the defendant with possession of narcotics. The lower courts denied the defendant standing to object to the search because he was an invitee, which was an insufficient property interest to provide standing under the trespass doctrine. The Supreme Court said:
"Since narcotic charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. At least, such a defendant has been placed in a criminally tendentious position of explaining his possession of the premises. He has been faced, not only with the chance that the allegations made on the motion to suppress may be used against him at the trial, although that they may is by no means an inevitable holding, but also with the encouragement that he perjure himself if he seeks to establish 'standing’ while maintaining a defense to the charge of possession.” 362 US 261-262.
See Jones, fn 7 supra, pp 263-264:
"Petitioner’s conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which a conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception.”
See Rakas, fn 5 supra; Salvucci, fn 5 supra; United. States v Moody, 485 F2d 531, 533, fn 3 (CA 3, 1973). See also Hall, fn 6 supra, § 21.6, p 611; 1 LaFave & Israel, Criminal Procedure, § 9.2(a); 3 LaFave, Search and Seizure, § 11.3.
See Katz v United States, 389 US 347, 361; 88 S Ct 507; 19 L Ed 2d 576 (1967) (Harlan, J., concurring):
"As the Court’s opinion states, 'the Fourth Amendment protects people, not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a 'place.’ My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.’ ” (Emphasis added.)
See Sell, fn 6 supra, p 60; Note, Standing Up for Fourth Amendment Rights, fn 6 supra, pp 671-672.
See Rakas, fn 5 supra, pp 167-168 (White, J., dissenting):
"The distinctions the court would draw are based on relationships between private parties, but the Fourth Amendment is concerned with the relationship of one of those parties to the government.”
Justice White also said:
"Insofar as passengers are concerned, the Court’s opinion today declares an 'open season’ on automobiles. However unlawful stopping and searching a car may be, absent a possessory or ownership interest, no 'mere’ passenger may object, regardless of his relationship to the owner.” 439 US 157 (White, J., dissenting).
Rawlings, in 5 supra, decided the same day, further refined the Rakas standard. In Rawlings, the Court applied a "totality of the circumstances” test in rejecting a Fourth Amendment claim. The defendant in Rawlings was charged with possession of narcotics with intent to distribute. Although he admitted ownership of the drugs, such ownership was insufficient, in the Court’s view, to provide him with standing to object to the search and seizure because the police seized the drugs from another person in the defendant’s company. The Court took this opportunity to contrast the nature of the appropriate judicial inquiry before and after Rakas:
"Had petitioner placed his drugs in plain view, he would still have owned them, but he could not claim any legitimate expectation of privacy. Prior to Rakas, petitioner might have been given 'standing’ in such a case to challenge a 'search’ that netted those drugs but probably would have lost his claim on the merits. After Rakas, the two inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by petitioner.” Id., p 106.
See United States v Havens, 446 US 620; 100 S Ct 1912; 64 L Ed 2d 559 (1980).
This was Justice Marshall’s foremost concern in his dissent in Salvucci and has been echoed by state supreme courts that have retained the "automatic standing” doctrine. For a discussion of these state court decisions, see text accompanying fns 21-27.
See Note, Standing Up for Fourth Amendment Rights: Salvucci, fn 6 supra, p 683 ("There is no question that even after Rawlings, possession will be an important factor in determining standing for fourth amendment claims”).
This Court has not decided as a matter of Michigan law, however, whether evidence offered by the defendant at a suppression hearing tending to show his possession of the property may be used to impeach his testimony at the trial. See People v Reed, 393 Mich 342; 224 NW2d 867 (1975), cert den 422 US 1044, 1048 (1975).
For an example of this theory in practice, see Gahan v State, 290 Md 310, 313; 430 A2d 49 (1981).
One commentator has on this basis criticized this approach:
"In its present formulation, fourth amendment doctrine hardly constitutes a bulwark against unwarranted governmental intrusion. Relying on privacy expectations alone requires a court to pinpoint a vague, shifting, and perhaps illusory consensus. Use of the standard has produced 'confused and unprincipled judicial decisions.’ * * * One can only wonder if constitutional guarantees should hinge on such trivial considerations as the tightness with which a container is sealed.
"The emphasis on subjective expectations poses a further serious threat to the vitality of the fourth amendment. Repeated invasions by credit bureaus, employers, and the like can lead persons to discount most expectations as unreasonable; individual fears of a loss of privacy then become self-fulfilling prophecies. In particular, the government can through its actions redefine popular expectations so as to undermine constitutional rights.” The Supreme Court: 1979 Term, 94 Harv L Rev 1, 202-203 (1980).
A "reasonable expectation of privacy” was found in United States v Weber, 668 F2d 552, 561-562 (CA 1, 1981), cert den 457 US 1105 (1982) (privacy interest in an object tied up in a rain slicker, but not when the item is lying under a rain slicker on the ground); United States v Van Dyke, 643 F2d 992, 994-995 (CA 4, 1981) (privacy interest in a rural house being observed from a honeysuckle patch that is 150 feet away from the house); United States v Dien, 609 F2d 1038, 1044-1045 (CA 2, 1979), adhered to in 615 F2d 10, 11 (CA 2, 1980) (privacy interest in taped cardboard boxes found in a van); United States v Meier, 602 F2d 253, 255 (CA 10, 1979) (privacy interest in closed, but unlocked backpack); United States v Schleis, 582 F2d 1166, 1172 (CA 8, 1978) (privacy interest in briefcase that was seized incident to defendant’s arrest); United States v Holmes, 521 F2d 859, 869-870 (CA 5, 1975) (privacy interest in a shed near a rural farm house). On the other hand, a "reasonable expectation of privacy” was not found in United States v Hargrove, 647 F2d 411, 413 (CA 4, 1981) (no privacy interest in automobile driven by defendant, but not owned by him, or in paper bag found in the automobile); United States v Ramapuram, 632 F2d 1149, 1155-1156 (CA 4, 1980), cert den 450 US 1030 (1981) (no privacy interest in the trunk of a junked automobile in the defendant’s farm field); United States v Neumann, 585 F2d 355, 360-361 (CA 8, 1978) (no privacy interest in closed department store box located inside passenger compartment of an automobile); United States v Gaultney, 581 F2d 1137, 1141 (CA 5, 1978), cert den 446 US 907 (1980) (no privacy interest in a taped Scrabble box); United States v Cruz Pagan, 537 F2d 554, 557-558 (CA 1, 1976) (no privacy interest in material stored in a condominium garage); State v Schrier, 283 NW2d 338, 346 (Iowa, 1979) (no privacy interest in unlatched knapsack).
See Rawlings, fn 5 supra, pp 117-118 (Marshall, J., dissenting):
"[The decision] is wrong because it is contrary to the Fourth Amendment, which guarantees that '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, should not be violated.’ The Court’s reading of the Amendment is far too narrow. The Court misreads the guarantee of security ’in their persons, houses, papers, and effects, against unreasonable searches and seizures’ to afford protection only against unreasonable searches and seizures of persons and places.
"The Fourth Amendment, it seems to me, provides in plain language that if one’s security in one’s 'effects’ is disturbed by an unreasonable search and seizure, one has been the victim of a constitutional violation; and so it has always been understood. Therefore the Court’s insistence that in order to challenge the legality of the search one must also assert a protected interest in the premises is misplaced. The interest in the item seized is quite enough to establish that the defendant’s personal Fourth Amendment rights have been invaded by the government’s conduct.
"When the government seizes a person’s property, it interferes with his constitutionally protected right to be secure in his effects. That interference gives him the right to challenge the reasonableness of the government’s conduct, including the seizure. If the defendant’s property was seized as the result of an unreasonable search, the seizure cannot be other than unreasonable.” (Emphasis in the original.)
See Oregon v Hass, 420 US 714, 719; 95 S Ct 1215; 43 L Ed 2d 570 (1975); Sibron v New York, 392 US 40, 60-61; 88 S Ct 1889; 20 L Ed 2d 917 (1968); Cooper v California, 386 US 58, 62; 87 S Ct 788; 17 L Ed 2d 730 (1967); PruneYard Shopping Center v Robins, 447 US 74; 100 S Ct 2035; 64 L Ed 2d 741 (1980); Cologne v Westfarms Associates, 192 Conn 48; 469 A2d 1201 (1984); People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), cert den 423 US 878 (1975); State ex rel Oregonian Publishing Co v Deiz, 289 Or 277; 613 P2d 23 (1980); State ex rel Herald Mail Co v Hamilton, 267 SE2d 544 (W Va, 1980).
See also Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv L Rev 1324, 1368 (1982); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489, 491 (1977).
NJ Const, art 1, ¶ 7.
