text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Hooker, C. J.
The respondent appeals from a conviction of rape. William O’Brien was also charged with the same offense, and had pleaded guilty. The offense was perpetrated at the residence of complainant during the absence of tbe family, and tbe men were in tbe house on the return of the family. O’Brien was captured and detained; the other broke away. Soon after, he came to the door, and threatened to shoot Judd Reading if he did not let his partner go. Judd stated that this man was the defendant, Newton. A Mrs. Smith was permitted to testify that a few minutes after the arrest of O’Brien, and after the other man had escaped, but before his return, O’Brien said:
“Mrs. Reading, how came I here? Oh, I know; Lewis Newton brought me here.’’
The tendency of this testimony was to establish Newton’s identity. It was the statement of a confessed criminal that another had brought him to the place where the ■offense was committed. It was hearsay, and we think was not admissible upon the theory that it was a part of the res gestee.
The judgment must be set aside, and a new trial ordered.
The other Justices concurred. | [
68,
9,
25,
16,
-16,
-15,
-30,
-27,
-1,
4,
40,
-24,
-14,
35,
-9,
2,
7,
-21,
64,
-5,
13,
-20,
18,
28,
-29,
-72,
73,
2,
-41,
40,
65,
-20,
25,
-19,
7,
27,
86,
-20,
10,
11,
-8,
33,
-2,
-11,
-1,
4,
6,
18,
-42,
4,
48,
-50,
7,
1,
15,
-43,
18,
22,
33,
6,
-34,
19,
-67,
-27,
-40,
-22,
-8,
-19,
-28,
-13,
0,
-4,
-35,
-16,
-4,
-12,
-36,
1,
0,
7,
5,
-9,
19,
12,
13,
-23,
3,
-71,
7,
5,
39,
-8,
-35,
-43,
2,
-11,
-13,
-30,
21,
4,
14,
1,
-40,
-69,
-19,
55,
-23,
15,
16,
21,
-6,
7,
52,
-3,
-34,
-62,
-63,
-23,
-37,
-48,
7,
59,
37,
5,
4,
-36,
-30,
-80,
-22,
-22,
-21,
-4,
19,
-45,
-32,
23,
29,
-9,
14,
-57,
17,
-23,
12,
7,
-3,
-14,
-32,
29,
-34,
58,
22,
18,
-35,
26,
18,
-47,
-33,
5,
-16,
40,
-13,
-31,
-10,
0,
30,
10,
-36,
-30,
0,
43,
-10,
61,
-2,
100,
28,
51,
-53,
-8,
-9,
-21,
-26,
20,
15,
10,
-14,
41,
36,
2,
-36,
45,
-44,
39,
-41,
-23,
41,
19,
-18,
-22,
11,
1,
28,
24,
20,
11,
-18,
-37,
31,
11,
24,
31,
-6,
27,
-44,
0,
0,
11,
-9,
-38,
14,
6,
-6,
4,
-3,
29,
-57,
-46,
1,
71,
-56,
18,
33,
9,
-22,
-11,
-47,
47,
14,
-11,
46,
-18,
-18,
22,
43,
-3,
21,
-13,
35,
7,
-46,
11,
20,
16,
31,
10,
-23,
20,
17,
-16,
36,
-34,
-17,
33,
-26,
30,
-20,
-8,
40,
0,
-5,
-19,
6,
-33,
-10,
24,
-12,
22,
9,
-6,
-18,
20,
25,
37,
-1,
36,
-3,
-85,
-54,
2,
-23,
-26,
36,
-24,
2,
-73,
72,
16,
25,
-3,
-13,
-35,
37,
-28,
12,
-4,
1,
24,
55,
2,
-11,
-55,
5,
46,
13,
-5,
25,
0,
-15,
16,
-23,
-6,
-72,
-78,
25,
-29,
28,
15,
34,
-31,
31,
-17,
-31,
29,
7,
-2,
12,
56,
-32,
3,
-17,
13,
-35,
-22,
-32,
-49,
-10,
27,
-21,
27,
-43,
-39,
16,
3,
8,
-8,
-3,
0,
-11,
-7,
20,
-50,
58,
-20,
-19,
12,
6,
21,
-43,
-67,
3,
19,
36,
-70,
4,
-18,
-5,
18,
60,
-47,
-32,
20,
-11,
0,
11,
-36,
-21,
4,
12,
-21,
33,
-11,
9,
-20,
0,
-72,
-19,
21,
3,
-2,
47,
-38,
-15,
-12,
19,
-17,
-54,
9,
-32,
-2,
21,
-37,
8,
53,
46,
56,
13,
-61,
-13,
-11,
2,
-31,
20,
-5,
58,
21,
52,
60,
-2,
-5,
7,
-50,
3,
-79,
3,
20,
-35,
36,
-28,
17,
13,
-46,
-49,
8,
-36,
62,
34,
50,
10,
-27,
18,
-19,
9,
-9,
9,
-16,
-31,
34,
25,
-10,
19,
-25,
12,
18,
-18,
-7,
23,
39,
-47,
-54,
4,
-18,
41,
-22,
26,
37,
20,
20,
27,
79,
-1,
-35,
36,
-31,
-4,
28,
4,
-1,
-19,
-48,
41,
-42,
1,
30,
-60,
-27,
13,
31,
53,
0,
-26,
30,
-35,
0,
2,
-5,
10,
-39,
38,
-4,
49,
31,
13,
-16,
-30,
-49,
-35,
-57,
-2,
43,
41,
35,
36,
7,
17,
18,
-10,
28,
2,
-32,
-22,
-33,
60,
0,
-2,
-18,
53,
-37,
-17,
-73,
-27,
-45,
-23,
24,
80,
28,
-50,
41,
12,
5,
-15,
35,
-11,
54,
59,
-27,
-29,
-23,
32,
-53,
-32,
14,
-18,
-30,
34,
18,
-26,
10,
-10,
52,
23,
-10,
20,
35,
-32,
39,
-5,
-7,
-18,
43,
20,
44,
13,
24,
-35,
17,
-34,
-9,
-52,
-49,
-18,
-23,
-68,
9,
0,
-49,
-7,
-26,
-25,
25,
-34,
-49,
12,
12,
11,
33,
-14,
38,
28,
36,
-33,
-5,
0,
21,
8,
23,
-5,
25,
-24,
25,
-36,
-42,
33,
11,
-79,
11,
5,
-59,
-14,
-42,
20,
-72,
-21,
-18,
-3,
56,
-45,
-40,
4,
-5,
-38,
62,
42,
46,
-16,
27,
7,
22,
0,
-11,
-41,
-73,
6,
-35,
-12,
-20,
33,
-32,
-16,
33,
66,
-2,
11,
15,
4,
17,
19,
18,
35,
-26,
-4,
-29,
-4,
-2,
-1,
4,
11,
-9,
23,
-16,
-4,
17,
40,
-23,
29,
-66,
41,
74,
-53,
8,
-27,
36,
0,
-20,
28,
20,
-1,
9,
8,
-66,
-47,
-21,
10,
-47,
0,
5,
37,
-54,
72,
-34,
17,
-4,
12,
29,
-1,
-32,
6,
-42,
-10,
6,
-27,
35,
9,
39,
59,
-18,
32,
15,
1,
-10,
18,
-5,
3,
-28,
0,
35,
11,
34,
-43,
-37,
34,
-21,
-71,
23,
-35,
-71,
-14,
-18,
-11,
-53,
52,
49,
59,
0,
40,
10,
-1,
29,
-15,
-7,
-19,
-21,
14,
-17,
7,
-69,
-64,
8,
-16,
2,
69,
13,
-14,
-27,
12,
38,
-47,
40,
45,
58,
0,
-15,
-21,
-38,
-96,
-15,
0,
-19,
-5,
-1,
0,
-14,
33,
19,
-37,
72,
-36,
-13,
19,
-61,
-52,
43,
-15,
-9,
6,
-5,
-14,
-5,
11,
20,
-49,
24,
0,
22,
-41,
-36,
-59,
-9,
21,
-47,
-3,
9,
17,
22,
0,
32,
34,
-10,
19,
-4,
-12,
-4,
22,
1,
-24,
50,
24,
34,
5,
-3,
-50,
16,
-31,
47,
56,
-3,
19,
-11,
-6,
23,
-31,
7,
6,
66,
-26,
14,
-64,
-18,
11,
-19,
-6,
0,
-70,
7,
5,
-12,
16,
26,
108,
-29,
61,
-3,
15,
-1,
33,
-1,
-30,
60,
32,
-13,
-3,
78,
-12,
-24,
-42,
74,
-9,
-31,
-34,
-53,
-30,
-19,
-7,
-6,
52,
-17,
-30,
9,
-28,
31,
-11,
-23,
-10,
2,
-32,
7,
29,
29,
-1,
28,
5,
-1,
22,
-3,
32,
-29,
25,
21,
-64,
-43,
32,
-1,
1,
-5,
18,
59,
30,
-1,
-20,
-78,
-30,
16,
-8,
-2,
-39,
-28,
41,
-4,
55,
-11,
-12,
57,
71,
9,
-55,
17,
-16,
30,
-44,
1,
31,
8,
-20,
21,
-7,
30,
27,
33,
-44,
19,
-62,
-3,
-25,
34,
13,
-17,
-10,
-14,
-18,
51,
-13,
3,
7,
-14,
21,
-6,
35,
-6,
10,
34,
19,
-28,
-3,
-12,
-41,
14,
-20,
16,
-20,
29,
-32,
7,
-31,
-5,
-20,
50,
15,
31,
-3,
-51,
5,
-31,
-25,
-32,
0,
12,
24,
-44,
0,
26,
19,
-89,
-9,
0,
21,
28,
10,
3,
-4,
0,
-17,
20,
-18,
1,
-1,
30
] |
McGrath, J.
This is an action of trespass, and is before us for the second time. 80 Mich. 359.
The case was tried without a jury, and error is assigned upon the findings.
The first, second, and fourth assignments are disposed of by the former opinion.
The sixth assignment of error, viz., “that the court erred in rendering judgment for the defendants,” does not conform to the requirements of Supreme Court Rule No. 12, and will not be considered.
There was evidence tending to show that defendants had, prior to the commencement of this suit, entered upon the land, and cleared off a portion thereof, and the finding will not be disturbed.
The fifth assignment of error is as follows:
“ The court erred in finding plaintiff’s tax deeds, or any one of them, void.”
The court found, “ as a conclusion of law,” that the tax deeds introduced by plaintiff were invalid. Plaintiff excepted to the finding “that, as a matter of law, all of .said plaintiff’s tax deeds are void.” The court’s conclusion of law is not to be regarded as a finding of fact, and neither the exception taken nor the assignment of error entitles appellant to a review of the facts found upon which the conclusion is based.
Upon the argument the deeds for the years 1875, 1877, 1878, and 1880 were conceded to be invalid.
The court found that for the years 1871, 1873, 1876, and 1879 the levy for township, highway, and school purposes was in excess of the amounts authorized. But it is insisted that there is no finding that the lands were sold for the unauthorized taxes. The court finds that plaintiff offered in evidence certain deeds from the Auditor General,—
“Purporting to convey to the plaintiff the above-described premises on account of delinquent taxes assessed thereon for the years, * * * for which taxes said land was sold to said plaintiff. The court finds from the evidence the following irregularities in the proceedings to levy and collect the taxes on the land in controversy for the several years for which said deeds were given."
No such question was raised in the court below. The contest there was as to the validity of the assessments for the purposes named. Plaintiff filed requests for findings, but no allusion is made in the record to this question. As to these years, the questions actually tried were entirely immaterial, if the fact was that the unauthorizedv taxes were not included in the amounts for which the land was sold.
In Stockle v. Silsbee, 41 Mich. 615, 618, as to the title for 1869, the finding stated that its invalidity was based in part upon State and county taxes returned as delinquent; and this Court held that the objections to the State and county taxes were not plausible, and that it was not shown that any particular township, school, or highway tax was among those for which a sale was made. In the same case the sale for 1871 was found to have been made “for said State, county, and other taxes," and the Court say:
“Although this is a little indefinite, it is, perhaps, to be understood as a statement that the sale was made for *11 the taxes mentioned in the finding as having been levied for that year. This would, include township, highway, and school taxes, as well as those levied for the State and county.”
In the present case, we think the court must be understood as referring to, and treating of, defects in the proceedings to levy and collect taxes which were included in the term, “ delinquent taxes assessed,” for which said lands were sold.
The judgment must therefore be affirmed.
The other Justices concurred.
The deed for the year 1874 was not introduced in evidence on the last trial. | [
-57,
39,
17,
-37,
-46,
19,
17,
21,
-12,
75,
-2,
22,
21,
35,
1,
-52,
-24,
8,
4,
25,
3,
-39,
-57,
4,
3,
-18,
39,
8,
-38,
14,
20,
13,
-37,
21,
15,
21,
21,
16,
0,
6,
-10,
-11,
-22,
-37,
-13,
-28,
-13,
-25,
26,
-12,
42,
-24,
7,
11,
-10,
7,
-9,
-5,
-32,
-16,
30,
-3,
-31,
18,
4,
-37,
5,
-17,
0,
-13,
-78,
18,
-10,
-34,
-27,
15,
-25,
12,
-61,
52,
-19,
-41,
21,
-2,
0,
4,
29,
-21,
21,
0,
-16,
-27,
-21,
25,
44,
33,
8,
-1,
0,
0,
33,
17,
-22,
55,
34,
-27,
-61,
-9,
-31,
-28,
44,
26,
10,
-34,
-16,
-23,
-5,
-7,
-26,
-57,
47,
-4,
29,
20,
21,
1,
-7,
5,
8,
-13,
1,
34,
-20,
12,
-38,
-18,
-31,
-25,
22,
-3,
1,
-5,
-15,
-22,
20,
0,
8,
-37,
-8,
-43,
-55,
0,
11,
0,
-43,
0,
18,
-34,
57,
-78,
75,
16,
2,
-48,
-11,
18,
-17,
1,
3,
-24,
65,
-32,
-27,
-11,
32,
-24,
17,
-32,
-29,
-20,
11,
3,
21,
-6,
-3,
-32,
-37,
-5,
16,
-45,
46,
8,
-16,
-6,
22,
13,
-36,
26,
1,
-38,
1,
-37,
20,
3,
-22,
31,
2,
-23,
-43,
33,
-42,
-12,
-28,
-28,
-19,
2,
22,
-3,
0,
-17,
5,
43,
10,
-32,
4,
-19,
1,
7,
-37,
20,
-16,
19,
-11,
-24,
-49,
-50,
14,
-20,
10,
15,
10,
21,
0,
-3,
29,
17,
4,
-24,
-39,
48,
9,
-14,
4,
4,
8,
-53,
26,
3,
-45,
4,
-13,
61,
-3,
-23,
-50,
-14,
26,
9,
-5,
19,
-11,
19,
42,
27,
-16,
-7,
-10,
-46,
3,
29,
-3,
-17,
41,
59,
7,
40,
-2,
33,
20,
20,
1,
-17,
-11,
20,
-9,
4,
73,
-3,
12,
0,
-22,
3,
49,
0,
24,
-4,
6,
-17,
-10,
26,
29,
10,
-53,
18,
42,
16,
-12,
-7,
12,
-20,
-10,
8,
13,
-19,
23,
12,
40,
-59,
-22,
3,
15,
36,
60,
38,
49,
-36,
27,
-38,
-21,
6,
40,
11,
-29,
-65,
26,
1,
-12,
-37,
12,
32,
-1,
7,
-20,
54,
-17,
18,
-2,
-5,
-6,
16,
17,
37,
42,
-32,
0,
-2,
-44,
-20,
51,
36,
7,
6,
16,
22,
-7,
-50,
30,
18,
-46,
42,
-20,
4,
-23,
0,
9,
13,
-4,
-52,
-16,
-1,
-13,
-21,
36,
23,
-19,
-13,
18,
-5,
-33,
-19,
4,
33,
69,
19,
-50,
-25,
0,
19,
-15,
0,
0,
-16,
31,
-40,
9,
-28,
41,
6,
29,
-11,
52,
24,
31,
-56,
18,
-46,
10,
36,
-26,
3,
-13,
5,
-3,
-42,
-6,
-3,
-23,
-5,
-8,
14,
-31,
47,
-27,
18,
-10,
-15,
-23,
16,
6,
11,
-14,
-17,
-38,
-14,
4,
5,
33,
-94,
72,
-26,
28,
-11,
-22,
-16,
2,
-23,
-50,
-61,
14,
-14,
-41,
20,
32,
23,
-18,
24,
-18,
25,
35,
30,
26,
-34,
-14,
-46,
-4,
-13,
10,
14,
-37,
5,
21,
35,
8,
-23,
24,
-29,
-26,
-7,
30,
43,
-25,
38,
0,
-23,
3,
15,
-18,
-9,
13,
34,
-15,
1,
57,
25,
-29,
-8,
21,
2,
21,
0,
-29,
-50,
-77,
-34,
-8,
18,
29,
-13,
1,
4,
46,
3,
25,
-2,
-24,
20,
-4,
-13,
14,
4,
-12,
22,
35,
24,
0,
8,
-10,
-7,
7,
-33,
27,
-30,
20,
5,
-50,
-20,
-11,
-43,
6,
-12,
-50,
-21,
24,
-61,
50,
-8,
8,
-28,
-1,
-14,
14,
-33,
10,
-17,
-26,
-2,
-29,
-10,
3,
15,
-11,
-2,
-3,
-44,
27,
32,
-13,
35,
13,
26,
0,
4,
-58,
-5,
-27,
-19,
5,
23,
40,
4,
3,
-25,
-26,
30,
19,
-9,
-5,
-2,
-13,
-26,
40,
-9,
15,
4,
55,
49,
1,
-14,
4,
30,
-12,
26,
2,
-10,
7,
14,
13,
7,
-42,
-58,
20,
-14,
-10,
12,
-21,
7,
24,
11,
10,
1,
38,
-34,
-12,
-8,
6,
3,
-51,
18,
-14,
-5,
0,
45,
18,
-30,
11,
18,
3,
-31,
14,
-19,
49,
-6,
12,
35,
-33,
40,
33,
-50,
11,
4,
-18,
-17,
-19,
-24,
-10,
-37,
27,
63,
24,
-50,
24,
-5,
-42,
24,
12,
-41,
-77,
25,
23,
13,
23,
18,
-7,
24,
-27,
3,
-1,
35,
21,
7,
8,
12,
32,
37,
-3,
20,
30,
14,
11,
-10,
-1,
18,
0,
-5,
-12,
27,
3,
-9,
-30,
13,
33,
-22,
15,
-54,
-9,
-32,
34,
-23,
-9,
19,
4,
27,
-13,
18,
33,
19,
36,
8,
-4,
10,
0,
-26,
-61,
16,
-2,
19,
70,
14,
-20,
28,
-2,
3,
28,
16,
-33,
16,
-16,
22,
-15,
-37,
3,
30,
-50,
-8,
-3,
-7,
-23,
-33,
-13,
18,
0,
0,
-2,
-46,
-4,
39,
7,
-14,
-7,
-30,
-1,
32,
2,
9,
-43,
-24,
-32,
-17,
13,
22,
34,
-2,
-2,
7,
-23,
5,
-4,
19,
-14,
35,
38,
3,
-17,
33,
-7,
48,
-45,
23,
-3,
43,
1,
-4,
-28,
-34,
33,
-12,
5,
51,
-13,
-45,
15,
24,
-1,
-32,
-14,
13,
34,
-14,
25,
-26,
13,
-35,
-68,
15,
32,
-31,
-32,
20,
-28,
-2,
-19,
-18,
-24,
-3,
-10,
21,
-17,
-5,
-22,
-27,
-32,
11,
37,
-39,
-34,
15,
7,
2,
39,
42,
39,
17,
19,
-11,
22,
28,
8,
-50,
23,
19,
-16,
32,
-40,
18,
11,
30,
0,
-25,
13,
-1,
16,
68,
0,
21,
-10,
-40,
1,
-31,
1,
39,
44,
14,
6,
29,
-41,
-18,
-3,
-14,
-11,
0,
11,
13,
-11,
-37,
-15,
7,
33,
34,
-16,
33,
26,
-59,
-25,
-42,
-8,
-8,
-55,
-56,
51,
-12,
32,
3,
-16,
-45,
-42,
-26,
-9,
30,
4,
35,
-52,
62,
-22,
3,
18,
-6,
-9,
-46,
-17,
-27,
5,
-34,
11,
20,
-33,
-38,
8,
27,
-5,
-10,
-8,
-1,
14,
51,
-37,
17,
-61,
-72,
-17,
-22,
-5,
20,
-18,
4,
12,
-5,
30,
-6,
-21,
-3,
-17,
-22,
9,
0,
-7,
-5,
11,
-17,
-29,
-13,
28,
-42,
-6,
-2,
10,
0,
24,
-26,
-25,
-7,
2,
25,
45,
-24,
-18,
21,
-15,
-14,
19,
-35,
17,
-11,
31,
-15,
11,
-30,
62,
35,
-4,
-2,
-27,
-11,
64,
44,
-15,
9,
-7,
18,
-31,
-48,
24,
43,
2,
18
] |
McGrath, J.
This is replevin to recover merchandise from one claiming as purchaser from an alleged fraudulent vendee.
Smith & Hassock, in September, 1890, were carrying on a lumber business at Raber, Chippewa county, and kept a general store in connection therewith. Mueller & Raber, of Chicago, made advances to Smith & Hassock from time to time, and took their'lumber product. On September 16, 1890, Smith was at Detroit, and gave a verbal order to plaintiffs for a quantity of merchandise. From Detroit, Smith went to Chicago, and saw Mueller & Raber; from Chicago, returned to Raber, arriving there on Saturday, September 37. Before reaching home, Smith had learned that Mueller & Raber had refused to accept certain drafts which Smith & Hassock had drawn upon them for further advances, and on his way to Raber, at St. Ignace, Smith met Mr. Raber, who was also on his way to Raber to investigate the affairs of Smith & Hassock, who were largely in arrears to the firm of Mueller & Raber. Learning of this condition of things, Smith telegraphed from St. Ignace to one Keliher, another creditor of the firm of Smith & Hassock, informing him that his account was in danger, and Keliher arrived at Raber on Sunday morning, and prepared to take out a writ of attachment on Monday morning. Mr. Raber also arrived at Raber on Saturday, the 37th. All of the parties sat up all night Sunday night, and on Monday morning, as early as 1 o’clock, Kelilier had attached, and Raber had secured a bill of sale of all the .assets of the firm of Smith & Hassock, including the goods purchased from plaintiffs.
While en route to Raber, and at St. Ignace, presumably by appointment, Mr. Raber met defendant, who was a member of the firm of Lyman Feltus & Co., who were carrying on business in that vicinity, the firm being composed of Feltus, Mueller, and Raber, and informed him of the purpose of his visit to Raber. He says that he to'ld Feltus that he was going down to investigate affairs, and, in case he decided not to continue the business there, he wanted him to go over there and buy the business; and “1 asked him if he would consider that, and, if he did, that I would let him know when I had come to a conclusion, and, if so, to come over there, and he said he would.” Feltus was on hand at Raber Tuesday morning, and Raber assigned to him the entire stock and assets received from Smith & Hassock. The goods were replevied October 6, 1890.
Mueller & Raber simply credited Smith & Hassock, upon their indebtedness, with the amount agreed upon as the value of the assets transferred; paid the amount of Keliher’s attachment; and agreed with Smith to pay certain labor claims, none of which, however, were paid until November following, and the total amount of which was less than $2,300, Defendant was charged upon the books of Mueller & Raber with the value which they fixed upon the assets at the time of the transfer of the same to Feltus, and he paid nothing on the alleged purchase until after the goods had been replevied. Hassock had simply a working interest in the business. The goods had been bought on credit, and had'been ordered from samples. They had arrived at Raber but a short time before Smith and Raber arrived there. Most of them were still in the original packages. When Smith arrived, he told Hassock that the goods were to be sent back, and, before tbe transfer to Mueller & Eaber, he told Eaber that they ought to be sent back.
There was testimony tending to show that, when the goods were ordered, Smith misrepresented the financial status of the firm, and, when asked, withheld knowledge of the actual situation of affairs. It is clear, also, that before the transfer to Mueller & Eaber, he had not examined the goods with reference to their acceptance. The evidence clearly tended to show that when Smith undertook, by the transfer of the goods, to exercise an act of ownership over them, he did so knowing that he could not continue the business.
Under this state of facts, defendant was not a bona fide purchaser, nor were Mueller &. Eaber, so far as plaintiffs’ right of recovery was concerned. The stock of goods and other property transferred to them were valued at $10,000, the amount advanced to Keliher was $1,143.94, and the judgment for defendant in the court below was $1,120.92, leaving a margin still of $7,735.14. It is unimportant, therefore, whether the payment of Keliher’s claim was or was not a part of the consideration for the transfer, or whether that payment would constitute Mueller & Eaber bona fide purchasers to that extent. It is well settled that actual payment in good faith is needed to complete a bona fide purchase, and, in any event, a purchaser from a fraudulent vendee can only be protected to the extent of payments actually and in good faith made. Dixon v. Hill, 5 Mich. 404; Kohl v. Lynn, 34 Id. 360; Webster v. Bailey, 40 Id. 641; McGraw v. Solomon, 83 Id. 442.
If Smith, at the time that the order was given, misrepresented to plaintiffs the financial condition of the firm, and plaintiffs, in reliance upon the representations made, gave him credit, or if he, before he accepted the goods, knew that he could not continue the business, he was chargeable with accepting and transferring the goods with an intent not to pay for them, and plaintiffs were entitled to recover. Whitten v. Fitzwater, 129 N. Y. 626 (29 N. E. Rep. 298). Smith was the <5hly member of the firm who saw the samples, and who knew the kind and quality of the goods ordered. For the purpose of an acceptance of goods, the vendee must have had an opportunity of exercising his judgment with respect to the articles sent. The acceptance must be something more than a mere receipt; it means some act done after the vendee has exercised, or had the means of exercising, his right of rejection. Benj. Sales, § 154.
In the case of Nicholson v. Bower, 1 El. & El. 172, 28 Law J. Q. B. 97, there had been no specific goods selected and fixed on in advance. Bower had made a verbal sale of a quantity of wheat by sample, to be delivered by rail in London. The wheat was received at the London depot, and warehoused by the railway company, and the purchasers sent a carman to get a sample, and, after inspecting it, told him not to cart the wheat home at present. The purchasers were really in insolvent circumstances, and, immediately after the interview with the carman, determined to stop payment, and they therefore thought it would be dishonest to receive the wheat, although equal to sample, when they knew they could not pay for it. Held, that there had been no acceptance in fact, and a verdict in favor of the assignees of the purchasers was set aside.
The judgment must be reversed, and a new trial ordered.
Hooker, 0. J., and Grant, J., concurred with McGrath, J. Montgomery, J., concurred in the result. Long, J., did not sit. | [
-38,
6,
9,
14,
7,
21,
16,
5,
-23,
18,
-9,
-10,
-23,
8,
53,
15,
23,
-6,
47,
-68,
63,
-55,
12,
-20,
-2,
-18,
11,
-39,
6,
49,
-5,
15,
-20,
-17,
-9,
22,
0,
-38,
-13,
-12,
-51,
-5,
35,
9,
3,
49,
-16,
-43,
77,
-63,
97,
-18,
24,
-14,
-20,
-49,
16,
13,
35,
-8,
42,
-72,
63,
-36,
-2,
-23,
-16,
17,
26,
8,
-5,
-18,
13,
19,
-6,
-11,
3,
-18,
-13,
-24,
28,
-41,
47,
-57,
-12,
36,
-14,
-3,
-10,
7,
32,
16,
5,
-30,
53,
-46,
-9,
44,
-41,
16,
32,
2,
-100,
-31,
31,
-31,
8,
-17,
-25,
37,
-34,
5,
39,
-40,
0,
-30,
-5,
-48,
86,
22,
-6,
7,
-17,
11,
-1,
6,
2,
6,
-63,
-2,
-3,
-15,
-10,
13,
-3,
22,
-29,
-18,
-4,
20,
33,
-12,
-27,
-45,
-6,
7,
3,
-30,
-34,
12,
-64,
-16,
14,
23,
-26,
-8,
25,
-30,
44,
-4,
23,
16,
9,
-57,
-58,
6,
46,
-34,
-33,
-10,
-10,
39,
-13,
-14,
33,
-9,
38,
18,
-28,
22,
30,
13,
-21,
-5,
0,
-62,
22,
41,
13,
37,
55,
-6,
11,
26,
-55,
10,
13,
20,
56,
-12,
-11,
-56,
-30,
-12,
22,
12,
55,
-17,
0,
5,
-12,
14,
3,
-31,
58,
-2,
-36,
-58,
-4,
-57,
34,
27,
15,
51,
-36,
-38,
27,
43,
39,
-7,
-17,
-32,
-43,
-3,
-25,
3,
49,
-3,
1,
35,
32,
-37,
-64,
-36,
-32,
12,
-50,
11,
10,
14,
-32,
-46,
-39,
33,
-51,
6,
-14,
-19,
11,
25,
-3,
52,
0,
-20,
12,
-28,
31,
47,
-35,
35,
-2,
-45,
58,
4,
-39,
-17,
-28,
31,
0,
-25,
60,
-41,
-19,
-15,
50,
2,
16,
-25,
23,
-15,
-19,
79,
-15,
-45,
30,
74,
-45,
0,
27,
35,
-14,
42,
-36,
-20,
6,
-5,
-36,
22,
23,
-26,
-9,
21,
-36,
-32,
19,
-11,
18,
1,
-21,
40,
-9,
5,
-18,
49,
-5,
19,
-11,
61,
13,
-21,
-22,
-7,
-27,
-14,
-75,
-16,
37,
45,
56,
-53,
-11,
-37,
-45,
-3,
-50,
-15,
4,
-7,
3,
-30,
18,
-7,
-23,
27,
29,
20,
11,
23,
-12,
47,
79,
37,
22,
13,
31,
14,
-62,
45,
11,
21,
-68,
24,
7,
-33,
27,
-51,
-86,
-4,
-31,
0,
1,
-33,
42,
5,
9,
-40,
-37,
-56,
-100,
13,
-26,
3,
24,
9,
-35,
-7,
-63,
-35,
-17,
-56,
-13,
57,
4,
2,
-43,
-2,
-9,
-18,
39,
19,
-1,
-4,
49,
-19,
-22,
-28,
3,
8,
22,
11,
58,
26,
-25,
-36,
69,
-43,
24,
27,
-8,
68,
-3,
-7,
32,
-15,
26,
-30,
-32,
8,
6,
-7,
0,
1,
-24,
-18,
9,
6,
-32,
4,
33,
-53,
2,
-2,
11,
5,
-15,
52,
-4,
-37,
41,
17,
65,
-16,
4,
39,
15,
-9,
82,
-50,
-2,
47,
1,
22,
50,
-17,
-62,
-29,
58,
-3,
-2,
56,
-1,
21,
45,
-14,
-58,
-37,
-32,
0,
-31,
53,
24,
44,
-19,
41,
-1,
17,
-33,
51,
52,
73,
-29,
-49,
11,
4,
26,
23,
13,
-4,
38,
35,
32,
-51,
12,
14,
-28,
43,
-52,
50,
-16,
31,
-38,
-44,
-59,
-8,
-18,
14,
27,
0,
38,
-26,
-21,
-54,
-42,
-39,
0,
41,
41,
36,
7,
10,
-20,
-23,
5,
-41,
13,
15,
35,
-23,
14,
-2,
-24,
-10,
37,
3,
-16,
38,
-15,
-43,
10,
-20,
16,
33,
-11,
-18,
4,
-37,
-7,
15,
9,
12,
-53,
4,
52,
-1,
-1,
19,
-20,
-9,
31,
0,
-11,
-41,
8,
-63,
3,
51,
-30,
-22,
31,
28,
5,
0,
-63,
11,
-27,
-18,
0,
48,
66,
36,
8,
-17,
-57,
-13,
52,
-35,
-31,
67,
10,
46,
51,
-26,
-28,
-9,
16,
-10,
-17,
18,
24,
68,
30,
-38,
-10,
32,
0,
-6,
5,
-24,
-26,
21,
6,
21,
16,
87,
-18,
8,
68,
48,
-27,
16,
13,
-28,
-1,
15,
-29,
22,
2,
17,
33,
-28,
-12,
-4,
34,
18,
-17,
-41,
0,
9,
0,
-2,
30,
5,
-11,
-23,
25,
-18,
-31,
-2,
-20,
-20,
33,
-57,
-11,
-43,
12,
-29,
-19,
37,
11,
26,
-18,
-5,
21,
6,
-28,
-25,
3,
-30,
19,
-21,
-29,
16,
-22,
-62,
13,
44,
-21,
-20,
13,
-55,
-31,
0,
26,
44,
-6,
-32,
-23,
-24,
4,
-9,
34,
-32,
16,
13,
2,
15,
-13,
2,
1,
-32,
-46,
-18,
45,
-27,
52,
-55,
23,
-9,
-19,
-22,
30,
15,
3,
-47,
8,
44,
-13,
13,
-56,
18,
-25,
-39,
-9,
46,
-2,
8,
9,
30,
32,
-69,
36,
-2,
60,
31,
51,
-33,
-24,
-2,
-63,
0,
1,
14,
-41,
-56,
17,
46,
3,
-39,
-7,
-19,
-65,
26,
-44,
-4,
-12,
-6,
-10,
1,
63,
6,
14,
4,
9,
-2,
-12,
-43,
69,
-8,
49,
-13,
23,
-48,
-64,
1,
-75,
3,
38,
-37,
37,
-13,
-49,
-23,
-16,
-16,
-2,
9,
-13,
60,
18,
10,
-31,
11,
2,
-32,
26,
45,
-18,
-49,
46,
14,
-67,
-8,
17,
-19,
-41,
-4,
-32,
-48,
-34,
-25,
-10,
-24,
-14,
20,
57,
-18,
6,
-38,
0,
-8,
12,
23,
9,
12,
72,
-20,
18,
22,
-58,
-47,
-20,
-34,
-22,
-30,
-27,
18,
-11,
0,
22,
-12,
61,
-27,
-53,
-11,
-1,
-32,
-2,
-50,
21,
23,
15,
2,
-15,
25,
68,
21,
16,
2,
41,
-43,
-25,
15,
0,
11,
-43,
17,
19,
-28,
-23,
-11,
-30,
-19,
6,
33,
3,
-59,
-13,
-9,
5,
77,
-36,
-27,
62,
16,
38,
3,
-1,
20,
11,
5,
39,
-4,
25,
9,
-7,
-30,
50,
24,
6,
12,
60,
-28,
-19,
25,
-36,
31,
23,
61,
-27,
48,
-27,
59,
-24,
-7,
69,
-61,
-31,
-63,
-6,
10,
3,
7,
-9,
-8,
-8,
-4,
55,
-17,
11,
32,
19,
-8,
-11,
61,
14,
-1,
5,
-9,
-30,
-27,
34,
-28,
-49,
63,
4,
9,
8,
19,
22,
-45,
-56,
3,
7,
-4,
-37,
-40,
-4,
-18,
49,
13,
24,
-31,
-24,
79,
17,
35,
-37,
41,
-40,
7,
-23,
4,
15,
33,
-9,
9,
-11,
14,
-7,
-29,
-36,
-31,
48,
-56,
17,
-36,
-43,
16,
23,
21,
-36,
-35,
31,
23,
12,
-68,
-41,
29,
46,
-50,
-7,
0,
7,
57
] |
Montgomery, J.
The respondent was convicted of murder in the second degree. The offense charged was shooting and killing his brother. The testimony on the part of the people tended to show that On the day of the shooting the respondent and his brother had some words of dispute in a saloon; that the respondent left the saloon, deceased remaining there; that the respondent proceeded to arm himself with a double-barreled shot gun, and returned to the saloon. The deceased had in the mean time armed himself with a revolver. The respondent stepped up to the door of a screen which divided the front from the rear portion of the saloon, and called out to his brother: “Come up! Come up! ” The deceased stepped forward, and the respondent fired, and the shot resulted in fatally wounding the deceased. ■ There was testimony also tending to show that the deceased fired upon the respondent before the respondent fired at him. There was some testimony on the part of the respondent that he procured the shot-gun to go huntings that he had no intention of using it against his brother; and that when he called out in the manner in which he did, “Come up! Come up!” he did so in a bantering way. *
The charge of the learned circuit judge was, in the main, unusually clear. One of the requests prepared by respondent’s counsel, to which no reference was made by the charge, we think should have been given. There was evidence showing that deceased had made threats against the respondent; that he threatened to shoot him if he ever crossed his path. These were made by the' deceased on the day of the shooting, and after he had armed himself with the revolver. Respondent’s counsel asked an instruction as follows:
“ In considering which of the brothers, Albert or William, was the aggressor, and'the probable character of the assault, you should carefully weigh and consider the previous threats made by Albert, and the purchase and exhibition of the loaded revolver by him, as a person who has made threats against the life of another, and purchased and loaded a revolver a few minutes before, is more likely to make an assault than a person who has made no threats.”
This request should have been given, or its substance covered by the general charge. People v. Harris, 95 Mich. 87, 90, in which case it was said:
“ The testimony tending to show the animus or motive of the deceased was, in view of the conflict in the testimony upon that point, competent as bearing upon the question as to which was the assailant.”
See, also, Holler v. State, 37 Ind. 57; Stokes v. People, 53 N. Y. 164.
We also think the court should have defined the offense of manslaughter, and instructed the jury that, if the testimony warranted it, they might convict of the lesser offense. See Hurd v. People, 25 Mich. 412; Maher v. People, 10 Id. 212; Pond v. People, 8 Id. 150. It is possible that the instruction of the circuit judge upon the subject of self-defense was so favorable to the respondent as that, were this the only question in the case, we might be able to say that no harm wasMone by the omission to define the offense of manslaughter; but, as the case is to be reversed on other grounds, it is not necessary for us to determine this question. There was evidence from which the jury might have found that the respondent had no malice towards the deceased, but that, after being attacked by deceased, he, in the heat of passion, and in the excitement and confusion caused by the assault, fired the fatal shot, thus reducing the offense to manslaughter, even though the jury would be able to say that the assault did not execuse the homicide.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
27,
29,
24,
34,
-6,
-31,
-38,
53,
-18,
19,
-2,
-35,
-35,
-16,
42,
21,
-10,
-12,
47,
-17,
20,
-21,
-19,
37,
16,
-19,
-37,
59,
-12,
29,
49,
33,
-13,
-41,
17,
-25,
24,
-23,
44,
66,
-8,
58,
64,
-24,
-28,
38,
-51,
-27,
-32,
22,
18,
-7,
15,
-11,
0,
-30,
-28,
8,
46,
23,
-3,
2,
-58,
-52,
-46,
-11,
10,
-12,
-27,
22,
-6,
-26,
-6,
46,
-1,
-29,
-37,
-43,
52,
-49,
31,
-6,
20,
-15,
-44,
-22,
-9,
-53,
8,
-3,
24,
72,
-33,
-31,
32,
-38,
33,
40,
0,
5,
51,
-23,
-12,
-43,
-35,
-11,
7,
0,
46,
-6,
24,
20,
70,
16,
-76,
-24,
-16,
-16,
-52,
40,
-9,
4,
36,
-21,
-35,
-8,
-7,
-9,
18,
27,
3,
27,
0,
-38,
-57,
-26,
-9,
30,
0,
-9,
0,
20,
26,
-33,
11,
49,
-46,
35,
19,
25,
8,
64,
-26,
0,
37,
-34,
20,
-38,
-13,
13,
30,
-26,
-30,
-24,
-7,
-12,
-30,
-35,
-32,
-28,
-46,
1,
19,
34,
66,
37,
-21,
21,
6,
15,
46,
19,
37,
14,
13,
-3,
24,
8,
17,
-16,
-81,
56,
5,
17,
23,
45,
-9,
-6,
-2,
7,
-2,
11,
-2,
-13,
-14,
-4,
5,
22,
0,
-58,
-18,
37,
-36,
-13,
-17,
-18,
-5,
-13,
-30,
15,
-51,
-8,
8,
40,
0,
-70,
17,
26,
-71,
18,
32,
-42,
-51,
3,
21,
-19,
47,
-31,
3,
-35,
7,
-21,
34,
-18,
65,
24,
36,
15,
1,
2,
-5,
-27,
43,
29,
-47,
40,
4,
4,
39,
-45,
-34,
-24,
21,
47,
-1,
17,
-24,
-3,
-16,
-14,
3,
-43,
39,
3,
31,
-31,
-10,
40,
-37,
-33,
40,
9,
-6,
-44,
-11,
-30,
-56,
4,
-13,
36,
26,
-52,
-8,
-53,
12,
11,
6,
-5,
-9,
-58,
74,
25,
-16,
-44,
-5,
30,
91,
-9,
-63,
-10,
3,
58,
-12,
33,
69,
39,
18,
16,
-9,
-39,
-22,
-54,
36,
-51,
5,
-1,
-27,
27,
-7,
14,
-33,
0,
0,
32,
-56,
17,
-13,
-6,
-11,
-2,
16,
-24,
-8,
4,
-9,
57,
8,
40,
-62,
-48,
-34,
-39,
-12,
-21,
32,
-45,
12,
-9,
69,
-15,
16,
-21,
-24,
14,
28,
-29,
-18,
-56,
1,
4,
-2,
-30,
-22,
-13,
-14,
17,
21,
-11,
-25,
-7,
-31,
16,
38,
-26,
14,
-5,
0,
-46,
-27,
93,
-13,
-5,
-30,
-43,
-15,
-33,
-57,
-49,
38,
-64,
-49,
0,
-8,
0,
-42,
29,
-43,
-22,
17,
-13,
32,
2,
36,
42,
36,
-25,
-35,
-5,
23,
19,
35,
-31,
71,
28,
18,
-47,
-5,
10,
0,
-78,
16,
-21,
4,
49,
26,
16,
1,
5,
44,
-24,
-55,
-89,
-17,
28,
26,
15,
-43,
-6,
23,
11,
-37,
5,
-23,
-7,
-3,
57,
-4,
1,
54,
20,
25,
-12,
-28,
10,
42,
-1,
-43,
-7,
33,
-24,
65,
-32,
-53,
-13,
-31,
-6,
94,
27,
20,
-43,
31,
-4,
31,
10,
-78,
-21,
-2,
-40,
36,
-28,
13,
10,
16,
-21,
-22,
-10,
-2,
26,
-37,
-15,
-29,
29,
14,
8,
14,
-41,
13,
23,
11,
21,
-20,
48,
-59,
-28,
7,
-24,
23,
-10,
-21,
-23,
49,
-25,
9,
-8,
-1,
-34,
-11,
28,
-18,
-51,
43,
11,
43,
-12,
41,
44,
-3,
-23,
35,
-4,
36,
-18,
42,
36,
-22,
2,
23,
7,
26,
44,
-30,
16,
28,
-24,
-2,
-31,
37,
15,
-73,
-27,
-10,
30,
12,
29,
-35,
-49,
-30,
18,
69,
-39,
-10,
28,
22,
3,
-33,
-1,
-5,
22,
-2,
14,
43,
-3,
-13,
65,
-23,
14,
22,
4,
-9,
17,
-34,
40,
27,
25,
-13,
-39,
-42,
-25,
-12,
-25,
19,
-5,
9,
6,
13,
55,
2,
-29,
27,
-2,
10,
35,
-26,
-10,
-60,
17,
-7,
-10,
-13,
13,
40,
19,
-43,
8,
-31,
-16,
-5,
-29,
10,
0,
-93,
-7,
-30,
10,
-34,
0,
16,
-5,
-20,
-7,
-2,
-2,
11,
-26,
4,
32,
-2,
68,
-2,
-38,
-68,
-29,
-17,
-2,
7,
-36,
3,
56,
49,
-12,
49,
41,
-17,
4,
25,
29,
41,
-4,
6,
44,
46,
-14,
-22,
15,
-12,
55,
-44,
17,
24,
57,
-4,
-60,
52,
5,
49,
59,
0,
-2,
-6,
31,
-52,
22,
31,
-22,
-20,
46,
26,
2,
-35,
-18,
36,
-38,
-16,
-21,
33,
-21,
32,
-57,
10,
-7,
13,
46,
6,
17,
-1,
-18,
-26,
-19,
17,
39,
-14,
16,
45,
16,
42,
76,
23,
39,
10,
-43,
18,
9,
-7,
-22,
-1,
37,
-31,
-36,
-12,
16,
-54,
-9,
-5,
-20,
10,
-20,
-4,
-44,
6,
-2,
71,
44,
0,
-10,
3,
-1,
0,
-7,
-25,
8,
8,
27,
-45,
-37,
-75,
9,
0,
6,
42,
-35,
-34,
-34,
8,
0,
0,
68,
-9,
-15,
6,
-10,
6,
-16,
-53,
3,
14,
-35,
-31,
11,
0,
0,
-22,
-22,
-13,
58,
18,
-19,
53,
-1,
6,
15,
-36,
25,
27,
-7,
27,
-3,
46,
14,
1,
2,
79,
-35,
-41,
-4,
-108,
-55,
-13,
-38,
7,
13,
14,
4,
61,
-40,
20,
39,
47,
14,
-13,
-19,
-30,
1,
-1,
14,
20,
-5,
-1,
1,
-31,
-32,
31,
0,
46,
43,
55,
-17,
16,
-47,
0,
36,
-11,
7,
14,
-16,
-48,
-56,
-11,
18,
0,
47,
9,
2,
8,
-44,
-2,
-68,
23,
46,
-6,
-22,
-4,
-8,
27,
54,
-32,
45,
9,
5,
-3,
1,
-28,
-45,
51,
26,
30,
-24,
29,
-54,
-43,
31,
0,
44,
-25,
0,
-66,
-29,
-16,
-13,
38,
-28,
-10,
-22,
-35,
39,
76,
-37,
10,
-23,
2,
11,
10,
-18,
11,
17,
-20,
14,
-19,
0,
34,
-1,
-4,
2,
31,
44,
35,
-33,
13,
-13,
-11,
-13,
-19,
-44,
-20,
-77,
-5,
-12,
20,
-35,
-2,
1,
-8,
0,
-46,
-11,
-11,
6,
5,
-14,
-53,
29,
-9,
-25,
12,
16,
39,
-5,
-17,
34,
-49,
12,
7,
-12,
-11,
18,
43,
44,
3,
14,
-2,
-20,
2,
-52,
10,
-47,
47,
-25,
18,
-11,
30,
2,
-50,
3,
-18,
-29,
-23,
0,
11,
-1,
-33,
7,
-37,
17,
-54,
78,
-24,
43,
-2,
45,
-20,
-35,
-11,
14,
-26,
-2,
-7,
-33,
9,
57,
-5,
-83,
-34,
-26,
4,
-1,
-27,
47,
-3,
28,
29,
26,
-27,
17,
-21,
21
] |
Long, J.
This is an action of trespass. The lands in controversy are described in the declaration as—
“ Commencing at a point on the south bank of the Muskegon river, where the east line of River street, produced, intersects the river; thence westerly, along the bank of the said river, to the old channel of Brooks creek; thence southerly, along the easterly bank of said creek, to the right of way owned by the Chicago & West Michigan Railroad Company; thence easterly, on the north line of said railroad company’s right of way, and to the west line of block four; thence north, along the west line of block four, to a point which would intersect the south line Wood street, if produced; thence east on the south line of Wood street, produced, to the west line of River street; thence north-westerly, along the west line of River street, to the north line of Water street; thence east, on the north line of Water street, to the east line of River street; thence north-westerly along the east line of River street, produced, to the place of beginning.”
The cause was commenced in the Newaygo circuit court. Defendant appeared, and with his plea of the general issue gave notice that the title to the premises described in the declaration at the time of the acts complained of was vested in one James W. Converse, and that any acts that were done by the defendant were done as the agent of said Converse. The cause was tried before a jury, who returned a verdict in favor of the defendant.
The principal question on the trial was whether the land in controversy is a part of block B. The plaintiff, on the argument here, presents a plat which it is claimed shows that the western boundary of block B is at a line extended northerly from the line between lots 6 and 7 of block C; while the defendant presents a plat which it is claimed shows that block B is not thus bounded, but that it extends westward, and includes the lands in controversy. Reference to the two plats, which were used on the argument in this Court, does not settle the controversy. One is a copy of the plat of the village. This village plat was offered in evidence by the defendant on the trial, and excluded. It was offered, as defendant’s counsel claim, for the purpose of showing that no particular piece of land was platted as block B, but that block B was the designation of a parcel of land in the village of Newaygo whose boundaries and limits were as well known and as well defined as those of any block in the village plat, and that the parcel described in the declaration is a part of that block. It is conceded that the village plat was never properly authenticated, but the one offered in evidence was the only one made or recorded, as shown by the record in this case. The pro prietors were John A. Brooks, John A. Brooks, Jr., and Sarell Wood. By reference to this plat it is seen that block B has no definite boundaries, though there appears to be a line extended northerly from Pine or Biver street to the Muskegon river. If this line is to be taken as the westerly boundary of block B, then that block has a definite boundary, as it would extend from the range line on the east to this line extended; but nowhere upon the plat or in the proceedings is it shown that that line is extended as the westerly boundary of block B. Neither is it insisted by either of the parties to be so. Defendant claims that block B extends to Brooks creek on the west, and includes the land in controversjr. Plaintiffs counsel, on the other hand, contend that the westerly boundary of that block is as shown on a plat presented by them by an extended line between lots 6 and 7, block C, to the Muskegon river, and that all the lands lying westerly of that line and extending to Brooks creek never were platted. In other words, plaintiffs counsel contend that the lands upon the plat of the village of Newaygo between block A and Brooks creek are divided into three parcels; that the parcel between block A and the extended line between lots 6 and 7 of block C to the Muskegon river is properly block B; that the second parcel lies between the westerly boundary of block B and Pine or Biver street extended to the Muskegon river; and that westerly of that parcel is the third parcel, which includes all the lands between Pine or Biver street extended and Brooks creek, except what is shown on plaintiff’s exhibit as block 4. This third parcel, as plaintiff describes it, is the piece in controversy. It is conceded that what is called on the plats “Pine Street” is in many conve}mnces called “Biver Street.”