Wash Const, art 1, § 7.
A commentator has observed:
"Recent Supreme Court decisions * * * indicate that suppression hearing testimony eventually may be admissible for impeachment purposes. In United States v Havens, [446 US 620; 100 S Ct 1912; 64 L Ed 2d 559 (1980),] the Court permitted the use of illegally seized evidence, which had been successfully suppressed, to impeach the defendant’s testimony given in answer to a question on cross-examination. In reaching its decision, the Court in Havens relied heavily on Harris v New York [401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971)]. Although Harris concerned the use of a defendant’s statements obtained in violation of the fifth amendment for impeachment purposes, the Court found its reasoning sufficiently analogous to be applicable in Havens. The Court in Havens reasoned that 'arriving at the truth is a fundamental goal of our legal system.’ Consonant with this goal, when a defendant takes the witness stand on his or her own behalf, he or she is obligated to testify truthfully or risk a perjury prosecution. As the Harris Court stated, 'a defendant ought not to be allowed to perjure himself, while relying on the exclusionary rule to keep out evidence proving his lack of credibility.’ Furthermore, in United States v Kahan, [415 US 239; 94 S Ct 1179; 39 L Ed 2d 297 (1974),] a case involving sixth amendment issues, the Court specifically concluded that 'Simmons is not to be converted into a license for false representations * * * free from the risk that the claimant will be held accountable for his falsehood.’ ” Note, Standing Up for Fourth Amendment Rights, fn 6 supra, pp 680-681.
In State v Settle, the court said the term "possessions” protects all articles in one’s possession without regard to whether he is the owner of those articles; on the other hand, the word "effects” seemingly protects those articles that are owned by the person against whom the evidence is sought to be offered. The court also said that a strong argument could be made for the rule of automatic standing on the basis that it provides a bright line "for the benefit of-law enforcement, the trial courts, and the trial bar [in identifying] that class of persons who may assert rights against unlawful searches and seizures.” The court said that the appellate courts in the federal system had been required under the reasonable expectation of privacy test to draw fine line distinctions that are not altogether logical, see cases cited id., p 219.
Const 1963, art 1, § 11, like the New Hampshire Constitution, protects "possessions.” "The person, houses, papers, and possessions of every person shall be secure from unreasonable searches and seizures.” (Emphasis added.) The Fourth Amendment provides that "the people be secure in their persons, houses, papers and effects.” (Emphasis added.)
The first two requirements were developed in an attempt to preclude a search for specific items being turned into a general exploratory search.
In Commonwealth v Bowers, the police were executing a search •warrant in the defendant’s home. One of the officers noticed a television set he believed might be stolen. In an eifort to confirm his suspicions, he picked the set up to compare the set’s serial number with the serial number of the missing set that appeared on a list he was carrying with him. The officer, however, was unable to locate the serial number on the set. He obtained the services of a local repairman who removed the back of the set and revealed the serial number. The serial number matched that of the missing set, and the set was seized. The court rejected the prosecution’s claim that the search and seizure was valid within the plain view doctrine.
In State v Murray, the police conducted a warrantless search of the apartment of Linda Simpson; the police contended that she consented to the search. They were searching for "office and video equipment, such as typewriters, calculators, etc.” They failed to find the equipment. During the search, one of the officers noticed a Sony television set, which he had a “suspicion” was stolen; he tipped it up from its resting place to record its serial number and left. It was learned that the set was stolen. A search warrant describing the set was issued, and it was seized.
The Court of Appeals and the Supreme Court of Washington rejected the prosecution’s claim that the "plain view” doctrine validated the seizure. It was not immediately apparent that the television set was incriminating evidence. The courts apparently viewed the acts of observing and recording the serial number and the physical taking of the television set as illegal seizures.
See Note, Standing Up for Fourth Amendment Rights, fn 6 supra, pp 657, 660. This commentator observed that establishing standing to object to Fourth Amendment violations is more difficult than establishing standing generally. Generally, one has standing to sue when he has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v Carr, 369 US 186, 204; 82 S Ct 691; 7 L Ed 2d 663 (1962). See also Flast v Cohen, 392 US 83, 95; 88 S Ct 1942; 20 L Ed 2d 947 (1968); Doremus v Hawthorne Bd of Ed, 342 US 429, 432-435; 72 S Ct 394; 96 L Ed 475 (1952).
In Fourth Amendment cases, however, standing has been determined by a number of tests and accorded, at one time or another, to persons having a property interest in the premises searched or the items seized, known as the "trespass doctrine,” see authorities cited in fn 6; persons who are within a "constitutionally protected area”, see Scoular, Wiretapping and Eavesdropping: Constitutional Development From Olmstead to Katz, 12 St Louis U L J 513, 516, 523-526 (1968); persons who are "legitimately on the premises” of the place searched or who are charged with a possessory offense, see text accompanying fns 9-11; and persons who have a "reasonable expectation of privacy,” the current test, see cases cited fn 19.
If general standing requirements were applicable in search and seizure cases, any defendant against whom the prosecution offered the evidence would have standing to object to the search and seizure because subjecting him to prosecution for an offense at which the evidence alleged to have been illegally obtained might be offered would satisfy the personal stake requirement. 1 LaFave & Israel, Criminal Procedure, § 9.1(a), p 714. A number of commentators have called for revision of the standing doctrine to require no more than a showing that a person has been charged with an offense and the evidence sought to be suppressed may be used at his trial. See Landynski, Search and Seizure and the Supreme Court, pp 73-77; Grove, Suppression of Illegally Obtained Evidence: The Standing Requirement on Its Last Leg, 18 Cath U L Rev 150 (1968); Traynor, Mapp v Ohio at Large in the Fifty States, 1962 Duke L J 319, 335; Comment, Standing to Object to an Unreasonable Search and Seizure, 34 U Chi L Rev 342, 365 (1967); Note, Search and Seizure: Admissibility of Illegally Acquired Evidence Against Third Parties, 66 Colum L Rev 400 (1966).
See fn 31. See also Nowak, Young & Rotunda, Constitutional Law (2d ed), p 81: "For personal standing the plaintiff must establish * * * a 'personal stake’ in the outcome. This stake requires a two-fold showing: first, a 'distinct and palpable injury’ to the plaintiff, and, second, a ' "fairly traceable” causal connection between the claimed injury and the challenged conduct.’ ”
See fn 31. | [
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Cooley, J.
The respondent stands convicted of the murder of one Emery at Chesaning. The homicide took place while a circus was on exhibition at that place. I shall notice in this case only such errors assigned as, after the full presentation of the facts by Mr. Justice Sherwood, seem essential.
A chief ground of error relied upon is that the prosecution was allowed to put in evidence certain depositions taken out of court of witnesses not present at the trial. The facts seem to be that the attorneys for the respective parties stipulated to put in certain depositions on both sides, and they were put in accordingly. This, it is said, was in violation of the respondent’s constitutional right to be confronted with his witnesses. But the court made no ruling in the matter; what was done was voluntarily done by the parties; the defendant had the benefit of the stipulation, and, for aught we can know, it may have been made chiefly in his interest. But however that may be, when the court has made no ruling we can have nothing to review. This Court cannot relieve a party from a criminal conviction because of his own voluntary action on the trial.
It is said the counsel for respondent was counsel assigned to him by the court and may not have been counsel of his choice. "We do not know how the fact was, but we know it is customary to allow the respondent to choose for himself. But however that may be, the counsel acted for the respondent without objection, and without complaint that he did not do the best he could for him.
The defendant undoubtedly had a constitutional right to toe confronted with his witnesses. He waived that right in it-.biR case, apparently for his own supposed advantage and to obtain evidence on his own behalf. It would have been a mere impertinence for the court to have interfered and precluded this stipulation being acted upon. But it would have been more than an impertinence; it would, have been gross error. And. it would be palpable usurpation of power for us now to set aside a judgment for a neglect of the court not at the time complained of, but in respect to something where any other course would have been plain error.
Under the view taken by the respondent it would seem that when the evidence had been obtained under his stipulation, the court was put in position where it was impossible to avoid error; for if the evidence was received, he might complain, as he does now, that his constitutional right was violated, and if the court refused to receive it when he was ■consenting, the respondent would be entitled to have the conviction set aside for that error.
I shall always be ready to preserve in its integrity every constitutional right; but I do not understand that the Constitution is an instrument to play fast and loose with in criminal cases any more than in any other, or that it is the business of courts to be astute in the discovery of technical difficulties in the punishment of parties for their criminal conduct.
A number of special questions were put to the jury, and it is complained that the judge expressed to the jury an opinion on some of the facts covered by them. He was probably not as careful in that regard as he should have been. But we should not be over-critical in such matters, where the circuit judge certainly has some discretion. The judge said to the jury as to these: “ Answer the questions put to you, keeping in mind that the answers to these questions should be consistent with the verdict which you find.” This, it is urged, required the jury to conform their special findings to- the general verdict. But we think the court merely reminded the jury that the general verdict should be in accord with the facts as they found them; an unnecessary caution, perhaps, but certainly not misleading.
I discover no error in the record, and think the conviction .should be affirmed.
G-raves^-C. J. and Campbell, J. concurred. | [
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] |
Campbell, J.
The object of the bill in this case is to protect complainant’s interest as beneficiary under a trust, covering timbered lands and other lumbering property and business connected with it, on the ground of denial of his rights and various acts detrimental to the objects of .the trust. Belief was granted to the extent of declaring the trust and ordering an accounting, as well as fixing salaries and regulating some matters of administration, reserving further equities. Complainant appeals because the decree does not go far enough in some directions, and Winchester appeals generally. The other parties do not appeal. The case involves the existence and character of the trust, and various complaints of disregard and mismanagement. As some questions are raised concerning the consideration of the arrangement, and the reduction of Winchester’s debt which the property was designed to secure, a brief reference is necessary to the transactions out of which the dealings grew.
For some ten years before January, 1877, complainant had been doing business with different parties in lumbering and salt making, and in carrying on a store connected with his other business in Oscoda, in the county of Iosco. Defendant Gay had always been one of the partners. Winchester had been at one time a general, and at one time a special partner, but had left this relation some time before, and was a very large creditor to an amount, as claimed, of about $440,000. At this time complainant and Gay were the only partners, and they owed other debts of about $225,000 and taxes between nine and ten thousand dollars. The property consisted chiefly of timbered lands, mills, salt blocks, lumber and vessels, and a stock of goods at Oscoda. The land titles were in different shapes and in different names and were partially encumbered to Winchester and others.
In the latter part of 1876 Winchester obtained titles or securities on more or less of the property, and there was reason to expect proceedings of other creditors to get pay for their debts. Some negotiations were had with Winchester, which resulted in a set of conveyances and other instruments to provide for the payment out of the property of Winchester’s claim, which he agreed to reduce to $275,-000 and to secure the balance of the property for the benefit of Loud & Gay. To this end Loud & Gay made an absolute warranty deed of their property wherever siüiated in Michigan, and Winchester executed a conveyance of most of it, as described and designated, in trust to George E. Wasey, Herbert F. Whiting and Henry N. Loud (a son of complainant), to be managed and disposed of for purposes on its face designed for Winchester’s own benefit entirely. He and the trustees at the same time executed a declaration ■of trust in favor of Loud & Gay, after his own debt should be paid. A further paper of similar character related to certain lands not covered by the other instruments. These papers were all part of one transaction, and dated January 1, 1877.
The first paper needing attention is the deed from Winchester to the trustees. This was not a conveyance in fee, but ran to the grantees, their successors and assigns for ten years, and no longer. They took it in trust for these purposes :
First. To take possession of their property and carry on therewith “ a general lumber and salt business at Oscoda, Michigan,’’ and purchase such other “personal property as may be necessary therefor,” — to make all needful repairs to mills, salt blocks and other property, insure and pay taxes, employ all necessary assistants and agents to carry on the business, to stock and carry on the store in connection with said business, “ and to mortgage any portion of said property for the purpose of raising money with which to carry on and conduct said business.”
Second. To sell any and all of the property, real or personal, at any time they may deem best for Winchester’s interest at public or private sale, but no real estate to be sold without written consent of Winchester, or his representatives or assigns. All property purchased was to be subject ■to the trust.
Third. The proceeds of business and sale of any property but realty were to be applied first, to taxes, insurance and business expenses or expenses of sales; second, to buy up .any liens of third parties deemed best for Winchester’s protection and benefit; third, to pay proceeds of all real estate directly to Winchester, and to pay him, his heirs, executors, administrators or assigns the remainder of receipts, profits and proceeds.
Fourth. They were to make annual statements, and Winchester reserved the right of nominating, if he chose, persons to act as their agents to assist in carrying on the business..
.Fifth. At the end of ten years everything was to be turned over to Winchester.
It is manifest that if Winchester owned this projaerty absolutely or had any other interest in it, this so-called trust being entirely for his own benefit, would, if standing alone, be nothing more than a power of attorney coupled with no interest and at all times revocable. It is further manifest that it contains powers which, if his interest was as a mortgagee, could not lawfully be.granted without the concurrence of the owners of the equity of redemption.
But the declaration or provision in favor of Loud & Gay, made as part of the same transaction, indicates the true character of this arrangement. That instrument is executed by Winchester and the three trustees, and is of the following purport:
It recites the execution of the other conveyance, and that Winchester owns other timbered lands in Michigan. It then declares that the amount to be paid in all to Winchester is $275,000, with • interest at the rate of 5 per cent., payable as follows: $25,000 during the first year (1877); $35,000 in each of the second and third years (1878 and 1879) ; $30,000 in each of the fourth and fifth years (1879, 1880) , and $40,000 a year thereafter, till the principal and interest should be fully paid. But in case of Winchester’s death before full payment, the whole interest should be remitted and only the $275,000 principal paid. All surplus moneys beyond the specified sums in any year were to be used in the discretion of the trustees in buying up claims against Loud, Gay & Co., or paid over to Winchester. The trustees could, until forbidden, cut not more than 15,000,-000 feet a year of logs from other lands of Winchester, who also reserved the right not only to revoke this right to cut other timber, but also to require interest to be paid, notwithstanding his death.
The property remaining was tó be conveyed to Lond & .Gay after the trust was satisfied, but they were to take no interest before. A similar declaration was made concerning some other lands not conveyed to the trustees.
There was an unwritten understanding that Loud & Gay should continue to manage the business as before, and that Wasey and his co-trustee, Henry N. Loud, should be the ■acting trustees, and Wasey be the financial manager or agent. Whiting was not expected to do active duty. The business was carried on with these several persons acting in these capacities until some time in 1880, when complainant was removed from the management, and Gay continued on a double salary of $6000, besides compensation for management of business of the Oscoda Boom Company. The trust business was carried on under the name of the Oscoda Salt and Lumber Company, and contracts were made in that name. Some of complainant’s sons were employed in the business.
In 1880, on the return of complainant from the south, where he had wintered, he found fault with Wasey’s management, and had some correspondence" with Winchester on the subject, who informed Wasey of what had been written. The result of this difficulty was ultimately the removal of complainant, before referred to, and an attempt by Winchester to repudiate the trust as terminated by non-payijient of the sums provided for. After this Wasey refused to recognize complainant’s rights, and to a certain extent, and as to any interest in complainant, denied the authority of his co-trustee, Henry N. Loud.
Only a small part of the annual sums mentioned was paid to Winchester, and complaint is made that, instead of devoting money to this purpose, large outlays were made, with Winchester’s consent, for other purposes. Among these, as alleged, were the purchase of $30,000 worth of pine lands, the rebuilding of a burned mill and salt blocks, and the failure to apply large accumulations of personal property to pay Winchester. Complaint is further made that the books are not so kept as to exhibit the true state of the business; that Gay and Wasey manage correspondence in their personal names, and refuse information, and refuse to recognize-complainant’s rights, and act merely for Winchester, and draw such salaries as they choose; and that while Whiting; is absent and takes no part, Henry N. Loud, who is the only trustee practically acquainted with the business, is thwarted and ignored, and the policy of economical management and payment of the debt subordinated to extravagance and expansion of business. These parties are also charged with lending the credit of the concern, and keeping it from the. books and from complainant’s knowledge, and with keeping a book-keeper who is impudent and acts in disregard of Henry N. Loud’s rights of inspection of books, and who-does not make proper entries. It is charged that the purpose is to let the debt accumulate and prevent complainant from getting any results out of the property.
The first thing to be looked at is the nature of this-arrangement and its consideration. It is claimed by defendant Winchester that he is merely a mortgagee in possession,, and that not only must this be treated as a bill to redeem,, but the reduction of the debt was without consideration,, and the whole is due.