The plaintiff, to maintain her case, on the trial called David P. Clay as a witness, and he testified substantially that he knew the land in controversy, and at one time he claimed .to own it; that such claim of ownership commenced in the spring or summer of 1871, and that he cultivated and cropped it. Counsel then offered in evidence a deed bearing date May 20, 1887, and recorded September 20, 1887, from David P Clay to the plaintiff-. This deed describes certain lands in the village of Newaygo, and, among other descriptions, the land in controversy as ifS0' much of block B as lies west of Biver street,” as well as all of blocks 4 and 127, except certain parcels theretofore deeded. Plaintiff claims that she went into possession of this land the 1st of May, 1887, and continued in possession until April or May, 1889, and cut the grass for two years, but never lived upon the land. On May 21, 1889, she claims to have gone to the land, and found defendant, Smith, in possession. He rebuilt the fences, cut the grass, and cropped part of it. There are in all some 15 or 16 acres. It is undisputed that defendant went into possession in the spring of 1889, and is still in possession.
Defendant, on his part, not only claimed possession, but title to the premises. To prove his title he put in evidence a mortgage made by David P. Olay and wife to James W. Converse, dated December 15, 1877, and duly recorded two days afterwards, to secure the sum of $25,000. The land is described in the mortgage as “ block B, village of Newaygo.” The mortgage also covers other lands. It appears that this mortgage was foreclosed in the circuit court of the Hnited States for the western district of Michigan, the Us pendens being recorded in the register’s office of Newaygo county, May 30, 1887. The sale was made October 8, 1888, James W. Converse ”being the purchaser .at the sale. Defendant, Smith, claims to be in possession as the agent of Converse, and sets up title in Converse under his notice. The deed on this foreclosure sale was offered in evidence by defendant. contains the same description as found in the mortgage. The land described in the declaration, it is claimed by the defendant, is the same as that covered by the Clay mortgage, and the same as in the deed on foreclosure to Converse. The deed was objected to on the ground that the plaintiff was not made a party to the foreclosure proceedings, and was never served with process in that case, and at the time of the sale notice of that fact was given. It was also claimed by plaintiff's counsel that the land sold under the foreclosure is not the same description as the land in controversy. The lands are described in the deed from Mr. Clay to the plaintiff as “ so much of block B as Ties west of River street, in the village of Newaygo," while the mortgage from Clay and wife to James W. Converse describes the property as all of block B, village of Newaygo, and other lands,_ and the deed on foreclosure describes the property the same as in the mortgage.
To show how the lands had theretofore been described, and how Mr. Clay derived his title, the defendant offered in evidence a deed from Wilder D. Foster, assignee in bankruptcy of Alexander Blake, to Mr. Clay, dated June 28, 1871, describing the lands as—
“ That part of block B lying north of block 4 and west of said block and the Newaygo Company's land, and extending to Muskegon river; meaning all the meadow land extending from said block 4 and the line of River street north to Muskegon river and Brooks creek, * * * all in the village of Newaygo."
Several other deeds were also offered in evidence, tracing the title back through these mesne conveyances to John A. Brooks and Sarell Wood, showing title in them prior to the year 1857, and all of said deeds describing the lands in controversy as a part of block B of the village of Newaygo. The tax rolls were also offered in evidence for the various years from 1858 down to the time of the trial, showing that these lands were assessed for taxes during all that time as a part of block B, village of Newaygo* Witnesses were also called who had known these lands for many years, and who were familiar with the village plat, and testified that they had never known that any of these lands remained unplatted on the south side of the Muskegon river and westward to Brooks creek. The plat itself does not define the boundaries of block B, but all the conveyances above referred to recognize the land in controversy as a part of it, and the deed under which the plaintiff claims describes it as such.
Plaintiff's counsel offered in evidence certain deeds and mortgages executed prior to 1857, in which these lands are described by metes and bounds. Some evidence was offered by the plaintiff, and excluded by the court, which, it is claimed, would tend to show that Olay, at the time of giving the Converse mortgage, pointed out to Converse the boundaries of the land the mortgage would cover, and the boundaries of block B. It was claimed from this that the parties to the mortgage never understood that the mortgage covered the land described in the declaration.
The court directed the jury that the fact was established that the plaintiff was not made a party to the foreclosure proceedings, and hence whatever proceedings were taken to foreclose could not deprive her of her title; that both parties derived their title through Mr. Olay, and that the title to the property described in the declaration was in Mr. Olay at the time of the execution of the mortgage, December 15, 1877; and that the evidence beyond dispute showed that the deed of May 20, 1887, was made by Mr. Clay, who had the legal title, and was delivered to the plaintiff, and she went into possession under it. “But,” the court said, “the vital question is this: Do the premises ■described in the declaration include any portion of block B? and that is the question for you to determine from the .evidence.” The court further said: “There was a stipulation between the parties filed in this cause, to the effect tliat all the proceedings to foreclose the mortgage were regular, and no claim can be made now of any irregularity." The court further charged the jury as follows:
“David P. Clay was the owner of the premises in question and other lands included in the mortgage under date of December 15, 1877. That was prior to the conveyance made by him to plaintiff in this action. She was a subsequent purchaser of the premises, -and necessarily took them subject to the mortgage and the legal effect of the foreclosure proceedings, providing all the proceedings were regular, as stipulated by the respective parties to this mortgage; and the title obtained under and by virtue of the foreclosure proceedings would refer back to the execution of the mortgage, and give the purchaser such title to the premises covered by the mortgage as the mortgagor had at the time the mortgage was executed and delivered to the mortgagee. Now, the plaintiff, in order to make out her case under the declaration in this cause, introduces in evidence a deed, the date of which I have called your attention to, under date of May 20, 1887 (Mr. Clay at that time was the owner of the premises in question), to Mrs. Thompson, the plaintiff in this suit. Mrs. Thompson, the plaintiff in this suit, I will say to you, as I said before, went into possession of the premises under and by virtue of that deed; and there is no dispute in the testimony, and it is a conceded fact, that on or, about the 8th day of April, 1889, the defendant in this action took possession of the premises, and has continued in possession of the premises ever since, and claims to hold and occupy the premises on account of his having had a superior title to that of the plaintiff in this action; and his title would be superior to that of the plaintiff in this action provided you find from the evidence in this case, as , a matter of fact, that the premises mentioned in this declaration are included in block B, covered by the mortgage in question in this suit. So the question of fact for you to determine, and the vital question of fact in this case, is, do you find from the evidence, as a matter of fact, that the premises described in this declaration are the same as the premises described in the mortgage as block B ?"
The court further charged:
“ Then the first question for ycu to determine is, taking it as a conceded fact that at the time of the execution of tbe mortgage Mr. Clay was the owner of the premises-in question' (and that is your basis), ascertain, then, gentlemen of the jury, from the evidence in this case, whether this block B, as described in this mortgage, covers the premises which the plaintiff in this action claims to have been trespassed upon; and if you find that it does, that is a defense to this action, and this plaintiff is not entitled’ to your verdict. If, in considering that question, gentlemen, you find the issue in favor of the plaintiff, — you find that the premises described in the declaration in this suit are not within the premises described in the mortgage as block B, — then the plaintiff would be entitled to your verdict; and in determining that question of fact you will take-into consideration all the evidence in the case before 3rou.. Now, certain deeds have been introduced in evidence here on the part of the plaintiff, and also on the part of the defendant, dating as far back as November, 1853; certain-mortgages have been introduced, certain tax rolls have been introduced in evidence, and a certain map has been introduced in evidence here; and these records and this map are all circumstances competent for you, gentlemen, to consider in determining this question of fact to which I have called your-attention, either oneway or the other. In the-absence of direct proof as to where the boundary lines are, and'as to whether or not the land described in this declaration is included in the description of land- mortgaged, it-would be competent for you, and your duty, to take into consideration these deeds of conveyance. How did the-parties to the instruments understand it, — the grantors and grantees therein named? How did the parties who executed, and to whom the mortgages were executed, understand it?' What was their understanding of block B? What land was included? You may take into consideration, and it is your duty so to do,- also, the tax rolls which have been introduced in evidence. How did the parties — the assessor, the party who made the assessment, and the parties against whom the land was assessed — understand it? What was their understanding with reference to this matter, as to whether or not the lands described in the declaration were the same as the lands described in the mortgage as block B? Neither the tax rolls nor the deeds offered in evidence nor the mortgages are conclusive upon this question, but they are-all matters proper for you to consider; they are circumstances in the case proper to be considered.”
Beference need not be made to the several assignments- of error. It is evident from the whole record that the only question of fact in the case was submitted to the jury, and they have found that the lands in controversy are a part of block B.
It is contended that the court below was in error in excluding the testimony offered to show that Clay pointed out to Converse the boundary lines of the lands to be included in the mortgage, and that Converse was told that the lands in controversy were not to be included. This was properly excluded. The question under consideration on the trial was whether the lands in controversy were actually included in the Converse mortgage, and this question could be determined only by showing what were the boundaries of block B. The parol testimony of what the understanding was as to what was to be included could not aid this question, and could not be used for the purpose of contradicting or changing the description in the mortgage. The mortgage covered all of block B, and if this land was a part of block B it was included in the mortgage, whatever the understanding of the parties may have been about it; and parol evidence would not be admissible to change or vary the terms of the mortgage. The only question of fact arising in the case was whether the lands in controversy were a part of block B. The jury found that issue in favor of defendant.
It appears without contradiction that the plaintiff’s deed describes the land as a part of block B, and the Converse mortgage covers all of block B, and the deed on foreclosure describes it in the same way. The plaintiff, then, by this record, is put in the attitude of making claim to this land, and attempting to prove her title by showing that it is not a part of block B, while the deed under which she herself claims describes it as a part of block B, and all other conveyances dating back to 1857 so describe it, and it has been so assessed during all that time. Whatever title she had was derived from David P. Clay under this deed. She cannot now be heard to dispute the deed, and show in this action that, though the deed describes the land as a part of block B, it is not in fact part of that block. Payne v. Atterbury, Har. Ch. 414; May v. Tillman, 1 Mich. 363; White v. Smith, 37 Id. (Ann. ed.) 290, 296, and note; Shotwell v. Harrison, 33 Id. 410; Case v. Green, 53 Id. 615.
Plaintiff’s deed, however, was given prior to the filing of the Us pendens in the foreclosure proceedings, and there is some evidence that she went into possession of the property under the deed prior to that time. The court below assumed that, inasmuch as the stipulation between the parties to this cause recited that the foreclosure proceedings were regular, therefore whatever rights the plaintiff had in the premises under her deed were cut off and foreclosed by that proceeding. The plaintiff was not made a party to the foreclosure, and consequently it was a matter of no concern to her whether the foreclosure proceedings were regular or not. The right to possession was not foreclosed, and could not be cut off, by that proceeding, or the entry of the defendant claiming under the foreclosure of the Converse mortgage. 3 Jones, Mortg. §§ 1413, 1413. The court below was therefore in error in that part of the charge. Dnder these facts, the court should have directed the verdict in favor of the plaintiff.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
-13,
44,
9,
-33,
-48,
38,
56,
18,
20,
40,
-35,
5,
0,
-6,
34,
-2,
-70,
-24,
14,
11,
10,
-72,
-26,
-27,
-27,
15,
22,
25,
-37,
4,
15,
-16,
-28,
37,
3,
-8,
19,
-3,
-32,
-14,
7,
-15,
10,
-4,
24,
14,
10,
-36,
4,
-2,
10,
22,
-10,
20,
-66,
1,
-24,
-2,
30,
18,
-27,
3,
-16,
-29,
-9,
-42,
29,
-49,
40,
-25,
-9,
29,
27,
-36,
39,
37,
-19,
-15,
-42,
12,
-34,
-2,
-1,
4,
-65,
-16,
-45,
-4,
13,
0,
28,
-36,
-31,
25,
47,
24,
28,
-35,
-36,
30,
13,
57,
10,
-15,
-13,
-35,
-52,
-8,
11,
-40,
-5,
-4,
44,
-47,
-14,
6,
6,
-14,
46,
0,
6,
-34,
32,
30,
-53,
38,
-21,
-14,
-26,
-14,
14,
-10,
15,
18,
67,
0,
-40,
1,
44,
21,
26,
0,
-30,
-42,
-25,
-20,
-29,
46,
29,
-49,
-54,
52,
-3,
-28,
-31,
26,
39,
-25,
41,
15,
27,
-39,
0,
-37,
-98,
5,
-63,
26,
47,
35,
7,
-24,
20,
-39,
-23,
-8,
-19,
8,
-1,
39,
37,
31,
17,
0,
-15,
-64,
-31,
0,
-40,
4,
52,
-4,
-19,
-26,
22,
67,
-28,
28,
-49,
5,
34,
-28,
-42,
0,
-39,
3,
26,
-4,
-32,
7,
10,
27,
-47,
-11,
18,
-6,
66,
-5,
57,
-18,
74,
17,
13,
83,
-20,
-36,
18,
17,
-16,
-1,
33,
-59,
12,
-19,
-52,
4,
-41,
31,
-24,
22,
-12,
18,
-12,
-8,
5,
51,
4,
0,
33,
62,
-16,
-18,
-25,
-4,
18,
3,
14,
-1,
1,
-19,
43,
57,
-23,
34,
-46,
30,
0,
14,
-43,
-4,
-42,
8,
19,
40,
-50,
-10,
35,
-28,
-12,
33,
-3,
-46,
39,
37,
-28,
8,
-28,
0,
12,
27,
-22,
8,
-32,
-20,
0,
32,
-12,
-9,
24,
-23,
14,
-1,
10,
-34,
-6,
-11,
24,
56,
8,
19,
-6,
7,
-14,
14,
10,
31,
16,
23,
3,
-31,
-25,
7,
-4,
-22,
2,
61,
39,
6,
-29,
-10,
22,
9,
13,
46,
26,
7,
29,
-50,
14,
-5,
66,
-1,
15,
-3,
14,
-22,
-27,
-20,
41,
-25,
27,
-13,
-19,
17,
-31,
20,
-50,
-3,
-19,
8,
38,
54,
13,
-43,
21,
-61,
-51,
-33,
32,
39,
-59,
-9,
-18,
30,
-22,
-5,
12,
-22,
-83,
45,
29,
-12,
35,
17,
60,
16,
-17,
-16,
-8,
-10,
-44,
-42,
-12,
35,
-28,
23,
11,
17,
-34,
-46,
-2,
24,
23,
58,
-48,
36,
-5,
7,
42,
53,
13,
-38,
31,
-41,
10,
1,
-27,
5,
20,
5,
11,
41,
24,
-56,
0,
-21,
0,
33,
0,
4,
-20,
3,
16,
4,
34,
31,
-40,
-33,
-6,
0,
-46,
39,
-8,
-19,
-41,
-46,
-55,
6,
-14,
-41,
18,
37,
-65,
-27,
-28,
48,
-28,
-33,
79,
-2,
-6,
-20,
0,
-1,
-7,
6,
-23,
-43,
2,
54,
-31,
43,
-10,
-15,
-31,
-34,
19,
12,
-41,
2,
26,
-10,
-27,
-11,
-40,
-52,
11,
19,
7,
8,
32,
46,
15,
-14,
49,
-35,
-14,
-8,
58,
26,
18,
41,
-27,
-22,
-26,
66,
-16,
12,
13,
37,
28,
-24,
20,
-6,
-15,
53,
-12,
-37,
-35,
4,
12,
-31,
0,
-29,
3,
9,
11,
-7,
14,
19,
0,
-59,
8,
0,
-19,
6,
25,
18,
35,
-32,
11,
28,
57,
-3,
-60,
0,
-11,
-42,
18,
-11,
-45,
23,
6,
-34,
8,
3,
-32,
-83,
6,
-2,
-33,
-28,
14,
-55,
25,
2,
65,
-49,
27,
-42,
-65,
13,
4,
-41,
-46,
-1,
0,
-30,
9,
11,
-52,
-51,
-2,
-73,
20,
36,
1,
-1,
-39,
8,
-22,
13,
-54,
-41,
42,
12,
-19,
71,
76,
13,
30,
-47,
-48,
2,
11,
16,
-56,
-28,
13,
45,
17,
1,
1,
69,
14,
61,
-15,
12,
-13,
17,
11,
-12,
29,
-10,
-35,
-15,
-1,
21,
-68,
13,
-28,
5,
-13,
25,
0,
-35,
34,
36,
51,
-2,
-15,
-39,
-75,
-29,
-48,
-4,
-73,
46,
-21,
11,
-50,
34,
21,
-29,
12,
26,
-23,
42,
35,
9,
49,
-7,
16,
14,
-73,
-31,
8,
-14,
26,
30,
30,
-21,
-5,
62,
-19,
-30,
17,
68,
27,
10,
6,
16,
-13,
12,
63,
-52,
-18,
56,
11,
18,
3,
12,
23,
3,
51,
21,
-18,
-7,
5,
-20,
-5,
34,
20,
0,
-3,
-5,
13,
-26,
-18,
-29,
30,
-31,
16,
16,
10,
33,
0,
13,
13,
33,
10,
-18,
-53,
-25,
15,
-11,
-14,
-24,
-45,
17,
-34,
31,
9,
-13,
-19,
4,
21,
45,
-11,
-36,
-4,
-50,
-37,
25,
26,
-4,
22,
10,
-22,
0,
2,
-11,
0,
60,
31,
-4,
-34,
6,
-29,
-3,
30,
-41,
-40,
-12,
-51,
5,
9,
-25,
53,
38,
2,
-7,
-49,
-9,
-18,
12,
3,
12,
17,
-11,
-10,
-18,
-6,
-72,
-3,
3,
-18,
-26,
-10,
19,
-32,
-6,
-34,
42,
-28,
-6,
28,
-24,
4,
-26,
-17,
37,
-22,
33,
-42,
16,
-70,
39,
4,
14,
0,
-8,
-18,
-83,
0,
19,
-17,
34,
49,
-42,
-22,
55,
25,
2,
46,
29,
27,
-28,
31,
-27,
54,
7,
-11,
35,
50,
-31,
39,
6,
-24,
-4,
29,
-11,
-39,
-20,
-44,
-5,
6,
-8,
30,
-60,
-63,
53,
-8,
3,
-9,
14,
16,
36,
29,
49,
38,
10,
-30,
-34,
2,
-19,
-32,
-74,
18,
30,
-27,
-12,
-48,
-16,
32,
5,
-56,
-26,
-13,
24,
7,
-23,
28,
-23,
-35,
-9,
42,
8,
30,
44,
43,
2,
-1,
2,
-41,
10,
-56,
-11,
-36,
17,
1,
1,
32,
15,
-24,
-56,
-4,
26,
41,
26,
-3,
-53,
-28,
-45,
-13,
-3,
-39,
19,
-34,
28,
20,
6,
-1,
10,
-66,
34,
-3,
59,
-31,
20,
-39,
1,
-22,
-40,
20,
19,
57,
-32,
0,
-3,
20,
-17,
13,
29,
-2,
-1,
-19,
1,
20,
-2,
-22,
9,
5,
17,
-43,
-9,
6,
-24,
-15,
-62,
82,
21,
50,
11,
-21,
2,
19,
27,
47,
19,
-83,
-34,
26,
5,
6,
5,
7,
9,
-9,
-24,
69,
-14,
-26,
43,
-16,
5,
3,
-16,
3,
-21,
-30,
32,
28,
-35,
19,
0,
-19,
-2,
-40,
-53,
34,
17,
18,
8,
26,
-49,
21,
-7,
48,
1,
-32,
49,
123,
87,
30,
41,
-18,
12,
7,
-13,
2,
-28,
-49,
27
] |
Dong, J.
Relator asks the writ of mandamus to compel the respondent to rescind a motion adopted by it May 3, 1893, declaring one James R. Champ entitled to the seat . on said board held by • relator, and to compel the respondent to admit him as a member of the board.
In the petition it is claimed that relator was duly elected a member of the board at a charter election held in the city of Escanaba in April, 1892, for the term of two years; that he duly qualified and acted as a member of the board until prevented by the action of the board, seating Mr. Champ in his place. Relator further sets up in his petition that he contemplated resigning his office, and handed his written resignation to the president of the board, but before it was acted upon he withdrew it, and it was returned to him. He further shows that the charter of the city of Escanaba provides that all resignations from office sh^ll be made to the city council, subject to its approval and acceptance, and that he never offered any resignation to that body; that the city clerk, without authority, acting upon information and belief, caused notice to be published before the election, in April, 1893,-that there would be an election to fill a vacancy, and the election was held for that reason; that he has performed the duties of the office since his election, in April, 1892, and was present at the meeting of the board on May 3, 1893, ready to take part in its proceedings, but was prevented by the board adopting the resolution unseating him,, and seating Mr. Champ.
It is admitted by the answer that the charter of the city provides that one school inspector from each ward shall be elected annually for the term of two years, and to hold their offices until their successors are elected and qualified,, and that such inspectors shall constitute the board of education. Act No. 241, Local Acts of 1891. It is also admitted that .under the provisions of the charter the resignations of officers shall be made to the common council, which consists of the mayor and aldermen, subject to its approval and acceptance. It is also admitted that relator was duly elected a member of the board in 1892, and acted as such until a meeting of the board held in March, 1893. It is alleged in the answer that in March,. 1893, ■ and prior to the holding of caucuses for the nomination of city and ward officers, the relator placed in thé hands of the president of the board of education his written resignation from the board, and became a candidate for alderman of his ward, was nominated by his party, and accepted such nomination, had his name printed upon the ballot as such candidate, and was voted for as such aider-man in April, 1893, but was defeated for that office; that-relator participated in the caucus, and that in said caucus one Magnus Matson was nominated -for school inspector to fill the vacancy caused by relator’s resignation; that prior to the holding of said caucuses the president of the board gave notice to the city clerk that an election would be held .to fill such vacancy, and the clerk, acting upon such information, gave notice of such election; that Mr. Champ was also nominated in a caucus held for the nomination of city and ward officers, and was duly elected; that these votes for candidates for city and ward offices were canvassed by the common council of the city, and Mr. Champ declared elected to the office of school inspector, and he was admitted as a member of the board of education.
It is conceded that under section 18, chap. 4, of the charter of Escanaba, vacancies occurring in the board of education are to be filled by the board itself. It is therefore contended by the relator—
1. That the election by the electors of the city was void, for the reason that the board alone had the right and power to fill the vacancj", if there was a vacancy.
2. That the relator never tendered his resignation to the body authorized to act upon or accept it, and therefore no vacancy had occurred, to be filled even by the board itself.
The question, however, is presented, whether the relator is now in a position to raise these questions. He did tender his resignation to the president of the board, and it is apparent that he knew that his successor was nominated and presented to the electors as a candidate for the place. He took part in the caucus, and was himself a candidate for another office before the caucus, receiving a nomination at its hands. He knew the election was to be held to fill the vacancy, and acquiesced in that. The votes cast for the office were returned to the common council, canvassed by it, and the result declared, — that Mr. Champ was duly elected. The board of education, acting upon that declaration, admitted Mr. Champ as a member. The relator then, for the first time after the tender of his resignation, set up a claim that his resignation was to the wrong body, and that the election of Mr. Ohamp was void. This must be presumed to be the first knowledge the board had of the relator’s claim, from the fact that it is nowhere shown when he withdrew his resignation, or that the board had any knowledge of his claim till then.
It is true that by the provisions of the charter his resignation should have been tendered to the common council, but the clerk of the city had been advised that there was to be a vacancy, and, acting in good faith, published the notice of election. The vote was taken, and the council acted upon it, declaring Mr. Champ elected. This was equivalent to an acceptance of the relator’s resignation, under the circumstances, by the council. The vacancy, by this act, was then declared, even if the relator were in a position to set up the claim of want of vacancy; and, though the election by the people may'not be considered as giving Mr. Champ a right on the board, yet the action of the board after the vacancy thus occurred legally seated Mr. Champ, as the board, in case of a vacancy, had a right to fill it.
We think the circumstances are such, even if this were not the legal effect of the action of the common council and the board of education, that the relator is not in a position to set up a claim to a seat on the board. It was his own action that brought about this state of affairs, and there is no showing" that the board has not acted in the utmost good faith.
The writ should also be refused on another ground. Mr. Ohamp took his seat on the board after his election, and has been exercising the duties of the office since. He is not made a party to these proceedings, and the effect of the order asked would be to oust him from the office. Mandamus is not the proper proceeding to oust him. People v. Common Council, 18 Micb. 338; School-Dist. v. Root, 61 Id. 373; Frey v. Michie, 68 Id. 323; Hallgren v. Campbell, 82 Id. 255.
The writ must be denied.
The other Justices concurred. | [
73,
-68,
17,
38,
20,
35,
29,
4,
-20,
41,
-16,
-55,
-4,
18,
-3,
14,
58,
5,
-15,
-29,
19,
-23,
-29,
-21,
-5,
-25,
7,
-18,
-32,
-34,
-23,
-47,
-10,
-19,
35,
-17,
2,
-40,
69,
21,
4,
13,
14,
-1,
-23,
-10,
10,
5,
-2,
-34,
-13,
25,
-40,
109,
18,
57,
12,
-3,
19,
-25,
-23,
17,
-27,
-5,
2,
-16,
-18,
32,
35,
6,
19,
-51,
49,
-30,
-3,
47,
11,
-52,
1,
70,
-59,
27,
-15,
-54,
-31,
2,
2,
-6,
37,
6,
1,
-6,
-30,
38,
25,
-33,
-23,
-40,
27,
-22,
22,
-11,
10,
6,
17,
-64,
22,
27,
75,
-36,
-18,
47,
57,
15,
-5,
-11,
-30,
8,
80,
-20,
-4,
-43,
10,
-13,
20,
23,
-20,
18,
-16,
10,
-22,
17,
44,
-29,
31,
6,
11,
9,
35,
28,
15,
68,
32,
-26,
-37,
-13,
-38,
37,
38,
-14,
0,
1,
67,
-3,
-10,
-12,
11,
-17,
67,
6,
23,
27,
-26,
-21,
-46,
-9,
-21,
-23,
-13,
19,
1,
41,
2,
0,
0,
8,
-23,
53,
-18,
21,
13,
33,
7,
-28,
10,
-27,
31,
-54,
43,
9,
14,
-44,
-4,
-49,
11,
4,
-43,
18,
-21,
7,
-33,
30,
-48,
25,
-27,
-67,
8,
-27,
-8,
59,
7,
-35,
-29,
-12,
18,
-19,
11,
8,
19,
31,
-4,
11,
32,
51,
-18,
13,
-13,
63,
-13,
3,
53,
-69,
-5,
-23,
32,
6,
20,
98,
17,
-50,
-42,
23,
40,
42,
11,
-57,
12,
-9,
5,
12,
-10,
0,
21,
-35,
-34,
43,
-31,
27,
-25,
-28,
35,
-51,
41,
-9,
-43,
-47,
-10,
21,
26,
-12,
5,
43,
42,
-25,
-13,
34,
-31,
-30,
-7,
-2,
0,
-51,
-26,
40,
-34,
39,
12,
-13,
-59,
-14,
4,
5,
13,
31,
-3,
13,
-19,
16,
60,
0,
-64,
19,
-13,
-20,
5,
15,
-32,
-39,
37,
3,
61,
-66,
-9,
59,
-15,
-43,
8,
70,
-12,
20,
-28,
26,
-23,
-28,
-77,
-6,
39,
67,
-13,
-29,
-2,
-60,
-52,
29,
17,
59,
18,
13,
10,
-47,
27,
0,
-9,
23,
-1,
8,
-27,
-20,
-3,
-9,
-44,
-47,
0,
18,
-26,
8,
-33,
-14,
18,
26,
10,
-11,
-48,
-35,
39,
-25,
-28,
-3,
-8,
6,
-3,
11,
28,
6,
51,
-48,
-4,
2,
-21,
33,
-19,
8,
30,
-36,
67,
-76,
0,
16,
-23,
-53,
-22,
36,
-57,
-40,
-21,
24,
16,
35,
-25,
10,
7,
8,
20,
54,
-10,
0,
-42,
-26,
32,
39,
58,
51,
23,
-6,
84,
-6,
-24,
-11,
61,
-6,
-27,
-4,
0,
-38,
25,
25,
3,
-21,
41,
-1,
-24,
-39,
61,
33,
-12,
-29,
-38,
-35,
-2,
-35,
13,
-18,
-6,
-6,
-11,
-25,
-17,
6,
-18,
24,
21,
44,
-24,
-2,
-15,
44,
-42,
35,
65,
-72,
-5,
-25,
11,
30,
-9,
14,
19,
67,
-11,
29,
-21,
2,
-60,
13,
-42,
-46,
14,
-23,
16,
-34,
-11,
29,
-33,
37,
-16,
14,
9,
-48,
-9,
1,
-2,
22,
11,
39,
9,
17,
12,
-4,
-9,
62,
30,
20,
-39,
-18,
30,
-6,
-48,
-21,
16,
-16,
-22,
-17,
-17,
43,
26,
38,
-28,
-24,
-17,
-5,
-9,
36,
-16,
-58,
31,
32,
10,
19,
-20,
29,
-9,
-35,
-7,
1,
9,
45,
-5,
45,
-9,
-5,
32,
-13,
28,
22,
-36,
24,
-35,
30,
7,
17,
-4,
29,
-71,
-27,
-26,
-19,
5,
-5,
-58,
36,
9,
3,
28,
-36,
-32,
19,
-26,
-32,
-12,
55,
55,
-8,
22,
0,
-10,
-10,
-10,
-11,
19,
31,
31,
7,
-21,
-4,
51,
-72,
6,
-36,
-8,
-21,
-62,
3,
-66,
-6,
-63,
38,
-8,
41,
10,
-34,
-3,
40,
8,
-11,
-4,
18,
-19,
-15,
62,
-42,
-23,
-22,
-28,
63,
-63,
63,
11,
21,
36,
3,
-30,
21,
27,
-51,
-46,
-79,
27,
-76,
17,
18,
-21,
1,
-12,
-3,
7,
-87,
-58,
12,
21,
10,
-14,
-3,
-18,
-39,
1,
8,
-11,
48,
-20,
29,
-21,
18,
45,
0,
-7,
-58,
37,
44,
-6,
4,
17,
6,
-14,
0,
-11,
12,
16,
30,
23,
-18,
33,
-18,
31,
-54,
13,
16,
-21,
11,
6,
68,
-30,
40,
-36,
-4,
57,
-13,
1,
35,
-40,
-1,
-7,
7,
35,
33,
54,
10,
8,
-10,
17,
-7,
-33,
-41,
53,
24,
-52,
-50,
1,
-9,
-2,
-20,
8,
-40,
-26,
31,
-15,
-9,
10,
-24,
6,
1,
-12,
11,
-49,
22,
29,
38,
1,
-63,
11,
-38,
20,
-21,
57,
-104,
15,
-11,
35,
22,
22,
33,
-26,
-22,
-45,
-9,
-14,
24,
-18,
-4,
-71,
8,
3,
-49,
-31,
30,
21,
9,
-35,
16,
12,
41,
13,
-34,
-22,
-3,
-38,
18,
-14,
7,
30,
-28,
40,
8,
-3,
-25,
22,
-13,
-41,
0,
20,
3,
6,
-13,
-69,
3,
-29,
-45,
6,
11,
-33,
-14,
26,
-26,
42,
-47,
-8,
-8,
1,
-36,
34,
14,
-41,
-6,
8,
5,
-15,
15,
6,
24,
-21,
27,
-37,
40,
-39,
13,
-4,
-36,
-8,
-2,
-36,
0,
-10,
-41,
13,
-11,
-27,
0,
32,
53,
-31,
42,
23,
-6,
14,
17,
-7,
-95,
-30,
-11,
47,
10,
35,
-28,
-15,
-53,
-66,
-41,
-5,
18,
-14,
-13,
-2,
46,
-70,
21,
-22,
-47,
35,
-19,
27,
-22,
12,
58,
11,
-15,
-12,
3,
-16,
-16,
23,
42,
25,
-62,
11,
42,
-8,
17,
27,
-27,
-20,
-52,
-18,
21,
35,
-46,
3,
49,
9,
-15,
35,
65,
-6,
32,
0,
44,
-3,
-10,
-13,
-42,
-111,
30,
-14,
-5,
18,
-19,
-25,
-49,
-14,
6,
23,
17,
31,
24,
-54,
16,
-52,
-75,
-54,
9,
-5,
20,
13,
59,
-15,
13,
-7,
-37,
12,
31,
6,
36,
46,
-16,
0,
-37,
13,
-1,
25,
29,
31,
-26,
-2,
-19,
0,
-33,
3,
17,
5,
-16,
-21,
11,
-32,
-7,
35,
47,
-19,
48,
14,
32,
-60,
7,
24,
-17,
0,
78,
-9,
16,
-60,
-18,
33,
19,
21,
25,
-17,
48,
-19,
-4,
-27,
-51,
-5,
9,
43,
1,
19,
13,
-43,
27,
5,
-22,
-14,
-20,
41,
28,
7,
-60,
-11,
-4,
-29,
17,
59,
-20,
47,
5,
-31,
23,
-12,
-4,
-16,
2,
-1,
13,
3,
-32,
35,
-6,
17,
3,
53,
1,
31,
-23,
3,
-43,
-67,
-28
] |
Grant, J.
The charter of the city of Grand Eapids confers upon the common council the power—
“ To enact * * * such ordinances, by-laws, and regulations as they deem desirable * * * to restrain, license, and regulate' saloons, apd to regulate and prescribe the location thereof."
It further provides that—
“No person shall engage in or exercise the business or occupation of * * * saloon keeper, within the limits of said city, until he is first licensed as such by the common council, under such penalty as the common council may by ordinance prescribe."
In conformity with its charter the common council enacted an ordinance, the first section of which reads as follows:
“No person shall engage in the business of saloon keeping, in any house or jfiace within the limits of this city, without first having obtained a license for that purpose from the common council.”
Section 2 of the ordinance reads as follows:
“ Every person desiring to keep a saloon in the city shall, before a license is obtained for that purpose, make an application in writing to the common council for such license, stating the number or location of the saloon where the business for which the license is asked is to be carried on, which application must be accompanied with a recommendation, signed by at least twelve reputable and respectable citizens of this city, certifying that the applicant is well known to them, and is of means, and qualified to keep a saloon, and is of good reputation, fame, moral character, and an orderly person. Such applicant shall also, before receiving his or her license, pay into the city treasury such sum for said license as the common council shall annually fix for that purpose, and take the treasurer’s receipt therefor, and also-a fee of fifty cents for issuing such license. Such applicant shall also, before receiving said license, execute a bond to the city of Grand Eapids, in such sum and with such sureties as shall be approved by the common council, conditioned that such applicant shall keep and maintain an orderly and well-regulated saloon during- the continuance of his or her license, and shall pay all fines imposed and costs therewith assessed upon him or her, according to law, for a violation of any provision of this ordinance. Said license, when issued, shall state the number or location of the saloon, as designated in the application, and shall not be transferred to any other part of the city without the consent of the common council; and no license issued as aforesaid shall extend beyond the first Monday in May next after the issue of the same.”
The relator presented his petition to the council under this ordinance, and the council, by a majority vote, granted the license. The mayor, under the power conferred on him, vetoed this action of the council, and no further action thereon has been taken. The relator now asks this Court to compel the respondents to issue the license. The reason given by the mayor for his veto is that the place specified in the petition is unsuitable for a saloon. He presented this reason at length in his message, from which it appears that he has acted in entire good faith, and not from mere caprice, or arbitrarily.
It is contended that the power conferred upon the common council should be exercised by a general ordinance fixing districts or limits within which saloons may be kept, and that the council does not possess the power to hear and determine each individual case.
The principle upon which is based the regulation of the liquor traffic is found in the police power of the State. No one possesses a natural, inalienable, or constitutional right to keep a saloon for the sale of intoxicating liquors. “ To sell intoxicating liquor at retail is not a natural right to pursue an ordinary calling.” Black, Intox. Liq. §§ 46, 48. By the Constitution of 1850 such sales were absolutely prohibited. By the amendment of 1876 the prohibitory clause was removed from the Constitution, and the power vested in the Legislature to deal with the traffic as it deemed expedient and wise. In some counties of the State the traffic is now prohibited, while in the others it is regulated by the general law of 1887, and by the charters of municipal corporations. The Legislature may now determine who may carry on the business, and the time when, and the place where, it may be carried on. It is manifest that the welfare of society requires that this business should be in the hands of reputable, law-abiding persons. It is notorious that the low, the vicious, and the criminal are often engaged in it.^ The people, under our Constitution, have the right to prohibit such persons from engaging in it. The restrictions and conditions upon it are entirely within the discretion of the people, through the Legislature.
“ It is not for the courts to determine its expediency, or, as said by Mr. Cooley in his work on Constitutional Limitations, ‘to run a race of right, reason, and expediency with the legislative branch of the state government.’ ” Robison v. Haug, 71 Mich. 42; Cooley, Const. Lim. 597.
“If the governing power can prohibit a thing altogether, it can impose such conditions upon its existence as it pleases.” Ex parte Christensen, 85 Cal. 208; Crowley v. Christensen, 137 U. S. 86 (11 Sup. Ct. Rep. 13).
The system, in this State, is not purely a tax system. The fee to be paid as a condition precedent to entering upon the business is called a “tax,” but there are other ■conditions precedent which are inconsistent with a purely tax system. These provisions partake of the character of a license. It is said by Black:
“ Any law which requires certain acts, other than the mere payment of the tax, to be done by the party, as a prerequisite to his right to 'enter upon the pursuit of the trade in question, and makes it a penal' offense to engage in the business without such formalities, is in reality, a license law, no matter whether it be called a ‘tax/ or by any other name.” Black, Intox. Liq. § 108.
In Ohio a law nearly parallel in its provisions with the act of 1887 was held to be a license and not a tax law, and therefore void under the constitution of Ohio. State v. Hipp, 38 Ohio St. 199; Butzman v. Whitbeck, 42 Id. 223. Mr. Justice Campbell, in commenting on the law of 1887, calls this provision “the tax or license for doing business.” Robison v. Miner, 68 Mich. 552.
Under this comprehensive police power of the State it is, in my judgment, too clear for argument that the Legislature may confer upon municipalities the right to determine the places where saloons may be kept, and to determine that question upon each application. The Legislature may also enact that only reputable persons shall be allowed in the business, and may authorize the municipalities to determine the question of fitness. If the State possesses this right, the power to determine these questions must, in the first instance, be lodged in the municipality, or some board representing it, or in some other body or court. There is no presumption that the persons charged with this duty will not perform it, or that they will abuse the discretion given them. Other considerations than the mere locality must often enter into the determination of the suitableness of the place for a saloon. If the building be so arranged as to render violations of the law easy, or if it is to be kept in connection with a house of prostitution, or if it be not situated' upon a street or alley, or if it be in one of the upper stories of a building, or in a part of the city occupied for residence only, or near a school, these would certainly afford good reasons for rejecting the application. Mr. Cooley says:
“The state has also a right to determine what employ ments shall be permitted, and to forbid those which are deemed prejudicial to the public good. * * * The. general rule, undoubtedly, is that any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This general right cannot be taken away. It is not competent, therefore, to forbid any person, or class of persons, whether citizens or resident aliens, offering their services in lawful business, or to subject others- to penalties for employing them. But here, as elseAvhere, it is proper to recognize-distinctions that exist in the nature of things, and under some circumstances to inhibit employments to some one class, while leaving them open to others. Some employments, for example, may be admissible for males, and improper for females; and regulations recognizing the-impropriety, and forbidding Avomen engaging in them,, would be open to no reasonable objection. The same is true-of young children, whose employment in mines and manufactories is commonly, and ought always to be,' regulated. And some employments, in which integrity is of vital importance, it may be proper to treat as privileges merely, and to refuse the license to follow them to any who are not reputable.” Cooley, Const. Lim. (6th ed.) 742.
In the unreported case of Van Dann v. Uhl, Mayor of the City of Grand Rapids, decided October 29, 1891 (no opinion being filed), the precise question in the present, case was involved, and the Avrit was denied.
It is said in Black on Intoxicating Liquors (section 170) r
“ The rule obtains in a few of the states that if a person Avho desires a liquor license brings himself within the terms of the law, by complying Avith all the statutory preliminaries, and possessing the requisite moral and other qualifications, he is entitled, as a matter of law, to be licensed, and the license cannot be withheld from him. But in far the greater number of states the doctrine is now well settled that the court or board charged with the duty of issuing licenses is invested with a sound judicial discretion, to be exercised in vieAV of all the facts and circumstances of each, particular case, as to granting or refusing the license applied for.” See, also, the authorities there cited: In re Hoover, 30 Fed. Rep. 51; Sparrow’s Petition, 138 Penn. St. 116; U. S. v. Ronan, 33 Fed. Rep. 117; Perkins v. Ledbetter, 68 Miss. 327; Batters v. Dunning, 49 Conn. 479; Ailstock v. Page, 77 Va. 386.
In this case the common council enacted an ordinance requiring application to keep a saloon to be made to it, and prescribing the conditions precedent to its consideration by the council. This places no limitation upon its discretion, but only prescribes a mode of procedure. I think the ordinance is clearly authorized by the charter, and that its plain intent is to confer upon the council the power to determine each individual application, so far as the location and suitableness of the place are concerned. The veto of the mayor was based entirely upon the unsuitableness of the place. Kelator has been treated in the same way, and for the same reason, as was another who applied for a license in this same building. The place was in the rear part of the building, fronting upon Monroe street. A thin board partition separates the room where the saloon is to be kept from the front room. Application was made to keep a saloon in this building, designating it as “No. 48 Monroe Street,” but was unanimously rejected by the council. The return alleges that this application is made in the interest of the former applicant. The mayor and the council are more familiar with the place and its surroundings, with its interior arrangements, with the purposes for which the entire building is to be used, and with all the circumstances of the case, than we can possibly be. ■When the mayor and council have in good faith exercised the discretion .conferred upon them by the law, courts cannot review it. There is nothing in this case showing any abuse of discretion, or the arbitrary exercise of power. The action of the mayor, therefore, can only be reviewed by the common council.
The question in People v. Furman, 85 Mich. 110, was whether the general liquor law of 1887 repealed all prior acts of the Legislature inconsistent therewith, general as well as local. Tbe power of tbe Legislature to confer, by subsequent legislation, upon municipal corporations, tbe right to deal with the liquor traffic in a manner not provided for in the general law, is too clear to require argument. This right was conferred upon the city by- a subsequent act.
Writ denied.
Hooker, C. J., and Montgomery, J., concurred with Grant, J. | [
60,
7,
27,
12,
0,
30,
-3,
53,
-25,
41,
0,
2,
-4,
-34,
67,
54,
-28,
7,
-75,
-17,
-15,
-26,
-2,
-29,
-24,
20,
17,
61,
-86,
16,
9,
4,
-15,
66,
9,
56,
-11,
12,
58,
18,
-29,
60,
-11,
9,
13,
13,
-2,
-58,
11,
-28,
-58,
8,
41,
9,
-34,
29,
-22,
-10,
-7,
49,
-8,
8,
-20,
20,
-19,
-10,
-22,
35,
43,
-47,
48,
3,
-25,
17,
54,
-19,
66,
-29,
1,
25,
-47,
6,
3,
11,
-22,
26,
0,
-4,
2,
-79,
-3,
-22,
-4,
48,
0,
-13,
2,
-3,
6,
-6,
-6,
-33,
-6,
11,
1,
-36,
24,
23,
18,
-68,
-8,
-70,
76,
-60,
43,
-9,
1,
56,
-34,
22,
15,
13,
42,
-69,
-27,
-37,
-24,
-8,
-66,
-16,
-2,
-40,
-11,
-45,
8,
40,
-37,
82,
7,
5,
36,
59,
36,
6,
1,
-64,
-35,
50,
-14,
44,
-9,
30,
58,
-3,
-46,
12,
-42,
30,
41,
-3,
-61,
-3,
11,
-37,
0,
-46,
23,
-35,
-2,
44,
4,
33,
6,
32,
42,
-47,
-1,
10,
-36,
-12,
-1,
17,
-58,
41,
87,
-20,
-8,
-29,
-13,
-18,
-24,
-8,
-16,
-29,
0,
15,
-10,
34,
-27,
-26,
-16,
26,
-57,
13,
43,
-1,
-30,
26,
-53,
15,
-23,
-12,
-59,
0,
58,
26,
-53,
-9,
60,
-21,
-17,
-16,
13,
40,
-32,
-23,
-10,
11,
-63,
-24,
15,
3,
24,
5,
31,
5,
31,
-9,
-22,
55,
-16,
55,
-20,
-9,
-30,
-33,
5,
-10,
39,
-2,
-5,
-9,
-23,
75,
-44,
32,
73,
11,
36,
36,
5,
-44,
48,
-41,
-12,
10,
-28,
17,
-20,
24,
40,
31,
-6,
12,
1,
16,
-2,
-32,
-22,
28,
12,
-53,
-56,
34,
44,
0,
-43,
8,
12,
-40,
40,
46,
-37,
55,
12,
-22,
15,
103,
33,
-22,
24,
34,
22,
75,
32,
-38,
-22,
-18,
-35,
-56,
-60,
-38,
-80,
51,
29,
-38,
39,
9,
-20,
3,
57,
-41,
-5,
11,
-29,
-21,
56,
29,
16,
29,
45,
-70,
-35,
-30,
-28,
35,
26,
-18,
-12,
-15,
-7,
-76,
41,
-3,
-7,
7,
-42,
5,
13,
-89,
-75,
25,
26,
46,
26,
-6,
17,
17,
-18,
-17,
25,
-12,
9,
30,
84,
-25,
-28,
58,
68,
0,
-1,
-6,
-26,
0,
26,
-27,
10,
12,
-50,
-11,
32,
-42,
24,
-7,
5,
-11,
-12,
-69,
-97,
-47,
5,
1,
-72,
-28,
3,
0,
-50,
2,
3,
-87,
-61,
42,
-20,
-24,
-4,
10,
-10,
35,
62,
10,
-24,
2,
10,
-30,
18,
62,
-25,
-19,
-36,
1,
-52,
26,
-56,
36,
-14,
-52,
-26,
35,
17,
44,
-29,
-19,
30,
28,
0,
-127,
8,
-21,
2,
-25,
-27,
-57,
18,
27,
3,
-50,
-27,
14,
-16,
-72,
44,
76,
-40,
45,
-17,
27,
27,
59,
-11,
5,
26,
39,
-27,
-4,
-11,
7,
-57,
-2,
0,
-4,
-35,
5,
9,
-68,
-60,
-80,
42,
16,
-4,
7,
55,
73,
39,
21,
-20,
-73,
29,
-16,
-17,
2,
49,
-32,
5,
-18,
28,
-26,
12,
56,
-9,
25,
19,
9,
-29,
30,
-32,
50,
-18,
49,
34,
54,
-36,
2,
0,
-2,
34,
30,
-27,
-66,
-28,
-62,
3,
-21,
-37,
6,
12,
48,
25,
54,
35,
10,
-28,
17,
-38,
-1,
8,
-13,
42,
82,
-27,
-4,
60,
-35,
-12,
-3,
16,
32,
0,
-23,
40,
13,
-63,
65,
21,
-58,
-22,
14,
-78,
15,
-28,
52,
-34,
48,
-11,
-64,
-2,
21,
10,
17,
-18,
14,
-5,
1,
4,
13,
-57,
-52,
-20,
-49,
-3,
65,
38,
-10,
30,
28,
25,
47,
-47,
7,
-16,
-3,
-46,
70,
-28,
62,
-21,
13,
58,
54,
-22,
12,
-35,
24,
22,
16,
-14,
-16,
-10,
15,
20,
-4,
4,
0,
15,
29,
16,
16,
46,
-64,
26,
-1,
9,
-29,
-23,
-16,
27,
-7,
37,
10,
60,
48,
-99,
24,
15,
8,
-18,
18,
10,
27,
24,
28,
-33,
-20,
-30,
-26,
39,
95,
-40,
60,
5,
34,
-58,
5,
-25,
-2,
44,
-3,
-71,
-23,
48,
2,
12,
-8,
-24,
87,
44,
-5,
-8,
20,
21,
50,
0,
-21,
24,
10,
12,
13,
-5,
39,
-49,
-4,
-28,
0,
2,
-51,
13,
19,
-33,
-14,
36,
15,
15,
-1,
14,
-36,
-23,
32,
-52,
46,
-3,
20,
32,
-23,
-38,
18,
-45,
-17,
-16,
-57,
-20,
-13,
5,
2,
47,
4,
32,
-96,
-1,
48,
30,
8,
-29,
-23,
-23,
20,
6,
69,
-75,
15,
-28,
27,
-30,
-17,
-53,
-94,
24,
-3,
-26,
18,
5,
-49,
-42,
7,
11,
33,
-29,
4,
-43,
-5,
-52,
2,
-38,
19,
-98,
-28,
23,
-11,
-9,
36,
-2,
-14,
-23,
0,
6,
51,
-42,
30,
-16,
60,
7,
-27,
11,
55,
-3,
-17,
-1,
-24,
-57,
-83,
9,
42,
17,
-84,
36,
-6,
24,
-14,
-8,
7,
18,
-16,
7,
3,
29,
25,
-40,
0,
0,
-28,
-6,
-32,
-45,
0,
-62,
-32,
7,
-21,
-7,
43,
-85,
-86,
-32,
-48,
5,
-2,
-31,
-49,
60,
-10,
-23,
0,
-17,
0,
22,
-4,
7,
-27,
-1,
-12,
-57,
-20,
28,
50,
60,
-54,
16,
-86,
-39,
-38,
31,
-35,
-11,
18,
42,
66,
-35,
-84,
-40,
-11,
-29,
38,
-28,
66,
34,
-49,
-4,
-4,
58,
-31,
-17,
18,
6,
-32,
60,
-16,
-55,
-30,
0,
-8,
-9,
-9,
-20,
-5,
30,
30,
-16,
68,
11,
15,
-24,
-48,
-6,
23,
-33,
-23,
3,
21,
-2,
31,
53,
22,
35,
-21,
-15,
61,
19,
11,
6,
-23,
13,
-37,
-38,
3,
-17,
15,
-12,
-71,
4,
-1,
58,
-20,
-11,
54,
-29,
5,
16,
-50,
-21,
6,
11,
19,
50,
-22,
-8,
61,
-44,
43,
-19,
22,
24,
45,
-40,
-16,
43,
23,
-102,
3,
23,
86,
10,
-38,
-33,
22,
2,
26,
-35,
-2,
21,
8,
-3,
-43,
-19,
16,
25,
-4,
-1,
23,
-37,
79,
-3,
51,
12,
32,
62,
9,
-18,
10,
16,
-20,
-10,
39,
-17,
6,
23,
127,
0,
-9,
-28,
-8,
70,
-1,
16,
26,
69,
22,
-59,
7,
-13,
-13,
42,
35,
-17,
-40,
-78,
9,
-24,
-63,
-48,
21,
-39,
11,
67,
21,
-111,
5,
6,
-18,
34,
-54,
-23,
-39,
-87,
-32,
32,
40,
-16,
-6,
15,
43,
-20,
-76,
17,
-3,
-43,
-9
] |
Long, J.