As no other creditors are before the court, we are only interested in regarding the mutual interests of the parties, between whom this contest arises. And we think that,, although this arrangement was made to secure a debt, it very clearly involves trust powers which are in no way inherent in mortgage relations. It contemplates the management of an extensive business, the purchase of property, the borrowing of money, the sale of lands and personalty, and some other powers and action of peculiar character. The combined action of Winchester and the trustees devotes the entire estate to a sj)ecies of management very plainly fiduciary, and the action of Loud & Gay in putting the. whole legal title where this arrangement covers it, and their assent to it, complete the trust relation. The transfer of title and possession, and the relinquishment of control in the maimer provided, whereby Winchester not only secured for himself and the trustees immediate possession but important rights of management, furnished a valuable consideration for the arrangement whereby the debt was reduced and personal liability released. He received advantages over the other creditors, who might have levied on the lands if merely mortgaged, and might have secured a standing by purchasing the equity of redemption, and thereby possessory rights until foreclosure as well as the right of inquiring into the nature and extent of Winchester’s bona fide claims. As between these parties, we can see no ground for. holding defendants exempt from the obligations attaching to the fiduciary relations relied on.
In this view the question how far the trust has been abused, and how far it can be complained of after the actual dealings of the parties, becomes the main subject of controversy. But there is, perhaps, a preliminary inquiry concerning the breadth of the issues. It is claimed by the defense that all proof of misconduct and misappropriation of the trustees, not anticipated and charged in the bill, is immaterial and must be thrown out. This, we think, is not so. The beneficiaries under a trust have the right to be kept informed at all times concerning the management of the trust, and it is the duty of the trustees to so inform them. It is not generally presumable that the beneficiaries have such information from independent sources. When, therefore, a bill is filed to call trustees to an account, any testimony throwing light on their management bears directly on the performance of this duty, and may be considered in taking the accounts and in determining the view to be taken of the conduct of the trustees.
It is also claimed by the defense, and with justice, that a beneficiary cannot blame a trustee for action which he has himself approved or suggested beforehand, with knowledge of the condition of affairs. There is no doubt that parties may waive the strict performance of trust duties. But while this is so, in regard to completed transactions, it is equally clear that the beneficiary may require future deal ings to conform to the trust, and that past laxity will be no excuse or justification for future laxity which has not been authorized or approved.
With this preliminary statement it becomes necessary to look at what the trust contemplated and required. Its entire scope includes.no more than the duty of conducting and continuing an existing local business at Oscoda, including the management of mills and salt blocks run in connection, and the management of a store, also in connection with the same business. The cutting of timber to supply the mills, and perhaps the purchase of logs for the same purpose, and such collateral arrangements as usually belong to such a local lumbering business, may also, perhaps, be included. Power was given to borrow money, if necessary, on mortgage. The whole purpose of the trust was to manage the property to raise money to pay off obligations. It did not contemplate the enlargement of business for any other purpose, nor its establishment elsewhere, and it did not contemplate the creation of further obligations not necessary in the business-itself, or for repairs.
It further expressly appropriated the whole income, and required it all to be expended in the extinction of existing liabilities. No room was left for accumulation or enlargement. And the necessity of such an appropriation is obvious. If the property was to be retained and accumulated, and the debts left to accumulate also, the risk of destruction by fire or casualties and the risk of depreciations and business straits, might lead to an entire sacrifice, when, if the debts were continually cut down, the ultimate prospects would be very different, and the chances of saving a surplus would be much greater.
As we have no full rendering of accounts on the record, it cannot yet be determined to what extent complainant is estopped by what took place before the winter of 1879-1880. It does not appear thus far that the course of the trustees, in their diversion of the income from its proper uses, was not assented to. When the accounts come in it is possible this may be changed. But for our pi’esent pur poses no complaint seems clearly tenable before the return of complainant from Florida, although there is much to criticise as improper if not assented to.
The facts show that under the management as conducted, instead of keeping the business within its ordinary course and paying off the debts as far as possible, very little attention was paid to this ; and although the results have been large, the payments have been in no proper proportion to them. It also appears that instead of confining himself to such financial management as was contemplated he should assume, of a business the ordinary matters of which were to be conducted by local superintendence, Wasey has absorbed a very large and general management, practically independent in many respects of his co-trustees, and has not dealt with his co-trustee Henry N. Loud civilly or according to his legal duty, but has ignored him to a considerable extent, and has encouraged the book-keeper to do so. He also disregarded well-founded charges of irregularity in the book-keeping. Under this trust, as written, and as the parties had a right to deal with it, the three trustees all stood ■on the same footing, and were all equally entitled and bound to act. The only arrangement made whereby a majority ■could act independently, was as to Wasey and Henry N. Loud. No such arrangement was ever made as to Wasey and Whiting which would justify ignoring Loud. Still less •could Wasey use his own judgment alone, either with or without the consent of Whiting, as it is obvious he has done to a considerable extent. Whatever purely executive business his co-trustees might have entrusted to him, any business calling for the discretion of the trustees officially could not be thus assumed or allowed.
The business with Monroe & Co., at Cleveland, does not appear to have been agreed upon by the trustees, and seems to be a very remarkable outgrowth of a trust which was to be conducted at Oscoda. By this arrangement a large proportion of the lumber produced, on which a balance of over $180,000 was unpaid at one time, was kept shipped to a firm at Cleveland- entirely on credit, and subject to be sold out by that firm with no security but such as would come from a lien on the leasehold premises and improvements, and on the contents of the yard, which were intended for sale under a reserved power of supervision, which would have been of but moderate use in case of misconduct. The yard was not an agency, and the trust authorized no such agency. The fact that Wasey was paid for his own personal supervision of this Cleveland business was of itself in violation of the general doctrine which prevents personal benefits to trustees from their employment, and this doctrine was recognized in the decree which compelled him to account for it. But this substantial transfer of so large a part of the business from Oscoda in a body into another state, and the agreement for continuing this large credit business for lumber, can hardly be harmonized with the trust purptoses.
The only explanation that can be found is in the policy evidently and plainly asserted that Winchester had become by his repudiation of the trust entitled to be regarded as mortgagee in possession, and the trustees as his trustees. This doctrine is not tenable. He had at all times power to-require the employment of new managers, and to compel the trustees to live up to the trust. Instead of this he seems to have acquiesced in the action had before he attempted in 1880 to repudiate the trust, and since that time Wasey has done his individual bidding or obtained his-acquiescence, and neither has respected any other rights as they should have been respected.
It appears affirmatively that in 1880 complainant urged strongly the application on Winchester’s debt of all the unnecessary accumulations, but Winchester did not consent but undertook to get rid of the trust altogether, and is responsible personally, chiefly, if not entirely, for the subsequent policy. Upon the examination of witnesses to prove the value of Wasey’s services, a main ground of commendation propounded was the large accumulation of assets under the trust, amounting in all to $404,065.22, and leaving, after deducting payments to Winchester and debts to Loud, G-ay & Co., a clear balance of $288,682.73. This amount is claimed by defendants to be correct, and if so, it is, so far as we can judge, sufficient to wipe out all or nearly all of Winchester’s claim. It ought to have been so applied as far and as fast as possible. It may possibly be overstated. The accounting will probably show, and the decree should in respect to this be modified somewhat.
Another important question is whether for these violations of trust Wasey should be removed. If we were satisfied that complainant’s rights were endangered, it would be necessary to do so. But while we are satisfied the duties have not been performed with proper regard to mutual rights, it is not clear that much of this conduct has not been had under a legal misconception, and it is further clear that Winchester is responsible personally, and that probably the interests of complainant can be preserved in the accounting. By Wasey’s removal the trust would remain in Loud and Whiting, and there are strong reasons why the discretionary powers should not be so transferred while all the trustees are living. No new trustee could be well selected in Wasey’s place without confusion, if such an appointment should be found otherwise proper. The only other alternative would be a receiver. But if it should turn out on accounting that the trust has not' substantially fulfilled its object, there are objections to any needless employment of a receiver to exercise such powers as the continuance of such a business would entail, which should make it a last resort. .
As all the equities not now dealt with can be disposed of after the accounting, we are not disposed to disturb the official standing of the trustees, preferring now to assume that with an understanding of their duties they will hereafter act harmoniously and in a business-like way in accordance with their strict duties.
We see no reason for disturbing the decree for costs, and for the present, at least, we are not disposed to interfere with the salary arrangement, except as to the non-resident trustee. The record shows no reason for si vine: him an an nual salary of the same amount as the rest. He may very likely be entitled to some pay for services, but it may better be determined hereafter.
We are also of opinion that the decree should require the application without delay of all available personal property on hand towards the payment of the debt of Winchester, and that hereafter all available proceeds of the business be similarly applied as fast as realized in the same way, although they may exceed the $40,000 yearly referred to in the decree as it stands.
As the case must remain in court upon the equities reserved, and for future supervision, any further orders can be made hereafter as circumstances require. The propriety of some outlays complained of will depend somewhat on the accounting.
The decree will be modified accordingly, and complainant will be entitled to costs against Winchester. The record to be remanded for further proceedings.
The other Justices concurred. | [
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Campbell, J.
The bill in this ease was filed to enforce rights growing out of a lien claimed for unpaid purchase money of a tract of timbered land. In 1874 a firm which had become interested, under the name of Yan Etten, Campbell & Co., in the assets of a previous firm, were holders of a contract for 2209 acres, partly paid for, which had belonged, to complainant and others, and then were practically .complainant’s. At the same time complainant and one Boeing held a contract for 4892.86 acres, originally made by the Jackson, Lansing '& Saginaw Railroad Company to Dexter A. Ballou, on which some payments had been made, and future payments were also to mature, $8673.68 and back interest, due April 1, 1874, and about $26,000 in three payments annually thereafter.
In February, 1875, an agreement was made to sell this contract to Yan Etten, Campbell & Co. subject to the sum of $26,000, which they were to assume, complainant agreeing to take care of the rest. They were to pay complainant for his interest $25,675. None of this purchase price was to be paid down, but the arrangement was as follows : This sum, added to what was unpaid on the 2209 acres, made up $42,000. This was to be divided up into seven notes, payable as follows: One for $8000 due August 1, 1876; one for $8000 due November 1,1876; one for $4000 due June 1, 1877; one for $4000 due August 1, 1877; one for $6000 due November 1, 1877; one for $6000 due June 1, 1878; and one for $6000 due August 1, 1878, all. on interest. A deed for the 2209 acres was to be delivered, and a mortgage given to complainant for $22,000, including the last four notes. Complainant was to have a lien on the 4892.86 acres for the whole $42,000. He was to' pay the amount not assumed by Yan Etten, Campbell & Co., who were to make the remaining payments, and who were, as soon as possible, to get a deed from the Railroad Company and give back a mortgage for what remained unpaid to the railroad, and then execute a second mortgage on the tract to secure the $42,000. Complainant paid what he had agreed to, but the Railroad Company, which had previously been in the habit, after receiving certain preliminary payments, of giving deeds and taking back mortgages for the remainder, declined, under its new commissioner, Mr. Barnes, to continue that custom, and refused to give a deed before full payment. This made it impossible to carry out the terms of the purchase literally. These had been left in parole. The deed and mortgage were executed on the smaller tract, and the notes given. The Railroad Company are shown, in our opinion, to have had full notice of the complainant’s claim. It was expected and understood that Yan Etten should hold all the papers until the agreement was properly carried out.
Yan Etten, Campbell & Co. became in the year 1876, by transfer from the other partners, changed into Campbell & Campbell, who in that same year made a payment to the Railroad Company of $15,000. The company, however, claim this payment was not made on the Ballou contract, but upon a consolidation of that with three certain other contracts made with the predecessors of Yan Etten, Campbell & Co. on other lands, and in default. The lands covered by these other contracts had ceased to be valuable, and were not worth nearly the sum unpaid on them.
The facts are disputed concerning this consolidation. It is claimed on the one hand that Yan Etten agreed that they might all be put together, and left the Ballou contract with the company in that view. But it also appears that it .was not regarded as surrendered for any supposed forfeiture, and that it was not agreed by Campbell & Campbell that it should be regarded as extinguished. Complainant was not consulted, and did not agree to it. And in November 1876, Campbell & Campbell received the original contract, with a written assignment from Yan Etten, Campbell & Co. These papers subsequently got into the hands of the Railroad Company in some way, but we do not think they were treated as forfeited, and it is not, in our opinion, true that Campbell & Campbell" regarded the contract as ended in any way. Complainant was not a party to any such arrangement. Whatever talk there may have been about consolidating the contracts, it was never done in fact, and it could not have been done without operating as a legal fraud on complainant, if he had any claim on the Ballou contract. That was the only one having substantial value.
Of the notes not covered by the mortgage on the smaller tract, two of $6000 each were paid. The $4000 note was not paid. That mortgage was foreclosed, and but a small sum was realized, leaving the bulk of it unpaid, amounting with interest to nearly $28,000 when this bill' was filed.
Sometime in 1877 Campbell & Campbell became bankrupt, and their property was subsequently transferred by the assignee for the benefit of the Canadian Bank of Commerce. Defendant Plummer in 1878 acquired so much of these assets as relate to the property in any of the railroad lands. Plummer afterwards desired to get from the Bail-road Company a new contract for the lands in question. The company refused,to do this, and Mr. Barnes insisted on putting all of the contracts before referred to in one new contract for the whole amount due on them. A compromise was made on the amounts by a reduction of $2000, and Plummer took out a new contract to himself and Alexander Faulkner for a consideration of $42,000, paying down $12,000. He afterwards acquired Faulkner’s interest, and made sales of parts of the lands for considerably more than the whole purchase money.
Included in the purchase of Campbell & Campbell’s assets was a large amount of sawed and unsawed lumber, of which about two million had been certainly cut and then remained on the lands in controversy, and the balance is claimed to have been so cut in whole or in part. This cutting was not authorized by the contract from the Bailroad Company, and the title legally remained in the company. It was however allowed to pass to Plummer & Faulkner and they disposed of it.
Before the contract was taken out by Plummer & Faulkner, a bill was filed and injunction'issued in favor of Ort mann, setting up the same facts involved in this cause, and they had full notice of them. It does not clearly appear why that suit was dropped, unless from the necessity of some supplemental or amendatory allegations.
Inasmuch as the chief defendants are all affected by sufficient notice of such equities as Ortmann possessed, without reference to the doctrine of priority among equities, the important question is whether he has such equities as can be enforced.
There would be some difficulty in holding the delivery of the assignment from Ortmann and Boeing to the custody of Van Etten as an escrow. Apart from the question of liis personal interest in the assignment, on which we need not pass, the arrangement contemplated that the contract should be exchanged for a deed to be issued by the company before the return mortgage to complainant could be executed. To obtain this the assignment would have to be delivered up with the contract to the railroad company. This would be inconsistent with such a delivery in escrow as would extend until the execution of the mortgage. That theory, therefore, cannot prevail.
The Statute of Frauds stands in the way of any trust in Van Etten. And if he held the papers, as we think it was meant he should hold them, it was rather a bailment or agency than a trust, although involving similar duties. But we do not think that the testimony shows any denial by Van Etten, Campbell & Co. of the rights of Ortmann. All parties knew of them, but not being put in writing they cannot be enforced specifically, just as was intended. The form of the contract did not require the Bailroad Company to convey before payment, and the understanding between Ortmann and his assignees, being based on the expectation of a deed, made no provision for any new security but a, mortgage of the fee.
It still remains to be seen how far he is protected by his lien as vendor, for unpaid purchase money.
The right of a vendor to a lien does not seem to be confined to the sale of a legal title or title in fee. The leading case of Mackreth v. Symmons 15 Ves. 329 (1 Leading Cases in Equity 194 and notes) was one relating to what was treated as an equitable title. The doctrine has been applied to copy-holds, and appears to be received as to all recognized titles. See Adams’ Eq. (7th ed.) 128, and notes; Winter v. Lord Anson 3 Russ. 488. The lien on an equitable title may no doubt be more uncertain, by reason of the danger that bona fide purchasers from the legal holder may intervene and destroy it. But subject to that risk (which is not confined to equitable estates) it may be upheld. In the present case the legal title is still in the railway company, having knowledge of the equities, and defendants are not bona fide purchasers. We see no difficulty in the nature of the title.
Another question, not so simple, arises from the alleged waiver of any lien, if it ever existed. It will be seen that the price of the smaller tract of land was less than the mortgage put upon that land by $5680, so that this latter amount of the purchase money of the larger parcel was included in that mortgage. It was not kept separate, but was included in the sum of $22,000 in four notes expressly secured. TTpon the settled principles applicable to mortgages, all unpaid notes stood secured ratably and not in order of time. While the authorities are not clear that a lien may' not continue, if agreed, even where separate col-laterals are taken, yet when the purchase money of one parcel is so blended with that of another in a mortgage as to prevent their separation, we think there would be too much confusion created in the enforcement of a lien beyond the mortgage itself, to justify the attempt.
But we see no difficulty in sustaining the lien for the unsecured notes. It is shown distinctly that the lien was positively agreed on, so that there was no waiver, and no security but a personal liability of the vendees. Two of these unsecured notes are paid, but a third, of $4000, is unpaid, and should in our opinion stand secured by the land.