Defendant ordered a binder of plaintiff. The machine was delivered to defendant, at Hillsdale, in June. On July 3, plaintiffs son and an agent of the Warder,. Bushnell & Glessner Co. set up and started the machine,, and it failed to work. July 4, plaintiff and the agent, went to defendants, and tried the machine, but failed to-make it work. July 5, plaintiff and two other of the- ■company’s agents went to defendant’s again, and worked with the machine all day, defendant working with them •during the time. After the close of the day’s work, plaintiff demanded settlement for the machine, claiming that it worked as warranted. Defendant refused to pay, or give ■a note, because the machine did not work. July 6, ■defendant, in the absence of any of the conrpany’s agents, tried the machine again, working with it during the day, and claims that it did not fulfill the warranty. On the 7th he went to Hillsdale, saw the plaintiff, and told him that the machine did not fulfill the warranty. Plaintiff then said: “It is your machine; you bought it, and have to- pay for it.” On the same day defendant returned the machine to plaintiff, at Hillsdale.
There is a clause in the warranty of the machine as follows:.
“If the said machine does not perform as above [warranted], immediate notice must be given to the Warder, Bushnell & Glessner Co., Chicago, Ill., or to their agent from whom the machine was bought, subject to a second trial in their presence, when, if the failure is found not to have arisen from any defect in the machine, it shall be kept by the purchaser, and continued use shall be considered conclusive proof that it fills the warranty; but, if upon said second trial, said machine does not work as .above, it may be returned to us, and the money will be .refunded.”
Plaintiff brought suit for the value of the machine, and on the trial the facts were found substantially as above set forth, and the court directed a verdict in favor of the plaintiff.
The reason given by the trial judge for this ruling was that, inasmuch as the defendant again tried the machine, or used it, on July 6, he was estopped from relying upon the contract of warranty, and had., in fact, made the machine his own. The court arrived at this conclusion from the interpretation he gave the words in the contract, “ continued use shall be considered conclusive proof that it fills the warranty.” The circumstances under which the defendant used the machine on July G would not, however, estop him from claiming that the warranty had not been fulfilled. If he had used the machine without making any complaint, undoubtedly he would have made the machine his own, or at least would not be permitted to say that it did not do good work and was not as represented; but the mere fact that he used it July 6 was not such a continuous use as to estop him from making the claim. The agents of the machine company had tried for two days to make it work, and, according to defendant’s claim, liad not succeeded. The defendant tried it again on July G, and claims that it did not do good work. If it did not fulfill the warranty, by the terms of the contract the defendant was not bound to keep it. If there was any dispute as to whether it did or did not, it was a question of fact for the jury. If it did not fulfill the warranty, the court should have directed the verdict in favor of the defendant.
The contract of warranty was made by the Warder, Buslmell & G-lessner Co. of Chicago. The plaintiff claims to recover the value of the machine, as sold by him, and at the same time it is conceded that the warranty is from the company, which he represents as agent. Under this contract which defendant had- from the company, payments were to be made to the company direct, and not to the plaintiff. No claim was made on the trial that plaintiff could recover except under the contract with the company. It cannot be said that the order and warranty constituted a contract with the plaintiff. He was dealing with defendant as the agent of the company, and as such agent issued the written warranty, which the company was bound to fulfill. It was not the personal guaranty of the plaintiff, but of the company. Yet the plaintiff did not aver in his declaration, or prove on the trial, any assignment of the contract. In order to recover in his own name nnder this contract, the plaintiff should have averred and proved an assignment of the contract.
Judgment reversed, and new trial ordered.
Grant, J., concurred with Long, J. | [
9,
-20,
29,
31,
41,
-4,
22,
-49,
22,
44,
14,
21,
-19,
-8,
8,
-45,
19,
-34,
-12,
5,
1,
-29,
-3,
-9,
-16,
0,
-15,
-12,
26,
42,
-9,
13,
12,
2,
-74,
-7,
0,
21,
-23,
-2,
26,
35,
21,
-12,
-15,
-24,
18,
5,
50,
-22,
29,
-7,
5,
-47,
-37,
-2,
24,
24,
-32,
28,
5,
-20,
29,
-58,
-13,
-15,
3,
3,
-3,
-7,
-30,
14,
7,
-10,
8,
-46,
-4,
57,
-42,
7,
43,
-10,
13,
-44,
-19,
-25,
27,
-20,
19,
-2,
-46,
25,
-17,
27,
-11,
34,
-33,
22,
-21,
19,
21,
32,
-33,
-4,
-59,
-17,
28,
-70,
-92,
37,
4,
11,
24,
30,
10,
5,
14,
-2,
-48,
28,
26,
47,
28,
-18,
27,
5,
-33,
1,
9,
-10,
53,
16,
-7,
4,
11,
-23,
17,
-19,
36,
-1,
45,
-2,
11,
5,
17,
-15,
1,
44,
-63,
28,
-13,
-11,
7,
28,
12,
-18,
2,
-57,
20,
-48,
46,
34,
-19,
-14,
-10,
6,
-33,
4,
-4,
-10,
-32,
0,
-9,
-6,
30,
-8,
23,
-36,
-7,
-73,
-6,
2,
-13,
-20,
13,
-3,
-8,
13,
19,
-13,
-15,
-33,
-43,
46,
-42,
-1,
-14,
12,
25,
-38,
28,
-60,
-3,
3,
17,
-30,
4,
-39,
-30,
-16,
-17,
15,
0,
-107,
-63,
-10,
-13,
-22,
-31,
53,
-18,
2,
-66,
-9,
-36,
-33,
56,
-10,
25,
45,
-15,
42,
11,
46,
37,
4,
-6,
-27,
7,
33,
-16,
-27,
-31,
-1,
27,
19,
-32,
-15,
-29,
-21,
20,
29,
-21,
23,
-12,
-49,
-39,
16,
6,
-24,
-19,
48,
-21,
-1,
23,
-50,
20,
0,
-2,
33,
-5,
-44,
-4,
-38,
-17,
-48,
-20,
-1,
14,
-20,
-21,
-21,
-19,
6,
-15,
1,
-14,
18,
-21,
-14,
17,
32,
12,
19,
62,
21,
-5,
23,
-17,
2,
-29,
-39,
-21,
14,
9,
2,
-11,
0,
10,
0,
-44,
-12,
-14,
-33,
-12,
-6,
-29,
-54,
25,
25,
-33,
27,
6,
49,
-16,
-27,
34,
-15,
36,
-3,
18,
-2,
-8,
8,
11,
-19,
42,
-48,
-19,
3,
17,
52,
-14,
46,
-8,
10,
25,
-22,
11,
40,
38,
-24,
-24,
3,
12,
18,
10,
-15,
-28,
40,
36,
20,
0,
-1,
19,
-47,
54,
66,
36,
41,
-45,
-1,
-37,
-19,
-7,
-44,
-73,
9,
20,
57,
16,
-17,
-31,
-5,
15,
4,
-22,
-1,
-32,
17,
-57,
-17,
-2,
24,
9,
-49,
-32,
-19,
-40,
18,
17,
17,
0,
2,
-1,
4,
-46,
8,
-30,
-15,
-34,
-22,
-43,
-4,
-18,
-7,
16,
3,
41,
-28,
17,
-12,
-67,
1,
53,
-38,
0,
34,
12,
21,
1,
5,
-6,
-58,
18,
5,
-8,
39,
40,
25,
-14,
10,
-34,
-5,
41,
5,
47,
8,
15,
-54,
26,
2,
5,
20,
31,
0,
4,
-5,
22,
-9,
14,
-1,
17,
29,
12,
-20,
45,
-51,
1,
-8,
-35,
9,
23,
10,
-44,
-24,
-32,
-23,
-19,
20,
0,
21,
20,
-7,
-16,
-9,
-20,
-32,
-9,
22,
29,
34,
0,
12,
-1,
30,
-9,
6,
8,
56,
-26,
-62,
47,
35,
2,
-27,
-5,
-34,
0,
29,
26,
16,
-2,
-39,
48,
49,
15,
21,
0,
23,
24,
6,
-66,
5,
-5,
-26,
-6,
-3,
-1,
1,
-19,
25,
-10,
-10,
-42,
5,
-16,
-32,
-10,
11,
-13,
44,
13,
37,
-2,
8,
-44,
-17,
-5,
-8,
-8,
-28,
52,
45,
8,
3,
30,
-18,
3,
7,
-7,
13,
-2,
11,
53,
-22,
-60,
18,
-16,
-65,
4,
-9,
-7,
73,
53,
7,
1,
4,
-17,
-48,
-37,
33,
-5,
-77,
-46,
-38,
5,
35,
19,
-17,
1,
-20,
-28,
-33,
27,
-16,
-24,
-1,
44,
-9,
3,
6,
-12,
-39,
0,
-15,
-16,
29,
-20,
-18,
1,
-4,
34,
-37,
28,
-49,
2,
-28,
3,
30,
7,
39,
-28,
31,
-16,
42,
4,
-45,
-12,
18,
-14,
-33,
15,
28,
14,
4,
22,
24,
-18,
-29,
8,
7,
7,
-9,
-25,
-22,
-51,
2,
19,
-59,
-25,
41,
102,
13,
-35,
-11,
2,
-3,
0,
0,
-8,
-43,
-11,
53,
11,
-12,
3,
-33,
7,
39,
29,
7,
24,
-29,
-11,
40,
16,
8,
-7,
2,
-26,
-15,
70,
19,
-2,
47,
48,
0,
19,
-57,
-10,
-52,
15,
-11,
43,
8,
34,
20,
-9,
-57,
14,
63,
-33,
16,
-41,
28,
-42,
3,
20,
-21,
22,
-5,
20,
-43,
1,
31,
-14,
4,
11,
-23,
3,
-4,
9,
-35,
-4,
75,
12,
26,
3,
-29,
-9,
27,
-60,
0,
-39,
41,
5,
-15,
-24,
0,
0,
22,
21,
1,
-1,
-11,
5,
-4,
-25,
-37,
12,
-3,
15,
-1,
30,
-20,
-39,
-28,
-17,
14,
-33,
20,
22,
-26,
40,
3,
-15,
-37,
-4,
-47,
30,
2,
24,
-11,
10,
15,
63,
-7,
55,
-17,
54,
0,
-11,
2,
-12,
-31,
31,
38,
-9,
56,
23,
-56,
7,
15,
-33,
1,
17,
67,
-7,
-25,
24,
-10,
4,
14,
-9,
10,
6,
7,
22,
-49,
-4,
-1,
-8,
-12,
32,
-9,
-22,
28,
-21,
19,
-23,
5,
-40,
-4,
-24,
2,
-14,
9,
-71,
21,
41,
-44,
14,
-14,
-9,
15,
12,
-43,
10,
11,
-6,
-5,
-9,
24,
12,
10,
-61,
17,
47,
-35,
26,
-33,
7,
-32,
0,
-21,
36,
23,
42,
71,
-20,
20,
-26,
-3,
40,
-31,
-6,
11,
35,
-7,
49,
-3,
28,
-18,
-4,
-1,
-32,
-65,
3,
9,
-37,
8,
-28,
33,
9,
-21,
17,
6,
-32,
4,
-33,
-23,
18,
7,
11,
-17,
-6,
4,
48,
6,
51,
34,
26,
8,
22,
35,
-2,
-33,
-33,
13,
54,
-25,
29,
14,
22,
-19,
14,
42,
-36,
-12,
-28,
-51,
-19,
-14,
82,
9,
34,
-3,
-8,
27,
21,
-91,
72,
44,
73,
-20,
13,
-56,
-6,
-16,
-6,
-38,
12,
-35,
-38,
-35,
9,
-3,
-22,
31,
-18,
11,
-24,
21,
-52,
-4,
-30,
-48,
-23,
0,
27,
24,
13,
30,
38,
36,
22,
27,
-45,
-51,
-12,
7,
22,
-23,
19,
8,
49,
5,
-30,
39,
37,
-38,
-20,
-8,
5,
22,
18,
-11,
-37,
-7,
9,
17,
29,
-12,
25,
-6,
-15,
-1,
-28,
22,
34,
-18,
36,
-23,
-12,
-40,
9,
-1,
-13,
44,
-13,
4,
62,
-16,
-1,
2,
-16,
-74,
-61,
-3,
48,
-18,
32,
-13
] |
Montgomery, J.
Action on a policy of insurance. The loss is alleged to have occurred on the 23d of October, 1889. Three grounds of defense were urged in the court below:
1. That the property burned was not covered by the policy.
2. That no proofs of loss were furnished.
3. That the suit was not commenced within the time limited by the policy.
The circuit judge directed a verdict for the defendant on the ground that the. policy did not cover the property burned. The record contains the substance of all the testimony. If it appears that there is any conclusive reason why no recovery should be had, the judgment should not be disturbed. Dunning v. Calkins, 51 Mich. 556; Monaghan v. Insurance Co., 53 Id. 238.
The policy contains a provision that—
“ No suit or action upon this policy shall be sustainable in any court of law * * . * unless such suit or action shall be commenced within six months next after the loss shall occur/'’
The suit was not instituted until the 5th day of May, 1890, —6 months and 12 days after the lire. This delay operates to bar recovery, unless it is excused by the act of the 'company. This is claimed by the plaintiff. ' It appears that the adjuster of the company called upon the plaintiff, in company with the local agent, shortly after the fire, and, as the plaintiff testified, then agreed to pay him $25 by way of compromise; but on the 22d day of December he was informed by the local agent that the company denied any liability, the agent at that time offering to credit him $12.50 as a premium on a new policy of insurance. This he declined to accept. He now treats the repudiation of liability as excusing him from furnishing any proofs of loss, and justifying an action on the policy. Assuming that he is right in this contention, it unfortunately) demon strates that he was not delayed in bringing suit by the negotiations. Had he furnished proofs of loss the day the fire occurred, the company would have been entitled to 60 days within which to make payment, by the terms of the policy. He could not, therefore, have brought suit earlier than December 22. He now brings suit without furnishing proofs of loss, on the claim that the company’s refusal to pay waived such proofs. This he was entitled to do on December 22, the earliest day at which he could have brought suit had he furnished proofs. This distinguishes the case from Voorheis v. Benefit Society, 91 Mich. 469, and brings the case directly within the ruling in Law v. Accident Association, 94 Mich. 266.
Judgment affirmed, with costs.
The other Justices concurred. | [
-5,
5,
-6,
11,
64,
62,
30,
-58,
25,
-1,
51,
16,
24,
6,
14,
-20,
-10,
10,
27,
8,
-15,
11,
0,
-55,
14,
-39,
47,
-15,
22,
16,
-8,
49,
-34,
22,
-33,
0,
-34,
-37,
-26,
13,
34,
-7,
83,
5,
8,
-1,
1,
-10,
14,
29,
19,
-38,
14,
-25,
-1,
1,
29,
82,
-43,
-6,
-20,
-39,
31,
-8,
15,
21,
-39,
-37,
-19,
2,
6,
5,
-7,
7,
3,
-25,
12,
-31,
-29,
-18,
34,
-14,
33,
-31,
2,
-3,
-6,
-23,
-3,
26,
-48,
25,
-24,
-25,
-35,
-12,
-13,
37,
-7,
67,
51,
5,
-43,
-11,
-66,
52,
18,
-53,
-44,
1,
22,
3,
1,
-42,
41,
-17,
-7,
-12,
-2,
8,
24,
22,
11,
33,
-3,
45,
2,
9,
-18,
-3,
-48,
25,
9,
0,
5,
-35,
2,
0,
-24,
-21,
-23,
-42,
-12,
10,
-17,
10,
13,
-24,
-75,
20,
-3,
24,
-20,
-3,
-38,
-13,
7,
-41,
31,
-31,
18,
-22,
-19,
36,
-23,
-34,
4,
-29,
16,
-5,
-12,
-59,
10,
6,
20,
38,
51,
-47,
-6,
66,
28,
-27,
36,
50,
26,
-25,
-2,
13,
17,
-11,
42,
-30,
-42,
0,
11,
18,
19,
12,
35,
-26,
5,
-39,
-29,
-39,
11,
17,
6,
-15,
52,
25,
-28,
20,
-9,
-26,
18,
36,
24,
-33,
4,
-40,
-7,
26,
-19,
-19,
-7,
-53,
-15,
56,
19,
-20,
-24,
3,
9,
29,
6,
6,
-16,
25,
15,
27,
63,
9,
-2,
-22,
65,
-25,
-13,
-7,
8,
29,
-24,
-5,
30,
-8,
-4,
20,
8,
-3,
-42,
-4,
-49,
52,
-27,
-15,
64,
-10,
-14,
3,
25,
26,
2,
-1,
4,
-25,
-22,
-52,
10,
25,
-37,
-24,
-7,
14,
-35,
-33,
-55,
3,
11,
-6,
-37,
-16,
9,
-44,
4,
17,
7,
7,
44,
15,
20,
5,
23,
-10,
13,
6,
15,
-5,
-45,
-35,
-17,
-43,
-59,
21,
-21,
0,
46,
-26,
17,
3,
-16,
-29,
54,
30,
0,
-6,
34,
-21,
14,
11,
-38,
47,
2,
-1,
47,
30,
-20,
-2,
-17,
-31,
23,
31,
-22,
17,
42,
-5,
-8,
60,
19,
-27,
-7,
32,
-22,
-28,
-17,
-19,
35,
30,
44,
6,
-35,
59,
68,
0,
42,
-20,
25,
-15,
-17,
-13,
12,
7,
66,
-3,
-22,
-3,
6,
-20,
20,
36,
-72,
33,
8,
-21,
-2,
11,
19,
26,
15,
-7,
-61,
-13,
-17,
-8,
26,
50,
-48,
5,
-39,
-17,
-7,
4,
-18,
16,
-51,
-18,
-12,
-43,
-35,
-30,
-5,
-5,
6,
-17,
-19,
-21,
-8,
10,
42,
1,
24,
-7,
41,
-47,
-2,
19,
-20,
-53,
35,
28,
-27,
-64,
-10,
12,
0,
-1,
-7,
38,
-51,
-34,
-30,
-18,
14,
32,
-20,
16,
-10,
19,
13,
31,
22,
30,
3,
10,
25,
-4,
-72,
46,
10,
-11,
37,
-34,
6,
-12,
-13,
48,
12,
27,
-28,
8,
28,
-47,
63,
-12,
5,
-45,
-40,
8,
-13,
-55,
-25,
-8,
-39,
65,
20,
-58,
-33,
-19,
0,
11,
7,
-14,
45,
-4,
-27,
-43,
-39,
0,
-45,
-24,
-7,
-10,
-20,
-9,
23,
0,
0,
-10,
-8,
-50,
24,
22,
39,
-5,
31,
-20,
80,
10,
-41,
53,
33,
4,
2,
-18,
-71,
0,
14,
-42,
-74,
17,
-3,
-54,
0,
-20,
14,
0,
-54,
41,
21,
16,
-29,
10,
-20,
44,
0,
8,
-41,
10,
23,
34,
7,
26,
29,
-50,
-1,
11,
-13,
28,
16,
-18,
20,
-1,
-10,
0,
42,
-3,
-10,
-22,
-35,
1,
-4,
-16,
-31,
-20,
27,
8,
23,
16,
0,
-32,
25,
36,
-31,
-16,
-45,
-112,
-7,
20,
-14,
-4,
-41,
-17,
0,
51,
-16,
24,
37,
17,
-36,
-32,
-36,
-11,
-3,
19,
-55,
-13,
25,
8,
-18,
-12,
27,
23,
20,
-10,
-9,
-22,
-3,
2,
12,
69,
65,
-20,
24,
18,
4,
28,
-4,
35,
24,
33,
-34,
50,
27,
-11,
-5,
-25,
28,
-26,
10,
27,
-62,
15,
-51,
-14,
-14,
-6,
-45,
67,
-21,
-2,
0,
-90,
-27,
-37,
17,
-20,
-16,
19,
27,
22,
12,
-40,
0,
-59,
-6,
28,
-20,
3,
0,
-17,
-19,
24,
21,
-52,
24,
6,
11,
29,
-5,
36,
6,
96,
-1,
-64,
34,
-11,
9,
-11,
-26,
19,
17,
-6,
5,
-44,
0,
18,
49,
-20,
24,
30,
41,
-26,
6,
-29,
32,
2,
-10,
7,
6,
-35,
36,
-13,
-4,
39,
-2,
-62,
7,
-24,
15,
26,
-15,
-6,
29,
-44,
69,
8,
-13,
41,
52,
26,
0,
-93,
-21,
-8,
-59,
13,
-22,
-1,
35,
-1,
8,
-28,
-29,
23,
88,
7,
-46,
-18,
1,
-21,
22,
-18,
-24,
-24,
15,
2,
15,
-11,
-19,
17,
-13,
-23,
23,
18,
-4,
-22,
-46,
15,
55,
-23,
12,
-59,
19,
-25,
40,
-6,
48,
28,
41,
-59,
6,
53,
27,
-12,
-11,
12,
-14,
-33,
15,
-6,
-43,
-2,
-8,
22,
-20,
-13,
-36,
-5,
-15,
-54,
-5,
6,
-12,
-13,
19,
0,
-13,
-14,
-3,
18,
-6,
-37,
-4,
-33,
0,
-13,
-36,
6,
-24,
-5,
-14,
-15,
-34,
58,
-29,
0,
57,
-35,
8,
-39,
27,
-18,
-3,
-65,
-27,
23,
24,
23,
22,
-8,
-26,
-57,
-22,
-2,
-29,
58,
-3,
-32,
-52,
-15,
-24,
59,
-29,
7,
9,
53,
-13,
-81,
0,
-32,
48,
-8,
1,
6,
-9,
36,
47,
35,
0,
34,
-41,
-20,
8,
60,
-16,
-60,
-27,
71,
-18,
-51,
56,
21,
11,
-13,
10,
27,
-25,
-13,
10,
-23,
-29,
50,
66,
-43,
55,
61,
-5,
-27,
-65,
24,
10,
-31,
-3,
-44,
0,
28,
52,
36,
21,
-56,
26,
23,
35,
-13,
18,
-30,
25,
48,
2,
-13,
-14,
35,
-3,
-36,
22,
-47,
26,
0,
-2,
46,
27,
17,
-22,
-2,
-22,
61,
31,
-53,
-5,
-46,
0,
43,
-11,
-6,
0,
-29,
-62,
1,
31,
-9,
14,
49,
31,
48,
5,
41,
0,
18,
-52,
28,
26,
-10,
-41,
36,
-33,
-15,
58,
34,
23,
7,
-39,
-17,
37,
-61,
3,
-10,
-37,
41,
23,
-31,
-65,
-28,
-31,
-18,
-52,
0,
23,
10,
-5,
-14,
5,
-39,
-4,
27,
18,
1,
3,
-23,
-18,
1,
-34,
-34,
-24,
26,
43,
33,
23,
2,
39,
23,
28,
-45,
-37,
34,
-6,
2,
-31,
35,
-16,
26,
-3,
-7,
65,
17,
-40,
58
] |
Hooker, J.
Mrs. Mann purchased a parcel of land from the State, the same having been bid in for the State for the taxes of 1891 and 1892. In due season she filed her petition for a writ of assistance. The defendant answered, alleging .title, and attacking the validity of the tax proceedings and decrees upon several grounds. The-circuit court denied the relief prayed, and the petitioner has appealed.
The answer raises the following points:
1. That the petitions of the auditor general were not filed, and therefore the court did not obtain jurisdiction of the tax proceedings. This applies to the taxes of Í 881 and 1892. The precise defect appears to be that the petition attached to the tax record, which seems to have been found in the county treasurer’s office, had no filing by the county clerk upon it.
2. That the order of publication was not published as required by law.
3. That no decree was made for the sale of the land in question for the tax of 1892.
4. That on October 21, 1895, the defendant applied at the county treasurer’s office for a statement of all taxes against the premises, that he might pay all taxes and charges against them, and was told the amount by a clerk in charge of the office; and that he then and there paid the * amount given him, and supposed he had paid all taxes and charges against the land.
5. That the premises were, during 1891 and 1892, in the care and possession of his brother, who had personal property from which' the taxes might have been collected had the land been assessed to him, as required by section 6, Act No. 200, Pub. Acts 1891; and respondent believed such taxes had been paid until he received notice of this proceeding.
6. That he had regularly paid all previous and subsequent taxes.
7. That the land was offered but once before it was struck off to the State, and there was no formal bid made for the State.
In support of the first point, counsel for the appellee asserts that, not only was there no filing upon the petitions, but there were no calendar entries in the cause, and the petitions were not found in the clerk’s office, but were produced by the county treasurer, and had no word written upon them to indicate that they had ever been in the .offico of the clerk. There is evidence in the record that tax petitions were made, because papers purporting to be •such were produced, being offered in evidence by counsel for the appellee, with proof that they were produced by the county treasurer. Section 67 of the tax law of 1893 (Act No. 206, Pub. Acts 1893) requires that the tax record — which, under section 61, includes the petition— shall be delivered to the county treasurer immediately after the decree is made; and it is further provided that it shall remain in the treasurer’s office, except as needed in the office of the clerk. It therefore appears that the petitions were found in the proper place. It also appears that various papers purporting to belong to such proceedings were found in the county clerk’s office, and, among them, orders of publication signed by the judge of the court. These orders recited the fact of the filing of the petitions. We are therefore of the opinion that there is abundant evidence that these petitions were at some time in the county clerk’s office; and, in view of the language of the order of publication, we must ascribe the failure to mark them as filed to clerical omission, not fatal to the proceedings. In Beebe v. Morrell, 76 Mich. 120 (16 Am. St. Rep. 288), it is said that “a paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.”
The next defect pointed out by the answer is that in neither instance was there proper proof of publication of the order. Among the proper files in the clerk’s office, a paper was found entitled “ Affidavit of Publication.” It was signed by one Whiting, and stated that he was the principal clerk for printing and publication of the Weekly .Courier-Herald, a newspaper published and circulated in the county of Saginaw; that the notice of the sale of state tax lands thereto annexed had been published in said newspaper once in each week for four successive weeks previous to the date of sale mentioned in said notice, and gave the dates of the several issues of the paper containing it. No paper was attached to this affidavit, but in the same files there was found a printed copy of the petition of the auditor general, and list of the delinquent lands, and a copy of the order of hearing; these appearing to be printed on what purported to be a supplement to the Courier-Herald. It is claimed first that the affidavit does not show the publication of the delinquent list, but on its face states that the publication of a notice of the sale of state tax lands was what it was'intended'to prove, and that this was not explained by a reference to the title of any cause. If we cannot say that the presence of the appropriate copy of petition and order in the files raises a presumption that they were originally attached to the affidavit, we must hold that the proceedings were void, under Benedict v. Auditor General, 104 Mich. 274. If, however, such presumption may be indulged, the language of the affidavit should be read with the aid afforded by the accompanying papers, which would show plainly that the publication referred to was the proper one for these proceedings. The only office of the affidavit is to prove the fact of a proper publication, and when it does this it is sufficient. From these papers, taken together, no one could be misled by the statement that notice of sale of state tax lands was published, and the publication actually made would be evident. A closely analogous question arose in the case of Spaulding v. O’Connor, 119 Mich. 45. When it is considered that the copy of the supplement found in the files was devoted to a publication of copies of the very papers that appropriately belonged to the affidavit under consideration, and that it had no other use or apparent reason for being there than as part of such affidavit, coupled with the fact that it was the only paper in the files that could have been referred to by that affidavit, and that the separation of such papers by accident or design is easy, we are justified in conchiding that they were originally attached, especially where put to gether with mucilage, which so corresponded upon the papers as to furnish some support to the claim that they had been stuck together at some time.
The further claim is made that the publication in a supplement was not such a publication in a newspaper as to comply with the law. Newspapers commonly consist of two or more unbound sheets, which are liable to get separated. The designation of one as supplement does not make it less a part of the newspaper. Had that word been omitted, this question would not be here. It strikes us as a most technical objection.
Defendant’s third proposition is that no decree was made for the sale of the land in controversy. It is claimed that the list as published for the 1892 tax did not sufficiently describe the premises. The figures and word “ 15 entire” were printed in a column headed “Block,” among descriptions in “Clark’s Addition to the Village of Chesaning.” We have no doubt of the sufficiency of this description.
It -is urged by counsel that the amounts adjudicated against the land were inserted, after the decree was signed, by a clerk in the treasurer’s office. No hint of this claim is found, either in the answer or the proof, and we have, therefore, no occasion to pass upon the question.
The fifth ground of defense is that the land should have been assessed to the defendant’s brother, who was in possession. The statute referred to in this connection (section 6, Act No. 200, Pub. Acts 1891) contemplates assessment to the owner where known, as in this case.
The next defect mentioned is that on neither occasion of the sale for taxes was the land offered a second time before it was struck off to the State, nor was there a formal bid made for the State. Counsel does not point us to proof that this was not offered a second time before being bid in by the State. But section 68 of the law of 1893 provides that “if, for any reason, the treasurer of any county shall fail to offer the lands lying therein and included in the decree for sale for delinquent taxes thereon, then so many of such lands so included in such decree as shall not be so offered for sale shall be considered and treated as if bid off to the State by the county treasurer,” etc. It is urged that lands acquired under this section are not subject to private sale by the State under the statute, but we are of the opinion that they are.
This covers all questions specifically raised by the answer except the fourth. A further point is made in the brief upon the petitioner’s deed. Such deed is in form a quitclaim, and it is said to be insufficient, upon the ground that “it is the universal rule * * * that, where the statute does not prescribe the form of the deed to be used in conveying lands to purchasers at tax sales, such a form of deed must be used as would, at the common law, have conveyed title.” Counsel cites in support of this proposition: 2 Blackw. Tax Titles (5th Ed.), §772; Black, Tax Titles, § 396; Waldron v. McComb, 1 Hill, 111. This question is. settled by the case of Dawson v. Peter, 119 Mich. 274, which is upon all fours with the present case upon this point.
The fourth claim contained in the answer relates to the alleged application of the defendant to the county treasurer to pay taxes and charges.. The evidence upon this subject is confined to the testimony of the defendant. He produced a tax receipt for the taxes of 1894, bearing date October 21, 1895, and his examination proceeded as follows:
“ Q. At the time you received this receipt, with what object or purpose did you go to the county treasurer’s office ?.
‘ ‘A. I went there to pay the taxes on that piece of property in town 9, or any taxes which might be against me in the county treasurer’s office.
“ Q. How about block 15 ?
“A. Well, I asked about that, and they gave me that tax there with it, and I asked if there was anything more against the block, and they said there was not.
“ Q. Did you ask for a statement of all the taxes against the block ?
“A. I asked for all the taxes against the block, and was there ready to pay all the taxes that was against me in the county, if there was any other at the time when I was there. They said there was no more taxes against me than that receipt covered; and I paid all that-they claimed was against me.
‘ ‘ Mr. Foote: We offer that in evidence. The object of that is to show that in 1894 he applied to pay the taxes against the lot, and they told him the taxes covered by that receipt were all the taxes unpaid against the lot.
“The Court: You knew in 1891 and 1892 you had not paid the taxes for those years ?
“A. I knew I had an arrangement for a man to pay them, and calculated he had paid them. He had control of the property. He had the means to pay them with, and I supposed they were paid until a short time ago.”
He added:
“The one that gave me that receipt was a young man working in the county treasurer’s office, and he is not back • there any more.”
At this time redemption had expired on the sale for the tax of 1891.
My brethren think that this testimony brings the case within the rule laid down in the cases of Hand v. Auditor General, 112 Mich. 597; Wood v. Bigelow, 115 Mich. 123; Hough v. Auditor General, 116 Mich. 663; Kneeland v. Wood, 117 Mich. 174; Kneeland v. Hyman, 118 Mich. 56. But we cannot set aside the sale in this proceeding, as we might perhaps do under a motion seasonably made. But we presume that it is now too late for such a motion, and, if there is any remedy open to the defendant, it is probably by proceedings before the auditor general for a certificate of error. While we cannot deny the writ of assistance, we may exercise a discretion in the 'premises, and defer its issue, to give the defendant an opportunity to make an application to the auditor general, or to the court if that right is not lost by lapse of time.
The order of the circuit court is reversed, and an order will be entered here directing the circuit court to enter an order that a writ of assistance issue at the expiration of 90 days from this date, unless it shall, at or before that time, be made to appear that the petitioner’s deed has been canceled by the auditor general, or that proceedings be pending, in which case it shall be within the power of said court to vacate said order or further stay the issue of said writ, as justice may require. The petitioner will recover costs of this court.
The other Justices concurred. | [
33,
7,
16,
0,
-11,
32,
21,
0,
0,
24,
10,
-18,
8,
34,
8,
5,
41,
-9,
43,
1,
-27,
-29,
-15,
3,
29,
-18,
21,
4,
-24,
-12,
48,
23,
-49,
60,
39,
-18,
9,
-45,
47,
-19,
-49,
39,
-26,
-29,
-3,
-1,
-31,
-32,
3,
-12,
21,
-47,
-4,
-29,
6,
-5,
2,
-48,
-57,
-36,
12,
8,
18,
9,
-13,
55,
0,
-47,
-6,
-42,
-29,
-62,
-14,
-26,
-2,
-11,
-27,
-1,
-12,
47,
-11,
-18,
14,
-50,
36,
-18,
-32,
-17,
55,
-8,
5,
-39,
-22,
34,
18,
57,
-1,
39,
35,
33,
2,
2,
-42,
-6,
37,
-34,
-58,
-11,
-17,
4,
19,
-32,
15,
-23,
-6,
-23,
-1,
-46,
-68,
-45,
-3,
-12,
17,
13,
21,
55,
-43,
18,
-14,
-5,
0,
-36,
-7,
-62,
-11,
-27,
4,
-47,
-8,
0,
-34,
20,
-40,
-52,
15,
-46,
43,
0,
-24,
-10,
-10,
9,
-23,
-12,
4,
-7,
32,
-43,
44,
-57,
-12,
34,
-29,
-68,
15,
16,
-8,
1,
-15,
-32,
29,
38,
-42,
16,
31,
-49,
17,
16,
-4,
-26,
14,
-12,
49,
-10,
49,
-13,
29,
-39,
44,
-6,
-11,
12,
44,
-48,
23,
10,
11,
-46,
24,
-15,
-6,
-45,
10,
-11,
1,
-5,
9,
-23,
-24,
-4,
-8,
6,
26,
-21,
-45,
-12,
-8,
-21,
6,
65,
49,
63,
15,
-13,
-25,
-1,
36,
29,
-26,
31,
-33,
-1,
6,
-9,
-10,
-29,
30,
7,
-13,
0,
-27,
0,
-6,
-19,
-6,
35,
-41,
0,
0,
13,
12,
22,
-45,
3,
-22,
-35,
11,
-15,
-14,
-40,
18,
19,
23,
-39,
-44,
-37,
59,
-1,
-9,
16,
0,
41,
8,
44,
12,
-18,
-3,
0,
-31,
-20,
19,
13,
28,
-28,
-26,
12,
-15,
-12,
38,
15,
-20,
-22,
-21,
50,
-8,
17,
18,
18,
28,
-15,
-23,
-7,
56,
-4,
55,
-6,
20,
-5,
-2,
-3,
58,
31,
9,
0,
12,
6,
17,
-45,
10,
22,
54,
1,
-2,
29,
55,
31,
36,
-53,
-32,
30,
7,
-16,
10,
-13,
4,
7,
11,
-43,
-27,
-37,
2,
-2,
15,
-9,
2,
10,
-65,
-3,
47,
39,
0,
11,
-20,
12,
-1,
-3,
0,
-20,
-35,
15,
4,
24,
3,
-16,
-4,
-7,
-41,
-35,
42,
1,
8,
15,
-37,
-3,
0,
-14,
-13,
34,
-11,
-2,
-4,
-4,
7,
24,
33,
0,
15,
-42,
-10,
-46,
0,
40,
9,
13,
17,
-48,
9,
-48,
-17,
0,
-54,
27,
51,
16,
-45,
6,
-1,
40,
-38,
47,
28,
-18,
5,
6,
22,
-22,
4,
-5,
62,
2,
35,
-9,
31,
-12,
-24,
-31,
2,
38,
4,
-6,
-44,
4,
31,
2,
17,
-9,
-12,
-1,
-44,
-9,
20,
8,
-16,
5,
-30,
-1,
11,
-9,
30,
15,
-16,
-43,
-6,
8,
-9,
30,
66,
-76,
14,
-56,
15,
45,
7,
0,
39,
-16,
-41,
0,
-9,
-18,
-29,
42,
-2,
-36,
-35,
30,
21,
27,
32,
10,
-10,
-58,
-5,
2,
12,
-5,
3,
-19,
-3,
-36,
83,
-23,
-11,
-32,
-5,
0,
-16,
-40,
15,
58,
4,
17,
51,
0,
1,
-20,
11,
8,
38,
12,
-10,
-18,
3,
5,
6,
9,
-5,
-16,
45,
41,
-9,
-24,
-52,
-56,
9,
4,
57,
16,
2,
-20,
-9,
-5,
-36,
18,
-42,
-12,
-1,
27,
-6,
14,
-24,
16,
31,
56,
-22,
66,
45,
-6,
-18,
-13,
-47,
-13,
-11,
8,
-66,
-19,
-34,
-71,
-30,
-18,
-39,
-22,
18,
-47,
40,
-55,
-23,
-23,
-37,
-18,
0,
1,
27,
-34,
28,
-34,
-36,
-60,
52,
38,
5,
-43,
7,
-91,
27,
-11,
-29,
45,
5,
-26,
-7,
-13,
-43,
50,
18,
-6,
-46,
14,
-4,
-26,
15,
-6,
-19,
-2,
-4,
-9,
3,
36,
2,
-9,
-16,
10,
58,
33,
-48,
23,
4,
-26,
6,
-23,
3,
17,
-8,
28,
31,
-14,
28,
-19,
0,
-40,
-3,
-24,
17,
39,
-54,
-4,
-4,
-6,
0,
7,
18,
-26,
-73,
-20,
-25,
28,
-12,
-31,
20,
-8,
3,
-11,
15,
-12,
-27,
7,
-1,
-54,
30,
15,
64,
-31,
7,
43,
29,
-16,
52,
-1,
-10,
23,
-9,
-57,
15,
-25,
-40,
-46,
19,
57,
0,
-37,
28,
14,
53,
13,
10,
-26,
36,
4,
-36,
-9,
19,
11,
35,
59,
-30,
13,
0,
20,
-12,
12,
9,
23,
0,
81,
19,
-8,
21,
-48,
12,
-43,
-22,
26,
28,
3,
-1,
-9,
23,
-8,
0,
-18,
-6,
-63,
19,
-45,
-25,
-29,
23,
-6,
-18,
8,
29,
1,
-32,
3,
-26,
63,
7,
-13,
-2,
35,
2,
-16,
-15,
-9,
4,
12,
22,
-20,
-28,
56,
29,
-14,
-22,
38,
12,
-7,
-38,
8,
-3,
-24,
15,
24,
36,
-29,
-23,
32,
-45,
-10,
15,
16,
-33,
13,
0,
-58,
56,
29,
-15,
2,
50,
-10,
9,
-16,
-44,
53,
-5,
-19,
0,
4,
5,
-1,
37,
-3,
-3,
-60,
-41,
23,
9,
-20,
-38,
12,
-29,
-20,
-41,
-3,
21,
1,
-29,
36,
-42,
24,
-22,
9,
-31,
-60,
-30,
-29,
35,
39,
-11,
-60,
-8,
-2,
8,
6,
-21,
-23,
-3,
43,
27,
2,
23,
-4,
-28,
-9,
32,
-9,
-7,
-9,
-40,
-37,
-33,
12,
16,
-18,
29,
-1,
-35,
50,
-37,
14,
-10,
29,
21,
25,
-54,
-34,
25,
10,
-37,
15,
53,
32,
28,
-26,
16,
-57,
46,
0,
35,
-3,
22,
1,
-48,
-27,
57,
22,
51,
-25,
31,
-22,
8,
59,
9,
26,
-47,
-31,
34,
6,
16,
1,
34,
-19,
37,
27,
4,
-28,
45,
-35,
-4,
20,
-40,
32,
16,
-3,
4,
-17,
27,
-18,
44,
12,
17,
-26,
-13,
-57,
-30,
-37,
5,
-44,
-6,
24,
71,
17,
-18,
7,
-11,
-13,
29,
4,
-1,
37,
21,
5,
-15,
45,
44,
-10,
13,
-44,
1,
-6,
54,
-24,
-4,
-40,
-58,
12,
-17,
43,
24,
5,
-7,
-31,
87,
48,
10,
-6,
-36,
-8,
-28,
12,
-22,
33,
-2,
13,
8,
51,
25,
-5,
7,
29,
-23,
14,
-4,
12,
46,
57,
-10,
-22,
-8,
32,
62,
-42,
-34,
15,
-6,
-3,
48,
-44,
-21,
7,
26,
1,
53,
-38,
4,
-1,
-30,
-6,
-3,
-30,
18,
-41,
16,
-7,
28,
-14,
48,
12,
-9,
4,
-51,
-17,
19,
-19,
8,
15,
13,
18,
47,
-1,
-12,
-16,
-20,
65
] |
Grant, C. J.
The contract on which this suit is based is sufficiently stated in 119 Mich. 438. This suit is for a second installment of the weekly stipend agreed upon by that contract. The defense is the same as in that case, and the further defense was interposed .that the prior suit is a bar to this. It was there held that this was not a. mere contract of service. The case is not, therefore, within the rule stated in Continental Ins. Co. v. Lumber Co., 93 Mich. 139 (32 Am. St. Rep. 494), and authorities there cited. The contract provides for the payment of $20 weekly until it is terminated in the manner therein provided. Defendants cannot disregard one part of the contract, and have the benefit of the other.
Judgment affirmed.
The other Justices concurred. | [
35,
9,
-47,
-23,
6,
53,
7,
-13,
14,
24,
54,
12,
63,
2,
38,
-43,
12,
11,
-29,
28,
-17,
-9,
8,
0,
-31,
8,
8,
13,
-18,
51,
-27,
-2,
16,
-41,
-59,
-24,
28,
9,
0,
-34,
16,
-18,
0,
-21,
47,
-39,
50,
-23,
40,
-27,
29,
31,
-31,
-1,
5,
47,
-14,
-21,
-49,
46,
-6,
-60,
-5,
-6,
0,
-47,
21,
90,
27,
17,
-21,
21,
4,
0,
34,
-16,
-8,
16,
-19,
36,
52,
-21,
12,
-32,
-41,
15,
36,
-17,
18,
15,
-46,
-28,
-36,
-17,
-32,
-27,
-17,
70,
4,
22,
19,
1,
31,
39,
2,
-12,
49,
-20,
-67,
0,
21,
17,
8,
-10,
-2,
-17,
-31,
36,
-15,
-51,
23,
18,
-9,
9,
-18,
-15,
-6,
-27,
-20,
-9,
11,
6,
-6,
49,
6,
33,
17,
18,
19,
12,
30,
51,
-27,
-9,
19,
1,
6,
-26,
-27,
-9,
6,
24,
20,
29,
-11,
10,
-7,
-17,
90,
-80,
45,
9,
10,
22,
-12,
-12,
-14,
32,
25,
36,
-2,
-28,
-6,
-45,
57,
16,
23,
-43,
25,
-29,
-32,
18,
0,
-9,
21,
17,
-6,
5,
31,
-14,
-29,
-12,
-18,
-3,
-23,
39,
-20,
-4,
-13,
15,
-38,
-53,
1,
30,
-31,
-27,
23,
-17,
1,
12,
9,
46,
-22,
-75,
-26,
26,
-48,
0,
-16,
-15,
-19,
-10,
-60,
18,
-66,
-49,
-22,
26,
8,
-2,
-44,
30,
24,
28,
19,
16,
25,
-6,
35,
-2,
-15,
-24,
-33,
-22,
-12,
-10,
-39,
-20,
30,
9,
-22,
7,
-21,
65,
-16,
-34,
11,
12,
-28,
-3,
-46,
42,
-37,
7,
12,
-18,
-12,
22,
-11,
45,
27,
-7,
6,
-20,
-2,
-41,
-28,
-19,
0,
-4,
-32,
34,
-51,
-28,
-43,
35,
-5,
0,
-2,
13,
60,
-26,
52,
0,
65,
9,
19,
13,
-15,
13,
11,
8,
-1,
17,
0,
20,
-13,
-5,
-7,
-23,
-41,
12,
12,
-52,
20,
9,
12,
-9,
2,
-35,
-12,
6,
21,
-5,
-8,
-12,
40,
-63,
-13,
4,
-13,
-25,
2,
29,
-17,
0,
23,
-32,
-11,
-12,
66,
47,
-28,
0,
-13,
-1,
-16,
-26,
-15,
11,
10,
40,
12,
38,
31,
5,
-7,
-20,
-7,
40,
21,
13,
23,
-30,
2,
8,
-24,
2,
-12,
6,
-6,
1,
-7,
0,
-10,
-10,
-14,
15,
-94,
24,
-25,
4,
-22,
-28,
17,
13,
-49,
-36,
-26,
-18,
-81,
-67,
-8,
46,
34,
-10,
17,
-5,
-2,
2,
-3,
-6,
44,
5,
22,
17,
2,
-16,
-17,
9,
-34,
-7,
-14,
-10,
-12,
-14,
36,
1,
0,
24,
85,
-9,
-14,
24,
21,
-16,
28,
31,
-29,
-34,
-29,
-14,
17,
-59,
-60,
19,
-39,
-56,
-70,
17,
1,
21,
-16,
-50,
-7,
-7,
-3,
23,
4,
-82,
19,
16,
-17,
41,
-6,
0,
1,
-25,
24,
16,
33,
8,
-3,
4,
-2,
17,
-21,
21,
-6,
33,
-42,
-24,
47,
30,
-12,
-33,
-60,
-22,
-6,
63,
21,
-6,
0,
22,
-37,
-16,
24,
-45,
-19,
6,
21,
62,
-19,
-11,
3,
-13,
-24,
27,
-18,
26,
9,
-39,
75,
-23,
8,
-64,
1,
-42,
-9,
-9,
-15,
9,
21,
31,
5,
47,
-1,
37,
31,
4,
21,
-2,
-15,
-8,
9,
19,
6,
41,
-7,
28,
26,
27,
42,
-12,
14,
2,
30,
-14,
-17,
-23,
-24,
21,
0,
3,
-26,
-13,
-46,
24,
30,
-10,
-68,
-38,
-20,
2,
3,
3,
27,
-2,
47,
-7,
-30,
17,
29,
-66,
52,
14,
-6,
19,
24,
-19,
-4,
25,
-25,
25,
-39,
23,
15,
15,
-38,
-6,
18,
9,
-36,
-27,
-29,
-33,
30,
11,
-30,
4,
-32,
17,
13,
-21,
-6,
-41,
29,
4,
-1,
25,
24,
61,
-73,
7,
20,
-33,
14,
35,
52,
16,
-10,
34,
23,
-27,
16,
-11,
-16,
-2,
51,
21,
43,
-1,
-12,
-22,
-39,
33,
33,
-11,
-8,
22,
-6,
-35,
20,
-37,
2,
43,
57,
12,
-19,
2,
-14,
11,
-6,
22,
-21,
-31,
3,
43,
-14,
-22,
-7,
23,
56,
-2,
2,
22,
10,
-8,
10,
-31,
20,
13,
-35,
42,
-4,
-26,
-18,
-3,
34,
1,
21,
-4,
28,
56,
41,
-24,
-16,
-24,
8,
11,
-21,
15,
-3,
-17,
-50,
38,
42,
-42,
-33,
-15,
25,
41,
-4,
0,
-20,
-51,
19,
34,
1,
-18,
7,
12,
-49,
-18,
-49,
-8,
-92,
25,
39,
57,
-10,
-34,
-27,
40,
-30,
52,
-36,
-7,
-38,
-24,
13,
-23,
-6,
4,
-11,
-23,
10,
-33,
-87,
16,
-1,
-7,
-13,
-5,
-14,
4,
-37,
-11,
-18,
-23,
1,
32,
21,
14,
-33,
7,
25,
15,
-53,
23,
7,
-32,
25,
-13,
-43,
-1,
-9,
2,
-51,
16,
-12,
-7,
34,
11,
39,
-10,
-67,
-16,
19,
-73,
-27,
9,
-9,
30,
64,
-30,
23,
9,
7,
20,
39,
1,
13,
17,
-32,
-61,
9,
-76,
-18,
52,
-5,
-19,
24,
-33,
5,
-3,
19,
51,
65,
-22,
0,
3,
-25,
22,
-10,
43,
-11,
-27,
35,
-36,
-9,
-17,
-9,
51,
-8,
33,
6,
10,
-7,
25,
21,
64,
19,
-48,
31,
-9,
-31,
-43,
-22,
2,
27,
-22,
-27,
6,
-1,
34,
-35,
-16,
9,
-16,
33,
-29,
3,
-22,
-18,
49,
-60,
30,
-32,
-28,
-7,
12,
5,
-11,
36,
5,
-18,
6,
18,
54,
-2,
47,
-5,
21,
35,
-2,
20,
-15,
42,
1,
20,
38,
47,
-12,
-31,
-5,
-16,
-5,
13,
-14,
-2,
50,
38,
-20,
3,
-24,
-38,
1,
-24,
69,
54,
-19,
-49,
10,
37,
-55,
-17,
-31,
15,
1,
36,
3,
10,
10,
-35,
38,
12,
-4,
-12,
39,
-26,
-31,
3,
-5,
9,
25,
-35,
40,
21,
-15,
-17,
3,
-15,
-30,
-4,
6,
-10,
-28,
-9,
-5,
-26,
-20,
32,
29,
2,
-5,
-1,
-28,
0,
-14,
-29,
-17,
-18,
20,
-41,
8,
-16,
-1,
5,
-38,
-1,
19,
45,
39,
-21,
-20,
-53,
19,
-10,
13,
-7,
50,
47,
14,
34,
-13,
20,
-41,
-40,
-28,
38,
-5,
-2,
-36,
3,
-7,
5,
1,
-28,
-46,
70,
-50,
-32,
-12,
-54,
20,
-36,
17,
-36,
-9,
55,
-18,
53,
-25,
-2,
-23,
10,
-9,
17,
-36,
7,
8,
-27,
40,
-10,
-14,
10,
44,
-9,
-32,
-18,
-2,
7,
31,
37,
55,
-37,
-44,
-32,
0,
65,
0,
11,
40
] |
Long, J.
This case was in this court at the April term, 1898. It is reported in 116 Mich. 619. On the trial of the case in the court below from which that appeal was taken, the defendant had judgment. The case was reversed in this court, and remanded for a new trial. The new trial has been had, and judgment has again passed for defendant, under the direction of the court, and plaintiff brings error.
It appeared that on September 27, 1890, one John McBride borrowed of plaintiff $100, and gave the note in question as security, .with the defendant as joint maker. The note was drawn up by defendant, and signed by him, in the Exchange Hotel, in Owosso. He handed it to McBride, who took it to the plaintiff, who was only a short distance away, and received from plaintiff $100. The defendant testified that, at the time he signed the note, no interest was stated in it. The note was put in evidence, and appears, upon its face, to draw 10 per cent. There were two blank spaces, and one is filled with the words “ten (10) per cent.,” and the other with the figures “10,” indicating 10 per cent. The plaintiff testified that, when he received the note, these spaces were filled as the note now appears, and that there was nothing on its face to indicate that it had been altered or changed; that, about three months before this suit was commenced, he met the defendant, and informed him that the note had not been paid, when defendant .asked, him if the interest had been paid, and said he would see McBride in regard to the note; that the interest had been paid uppn the note each year until about the time suit was commenced. McBride was not called as a witness. The plaintiff''further testified that, on the trial in the justice’s court, defendant testified thatj when he drew the note and handed it to McBride, he left the interest spaces unfilled, and knew'-, that McBride was to get the money on it from the plaintiff.
At the close of the testimony the plaintiff askted the court to charge the jury:
“In this case, it appears from the undisputed evidence that defendant drew and signed the note in question, except the words ‘ten (10) per cent.,’ and also the figuress ‘10,’ which spaces he permitted to remain in blank; that\ the note was then handed to the other maker of the note, John McBride, who took it and delivered it to plaintiff, and received the full amount of the note, $100; and that, at the time it was delivered to plaintiff, the blank spaces had been filled by writing in the words ‘ ten (10) per cent.’ and the figures ‘10.’ This being true, the defendant would be guilty of negligence; and, it appearing that the plaintiff. did not know that the note had been changed since Symes had signed it, — there being nothing upon the face of said note to indicate that the note had been changed, — the plaintiff would be a bona fide holder, and would be entitled to recover the amount of the note at the present time.”
This request was refused, and the court directed the verdict in favor of defendant. Counsel for plaintiff contends that the rule is that, where one delivers a writing containing blank spaces meant to be filled, the transferee, at least in the case of negotiable paper, has implied authority to complete the instrument by filling the blanks, in the way contemplated by the maker, with matter in general conformity to the character of the instrument.
This request should have been given. The rule is laid down by 2 Daniel, Neg. Inst. § 1405, that:
“ There is a general principle which pervades the universal law merchant respecting alterations, — a principle necessary to the protection of the innocent and prudent from the negligence and fraud of others. That is that when the drawer of the bill or the maker of the note has himself, by careless execution of the instrument, left room for any alteration to be made, either by insertion or-erasure, without defacing it or exciting the suspicions of a careful man, he will be liable upon it to any bona fide holder without notice, when the opportunity which he has afforded has been embraced, and the instrument filled up with a larger amount or different terms than those which it bore at the time he signed it. The true principle applicable to such cases is that the party who puts his paper in circulation invites the public to receive it of any one having it in possession with apparent title, and he is estopped to urge an actual defect in that which, through his act, ostensibly has none. * * * The inspection of the paper itself furnishes the only criterion by which a stranger to whom it is offered can test its character, and, when the inspection reveals nothing to arouse the suspicions of a prudent man, he will not be permitted to suffer when there has been an actual alteration. ”
See, also, Garrard v. Haddan, 67 Pa. St. 82 (5 Am. Rep. 412); Visher v. Webster, 8 Cal. 109; Rainbolt v. Eddy, 34 Iowa, 440 (11 Am. Rep. 152); Harvey v. Smith, 55 Ill. 224, — all of them holding to the.rule laid down in Daniel on Negotiable Instruments.
The note in suit reads, as defendant claims it was drawn and left his hands, as follows:
“ Owosso^Sept. 27, 1890. ■
“ On or before one year after date, I promise to pay to the order of William Weidman one hundred dollars at -. Value received, with interest at- per cent, per annum.
[Signed] “John McBride.
“Geo. B. Symes.”
As the note was produced on the trial, it appeared that the first blank space was filled by words and figures as follows, “Ten (10) per cent.,” and the second blank space by the figures “10.” The plaintiff may well have been deceived when the note was handed him by McBride with the blank spaces so filled. The defendant was negligent in leaving these spaces blank. The note was a printed one, except the date, date of payment, name of payee, and amount. The rule contended for should have been applied by the' court. The learned judge, in his charge to the jury, however, seemed to think that the cases of Holmes v. Trumper, 22 Mich. 427 (7 Am. Rep. 661), Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306), and Bradley v. Mann, 37 Mich. 1, laid down a different rule. In this the court was in error. In Holmes v. Trumper there was no blank space left to be filled. The words “10 per cent.” were added at the end of the note. In Miller v. Finley the alteration was by procuring another signer to the note. And in Bradley v. Mann the words “with interest at 10 per cent.” were added at the end of the note, after the words “Value received.”
The court was also in error in directing the verdict in favor of defendant. It is true that the defendant testified that these spaces were not filled when the note left his hands, yet there were circumstances surrounding the case from which the jury might find that the defendant was mistaken in this. ' He knew that McBride was negotiating a loan with the plaintiff, and that this note was given as security for it. When the plaintiff was pressing for payment, it is claimed that he asked if the interest had been paid upon it. If this is correct, it might raise a question in the minds of the jury whether the spaces were not filled at the time the note left defendant’s hands, or whether the filling in of the spaces was not authorized by him. This was a question for the - jury, as we held in the former opinion.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
-32,
28,
47,
9,
-2,
-6,
66,
-48,
-9,
46,
-11,
-1,
6,
-4,
-28,
-26,
18,
-43,
0,
-30,
-64,
-84,
-9,
-8,
-8,
56,
12,
35,
-7,
33,
37,
17,
-24,
29,
-22,
-20,
-7,
-24,
15,
-12,
10,
-22,
38,
39,
-34,
-1,
-49,
-29,
0,
1,
41,
-31,
9,
-4,
-28,
13,
-9,
-21,
-6,
30,
-21,
-54,
19,
-24,
-15,
-25,
-4,
-13,
-31,
-1,
-49,
2,
50,
-20,
-5,
-32,
-55,
12,
-75,
3,
-24,
-13,
-22,
10,
-35,
-22,
-7,
-75,
12,
17,
14,
-1,
-23,
-12,
50,
-5,
-6,
22,
21,
49,
34,
-49,
-17,
9,
-26,
31,
-35,
28,
-37,
1,
4,
-9,
61,
-14,
-56,
-24,
-28,
35,
4,
-30,
-7,
28,
17,
23,
11,
31,
-33,
7,
13,
23,
27,
-36,
-18,
20,
-50,
-12,
24,
-41,
-1,
-16,
16,
8,
2,
-24,
-46,
11,
-14,
1,
-12,
-2,
-51,
-36,
-3,
43,
-1,
-29,
-29,
-38,
19,
-56,
37,
-2,
35,
-57,
13,
18,
4,
19,
57,
-45,
25,
53,
-59,
-23,
-3,
32,
5,
-61,
-13,
-63,
8,
40,
11,
-41,
14,
-25,
-32,
13,
-36,
40,
-10,
-18,
-23,
23,
10,
-6,
-39,
-37,
31,
9,
-28,
-59,
5,
17,
-9,
2,
47,
-16,
-24,
35,
-6,
-12,
-23,
-1,
-29,
-6,
-10,
-60,
-7,
24,
-10,
46,
-12,
8,
-38,
-8,
28,
19,
-35,
6,
-48,
21,
14,
-6,
-17,
7,
12,
32,
11,
27,
-58,
-7,
-29,
-11,
32,
31,
-30,
-4,
-9,
30,
14,
16,
-43,
19,
-28,
8,
0,
-29,
4,
16,
-8,
40,
-29,
-28,
14,
-6,
27,
26,
-1,
0,
35,
-70,
21,
-2,
-45,
-49,
-12,
-20,
-40,
-11,
24,
-22,
-13,
13,
13,
-15,
-28,
44,
32,
-5,
3,
34,
9,
-28,
46,
-12,
6,
15,
-2,
16,
-29,
-26,
-22,
-20,
1,
15,
7,
-32,
-41,
-33,
26,
36,
6,
-43,
50,
-12,
-42,
7,
46,
-15,
11,
7,
-51,
-10,
0,
26,
16,
16,
-27,
23,
-15,
12,
18,
36,
7,
-19,
10,
28,
15,
-45,
31,
0,
-29,
-20,
-22,
23,
-2,
-40,
-21,
-19,
8,
-58,
8,
32,
14,
35,
-15,
-14,
-14,
20,
37,
3,
33,
-39,
29,
-49,
-39,
22,
14,
12,
-13,
-30,
-48,
-2,
-17,
24,
28,
-6,
-16,
36,
12,
-17,
-17,
40,
19,
26,
-33,
-74,
-34,
22,
-59,
26,
-12,
12,
13,
-13,
-18,
-16,
-44,
-6,
26,
20,
74,
7,
-54,
53,
-17,
3,
0,
31,
5,
-15,
-51,
-53,
-8,
6,
18,
-18,
10,
-43,
27,
38,
-14,
-74,
75,
-17,
53,
53,
4,
-16,
-5,
35,
34,
-9,
50,
17,
-40,
13,
12,
15,
21,
28,
-29,
25,
55,
12,
-2,
-41,
0,
58,
41,
1,
4,
49,
18,
17,
17,
-47,
26,
-10,
27,
33,
-43,
58,
17,
29,
7,
-4,
-18,
33,
-12,
9,
17,
-4,
-43,
0,
29,
-4,
0,
1,
23,
-3,
-15,
-4,
9,
-31,
-69,
-54,
-39,
10,
29,
22,
-15,
16,
0,
-20,
-44,
-10,
-66,
13,
-34,
-9,
52,
7,
23,
11,
-31,
-20,
-8,
19,
10,
19,
34,
-2,
12,
8,
33,
-9,
-15,
68,
24,
33,
-43,
-5,
-26,
20,
-18,
34,
-16,
-14,
-26,
-11,
40,
-46,
6,
-9,
10,
14,
5,
37,
-30,
5,
55,
59,
5,
11,
-14,
-22,
-11,
15,
11,
-4,
59,
19,
-32,
3,
86,
19,
12,
-53,
-19,
36,
5,
-25,
69,
-21,
25,
22,
38,
-62,
16,
0,
26,
16,
-65,
12,
-36,
18,
-6,
15,
-12,
-3,
15,
-15,
-31,
-5,
-6,
-15,
-44,
22,
19,
8,
-31,
41,
3,
-8,
-9,
-2,
30,
10,
0,
-41,
-25,
16,
20,
8,
-80,
27,
-3,
-23,
30,
31,
10,
37,
3,
-35,
-1,
-11,
5,
5,
61,
31,
51,
14,
13,
-10,
-56,
9,
-30,
-5,
-17,
-41,
-39,
16,
-17,
12,
0,
70,
-26,
-4,
-5,
-2,
48,
0,
-15,
-2,
-41,
11,
-38,
-9,
11,
34,
59,
-11,
-13,
-19,
63,
43,
9,
1,
13,
17,
-37,
14,
-38,
-5,
54,
-15,
3,
10,
23,
-60,
3,
1,
9,
-2,
-41,
13,
64,
-60,
11,
-3,
23,
68,
16,
-23,
-23,
-19,
-22,
61,
-23,
-3,
-58,
15,
17,
26,
40,
37,
12,
-5,
33,
-1,
50,
2,
-8,
-38,
-23,
32,
34,
-16,
5,
31,
-16,
-29,
2,
20,
-26,
20,
-23,
30,
32,
3,
23,
-8,
-10,
-6,
3,
22,
-26,
-3,
-4,
19,
-25,
0,
-7,
-13,
-13,
-5,
-41,
-20,
-26,
-43,
-29,
-12,
-40,
2,
8,
0,
-25,
-21,
36,
7,
-12,
11,
8,
3,
-10,
-7,
-20,
-54,
-3,
22,
-2,
-20,
-40,
6,
-22,
-19,
-22,
-46,
-20,
0,
10,
39,
37,
23,
50,
12,
29,
-25,
13,
28,
-1,
18,
0,
-16,
7,
25,
18,
80,
-34,
-22,
-4,
-11,
-25,
-33,
15,
2,
1,
18,
-37,
22,
2,
-13,
12,
33,
33,
41,
-17,
17,
-21,
57,
0,
-9,
-12,
21,
-50,
-8,
2,
-8,
-11,
55,
32,
-37,
12,
15,
-50,
12,
-70,
34,
-14,
-39,
-16,
-14,
0,
20,
5,
17,
-31,
-6,
47,
-46,
-30,
22,
35,
-6,
9,
25,
6,
-65,
0,
-4,
-51,
-81,
-50,
-20,
-2,
20,
6,
3,
-24,
-34,
13,
39,
64,
-12,
-40,
-26,
-4,
20,
2,
14,
-28,
13,
3,
64,
58,
-22,
53,
-3,
-13,
-2,
4,
5,
-17,
-20,
0,
-20,
-3,
33,
-22,
-2,
-6,
-67,
7,
-43,
32,
-23,
22,
28,
24,
6,
-21,
6,
10,
-2,
17,
40,
-2,
58,
5,
-14,
-10,
-16,
-11,
-2,
-20,
-29,
9,
4,
11,
15,
2,
-6,
17,
1,
21,
36,
10,
26,
-4,
13,
-62,
-8,
14,
2,
16,
-102,
8,
46,
5,
-8,
10,
46,
-36,
21,
12,
26,
-8,
30,
-38,
-7,
-61,
85,
-30,
-33,
-37,
-41,
20,
-13,
9,
5,
14,
-54,
-22,
-13,
10,
0,
3,
-43,
-28,
-22,
24,
-62,
8,
-13,
46,
-12,
-12,
-45,
42,
-40,
-42,
-8,
21,
29,
-8,
-17,
-16,
28,
18,
-14,
-1,
9,
39,
11,
50,
-1,
8,
-26,
8,
8,
19,
30,
-18,
-47,
27,
13,
-40,
-5,
10,
-3,
73,
38,
35,
15,
49,
-5,
32,
47,
6,
-30,
10,
46
] |
Long, J.
Motion was made in the Ionia circuit court to dismiss an appeal from the allowance of a will by the probate court of that county, on the ground that no personal service was made on James Hosey, one of the heirs at law. It appears that the probate court allowed the appeal, and ordered notice to be given to Frank, Nicholas, James, and Julia Hosey “by delivering to them a certified copy of this order * * * within 30 days from the date of the order.” This notice was personally served on all the parties except James Hosey. The claim of appeal was filed March 25, 1898. On November 7th a motion was made to dismiss the appeal, on the ground, among others, that no sufficient service of notice was made on James. On November 12th proof was filed that the order was sent to James by mail. This proof consists of the affidavit of Elizabeth Abbott, which recites that on April 5, 1898, she “served a true and compared copy .of the annexed notice and order allowing appeal upon James Hosey, * * * by depositing the same in the post-office at the city of Ionia, Michigan, plainly addressed to ‘James Hosey, St. Joseph, Michigan,’ — that being the last place of residence of said James Hosey, — and with full legal postage prepaid.” The court below refused to dismiss the appeal, but made an order granting the parties 30 days’ additional time to make the proper personal service on James Hosey. Mandamus is asked to compel the circuit judge to vacate this order and dismiss the appeal.
The service made was not in compliance with the order of the probate court, which required personal service upon all the parties named. The statute (3 How. Stat. § 6782) requires that:
“Theperson appealing shall procure and file in the circuit court to which the appeal is taken, within thirty days after such appeal is taken, a certified copy of the record or proceedings appealed from, of the notice of and reasons for such appeal, and of the bond on appeal filed in the probate court, and of the order of the probate court directing notice to the adverse party, together with evidence that notice has been given to the adverse party according to the order of the probate court. And in case the record herein required to be filed in the circuit court shall not be filed in such court within the time herein directed, such appeal shall cease to be of effect, and the order or decree so appealed from shall stand as though such appeal had not been taken: * * * Provided, that the circuit court to which the appeal is taken shall have power, upon application within the first ten days of the term of court next succeeding the expiration of the said thirty days for filing said certified copy, to reinstate said appeal, when the party making the appeal has been prevented from perfecting the same by circumstances not under his.control.”
There was no application to reinstate the appeal. Two terms of court had passed from the time the order for the appeal was made before, motion was made to dismiss, and during that time no personal service was made on James Hosey. The statute requiring notice to the adverse party is mandatory, and, until the party is given such notice, the circuit court has no jurisdiction over the parties to the record. Merriman v. Jackson Circuit Judge, 95 Mich. 277. The order made by the probate court required personal service. The notice by mail was not sufficient notice. In McCaslin v. Camp, 26 Mich. 392, it was said:
“There is no rule of court authorizing service b3r mail ,of any papers in cases or upon persons not already before the court, and subject to its complete jurisdiction. There can be no mail service on parties or attorneys who have not appeared generally in the cause before the circuit court, and are not already in court.”
The statute directs that the probate court shall make an order directing the notice to the adverse part3r, but it also requires that proof of the same shall be filed in the circuit court within 30 days after the appeal is taken.
A very different question would have arisen had an application been made to the circuit court for leave to perfect the appeal, and a showing made that the party making it had been prevented from perfecting it by circumstances not under his control; but no claim of that kind is made.
The writ must issue as prayed.
The other Justices concurred. | [
-23,
11,
28,
34,
-12,
36,
4,
-29,
18,
35,
-6,
-38,
-11,
-6,
-66,
-36,
-10,
12,
-28,
-14,
27,
31,
-12,
14,
-32,
-32,
9,
33,
-13,
-33,
11,
17,
-18,
-7,
17,
-14,
17,
-37,
18,
-24,
-10,
3,
0,
21,
-23,
-43,
24,
24,
-12,
19,
-34,
29,
6,
8,
17,
0,
-3,
0,
10,
11,
-20,
-4,
-28,
27,
-22,
45,
-20,
-12,
-48,
-4,
14,
18,
33,
30,
15,
8,
-31,
0,
-5,
17,
14,
-15,
19,
-42,
-4,
8,
-48,
-1,
-10,
16,
-41,
-16,
-52,
6,
-3,
-8,
-23,
8,
-7,
-18,
34,
-4,
27,
-6,
-24,
47,
-21,
8,
-66,
20,
-26,
-44,
56,
-23,
-7,
-6,
-11,
-34,
-9,
10,
14,
1,
64,
-3,
68,
12,
30,
-17,
38,
32,
-5,
49,
21,
-42,
-8,
7,
45,
-41,
1,
-49,
38,
-13,
8,
-27,
-3,
8,
-17,
14,
-5,
-23,
13,
11,
-36,
46,
-15,
30,
40,
-57,
27,
34,
-5,
15,
-5,
-4,
-19,
-11,
-21,
-5,
31,
23,
-15,
-1,
-34,
-12,
3,
-19,
-27,
41,
-3,
4,
50,
15,
25,
-46,
-28,
-44,
-36,
-24,
-21,
-21,
-33,
-32,
26,
-6,
1,
7,
14,
6,
18,
11,
-39,
-48,
18,
7,
11,
-23,
36,
-21,
-24,
-26,
-51,
-12,
-38,
7,
-23,
-3,
7,
-13,
-51,
22,
17,
38,
23,
-11,
15,
-29,
-6,
9,
-34,
34,
9,
36,
-9,
26,
29,
18,
11,
16,
-31,
-4,
-23,
21,
23,
-32,
-20,
26,
6,
51,
13,
20,
2,
-11,
5,
10,
4,
-50,
2,
11,
13,
13,
1,
17,
-61,
-24,
28,
9,
40,
3,
-46,
38,
17,
40,
47,
-50,
19,
-51,
28,
5,
40,
2,
0,
-30,
-48,
-1,
-6,
20,
-43,
-26,
5,
64,
-27,
-3,
-28,
44,
28,
15,
-12,
-15,
-21,
-20,
32,
39,
0,
-4,
12,
12,
-37,
-39,
-29,
-51,
18,
59,
-9,
24,
29,
-10,
-40,
-7,
-38,
2,
-44,
-10,
-32,
20,
12,
24,
-7,
41,
10,
20,
-2,
-11,
-20,
-63,
-14,
29,
14,
4,
0,
-30,
-19,
26,
-1,
52,
-40,
-28,
32,
-32,
57,
17,
-37,
-3,
4,
24,
-27,
29,
20,
-26,
-39,
122,
2,
10,
0,
1,
19,
13,
-13,
54,
35,
-45,
0,
-13,
-18,
-17,
10,
-20,
-57,
-6,
0,
10,
-30,
-45,
0,
21,
10,
-42,
-45,
29,
-33,
9,
-12,
36,
1,
-34,
6,
14,
-2,
-16,
-28,
21,
19,
18,
-31,
21,
-19,
42,
-68,
40,
1,
8,
71,
3,
31,
27,
3,
-50,
31,
-6,
58,
-25,
34,
20,
17,
-6,
24,
-37,
-8,
46,
28,
9,
26,
46,
53,
15,
33,
81,
17,
-37,
-55,
33,
-49,
0,
14,
17,
-47,
-30,
17,
-76,
-20,
-35,
-1,
58,
-5,
-9,
21,
-11,
45,
31,
3,
11,
55,
12,
-41,
44,
-27,
24,
4,
17,
34,
-34,
-49,
21,
-15,
-22,
-45,
-29,
22,
-23,
-8,
-11,
24,
8,
-14,
18,
67,
0,
-30,
-43,
-14,
-21,
-19,
-1,
-69,
-5,
-21,
-3,
-40,
-49,
-6,
-23,
23,
8,
52,
46,
3,
-47,
-4,
30,
8,
-7,
36,
-4,
17,
16,
-12,
32,
35,
-2,
19,
-52,
21,
-3,
-30,
24,
11,
24,
12,
9,
-1,
36,
-1,
-2,
25,
-2,
-32,
-46,
-14,
-8,
-28,
-6,
30,
10,
0,
28,
-34,
8,
-1,
4,
-1,
-25,
0,
-8,
-60,
-21,
17,
-29,
-4,
-31,
22,
-3,
25,
-20,
32,
-58,
-12,
-36,
-33,
7,
-34,
-29,
15,
25,
40,
-14,
20,
47,
28,
-30,
1,
-19,
1,
23,
23,
-34,
18,
-30,
-19,
-36,
-6,
15,
-40,
52,
19,
-16,
34,
-5,
-19,
-19,
33,
30,
-6,
-12,
31,
24,
21,
37,
-12,
-11,
14,
14,
6,
19,
-62,
6,
-49,
-5,
-36,
-51,
62,
-7,
-11,
2,
28,
42,
3,
-35,
34,
10,
-44,
41,
-6,
0,
-6,
5,
13,
20,
-12,
30,
9,
-48,
15,
24,
6,
-39,
18,
-25,
9,
-42,
20,
-4,
1,
28,
17,
-27,
-30,
9,
40,
17,
40,
0,
48,
-31,
-25,
35,
-45,
26,
40,
25,
50,
32,
18,
-9,
-43,
-28,
-50,
-45,
20,
-29,
39,
12,
-20,
-15,
42,
-6,
9,
16,
29,
37,
-32,
6,
-5,
31,
-22,
27,
-2,
-2,
-4,
62,
44,
3,
0,
20,
13,
34,
-55,
-3,
-3,
-29,
23,
-67,
-71,
14,
25,
9,
6,
-28,
47,
-5,
25,
-24,
8,
-9,
-46,
0,
37,
41,
-10,
0,
-21,
-22,
-25,
1,
0,
-3,
-33,
-27,
-9,
-47,
-61,
29,
-7,
-37,
21,
-32,
12,
21,
27,
-13,
13,
1,
54,
-6,
4,
38,
67,
-8,
-4,
5,
-9,
-38,
22,
-20,
15,
-3,
-31,
33,
21,
54,
-22,
-30,
6,
-29,
42,
9,
1,
5,
36,
-1,
69,
-29,
-8,
10,
-23,
16,
42,
-36,
-7,
-13,
11,
22,
-30,
-59,
-51,
-18,
-6,
36,
-13,
-56,
25,
-16,
20,
18,
7,
17,
-10,
8,
-21,
48,
-49,
18,
27,
32,
-5,
-29,
-28,
-18,
-26,
13,
-16,
-1,
3,
17,
7,
51,
-51,
-20,
13,
29,
8,
44,
-3,
-66,
28,
-37,
-12,
8,
8,
17,
-12,
-27,
-34,
-36,
-12,
21,
31,
32,
27,
-21,
24,
22,
-18,
-9,
-53,
-1,
-1,
-59,
15,
-76,
-6,
-5,
38,
55,
19,
-40,
-6,
-9,
13,
-28,
37,
7,
2,
-50,
-49,
-71,
-44,
-23,
44,
-42,
4,
53,
-46,
-16,
37,
-8,
-18,
-11,
4,
-9,
-17,
38,
3,
-10,
-30,
4,
-10,
11,
-4,
-13,
24,
-10,
-21,
-72,
16,
-8,
12,
-29,
-20,
1,
22,
24,
14,
-12,
-22,
-42,
10,
-14,
-32,
25,
2,
-15,
2,
-3,
-19,
-23,
24,
35,
40,
-10,
-7,
18,
25,
-11,
-25,
-28,
34,
-71,
30,
-53,
26,
0,
15,
34,
-49,
2,
-18,
69,
47,
-7,
-1,
39,
-32,
-61,
-14,
23,
-35,
11,
-18,
-23,
-11,
44,
8,
-1,
25,
20,
7,
20,
3,
7,
14,
-32,
-51,
8,
16,
-29,
1,
-19,
41,
-12,
8,
-2,
-15,
-65,
-72,
-8,
33,
-4,
21,
-9,
-60,
-29,
31,
-14,
28,
-43,
50,
15,
0,
32,
-41,
18,
60,
31,
15,
32,
33,
-21,
26,
15,
-34,
3,
-23,
9,
0,
43,
-4,
10,
16,
-22,
-12,
57,
14,
-81,
-21,
2
] |
Long, J.
This appeal is taken by Henry P. McDonnell, John J. McDonnell, Nelson K. Riddle, and Patrick H. Monahan, four of the defendants, from a decree in a foreclosure case. The other four defendants in the bill are their respective wives.' The bill prays:
“And that the said above-named defendants herein pay ■to your orator any balance that shall remain due to your orator of the principal and interest of said note and indenture of mortgage, if the sale of said mortgaged premises as aforesaid fail to produce sufficient to pay the whole of said mortgage debt and the costs of this suit, and that in such case your orator have execution for the collection of such balance, and the costs thereon, according to the rules and practice of this court.”
The mortgage in suit was accompanied by a promissory note signed by all the defendants. This note is set out in the bill as follows:
“$13,000.00. Detroit, Mich., April 1, 1895.
“For value received, we severally and jointly promise to pay to the order of David W. Simons the principal sum of thirteen thousand dollars ($13,000.00) on or before the 20th day of January in the year nineteen hundred and two, without grace, with interest at the rate of six per cent, per annum from January 20, 1895, payable on the 20th day of July next and semi-annually thereafter until .the whole of said principal sum is paid,” etc.
The decree of sale recites that:
“ There is due to the complainant at this date upon the note and mortgage mentioned and set forth in the bill of complaint, for principal and interest, the sum of fifteen thousand seven hundred and six dollars and fifty-six cents; and that the said defendants, Henry P. McDonnell, John J. McDonnell, Nelson K..Riddle, and Patrick H. Monahan, are personally liable for the payment thereof,” etc.
It is contended that the decree finds that the four defendants who bring this appeal are personally liable for the whole amount of the mortgage debt, and therefore for any unpaid balance remaining after the sale of the property to satisfy the mortgage. It is therefore contended:
1. That, under the pleadings, the court had no jurisdiction to enter a personal decree at any time.
2. That the personal liability of the defendants could not be established, at any rate, in the original decree of foreclosure'and sale.
3. That, inasmuch as the complainant asked the court to decree that all the defendants pay any balance remaining unpaid upon the sale, the court had no power to enter a decree against any number of the defendants less than all.
We think the averments of the bill as above set out are sufficient to warrant the decree made. The defendants were the mortgagors. The note was signed by all of them, and accompanied the- mortgage. The decree fixed the amount due on the note and mortgage. The decree necessarily involved the determination of the amount due. Haldane v. Sweet, 58 Mich. 431. This the court found to be, by the decree, $15,706.56. The defendants had the right in this proceeding to show that the amount was less, or that there was no personal liability on their part to pay it. These questions are always open in the foreclosure proceedings. Ransom v. Sutherland, 46 Mich. 492; Wallace v. Field, 56 Mich. 3.
Counsel for defendants cite section 6702, 2 How. Stat., and claim that under it the court had no power to establish the liability for any balance until on the coming in of the report of sale, and that the court had no authority to enter a decree for deficiency until it should be ascertained that there would be a deficiency. The decree does not direct the payment of any unpaid balance after sale. It simply determines the amount due from the mortgagors on the note and mortgage, and that the defendants named are personally liable for the amount. It is true that in Vaughan v. Black, 63 Mich. 215, it was held that the personal liability of a party collaterally liable for the payment of a debt secured by a mortgage on real estate could not be absolutely fixed in the original decree of foreclosure. But that is not this case. Here the parties were the mortgagors, and had made the note accompanying the mortgage.
It appears that the wives of the parties appealing had no rights in the property, other than dower, and that they signed the mortgage for the purpose of waiving their dower rights: The court found very properly that they
were not liable on the note. It was the note of the husbands, and no personal decree could be rendered against the wives.
The decree of the court below must be affirmed.
The other Justices concurred. | [
-12,
22,
-1,
23,
2,
34,
32,
6,
13,
0,
28,
-2,
-15,
-18,
-34,
-36,
6,
-31,
-10,
6,
-72,
-24,
-26,
0,
16,
-17,
86,
0,
38,
13,
27,
-27,
-7,
39,
-12,
-8,
36,
-31,
21,
15,
21,
13,
23,
6,
-51,
-14,
25,
-56,
4,
13,
-24,
-16,
29,
2,
12,
-13,
-35,
20,
-6,
-17,
-26,
-34,
8,
13,
-77,
-19,
33,
1,
20,
-29,
7,
38,
61,
-53,
36,
-13,
-11,
-64,
-56,
-26,
-28,
-48,
9,
-38,
-7,
-17,
21,
-31,
-42,
36,
-32,
66,
-32,
-16,
-1,
11,
43,
58,
10,
40,
-33,
-20,
-26,
44,
30,
17,
-55,
-41,
-25,
21,
20,
-11,
38,
-25,
-48,
-48,
-17,
0,
-13,
-8,
0,
28,
8,
-57,
3,
32,
-29,
-32,
-22,
20,
30,
27,
-42,
21,
-28,
2,
-6,
-28,
37,
9,
18,
-31,
-55,
-70,
-10,
20,
-19,
-27,
17,
-5,
15,
-5,
-34,
59,
-8,
-30,
-15,
-18,
-9,
18,
71,
-59,
14,
-40,
27,
-11,
-50,
17,
25,
1,
45,
9,
-42,
-13,
-6,
-19,
30,
-63,
-14,
-41,
27,
46,
12,
0,
13,
-14,
-72,
25,
-22,
-38,
30,
-17,
-8,
-8,
-17,
7,
1,
-13,
21,
56,
-7,
-39,
9,
-6,
21,
-18,
29,
2,
-6,
-43,
-38,
13,
-6,
22,
-79,
3,
26,
-75,
-10,
-25,
-4,
48,
-72,
-36,
-16,
-44,
-14,
11,
1,
43,
-6,
-18,
-8,
36,
-30,
32,
23,
17,
11,
16,
-32,
16,
0,
-60,
-12,
70,
-8,
17,
-26,
-5,
-7,
42,
16,
21,
20,
41,
13,
-28,
-19,
-5,
37,
29,
-51,
30,
14,
5,
-6,
0,
-6,
44,
16,
-26,
13,
44,
27,
15,
-12,
30,
-51,
-35,
4,
0,
-9,
0,
-12,
22,
-18,
2,
-1,
22,
25,
-23,
-11,
17,
16,
17,
-32,
-19,
17,
49,
21,
-25,
67,
0,
-15,
2,
24,
-5,
3,
-27,
3,
37,
13,
-13,
75,
20,
-60,
26,
24,
14,
48,
3,
11,
11,
64,
-22,
48,
8,
-46,
16,
39,
-18,
18,
-12,
11,
24,
13,
27,
-6,
21,
5,
42,
-3,
-7,
8,
-3,
-13,
-19,
-20,
89,
-40,
18,
-49,
61,
38,
-25,
6,
0,
-44,
59,
35,
23,
-30,
-42,
-18,
-3,
-29,
-54,
7,
41,
4,
52,
-42,
-23,
-62,
27,
-35,
9,
-70,
49,
-1,
7,
20,
28,
43,
-25,
-25,
-13,
7,
4,
-24,
-22,
3,
2,
39,
-23,
-14,
-21,
-54,
-25,
-18,
-17,
1,
18,
-60,
52,
-32,
8,
-18,
39,
4,
2,
10,
-5,
-42,
30,
24,
-22,
59,
-13,
27,
3,
41,
-28,
43,
-35,
23,
0,
1,
32,
-17,
11,
6,
-33,
29,
33,
-23,
-1,
-8,
14,
9,
25,
0,
21,
56,
-31,
-35,
-78,
24,
45,
-10,
-12,
10,
15,
-34,
3,
14,
-52,
39,
-14,
39,
-29,
-12,
26,
4,
-14,
-2,
34,
-19,
-19,
-49,
-26,
63,
0,
-16,
9,
27,
11,
-19,
0,
-5,
0,
1,
-22,
-14,
-30,
-45,
-47,
-46,
-33,
40,
-1,
-4,
11,
52,
-48,
-9,
-41,
-21,
15,
13,
45,
42,
36,
-18,
-9,
-21,
-21,
61,
48,
-38,
-16,
11,
49,
-20,
15,
19,
-12,
51,
18,
41,
9,
-72,
-8,
-30,
-27,
-6,
2,
-6,
4,
-16,
9,
2,
8,
-27,
20,
9,
18,
25,
-1,
-37,
30,
12,
83,
30,
46,
-18,
15,
10,
2,
47,
-48,
35,
74,
-6,
20,
8,
-14,
32,
-5,
11,
5,
50,
-20,
12,
-21,
32,
-32,
-2,
-7,
-32,
19,
-19,
12,
7,
-40,
-36,
-9,
-1,
14,
-16,
5,
-20,
-63,
31,
-22,
16,
3,
-28,
-15,
14,
46,
-23,
21,
-9,
-59,
21,
17,
46,
50,
-44,
-14,
-12,
-42,
-13,
-2,
-29,
-5,
1,
-8,
34,
8,
8,
15,
-2,
-30,
-24,
-24,
-6,
-20,
13,
24,
23,
0,
4,
-11,
25,
0,
-66,
8,
7,
-10,
-9,
1,
-22,
36,
-24,
13,
17,
-28,
-50,
15,
-38,
14,
-9,
0,
-15,
33,
43,
-12,
-14,
12,
51,
-5,
22,
-54,
0,
-3,
9,
2,
22,
-41,
-4,
16,
-16,
-4,
31,
2,
14,
21,
6,
-3,
27,
35,
27,
6,
-55,
19,
-1,
-17,
0,
-28,
-9,
25,
6,
1,
-44,
-45,
-4,
36,
-4,
14,
-22,
-17,
-12,
38,
48,
73,
13,
19,
38,
-46,
38,
21,
-16,
24,
-25,
6,
5,
-51,
5,
3,
-21,
-42,
30,
-4,
20,
-29,
-3,
0,
12,
-35,
10,
-32,
-7,
-9,
-14,
-21,
-14,
35,
-14,
-19,
-1,
18,
-17,
18,
-11,
0,
-19,
-13,
-34,
-33,
5,
-37,
48,
0,
-52,
17,
7,
-9,
21,
-3,
15,
-14,
2,
-2,
-53,
-42,
-20,
-5,
-18,
-3,
-12,
48,
20,
-4,
-1,
0,
9,
-47,
-39,
0,
-20,
2,
35,
-29,
46,
-27,
46,
-25,
-1,
-1,
8,
-7,
16,
-18,
25,
-18,
7,
22,
0,
-13,
-60,
-4,
-41,
17,
-7,
-4,
-8,
-20,
-2,
3,
21,
-41,
38,
23,
-37,
6,
-12,
14,
0,
-52,
-44,
-7,
-39,
38,
-20,
5,
18,
0,
-17,
40,
28,
11,
27,
25,
-29,
40,
-24,
44,
22,
-70,
-39,
31,
37,
-4,
27,
6,
16,
-27,
-36,
-59,
-22,
22,
19,
28,
-33,
37,
-25,
-31,
-20,
-18,
-40,
14,
-19,
-47,
2,
33,
8,
-55,
47,
-2,
1,
37,
-16,
-12,
-29,
-6,
40,
23,
-7,
-13,
-37,
8,
18,
31,
63,
-27,
15,
-4,
-23,
-6,
-42,
16,
-5,
47,
-8,
-18,
-84,
35,
3,
13,
-12,
-6,
4,
2,
-18,
-43,
4,
-11,
-4,
-40,
6,
-26,
27,
43,
-1,
62,
-1,
41,
42,
-21,
11,
-46,
-21,
62,
42,
-26,
-10,
-1,
-25,
21,
-42,
-2,
24,
-39,
45,
-16,
-6,
16,
6,
4,
-15,
16,
-13,
-63,
21,
-24,
34,
-15,
-5,
14,
14,
6,
-14,
37,
22,
-43,
-23,
10,
-72,
-10,
21,
35,
23,
32,
-34,
-32,
-16,
-11,
-46,
3,
37,
-25,
21,
0,
-5,
-2,
-15,
-45,
-30,
-15,
0,
-63,
-48,
6,
21,
-15,
-9,
4,
24,
-10,
1,
23,
16,
-13,
3,
-42,
-39,
2,
22,
26,
41,
14,
6,
-37,
-4,
16,
17,
-13,
41,
7,
22,
-4,
6,
-40,
-2,
50,
22,
-11,
-20,
0,
50,
81,
-7,
11,
16,
1,
6,
16,
47,
4,
-11,
28
] |
Hooker, J.
This case involves a question of fact. The complainant exchanged a farm for other real estate. His deed contained a clause which, according to the complainant’s contention, reads as follows, viz.: “Excepting the right of possession of the above-described property until April 1, 1897, and the right to gather the crops sown in the fall of 1896.” The defendants insist that the word “sown ” should be read “ I own.” The defendants refused to permit complainant or his tenant to care for or harvest the wheat and rye growing on the land in the spring of 1897, and this bill was filed to restrain them from preventing such care and removal, and from causing it to be removed theihselves. A demurrer was interposed and overruled. No appeal from this order was taken, and subsequently the bill was amended, and the case went to hearing upon proofs taken in open court. A decree was entered in favor of the complainant, and the defendants have appealed.
■ It would subserve no useful purpose to reiterate the testimony. We are of the opinion that the agreement between the parties was as the complainant contends, and that the deed should be construed to read “sown,” instead of “I own.” As the complainant has secured the grain, it is only necessary to add that the decree is affirmed, with costs.
The other Justices concurred. | [
17,
-18,
25,
-10,
-7,
13,
69,
12,
28,
40,
-5,
-18,
36,
31,
15,
-18,
5,
-22,
-53,
63,
-10,
8,
-5,
33,
37,
-49,
13,
-26,
-8,
35,
-1,
24,
-10,
44,
0,
-26,
-2,
18,
5,
7,
24,
-17,
14,
-64,
30,
-8,
6,
-40,
-14,
-13,
23,
-40,
-3,
-34,
-3,
13,
-51,
2,
-66,
33,
-21,
-3,
-34,
24,
-8,
41,
-12,
-6,
-1,
-89,
-23,
15,
-23,
-68,
45,
-15,
34,
17,
-26,
2,
13,
-2,
19,
-50,
-15,
0,
12,
-45,
24,
-16,
-46,
-41,
-19,
-17,
6,
82,
26,
47,
7,
20,
-19,
0,
-42,
-9,
34,
-17,
-78,
-2,
-42,
39,
-23,
-4,
27,
-29,
26,
-5,
-62,
17,
-48,
-37,
-11,
-3,
14,
-2,
0,
6,
-93,
-2,
-3,
0,
-6,
-50,
-25,
-7,
11,
33,
16,
-33,
2,
-52,
4,
-18,
-29,
-45,
31,
-23,
16,
4,
-28,
-23,
-11,
38,
-21,
-4,
23,
-33,
27,
-25,
19,
-27,
9,
-5,
-4,
-22,
1,
28,
-11,
-29,
-47,
29,
21,
19,
-41,
10,
26,
-18,
27,
41,
-19,
-21,
-3,
7,
-46,
-20,
-19,
5,
-6,
25,
1,
6,
-14,
-40,
18,
-41,
25,
17,
-10,
0,
33,
27,
-18,
12,
16,
13,
25,
-48,
47,
-18,
-62,
13,
-54,
-29,
-22,
-13,
17,
16,
-6,
-2,
-17,
17,
20,
47,
4,
-45,
-19,
-11,
15,
16,
48,
13,
-26,
-10,
30,
33,
-19,
-21,
-6,
21,
19,
20,
-23,
-5,
-30,
-24,
2,
37,
13,
25,
31,
10,
26,
-32,
25,
28,
-9,
-45,
-49,
-15,
-13,
-69,
20,
36,
26,
-2,
36,
-32,
-12,
10,
-2,
18,
21,
17,
33,
45,
-45,
-46,
-60,
-38,
-4,
-36,
27,
22,
0,
15,
-39,
-27,
27,
18,
-20,
9,
32,
-43,
-45,
-21,
5,
27,
-55,
7,
17,
-3,
-31,
-47,
-2,
9,
35,
-50,
17,
-9,
73,
-36,
-28,
9,
-14,
2,
-36,
-23,
9,
-3,
-20,
-3,
-32,
-9,
36,
17,
30,
7,
36,
-52,
-7,
55,
-18,
-16,
-2,
31,
23,
15,
6,
4,
-35,
-5,
59,
65,
-3,
-3,
36,
29,
-25,
28,
39,
14,
29,
30,
-22,
25,
-23,
-18,
-5,
0,
-18,
23,
39,
-3,
-35,
-4,
6,
7,
-32,
-50,
0,
-7,
-16,
22,
38,
16,
-16,
8,
21,
-7,
0,
20,
29,
-5,
7,
5,
55,
31,
-50,
33,
10,
-6,
-17,
-16,
20,
37,
29,
5,
-2,
-41,
-34,
-23,
-8,
0,
-13,
-12,
-8,
18,
13,
-38,
-28,
2,
18,
9,
-9,
0,
-21,
24,
3,
-13,
58,
6,
16,
7,
2,
-19,
-13,
14,
32,
-10,
-41,
22,
-9,
-8,
-12,
-10,
26,
29,
-2,
-9,
-7,
48,
-16,
14,
-8,
-4,
-25,
1,
-5,
-23,
10,
-49,
55,
-6,
-33,
6,
5,
44,
47,
-11,
16,
-45,
-7,
17,
-4,
4,
-3,
-27,
-10,
-50,
28,
-27,
-7,
26,
69,
27,
23,
26,
7,
22,
-45,
18,
0,
-26,
44,
8,
21,
-67,
-25,
38,
-1,
7,
24,
-16,
49,
0,
0,
-37,
34,
-35,
15,
25,
26,
-2,
32,
-32,
47,
0,
-27,
-24,
74,
69,
-3,
-35,
35,
-19,
-8,
39,
6,
-32,
49,
-6,
-28,
-61,
-31,
-46,
-25,
-20,
48,
12,
3,
-36,
17,
44,
-23,
-39,
23,
-33,
-4,
14,
22,
-44,
-49,
20,
68,
37,
-33,
20,
23,
-82,
-42,
32,
-8,
-45,
-10,
19,
-8,
26,
-24,
-14,
-7,
-10,
-25,
6,
-11,
-19,
23,
-45,
28,
13,
-19,
48,
-20,
-46,
42,
28,
1,
-66,
-32,
-52,
33,
41,
-45,
9,
3,
-47,
4,
-16,
-48,
-12,
8,
-10,
-19,
11,
-23,
-39,
-33,
-22,
-3,
24,
-34,
27,
-13,
19,
-65,
-19,
-11,
-6,
13,
32,
-10,
35,
-27,
42,
21,
42,
-9,
20,
30,
-35,
30,
-23,
-10,
8,
-46,
-28,
0,
-44,
0,
8,
32,
19,
-20,
-57,
0,
2,
-34,
-2,
17,
23,
-23,
7,
-4,
-43,
-58,
7,
1,
62,
2,
10,
-8,
-15,
-31,
21,
9,
-29,
11,
15,
-6,
-46,
9,
2,
55,
-50,
8,
19,
0,
-9,
25,
10,
-6,
21,
67,
-29,
57,
22,
84,
-21,
20,
37,
53,
7,
-14,
-31,
43,
4,
39,
-1,
13,
-15,
12,
2,
24,
-36,
27,
47,
7,
-15,
45,
2,
7,
40,
19,
64,
31,
24,
29,
-11,
-40,
-12,
42,
-33,
56,
-25,
25,
-9,
8,
-11,
18,
-1,
3,
-21,
-8,
21,
27,
-53,
-33,
-10,
-20,
-7,
0,
38,
-6,
-13,
21,
2,
-25,
41,
-8,
-18,
62,
-47,
-11,
0,
-18,
25,
-58,
12,
7,
10,
-30,
37,
24,
-45,
-27,
14,
-30,
-39,
-49,
-9,
-36,
-53,
45,
16,
-20,
1,
2,
-14,
-14,
-74,
18,
0,
-19,
-1,
-25,
-19,
41,
19,
-23,
12,
-10,
-30,
-8,
-46,
11,
-16,
-4,
-11,
11,
10,
51,
13,
15,
19,
1,
-51,
-20,
30,
-11,
-14,
-5,
-34,
-6,
-14,
-18,
5,
0,
-4,
11,
19,
-29,
0,
15,
-16,
-22,
-27,
-44,
-5,
21,
49,
29,
22,
-7,
29,
12,
-17,
0,
6,
41,
15,
8,
19,
60,
-55,
2,
39,
22,
-34,
-29,
7,
-47,
13,
-46,
-1,
30,
-15,
39,
37,
4,
34,
0,
-29,
-18,
-29,
-12,
51,
15,
-13,
-23,
-4,
-19,
15,
25,
-4,
27,
8,
40,
-51,
1,
23,
0,
14,
7,
4,
-2,
-8,
-3,
-25,
-18,
-20,
24,
-24,
-34,
23,
-42,
49,
-35,
18,
-26,
-31,
24,
-9,
20,
-1,
-6,
17,
54,
3,
3,
-72,
26,
-8,
-61,
3,
7,
18,
-37,
-7,
15,
20,
33,
-5,
14,
-52,
-39,
-34,
-38,
24,
-4,
-27,
-19,
4,
23,
23,
-12,
16,
12,
-26,
13,
21,
-5,
35,
-2,
-4,
1,
-26,
4,
-9,
5,
0,
25,
3,
37,
1,
45,
14,
-37,
1,
22,
-2,
34,
-5,
-37,
26,
34,
11,
0,
7,
-46,
-11,
-28,
59,
-30,
17,
-24,
-53,
14,
4,
2,
52,
-49,
-37,
18,
-24,
-5,
-10,
53,
18,
26,
68,
12,
18,
18,
-52,
-65,
31,
-19,
14,
0,
-53,
-32,
-14,
3,
84,
19,
27,
-2,
4,
-56,
-13,
4,
7,
-9,
-13,
-27,
24,
-12,
0,
48,
21,
-42,
-46,
-59,
-3,
-18,
59,
17,
23,
0,
47,
-17,
-1,
20,
-19,
6,
33
] |
Long, J.