The question then arises, how is it to be provided for ? Plummer bought the land subject to this lien, but as between him and the Railroad Company he is entitled to a clear title. The Railroad Company has put itself in the position of denying the lien and doing what it could to destroy it. The timber cut and transferred to Plummer would probably have paid the amount of this note, but whether it would or not, there is no doubt that the amount exacted of Plummer by compelling him to put all the contract lands together, has not only made it impossible to separate his payments, but has also obtained for the Ballou lands a price exceeding the contract price very largely. In our opinion the Railroad Company has been paid and secured enough to render it liable to complainant for the amount of the $4000 note and interest, and should be decreed to pay it with costs of both courts to complainant. The other defendants to pay their own costs. Had the lien been enforced for the rest of the purchase money a further reference would have been proper to settle the equities. But we have no doubt that the company should pay the note in question, and no reference is needed.
The decree must be reversed with costs as above mentioned, and a decree for complainant entered accordingly, with a lien on the land unless paid, to be enforced by sale, if necessary, free of incumbrance.
Graves, C. J. and Sherwood, J. concurred. Cooley, J. did not sit in this case. | [
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Campbell, J.
Plaintiff brought replevin for a yoke of cattle which defendant held under an arrangement for their purchase, which the court below held void under the Statute of Frauds. It is not necessary to go into, all the facts, as the case was left to the jury under instructions upon defendant’s hypothesis, and ruled against him.
Upon this view, which the testimony seems to bear out, defendant was engaged in doing work on the land of plaintiff’s wife, and needed a yoke of -oxen. Plaintiff let him have the cattle, on the understanding that defendant should own them as soon as he had done a sufficient amount of clearing to make up their value, fixed at $100. Defendant did the work and claimed to own the oxen.
We cannot see how the Statute of Frauds covers such a case. It could in no way concern defendant what reason plaintiff had for desiring to have his wife’s land cleared, and he might fairly assume that plaintiff and his wife had arranged or would' arrange the matter to suit themselves. The property having been delivered to defendant on that condition, became his as soon as it was- performed. Mrs. Sutherland was a stranger to the sale. - The only parties to that transaction were plaintiff and defendant.
The defendant was entitled to the charge which he requested.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Cooley, C. J.
This action was upon an administrator’s bond, to recover moneys which by an order of the probate court the administrator had been directed to pay to one of the heirs. The penalty of the bond was one thousand dollars ; the amount found to be due under the order was forty-five dollars. The judgment rendered was for the penalty, and execution was awarded for the amount so found due with costs of suit. The sole error assigned is the award of costs.
It is argued that the controversy was within the jurisdiction of a justice of the peace, and the case should not therefore have been brought in the circuit court. If the bond had been an ordinary money bond, the obligee might have brought assumpsit upon it in justice’s court for any amount within the jurisdiction of that court, irrespective of the amount named in the bond as the penalty. But when a probate bond is sued, the judgment for the penalty stands as security in case of further breaches, and other parties than the party first suing may iiave scire facias upon it. How. St. § 6003. This suit could not therefore have been brought in justice’s court.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Campbell, J.
This was an action brought before a justice of the peace upon a bond in the penalty of $275, conditioned for the forthcoming of certain attached property of less value. The circuit court for Genesee county ordered judgment for defendant on the ground that the action was not within a justice’s jurisdiction. This decision was based on the supposed authority of Bishop v. Freeman 42 Mich. 533.
The effect of that decision was somewhat misapprehended by the circuit court. In that case a suit was brought before a justice on a bond in the penalty of $2000, which was given to secure the liabilities of a third person, who was agent of a sewing-machine company, to his employers. It was held that the case did not come within the jurisdiction of a justice because the penalty was beyond his jurisdiction, and the condition -was not for the payment of any particular sum of money by the obligor.
The justice’s statute contains a provision there referred to, which allows a suit before a justice, on a money bond, no matter how large the penalty, if given to secure specific sums of money, in one or several instalments, provided the aggregate shall not exceed $150. Comp. L. § 5255. [How. St. § 6820.] It provides in such cases for an action, not of debt but of covenant, for any separate instalment, and for several successive instalments, if necessary, as independent .actions. But where the bond is not strictly a money bond, it is not taken from the rules governing in other cases, and if the penalty exceeds the jurisdiction of a justice no suit ■can be brought before him. This is what was decided in ■the case referred to.
In the present case the penalty is under $300, and the breach is for a cause of action involving a still smaller amount. It is therefore within the ordinary jurisdiction of a justice, and there are no statutory provisions to the contrary.
The judgment must be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Sherwood, J.
The action in this case is trespass for wrongfully taking and carrying away a quantity of goods claimed to be the property of the plaintiff, and for injuries consequent thereon. Plea, general issue, with notice that the goods were taken by defendant as an officer under attachment against the property of Charles N. Fairbanks, husband of plaintiff.
On the twenty-fourth day of February, 1883, suit was commenced before a justice of the peace by George ~W. Dubois & Co., by writ of attachment against Charles N. Fairbanks, for $250. The defendant was constable, and by virtue of the writ seized the goods of the plaintiff and made an inventory thereof. The defendant not being found, service was made by copy, which was too late. The writ was made returnable on the fifth day of March, and the writ was returned by the defendant the same day. The defective service is conceded by defendant. The goods were worth about $2000. At the time the defendant seized the stock of goods they were in possession of the plaintiff, and the testimony tended to show that she purchased them of her husband on the thirty-first day of January previous, and paid therefor $510 in cash, and released a claim she held against him, then amounting to $1266, secured by chattel mortgage on the goods. The goods were taken from the possession of the plaintiff and held by defendant until the fifth day of March, when the plaintiff commenced her suit therefor. On the fifth day of March, when the defective service was discovered by the defendant, the suit before the justice was discontinued, and a new attachment was taken out and levied upon the same property, and service of process was regularly made. The defendant seeks to justify under tlie two writs. The case was tried by jury, and under the testimony and the charge of the circuit judge the jury rendered a verdict for the defendant, and the case is now before us for review on bill of exceptions containing all the testimony given in the case.
The possession of the propertj' by the plaintiff and her ownership as against her husband are conceded. It is also conceded that no legal service was made of the first writ of attachment. Still the property was taken from the plaintiff, as it is claimed, by virtue of such writ. The proceedings before the magistrate were special and statutory, and every requirement of the statute must be strictly observed'; and the rule applies to the officer as well as to the parties. If any of the provisions of the statute are not complied with by the officer in levying or executing his writ, the lien obtained is lost. Greenvault v. Farmers' & Mechanics' Bank 2 Doug. (Mich.) 502; Buckley v. Lowry 2 Mich. 420; Roelofson v. Hatch 3 Mich. 277; Millar v. Babcock 29 Mich. 526; Adams v. Abram 38 Mich 302.
Under the conceded facts in this case it was incumbent upon the defendant to show not only that the transfer of the goods was fraudulent as to creditors of Charles N. Fairbanks, but that defendant acted under a valid writ against him and executed it in a legal manner. Decker v. Bryant 7 Barb. 182; Pemberton v. Smith 3 Head 18. A judgment in the first attachment suit upon the claims sought to be recovered not having been obtained, there was no evidence that the plaintiff in that attachment was a creditor. Schooldistrict v. Macloon 4 Wis. 88; Cook v. Midler 11 Ill. 610. No legal service of the writ of attachment m the first suit, of any kind, is shown or claimed. In order to be protected by process of this kind, the officer must proceed with his writ as the law directs. Russ v. Butterfield 6 Cush. 242; Whitney v. Jenkinson 3 Wis. 407; Cooley on Torts 461; Michels v. Stork 44 Mich. 2.
It is claimed by defendants’ counsel that because a second suit was commenced as soon as it was ascertained the proceedings in the first were worthless, the commencement of the second in some measure excused the illegal proceedings in the first. We know of no rule of law.giving the commencement of a suit any such operation. The defendant clearly lost the protection of his writ by the defective manner of serving it. He tóok and held the plaintiff’s property without right, and is liable to her for any necessary and legitimate damage she has sustained thereby. The proceedings in the magistrate’s court, in- both cases, were irrelevant and immaterial, and should not have been given to the jury.
Much is claimed by defendant’s counsel for the decision of the jury under the general finding on the question of a fraudulent transfer of the property to plaintiff. But the finding of the jury is of no consequence so long as it is based upon improper testimony and an erroneous charge. It is further claimed by defendant’s counsel that the verdict showed plaintiff had no interest in the goods as against the defendant’s execution when he made his levy; but this position is subject to the same infirmity. The verdict itself was erroneous, because based upon improper evidence.
The plaintiff’s second request was proper and should have been given. It is as follows: “The fact that plaintiff paid full value for the goods, if such was the case; that there was an immediate change of possession; that the plaintiff was a creditor of her' husband in a large sum; and that he is not shown to have been legally indebted ; or that the plaintiff knew of any fraudulent intent on his part, are all circumstances to show the transaction a fair one.”