This is an action on the case to recover damages for the depreciation of the rental value of plaintiff’s property by the action of the city in constructing a bridge on the highway in front of such premises over the Michigan Central Eailroad tracks. The plaintiff is, and has been for many years, the owner of several lots, upon which houses have been constructed, fronting upon Fourteenth avenue, in the city of Detroit, conforming to the grade of the street, and from which he had received large amounts of rent, l'n 1875 the defendant erected a bridge over the Michigan Central Railroad tracks, which cross Fourteenth avenue adjoining the plaintiff’s premises. This bridge takes up the entire width of the street, except about five feet on each side, thus depriving the property of the benefits of the street as a street. The approaches to the bridge, which are immediately in front of the plaintiff’s premises, are built of stone, iron, and earth, and vary from 10 to 40 feet in height. This bridge and its approaches have remained in this condition continuously since its erection, in 1875. It is admitted by the defendant that the erection of the bridge caused some damage to the plaintiff’s property, but it is contended: (1) That there was never any liability whatever on the part of the city for damages occasioned by the erection of the bridge; (2) that, if there ever was any liability, the claim is barred by the statute of limitations. The court below concurred in these views, and directed the verdict in favor of defendant.
We cannot concur in either of these contentions. Since the decision of this court in Schneider v. City of Detroit, 72 Mich. 240 (2 L. R. A. 54), we have always supposed tfiat the question of such liability was settled in this State. The charter provisions considered were similar to those in force in 1875, when this bridge was constructed. The facts in that case were identical with the present, but the question of the statute of limitations was not involved. The inquiry there was whether the common council of the city of Detroit had authority to construct the bridge over the railroad tracks; and it was conceded by Mr. Justice Champlin, who wrote the opinion, that, if the authority to build the bridge existed, — all the proceedings having been regular, and the bridge and approaches having been erected according to plans adopted,- — -the city would not be liable. The charter of the city under which the council claimed the right to construct the bridge provided that it (the council) should have power to establish, widen, and extend streets and avenues in the city, and to grade, pave, repair, and otherwise improve the streets and highways. Section 33, chap. 7, Act No. 326, Local Acts 1883. The only section of the charter (section 38 of the same chapter) which then conferred in express terms upon the council the authority to erect a bridge in the street restricted that authority to the purpose of sewerage or drainage, and, as Mr. Justice Champlin th,ere said, “ did not extend to the purpose of securing a safe crossing of a railroad track by erecting a bridge in the street.” He said further:
“Is the authority implied from the section conferring power to grade, improve, or extend streets? * * * I do not think it is either expressly given or necessarily implied by the terms of the charter. The construction of bridges over railroads is not the ordinary or usual method of grading streets. The exercise of the power to erect such bridges in streets would necessarily involve quite an amount of abutting property in damage, and some entirely in destruction, for any beneficial use or enjoyment. Such consequences cannot be brought under the general power to grade streets, but must be provided for under the power of eminent domain. Private property cannot be appropriated for the public use without the necessity therefor is first determined by a jury under our Constitution, and compensation awarded and paid. Doubtless the method of crossing a railroad by a viaduct is safer than a crossing at grade, and upon streets which are recognized thorough; fares, over which the public are almost constantly passing, such bridges would greatly conduce to the public safety and convenience, and it would be wise for the legislature to confer upon municipalities the authority to erect such structures in the streets, and condemn private property for that purpose, if necessary; but, until this is done by special enactment, I do not think it can be done under the power now conferred by the general authority to grade, make, repair, and improve streets. It follows that the city authorities had no right to erect the bridge in the street in question so as to injure plaintiff in the usual and ordinary enjoyment of his property, and the city is liable to him for the injury for which he has complained in damages.”
The writer of the present opinion concurred with Justice Champlin. Mr. Justice Campbell said in the case:
“I agree in the result arrived at by my Brother Champlin. But I have no doubt the city may build bridges where necessary for a safe passage, subject always to the payment of damages when it injures private property, as was done here.”
These views were concurred in by Justices Sherwood and Morse.
The learned counsel for the defendant in the present case seem to have entirely misconceived what Mr. Justice Campbell had in mind in adding what he did to the opinion. He agreed in the result, — that is, agreed that the city was liable for the damages sustained by the plaintiff, —and undoubtedly agreed also to the proposition that the charter provisions were not broad enough to warrant the action, and consequently the power, if it existed, must necessarily come from the right of eminent domain; that, this right not having been exercised, the city had acted without authority, and was a wrong-doer, and must respond in damages. But the learned counsel for the defendant say that- — .
“Mr. Justice Campbell must have had in mind the damages following a direct injury, such as was sustained ' by the plaintiff in Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552), and not damages for incidental injury caused by changing the grade of a street or erecting a necessary bridge.”
The views expressed by Mr. Justice Campbell must be read in the light'of the questions there involved, and the result which Mr. Justice Champlin reached, in which all the members of the court concurred.
Even if the city, in the present case, had been clothed with the power to construct this bridge by right of eminent domain, no such proceedings having been taken, it would be held liable for damages to abutting property. Hoffman v. Railroad Co., 114 Mich. 316. In 1893 an act was passed by the legislature with special reference to proceedings for the separation of grades. Act No. 92, Pub. Acts 1893. In the case of Harper v. City of Detroit, 110 Mich. 427, it appeared that the action was brought to recover damages to abutting property in the construction of a bridge by the city over certain railroad tracks. No proceedings had been taken under the act of 1893 to condemn the property and fix the damages. It was held that proceedings should have been taken under this act, which was intended for the protection of owners of - property upon highways and streets; and that, .such proceedings not having been taken, the city was liable in damages.
We not only think the case of Schneider v. City of Detroit settles the question in favor of plaintiff’s contention, but that upon principle the city must be held to respond in damages to abutting property owners. The city has the undoubted right to establish and change the grades of streets, and to make use of them for the common and ordinary purposes for which they were intended; but it has no more right to destroy the use and enjoyment of the abutting property, for the benefit of a railroad company, and without compensation, than a railroad company would have under like circumstances; and in such cases, where damage is by injury aside from actual taking of property, the rule is to make the party whole as far as practicable.
But counsel for defendant contend that the action is barred by the statute of limitations. The action was brought to recover for injuries sustained by the maintenance of the bridge during the period of 3-J- years previous to the commencement of suit. The position of the plaintiff is that the maintenance of the bridge is a continuing wrongs or nuisance, and that, though the right of recovery for the original erection of the bridge has been lost by the lapse of time, yet the right to recover for the injury done during the last six years remains. On the other hand, counsel for defendant contend that the bridge in question is a permanent structure, and the injury to the plaintiff, if any,— past, present, and future, — was ascertainable and complete as soon as the bridge was completed.
There are some authorities which "seem to sustain the contention of counsel for defendant. In Town of Troy v. Railway Co., 23 N. H. 83 (55 Am. Dec. 177), the rule was laid down that, whenever the nuisance is of such a permanent character that it will continue without change from any cause but human labor, the damage is original, and may at once be compensated; and that, therefore, no future action can be maintained as for a continuing nuisance. This rule has been followed in' some of the other States, but it has been criticised and repudiated by most of the courts of this country. It has never been the rule in this State.
In Hoffman v. Railroad Co., supra, the question was squarely presented. There counsel for the railroad company claimed that a railroad, when once constructed, is of such a permanent character that it is to be presumed that it will remain permanently, and that whatever damages were done to the premises were done in 1880, and the owner of the abutting property was not only entitled to recover the damages which had then accrued, but for all that might thereafter accrue. The action was brought for damage to the abutting property in the reduction or diminution of its rental value for the six years prior to bringing the suit, on May 16, 1894. There had been no condemnation proceedings, and this court quoted with approval the following language from Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393:
“There is no reason, and, so far as we can discover, no law, which allows the wrong-doer to cast any portion of an actual and appreciable loss on the party whom he injures. In such a case as this, it is in the power of the company, and always has been, to have the compensation settled once for all, and to get any benefit which the law attaches to such a method of ascertainment. Until this is done, the possession is a continuous wrong, for which, as intimated in our former decision, the amount accruing year by year is recoverable.”
The plaintiff recovered her damages for the six-years rental prior to the commencement of suit. The judgment was affirmed, and it was said, “We think the principle announced by the court in the Heisel Case should control this case.”
Not only is this the rule as settled in this State, but the same general rule obtains in most of the States. In the recent case of City of Chattanooga v. Dowling, 101 Tenn. 342, the supreme court of Tennessee had before it the like question. The court said:
“The question here presented is, Conceding the liability of the city to suit for the injury complained of, should all the damages have been recovered in one action by the injured party, or can he maintain successive suits until the nuisance is abated ? * * * To hold that for such a nuisance the injured party could have only one action, in which he must recover all his damages, past and prospective, would not only be to assume that the wrong-doer will always persist in his misconduct, but would be in effect to give him a license to continue in it. The courts will do neither.”
Uline v. Railroad Co., 101 N. Y. 98 (54 Am. Rep. 661), was an action for damages occasioned by the unlawful maintenance of a railroad in front'of plaintiff’s premises, the grade being raised, etc. The road was built 40 years before the action was commenced. Two extra tracks were laid in 1874. Suit was brought in 1883. The case is in every respect like Hoffman v. Railroad Co., supra. The court held that it was a continuing wrong, and that successive actions might be brought for damages occasioned thereby. The court said, “The law will not proceed upon the assumption that a nuisance or illegal conduct will continue forever.”
City of Nashville v. Comar, 88 Tenn. 415, was a decision by Mr. Justice Lurton, now of the United States court of appeals. He takes up the case of Town of Troy v. Railway Co., supra, and the cases of other courts which have followed that case since, and shows with great clearness that those cases are not only illogical, but that they are in opposition to the great weight of authority. After speaking of the rule announced in the Troy Case, that “wherever the nuisance is of such a character that its continuance is necessarily an injury, and where it is of a permanent character, that will continue without change from any cause but human labor, there the damage is an original damage, and may be at once fully compensated,” the learned justice says:
‘ ‘ This seems to us an artificial and arbitrary test. There are supposable nuisances which, by the effect of time, might at last abate themselves; but by far the greater number of trespasses, wrongs, and nuisances would continue indefinitely without the expenditure of human labor to remove or abate them. It is a rule which does not recommend itself by either its reasonableness, its certainty of application, or its justice.”
He then cites many cases in support of his contention, and proceeds:
“This assumption that a wrong-doer is to be presumed, from the mere character of the work, to intend to continue in his wrong, and that he will not remedy his defective or unskillful work, is repudiated in the majority of the American cases.”
We deem it unnecessary to quote from the multitude of cases cited in the briefs of counsel for the plaintiff here. The doctrine contended for by them is supported, not only by the great weight of authority in this country, but in England. Two English cases may be mentioned as supporting their contention: Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127; Crumbie v. Wallsend Local Board, L. R. 26 Q. B. Div. 503. The following cases in this country support the rule: Town of Roxbury v. Railroad Co., 60 Vt. 121; Inhabitants of New Salem v. Eagle Mill Co., 138 Mass. 8; Ramsdale v. Foote, 55 Wis. 557; Reed v. Mayor, etc., of Birmingham, 92 Ala. 339; McGowan v. Railway Co., 23 Mo. App. 203; Fell v. Bennett, 110 Pa. St. 181; Reid v. City of Atlanta, 73 Ga. 523; Sloggy v. Dilworth, 38 Minn. 179 (8 Am. St. Rep. 656); Omaha, etc., R. Co. v. Standen, 22 Neb. 343; Schulte v. Transportation Co., 50 Cal. 592. We close this part of the case by the further citation from the opinion of Mr. Justice Lurton, in which we concur:
‘ ‘ It seems to us that the true rule deducible from the authorities is that the law will not presume the continuance of a wrong, nor allow a license to continue a wrong, when the cause of the injury is of such a-nature as to be abatable either by the expenditure of labor or money; and that, where the cause of the injury is one not presumed to continue, that the damages recoverable from the wrongdoer are only such as have accrued before action brought, and that successive actions may be brought for the subsequent continuance of the wrong or nuisance.”
The judgment below must be reversed, and a new trial granted.
The other Justices concurred. | [
-29,
68,
40,
-28,
-6,
23,
16,
-25,
11,
5,
-7,
-8,
29,
-29,
48,
-9,
-6,
0,
-51,
34,
-22,
-19,
-19,
-40,
-34,
16,
47,
-33,
-11,
59,
-4,
-30,
-32,
51,
-33,
23,
18,
-4,
50,
15,
47,
9,
-15,
-26,
18,
3,
63,
-32,
7,
-7,
-26,
46,
-5,
-11,
-17,
-46,
0,
6,
-4,
19,
-3,
-20,
-10,
-4,
-1,
7,
18,
10,
42,
-38,
-7,
10,
9,
7,
30,
5,
13,
-7,
-7,
-32,
-34,
-2,
35,
-24,
41,
8,
-26,
-19,
-57,
-26,
-45,
-40,
23,
2,
1,
15,
-49,
0,
-24,
-14,
16,
40,
0,
23,
-14,
7,
-46,
-20,
19,
-47,
23,
20,
-14,
-18,
0,
-3,
6,
1,
41,
-11,
28,
16,
38,
0,
-16,
15,
-10,
0,
-4,
20,
22,
4,
-26,
52,
0,
27,
-39,
11,
42,
53,
-4,
21,
-2,
-46,
-43,
32,
14,
9,
4,
-54,
-5,
19,
-2,
0,
-13,
21,
-13,
-12,
49,
-28,
44,
-64,
7,
0,
-44,
-26,
-62,
31,
16,
63,
27,
-19,
43,
-40,
19,
33,
-10,
13,
-8,
-39,
-6,
23,
40,
5,
-15,
-40,
-30,
13,
41,
-51,
55,
-6,
-46,
-12,
-37,
89,
-16,
33,
-28,
7,
8,
-80,
-11,
16,
-13,
29,
-6,
-10,
3,
2,
-3,
5,
-19,
-34,
36,
-4,
21,
-5,
11,
-44,
-24,
-45,
6,
-1,
-3,
-33,
-42,
-2,
41,
-15,
29,
-25,
18,
-8,
-14,
0,
6,
5,
-9,
0,
26,
65,
-47,
-23,
-17,
11,
-23,
-26,
11,
33,
11,
-41,
-50,
-4,
5,
20,
0,
7,
-2,
-20,
20,
80,
-27,
-50,
56,
18,
-9,
16,
-62,
9,
-34,
34,
11,
15,
-81,
-64,
18,
30,
-5,
69,
-16,
-65,
-3,
19,
17,
54,
-36,
22,
3,
0,
7,
-28,
13,
8,
-13,
21,
1,
-15,
-2,
35,
1,
61,
-11,
32,
31,
10,
-46,
40,
31,
1,
-10,
15,
10,
27,
49,
34,
41,
-14,
23,
-40,
44,
35,
-6,
24,
9,
-10,
18,
2,
-73,
-12,
28,
11,
34,
17,
13,
-35,
10,
-1,
-46,
-14,
36,
36,
54,
-34,
-5,
41,
-10,
-50,
41,
43,
-56,
-33,
-12,
4,
-17,
6,
8,
-12,
-15,
29,
72,
45,
18,
7,
-7,
-22,
-57,
-7,
0,
13,
-3,
8,
-39,
40,
-9,
-45,
16,
7,
-49,
53,
21,
-8,
42,
-8,
43,
-21,
-50,
-64,
-47,
6,
-58,
-26,
-1,
25,
21,
-12,
-16,
25,
-15,
-45,
1,
33,
27,
41,
-28,
-33,
-15,
38,
10,
56,
-7,
17,
39,
0,
-34,
-2,
48,
8,
-14,
-9,
64,
62,
9,
-52,
11,
-23,
59,
-6,
-36,
36,
4,
35,
0,
-43,
25,
26,
-11,
-63,
-57,
-41,
-57,
-19,
-9,
32,
-10,
10,
-52,
26,
2,
-21,
40,
61,
-5,
9,
-30,
18,
-3,
-55,
8,
-6,
44,
-42,
-17,
-8,
-16,
0,
-22,
-32,
30,
24,
-4,
28,
-11,
-16,
-20,
-12,
-5,
23,
-6,
33,
-14,
-7,
-18,
12,
-25,
-36,
-9,
-15,
-9,
-17,
54,
11,
0,
24,
-5,
22,
-33,
32,
-8,
9,
0,
8,
-37,
-2,
6,
0,
4,
3,
-20,
42,
-33,
-46,
24,
36,
14,
26,
-31,
-32,
43,
-40,
25,
-14,
-18,
-10,
-15,
13,
24,
-8,
-9,
-19,
35,
-37,
-12,
-35,
-42,
-7,
4,
41,
-9,
3,
8,
18,
25,
8,
-40,
3,
-21,
12,
34,
3,
-1,
-43,
-5,
31,
-6,
-2,
-8,
-35,
10,
0,
-35,
21,
93,
-32,
43,
2,
13,
-12,
16,
-57,
-7,
21,
37,
-59,
-82,
0,
-18,
-6,
-22,
29,
-22,
-3,
-38,
-32,
-48,
-7,
46,
3,
-2,
15,
-20,
48,
-24,
-36,
15,
27,
15,
52,
-4,
-2,
47,
-60,
-28,
25,
2,
59,
-38,
-37,
48,
19,
16,
3,
-38,
41,
0,
44,
-32,
22,
57,
-5,
50,
-33,
-6,
-8,
-35,
-33,
0,
7,
-61,
24,
-3,
27,
-40,
22,
31,
-25,
74,
-15,
-3,
2,
-47,
52,
33,
18,
-13,
-12,
-62,
37,
-41,
18,
-64,
31,
29,
-37,
7,
-15,
15,
-4,
-44,
-25,
23,
-15,
2,
-28,
-1,
27,
15,
-32,
1,
-49,
4,
-33,
21,
37,
15,
-51,
-23,
0,
75,
-2,
52,
6,
0,
-33,
24,
-27,
-13,
-27,
22,
32,
-7,
-45,
-7,
-18,
-3,
70,
1,
30,
-11,
11,
-26,
-13,
36,
26,
-81,
38,
-22,
-9,
-4,
-15,
20,
-3,
-24,
2,
-1,
38,
-8,
-51,
-16,
16,
24,
-23,
-31,
-76,
2,
-34,
-41,
-28,
-26,
33,
-2,
-28,
-17,
-43,
-39,
-8,
12,
5,
-19,
-13,
-23,
-47,
19,
-26,
-50,
-35,
30,
3,
-22,
4,
-9,
9,
36,
2,
6,
-31,
-5,
28,
-39,
-39,
4,
-32,
-34,
16,
-26,
-28,
-16,
-7,
40,
-62,
-66,
12,
-35,
-23,
31,
23,
-17,
19,
18,
-31,
1,
13,
46,
32,
-43,
24,
18,
-31,
45,
21,
-27,
21,
2,
23,
-23,
2,
6,
15,
42,
-12,
-2,
16,
-28,
-29,
-5,
8,
-41,
13,
3,
19,
0,
-28,
-48,
-10,
-10,
-2,
-25,
41,
21,
-4,
-31,
37,
-45,
0,
8,
3,
4,
11,
31,
28,
65,
-7,
-11,
35,
34,
-1,
-17,
27,
10,
-38,
5,
-6,
-29,
-32,
29,
1,
-12,
2,
-25,
18,
-44,
5,
-25,
-18,
38,
46,
-19,
10,
36,
-10,
33,
7,
-39,
32,
9,
-13,
-28,
-33,
-17,
16,
12,
24,
-27,
-7,
0,
-13,
-25,
-10,
11,
-13,
8,
3,
17,
-7,
-44,
-32,
-4,
2,
-2,
70,
26,
20,
20,
11,
-21,
-36,
-29,
24,
50,
-12,
-11,
18,
37,
4,
-1,
33,
10,
4,
9,
-16,
-6,
-42,
-23,
9,
-10,
24,
-99,
-16,
19,
58,
7,
41,
-26,
-16,
-61,
-11,
-15,
18,
-35,
20,
-33,
16,
-38,
-6,
36,
-19,
56,
-84,
9,
-26,
13,
-30,
-56,
39,
3,
11,
0,
-4,
16,
-5,
-13,
-11,
26,
69,
9,
-19,
-34,
-1,
-19,
-26,
63,
58,
13,
-11,
0,
12,
9,
-40,
16,
26,
-53,
-2,
-9,
23,
14,
10,
2,
-9,
-29,
-53,
67,
-32,
-32,
22,
35,
-45,
51,
17,
-13,
-38,
-26,
29,
6,
-36,
-5,
10,
-12,
10,
13,
16,
37,
0,
-44,
0,
24,
-8,
50,
-12,
21,
-18,
-24,
45,
21,
37,
44,
59,
-18,
48,
-5,
-55,
47,
5,
-8,
22
] |
Grant, C. J.
The petitioner, Mary Shefferly, resided in Detroit. She had a mortgage upon the land described in the petition, situated in the township of Warren, Ma-comb county. In 1893 a tax was levied upon her mortgage interest under the law of 1891. The tax was not paid, was returned delinquent, and sold December 20, 1895, under the tax proceedings taken by the auditor general. The lands were bid off to the State, and were purchased July 24, 1896, by the defendant* Canned. The redemption expired November 30, 1896. January 28-, 1898, she filed this petition to reopen the decree. Relief was granted upon the payment of the tax,'interest, and costs.
The reasons assigned by her counsel for setting aside the decree are:
1. That the decree was never enrolled, and that, therefore, the court was clothed with power to modify or set it aside.
2. That the township treasurer failed to make the tax out of the personal property.
3. That the return of the township treasurer was premature, in that it was made on February 5, 1894, and should not have been made until March 1st.
The court, in vacating the decree, relied upon Benedict v. Auditor General, 104 Mich. 269. That case has been misconstrued, as was held in Brooks v. Auditor General, 119 Mich. 329. A11 the points raised have been disposed of against the claim of the petitioner in the prior decisions of this court. Brooks v. Auditor General, supra; Spaulding v. O’Connor, 119 Mich. 45; Auditor General v. Sparrow, 116 Mich. 574.
Decree reversed, and petition dismissed, with costs.
Montgomery, Moore, and Long, JJ\, concurred. Hooker, J., did not sit. | [
-38,
29,
12,
-19,
-36,
13,
19,
4,
-5,
4,
-24,
-53,
-3,
-3,
38,
9,
-1,
-11,
-57,
23,
-10,
-13,
-22,
-27,
8,
20,
27,
9,
-20,
-5,
-23,
-23,
-33,
49,
34,
-31,
-9,
-23,
34,
10,
-45,
47,
-19,
-10,
-9,
-9,
-4,
-42,
30,
-15,
-18,
-23,
-6,
-25,
19,
-17,
-48,
-30,
-6,
-8,
0,
37,
45,
48,
10,
-2,
-1,
-14,
20,
-33,
3,
-2,
-42,
-50,
38,
30,
55,
5,
-47,
25,
-35,
-69,
48,
-45,
-4,
-80,
-5,
-9,
0,
21,
-5,
16,
-11,
35,
57,
27,
8,
-15,
-6,
-3,
-50,
27,
3,
38,
12,
-65,
12,
14,
-24,
-42,
10,
-48,
43,
-25,
0,
4,
-45,
6,
33,
-27,
-8,
-44,
-2,
17,
0,
5,
-39,
6,
-14,
26,
44,
-8,
-9,
3,
-25,
9,
-29,
-18,
40,
18,
39,
-20,
-1,
-66,
18,
-11,
52,
-27,
58,
-35,
-20,
-4,
-36,
12,
0,
32,
14,
-34,
18,
-5,
-18,
11,
-18,
-9,
-39,
-9,
-27,
33,
8,
9,
50,
-18,
-15,
-19,
33,
-45,
15,
37,
-1,
4,
-18,
-5,
15,
-59,
22,
-26,
-3,
-15,
41,
-59,
31,
-10,
7,
-5,
2,
56,
0,
1,
-12,
-24,
-11,
-32,
11,
31,
15,
-17,
47,
-3,
-48,
-24,
-21,
-21,
-31,
15,
-24,
-25,
22,
4,
30,
5,
91,
17,
25,
-6,
-7,
8,
-16,
7,
-10,
-8,
-10,
-20,
21,
-38,
8,
21,
-17,
56,
-29,
-1,
-26,
11,
25,
-8,
-21,
37,
-3,
-40,
-1,
-2,
9,
-8,
-37,
0,
13,
-48,
22,
-40,
37,
-17,
-14,
39,
19,
-50,
-6,
-24,
31,
18,
1,
21,
66,
20,
35,
31,
0,
8,
11,
-37,
15,
6,
8,
-51,
4,
18,
22,
52,
-28,
-27,
15,
20,
-3,
-44,
15,
72,
-26,
-5,
7,
-45,
25,
15,
19,
39,
15,
29,
31,
-15,
-29,
-1,
30,
-36,
28,
38,
-24,
12,
-4,
-34,
15,
-29,
6,
52,
29,
-15,
-8,
18,
2,
13,
31,
-28,
-85,
4,
20,
-9,
17,
69,
16,
-8,
28,
-18,
-58,
-46,
16,
20,
39,
4,
16,
0,
-54,
-22,
-9,
35,
1,
47,
26,
45,
-11,
18,
11,
-18,
-36,
38,
34,
33,
-12,
10,
20,
3,
-39,
-47,
23,
31,
0,
44,
-1,
28,
-41,
-13,
0,
-31,
-53,
23,
12,
0,
-19,
17,
55,
12,
13,
-13,
18,
-16,
-6,
-7,
25,
-20,
6,
-35,
32,
-4,
-86,
14,
-19,
0,
10,
58,
-35,
-3,
35,
46,
4,
69,
15,
-16,
19,
3,
-2,
-18,
11,
-27,
12,
17,
18,
17,
-19,
-26,
-19,
-5,
16,
19,
8,
3,
-20,
16,
20,
-3,
0,
-5,
-55,
-47,
-16,
-29,
30,
34,
0,
-1,
20,
4,
-42,
19,
0,
-2,
41,
-24,
-12,
-20,
-23,
22,
14,
-79,
-7,
-49,
4,
-31,
-48,
-44,
-27,
17,
-16,
-20,
20,
1,
-17,
36,
-1,
-36,
-1,
20,
18,
-9,
-12,
70,
12,
-61,
-34,
0,
-21,
-30,
-12,
24,
-52,
-10,
63,
-30,
9,
7,
19,
2,
-19,
-33,
48,
17,
39,
35,
0,
27,
-19,
-2,
-11,
-14,
-34,
10,
-6,
-17,
-19,
62,
7,
49,
18,
-22,
57,
41,
-25,
2,
-49,
0,
-6,
-9,
36,
21,
31,
48,
16,
-11,
-20,
21,
-41,
7,
29,
57,
-15,
29,
6,
24,
42,
28,
-32,
46,
-15,
-28,
3,
-26,
-26,
-52,
-41,
26,
-3,
-4,
-36,
-59,
22,
9,
-49,
-57,
37,
-31,
33,
-66,
2,
-62,
-49,
14,
15,
-23,
14,
-49,
66,
11,
-11,
-49,
-15,
2,
10,
-2,
5,
-54,
59,
12,
-37,
17,
12,
4,
-8,
-1,
-12,
19,
-26,
3,
-51,
35,
29,
5,
9,
-25,
-7,
-1,
-4,
0,
-41,
10,
-12,
-2,
9,
-20,
55,
53,
18,
58,
-17,
-22,
-4,
17,
23,
24,
26,
-52,
9,
37,
10,
-21,
-18,
25,
16,
-23,
12,
25,
-19,
33,
48,
-45,
10,
-40,
-52,
-4,
-49,
-15,
-22,
6,
-25,
4,
-13,
11,
-43,
27,
-24,
-15,
15,
-13,
31,
-52,
52,
-2,
68,
2,
5,
26,
31,
-20,
30,
-22,
1,
21,
-11,
-6,
-2,
-25,
13,
-48,
0,
22,
0,
-1,
-31,
67,
-34,
39,
6,
-6,
3,
18,
-35,
-8,
20,
-16,
-1,
39,
0,
-5,
22,
23,
24,
26,
42,
53,
-4,
46,
-70,
26,
-23,
-6,
-20,
-42,
-36,
0,
22,
-5,
-11,
24,
65,
22,
11,
-22,
-31,
-48,
-9,
-7,
-19,
-47,
-37,
-53,
-9,
31,
0,
24,
16,
-5,
27,
27,
23,
36,
12,
0,
2,
23,
-83,
-28,
0,
-13,
38,
50,
2,
18,
9,
-25,
-47,
90,
3,
-39,
-56,
22,
-14,
-3,
-18,
12,
2,
-28,
31,
-1,
-25,
11,
45,
26,
-12,
38,
-78,
-12,
44,
-39,
-57,
28,
42,
-30,
1,
-30,
-10,
-3,
-27,
-49,
31,
24,
-8,
-15,
6,
15,
-7,
-30,
-28,
40,
34,
-2,
15,
0,
-15,
12,
-14,
-14,
53,
38,
-70,
11,
-15,
17,
7,
-11,
-20,
-45,
-9,
-55,
1,
60,
2,
11,
8,
0,
-30,
1,
-19,
26,
-42,
35,
-13,
-10,
4,
38,
-37,
-32,
43,
-50,
13,
43,
2,
-14,
-44,
-37,
18,
-53,
-10,
29,
-10,
12,
-23,
44,
-59,
-14,
-14,
30,
-31,
4,
20,
-15,
-9,
46,
30,
43,
11,
-43,
9,
-7,
68,
-49,
38,
54,
-7,
-6,
-35,
-10,
0,
1,
32,
2,
20,
-43,
1,
-2,
26,
-13,
10,
42,
14,
-44,
0,
42,
17,
2,
-15,
42,
-14,
-35,
9,
-59,
-18,
0,
23,
-42,
21,
-51,
-27,
-8,
-21,
33,
31,
55,
-14,
-28,
-13,
-37,
-55,
-43,
-40,
-66,
23,
16,
58,
33,
-36,
-19,
-59,
-11,
21,
-13,
-3,
-9,
-5,
-21,
-43,
31,
13,
0,
17,
-19,
32,
-19,
35,
4,
-23,
7,
2,
12,
40,
-4,
55,
-13,
22,
0,
89,
49,
-3,
-31,
-21,
-1,
-14,
-12,
-7,
-14,
15,
12,
-9,
28,
-2,
-19,
44,
3,
-48,
-1,
-11,
15,
21,
20,
33,
5,
20,
-45,
53,
-64,
-28,
22,
-21,
-38,
39,
-21,
-69,
-63,
27,
7,
80,
-23,
-11,
-6,
-11,
-16,
17,
2,
43,
-18,
10,
14,
35,
-69,
50,
1,
0,
13,
-34,
-13,
13,
7,
-26,
-15,
-7,
16,
11,
-24,
37,
-9,
-46,
45
] |
Per Curiam.
The facts in this case are sufficiently-stated in the opinion of the learned circuit judge. The facts and the law are so well stated in that opinion that we adopt it as our own:
“Relator, commissioner of highways for the township of Ecorse, applies for a mandamus to compel the respondent, clerk of said township, to countersign certain orders on the township treasurer. These orders were drawn by relator upon blanks taken from a book in his possession, containing stubs upon which he describes the order. Respondent contends that the orders should be drawn upon blanks on a stub book kept by him, and that the orders and the stub should be in the same handwriting, according to a custom which has prevailed several years in the township of Ecorse. This is the only question, as it is conceded that the accounts for which the orders are issued are valid, and according to one method or the other the orders should be drawn.
‘ ‘ The law which provides for these orders is contained in section 1415, 3 How. Stat. I quote from that-section:
Upon the performance of contracts, * * * the commissioner of highways shall make payment therefor by orders upon the township treasurer, which orders shall be signed by such commissioner and countersigned by the township clerk.’
“.Section 1425, 3 How. Stat., provides:
“ ‘The township clerk shall be'the clerk of the commissioner of highways, and shall, under his direction, record his proceedings in a suitable book, * * * and shall keep an accurate account of all orders drawn by the commissioner on the township treasurer, stating the amount of each, and in whose favor the same were drawn; and all books and papers relating to the business of the commissioner shall be preserved and kept by the clerk in his office.’
“This language clearly indicates that the commissioner shall make the order, and that .the clerk shall countersign it. The statute says the commissioner ‘shall make payment therefor by orders upon the township treasurer.’ The clerk ‘shall keep an accurate account of all orders drawn by the commissioner on the township treasurer.’ The law gives relator the right to draw these orders, and to no one else the right to control his discretion as to when and^where he will draw them. According to respondent’s contention, relator can only make this order in his presence, and on a blank taken from a book in his custody. This gives the respondent the right to control relator’s discretion as to when and where the orders shall be issued. Respondent contends that either relator must fill out both these orders and the stub in the book in his custody, which constitutes respondent’s account of the order, or that the respondent shall fill out both. If relator must fill out both the order and the stub, he is compelled to perform the duty of keeping an account of these orders, which duty is imposed by law upon respondent. If relator must permit respondent to fill out both the order and the stub, he is prevented from performing the duty which the law says he shall perform.
“To uphold relator’s contention does not, as contended by respondent’s counsel, adjudge that the custom heretofore followed in Ecorse township was illegal or improper. Heretofore the commissioner has met with the clerk, and permitted him to fill out both the order and the stub in the book in the clerk’s custody. I have no doubt of the legality and entire propriety of that method. That was a method which the commissioner had a right to follow, but it seems to me equally clear that he has a right to change it, and adopt another.
“It is contended by the respondent that his duty to keep an accurate account of the orders drawn by relator, and his duty to preserve the books and papers relating to relator’s business, justifies him in refusing to countersign orders not taken from the books in his custody. I cannot agree with this contention. Respondent’s duty to preserve the books and papers relating to relator’s business surely does not deprive relator of the right to keep for his own protection books relating to that business. This is what relator does, and all he does, when he preserves on the stub of the order a description of the order issued by him. Respondent should be afforded -the opportunity of knowing whether it is proper for him to sign the order, and of keeping an accurate account of it; but this can be done, and, in my opinion, must be done, without interfering with the legal rights of the relator. When the order in the relator’s handwriting is presented to the respondent, he can keep an accurate account of it by filling out a stub in his book, so arranged'as to correspond, or by any other proper system of bookkeeping.
“ It is argued that, if the order and the stub are made in the same handwriting, a better opportunity is thereby afforded to detect any change' made in the order after the clerk countersigns it. This may be true, but the argument of the relator’s counsel that the proposed system, with stubs kept by both relator and respondent, affords less opportunity for a corrupt manipulation of these orders than the system heretofore in use in Ecorse, is at least worthy of consideration. If the respondent thinks that other precautions should be adopted to protect the public treasury against the danger of these orders being raised after they pass from his hands, he can at once place in the hands of the township treasurer a copy of his record of the orders. It is sufficient to say upon this subject that the law determines what safeguards must be observed.' The question upon which the decision of this case turns is not, Is the relator’s method safer than the one heretofore used? The decision turns upon this question: Has relator a legal right to draw the orders in the method he has chosen? If he has, a court cannot deny that right because, in its opinion, another method is better and safer. As, in my judgment, relator has a right to draw the orders in the method chosen by him, he is entitled to a mandamus compelling respondent clerk to countersign them. Respondent must, however, be given an opportunity to make an accurate account of such orders. As respondent refused to countersign these orders in the bona fide belief that he would thereby violate an official duty, no costs will be awarded against him.”
The judgment is affirmed, without costs. | [
7,
-29,
5,
4,
2,
2,
39,
41,
-25,
92,
17,
6,
24,
11,
0,
-45,
46,
26,
-16,
0,
-44,
-46,
12,
25,
-44,
55,
13,
21,
1,
31,
-28,
0,
4,
17,
12,
-9,
13,
18,
54,
19,
22,
-5,
0,
-29,
-34,
-44,
17,
9,
-5,
-83,
22,
53,
-18,
34,
28,
46,
4,
-58,
9,
-31,
-28,
-51,
9,
24,
1,
7,
6,
29,
1,
10,
-26,
-4,
0,
12,
15,
4,
-11,
-30,
-1,
30,
-8,
-28,
-31,
26,
-11,
-4,
-18,
-15,
36,
-51,
8,
-14,
-11,
-4,
7,
27,
12,
-24,
39,
1,
-1,
25,
33,
27,
-40,
-2,
-31,
-40,
0,
-1,
6,
24,
-7,
-73,
-19,
7,
-44,
-15,
52,
-18,
23,
-8,
35,
5,
9,
-23,
3,
-2,
-55,
14,
-14,
-1,
-1,
-10,
3,
9,
-33,
19,
6,
18,
18,
-18,
61,
18,
-10,
-69,
44,
12,
-42,
7,
-2,
2,
50,
5,
-44,
-24,
-1,
-70,
31,
-24,
63,
53,
1,
-9,
-28,
64,
0,
9,
-32,
-12,
30,
34,
2,
-9,
38,
-43,
1,
2,
23,
-27,
11,
40,
-15,
-10,
3,
1,
16,
-35,
38,
-26,
-33,
8,
8,
-3,
51,
13,
-46,
59,
-6,
-34,
-30,
40,
32,
26,
-43,
-39,
-49,
-30,
-50,
27,
-23,
-30,
-45,
-17,
-27,
-29,
5,
12,
-22,
17,
3,
-16,
69,
16,
-35,
-31,
13,
-25,
6,
8,
26,
11,
27,
32,
-29,
22,
41,
-3,
10,
42,
-50,
16,
-9,
-35,
16,
-15,
-20,
-16,
-41,
-6,
-25,
-17,
-24,
-15,
-52,
-12,
-43,
24,
-23,
-9,
30,
-1,
30,
21,
-18,
-2,
21,
43,
-3,
-37,
-13,
-4,
-1,
-34,
-26,
26,
16,
-17,
-47,
8,
-1,
-9,
-11,
-15,
-10,
52,
10,
27,
-10,
9,
36,
-22,
-35,
40,
6,
58,
24,
-13,
15,
-54,
-42,
-31,
8,
42,
24,
13,
-24,
-21,
-37,
7,
45,
-34,
-13,
46,
-11,
0,
-35,
9,
-23,
-17,
26,
48,
29,
-46,
-12,
28,
23,
-33,
12,
-9,
11,
-6,
16,
0,
34,
14,
-5,
18,
-29,
-18,
0,
3,
-20,
2,
11,
18,
3,
-10,
-50,
-11,
-27,
25,
23,
65,
27,
-20,
-11,
-40,
-5,
22,
24,
36,
-33,
-39,
-4,
13,
-21,
8,
-17,
26,
39,
-3,
-31,
-25,
-53,
-56,
10,
-33,
6,
25,
-26,
-19,
-24,
-19,
-8,
-6,
-39,
10,
-28,
-8,
-12,
5,
-8,
-4,
-74,
2,
15,
37,
-27,
-1,
3,
12,
6,
49,
16,
36,
-12,
-5,
18,
50,
10,
14,
0,
-7,
15,
-6,
27,
12,
47,
-18,
-9,
-24,
-13,
-31,
38,
-62,
-77,
32,
13,
41,
0,
-19,
-7,
-41,
6,
-16,
-20,
-45,
-28,
-30,
-9,
7,
-22,
24,
-9,
-9,
-10,
-5,
-11,
8,
48,
-40,
18,
1,
17,
54,
13,
15,
-7,
-50,
10,
-18,
3,
-5,
24,
25,
10,
2,
57,
-2,
-44,
4,
-13,
63,
-15,
-43,
-4,
-14,
24,
21,
-22,
0,
-26,
-14,
-16,
-27,
-15,
-26,
-32,
-10,
21,
-10,
-36,
14,
67,
-5,
-55,
33,
10,
89,
11,
43,
20,
17,
-15,
8,
-3,
-3,
-3,
12,
-13,
34,
85,
-12,
-1,
1,
-12,
12,
-15,
29,
16,
-19,
-4,
-30,
11,
38,
-39,
40,
-29,
-4,
-20,
27,
-2,
-28,
18,
16,
16,
-8,
-4,
-29,
-45,
36,
-7,
18,
11,
36,
-31,
4,
-2,
0,
1,
15,
28,
-18,
-33,
-12,
17,
-13,
7,
-9,
-19,
23,
3,
12,
24,
12,
-44,
-15,
25,
-20,
29,
-65,
-7,
12,
5,
7,
-20,
-55,
31,
-29,
-16,
15,
-22,
-29,
53,
-2,
31,
-24,
41,
-36,
-22,
6,
-39,
4,
-16,
13,
-29,
31,
56,
-5,
43,
65,
-30,
15,
31,
-18,
43,
21,
23,
-15,
-5,
23,
-41,
31,
-26,
42,
-15,
-66,
57,
19,
12,
7,
-12,
-10,
12,
-13,
64,
-6,
6,
13,
-7,
-24,
38,
4,
-25,
4,
-7,
-22,
-7,
-33,
-12,
-11,
4,
-77,
21,
0,
-5,
56,
23,
16,
19,
61,
20,
-17,
2,
-39,
0,
0,
2,
16,
18,
-45,
4,
16,
-5,
12,
-21,
-8,
25,
-7,
21,
-27,
-3,
-25,
3,
-42,
-31,
-12,
-7,
-17,
8,
9,
-15,
2,
0,
9,
34,
15,
-4,
-14,
-21,
11,
-44,
5,
27,
-31,
7,
11,
-72,
4,
10,
-33,
-39,
26,
-51,
-14,
-33,
3,
34,
0,
-33,
-47,
-18,
55,
16,
4,
-4,
-8,
-19,
-12,
30,
-42,
-19,
0,
-6,
0,
-15,
-28,
-27,
30,
8,
6,
21,
-34,
13,
9,
-3,
-24,
-16,
14,
-2,
37,
5,
-32,
-25,
-7,
15,
14,
-36,
30,
45,
30,
-9,
-14,
-16,
89,
3,
-27,
12,
9,
6,
-20,
-40,
34,
42,
-37,
-20,
-3,
-24,
-32,
14,
-10,
-8,
-8,
7,
4,
9,
-46,
36,
-53,
-6,
20,
-8,
31,
27,
-45,
-21,
-24,
-41,
58,
36,
3,
-19,
-39,
-31,
7,
-34,
13,
8,
7,
15,
40,
10,
8,
-1,
59,
-39,
15,
24,
22,
-1,
-11,
-3,
-18,
49,
3,
-13,
28,
-32,
-47,
-2,
7,
63,
-44,
-36,
25,
28,
-11,
-16,
83,
62,
-21,
-38,
12,
-23,
-24,
-2,
-17,
12,
-29,
9,
-30,
20,
-35,
-40,
-15,
1,
52,
-29,
23,
0,
32,
24,
-33,
40,
13,
16,
-13,
7,
20,
3,
56,
-2,
-30,
41,
-38,
-61,
18,
39,
-10,
28,
13,
5,
-46,
1,
-22,
56,
-6,
-35,
-12,
-21,
16,
42,
-18,
-14,
-15,
-33,
-15,
-17,
15,
-17,
13,
-39,
6,
25,
-35,
-11,
-35,
-36,
15,
11,
27,
3,
-27,
36,
15,
-16,
5,
33,
45,
7,
-9,
-7,
-26,
-30,
-19,
-27,
-10,
4,
-24,
7,
49,
10,
-16,
8,
-6,
-2,
-37,
9,
4,
35,
-61,
27,
18,
48,
-45,
22,
13,
6,
-50,
-22,
-61,
-7,
50,
20,
9,
-44,
5,
-4,
3,
-48,
41,
-15,
2,
-43,
16,
-39,
1,
-52,
16,
-39,
45,
31,
-19,
-13,
4,
29,
-22,
14,
25,
25,
10,
-14,
32,
-5,
-26,
32,
-39,
-38,
34,
-18,
-9,
0,
23,
-22,
29,
-8,
2,
15,
-35,
27,
17,
-22,
-30,
20,
-1,
-22,
-20,
44,
-2,
34,
-16,
-39,
-9,
3,
-52,
-10,
24,
-22,
15,
21,
30,
35,
19,
36,
-7,
13,
8,
8,
18,
-30,
-11,
6,
10
] |
Hooker, J.
The plaintiffs are some of the heirs at law of Johnson Patrick, and the action is ejectment, brought to recover the undivided 15-32 of the N. W. i of Church Square, in the city of Kalamazoo (formerly known as the “Town of Bronson”), from its present occupant, the Young Men’s Christian Association. This property is situate upon the W. of the S. W. £ of section 15, which was located and paid for at the federal land office on November 1, 1830, by Stephen H. Richardson, and on June 1, 1831, a patent was issued to him from the United States. A few weeks before the patent issued, and on March 12, 1831, Richardson and one Titus Bronson caused to be placed on record in the office of the register of deeds of the county a plat of the village of Bronson, on which plat the land in dispute, with other land, was marked “Church Square,” with these explanatory words on the margin of the plat:
“The Church Square is sixteen rods square, and is appropriated to the four first religious denominations who may form societies in the foregoing town, and erect buildings thereon; one-fourth to the benefit of each society. ”
This plat was not signed by Richardson or Bronson, but was acknowledged by both.
On January 5, 1833, Richardson gave a warranty deed of the W.- £ of the S. W. £ of section 15 to 'Sally Bronson, excepting from the conveyance “the streets and squares of the village of Bronson.” On May 4, 1836, Titus Bronson and Sally Bronson, his wife, conveyed to John Berdan, by. warranty deed, the W. £ of S. W. £ of section 15, with certain exceptions. Counsel for the plaintiffs contend that Church Square was excepted; counsel for the defendant, that it was not. We are of the opinion that it was excepted, but defer a further statement of the contents of the deed until we reach the question in its proper order, if it' shall be thought necessary discuss it. On October 24, 1836, Berdan and wife gave to Sheldon and Burdick a warranty deed of the same land, making the same exceptions.
On March 8, 1838, Richardson and wife gave a quitclaim deed to Johnson.Patrick of the west half aforesaid, without any exception of streets or squares; and on April 2, 1838, Johnson Patrick and wife quitclaimed the same, without exceptions, to Dan Arnold. On January 3, 1839, Dan Arnold quitclaimed to Sheldon and Burdick “all that part of the west half [ aforesaid ] conveyed by Titus Bronson and wife to John Berdan by deed.of May 4, 1836,” and on the same day, viz., January 3, 1839, Arnold quit- claimed to Johnson Patrick all his right and title to the undivided three-fourths of the west half aforesaid. We interrupt the statement to call attention to the fact that the title conveyed to Patrick depends on what Arnold had left after his conveyance to Sheldon and Burdick, which in turn depends upon the .interest conveyed to Berdan by the deed from the Bronsons; and, if the deed from Richardson to the Bronsons excepted Church Square, it is manifest that Berdan received no title to Church Square. If it can be said that the title actually conveyed by Berdan is the test of the description in the first deed from Arnold, it is unnecessary to construe the deed to Berdan; but if we say that the measure .of the Arnold deed to Sheldon and Bur-dick is to depend on the meaning of the description in the deed to Berdan, irrespective of the question of his grant- or’s title, it is a vital question, because Patrick acquired no title whatever to Church Square if it can be said to have been conveyed to Sheldon and Burdick from Arnold, who apparently had it, unless the plat completely devested Richardson of the title, which is one of the questions in the case.
Passing the question for the present, and resuming the statement of fact, we find a number of other deeds, which do not affect the case, except as they aid in bringing outstanding claims of title into the defendant. Among them are conveyances from othef heirs of Johnson Patrick. - In 1837, St. Luke’s Protestant Episcopal Society was formed, and erected a church building on the premises, and occupied the lot until March 18, 1887, when it deeded the property by quitclaim deed to Senator Stockbridge, receiving from him therefor the sum of $6,500. He bought it for the purpose of donating it to the Young Men’s Christian Association with a view to the erection of an expensive building thereon, and -soon after deeded it to that society, to apply upon his subscription of $10,000 for that object. The building was thereupon erected at a cost approximating $25,000, and. it has since been occupied and used for the ordinary purposes of such society.
It is a trite axiom that in ejectment a plaintiff must rely upon the strength of his own, rather than the weakness of his adversary’s, title. We have seen that all of these claims of title come from Richardson, who made several instruments of conveyarice. First in order is the plat. If the plat was valid, and conveyed an absolute fee to the religious society, it is manifestly the end of the plaintiffs’ claim, because Richardson then parted with his entire title. If it was valid, but did not convey the fee, the plaintiffs must show that they own the reversionary interest. This plat appears to have been made and recorded under a territorial law, first enacted in 1821. 1 Terr. Laws, p. 816, § 1. In 1827 it was re-enacted, with some additional provisions relating to the vacation of plats. 2 Terr. Laws, 577. Section 2 of said act is the important one in this controversy, and is as follows:
“ Sec. 2. That such maps or plats as are required by this act to be recorded shall particularly set forth and describe all the public grounds within such town, by its boundaries, courses, and extent, and whether it be intended for streets, alleys, commons, or other public uses, and all the lots intended for sale, by progressive numbers, and their precise length and width; and the maps, made and acknowledged before a justice of the peace, a justice of the county court of the proper town where the town lies, or before a judge of the Supreme Court, and certified under the hand and seal of the judge or justice taking such acknowledgment, and recorded, shall be deemed a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended to be for public uses, in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever.”
Counsel for the plaintiffs contend that a statutory dedication was not effected, for want of a strict compliance with the statute; but we will pass this point.
In its early days the common law recognized dedication of land for highway purposes without grant or covenant, but it is doubtful if the rule went further. A discussion of this subject will be found in the opinion of the late Chief Justice Campbell in the case of Baker v. Johnston, 21 Mich. 340. The opinion' recognizes the fact, however, that the weight of authority in this country sustains the proposition that the mere want of a grantee will not defeat a dedication of lands for well-defined public purposes, upon an analogy to charitable trusts, which will not be allowed to fail for the mere want of a trustee, where the purposes are clear and well defined, and the instrument by means of which the trust is sought to be created is in other respects adequate to the purpose. In both cases the necessity of definiteness was recognized, while in cases of dedication to public uses it was as important that there should be some one authorized to accept land dedicated for different and specific purposes in their nature public before the dedication could be made effective as it was that there be some one to assume the management qí a trust before it could become operative. The opinion cited shows that the doctrine of the common law has been applied to public squares, commons, and parks, and there are cases that hold that gifts may be made to charitable and religious uses in the same way. In Hunter v. Trustees of Sandy Hill, 6 Hill, 411, it is said:
‘ ‘ Land may be dedicated to pious and charitable purposes, as well as for public ways, commons, and other easements in the nature of ways, so as to conclude the owner who makes the dedication. This is the general doctrine. Pearsall v. Post, 20 Wend. 111, 22 Wend. 425. Public highways, and sites for court-houses, churches, and other public buildings, are familiar instances of the application of the principle. It has been applied to the reservation of a spring of water for public use (McConnell v. Town of Lexington, 12 Wheat. 582; and see City of Cincinnati v. White’s Lessee, 6 Pet. 438; also 20 Wend. 120, 22 Wend. 452); to a public square in a village ( Trustees of Watertown v. Cowen, 4 Paige, 510 [27 Am. Dec. 80]); and to a public burying ground (Beatty v. Kurtz, 2 Pet. 566. See, also, 6 Pet. 431; 22 Wend. 454, 455, 473; Stater v. Trask, 6 Vt. 355 [27 Am. Dec. 554]).”
In the case of Benn v. Hatcher, 81 Va. 25 (59 Am. Rep. 645), it was held that a dedication of land for a cemetery was valid, and it was said that:
“In its technical legal sense, dedication is the appropriation of land for a public use, — as for a highway, a common, or the like, — but may be effectual, it seems, when made to a pious or charitable use, though not distinctively a public one.”
The statute in question provides in express terms that the plat shall have the effect to convey the fee of land dedicated to public uses to the county. A plat conforming to. the statute, then, operates as a conveyance of a fee, though probably it is a base fee. This was an innovation, for under the common-law rule the owner held the fee in trust to the use of the public; but some of the difficulties resulting from this innovation are elucidated by the opinion in the Michigan case last cited, indicating sufficient reasons for a statute which should give to a formal offer of dedication of public ground by a plat the effect of a conveyance by way of grant to uses, and providing a grantee.
A more important question, however, is whether the statute was designed to apply to any dedication other than those made for general public purposes, and whether it is broad enough to permit the plat to be made a medium for the conveyance of land for all kinds of charities or pious uses. In this country we have no established church, and religious uses are in the hands of corporations or voluntary associations. The same is true, with a few exceptions, of charities, such as colleges, hospitals, etc.; and, while dedications may be made to these, there is no apparent reason for requiring the owner to part with the fee, especially as it is after all only a conveyance to uses, and, if the fee were conveyed, it would be but a base fee, determinable on the happening of a collateral event. Again, by the language of the act this provision applies only to “public ground.” Public ground, in the ordinary sense, is ground in which the general public has a common use; and it would not accord with the common understanding of the language used to say that land devoted to the use of a local religious society, or hospital, or academy, created for church, hospital, or academic purposes, is public ground, even if the use be considered, in a sense, public; and, in the absence of a clear intention to include such, the statute ought not to be so construed. Again, the statute itself contains internal evidences that dedications for such purposes were not designed to be within its meaning; for it illustrates the class of public uses to which it alludes, viz., “streets, alleys, commons, or other public uses,” and thus, under the settled rule of ejusdem generis, its effect was restricted to public uses of a similar nature. See End. Interp. Stat. 405 et seq. "We are of the opinion, therefore, that there was no statutory dedication, and that the fee remained in Richardson until he conveyed it to Johnson Patrick.
Common-law dedications do not ordinarily convey the fee. In fact, under the strict rule they never do. See cases cited 9 Am. & Eng. Enc. Law (2d Ed.), 73, note 2; Baker v. Johnston, supra. And though it has been said that “there may be a dedication which is essentially a grant, in which the fee passes,” the cases cited in support of the proposition seem to depend upon formal conveyances or statutes. 9 Am. & Eng. Enc. Law (2d Ed.), 74. Thus, in Van Ness v. City of Washington, 4 Pet. 232, the question was whether the federal government acquired title in fee to the land occupied by streets and public squares in the city of Washington, and the case turned upon the construction to be given to a grant contained in a deed to the government. The case of Hoadley v. City & County of San Francisco, 50 Cal. 265, arose upon a statute, and the same is true in U. S. v. Illinois Cent. R. Co., 2 Biss. 174, Village of Grandville v. Jenison, 84 Mich. 54, and a large number of other cases; and even in such cases it has been held that a base fee only is conveyed, which is determinable on the happening of a given collateral event. 9 Am. & Eng. Enc. Law (2d Ed.), 74. In the case of Hunter v. Trustees of Sandy Hill, supra, it is said:
“ ‘Dedication,’ as the term is used in reference to this subject, is the act of devoting or giving property for some proper object, and in such manner as to conclude the owner. The law which governs such cases is anomalous. Under it, rights are parted with and acquired in modes and by means unusual and peculiar. Ordinarily, some conveyance or written.instrument is required to transmit a right to real property; but the law applicable to dedications is different. A dedication may be made without writing, — by act in pais, as well as by deed. It is not at all necessary that the owner should part with the title which he has, for dedication has respect to the possession, and not the permanent estate. Its effect is not to deprive a party of title to his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has. City of Cincinnati v. White’s Lessee, 6 Pet. 431, 438. The principle upon which the estoppel rests is that it would be dishonest, immoral, or indecent, and in some instances even sacrilegious, to reclaim at pleasure property which has been solemnly devoted to the use of the public, or in furtherance of some charitable or pious object. The law therefore will not permit any one thus to break his own plighted faith; to disappoint honest expectations thus excited, and upon which reliance has been placed. The principle is one .of sound morals and of most obvious equity, and is in the strictest sense a part of the law of the land. It is known in all courts, and may as well be enforced at law as in equity. , This being a case to which the law of dedication applies, the use for which the dedication was made must determine the extent of the right parted with by the owner of the land and acquired by the public. 6 Pet. 438. Where, as in the case of a highway, the public acquire but a mere right of passage, the owner who makes the dedication retains a right to use the land in any way compatible with the full enjoyment of the public easement.”
In that case land used for a cemetery was in dispute. The public having laid a road through it, the original owner claimed a forfeiture. In conclusion the court said:
“When the street was opened, a part of the dead, and a part only, had been exhumed, and removed to the new burial ground, and the residue of the bodies still remain. Before the suit was instituted, this part of the old graveyard was inclosed, and placed in its former condition; the whole constituting, as it formerly did, but one burial place. We think the judge ruled correctly that the plaintiff had no right to the possession, and the nonsuit was therefore proper. What right, if any, may hereafter arise in favor of those who can make title from the original owners, it is not necessary now to inquire. The land is still a public graveyard, inclosed, known, and recognized as such. When these graves shall have worn away, when they who now weep over them shall have found kindred resting places for themselves, when nothing shall remain to distinguish this spot from the common earth around, and it shall be wholly unknown as a graveyard, it may be that some one who can establish a good ‘ paper title’ will have a right to its possession, for it will then have lost its identity as a burial ground, and with that all right founded on the dedication must necessarily become extinct.”
No fee having passed through the dedication, we must examine the deeds subsequently made by Richardson. His first deed was a warranty deed to Sally Bronson of the west half of the quarter section, in which he excepted the streets of the village of Bronson. What was meant by the expression, “with the exception of streets and squares in the village of Bronson?” No allusion is made in the deed to any plat, but we cannot conceive of any other method of interpreting the deed than by a reference to the plat, whether we treat it as a valid plat, or a mere private plat made by the grantor for the purpose of facilitating sales of land. There is nothing in the case, except the plat, to afford any light upon the subject. An examination of the plat shows the village laid out into blocks, some of which are squares and some parallelograms. Some of each are subdivided into lots, others are not. Of the squares, some are marked as squares, thus: “Church Square,” “Jail Square,” “Public Square or Court-House Square,” and ‘Academy Square,” “Burial Ground,” “School Lot;” the last two, however, not being squares. We think a reasonable construction of the deed, in view of the circumstances under which it was made, leads to the exclusion of Church Square from the lands conveyed by Richardson to Sally Bronson. It follows that Johnson Patrick acquired title to the reversionary interest by virtue of the deed from Richardson dated March 8, 1838, and, as we have seen, it was conveyed by him to Arnold. On January 3, 1839, Arnold made two deeds, and this title of the plaintiffs depends on which one conveyed the reversion to these squares; the St. Luke’s Episcopal Society being then in possession of the premises, and having erected a church edifice tbereon. The first of these deeds to be recorded was a quitclaim deed to Burdick and Sheldon, conveying the premises “conveyed by Titus Bronson and his wife to John Berdan by a deed ” therein described. The second was the deed to Patrick, recorded in 1856, and this also was a quitclaim deed.
We will next examine the deed to Berdan, for only by the construction of that deed can we determine whether the squares were included in the deed from Arnold to Burdick and Sheldon. The description was as follows:
“The undivided one-half of the west half of the southwest quarter, also the west half of the southwest quarter, of section number 15, in township number 2 south, and range 11 west, Kalamazoo, Mich., excepting and reserving from sale in the last-mentioned lot the following village lots and parcels of land, namely: One parcel of land, about 11 rods wide, extending from Water street north to east and west quarter section line of said section 15. Also one other parcel of land extending from Main street north to said quarter section line, being 8 rods wide. The former of said parcels having been heretofore deeded to Anthony Cooley. And also the following village lots in the village of Bronson, numbered, according to the last recorded plat of said lots, as follows, namely: 117-two lots north numbered, lying between said lots number 1 and 17. Also lots number 112, 22, 25, 37, 33, 34, 78, 39, 40, 44; said lot 44 being subject to a lease for ten years. Also lots 47, 48, 50, 52, 54, 60, 61, 62, 63, and 56. Also the lots lying between South street and the south line of said section 15. Also two fractional lots lying between lots 33 and 39 on the west line of said section 15. Also parcel of land 3 rods by 8 lying immediately behind lot number 32, fronting on Main street. Together with all the ground intended for streets and public purposes according to the plat of said village, and together with all the privileges and appurtenances to said land in any way pertaining. To have and to hold the said premises as above described, with the appurtenances, unto the said John Berdan, his heirs and assigns, and to his and their use and behoof forever.”
The instrument concluded with the usual covenants of warranty as contained in warranty deeds.
We have already said that the deed from Richardson to Sally Bronson excepted the squares, and it necessarily follows that Berdan took no interest in the squares by this deed. But it might not be a fair construction to put upon the deed from Arnold to Burdick and Sheldon to say that it was meant to convey only what Berdan had acquired title to by the former deed. If we interpret the meaning to be that the description in the deed to Burdick and Sheldon from Arnold should be the same as that in the deed to Berdan, the plaintiffs’ title fails if the clause reading, “together with all the ground intended for streets and public purposes according to the plat,” etc., is to be construed to be a conveyance, whereas it stands if it is to be treated as an exception. Our deliberate conviction, from the language used, is that it was intended as an exception, because it would seem improbable that Bronson and wife would sell the streets and public grounds and except the lots, and because it seems the natural effect of the language used. This brings us to the conclusion that the plaintiffs have at the least a reversionary interest in this land on the face of the conveyances.
It is contended that a title was gained by adverse possession. The defendant cannot well dispute the claim that its grantor has occupied by virtue of a dedication. Its counsel strenuously insist that it occupied under a statutory dedication, while counsel for the plaintiffs as earnestly assert that it occupied under a common-law dedication, or its equivalent. The testimony shows that the society erected its first church under the terms of the plat, and there is nothing to indicate that it asserted title in opposition to Eichardson’s rights for the statutory period necessary to a title by adverse possession. We have said that the dedication gains nothing by the statute. The plat only serves to show what the owner intended, and to make certain the terms under which the St. Luke’s Society erected its buildings and maintained possession, from which the offer ripened into a dedication. It is evidence as an act in pais of a dedication at common law. Lessee of Village of Fulton v. Mehrenfeld, 8 Ohio St. 440. The essential elements of hostility and an adverse claim for the necessary period are wanting. All parties at all times seem to have understood that the premises were occupied under the dedication by Eichardson, and during later years the recognition of this has been evidenced by efforts to secure deeds from persons in a position to set up claims to a reversionary interest. The evidence shows that the deed from St. Luke’s Society was a quitclaim, and that the defendant has secured an undivided interest therein, and that there is, therefore, under the paper title, an estate in common between the plaintiffs and the defendant in the reversion. Thus, in 1886 the heirs of Dan Arnold quit-claimed their interest to Sheldon, and in March, 1887, Sheldon gave a deed to Stockbridge, who also, about the same time, secured deeds from several of the heirs of Johnson Patrick.
There is no doubt of the abandonment of the premises by St. Luke’s Church. It sold and vácated the lot and building, and the defendant, after obtaining a deed, demolished the church, and erected a building adapted to its own wants, and, presumably, to the objects of its organization. It is said that these are religious, and that the lot is still devoted to the purposes designed by the proprietor in his offer of dedication. Had the proprietor dedicated directly to St. Luke’s Episcopal Society, the case would have been no different in effect than it is now. He gave to that society, when organized, the use of the premises upon condition of its erecting a building upon them. That a church was intended no one can doubt; and continued user of the gift was, as it is in all such cases, a condition. We cannot look upon this as a passing of title to land upon condition subsequent.. We do not mean to say that a misuser necessarily works a reversion to the holder of the fee, but a total abandonment does. Wanzer v. Blanchard, 3 Mich. 11; Board of Sup'rs of Kent Co. v. City of Grand Rapids, 61 Mich. 144; Hunter v. Trustees of Sandy Hill, supra. There was a total abandonment in this case, and the plainest principles of justice require that the original holder’s claim should be recognized.
The most forcible reasons given for maintaining a right to the fee in the defendant are the long occupancy of the premises by the St. Luke’s Society, its attempt to convey them, the erection of a costly building thereon without opposition, and the continuance of the devotion of the land to pious uses. As we have said, the abandonment was complete. The quitclaim deed from St. Luke’s Society does not raise a presumption that it was attempting to_ do more than to abandon the premises to Stockbridge, who had acquired an interest in the reversion. The erection of the building was at most an improvement of the land by a tenant in common, and therefore within the protection of a court of equity in proceedings for partition (Van Ormer v. Harley, 102 Iowa, 158); while to hold that a dedication of land for the use of a particular sect would justify the extension of the gift to any pious use by any other association of another denomination, or, indeed, not denominational, would be an arbitrary exercise of judicial power, without authority of law. The status of the parties is that the proprietor dedicated the property to a use. The gift was accepted, and the property occupied until the desire for a new church and a large money consideration induced an abandonment by the St. Luke’s Society. Whether the purposes for which the proprietor dedicated the land had been fully accomplished, and the expected benefits to him had accrued, does not appear, and the church does not seem to have concerned itself with that question. It was under no legal obligation to do so, and there may have been no moral obligation upon it to occupy longer than it chose. It certainly had no further legal or moral claim to any interest after abandonment, unless it be the alleged release by Johnson Patrick, which is neither produced nor proven to have been made. We are therefore constrained to hold that the land has reverted to the holder of the original title.
The record shows that all of the testimony in the case is before us, and from the undisputed facts we are able to say that the plaintiffs should have recovered.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
21,
29,
41,
2,
5,
49,
20,
1,
43,
4,
-12,
-61,
-13,
33,
0,
12,
-39,
-60,
-9,
16,
-32,
-32,
-17,
-12,
30,
-29,
45,
25,
5,
0,
2,
-14,
-42,
-9,
25,
4,
25,
-34,
3,
-24,
-27,
-18,
-4,
-21,
23,
22,
0,
-11,
-4,
-21,
0,
-35,
-22,
13,
-48,
-23,
37,
0,
-13,
-19,
-40,
10,
45,
-40,
21,
19,
-19,
-8,
4,
-32,
-2,
-32,
-29,
-75,
13,
-8,
15,
-11,
-20,
10,
-43,
8,
36,
29,
-52,
21,
11,
-8,
16,
15,
-9,
-47,
-22,
19,
46,
16,
12,
-9,
3,
5,
6,
20,
-50,
15,
-29,
14,
-17,
-27,
-23,
-52,
-3,
6,
47,
1,
13,
-3,
-13,
-6,
8,
26,
-9,
18,
27,
-7,
3,
53,
-49,
-6,
8,
40,
36,
-27,
2,
-22,
13,
-17,
18,
-42,
17,
-20,
11,
15,
-71,
-6,
-14,
-33,
-10,
-13,
-12,
-32,
-63,
2,
-48,
42,
43,
1,
11,
0,
61,
-8,
26,
-32,
4,
3,
-30,
-10,
3,
-28,
38,
2,
47,
16,
-54,
-34,
19,
-21,
21,
-29,
-40,
-19,
14,
18,
-3,
3,
1,
-45,
51,
0,
-62,
64,
0,
-11,
-30,
-37,
-17,
-23,
-15,
-16,
-45,
-13,
24,
-3,
18,
-29,
-14,
6,
68,
-42,
-6,
37,
1,
-8,
-13,
17,
-16,
11,
36,
-37,
4,
12,
65,
-6,
-30,
23,
-24,
3,
41,
7,
-53,
-15,
-43,
-10,
49,
-26,
-25,
-9,
10,
3,
-47,
10,
-8,
-11,
-13,
14,
-43,
20,
2,
-23,
-36,
85,
38,
-8,
-56,
-9,
4,
11,
-12,
-4,
-30,
3,
8,
12,
-36,
7,
16,
-32,
17,
8,
-4,
9,
-35,
-2,
13,
38,
-1,
-45,
-13,
-6,
25,
8,
36,
-28,
61,
19,
-4,
2,
18,
33,
1,
12,
-9,
-5,
-3,
-25,
-14,
39,
12,
18,
37,
-6,
-2,
29,
-7,
0,
-2,
6,
10,
-21,
71,
16,
-9,
-14,
17,
-34,
-1,
14,
-20,
45,
-10,
-25,
-44,
-23,
-36,
-70,
-19,
50,
24,
-31,
-41,
58,
-11,
-18,
-12,
-11,
1,
9,
47,
-16,
2,
-33,
15,
11,
-7,
18,
48,
0,
-10,
-6,
30,
-6,
0,
-4,
-54,
5,
-42,
19,
5,
-6,
-48,
19,
45,
0,
-10,
-69,
48,
-23,
-55,
-11,
-27,
5,
21,
49,
-1,
37,
31,
32,
-4,
45,
31,
51,
-13,
-34,
28,
-14,
54,
-24,
-13,
-15,
-52,
-4,
10,
25,
5,
28,
-6,
-5,
-41,
-36,
-19,
-61,
-14,
68,
-51,
0,
-33,
18,
-4,
68,
3,
-8,
30,
-59,
77,
-1,
26,
-12,
-32,
-4,
25,
-12,
4,
22,
-17,
-82,
-17,
25,
32,
-3,
-39,
-48,
0,
2,
26,
12,
37,
34,
-40,
40,
15,
-12,
-20,
41,
-14,
-2,
-31,
-4,
26,
45,
18,
-27,
24,
24,
-12,
2,
-57,
-13,
74,
-23,
10,
28,
25,
-9,
-22,
-20,
-2,
44,
-7,
-17,
-10,
20,
-2,
29,
-9,
-27,
-1,
12,
-4,
49,
-14,
-15,
29,
-9,
9,
51,
24,
9,
-45,
34,
12,
-8,
31,
42,
17,
-10,
65,
-20,
-23,
9,
11,
25,
22,
5,
21,
-17,
-22,
13,
-10,
-7,
0,
28,
-13,
-47,
28,
-26,
-7,
37,
5,
24,
-13,
4,
0,
-11,
-28,
-51,
-2,
19,
49,
30,
0,
-7,
-19,
-27,
10,
-10,
-17,
-46,
29,
7,
-14,
-41,
-17,
-1,
70,
18,
-48,
19,
3,
-51,
-2,
-43,
-70,
24,
18,
-33,
-8,
30,
-34,
-23,
2,
2,
-32,
-32,
37,
-40,
36,
16,
48,
-67,
-22,
1,
-35,
0,
29,
-50,
-9,
26,
-2,
-13,
14,
9,
-4,
-13,
23,
-72,
29,
-29,
-15,
7,
-7,
-5,
-36,
22,
-48,
-18,
25,
19,
12,
31,
20,
-33,
23,
-9,
-3,
17,
-1,
-21,
-16,
11,
0,
73,
-5,
0,
8,
68,
-21,
41,
30,
1,
26,
-41,
-16,
17,
-14,
-19,
14,
17,
-13,
-10,
10,
-4,
-4,
-14,
-19,
18,
14,
9,
12,
28,
19,
19,
15,
-7,
-85,
35,
-34,
27,
-14,
-13,
3,
-14,
-56,
4,
50,
10,
22,
-9,
9,
2,
20,
0,
11,
-35,
2,
37,
-22,
-2,
51,
-11,
15,
37,
13,
-28,
0,
83,
-11,
-16,
-24,
68,
41,
-20,
38,
-6,
-1,
4,
46,
-53,
-8,
-23,
-8,
-6,
16,
23,
5,
3,
-17,
-19,
-40,
-42,
51,
-14,
12,
35,
-6,
41,
21,
14,
0,
-22,
1,
-28,
4,
14,
1,
-16,
0,
41,
14,
3,
-30,
45,
24,
22,
-41,
-23,
11,
-5,
5,
-9,
-56,
-17,
-31,
7,
-24,
32,
-43,
36,
20,
-49,
3,
-9,
-25,
-46,
-39,
21,
1,
9,
10,
-17,
-43,
19,
-5,
3,
-34,
28,
25,
-33,
-66,
48,
-49,
-4,
27,
55,
-24,
-63,
-27,
9,
-15,
-13,
30,
11,
26,
-13,
-41,
-20,
-21,
-8,
8,
8,
-23,
-25,
31,
-38,
-30,
9,
-19,
69,
27,
10,
27,
9,
20,
-16,
12,
-6,
-34,
-34,
-16,
-57,
-28,
-11,
-15,
-15,
-11,
-31,
-26,
11,
-38,
52,
-6,
29,
-36,
40,
-9,
-46,
-54,
39,
-8,
2,
-42,
-33,
10,
-11,
8,
17,
21,
16,
50,
7,
-21,
21,
69,
2,
-21,
5,
6,
0,
14,
15,
-25,
-11,
-20,
-33,
-8,
-2,
20,
2,
-10,
15,
24,
-3,
-45,
14,
23,
-39,
-22,
-17,
-8,
-40,
-44,
30,
82,
-4,
37,
-31,
-30,
12,
26,
-9,
-9,
36,
-40,
25,
-60,
22,
4,
36,
15,
-34,
41,
-5,
-44,
44,
-20,
-21,
-51,
12,
25,
21,
4,
-4,
43,
16,
8,
30,
-7,
23,
-15,
-6,
62,
-14,
2,
13,
19,
-7,
6,
-22,
17,
52,
12,
-26,
-31,
-37,
-40,
-47,
-50,
-33,
-58,
-9,
-44,
58,
48,
-3,
-10,
-4,
-96,
18,
2,
-16,
-13,
45,
15,
-22,
-33,
-7,
38,
27,
31,
-42,
17,
-8,
52,
-6,
10,
-17,
-46,
-2,
7,
22,
17,
16,
-6,
-11,
31,
47,
-29,
29,
-72,
25,
5,
-17,
13,
58,
13,
-26,
23,
7,
10,
31,
6,
-7,
-42,
-18,
10,
-7,
20,
-13,
5,
40,
7,
34,
18,
-40,
-22,
28,
-30,
24,
22,
-3,
-21,
-31,
-3,
39,
-24,
-46,
-18,
-11,
-14,
3,
-4,
-9,
17,
-23,
28,
13,
-10,
-18,
30,
-28,
18,
-18,
-25,
57,
90,
36,
19,
47,
-9,
-8,
11,
42,
21,
-43,
-32,
42
] |
Hooker, J.
The defendants purchased, for $30,000 in cash, the exclusive right to the Dr. Keeley Gold Cure for the State of Michigan. With two others, they organized a corporation called the Keeley Institute, with $50,-000 capital stock in 2,000 shares. The articles stated that $30,000 was paid in. It began business at Northville, December 2,1891, where it was continued until May, 1892, when it was removed to Ypsilanti. Its only substantial asset was the right to use the Keeley cure in Michigan. One Van Oleve, representing the plaintiff and other residents of Ypsilanti, had some negotiations with the defendants, who at that time controlled, if they did not own, all of the stock of the corporation, with a view to procuring an interest in the concern and having the business removed to Ypsilanti; and such an arrangement was made whereby amended articles were filed increasing the stocli to $250,000, of which the Ypsilanti parties subscribed $50,000. The evidence shows that the defendants sold one-fifth interest in the concern for $50,000, and that this consideration went to them; and we think that the record shows that the increase of capital stock to $250,000 was with the assent of plaintiff, and the knowledge on his part that only $30,000 had been paid in. The business was not successful at Ypsilanti. This action was brought to recover the consideration paid, or damages for deceit on the part of defendants in the sale.
The claim of plaintiff’s attorney is that the purchase by his client was induced by the representation that the concern was earning 12 per cent, upon $250,000, that this was not true, and that the plaintiff did not discover the fraud until a short time before the action was commenced, and that he then sought to rescind, but his offer was refused. He then brought this action, joining counts based upon rescission and upon breach of the contract. The court held that the counts were inconsistent, and required the plaintiff to elect which theory he would stand upon, and counsel chose rescission, taking exception to the ruling. Counsel asked the witness Coombs what he did, after being elected upon the board of directors in March, 1893, in regard to finding the situation of the company, stating that the answer would bear upon the question “when the fraud was discovered.” The court excluded the answer against the plaintiff’s exception.
These are the most important questions in the case, and we think there is error in both. There can be no doubt that the two theories were inconsistent in a sense, because one is based upon the continuation of the contract and the other upon its rescission. The plaintiff attempted to rescind by tendering the stock and demanding the money that he paid for it. If there was fraud, he had the right to do this, provided he had not waived it and could put the defendants in statu quo. But he took the chance of being unable to convince the court and jury that he had not waived his right to rescind, and, if he should fail in this, he could not recover if he relied upon the single count, although the jury might find that he had been defrauded. If there was fraud, and he did not succeed in rescinding the contract, he certainly ought to have the right to recover damages for the injury he had suffered, if any. Had defendants consented to rescission, and acted upon it, the case would have been different, for there might then have been an estoppel; but there is nothing in the nature of an estoppel here. We have frequently held that one is bound by his choice between inconsistent rights or remedies; but, where there is no estoppel, this cannot usually be, unless the person really had a right of election: In this case the plaintiff claimed that he had a right to rescind, and-tried to rescind, but he did not succeed, either because he really had no such right or because he.failed to seasonably assert it. He supposed that he had a remedy growing out of rescission, but it turned out that he was mistaken, and this left him the right to-recover for the fraud, if there was fraud. This subject was discussed in McLaughlin v. Austin, 104 Mich. 491; Chaddock v. Tabor, 115 Mich. 33; Sullivan v. Ross’ Estate, 113 Mich. 316. It is a common practice to permit the joining of counts which state the cause of action differently, to prevent a possible variance between the declaration and the proof. The plaintiff should not have been required to elect between the counts of his declaration.
The case being tried upon the theory of rescission, it was competent for the plaintiff to offer testimony to explain the delay in commencing the suit and excusing laches. The testimony of Mr. Coombs was offered for that 'purpose. Being excluded, we cannot tell whether it would have sustained the claim of counsel or not, but we ’think that he should have been permitted to introduce such proof.
We think a discussion of other questions raised unnecessary. The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
46,
19,
26,
23,
-35,
24,
1,
-9,
-18,
-6,
-6,
-18,
14,
87,
42,
-4,
9,
-49,
-22,
5,
-4,
-43,
-19,
-2,
6,
-66,
16,
-8,
-16,
10,
-13,
33,
23,
0,
-26,
0,
-54,
3,
-11,
-26,
-4,
37,
28,
-19,
4,
32,
-12,
-46,
9,
23,
58,
-19,
-25,
-3,
-13,
-34,
13,
-8,
-46,
11,
-17,
-19,
70,
-3,
53,
44,
5,
-47,
-22,
-1,
-36,
-20,
10,
-55,
0,
-33,
15,
-4,
8,
-32,
-3,
-27,
40,
-10,
-18,
8,
15,
25,
-10,
10,
12,
-55,
-29,
-17,
29,
34,
-19,
4,
-3,
2,
40,
-29,
-63,
-17,
-12,
-10,
27,
-15,
-29,
26,
-24,
14,
16,
3,
34,
-27,
-7,
-6,
0,
32,
-30,
-26,
-25,
49,
15,
38,
-17,
-17,
14,
9,
7,
-49,
-54,
54,
24,
-16,
-18,
-10,
-1,
-3,
-19,
59,
-19,
8,
18,
-6,
-33,
6,
-16,
-2,
-38,
-42,
30,
27,
7,
-9,
-17,
11,
65,
-29,
-4,
-16,
3,
0,
-18,
8,
-16,
-34,
0,
36,
-1,
12,
-51,
-11,
10,
33,
34,
-13,
-63,
-25,
-42,
4,
48,
13,
11,
-61,
84,
-35,
75,
-8,
12,
0,
-60,
-8,
-32,
5,
22,
-61,
11,
9,
18,
-45,
-24,
21,
12,
-34,
30,
-39,
-1,
67,
-21,
4,
17,
-27,
-26,
19,
-33,
-57,
65,
-11,
68,
-4,
-26,
30,
21,
-27,
53,
-6,
-24,
-11,
-49,
2,
35,
3,
-2,
-32,
-9,
17,
-7,
-57,
-22,
-26,
-27,
-32,
-48,
39,
-8,
0,
-40,
60,
-1,
40,
-29,
16,
-47,
45,
-11,
-26,
-5,
-32,
3,
50,
-61,
24,
11,
-63,
14,
22,
-2,
18,
-46,
-13,
24,
11,
-42,
-54,
15,
-6,
24,
-15,
35,
-42,
8,
5,
29,
7,
-60,
10,
-45,
-4,
22,
32,
14,
-34,
68,
8,
14,
-40,
20,
6,
5,
20,
7,
28,
3,
77,
-13,
-2,
11,
-55,
42,
-36,
-3,
-8,
18,
-49,
-29,
1,
8,
-20,
-8,
15,
-47,
2,
-6,
-13,
50,
-37,
-15,
-5,
-14,
-2,
19,
29,
-50,
9,
46,
-22,
-22,
-71,
-15,
28,
34,
-7,
12,
2,
-23,
-1,
5,
-34,
1,
-43,
52,
13,
10,
-4,
43,
-4,
-32,
19,
0,
15,
37,
-15,
28,
56,
-50,
-18,
23,
49,
0,
6,
-34,
32,
69,
0,
-2,
43,
-4,
42,
-9,
2,
65,
-24,
-1,
-8,
-21,
-27,
-42,
1,
-54,
43,
24,
55,
-32,
-60,
-44,
-27,
-22,
-37,
-19,
53,
6,
-17,
-25,
-27,
17,
16,
-32,
-34,
11,
-10,
-15,
-41,
0,
-44,
32,
-25,
-20,
-53,
53,
17,
-27,
-29,
69,
-4,
34,
19,
-74,
40,
-9,
12,
39,
8,
-24,
-31,
-4,
50,
5,
-42,
15,
3,
-12,
17,
47,
-3,
44,
-2,
39,
8,
5,
-9,
-5,
-35,
-22,
29,
11,
-12,
29,
9,
6,
6,
38,
-3,
3,
7,
27,
-18,
23,
7,
26,
28,
7,
-41,
-32,
-16,
46,
0,
19,
-3,
34,
5,
-2,
10,
-8,
-21,
-72,
6,
-39,
11,
38,
-4,
0,
-9,
-39,
-7,
17,
-16,
35,
1,
27,
-50,
13,
24,
22,
-5,
20,
-32,
-40,
22,
-2,
-19,
20,
3,
-22,
0,
-16,
4,
16,
74,
-8,
11,
-25,
-10,
-22,
12,
25,
-23,
35,
-15,
18,
10,
7,
0,
1,
-52,
19,
0,
-33,
-18,
-1,
-6,
29,
27,
11,
-27,
50,
20,
44,
-41,
-65,
-12,
0,
-6,
14,
19,
1,
-15,
-1,
7,
-66,
-18,
40,
-21,
43,
-28,
20,
13,
20,
-3,
-12,
13,
38,
68,
46,
-3,
17,
-9,
-28,
48,
28,
9,
42,
-84,
-54,
18,
6,
-10,
-10,
22,
13,
-7,
-4,
-11,
11,
24,
16,
7,
36,
3,
-4,
-44,
-34,
-13,
-75,
-28,
-63,
16,
52,
2,
-14,
-24,
18,
-4,
13,
11,
-15,
16,
37,
29,
24,
-13,
17,
-9,
24,
7,
-58,
-24,
-3,
0,
-5,
-17,
18,
56,
15,
-3,
-4,
27,
-54,
8,
22,
4,
-23,
-6,
-11,
4,
-8,
-3,
-29,
0,
-14,
-9,
43,
-21,
-9,
-7,
32,
23,
9,
-16,
31,
27,
-23,
7,
7,
31,
43,
-13,
20,
6,
17,
-19,
48,
-36,
30,
-43,
-2,
11,
20,
48,
-53,
28,
50,
-19,
-13,
12,
1,
-2,
-6,
-37,
-11,
-13,
-39,
10,
6,
-7,
10,
-40,
34,
-16,
-18,
31,
-22,
77,
-3,
-11,
-2,
-29,
-5,
-26,
41,
-27,
16,
-39,
-18,
20,
42,
76,
-21,
-39,
-41,
-49,
8,
31,
53,
20,
0,
14,
2,
23,
-20,
17,
7,
-5,
9,
58,
0,
-25,
-10,
7,
0,
0,
-52,
-19,
-25,
-3,
34,
14,
35,
3,
-4,
12,
15,
34,
8,
-61,
-47,
26,
-21,
-2,
-18,
52,
-23,
-69,
-22,
39,
-18,
-58,
-3,
6,
-8,
-15,
-36,
17,
-8,
-12,
-50,
25,
1,
-12,
74,
-20,
-42,
37,
-12,
-5,
11,
49,
65,
39,
-28,
0,
14,
-25,
-33,
0,
54,
-62,
-7,
-24,
12,
-37,
-4,
9,
-57,
-25,
-3,
-45,
-1,
-16,
-20,
26,
7,
-33,
11,
-14,
-33,
-66,
-34,
13,
0,
-13,
-5,
0,
-28,
-13,
3,
8,
-17,
4,
22,
29,
-63,
-38,
18,
37,
0,
-62,
5,
12,
-19,
-3,
-42,
31,
72,
-16,
27,
2,
-11,
-33,
-61,
21,
-4,
-29,
-33,
3,
17,
-4,
5,
72,
17,
18,
-50,
-14,
20,
22,
32,
12,
9,
-10,
-24,
59,
-34,
-21,
-22,
103,
28,
-28,
32,
-11,
0,
3,
-14,
16,
-18,
-1,
65,
22,
17,
20,
-9,
-15,
-26,
-9,
-7,
-38,
12,
-16,
28,
-1,
-11,
-9,
-13,
35,
-13,
16,
3,
15,
-24,
35,
0,
-4,
-4,
12,
-53,
27,
42,
16,
-15,
41,
43,
-17,
-32,
13,
-24,
1,
-24,
19,
-21,
58,
-7,
4,
-27,
-14,
3,
13,
-4,
-63,
1,
27,
9,
62,
-19,
15,
-43,
-19,
0,
2,
63,
7,
-26,
-5,
1,
85,
-76,
-28,
-12,
-28,
-3,
-41,
25,
35,
10,
-26,
10,
3,
2,
-6,
66,
-24,
12,
-4,
-17,
-23,
-11,
-5,
11,
-23,
9,
-16,
29,
-28,
-59,
39,
67,
0,
8,
-6,
-2,
7,
-15,
-35,
1,
-26,
4,
-14,
28,
-19,
12,
-60,
-23,
-24,
22,
28,
0,
-13,
9,
-45,
23,
44,
-17,
-33,
48,
26,
-8,
16,
20,
10,
23,
-11,
-32,
19,
-6,
53
] |
Montgomery, J.
The respondent was convicted under an information containing two counts, based upon How. Stat. § 9306, which provides that—
“ Any person who shall hereafter be a party to or engage in a prize-fight, or any other fight in the nature of a prizefight, in this State, or who shall aid or abet therein, shall, on conviction thereof, be punished,” etc.
The first count of the information charged that the respondent—
“At the city of Grand Rapids, in the county of Kent, did then and there unlawfully engage in a prize-fight with one Edgar Broom, and did then and there fight a prizefight with said Edgar Broom, contrary to the statute.”
The second count of the information charged that—
“The said Albert Taylor did then and there engage in a fight in the nature of a prize-fight with one Edgar Broom, contrary to the statute.”
The respondent moved to quash the information, on the ground that no offense is charged therein, and the refusal to quash the information is assigned as error.
1. It is contended that prize-fighting is not an offense at the common law, and that, where a statute creates a new offense, it is necessary to set out the facts and circumstances, so that the court may judge whether the act charged comes within the prohibition of the statute. It is undoubtedly the general rule that when an offense is created by statute an information is sufficient which charges the offense in the words of the statute. This rule is not, however, universal. Wherever it is essential to apprise the respondent of the precise offense charged, and an averment in the language of the statute is not sufficient to do so, the courts will require that the information be more specific. But this can only occur where the words of the statute may by their generality embrace cases whicli, while falling within its literal terms, are not within its meaning or spirit. Such, we think, is not the case as to the offense here under consideration. Prize-fighting is prohibited by the statute, and there is no species of prizefighting which is innocent while this statute is in force. As to what constitutes prize-fighting is a question of law; but it is a term in common use, and the very employment of the word indicates what is meant. A similar statute has been twice before the supreme court 'of Massachusetts, and indictments following the language of the statute have been upheld. Com. v. Welsh, 7 Gray, 324; Com v. Barrett, 108 Mass. 302. It is true that the supreme court of Mississippi reached a different conclusion in Sullivan v. State, 67 Miss. 316 (7 South. Rep. 275), but we think the Massachusetts doctrine more in accord with the holdings of this Court. See People v. Kent, 1 Doug. 42; Rice v. People, 15 Mich. 9; Durand v. People, 47 Id. 332.
2. It is objected that so much of the act as seeks to punish for engaging in a fight in the nature of a prizefight is unconstitutional, as the title is not broad enough to include this provision. The title is—
“An act to prohibit, discourage, and punish prize-fighting within the State of Michigan.”
We do not think the statute open to this precise objection, as we are unable to see that the words, “ or any other fight in the nature of a prize-fight,” can be treated as defining any offense other than a prize-fight. The elements which go to constitute any other fight in the nature of a prize-fight are not defined in the statute, and there is no source to which we can go to ascertain the legislative intent. We think, therefore, but one offense is defined in the statute. It follows from this that the second count of the information charges no offense.
The court, in its charge to the jury, undertook to define what constitutes a prize-fight, and instructed the jury as follows:
“ A prize-fight is defined to be where two persons, by an agreement between themselves, or by their authorized agents, or by any other person, with their (the principal's) consent and acquiescence, meet together in a ring, or its equivalent, in the presence of other persons, present as spectators, and for money or other valuable property strike at and against each other with their hands and fists, whether their hands or fists are' bare or inclosed in gloves of any weight, and whether the same is for ‘ points,' so called, or for personal conquest alone, and whether for a limited number of rounds or to a finish, provided, that the arrangement or agreement was such that a ‘knock-out,' so called, shall be deemed to be a point in favor of the contestant inflicting the same, and against the person suffering therefrom, to an extent that the greater portion of the money or other valuable thing is given to the one who inflicts the injury and knockout than is given to him who suffers the same.
“ A fight in the nature of a prize-fight is one containing all the elements of a prize-fight, except that it shall not be necessary to prove that any money or valuable thing passed to either or both of the contestants on account of the fight."
A want of familiarity with the terms employed in the charge makes it difficult fox us to determine whether the respondent was prejudiced by the instruction given by the learned trial judge. It is apparent that it would have been far better to employ language which could be interpreted by one unskilled in the terms employed by the profession, especially as the evidence is not returned, and we are unable to gather from anything in the record what the term “knock-out" means. We think to constitute prize fighting under this statute there must have been an expectation of reward to be gained by the contest or competition, either to be won from the contestant or to be otherwise awarded; and there must have been an intent to inflict some degree of bodily harm upon the contestant. Whether these elements of the offense existéd in the present case we are not instructed by the evidence, and we are unable to determine from the language employed by the charge that the jury were required to find the presence of these elements before they should return a verdict of guilty. See 19 Amer. & Eng. Enc. Law, 157.
The other questions presented are not likely to arise on a new trial.
The conviction will be set aside, and a new trial ordered upon the first count of the information.
McGrath, Long, and Grant, JJ., concurred with Montgomery, J. Hooker, C. J., concurred in the result. | [
9,
-12,
15,
21,
-36,
-5,
-35,
-5,
0,
-15,
-10,
27,
6,
2,
54,
4,
-42,
-32,
-1,
13,
33,
11,
-9,
-6,
62,
-21,
46,
42,
-26,
2,
45,
36,
2,
20,
-28,
3,
19,
-15,
-11,
19,
-23,
-15,
12,
-18,
-11,
37,
-49,
18,
-4,
-53,
-6,
-2,
22,
-4,
10,
0,
-17,
28,
49,
25,
-15,
-8,
-39,
-21,
-14,
-47,
24,
-19,
6,
-62,
-29,
-16,
-61,
-5,
-55,
-3,
11,
27,
15,
47,
-33,
32,
19,
-34,
-27,
-19,
40,
-51,
29,
-59,
34,
-8,
-32,
-36,
9,
-33,
11,
21,
-1,
-4,
44,
4,
24,
23,
1,
32,
15,
16,
-35,
25,
-5,
10,
26,
-54,
-33,
-46,
-16,
-37,
0,
-16,
2,
-14,
55,
55,
-21,
-5,
-38,
-51,
-23,
12,
11,
51,
-16,
-73,
-9,
9,
-7,
8,
12,
-7,
63,
-7,
4,
3,
8,
16,
-45,
0,
-3,
-14,
-60,
0,
22,
17,
4,
-7,
23,
-7,
20,
21,
2,
51,
-58,
3,
24,
-35,
-11,
2,
15,
12,
-50,
-7,
-4,
45,
31,
-20,
30,
-36,
-5,
66,
12,
-16,
-9,
5,
-31,
-11,
-26,
0,
-55,
2,
36,
-8,
-18,
10,
47,
26,
-8,
-4,
22,
-3,
-7,
-7,
-11,
-11,
-22,
32,
-1,
38,
-53,
-23,
-41,
-17,
-1,
-13,
0,
-9,
35,
-14,
4,
27,
-66,
20,
-14,
18,
28,
-72,
-32,
13,
-14,
25,
0,
99,
-17,
-26,
-18,
-51,
-18,
15,
47,
12,
-24,
14,
-22,
-5,
58,
-38,
-9,
13,
-47,
29,
33,
-32,
18,
26,
-67,
-31,
10,
-4,
3,
-41,
-60,
23,
14,
20,
-39,
-18,
24,
0,
-56,
-19,
-7,
-34,
3,
-13,
-1,
-10,
-55,
-6,
18,
-21,
37,
41,
47,
20,
-58,
16,
-63,
38,
-10,
-17,
27,
-49,
-44,
-11,
51,
35,
53,
-34,
-24,
-4,
23,
10,
81,
-7,
3,
-23,
24,
-94,
-35,
-38,
9,
31,
2,
-29,
40,
16,
26,
5,
9,
-61,
-17,
-34,
21,
-46,
14,
38,
27,
-18,
14,
11,
7,
10,
6,
-35,
-10,
-23,
25,
-48,
24,
-19,
-35,
-58,
32,
-16,
-19,
69,
-56,
6,
0,
-24,
-41,
3,
3,
-4,
9,
-25,
-4,
15,
28,
-16,
23,
52,
24,
-40,
-18,
11,
5,
-18,
-1,
67,
37,
-51,
27,
24,
-18,
0,
68,
-10,
-22,
2,
-17,
10,
26,
-35,
40,
36,
-19,
-21,
4,
10,
-4,
2,
5,
17,
49,
63,
11,
-2,
59,
-42,
5,
-21,
42,
-3,
0,
-18,
31,
-45,
17,
-1,
19,
37,
19,
16,
49,
11,
-16,
-18,
23,
2,
46,
-4,
18,
18,
25,
-33,
1,
-6,
1,
-56,
-12,
24,
-12,
-43,
-59,
8,
-2,
8,
-5,
-57,
-34,
-7,
14,
37,
17,
-10,
25,
-1,
-14,
1,
-31,
6,
-56,
2,
-40,
45,
9,
5,
64,
56,
-11,
25,
-6,
1,
30,
-7,
-27,
-12,
31,
-17,
0,
-37,
-2,
-3,
17,
35,
4,
18,
1,
-33,
-10,
28,
0,
-19,
-22,
-33,
-60,
30,
32,
-9,
-40,
-16,
24,
77,
3,
35,
-11,
19,
-31,
25,
-24,
-1,
1,
0,
15,
16,
7,
-21,
30,
0,
-12,
65,
8,
-38,
33,
-33,
19,
7,
-21,
-18,
48,
-56,
-4,
-7,
17,
-31,
14,
-56,
-13,
-35,
64,
15,
18,
-80,
63,
-39,
-29,
-50,
8,
42,
-21,
34,
28,
32,
-17,
-27,
16,
4,
29,
55,
-42,
22,
32,
-28,
-28,
-7,
53,
0,
-7,
-9,
-13,
0,
12,
-11,
-6,
-7,
10,
0,
70,
31,
20,
15,
-1,
10,
-36,
9,
49,
18,
-17,
10,
36,
0,
-51,
14,
-2,
3,
-11,
5,
9,
-62,
-3,
-13,
6,
28,
6,
-22,
-50,
-11,
-17,
-29,
39,
-24,
-12,
-22,
24,
-31,
23,
25,
-54,
-25,
-30,
22,
7,
48,
-19,
47,
-26,
-27,
6,
12,
53,
16,
10,
32,
48,
-45,
-68,
1,
-3,
-39,
-34,
-45,
-32,
25,
-9,
-3,
-19,
21,
-39,
9,
-24,
26,
3,
-45,
0,
13,
-14,
49,
3,
-5,
5,
1,
-56,
-71,
-1,
-47,
-3,
44,
26,
-25,
18,
6,
-8,
56,
35,
-1,
34,
-29,
21,
-1,
29,
-5,
5,
26,
41,
-48,
0,
-15,
85,
14,
16,
-48,
29,
-29,
5,
20,
-4,
21,
-22,
43,
39,
28,
11,
-16,
-6,
22,
58,
-65,
-22,
19,
11,
32,
17,
-15,
21,
-26,
1,
-5,
18,
8,
10,
-13,
-42,
25,
-30,
26,
1,
11,
-15,
12,
-22,
-51,
48,
-44,
62,
66,
51,
38,
19,
14,
36,
-17,
-12,
65,
21,
16,
-28,
-14,
-57,
18,
-34,
-28,
32,
-18,
4,
-32,
-7,
-18,
-7,
76,
35,
52,
13,
-16,
-38,
33,
12,
-18,
-61,
-17,
-55,
29,
-16,
-101,
-65,
-12,
-51,
-26,
61,
-7,
-19,
-10,
19,
-10,
-18,
36,
-69,
-29,
-21,
5,
45,
-18,
-22,
9,
-31,
-2,
-40,
-11,
-4,
-9,
-32,
-56,
0,
13,
-10,
-49,
-13,
-6,
7,
21,
-8,
7,
33,
16,
-47,
4,
29,
22,
-7,
-6,
-38,
12,
2,
-16,
-11,
-40,
7,
5,
-15,
-22,
0,
-19,
21,
-58,
16,
-6,
-6,
-18,
-17,
-38,
10,
16,
-3,
18,
71,
18,
21,
-13,
-39,
-1,
38,
-3,
19,
7,
-29,
19,
-4,
-5,
18,
-33,
15,
13,
-33,
2,
-2,
-36,
9,
-10,
17,
52,
12,
-16,
-12,
-15,
-7,
-30,
14,
13,
17,
-31,
18,
67,
-22,
12,
-38,
35,
-73,
3,
-36,
10,
-27,
-50,
8,
-1,
-1,
-4,
-57,
-29,
-27,
-6,
71,
-22,
36,
19,
-17,
-11,
12,
6,
11,
-20,
41,
8,
-32,
-2,
-29,
0,
18,
-7,
12,
73,
22,
-37,
35,
19,
-9,
29,
0,
-23,
36,
-21,
34,
65,
28,
37,
-12,
3,
-31,
-8,
-33,
42,
7,
-65,
0,
-33,
-2,
1,
-2,
23,
50,
78,
-6,
36,
2,
-7,
-19,
-9,
-53,
20,
0,
0,
-22,
16,
-3,
31,
-27,
-19,
-9,
35,
9,
-28,
19,
58,
-9,
-28,
19,
48,
-2,
-44,
-21,
-30,
-5,
-71,
-54,
-8,
52,
-31,
19,
-2,
28,
-30,
47,
13,
25,
-4,
-51,
-7,
23,
30,
-24,
-12,
0,
-20,
-34,
-23,
0,
30,
-6,
0,
-14,
-38,
-11,
-3,
42,
-7,
14,
21,
32,
26,
18,
-70,
-25,
0,
-45,
23,
-62,
75,
11,
-5,
-26,
-16,
-25,
49,
-10,
24
] |
McGrath, J.