It is also difficult to see why the plaintiff’s first request might not have been properly given.
These views dispose substantially of alt the questions raised in the case, and further discussion is unnecessary.
The judgment must be reversed with costs and a new trial granted.
Campbell, J. concurred.
Graves, C. J. I concur in the result.
Cooley, J.
There were in this case two attachments against tbe goods of tbe plaintiff’s husband, under tbe first of which tbe defendant, as officer, seized the goods in the bands of tbe plaintiff. There was a failure to make legal service of that writ, and before tbe second writ was sued out tbe plaintiff brought this suit. Tbe defense is that plaintiff bolds the goods fraudulently, and that they still belong to plaintiff’s husband for all purposes of enforcing tbe claims of creditors.
I agree that under tbe circumstances tbe defendant was liable in trespass for seizing tbe goods on a writ which failed; but I am not prepared to say that tbe proceedings in tbe attachment suits were immaterial and not proper evidence in the trespass suit. Whether tbe defendant might not prove them, and thereby show that tbe plaintiff bad sustained no real damages, and had only a technical right of action, is a question on which I reserve opinion. | [
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] |
Cooley, C. J.
The plaintiff presented to the commissioners appointed to audit and allow claims against the estate of Nathaniel Davenport, a claim arising on a breach of a covenant against encumbrances contained in a deed from the decedent to Elizabeth, the -wife of the claimant, bearing date July 29, 1872, and conveying certain lands in the county of Ionia. The commissioners disallowed his claim, and he appealed to the circuit court where it was again disallowed.
The plaintiff’s case was that the deed to the wife was made on an oral understanding with her that she should hold the land for him and deed to him on request — he having paid the consideration ; that afterwards, on August 28, 1878, she did convey to him in recognition of this understanding ; that when the deed to her was given the land w'as encumbered by a mortgage given by the decedent, and that this mortgage was paid by the claimant in 1879. This was all the showing that was made of the plaintiff’s right to recover upon the covenant. Whether the deed to the claimant contained covenants does not appear.
It is obvious from this statement that if tbe claimant can enforce any claim upon the covenant he can only do so by virtue of the transfer to him of the claim by his wife’s deed. The oral understanding was a mere nullity, except as the wife saw fit to give effect to it afterwards by the execution of a deed. The mortgage, which was upon the land fell due February 11, 1873. ' There had therefore not only been a technical breach of the covenant but the grantee in the deed of the decedent was in position where, by paying off the incumbrance, she might recover the whole amount- as damages by breach of her covenant. Her right of action was complete; and it may be added that several payments of interest had been made on the mortgage before she conveyed to her husband. There is nothing in the record to indicate any intent on her part to transfer this personal claim, which her husband could only claim as assignee. We are referred to Post v. Campau 42 Mich. 90 as authority for the position that the deed of the wife carried the covenant against encumbrances; but in that case the covenant looked to the future, and was intended to give protection to the title against demands coming against it subsequently. The actual decision made in that ease has therefore no bearing upon this. The doctrine that a covenant against present encumbrances cannot run with the land was discussed with unfavorable comments by one member of the Court; but the present case is scarcely within any of, the reasons then assigned for a change of the rule. The record before us is remarkably meager in its statement of dates ; but apparently the mortgage must have been overdue for six years when the decedent - died. It needs no argument to show that the covenantee cannot thus indefinitely prolong the liability of the covenantor by leaving the mortgage unpaid, and that if she could, the mere transfer of the title without covenants and without mention of the claim would not evidence an intent to transfer her right of action.
The judgment must be affirmed.
The other Justices concurred. | [
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] |
Graves, C. J.
In 1878 the plaintiff received a lease of building No. 232, situate on Congress street west, corner of Fourth street, in the city of Detroit, for the term of eight months from .the 31st of August of that year. The property was then owned by the defendant, and she has continued to be the owner since.
The plaintiff was engaged in manufacturing wagon hounds, and it made use of the building as a place to store them. It retained possession for that purpose until near the middle of March, 1880, when it had in store some 10,500, besides 100 castings, at which time the transaction occurred to which this litigation is to be traced.
Sometime prior to that date the defendant was of opinion that the plaintiff’s right was ended, and that she was entitled to possession, and in February she made a lease to one McDonald, and they desired the plaintiff to give possession to him. The company, by its manager, Mr. Hall, denied that its right to hold had terminated, and insisted that under the bargain made with it the time would not expire until the following September. Hall and McDonald met several times for the purpose of agreeing on some arrangement by which McDonald would be enabled to go in and occupy without opposition, and by which the property stored in the building might be removed without expense or loss to the plaintiff.
In March, Hall went to Washington on business. No one was left on the premises, but the goods remained stored there. McDonald wanted possession, and his business necessities therefor were urgent. On the 13th of March he entered quietly and unopposed, and removed the plaintiff’s property to the open enclosure, where it was exposed to the weather. The removal was effected with due care, and the articles were placed in good order. No injury was done, and the position in which the things were put and left was unobjectionable. The exceptional fact was the exposure. McDonald immediately forwarded a written notice to Hall,, and his wife received it and mailed it to him. It speedily reached him in Washington, but he deferred returning until his business was completed. He came back the forepart of April. The property was allowed to remain without any protection from the weather for about three months, and it. suffered damage by the exposure. The plaintiff then sold it for $237.50. The original value was estimated at upwards of $5000. This action was afterwards brought, and the jury returned a verdict in favor of the plaintiff for $3362.25.
Among the subjects of controversy before the trial court was the question whether the right of the plaintiff to retain the possession and enjoyment had not expired; and also whether it was not agreed between Hall and McDonald that the removal might be made substantially as it was. On the latter point the testimony of these persons was directly opposed.
First. A query occurs at the outset in regard to the form of the action. In the commencement of the declaration it is called “ trespass on the case;” but this is an obvious misnomer. The action does not take its form from the name assigned to it by the pleader. It is determined by the matter. Cornes v. Harris 1 Comst. 223, and authorities. The case is set forth in four counts, and each count is distinct- lively in trespass quare clausum. In every one tlie fundamental charge is the breaking and entering. But this fact is not averred without anything to characterize it. It is made part of the averment and an element of substance that the plaintiff was at the very time a tenant of the defendant. The substantive cause of action laid in each count is the tortious entry by the landlord on the demised premises during the existence of the tenancy; and the further circumstances of injury, including the putting out and exposure of the wagon hounds, are only matters of aggravation. They are not original and additional causes of action. Their office is purely subsidiary. They can have effect only in case of recovery for the breaking and entering, and their function is then to expand the right to damage which that wrongdoing has raised. Taylor v. Cole 3 Term 292: 1 H. Bl. 555; Dye v. Leatherdale 3 Wils. 20; Gelston v. Hoyt 3 Wheat. 246, 326, 327; Eames v. Prentice 8 Cush. 337; Knapp v. Slocemb 9 Gray, 73; Merriam v. Willis 10 Allen 118; Howe v. Willson 1 Den. 181; Herndon v. Bartlett 4 Porter (Ala.) 481. Unless the pivotal charge of injury is established, or in other words, unless the breaking and entry is made out, the action must necessarily fail. The case described is not made out. It is not competent to desert the substantive ground of action described and make use of those elements laid as simple accessories, as though they were counted on as primary and distinct grounds of recovery. See cases last cited.
Again, the plaintiff had seen fit to count on the relation of landlord and tenant as one which was actually subsisting when the breaking and entry occurred, and as being a constituent fact .of the transaction, and of such importance as to give it character. It was thus rendered material, and a circumstance necessary to be shown. It was a descriptive fact. Buller’s N. P. 65; 1 Stark. Ev. 624 et seq.; 1 Chit. Pl. 140, 141, 147, 402. The learned judge disposed of the case, however, on other principles. He gave it to the jury on the theory that it was immaterial whether the parties stood in the relation of landlord and tenant, and immaterial ■whether a tortious entry was made, and he advised that a recovery was admissible for part of the matter laid as accessory only, whether the entry was wrongful or innocent. I think this was error.
Second. As the case appears in the record, the first and second counts were entirely unsupported, and as the contro" versy went to the jury the only matter in either the third or fourth counts which received any backing from the evidence, was the claim that the hounds were put where they were exposed to the weather. Now, Mr. Justice Cowenin the course of his opinion in Seneca Road Company v. Auburn & Rochester Rail Road Company expressed himself as inclined to the view that a declaration, though palpably in trespass, might yet be sufficient to entitle the plaintiff to recover on the theory of the action of case, provided it contained enough for a declaration of that sort. 5 Hill 170. Without admitting or denying the tenability of what is thus mentioned, and without going into several points which seem to be, involved, let it be granted that the plaintiff was at liberty to have the third and fourth counts of the declaration operate on the trial as counts in case. It was the theory of defendant, on which there was evidence, that the plaintiff was holding without any right whatever, and that she was entitled to enter in the very way in which the entry was effected and was entitled to the ■entire possession ; but all this the circuit judge ignored.