This is a- proceeding in chancery to foreclose a mortgage given by defendants Beck. A prior statutory foreclosure had been had for installments of interest, and upon the sale the premises were bid in by complainant. Before the year had expired, defendant Edgar, for a nominal consideration, took • a deed from defendants Beck, and paid the amount for which the premises had been sold to the register of deeds. The notice of sale recited that there was due at that date $293.10 of principal, and $100.02 of interest, and that the sale was for the purpose of recovering the amount of said interest and the costs of foreclosure. Defendant now insists that the former sale extinguished the mortgage.
Subdivision 4, § 8498, How. Stat., provides that,—
“In cases of mortgages given to secure the payment of money by installments, each of the installments mentioned in such mortgage after the first shall be taken and deemed to be a separate and independent mortgage, and such mortgage for each of such installments may be foreclosed in the same manner, and with the like effect, as if such separate mortgages were given for each of such subsequent installments, and a redemption of any such sale by the mortgagor shall have the like effect as if the sale for such installments had been made upon an independent prior mortgage.”
This statute was undoubtedly intended to include installments of interest becoming due by the terms of the mortgage, as well as installments of principal. It was evidently passed, as is said by Mr. Justice Cooley, in McCurdy v. Clark, 27 Mich. 445, 447, “in consequence of the decision in Kimmell v. Willard’s Adm’rs, 1 Dong. 217, in which it was held that a foreclosure under the power of sale for the satisfaction of one installment, and a sale of the land therefor, forever disincumbered the land of the mortgage.” In the Ximmell case the foreclosure was for installments of interest past due; the discussion relates to “ installments ” past due, and to become due; and the syllabus recites that—
“ Where a mortgage is foreclosed by advertisement under the statute for a default in the payment of one of several installments, and the mortgaged premises are bid off for the amount of such installment only, they are thereby forever disincumbered of the mortgage.”
The decision was handed down at the July term, 1843, and tbe section of the statute above referred to was enacted in 1844. The Legislature seems to have adopted the term “ installments ” as used in that case, and there is nothing to indicate the use by it of that term in a more restricted sense than it was used by the Court. It certainly cannot be said that the amendment avoids the consequences which would result from that adjudication under a similar state of facts, unless the word “installments” is construed to include installments of interest. The amendment does not in express terms refer to installments of principal only, and a mortgage is given to secure the payment of installments of interest, as well as installments of principal.
It is true that in Miles v. Skinner, 42 Mich. 181, 185, language is used which is opposed to this view, but in that case the foreclosure was for one of several installments of principal, as well as an. installment of interest, both of which became due November 16,'1867. ' The notice was dated January 15, 1868. The sale was had April 14, 1868, and interest was computed upon the principal not due, as well as upon the past-due principal, from November 16, 1867, the date when the installments of principal and interest became due, until the date of sale, including about five months' interest not due at the date of sale. Otherwise, the proceeding would have been within the protection of the statute, in any view; for that was a foreclosure for an installment of principal, as well as for an installment of interest, and the same result must must have followed if it had been upon a foreclosure commenced for an. installment of principal only, and the sale had included interest not yet due upon other installments. A foreclosure of a mortgage payable in installments, for an installment of principal, that did not include an installment of past-due interest upon unmatured installments of principal, would be a rare proceeding, and, if the inclusion of past-due interest upon installments of principal not yet due is held to exhaust the mortgage, it is safe to say that very few foreclosures of installments, had under the statute, have not disincumbered the land of the mortgage. It certainly was not the intention of the Legislature that, in a proceeding to foreclose one of the several installments of principal, past-due interest upon other installments of principal not yet due should be excluded. The language referred to as used in Miles v. Skinner was not necessary to the decision of that case, and therefore must be disregarded.
The statements in the brief of counsel for appellant, in the present case, that the amount for which the premises were sold included accrued interest on the whole amount owing on the mortgage up to date of sale, and that interest was reckoned from the date of the note up to the time of the sale, are not supported by the record. The mortgage was for $293.10, and had run four years and nearly three months, at 10 .per cent. The notice set forth the amount of interest due as $100.02. The sale was for $102.50, and costs, showing that the only interest added at the time of the sale was the accrued interest on the amount stated in the notice.
The decree is affirmed, with costs to complainant, and the record remanded.
The other Justices concurred. | [
2,
47,
14,
8,
-33,
57,
19,
6,
-17,
19,
46,
-3,
-7,
48,
-11,
37,
-8,
-34,
-22,
14,
-16,
-36,
-56,
7,
11,
-8,
25,
-41,
36,
50,
-17,
-9,
-55,
36,
-2,
3,
-25,
-39,
58,
-6,
-4,
24,
26,
8,
-40,
1,
0,
-67,
54,
9,
16,
-8,
52,
0,
49,
37,
-27,
-5,
-33,
-18,
-7,
-45,
-32,
31,
-20,
-6,
-16,
1,
32,
-71,
-25,
-25,
-2,
-17,
6,
35,
0,
10,
-38,
-7,
39,
-42,
12,
12,
-8,
-13,
26,
-60,
-37,
7,
-32,
11,
14,
-3,
14,
19,
55,
44,
45,
-3,
8,
11,
-28,
22,
-14,
-40,
-39,
-50,
4,
5,
-14,
-8,
28,
-33,
-50,
-22,
-39,
-14,
12,
-50,
-47,
-13,
-47,
-36,
29,
21,
-53,
10,
-50,
10,
6,
12,
-31,
42,
0,
-44,
23,
-27,
-8,
-28,
39,
-3,
-23,
-50,
9,
-4,
51,
-52,
6,
23,
-43,
19,
-2,
30,
0,
-11,
27,
21,
-34,
-82,
40,
-51,
17,
-52,
-65,
14,
-62,
3,
-9,
4,
54,
9,
-20,
0,
-3,
-61,
19,
-20,
-1,
-51,
7,
26,
26,
10,
41,
-16,
-54,
-8,
21,
-26,
8,
9,
1,
11,
11,
13,
-62,
-1,
0,
-23,
-12,
-24,
29,
-18,
-14,
-7,
26,
3,
29,
-4,
-45,
-2,
-24,
-38,
-90,
-2,
10,
4,
27,
-2,
17,
41,
7,
-27,
-27,
-21,
-24,
-18,
20,
29,
-18,
-12,
5,
17,
-12,
29,
66,
5,
18,
17,
-6,
10,
4,
-30,
-24,
-14,
-14,
34,
13,
1,
-25,
-24,
-37,
60,
7,
38,
-31,
-15,
-6,
-8,
8,
39,
-34,
-15,
2,
-4,
38,
-12,
-25,
12,
-31,
-3,
41,
72,
7,
6,
-54,
-41,
-43,
28,
62,
9,
53,
4,
-14,
57,
-42,
55,
25,
21,
21,
-23,
19,
-13,
34,
4,
-18,
-36,
46,
-9,
46,
-18,
-16,
-3,
-6,
17,
22,
-16,
-45,
-19,
14,
1,
35,
6,
50,
15,
-22,
-3,
58,
-15,
52,
30,
-8,
-19,
59,
36,
81,
-63,
-36,
29,
-23,
-47,
-16,
-6,
18,
32,
19,
-16,
-66,
45,
12,
-2,
-11,
13,
33,
-10,
-27,
-7,
-14,
17,
-62,
17,
-33,
82,
12,
-37,
-41,
1,
17,
7,
40,
-5,
-20,
-27,
15,
34,
9,
-13,
0,
26,
8,
56,
-45,
6,
-25,
8,
-7,
-14,
-44,
27,
-7,
-23,
46,
14,
26,
12,
-21,
-23,
6,
0,
-37,
-39,
28,
-32,
4,
-41,
-4,
9,
-50,
-79,
-16,
-3,
-18,
-26,
-21,
51,
9,
-28,
-2,
28,
-11,
3,
-68,
4,
-30,
2,
37,
4,
7,
9,
38,
16,
2,
-24,
0,
0,
14,
-14,
-76,
13,
-4,
40,
-18,
-22,
19,
0,
-42,
1,
-17,
42,
-20,
-21,
-2,
-2,
34,
-6,
-61,
-19,
60,
-32,
-52,
-25,
42,
29,
-11,
3,
22,
-56,
-49,
-29,
59,
-25,
52,
-33,
10,
0,
-2,
-23,
-30,
-3,
-21,
16,
19,
3,
-59,
16,
4,
44,
3,
35,
6,
-31,
-9,
24,
-48,
-60,
-40,
-29,
34,
-43,
49,
0,
43,
-8,
-16,
-65,
-8,
-16,
-21,
19,
55,
-33,
42,
12,
22,
-50,
29,
-11,
2,
37,
-2,
-3,
21,
27,
2,
59,
16,
-4,
18,
22,
34,
-37,
-56,
-30,
-30,
2,
15,
55,
-16,
-14,
1,
-11,
20,
16,
-27,
58,
16,
-6,
26,
21,
-58,
24,
-10,
76,
35,
59,
31,
-16,
3,
-23,
-12,
-29,
9,
46,
-36,
41,
-4,
-39,
9,
-4,
-19,
10,
26,
-46,
32,
-52,
-1,
-32,
-49,
15,
-38,
-15,
0,
-5,
3,
-40,
-4,
2,
-6,
15,
-16,
6,
-22,
-56,
-5,
58,
27,
9,
8,
44,
-3,
13,
-22,
-24,
-40,
-26,
6,
13,
-1,
35,
-44,
12,
-37,
-46,
10,
-42,
-5,
4,
24,
24,
3,
-20,
-10,
38,
26,
-10,
41,
-45,
7,
17,
20,
46,
9,
-31,
-28,
-8,
6,
14,
-12,
29,
-6,
11,
-34,
-56,
-44,
-13,
28,
-37,
-12,
-26,
-16,
29,
-41,
-21,
-16,
-12,
-21,
-10,
20,
-23,
-19,
41,
26,
-2,
55,
0,
44,
-34,
41,
-42,
33,
0,
-30,
-19,
50,
-58,
48,
-1,
-16,
-5,
6,
36,
0,
-20,
34,
-1,
-32,
12,
53,
-12,
26,
-20,
10,
-1,
15,
-10,
20,
-49,
0,
31,
33,
-20,
-40,
-26,
-5,
-13,
33,
86,
55,
9,
73,
-35,
47,
32,
-48,
-10,
-35,
-8,
-8,
-4,
10,
30,
29,
-40,
5,
25,
13,
-15,
-41,
11,
49,
-9,
29,
-44,
10,
-15,
66,
-18,
-20,
5,
1,
-1,
-29,
0,
-29,
44,
39,
2,
33,
36,
-29,
30,
-30,
-38,
10,
-11,
3,
55,
17,
-39,
10,
-6,
26,
26,
9,
-14,
3,
-29,
-23,
0,
-44,
39,
-22,
15,
33,
13,
18,
-22,
25,
-58,
-38,
15,
-18,
13,
20,
-24,
15,
-4,
67,
-19,
0,
-13,
-29,
-20,
-6,
-30,
16,
26,
58,
16,
41,
37,
4,
-18,
-55,
21,
32,
3,
2,
-20,
11,
0,
-6,
4,
9,
2,
-71,
27,
5,
15,
-12,
-31,
-9,
-46,
-28,
53,
14,
30,
-51,
14,
-1,
51,
-3,
-42,
-57,
44,
18,
8,
-6,
41,
31,
-21,
-35,
-2,
25,
-15,
-28,
17,
25,
0,
-56,
-30,
43,
-31,
23,
17,
47,
-7,
-22,
-17,
-7,
-20,
30,
-7,
-42,
-12,
-49,
54,
1,
-23,
38,
30,
4,
-12,
48,
-29,
-9,
25,
28,
37,
-24,
-9,
-6,
15,
8,
27,
19,
-63,
4,
-20,
32,
50,
-49,
48,
-14,
-15,
-2,
-21,
-20,
66,
-27,
-5,
-83,
44,
11,
-17,
24,
-17,
-7,
12,
-23,
-40,
25,
-42,
30,
56,
-2,
51,
11,
37,
0,
-9,
0,
-32,
-39,
30,
-8,
-33,
11,
25,
0,
40,
-63,
-40,
18,
-50,
31,
-26,
-26,
3,
-53,
49,
-49,
35,
-14,
-66,
-27,
-50,
-22,
15,
-18,
51,
29,
79,
-35,
57,
33,
-35,
28,
30,
-41,
-16,
50,
35,
19,
19,
-5,
-27,
-39,
-16,
22,
-19,
-6,
-60,
56,
-34,
14,
6,
-9,
-28,
20,
-7,
-21,
-14,
4,
-3,
39,
-36,
-24,
-24,
24,
-60,
6,
39,
-74,
18,
24,
-29,
-11,
9,
10,
4,
50,
-31,
-13,
2,
10,
28,
4,
-27,
31,
23,
7,
-5,
23,
0,
8,
77,
3,
-22,
-42,
-52,
64,
3,
-7,
-5,
-10,
59,
13,
25,
-3,
39,
-32,
82
] |
McGrath, J.
This case is in most respects similar to the case of Tousignant v. Shafer Iron Co., ante, 87, and is ruled thereby.
There was some testimony tending to show that plaintiff and one of the other persons in whose behalf suit was brought had actual knowledge of the change in employers.
The. question of notice or knowledge is one of fact for the jury. Actual knowledge, however acquired, dispenses with the necessity for notice. 17 Amer. & Eng. Enc. Law, 1121; Davis v. Keyes, 38 N. Y. 94; Dickinson v. Dickinson, 25 Grat. 321; Ennis v. Williams, 30 Ga. 691. Such facts must be made to appear as will warrant a jury in believing that the party had actual knowledge. 17 Amer. & Eng. Enc. Law, 1122. The court instructed the jury that, if any of the men received notice or knowledge in .any way that Jennings was the man they were working for, and not the Shafer Iron Company, they could not recover. We think that that question was fairly submitted.
The judgment is reversed, and a new trial granted.
The other Justices concurred. | [
15,
7,
-1,
-16,
-13,
19,
-56,
-55,
-46,
43,
43,
-53,
36,
30,
-9,
-16,
-2,
18,
12,
-61,
-11,
-6,
-16,
-8,
1,
-45,
-39,
45,
-34,
0,
10,
12,
-25,
13,
-29,
-34,
24,
32,
-36,
-25,
2,
53,
9,
-24,
-3,
4,
-41,
-9,
-7,
-25,
79,
22,
17,
-25,
32,
-10,
-35,
22,
-19,
42,
-27,
-23,
25,
29,
11,
-20,
54,
-35,
-25,
13,
-57,
-20,
-2,
-37,
29,
-22,
-17,
64,
-26,
-14,
-1,
-36,
6,
-4,
-28,
2,
37,
-32,
-3,
2,
-8,
-49,
0,
-17,
7,
46,
49,
56,
9,
22,
8,
10,
-12,
-7,
45,
12,
-34,
6,
-36,
10,
-23,
-5,
43,
-1,
-67,
-12,
22,
-16,
-26,
-7,
-15,
2,
18,
56,
24,
-31,
21,
-38,
-15,
-12,
-2,
-5,
12,
22,
6,
25,
71,
-58,
-33,
-21,
30,
-2,
20,
-1,
-31,
53,
-5,
11,
-57,
-33,
-9,
2,
-1,
-29,
-27,
-18,
18,
-62,
57,
-26,
38,
66,
32,
12,
-11,
3,
-14,
-25,
-5,
0,
2,
-25,
10,
24,
6,
-27,
16,
-51,
-44,
-13,
-20,
29,
-11,
35,
8,
5,
-16,
23,
-19,
39,
42,
31,
-2,
21,
25,
13,
-36,
-1,
67,
-30,
29,
36,
10,
8,
5,
101,
-6,
-29,
-1,
10,
-38,
35,
-53,
-57,
2,
8,
-63,
-8,
9,
-39,
-21,
25,
-11,
21,
-45,
-33,
-6,
19,
41,
8,
-25,
-1,
33,
20,
-40,
-10,
19,
-47,
43,
16,
-31,
-54,
11,
1,
-26,
4,
36,
-21,
-53,
47,
17,
-1,
25,
28,
-29,
-40,
-15,
8,
-18,
-44,
-17,
73,
-31,
20,
11,
-19,
2,
27,
-40,
-6,
-5,
-35,
39,
31,
-20,
-11,
-14,
14,
-10,
26,
-28,
41,
-2,
49,
-6,
24,
-16,
16,
-48,
6,
47,
-18,
-18,
-10,
59,
-9,
13,
-21,
-28,
-17,
9,
18,
-10,
-1,
-50,
14,
-23,
-24,
0,
7,
-8,
40,
9,
-44,
-2,
27,
12,
24,
16,
-53,
-29,
50,
40,
-50,
-23,
-20,
21,
-77,
-9,
2,
-19,
24,
37,
8,
27,
-5,
44,
-13,
1,
20,
14,
-52,
-41,
-45,
-2,
-10,
10,
8,
17,
-12,
29,
34,
-15,
-11,
21,
26,
8,
-7,
4,
-2,
33,
-24,
2,
60,
-29,
13,
-36,
-26,
12,
-3,
-29,
-8,
33,
-47,
22,
-66,
4,
26,
-45,
19,
-12,
14,
70,
-38,
5,
56,
8,
26,
-42,
-27,
-27,
-44,
7,
45,
-15,
42,
9,
5,
41,
-46,
-34,
-4,
-39,
-31,
-20,
0,
-41,
-60,
10,
-10,
-13,
30,
20,
16,
-2,
-55,
8,
-37,
26,
6,
45,
8,
-10,
-27,
-28,
-5,
11,
42,
-25,
0,
-34,
-23,
-1,
-14,
-38,
30,
9,
-11,
21,
12,
-76,
-8,
-23,
10,
27,
-4,
-66,
-5,
9,
-19,
-45,
14,
19,
9,
26,
-31,
14,
-53,
31,
56,
10,
6,
15,
-15,
-4,
25,
-15,
-43,
-1,
-5,
16,
9,
13,
25,
15,
6,
16,
34,
49,
23,
27,
23,
25,
-5,
-48,
-10,
-30,
-14,
43,
13,
10,
-29,
-20,
-13,
-9,
28,
-24,
13,
-37,
42,
-39,
-6,
13,
-56,
30,
4,
13,
-67,
29,
38,
1,
-5,
26,
1,
31,
-1,
-8,
17,
-9,
0,
-16,
-69,
25,
7,
-15,
6,
21,
-28,
-6,
-69,
43,
70,
35,
-28,
84,
30,
4,
-46,
3,
3,
-42,
8,
-32,
2,
13,
7,
6,
-12,
0,
26,
-36,
-24,
-10,
20,
8,
-64,
15,
28,
37,
-51,
-41,
54,
-3,
-22,
10,
-2,
-17,
9,
57,
-36,
-21,
-17,
-20,
49,
-34,
33,
-8,
29,
-4,
10,
55,
20,
-11,
-23,
-30,
-13,
33,
-56,
-25,
-24,
-28,
-9,
25,
-5,
-25,
-30,
35,
-17,
-12,
62,
15,
-8,
-43,
-13,
-6,
-12,
6,
-1,
8,
0,
10,
-12,
-10,
-46,
-10,
-3,
-12,
-33,
23,
-4,
39,
25,
-33,
-2,
62,
35,
-25,
21,
-34,
-32,
-27,
9,
-45,
-40,
10,
19,
18,
25,
8,
-16,
37,
-26,
40,
-26,
16,
-40,
5,
43,
-21,
-36,
-4,
12,
39,
-59,
-11,
43,
26,
2,
-34,
-10,
15,
5,
4,
-18,
0,
-8,
10,
-38,
38,
-34,
-27,
7,
32,
25,
35,
-45,
25,
-5,
5,
11,
32,
-27,
23,
2,
22,
-6,
28,
-21,
-10,
-18,
12,
33,
-8,
-16,
-24,
7,
56,
-14,
-9,
-29,
-28,
-4,
-7,
-14,
4,
26,
-17,
-31,
16,
36,
15,
-2,
-46,
15,
-25,
59,
-29,
11,
-19,
-21,
4,
32,
25,
-6,
-20,
35,
22,
-9,
-18,
48,
21,
40,
-34,
34,
23,
-13,
2,
-41,
-25,
-34,
16,
14,
34,
-15,
-13,
25,
39,
6,
14,
49,
17,
0,
3,
-36,
10,
11,
11,
16,
-28,
-16,
52,
20,
-42,
-68,
7,
15,
-15,
-24,
-41,
-7,
-25,
-3,
23,
7,
-19,
43,
9,
13,
-11,
-15,
26,
29,
-13,
3,
-8,
-59,
-10,
9,
26,
50,
34,
-14,
-4,
-1,
-8,
0,
-49,
43,
4,
-11,
26,
33,
5,
36,
29,
5,
33,
-3,
61,
-26,
9,
14,
15,
-4,
-69,
16,
-39,
-4,
-17,
0,
-34,
25,
20,
-14,
1,
-7,
2,
-16,
-12,
1,
39,
-59,
-36,
29,
19,
3,
-22,
38,
-16,
14,
25,
-32,
-9,
-3,
3,
-3,
-11,
66,
-6,
-16,
0,
58,
29,
-1,
-5,
3,
5,
-66,
56,
47,
8,
-27,
-33,
13,
36,
-50,
-35,
-11,
23,
-68,
12,
9,
-21,
-29,
-79,
-5,
8,
-26,
23,
3,
3,
19,
7,
11,
-25,
0,
12,
-52,
27,
29,
62,
13,
-1,
-2,
-12,
-18,
43,
-16,
-29,
-8,
-20,
0,
-7,
24,
63,
-12,
8,
9,
-30,
47,
-20,
-4,
12,
-30,
14,
36,
-27,
12,
37,
15,
43,
22,
-26,
-6,
0,
-3,
-22,
24,
-18,
-12,
-16,
5,
23,
-45,
25,
9,
-14,
-57,
-47,
8,
-4,
-15,
-26,
7,
-36,
-16,
-28,
-11,
11,
-16,
-24,
-26,
7,
0,
-8,
2,
-44,
16,
2,
-12,
0,
48,
38,
18,
16,
27,
-26,
1,
9,
-37,
62,
9,
77,
-25,
28,
25,
29,
-27,
-4,
12,
7,
1,
-22,
38,
17,
-14,
-35,
-49,
-17,
-1,
4,
-5,
20,
26,
-29,
-3,
-62,
17,
40,
1,
9,
7,
-35,
7,
-33,
5,
40,
53,
4,
3,
-10,
-19,
11,
23,
-8,
12,
-32,
-2,
-50,
2,
30,
77,
-14,
17
] |
Long, J.
Defendants are the owners and publishers of the Charlotte Republican, a newspaper printed and published at Charlotte. This action is brought to recover damages for libel in the publication of two articles by the defendants in their paper. One was published July 34, 1891, and the other August 30 of the same year, and relate to the action of the plaintiff while a member of the board of supervisors of Eaton county. The first article, as set out in the declaration, is substantially as follows:
“ ANOTHER CHAPTER ON JOHN EWING.
“Editors Republican:
“ Some portions of the records and doings of the board of supervisors may be of interest to the tax-payers of the county.
“ October session of 1884, several petitions were presented to the board to abolish the office of county drain commissioner. A committee of three was appointed to investigate and report. A majority reported as follows:
“ ‘ Would respectfully report that, in our opinion, such a course at this time would be inexpedient, and prejudicial to the best interests of the county.’
“Mr. Ewing moved that the majority report be adopted. Motion prevailed. Moved to proceed to the election of drain commissioner, the same man being.elected by 11 votes.
“January 5, 1885, a committee of three appointed on drainage. Moved that all matters relating to drains and drainage, brought up at this session of the board, be referred to the committee, when appointed. Amended by adding the words-.-
“ ‘ And that the said committee be authorized to receive statements from persons in regard to reports in circulation respecting the action of the present drain commissioner in his duties as such commissioner.’
“Amendment prevailed, and original, as amended, carried; Mr. Ewing being appointed on the committee. January 8, moved that the board deem it inexpedient for the committee to visit the Milbourn extension drain. Motion prevailed. January 15, committee made a report, which is on file in the clerk’s office, a part of which is as follows:
“ ‘That there be a committee appointed from this board, whose duties it shall be to hear grievances from any parties, arising from any irregularities of said commissioner; and, if said charges seem to warrant the action of the board of supervisors before their next regular session, then it shall be the duty of said committee to have the board called together, that they may take action on said charges. And we do recommend, as we have not a satisfactory report from said commissioner, that he be requested to make, on or before the 18th of February next, to said committee, an itemized statement,’ etc.
“ — Which was done by said commissioner, and is now on file in the clerk’s office. Not one word authorizing Reformer Ewing to spend so many days at $3 per day, and travel so many miles at 10 cents per mile.
“A claim for damages having been presented for certain acts of the drain commissioner, on October 18, 1885, Mr. Ewing, for the committee, submitted the following report:
“‘Would report that we have carefully considered the same, and we do not believe the county is in any way responsible, and would refer you to Michigan Reports, vol. 49, page 479, which says: “A township is not responsible for the defaults and misconduct of its drain commissioner in the performance of his statutory duties.” Your committee would report the said claim back to this body, with the recommendation that the same be disallowed.’
“Motion prevailed. Then he brings claim for $61.80, as stated last week by your correspondent. O consistency, thou art a jewel I
“ He figures very liberally on his own claims, but reports a ’claim of Dr. E., and moves that it be allowed at $5 — one-half the amount claimed. He also reports the claim of Dr. A., of $45, and moves that it be allowed at $20. All this without regard to the value of the services performed. Many more such instances could be cited, but these are sufficient to convey an idea of his methods on the board. Oh, yes, he loves the tax-payer, as the following items will show: The total amount received by him from the tax-payers of Eaton county in the last eight years, so far as found, foots up at $848.62, and this does not include what he has received from his own town as supervisor. We even find that he has drawn from the county treasurer, for his services in caring for the poor of his township since November, 1883, the sum of $92.50, being $11.56.per year. We doubt if the poor families in the county, receiving help, will average as much for the same length of time; the supervisors of Benton, Bellevue, and Vermontville, combined, only drawing $121.74 for their services. We mention these towns, as each has a village. Economy for the tax-payer, you see, is his motto.
“We now present a tabulated statement of the amount drawn by him for services and mileage for the various sessions of the board, and the amounts to which he was lawfully entitled.”
The tabulated statement is not set nut here, but consists of a statement of the number of miles charged for traveling, and miles which it is claimed he was entitled to; days charged, and days he was entitled to; and the amount of claimed overcharge, — in each year from 1883 to and including the session of the board in 1891; making a total claimed overcharge for per diem and mileage of $200.82. Continuing, the article reads;
“Now, to be fair with Mr. Ewing, his'attention is called to the above table, and he is invited to select out such items therein as he deems to be wrong, and state to the public wherein they are incorrect; and we ask Mr. Ewing to state, over his own signature, what the distance (by the nearest traveled route) is from his home to Charlotte. To be exact, is it not 13% miles? Also we ask him what the statutory fee allowed members of the board of supervisors per mile is; and, again, to state the statute which allows him fees as supervisor for any work, except during the session of such board. When he does this, we have a long list of others to call his attention to; and, like Banquo’s ghost, these inquiries will not down until they are answered, and until this modern reformer has himself reformed. Oh, yes, he loves the tax-payer, and is ‘very careful of the people’s money,’ when he ‘gets it.’
. “One of the Tax-payers.”
The second article, as set out in the declaration, is as follows:
“We have waited patiently to hear Reformer John deny the charges made in the Charlotte Republican, of taking money from the treasury that did not belong to him, yet we have heard nothing drop. Let her drop, John.”
The defendants, under their plea of the general issue, gave notice, among other matters of defense, that the statements contained in the articles were true. These articles were put in evidence on the trial. It was admitted by plaintiff that he received the several sums of money mentioned in the tabulated statement, but he claims he received them for services on committees at times when the board was not in session, and that at such times, and for such services, he could lawfully take this compensation. It was further insisted that the articles charged him with receiving such moneys at times when the board was in session.
The court below directed the jury that the first article charged the plaintiff with having taken this 1200.82 unlawfully, and that it was libelous per se, and could be defended only by showing its truth. He also directed the jury that there was a controversy between counsel as to its meaning.
Counsel for plaintiff, it seems, contended in the court below, and he now contends here, that the article charged plaintiff with having received the money for mileage in attending sessions, and for services during such actual attendance for a greater number of days than the statute allows, and as extra compensation, which( he had no right to take. On the other, hand, it was claimed by defendants’ counsel in the court below, and is now claimed, that the article simply charged the plaintiff with having received the money for work done when the board was not in session, and that money so received was unlawfully taken; and it was further claimed that this statement was true. The court below left the question of the meaning of the article for the determination of the jury, saying:
“Does it mean, and does it convey the impression upon its face to the ordinary observer or reader, that the amounts and items charged here are for services and mileage performed in attending the sessions of the board, respectively, merely, or does it convey the impression that the items here include the amounts at other times, such as that mentioned in the proof, — for instance, work done upon committees at times when the board was not in session; mileage to and from one place or another, where it might be supposed to be necessary that such committee should work while the 'board was not in session? To determine this question, you are to take into consideration the entire article, and determine from that whether it will bear the latter construction. If it will, then, of course, evidence of money received, if unlawfully received, for such attendance upon committees, could be legitimately used to swell the aggregate to $200.82."
Of the second article, the court directed the jury that there could be no doubt of its meaning, and that it jDlainly charged that the plaintiff took money from the county-treasury that did not belong to him; that the publication of the two articles was not denied, and unless the defendants had proved both substantially and wholly true, in the sense they should be read, the verdict should be for the plaintiff.
The court was not in error in leaving the meaning of the first article to the determination of the jury. It was for them to say whether one reading it would be led to believe that it charged, or intended to charge, the plaintiff with having taken this money for services while on the board, and for more days than the statute allows, or whether it was simply intended to charge by the article that he took it for services when the board was not in session. The article is ambiguous, and it became a question of fact, for the jury, to determine its meaning. The language does not necessarily imply that the money was taken while the board was in session. The article asks Mr. Ewing “to state the statute which allows him fees as supervisor for any work, except during the session of such board.” There is no doubt that where the language of an alleged libel is ambiguous, and capable of being understood in an innocent and harmless, as well as an injurious, sense, its true interpretation is for the jury. Lewis v. Chapman, 16 N. Y. 371; Edwards v. Chandler, 14 Mich. 471.
It was a very material question, on the trial of this case, what interpretation the court or jury might give the article. If it applied to moneys unlawfully received while the board was in session, there was grave doubt whether there was sufficient proof of its truth; while, on the other hand, it was admitted that plaintiff received the money for doing committee work when the board was not in session, and it was claimed by plaintiff, as matter of law, that he had a right to receive it. This claim raises the other important question in the case. The court below directed the jury that the board of supervisors had no authority to appoint, such committees, and pay for services performed outside the session of the board, and that receiving money under such circumstances was unlawful.
How. Stat. §502, provides:
“Each member of such board of supervisors shall be-allowed a compensation of three dollars per day for his services and expenses in attending the meetings of said board, and six cents a mile for each mile necessarily traveled in going to and returning from the place of such meeting, to be audited by the board and paid by the county; which compensation of three dollars per day shall extend to and be allowed for the first twelve days only of any continuous regular session, and six days only for an adjourned session of said board, and for the first three days only of any special session of said board, of which special session there shall be no more than two in any one official year; which said amount shall be in full for all services rendered and expenses in attending the meetings of such board of supervisors, and for all services and expenses incurred while acting upon any committee of saidi board of supervisors during the session of said board; and ■any supervisor receiving further or other compensation for .such services shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one hundred ■ dollars nor more than five hundred dollars."
It is contended by counsel for plaintiff that the statute prohibits committees appointed by the board from receiving ■compensation only during the session of the board, and that any services rendered by a member while on a committee may be charged for and paid, if such services are rendered while the board is not in session.
It is evident from the reading of the statute that the Legislature intended to fix and establish the maximum amount that the members of the board of supervisors could receive for services rendered to the county, and not to leave it to the board to extend it beyond the limit fixed ,by this statute.
In Kennedy v. Gies, 25 Mich. 88, the statute of 1871, relative to the compensation of the board of auditors of Wayne county, came before this Court. That statute, after fixing the salary of the auditoré, recited, “which sum shall be in full for all services and expenses and traveling fees in attending upon the duties of the office," and made it ■a misdemeanor for any auditor to receive further or other ■compensation. It was held that the statute was not void under article 10, § 10, of the Constitution. It was said in that case:
“It is true that statutes and constitutions have sometimes given express power to certain township, or county, or city officers, or boards, to audit and allow their own ■claims for services, though this, when given, has .generally been from some supposed necessity, or when it could be ■of little moment, and subject to some restriction as to amount, or to review by some other tribunal. And it may, we think, be laid down as the sound and only safe rule that such a power can only be given by express words or necessary implication, and should never be recognized when the language used, when interpreted by the light of the past legislative and judicial history of the State, will permit a reasonable and probable inference of a contrary intent.”
If the statute were to be given the construction contended for by the plaintiff, it would be rendered wholly nugatory. Any member of a committee could be appointed by the board to act outside of, and beyond the session of, the board, and the absolute power would rest with the board to allow such member for any number of days and number of miles traveled, in its discretion. There would be no tribunal to review the action of the board, and it would leave the board judges of their claims, without any power of review. Clearly, it was not the intent of the Legislature to do this, but to fix the maximum amount which the members of the board might receive. The court below was correct in the construction of this statute.
Some other questions are raised. We have examined them, but do not deem it necessary to discuss them. The case was presented to the jury under a very full and fair charge, and the jury found in' favor of the defendants.
Judgment affirmed.
McGrath, Grant, and Montgomery, JJ., concurred. Hooker, C. J., did not sit. | [
-29,
12,
54,
-6,
55,
57,
52,
-30,
-4,
50,
5,
-57,
0,
-16,
-16,
-67,
35,
-14,
13,
19,
50,
-50,
7,
18,
-10,
-4,
11,
-37,
-13,
0,
25,
-48,
-19,
20,
16,
-3,
12,
-13,
2,
-24,
9,
-12,
-7,
-4,
-5,
34,
17,
34,
5,
-7,
18,
13,
18,
0,
-40,
-28,
33,
34,
59,
-9,
-50,
9,
-1,
-53,
30,
41,
-65,
-1,
41,
-13,
14,
13,
18,
-31,
59,
0,
-31,
-10,
-86,
22,
-95,
37,
18,
-63,
-29,
-5,
-27,
-22,
22,
-11,
34,
-7,
29,
40,
26,
-23,
-61,
-19,
-21,
-21,
-22,
16,
28,
16,
-22,
-5,
6,
-51,
25,
24,
-6,
-32,
34,
-27,
-13,
-86,
47,
-1,
-23,
-2,
4,
28,
35,
-47,
-38,
23,
43,
-26,
-67,
6,
33,
-11,
7,
-40,
45,
33,
5,
-24,
41,
-12,
0,
8,
12,
-15,
-35,
82,
-58,
6,
20,
70,
-6,
-6,
28,
15,
-9,
16,
37,
-12,
39,
14,
-12,
24,
31,
-67,
-46,
-12,
-15,
-1,
-25,
48,
35,
36,
12,
-11,
-33,
-23,
-11,
-35,
0,
46,
-2,
-44,
19,
37,
-58,
-40,
50,
-12,
-71,
0,
44,
0,
-9,
-55,
-21,
15,
13,
26,
21,
20,
16,
-6,
-14,
15,
-15,
-28,
-11,
22,
-17,
-7,
35,
9,
-28,
-3,
11,
2,
43,
10,
7,
3,
39,
1,
34,
20,
-20,
-8,
3,
-36,
-9,
-14,
65,
-31,
14,
17,
-22,
16,
-37,
37,
47,
67,
-54,
-4,
-36,
16,
10,
33,
5,
-64,
-34,
68,
15,
0,
-21,
15,
-53,
-8,
-23,
-43,
-30,
28,
49,
24,
-46,
1,
18,
16,
-32,
41,
17,
-51,
14,
35,
-39,
-8,
-29,
-22,
0,
-21,
-23,
14,
5,
1,
5,
-13,
-46,
-15,
-56,
12,
-4,
20,
12,
52,
-29,
-1,
41,
15,
58,
-11,
17,
-11,
31,
-16,
3,
-41,
32,
-11,
-31,
-15,
56,
5,
8,
24,
-14,
0,
3,
0,
21,
26,
52,
-4,
-6,
-16,
-5,
-30,
-67,
4,
85,
21,
-9,
1,
-8,
-47,
9,
-36,
79,
15,
-10,
12,
4,
-11,
24,
-6,
-7,
12,
-11,
-18,
-4,
-22,
-34,
-10,
-19,
-17,
9,
38,
-21,
-50,
-21,
-6,
-18,
13,
75,
33,
-31,
-68,
-1,
-35,
-19,
-5,
24,
21,
65,
-60,
7,
15,
22,
25,
10,
43,
34,
19,
14,
-60,
13,
-11,
-7,
-47,
34,
-39,
-61,
-4,
-11,
15,
-35,
-3,
-26,
33,
20,
14,
-8,
15,
27,
50,
-1,
72,
-16,
94,
-29,
-27,
47,
32,
-5,
16,
31,
2,
-67,
16,
-7,
-7,
82,
-40,
0,
24,
-8,
-45,
60,
-6,
90,
63,
-8,
-19,
-10,
-11,
29,
-17,
9,
1,
-38,
-13,
5,
5,
-25,
-15,
8,
41,
-27,
7,
57,
39,
31,
48,
-11,
46,
-32,
-33,
7,
30,
-8,
-28,
52,
45,
5,
5,
-23,
22,
-39,
-8,
-16,
-2,
-30,
-1,
-34,
16,
28,
-15,
-27,
-3,
18,
-15,
19,
11,
40,
4,
-78,
-22,
-19,
-47,
13,
-26,
35,
-58,
47,
0,
-91,
-26,
60,
52,
40,
5,
-56,
69,
24,
45,
32,
-86,
-23,
-3,
-47,
10,
27,
70,
23,
-8,
26,
7,
-31,
30,
2,
-16,
-43,
-15,
39,
-3,
-97,
-49,
-5,
-3,
5,
14,
1,
3,
21,
-29,
-15,
-30,
-30,
19,
-36,
12,
-5,
-11,
48,
24,
67,
59,
-33,
-8,
-21,
8,
2,
-12,
-31,
21,
15,
43,
-32,
31,
-47,
-62,
19,
19,
-12,
-17,
35,
-24,
9,
24,
51,
25,
42,
-64,
49,
-15,
50,
5,
-26,
36,
-46,
-11,
37,
39,
24,
-34,
15,
23,
46,
-26,
12,
-63,
-40,
16,
-59,
4,
-72,
-6,
59,
-48,
63,
34,
-15,
-42,
-41,
-18,
30,
-15,
47,
6,
0,
-15,
-21,
-22,
19,
-44,
-40,
62,
57,
12,
-4,
-21,
-25,
-51,
-7,
-30,
9,
18,
36,
-52,
41,
25,
-29,
-26,
-23,
-7,
-47,
34,
-37,
3,
-48,
40,
16,
40,
-21,
-39,
-11,
21,
5,
32,
2,
14,
21,
27,
15,
36,
12,
-23,
-21,
-56,
9,
19,
-43,
-20,
46,
15,
7,
-10,
8,
-50,
25,
34,
-8,
20,
52,
-16,
-19,
-4,
16,
2,
25,
-4,
50,
-12,
32,
-44,
30,
-32,
13,
22,
19,
13,
-38,
25,
5,
6,
-27,
17,
21,
31,
-29,
29,
-1,
21,
4,
-13,
12,
37,
49,
-47,
-22,
-44,
-16,
-22,
-15,
-4,
-9,
-9,
48,
24,
-46,
-11,
-10,
22,
-20,
-27,
-50,
-54,
-9,
-25,
-25,
-16,
-1,
-18,
-28,
19,
-38,
-9,
-29,
48,
2,
-15,
3,
-51,
41,
-32,
0,
-7,
10,
-14,
-16,
16,
-62,
18,
18,
-11,
-23,
-23,
23,
-2,
-15,
-9,
-40,
-40,
-6,
2,
16,
17,
-20,
32,
-17,
26,
-56,
1,
14,
22,
-20,
-44,
44,
-1,
-7,
-28,
0,
-43,
34,
-61,
31,
-16,
-53,
4,
-24,
-78,
25,
-37,
-66,
-36,
-20,
0,
-36,
1,
-5,
39,
-44,
-6,
14,
11,
-32,
11,
1,
12,
36,
17,
-98,
9,
4,
37,
20,
-46,
-17,
3,
-37,
21,
-28,
-1,
12,
-3,
33,
-9,
-12,
44,
10,
-6,
1,
47,
1,
-31,
-17,
28,
55,
-34,
7,
9,
-1,
-23,
-44,
-9,
6,
-53,
-85,
16,
-6,
20,
7,
-8,
32,
-57,
-80,
-46,
26,
8,
36,
-25,
39,
-13,
-8,
23,
33,
1,
-23,
19,
40,
-15,
-9,
24,
-27,
-27,
-45,
-4,
5,
-3,
-17,
-3,
-14,
-15,
-34,
12,
-38,
38,
-35,
0,
-55,
35,
-3,
9,
10,
-34,
-38,
1,
37,
11,
73,
7,
-2,
2,
-41,
-13,
-6,
-5,
-18,
-36,
-10,
0,
-16,
14,
-22,
7,
-23,
32,
-26,
-11,
-2,
-30,
-15,
50,
24,
21,
14,
21,
-12,
5,
40,
-5,
-17,
34,
-37,
-31,
-19,
34,
11,
13,
33,
-61,
51,
-10,
-19,
-26,
0,
15,
17,
-7,
1,
11,
-54,
14,
-75,
-8,
6,
38,
29,
21,
-20,
39,
-13,
-34,
-7,
-34,
10,
7,
-14,
-21,
-24,
33,
-54,
15,
-18,
0,
27,
10,
15,
2,
-4,
-14,
31,
5,
0,
-13,
-33,
65,
-3,
18,
-8,
-22,
-6,
15,
51,
-5,
115,
-23,
-26,
-15,
-114,
-19,
13,
-1,
59,
29,
3,
-13,
15,
-14,
52,
40,
27,
-14,
-17,
-3,
-2,
42,
25,
28,
13,
-20,
10,
-36,
-16,
-54,
-28,
1
] |
Montgomery, J.
This is an application for a mandamus to compel the respondent to vacate an order permitting an appeal to be made from an order admitting a will to probate, under section 6784, How. Stat. It appears that a previous appeal had been taken by the contestant, Dwight Merriman, and that by reason of his failure to file his record in the circuit court within the time allowed by section 6782, 3 How. Stat., the appeal was dismissed. Section 6784 provides that—
“If any person aggrieved by any act of the judge of probate shall, from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal' to be taken and prosecuted with the same effect as if it had been done seasonably.”
It is contended by the relators that the words “ or prosecute ” must be construed to refer to the proceedings in the probate court; but we do not think the statute open to this construction. The appeal referred to is very plainly an appeal from the determination of the judge of probate, and -we think the language susceptible of but one interpretation, so that by the very terms of section 6784 an aggrieved party has the right to petition for leave to appeal either where he has failed or omitted to claim an appeal, or has failed or omitted to prosecute his appeal.
A more serious question is whether section 6782 amends this section by implication, so as to take away the right to an appeal, upon a showing such as is required by section 6784, in all cases where the aggrieved party has once claimed a right to an appeal. Section 6782, as amended by Act No. 174, Laws of 1887, provides, in effect, that the party appealing shall file in the circuit court a certified copy of the proceedings within 30 days after an appeal is taken, and, in case of failure to do so,—
“Such appeal shall cease to be of effect, and the order or decree so appealed from shall stand as though such appeal had not been taken: * * * Provided, that the circuit court to which the appeal is taken shall have power, upon application within the first ten days of the term of court next succeeding the expiration of the said thirty days for filing said certified copy, to reinstate said appeal, when the party making the appeal has been prevented from perfecting the same by circumstances not under his control:”
It is urged that this proviso covers the whole ground covered by section 6784, and provides another and different method of procedure in case of neglect to prosecute the appeal. We think, however, that the two sections may stand together. The one, namely, section 6782, provides the manner of reinstating the appeal which the party has taken, and limits the right to reinstate such appeal to the first 10 days of the term next succeeding the expiration of the 30 days allowed for filing his record. It is to be noted that no showing of merits is required upon such an application. It is not even essential that the circuit judge shall determine that justice requires a revision of the case. The only question to be considered is the question of the default of the party in failing to follow his appeal within the time. If he fails to do so, or fails to excuse the default, then the appeal shall cease to be of effect, and the order appealed from shall stand as though such appeal had not been taken. If this is the attitude of the party in law, then section 6784 confers the right to a dilatory appeal, if he is able to bring himself within the provisions of this section. Under this section» something more than an excuse for his default is necessary, and that is that he has failed to claim or prosecute his appeal according to law without default on his part, and tlcidA, justice requires a revision of the case. Kepeals by implication are not favored, and where, as in this case, the two statutes can be read together, and given a construction which will allow both to stand, such construction should be adopted.
The showing made before the respondent was sufficient to excuse the omission of Mr. Merriman, unless it be held that he is chargeable with the default of his attorney; but we think that where an appellant employs'an attorney in regular standing, and does all that he is required by the advice of his attorney to do to perfect an appeal, he ought not to lose his right to an appeal, where justice requires a revision of the case, through the neglect or oversight of the attorney. Loree v. Reeves, 2 Mich. 133; Capwell v. Baxter, 58 Id. 571; Babcock v. Perry, 4 Wis. 31. We think that there was sufficient to call upon the circuit judge to exercise his discretion, and do not think that discretion has been abused.
The writ will be denied, with costs.
The other Justices concurred.