The case must be considered now upon the assumption that the facts were as claimed by the defendant. The matter then comes to this: the plaintiff was occupying without any right whatever and was subject to be dispossessed, and the defendant, being entitled to enter and have full and absolute possession and enjoyment, did enter peaceably and without opposition and in accordance with her right and thereupon took the plaintiff’s wagon hounds which were encumbering her possession and trespassing on her right and prudently and without injury to them put them out and piled them in proper shape. And now the plaintiff says that this exposure of his wagon hounds operated in the course of time to cause them injury. Under this conception of the facts it is not easy to discover any valid ground of liability.
On wdiat foundation can it be claimed that the defendant, under the hypothetical view here taken, was under duty to do better by the plaintiff than she did ? The articles were not frail or delicate. They were capable of being put out of the room, to which the defendant was fully entitled, without immediate or early damage. They might fairly be expected to bear exposure in the open air for a considerable time without appreciable in jury, and it might justly be supposed that the plaintiff, by the exercise of any diligence, would be able to take care of them in season to avoid loss. But the ruling of the circuit judge would seem to imply that the defendant was, after all, bound to house or otherwise protect the property from injury until the plaintiff should be able to take care of it, however long the period. I cannot concur in this view. Low v. Elwell 121 Mass. 309; Canavan v. Gray—Cal.—: 22 Am. L. Reg. (N. S.) 718, and note.
On this aspect of the case, and also in view of some of the underlying facts, the authorities cited in defendant’s brief are very important.
Further discussion is unnecessary. I think a new trial should be granted, but before' it occurs no doubt the pleadings will be revised.
The judgment is reversed with costs and a new trial granted.
The other J ustices concurred. | [
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] |
Campbell, J.
Abeel brought summary proceedings to remove defendants from lands leased to them by his father, James Abeel. The claim of complainant was that they held over wrongfully after the lease was determined. He prevailed before the magistrate, but the circuit court of St. Clair county, on appeal, held he made out no case.
The lease was by its terms to run from April, 1879, to April, 1882. The rent for the whole term was $810, not payable at any fixed rate per year, but in fixed instalments, not all equal. The whole farm contained M2 acres, and some restrictions were made as to the parts of the land on which certain acts were to be done. The lease contained a clause providing that the lessor was to have the right of selling the farm, but in case he did so he was to pay the lessees one dollar and fifty cents per acre for plowing, and a reasonable sum for such damages as they should sustain, “ to be left to two men, one chosen by each party. If they cannot agree, then they are to choose a third man.” This, aS here set forth, is all that the lease contained on the subject. On the 12th of January, 1880, the lessor conveyed one parcel of the farm to complainant, and the remainder to another son, William Abeel. Immediately after these conveyances the lessor gave notice to the lessees that he had sold and conveyed the land to the persons named, and that he had chosen Lewis A. Frost as arbitrator and required them to choose an arbitrator within fourteen days, and set the time for removing from the farm. No other notice to quit was given, and this was given after the conveyances. This proceeding was begun March 11, 1880.
Some testimony was given tending to show that each party named an arbitrator 'and that the arbitrators met on the 25th of February, 1880, and adjourned to some future day, and met again, but on what day is not shown, the only witness on. the subject stating that he thought it was before this suit was commenced. It did not appear that the arbitrators had concluded their labors, or that anything definite had been arrived at. The whole testimony on this matter was too indefinite to be of any importance. It was not shown what claims either party set up, and it was not shown that James Abeel made any offer or tender in money or that the Hubbells were in any way in default.
We can find no basis whatever for a recovery. Neither of these separate grantees could stand as assignees of the landlord’s title, and they had no joint interest. Assuming that the Hubbells were bound to surrender the property on compliance by Abeel with the conditions referred to, it is very clear that until an arbitration was had and a tender made, they could not be required to leave the land, unless, possibly, by a proper tender on the part of Abéel after a fair effort on his part prevented by their fault, to get at their rights. Some things were fixed'by the lease itself. There was an allowance for plowing which needed no arbitration to fix it. This was not tendered. And there was nothing whatever tending to show any failure for which they were responsible. The arbitrators’ action in postponement was, whether wise or unwise, their own lawful act, and not to' be regarded as depriving the Hubbells of any rights. But the latter were not shown to be in fault, and the case fails to show how the attempt to arbitrate ended, if it did end.
Beyond this it is also to be considered that even if the action of the parties was such as to terminate the interests of the Hubbells, they became thereafter tenants by sufferance, and possibly, if the whole estate had been sold to one purchaser, he might come in on the footing of their first landlord. But a grantee of a separate parcel of the reversion cannot claim as such assignee, and could not, bring himself within the statute without some notice to quit or demand of possession. Whether he could do so at all we need not consider.
We might point out still further deficiencies in the testimony, but it would be of no special use. It seems that the Hubbells subsequently gave up possession. It does not appear whether they have been indemnified. The question has probably become one of costs entirely.
We think the action of the circuit court was correct, and it must be affirmed with costs.
The other Justices concurred. | [
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Graves, C. J.
The charge brought against the company, and which the plaintiff called upon it to answer, was for damming up the water by gates, booms, timbers, chains, ropes, pins, poles, logs and other appliances, and thereby flooding the plaintiff’s land. The circumstances of the wrong were laid as being acts of a direct and positive nature, and the instruments used were described in terms, with a single exception, where a general expression was introduced. But in that case the meaning would accord with the subject-matter (Broom’s Max. 575), and the construction would follow the rule that words of specification draw into the same class those general terms which are superadded to attain the end without further prolixity. American Trans portation Co. v. Moore 5 Mich. 368; Hawkins v. Great Western R. R. Co. 17 Mich. 57; McDade v. People 29 Mich. 50; Brooks v. Cook 44 Mich. 617.
The case brought against the defendant was consequently one of malfeasance, and was so exactly marked out by the facts set forth as to leave no room for speculation in regard to its legal identity. It seems, however, that no evidence was put in to convict defendant of the form of injury thus alleged. The charge so informs us. Still, the jury were allowed to return damages on the supposition of some remissness of defendant in its management of drives; or, in other words, the court considered it competent for the plaintiff, under a complaint for malfeasance, to recover upon a supposed non-feasance. We are not able to assent. Funk v. Arnold 3 Yeates 428; Breedlove v. Turner 9 Mart. (La.) 353; Dunlop v. Munroe 7 Cranch 242; Doane v. Badger 12 Mass. 65, 69; Mayor v. Humphries 1 C. & P. 251; Hullman v. Bennett 5 Esp. 226; Fitzsimons v. Inglis 5 Taunt. 534; Parker v. Rensselaer & Saratoga R. R. Co. 16 Barb. 315; Hill v. Supervisor &c. 10 Ohio St. 621; Simonds v. Pollard 53 Vt. 343 (1881); 1 Chit. Pl. 140, 141, 147, 402.
Campbell and Cooley, JJ. concurred.
Cooley, J.
In this case the boom company is sued for damming and obstructing a river by logs, booms &c., and thereby setting back the water and causing it to overflow the plaintiff’s land. On the trial the circuit judge submitted the case to the jury on the theory that there was no evidence in the case showing that the company had done any act to obstruct the river as charged, but told them, in substance, that they might find the company responsible for a failure to perform with diligence its duty to float the logs cast into the river by others, and to run them in proper manner so as to prevent injury to the plaintiff’s land by backwater. On this instruction the plaintiff recovered upon a case not made by his declaration, and which defendant had not been called upon by the pleadings to meet.
If we could judge of the case by this record, we should believe the plaintiff has strong equities; but when the plaintiff recovers upon a case that he has not summoned the defendant to meet, we cannot know that the defendant has in fact attempted to meet it. But whether he has or not, it is certain he was not required by law to do so.
The judgment must be reversed with costs and a new trial ordered.
Graves, O. J. and Campbell, J. concurred. | [
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Per curiam.
Motion for mandamus to compel tbe respondent, who is township clerk of Beaver Creek, to enter upon the records of the township the proceedings of a meeting of the township board.
Held, that no meeting of the township board could be legal which was not attended by all the members, unless it appeared that the meeting was duly called and notified. The mere attendance of a quorum does not make a legal meeting, but every member has a right to be present and participate in its action.
Mandamus denied. | [
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