See Merriman v. Circuit Judge, 95 Mich. 277. | [
13,
-21,
-26,
49,
12,
6,
-11,
32,
-12,
45,
-13,
-16,
-11,
-6,
-32,
-59,
-8,
16,
-8,
29,
1,
51,
31,
14,
34,
-42,
-4,
17,
-36,
1,
-26,
-48,
-44,
11,
5,
-54,
10,
3,
13,
5,
-12,
-14,
-10,
8,
-34,
-66,
-1,
-1,
5,
53,
-45,
8,
-33,
-9,
22,
29,
5,
-13,
-24,
24,
-39,
16,
-40,
-23,
-30,
54,
-14,
-21,
-24,
-24,
23,
-14,
-1,
25,
23,
0,
13,
-17,
59,
72,
16,
-9,
4,
-12,
53,
4,
24,
60,
6,
-12,
-28,
28,
-58,
-33,
-75,
-15,
6,
-43,
39,
0,
8,
-23,
-12,
-28,
-48,
-33,
7,
1,
-38,
-68,
49,
-1,
36,
-57,
-46,
-25,
-11,
-12,
-8,
-40,
38,
-32,
41,
-9,
36,
-1,
15,
-26,
2,
36,
-15,
75,
-29,
-50,
-21,
14,
7,
-38,
8,
-69,
32,
-9,
56,
-34,
0,
-39,
28,
0,
0,
21,
26,
9,
-35,
-8,
22,
1,
37,
-12,
4,
27,
16,
55,
-85,
-20,
28,
-12,
-20,
-40,
9,
24,
-30,
-7,
5,
46,
2,
-11,
55,
5,
-36,
3,
-30,
41,
18,
25,
0,
9,
6,
-32,
-24,
-44,
3,
-23,
64,
-12,
39,
-17,
-3,
-5,
6,
-19,
-47,
-31,
-9,
10,
23,
-40,
-15,
-15,
-9,
-31,
-74,
13,
-36,
19,
-28,
-15,
0,
-15,
29,
47,
-42,
27,
0,
1,
5,
6,
-15,
-3,
-26,
56,
-15,
-9,
5,
16,
7,
12,
-10,
-15,
40,
0,
-7,
38,
29,
-37,
0,
24,
7,
52,
11,
-31,
5,
10,
46,
0,
23,
15,
12,
7,
-61,
-4,
47,
28,
27,
6,
2,
-22,
12,
-26,
-16,
1,
-1,
-4,
-1,
-19,
39,
-2,
-36,
23,
-25,
-60,
20,
14,
-15,
-16,
-71,
3,
-14,
-14,
12,
-15,
5,
-24,
-31,
14,
-26,
51,
-54,
-11,
-19,
6,
18,
9,
-1,
-2,
16,
-7,
-8,
-74,
-6,
-18,
0,
18,
-27,
29,
47,
2,
16,
23,
16,
-5,
30,
-53,
-5,
16,
-27,
-13,
6,
-19,
3,
48,
40,
-27,
-26,
-9,
17,
10,
6,
50,
-13,
36,
-27,
-34,
-18,
32,
2,
-22,
47,
25,
-10,
27,
-20,
24,
-27,
-3,
28,
-40,
-1,
-58,
-32,
17,
39,
6,
-22,
-51,
47,
-2,
36,
72,
7,
-30,
14,
-13,
-4,
-25,
30,
-15,
-12,
-23,
-17,
-13,
-37,
-36,
-5,
7,
23,
-54,
-27,
39,
-7,
39,
4,
0,
-9,
-67,
20,
10,
11,
21,
52,
41,
-26,
14,
-68,
-11,
-44,
-5,
-20,
3,
10,
0,
70,
64,
42,
33,
6,
4,
15,
-11,
47,
2,
19,
-22,
-12,
-10,
-4,
-16,
-40,
-18,
26,
-9,
7,
-15,
27,
8,
-4,
43,
22,
-72,
-13,
12,
-16,
-45,
0,
4,
-37,
-65,
-28,
-18,
-11,
21,
-17,
21,
12,
-21,
-13,
-22,
0,
46,
20,
28,
48,
0,
2,
48,
13,
-20,
-10,
58,
28,
-40,
-31,
16,
-37,
-12,
-10,
-2,
-14,
19,
25,
-25,
-14,
4,
-20,
13,
12,
16,
0,
-42,
-16,
-14,
-34,
5,
23,
23,
-21,
-26,
-33,
-15,
-8,
14,
0,
43,
-12,
29,
61,
7,
-15,
9,
67,
49,
-12,
39,
-22,
40,
39,
25,
-8,
-25,
-2,
-25,
-33,
-70,
-29,
-2,
-23,
32,
-15,
-8,
-20,
18,
44,
-11,
51,
-69,
-41,
10,
-35,
-30,
15,
3,
22,
59,
-52,
68,
-5,
72,
14,
17,
12,
-26,
6,
-16,
1,
-4,
-2,
-25,
-21,
-9,
2,
6,
58,
12,
45,
5,
4,
-2,
13,
-44,
-30,
29,
-8,
-18,
15,
18,
80,
11,
40,
-14,
-48,
-47,
-27,
36,
-25,
-27,
63,
-28,
-18,
15,
73,
-23,
-55,
-2,
57,
2,
-20,
-46,
-30,
4,
11,
2,
-46,
8,
-16,
22,
-21,
5,
32,
33,
-24,
-4,
25,
7,
-83,
-14,
-59,
-2,
10,
-13,
-2,
45,
3,
30,
19,
-30,
-1,
-73,
44,
-25,
38,
10,
45,
-13,
61,
-11,
-22,
2,
-71,
25,
-50,
-34,
-34,
23,
0,
-32,
74,
0,
88,
-10,
25,
0,
-35,
41,
-17,
-10,
40,
-24,
19,
60,
20,
-38,
29,
-54,
-46,
10,
40,
55,
-10,
8,
0,
25,
0,
31,
38,
27,
7,
33,
-17,
3,
3,
13,
-51,
-32,
23,
5,
-5,
19,
-3,
-8,
-33,
18,
6,
1,
41,
10,
39,
24,
7,
66,
28,
4,
-10,
-41,
72,
40,
-39,
-1,
-10,
-7,
25,
-28,
-56,
69,
10,
4,
35,
-1,
39,
-24,
17,
-26,
25,
-46,
-29,
-6,
48,
46,
43,
1,
2,
-43,
13,
-41,
10,
0,
-30,
0,
33,
-2,
0,
64,
-23,
-48,
30,
-5,
42,
25,
-11,
12,
13,
28,
14,
9,
0,
39,
-12,
4,
-13,
-22,
-14,
1,
20,
-31,
-13,
42,
28,
-12,
4,
5,
41,
-35,
22,
-30,
96,
-14,
-23,
12,
1,
-17,
11,
-29,
-19,
-21,
-43,
24,
0,
-18,
-16,
-30,
-34,
-26,
11,
21,
-68,
13,
9,
27,
11,
-84,
2,
-4,
9,
-18,
33,
73,
14,
46,
-25,
20,
-68,
-39,
17,
-1,
-15,
8,
-4,
-21,
7,
1,
-36,
-9,
-6,
41,
-5,
22,
-70,
31,
33,
-2,
-11,
54,
7,
-56,
57,
43,
26,
-51,
-8,
52,
1,
-39,
-18,
-19,
-7,
-23,
6,
8,
-24,
-47,
-6,
-29,
26,
19,
-37,
-28,
-5,
-32,
4,
-18,
42,
-21,
38,
42,
0,
-16,
-30,
-5,
-1,
77,
-4,
-27,
-36,
-55,
-48,
-10,
-7,
5,
6,
-21,
-16,
8,
-16,
-34,
-58,
-3,
16,
32,
-9,
-33,
-70,
19,
66,
73,
31,
88,
39,
22,
-13,
-17,
-8,
-5,
-20,
-13,
33,
15,
-24,
2,
-9,
-23,
19,
1,
42,
22,
0,
-35,
25,
47,
-2,
36,
-29,
-14,
8,
-2,
-25,
7,
31,
-45,
45,
-34,
-17,
2,
-4,
-63,
-46,
-62,
-7,
-28,
-36,
4,
5,
31,
0,
24,
-34,
-3,
-17,
6,
-23,
-31,
-39,
-4,
-25,
-31,
4,
-13,
10,
44,
18,
0,
-12,
32,
-19,
23,
19,
39,
36,
14,
-28,
-14,
-28,
0,
-5,
-49,
-46,
-18,
-46,
-62,
43,
-14,
8,
0,
-24,
-23,
-23,
-22,
9,
1,
-13,
8,
-49,
-32,
24,
6,
20,
-3,
24,
0,
-36,
44,
7,
65,
19,
0,
31,
-3,
74,
29,
0,
3,
-37,
-33,
-2,
-11,
-3,
34,
-32,
-21,
-3,
-8,
-41,
1,
21,
-31,
-45,
4
] |
Hooker, J.
The plaintiff shipped a quantity of crossing and curb stone to the defendant, upon his order. The defendant received the stone, and used most of them. Upon receiving the bill, he learned that the shipment exceeded the amount ordered, and he notified the plaintiff that the excess was subject to his order. He used some of the excess, however, and drew the remainder to a vacant place. He paid for all that he used, and refused to pay a draft for $129 for the remainder. The plaintiff brought an action to recover the balance, and appeals from a verdict and judgment for the defendant.
The defendant testified that the plaintiff called upon him in Detroit, and they went together to where the stone were, and that he agreed to accept them in satisfaction of his debt. The plaintiff denied this, and the question was-submitted to the jury. The plaintiff claimed that this alleged contract was void under the statute of frauds; the defendant, that it was not, because it was accompanied by a delivery of the stone, — it being contended that the title passed at the time of the agreement. The judge submitted the question to the jury, and permitted them to find that there was a delivery of the stone on the occasion mentioned. It is alleged that this was error. The stone were in an alley, and were at hand when the alleged arrangement was made. The defendant testified:
“ Q. Did you go and show it to him ?
“A. Yes; we started from Mr. Barlow’s office, in the Buhl Block, and went up Griswold street, and got on the car, and went up as far as the Western Market, and we got off at Ninth avenue. It was 45 or 50 or 60 feet of curbing that was right by the little office of the board of public works; and, after we examined them, he was satisfied, and we crossed over to where the balance was, across the street, in the alley, where I had some racks — -block racks — stored away. There was a pile of cobblestone there in the alley, and Mr. Gorman examined the curbstone I had there, — a fraction over 300 feet that was, including the 50 feet at the Western Market. I told him I would move them over there, and he said he was going to Toledo, and that he would have them shipped there, or send for them himself. ”
It is said in the brief that the stone were in a public alley when the arrangement was-made, but we find no evidence that the alley was public. It seems obvious, from the record, that the defendant accepted all of the stone, notwithstanding his letter, and the case did not go to the jury upon the theory that he did not. By his own testimony it is shown that he used about half of the excess, and that he attempted to turn out what was left in payment, which is inconsistent with a claim that he did not accept them.
It is claimed on behalf of the defendant:
First. That the transaction was in the nature of barter, and not a sale for money, and therefore not within the statute.
Second. If it shall be held to have amounted to a sale, that it was not within the statute, because there was an acceptance and receipt of the property.
The first proposition rests upon a strict construction of the statute, by which its application would be limited to cases of technical sales for money. Counsel cite no cases in point, and such as we have found do not support their claim. Mr. Browne, in his' work on Statute of Frauds (§ 393), says that “contracts of barter are regarded, so far as the statute of frauds is concerned, as contracts of sale.” Among the cases cited is Dowling v. McKenney, 124 Mass. 478, where a contract to exchange a monument for lands was held to be within the statute. See, also, Kuhns v. Gates, 92 Ind. 66, and Rutan v. Hinchman, 30 N. J. Law, 255.
The other question is not so easily disposed of. 3 How. Stat. § 6186, provides:
“No contract for the sale of any goods, wares, or merchandise, for the price of fifty dollars- or more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”
The transaction in question consisted entirely of a conversation. No act was shown, beyond the oral agreement on the one part to give, and upon the other to accept, the stone there present, in satisfaction of the debt. If the stone had not been upon the premises of the vendor or his bailee, but had been upon the lands of a third party, who was not a bailee (e. g., upon public ground, in which the vendor had no special interest), it is said that the “ vendor might effect a delivery by putting the goods at the disposal of the vendee, and suffering him to take actual control’of them,” — citing Benj. Sales, § 178. In support of this the author cites Tansley v. Turner, 3 Bing. N. C. 151. But that case does not. seem to involve the statute of frauds, because the contract was in writing. The same is true of the case of Cooper v. Bill, 3 Hurl. & C. 722. Thus, although the author applies these cases to a discussion of “acceptance and receipt” in connection with the statute of frauds, they involved a question of the passing of title under a valid contract. But the text does not imply that the language of the contract alone is sufficient to constitute an acceptance and receipt. Here the question is whether enough was done to render the contract valid and efficacious to pass title, and the authorities are harmonious that something is necessary beyond a mere oral agreement to sell and to buy.
In Marsh v. Rouse v. 44 N. Y. 647, it was said that, “to take the case out of the statute, the acts of the parties must have been of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer. ” The case follows Shindler v. Houston, 1 N. Y. 261 (49 Am. Dec. 316). It was there said:
‘ ‘ As no part of the purchase money was paid by the vendee, the contract above stated was void by the statute of frauds (2 Rev. Stat. p. 136, § 3, subd. 3), unless-the buyer ‘ accepted and received ’ the whole or a part of the property sold. The object of the statute was not only to guard against the dishonesty of parties and the perjury of witnesses, but against the misunderstanding and mistakes of honest men. If the contract is reduced to writing, and ‘subscribed by the parties to be charged thereby,’ this object is effectually attained. The writing becomes its own interpreter. Where this is omitted, but the vendee has paid part of the price, or the vendor has delivered and the buyer has accepted a portion or all of the property, upon the strength of the agreement, these acts not only indicate deliberation and confidence upon the part of the contractors, but they furnish unequivocal evidence of the existence of a contract of some sort between them, although its terms and provisions must, after all, depend upon the recollection of witnesses.
“The case before us is destitute of all such collateral evidence. No acts of the party sought to be charged are proved. We are presented with a naked verbal agreement. The declarations relied upon as evidence of a delivery and acceptance constitute a part of the contract, and, of course, are obnoxious to all the evils and every objection against which it was the policy of the law to provide. The acts of part payment, of delivery and acceptance, mentioned in the statute, are something over and beyond the agreement of which they are a part per formance, and which they assume as already existing. The entire absence of such evidence distinguishes the present case from all those that have been cited by the counsel for the plaintiff in support of this action: Chaplin v. Rogers, 1 East, 192; Jewett v. Warren, 12 Mass. 300 (7 Am. Dec. 74); Riddle v. Varnum, 20 Pick. 280; Bates v. Conkling, 10 Wend. 391; 2 Kent, Comm. (4th Ed.) 500, 501. The strong case, from the Pandects, of the column of granite, is not an exception; for it is fairly to be inferred that the consent of the vendor that the purchaser should take possession was subsequent to the sale.
“I am aware that there are cases in which it has been adjudged that, where the articles sold are ponderous, a symbolical or constructive delivery will be equivalent in its legal effect to an actual delivery. The delivery of a key of a warehouse in which goods sold are deposited furnishes an example of this kind. But, to aid the plaintiff, an authority must be shown that a stipulation in the contract of sale for the delivery, of the key or other indicia of possession will constitute a delivery and acceptance, within the statute. No such case can be found. The entire contract being void by the statute, the stipulation in reference to a constructive delivery would fall with the other provisions. In Phillips v. Bistolli, 2 Barn. & C. 511, the property was sold by an auctioneer, and delivered to the purchaser, who, after detaining it three or four minutes, handed it back, saying he was mistaken as to the price. The vendor refused to receive the property, and the jury found that the excuse was false in fact. The verdict was set aside; the court saying that, to satisfy the statute, there must be a delivery by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter, with the intent of taking possession as owner. This, I apprehend, is the correct rule, and it is obvious that it can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intentions of the parties. Mere words are not sufficient. Bailey v. Ogden, 3 Johns. 421. Declarations accompanying an act, and explanatory of it, are undoubtedly admissible evidence, as a part of the res gestee. This is all that is established by the modern authorities. Jewett v. Warren, 12 Mass. 300; Dutilh v. Ritchie, 1 Dall. 171; Baldey v. Parker, 2 Barn. & C. 44; Bailey v. Ogden, 3 Johns. 421.”
In the same case, Bronson, J., concurring, said:
‘ ‘ A writing must be made, part of the purchase money must be paid, or the buyer must accept and receive part of the goods. Mere words of contract, unaccompanied by any act, cannot amount to a delivery. To hold otherwise would be repealing the statute. There may be a delivery without handling the property or changing its position. But that is only where the seller does an act by which he relinquishes his dominion over the property, and puts it in the power of the buyer, as by delivering the key of the warehouse in which the goods are deposited, or directing a bailee of the goods to deliver them to the buyer, with the assent of the bailee to hold the property for the new owner. In such case there is, in addition to the words of bargain, an act by which the dominion over the goods is transferred from the seller to the buyer. Here there was no delivery, either actual or symbolical. * * * It is undoubtedly true that it will not always be easy to make an actual delivery of bulky and ponderous articles. But there are other ways of satisfying the statute of frauds. The parties may piit their agreement in writing, or the buyer may pay the whole or some part of the purchase money. ”
"Wright, J., in the same case, said:
“The cases of Elmore v. Stone [1 Taunt. 458] and Chaplin v. Rogers are the most barren of acts indicating delivery, but these are not authority for the doctrine that words, unaccompanied by acts of the parties, are sufficient to satisfy the statute. Indeed, if any case could be shown which proceeds to that extent, and this court should be inclined to follow it, for all beneficial purposes the law might as well be stricken from our statute book; for it was this species of evidence, so vague and unsatisfactory, and so fruitfrd of frauds and perjuries, that the legislature aimed to repudiate. So far as I have been able to look into the numerous cases that have arisen under the statute, the controlling principle to be deduced from them is that, when the memorandum is dispensed with, the statute is not satisfied with anything but unequivocal acts of the parties, — not mere words, that are liable to be misunderstood and misconstrued, and dwell only in the imperfect memory of witnesses. The question has been, not whether the words used were sufficiently strong to express the intent of the parties, but whether the acts connected with them, both of seller and buyer, were equivocal or unequivocal. The best-considered cases hold that there must be a vesting of the possession of the goods in the vendee, as absolute owner, discharged of all lien for the price on the part of the vendor, and an ultimate acceptance and receiving of the property by the vendee, so unequivocal that he shall have precluded himself from taking any objection to the quantum or quality of the goods sold. Chit. Cont. 390, and cases cited; Hil. Sales, 135, and cases cited; Maberley v. Sheppard, 10 Bing. 102; Acebal v. Levy, Id. 384. But will proof of words alone show a delivery and acceptance, from which consequences like these may be reasonably inferred? Especially if those words relate, not to the question of delivery and acceptance, but to the contract itself ? * * * I think not.”
See, also, Rodgers v. Phillips, 40 N. Y. 519; Young v. Blaisdell, 60 Me. 272.
The' case of Hallenbeck v. Cochran, 20 Hun, 416, is much like the present case. An oral contract for the sale of hay, when the parties were in sight of a part of it, was held within the statute, though the plaintiff said at the time, “The hay is yours,” and defendant said, “Yes.” The case of Shindler v. Houston, supra,, has provoked criticism, but it is not necessary for us to adopt all that is there said. This court has had occasion to consider the Shindler Case, and has held that “it supports the only sound view, viz., that words are not enough, and that the statute can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intentions of the parties.” Alderton v. Buchoz, 3 Mich. 329.
But it may be said that the case need not turn upon the question of receipt and acceptance of the goods, because the contract may be valid without delivery, if something is given by way of earnest or part payment. 2 How. Stat. § 6186. We think there is no escape from the conclusion that this was an arrangement for the sale of chattels in consideration of the cancellation of a debt due from the vendor to the vendee. As we have said, nothing occurred except mutual promises, — words, merely,— and the question is whether that was such a payment as comes within the statute. The subject is treated in Browne, Stat. Frauds, §§ 342, 343. A New York case is quoted, where there was an agreement for novation, but the court held’ that it was not part payment, but merely an oral agreement to pay, which, like any other promise to pay, •was insufficient. Artcher v. Zeh, 5 Hill, 205. In Ely v. Ormsby, 12 Barb. 570, decided in 1850, this case was followed. The plaintiff bought a span of horses for $300, which amount was applied, but not indorsed, upon a mortgage which he held against the defendant, the same being on file. In a suit upon the contract it was held void under the statute. It was said that words alone would not answer the requirements of the statute; citing Artcher v. Zeh and Shindler v. Houston, hereinbefore referred to.' In 1865 the question arose again in the case of Brabin v. Hyde, 32 N. Y. 523, and it was there said, with the approval of the entire bench, that:
“This seems very plain. The section of the statute employs the words ‘purchase money.’ But it was said in the case of Artcher v. Zeh, 5 Hill, 200, that the statute ‘must be taken in its spirit to mean anything, or part of anything, given by way of consideration, which is money or money’s worth. The object was to have something pass between the parties besides mere words, — some symbol, like earnest money.’ The payment may be made in money or property, or in the discharge of an existing debt, in whole or in part, due from the vendor to the purchaser, or the extinguishment of or payment upon a promissory note held by the latter against the former. A mere agreement to apply the purchase money to either of these' objects would not be enough, because the contract would still rest in words, and nothing more. The agreement to paj1- the note or satisfy the debt must be consummated and carried into effect by an act which shall be obligatory upon the purchaser, and enable the vendor to enforce the contract of sale. The note should be delivered up and canceled; or, if the purchase money falls short of complete payment, it should be extinguished by an indorsement made upon it in writing which shall operate effectually as an extinguishment pro tanto. And if the purchase money is to be applied to pay an open account, in whole or in part, the creditor and purchaser should part with some written evidence of such application which shall bind him, and put it into the power of his debtor and vendor to enforce the contract. Without this, or something like this, the contract is a mere collection of words, and the statute evaded. ”
This language was quoted and followed in 1872 in the case of Walrath v. Richie, 5 Lans. 362; and Walrath v. Ingles, 64 Barb. 265, is in accord with the principle. See, also, Organ v. Stewart, 60 N. Y. 413. The case of Matthiessen, etc., Refining Co. v. McMahon’s Adm’r, 38 N. J. Law, 536, supports the same doctrine, following and approving Walker v. Nussey, 16 Mees. & W. 302. See, also, Caddis v. Leeson, 55 Ill. 83. There is a dictum in Walker v. Nussey that implies that, where the goods sold are to extinguish the debt, it may be considered a payment; but it is plainly at variance with the logic of the cases cited. Had it the force of authority, it would be out of harmony with the great majority of cases.
The testimony in this case not only fails to show that the plaintiff took possession of the stone, but shows that he declined to accept and receive them. The defendant testified that he told the plaintiff that he would move the stone for him, but he did not accept the offer; saying that he was going to Toledo, and that he would have them shipped there, or send for them himself. Nor does it show a payment taking the agreement out of the statute.
We are of the opinion that there was no question for the jury.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
-18,
30,
-6,
16,
-64,
8,
31,
5,
20,
27,
36,
10,
12,
23,
0,
-13,
-18,
-22,
49,
0,
-27,
-36,
65,
-5,
6,
-15,
6,
-8,
7,
-4,
-29,
34,
36,
-4,
3,
46,
43,
0,
13,
2,
2,
23,
-27,
-25,
27,
-2,
22,
-41,
19,
-47,
-3,
-12,
-10,
-25,
7,
-23,
-18,
-12,
-21,
0,
6,
-53,
-4,
-47,
15,
2,
-18,
-7,
-6,
23,
-45,
-10,
37,
-27,
12,
23,
-2,
21,
-25,
34,
10,
-9,
3,
22,
-12,
16,
-3,
3,
15,
-53,
-2,
-28,
26,
20,
3,
42,
-32,
41,
1,
8,
14,
34,
-93,
-19,
18,
-27,
-25,
-67,
-53,
58,
4,
-23,
40,
-19,
-13,
-31,
-4,
17,
-28,
-22,
37,
-3,
-39,
-5,
-14,
-20,
-36,
2,
-26,
-21,
31,
-24,
-7,
10,
-18,
19,
-35,
22,
31,
71,
29,
0,
-27,
4,
3,
-38,
8,
57,
-77,
-17,
-33,
-56,
-31,
15,
51,
-8,
-2,
-17,
74,
-29,
37,
-32,
40,
-8,
-42,
2,
-40,
-13,
-26,
23,
30,
-1,
-13,
-36,
26,
-6,
11,
25,
-12,
-100,
38,
26,
16,
4,
36,
-11,
26,
7,
15,
25,
-5,
-19,
-23,
10,
5,
42,
17,
-23,
26,
-25,
-17,
-32,
-1,
-21,
-41,
-9,
38,
-23,
18,
-17,
-11,
15,
6,
-16,
-5,
26,
10,
-38,
-6,
-20,
-12,
-8,
19,
-7,
-17,
-21,
-37,
22,
-31,
13,
-18,
-38,
22,
6,
0,
0,
35,
9,
30,
14,
-12,
0,
-43,
-74,
12,
-39,
-41,
-12,
-13,
23,
9,
-15,
6,
-8,
-26,
-4,
21,
-12,
1,
5,
35,
67,
24,
16,
16,
2,
2,
22,
-61,
15,
-23,
11,
16,
59,
0,
-41,
-47,
20,
-3,
1,
10,
-37,
-33,
-41,
21,
15,
-2,
38,
16,
12,
6,
-5,
26,
6,
17,
27,
-12,
15,
-20,
-25,
-33,
-18,
51,
42,
10,
38,
41,
41,
27,
0,
49,
-71,
37,
18,
14,
16,
18,
10,
-9,
-10,
11,
13,
-27,
-6,
33,
7,
-9,
2,
6,
-26,
26,
26,
8,
2,
-19,
-1,
32,
-19,
-52,
-19,
-8,
33,
-19,
-25,
-8,
6,
-20,
-17,
50,
14,
15,
-37,
-31,
22,
34,
36,
19,
-28,
-5,
55,
57,
-14,
-21,
-1,
6,
-24,
-40,
11,
-41,
44,
-40,
-21,
-31,
24,
17,
-39,
-20,
-11,
-10,
37,
0,
-14,
16,
-23,
38,
0,
-9,
-1,
-26,
-9,
-31,
51,
55,
23,
-8,
-34,
-55,
-50,
-12,
-29,
-17,
45,
31,
-6,
-25,
-20,
4,
9,
-14,
-43,
0,
-42,
25,
2,
-6,
13,
38,
23,
-17,
24,
36,
45,
10,
-20,
56,
-4,
21,
-26,
-50,
-4,
-34,
-6,
32,
-45,
-23,
13,
18,
-47,
-35,
1,
-27,
34,
-18,
21,
-1,
-1,
-47,
1,
25,
5,
37,
-2,
-10,
41,
-3,
43,
-2,
-43,
45,
0,
23,
-20,
5,
-11,
-8,
-30,
26,
-18,
-23,
-7,
4,
40,
27,
-17,
18,
33,
23,
6,
-26,
22,
-39,
1,
24,
15,
25,
-47,
22,
-2,
-46,
21,
24,
-15,
-1,
-45,
45,
11,
-19,
25,
40,
47,
-7,
-20,
-1,
-1,
3,
-19,
43,
2,
12,
65,
-28,
25,
-1,
-37,
36,
42,
-39,
2,
20,
29,
-38,
-8,
-32,
-9,
-18,
45,
7,
-6,
-26,
-27,
-23,
2,
-42,
-3,
-1,
-30,
26,
-15,
32,
2,
-8,
19,
50,
17,
-20,
55,
13,
5,
18,
-6,
-28,
4,
32,
-29,
-24,
18,
-12,
-26,
-17,
-1,
-84,
17,
22,
-7,
33,
12,
15,
-53,
18,
18,
-38,
34,
37,
9,
-6,
-22,
-21,
-1,
-29,
-16,
-23,
-19,
-70,
-71,
11,
44,
20,
37,
-5,
44,
-3,
3,
10,
-29,
-2,
-1,
-38,
10,
19,
-17,
41,
-52,
-52,
0,
-39,
-105,
-22,
23,
22,
54,
36,
19,
-20,
1,
3,
25,
-22,
-50,
5,
42,
1,
-5,
-44,
45,
51,
8,
6,
-14,
-20,
-37,
-42,
0,
0,
78,
-13,
-51,
44,
-17,
-21,
-18,
34,
-5,
-26,
-19,
-42,
14,
-16,
48,
-21,
2,
-18,
19,
94,
-23,
16,
-45,
-46,
-46,
-5,
-10,
-18,
-16,
2,
44,
-5,
5,
21,
-1,
0,
-6,
-16,
-41,
17,
-17,
46,
-44,
-21,
31,
46,
0,
19,
-3,
14,
-2,
-7,
-28,
-45,
-17,
2,
-29,
-23,
-19,
24,
-21,
36,
36,
40,
-14,
-7,
-37,
-23,
17,
-23,
62,
19,
-1,
38,
0,
9,
18,
68,
-23,
-16,
35,
17,
34,
-1,
-2,
-57,
-1,
8,
-23,
39,
-17,
-10,
-28,
-34,
-13,
-39,
-23,
27,
-12,
19,
18,
-44,
3,
-54,
-53,
-30,
-12,
11,
-44,
-18,
-44,
-92,
-22,
38,
-16,
-14,
3,
5,
8,
17,
8,
32,
-14,
-26,
-9,
-37,
-21,
-29,
2,
28,
-15,
-2,
13,
-5,
-28,
28,
-3,
-48,
-1,
-18,
-16,
-5,
31,
-22,
16,
-10,
-43,
-21,
-1,
-7,
63,
12,
1,
16,
12,
48,
33,
9,
-22,
-18,
15,
-43,
-16,
-7,
17,
-2,
-33,
8,
-10,
40,
-14,
11,
8,
4,
-3,
-2,
28,
-31,
-30,
12,
-56,
13,
19,
14,
-17,
25,
27,
-28,
37,
-21,
-49,
-29,
-18,
-7,
-28,
31,
14,
59,
-4,
21,
12,
-41,
54,
-6,
-21,
-9,
26,
1,
-2,
-23,
-7,
73,
-13,
-31,
9,
-51,
21,
-6,
1,
13,
-4,
20,
16,
-18,
-4,
-22,
5,
31,
-4,
-32,
-27,
21,
-15,
-16,
0,
20,
-40,
65,
57,
-28,
-7,
42,
29,
24,
-31,
39,
-26,
-36,
46,
56,
51,
-63,
-80,
16,
-40,
35,
49,
22,
21,
13,
-25,
-13,
-52,
-34,
5,
76,
-7,
18,
-2,
15,
5,
-18,
-33,
-25,
53,
-17,
-22,
10,
-34,
-10,
10,
-11,
11,
-7,
-12,
-30,
4,
-21,
13,
-23,
10,
-16,
26,
21,
-9,
3,
45,
-2,
-38,
-7,
10,
39,
-26,
-30,
-35,
-29,
0,
9,
-6,
10,
-18,
-5,
-20,
-33,
33,
28,
48,
14,
30,
16,
58,
-32,
12,
-39,
0,
-3,
-18,
58,
27,
-4,
-21,
19,
26,
7,
-2,
1,
-20,
-27,
9,
-25,
-66,
6,
-35,
15,
-27,
9,
4,
24,
-31,
-28,
27,
34,
28,
66,
-2,
-4,
30,
10,
32,
-15,
24,
-20,
-18,
-23,
-18,
-3,
-50,
2,
-18,
-5,
-27,
14,
5,
70,
-1,
-27,
-32,
-36,
26,
5,
53,
23,
15,
-30,
37,
11,
-60,
14,
-10,
13,
81
] |
Moore, J.
In August, 1875, a contract was made between Peter Kantenberger and Gerret Brusse, with the following provisions:
“Whereas, the said Kantenberger is seised and possessed in fee of that certain piece of land, situate in said city, known and described as lot No. three (3) in block No. one (1) of the original Converse plat of a subdivision of said city, which plat is now vacated, and said Brusse is seised and possessed in fee of that other piece of land adjoining and lying along the westerly side of said first parcel, and being lot No. four (4) of said block No. one (l) of said vacated plat, said premises being on the north side of Grand river, fronting on West Bridge street, and between West Water (or Front) street and Grand river; and
“Whereas, the said Brusse is about building on his aforesaid lot a brick building, the easterly wall whereof it is intended shall be not less than sixteen inches thick, and shall rest the one-half its width on the west margin of said Kantenberger land, and the other half its width on the east margin of the said Brusse land:
“Now, therefore, the aforesaid parties of the first and second part agree to and with each other as follows:
“1. That said Brusse shall have the right, at his own present charge and expense, to place, erect, keep, and maintain said wall one-half its width on the west margin of the said lot No. three (3) of block No. one (1) aforesaid.
“2. That said Kantenberger, his heirs, executors, administrators, or assigns, may at any time hereafter; whenever he or they may see fit, make connection to said party wall, and use the same in the construction of any building he or they may erect on said lot No. three (3), so that from thenceforward such wall shall be and become the division wall between the buildings erected on said lots three and four (3 and 4), and shall belong to, and be kept and maintained by, the owners of such buildings at' their equal expense: Provided, always, and the above seeond clause, and the rights thereby conferred, shall depend and be contingent upon the said Kantenberger, his heirs, executors, administrators, or assigns, paying or causing to be paid to the said Brusse, his heirs, executors, administrators, or assigns, the one-half part of the original cost or expense of said wall, for material and construction, to be arrived at either by actual statement of the same or by appraisal of competent persons. And until such cost or expense is actually paid to the said party of the second part, his legal representatives, heirs, or assigns, the said party of the first part shall not make any attachment to said wall, or use the same in any manner or for any purpose, as a party wall or otherwise; but, when such payment is duly made by said party of the first part, his legal representatives, heirs, or assigns, then the said wall, and the whole thereof, shall be and become the joint property of the owners of the buildings which it supports and divides.
“Further, thé parties hereto, each to the other, hereby agree that the aforesaid agreement and undertaking shall be perpetual, and shall create covenants running with the lands described above, and shall be and remain forever binding upon said parties, and their heirs and assigns, forever.”
This case depends upon the construction to be given to this contract. The owner of lot 3 has recently used the party wall, and is ready to pay for so doing. Mr. Noble claims he is entitled to the fund, for the reason that he has an assignment of the contract in relation to the wall. Mrs. Kendall claims she is entitled to it, because by mesne conveyances she has become the owner of lot 4. The court below found in favor of Mrs. Kendall. From that decree Mr. Noble appeals. His solicitors say in their brief that there is only one point in the case; that* there is no statute of this State, nor reported decision of this court, on'this point; that—
“The rule of law upon which we rely is as follows: An agreement for a party wall to be built by one party, half the cost to be paid to him by the other party whenever he should desire to use it, is personal; and such payment cannot be enforced by a grantee of the party who built the wall, though the agreement also provided that it should be construed as a covenant running with the land. ”
They cite in support of that proposition Sebald v. Mulholland, 155 N. Y. 455; Voight v. Wallace, 179 Pa. St. 520; Weld v. Nichols, 17 Pick. 538; Joy v. Savings Bank, 115 Mass. 60; Gibson v. Holden, 115 Ill. 199 (56 Am. Rep. 146); Behrens v. Hoxie, 26 Ill. App. 417; Bloch v. Isham, 28 Ind. 37 (92 Am. Dec. 287); 1 Jones, Real Prop. § 800; Parsons v. Loan Ass’n, 44 W. Va. , 335; and other cases.
It is the claim of the solicitors for Mrs. Kendall—
“1. That the covenant to pay and to receive the money paid is, under the agreement, a covenant running with the land, and passes to the grantees by deed of the covenantors.
“2. That, under this contract, the title of the whole wall was vested in Mrs. Kendall until payment by the grantees of Kantenberger, and, when such payment is made to Mrs. Kendall, there is, by force of the covenant, a constructive sale by her of the undivided half of the whole wall, which then becomes the joint property of the owners of the buildings which it supports and divides.”
To the last-named proposition they cite Gibson v. Holden, 115 Ill. 207 (56 Am. Rep. 146). To the first proposition they cite Mott v. Oppenheimer, 135 N. Y. 312 (17 L. R. A. 409); Weyman’s Ex’rs v. Ringold, 1 Bradf. Sur. 40; King v. Wight, 155 Mass. 444; Richardson v. Tobey, 121 Mass. 457 (23 Am. Rep. 283); Maine v. Cumston, 98 Mass. 317; Tomblin v. Fish, 18 Ill. App. 439; Roche v. Ullman, 104 Ill. 11; National Life Ins. Co. v. Lee, (Minn.) 77 N. W. 794; and many other cases.
It is insisted by the solicitors for Mrs. Kendall that a distinction is to be made between the cases where the covenant to reimburse is personal to the party who built the wall, and those where the covenant to reimburse is by one party, his heirs, executors, administrators, or assigns, to the other party, his heirs, executors, administrators, or assigns, and that this contract belongs to the last-named class. It is urged that, when this distinction is borne in mind, the conflict between the authorities is more apparent than real.
It is difficult to harmonize all the authorities, but we think they may fairly be divided into two classes, — one class holding that the covenant for payment is personal, and does not run with the land, when it is apparent from the contract that the payment should be made to the party building the wall, and there are no words indicating that the right to receive payment shall pass to his assigns; the second class holding that the covenant runs with the land, and passes to the purchaser or assignee, when the contract evinces such intention, and where the language used is between the parties and their assigns, and the contract declares the covenant shall be perpetual, and binding upon the parties and their heirs and assigns. 1 Jones, Real Prop. § 799, reads as follows:
“A party-wall agreement in the usual form between adjoining landowners runs with the land. Thus, an agreement under seal between adjoining lot-owners, for themselves, their heirs and assigns, acknowledged and recorded, and providing that either party may build a party wall, one-half on the land of each, and that, whenever the other party uses the wall so built, he or she shall pay one-half the cost of its erection, is a covenant running with each lot. Such an agreement creates an easement of use and support in favor of each lot-owner and his successors in title in the half of the wall which stood on the other lot, and in the land under the same. Each lot of land becomes entitled, therefore, to the benefits, and subject to the burdens, arising from the covenants contained in the agreement, and relating to the erection and maintenance of the wall. They inhere in and belong to it.”
In this case Brusse was given the right, at his own cost and expense, to erect one-half the wall on lot 3. When the wall was erected, the right to have the wall remain there could not be withdrawn, and, though it was on Mr. Kantenberger’s land, the latter, his heirs, executors, and assigns, could none of them use it until he or they had paid Brusse, his heirs, executors, and assigns, one-half of the original cost of the whole wall. This they had a right to do whenever they desired to make such use of the wall, and that right could be enforced when the money was paid, even though not asserted until long after Brusse was dead. The contract then provided that, when the money was so paid, the said wall, and the whole thereof, should become the joint property of the owners of the buildings which it helps to support; that the agreement should be perpetual, creating covenants running with the land, and binding upon the parties, their heirs and assigns, forever. We think this contract falls within the second class mentioned above, and the decree is affirmed, with costs.
The other Justices concurred. | [
-11,
21,
-19,
-15,
31,
39,
85,
55,
18,
-13,
0,
-5,
26,
-46,
26,
43,
-62,
-56,
-96,
-20,
-36,
-14,
-55,
-60,
6,
91,
45,
-11,
-25,
-31,
36,
17,
-57,
23,
40,
26,
7,
-21,
18,
-43,
43,
-21,
-61,
-23,
54,
11,
1,
-18,
16,
-14,
-11,
52,
37,
35,
-17,
-27,
-48,
15,
-75,
64,
-27,
-76,
-13,
-31,
-5,
-6,
56,
37,
61,
-22,
-24,
10,
2,
6,
44,
19,
43,
-4,
-20,
-42,
46,
-13,
-29,
-1,
28,
-27,
-45,
9,
29,
46,
-16,
-58,
47,
55,
-58,
-12,
-10,
49,
-37,
2,
8,
43,
-35,
6,
-27,
-54,
-46,
18,
52,
0,
9,
-8,
38,
-37,
-10,
20,
5,
-6,
7,
-10,
-54,
-37,
-32,
-6,
-28,
-35,
-3,
-48,
-62,
-18,
-9,
-29,
-50,
3,
-16,
17,
-39,
42,
-13,
-14,
18,
3,
-18,
-36,
-34,
6,
-28,
-44,
-31,
-12,
-56,
-8,
13,
-4,
-33,
10,
8,
-5,
52,
-40,
-24,
-11,
44,
-23,
-72,
-29,
-41,
11,
-1,
64,
-24,
30,
24,
-43,
11,
-1,
-2,
3,
-10,
2,
86,
4,
-24,
-17,
12,
-6,
-4,
32,
7,
-19,
6,
-1,
0,
9,
-42,
25,
-21,
0,
-53,
2,
13,
12,
-41,
15,
9,
-27,
11,
15,
-26,
34,
4,
22,
-81,
-4,
65,
24,
-15,
-9,
34,
-29,
17,
-38,
-13,
41,
-56,
-6,
29,
26,
-32,
-41,
9,
-43,
16,
10,
4,
-46,
9,
-16,
-10,
51,
15,
40,
-44,
22,
36,
-30,
-51,
-18,
18,
20,
-74,
-8,
-41,
43,
-9,
32,
-15,
-5,
-7,
12,
26,
-33,
-25,
6,
21,
-22,
2,
-12,
6,
14,
7,
71,
7,
79,
-68,
-3,
6,
23,
-57,
43,
-17,
-52,
-11,
18,
34,
-10,
22,
30,
-58,
-13,
-12,
41,
32,
-24,
8,
31,
7,
38,
55,
-48,
-75,
40,
27,
54,
66,
-7,
-17,
82,
63,
2,
-28,
-1,
-12,
27,
-18,
19,
28,
56,
-2,
-39,
90,
7,
13,
10,
-30,
26,
13,
45,
-18,
60,
21,
-16,
-47,
-16,
-16,
0,
18,
13,
-31,
-42,
5,
8,
36,
-18,
-20,
8,
-29,
7,
20,
-15,
-34,
-24,
1,
33,
-22,
4,
16,
42,
24,
-4,
92,
14,
28,
-15,
-62,
-39,
-65,
14,
52,
-20,
-6,
61,
-39,
19,
19,
18,
33,
15,
-76,
56,
43,
23,
-2,
32,
92,
-43,
-33,
-10,
-8,
-27,
-28,
-19,
-34,
27,
61,
-18,
-34,
-44,
-42,
-80,
51,
40,
-33,
1,
-23,
39,
3,
-16,
30,
13,
14,
-35,
9,
-46,
-46,
14,
-5,
-6,
34,
44,
-11,
16,
27,
33,
-32,
-4,
28,
-14,
-6,
12,
-43,
28,
16,
-14,
27,
-30,
-14,
-36,
-27,
-2,
-32,
25,
38,
-2,
-1,
3,
-39,
24,
9,
-25,
-12,
98,
-72,
36,
47,
-8,
21,
-11,
38,
71,
38,
-31,
11,
-36,
0,
15,
-39,
-6,
-34,
63,
-57,
8,
43,
-30,
-27,
-49,
-14,
48,
-35,
17,
20,
-8,
39,
39,
-20,
-64,
-8,
27,
-33,
-13,
33,
44,
33,
-35,
22,
-64,
-6,
62,
29,
21,
11,
16,
-27,
30,
-42,
2,
21,
-3,
-23,
29,
-10,
-33,
-18,
-10,
-17,
38,
12,
-58,
17,
14,
-21,
-14,
-17,
8,
44,
67,
44,
64,
-60,
-10,
-28,
-48,
-20,
-33,
-18,
-18,
30,
29,
26,
31,
26,
16,
16,
-4,
-22,
88,
-19,
74,
-12,
6,
-39,
-5,
25,
-5,
-27,
-18,
-6,
-37,
28,
8,
16,
53,
-7,
-55,
4,
18,
19,
-49,
-11,
25,
-84,
-19,
43,
18,
-77,
-28,
-54,
-46,
34,
30,
-43,
-61,
18,
-16,
42,
88,
43,
12,
-26,
52,
-46,
31,
-19,
7,
-11,
9,
45,
76,
-32,
22,
16,
-25,
-29,
-26,
-14,
-18,
-31,
-13,
63,
27,
-22,
8,
11,
69,
31,
61,
46,
-41,
21,
22,
32,
-31,
-16,
-17,
-20,
11,
28,
6,
-27,
75,
-50,
1,
26,
16,
23,
-18,
69,
-17,
47,
12,
14,
-12,
-59,
5,
-51,
30,
-38,
28,
46,
-3,
-27,
-5,
23,
29,
17,
8,
3,
22,
45,
-11,
48,
-15,
68,
14,
47,
4,
26,
-8,
-23,
-22,
12,
5,
-8,
25,
-17,
-1,
0,
42,
25,
17,
61,
35,
-48,
12,
33,
-34,
-32,
-43,
-5,
30,
-15,
-50,
0,
-70,
20,
-5,
-55,
19,
-7,
26,
-19,
-29,
27,
-27,
-11,
-15,
0,
-14,
-36,
-18,
42,
-13,
57,
34,
30,
31,
-9,
-12,
-14,
10,
34,
-14,
-16,
12,
-14,
-42,
-68,
-2,
-75,
82,
-49,
-25,
-27,
-40,
-1,
44,
24,
-14,
-36,
-24,
-22,
-31,
-41,
63,
-21,
9,
-3,
-14,
-65,
-12,
-39,
11,
13,
-7,
27,
-11,
-21,
49,
-43,
50,
-8,
-6,
-8,
28,
23,
-38,
22,
52,
6,
-33,
-37,
21,
-48,
-10,
9,
-14,
29,
-33,
11,
-8,
-4,
-72,
-18,
14,
23,
-2,
60,
-22,
25,
1,
3,
-42,
-27,
6,
-66,
-66,
-8,
-39,
47,
-41,
-67,
46,
-37,
53,
-25,
-28,
-47,
64,
4,
-9,
-18,
-8,
6,
-20,
4,
1,
-1,
35,
29,
-6,
-41,
7,
-5,
-5,
-12,
-2,
-2,
-15,
-35,
-12,
58,
40,
-1,
34,
2,
-59,
-76,
39,
4,
15,
-26,
-54,
38,
-13,
10,
-72,
-33,
86,
-50,
-54,
-47,
32,
-37,
-1,
13,
10,
-33,
11,
36,
14,
54,
-24,
-25,
24,
-34,
-67,
0,
-25,
-39,
13,
18,
31,
10,
8,
76,
24,
-51,
5,
-24,
-28,
26,
31,
2,
-40,
-49,
10,
15,
21,
29,
40,
-6,
-31,
-25,
-33,
-16,
-3,
19,
-19,
-1,
33,
-49,
-9,
38,
16,
-13,
-2,
0,
4,
91,
-46,
2,
0,
-41,
-16,
-49,
-16,
-68,
0,
2,
54,
-8,
-26,
-13,
-23,
-44,
26,
-41,
31,
-19,
81,
-18,
37,
-24,
-1,
6,
14,
26,
17,
-52,
-18,
33,
-15,
-3,
-12,
24,
28,
54,
-43,
36,
-14,
-10,
56,
29,
12,
14,
-51,
-24,
-18,
-26,
-6,
7,
2,
50,
-48,
37,
-22,
47,
-34,
21,
-13,
-27,
-69,
10,
69,
-29,
-14,
-10,
5,
16,
-55,
12,
25,
15,
65,
-11,
27,
25,
45,
12,
-21,
-29,
27,
-54,
35,
-13,
-21,
0,
-7,
-26,
-3,
-36,
15,
-52,
9,
-16,
-11,
31,
-24,
37,
-54,
-33,
63,
56,
-4,
0,
-10,
-23,
65,
21,
-35,
41,
-56,
-56,
54
] |
Moore, J.
This was an action on the case ror the recovery of damages for injuries received by the plaintiff from a fall on a stairway leading to the cellar of a building owned by the defendants, and occupied by the plaintiff, her husband and family, as their tenants. Plaintiff had a verdict for $1,000 in the court below. Defendants appeal. The defendants’ plea was the general issue.
On the 28th of May the trial commenced. Counsel for the plaintiff made an opening statement to the jury of the facts he expected to prove on behalf of his client. A witness was sworn, when counsel for defendants objected to the proof being offered in evidence which counsel for plaintiff stated was plaintiff’s case, for the reason that it was not competent under the declaration, and proceeded to say wherein he thought the declaration was defective. The judge said, as counsel had not demurred to the declaration, he thought the declaration good, but, if it was thought not to be good, he would allow the plaintiff on the trial to amend it. Counsel for defendants replied, if it was to be amended, he would like it amended then, as he was there to try a particular case and no other. The judge directed the trial to proceed. Eight witnesses were sworn on the part of the plaintiff, and eleven on the part of the defendants. Nearly all of these witnesses had testified, when counsel for plaintiff said he desired to amend his declaration. Counsel for defendants objected to the amendment. He was asked by the court if he was surprised. He said he was as to the amendment then proposed. A colloquy then occurred between the court and counsel, indicating that no serious objection was made to the amendment, and it was allowed to be made. Counsel made no claim that he was not prepared to meet the issue as framed, but, on the contrary, offered proof which, if believed by the jury, would be a complete defense' to the case made by the plaintiff. No request was made that the case be continued to allow counsel to procure other proof. It is now said the court erred in allowing the amendment to be made.
If a declaration is defective, the question of its sufficiency should be raised by demurrer, so that the defect can be remedied before the parties have been to- the expense of getting ready for the trial. Courts do not look with favor upon the practice of waiting until the trial has commenced before questioning the sufficiency of the declaration. Where this is done, the defect must very clearly appear before the objection to taking testimony will be sustained. Jennison v. Haire, 29 Mich. 210; Van Middlesworth v. Van Middlesworth, 32 Mich. 183; Sutton v. Van Akin, 51 Mich. 463. We do not feel at all certain that the original declaration was not broad enough to allow the proof offered by the plaintiff to be received, but, under the record, we do not deem it necessary to pass upon that question. The legislature has provided for the amendment of pleadings so as to allow the trial upon the merits to proceed without unnecessary delay. 3 Comp. Laws 1897, § 10268, and the many cases cited in the note thereto. The amendment allowed was a proper one. It is apparent counsel were advised, at the commencement of the trial, it would be permitted during the trial. Had they claimed they were not prepared to meet the issue as framed, the court undoubtedly, upon a proper showing, would not have compelled the trial to proceed. The action of the court in permitting the amendment was not error.
It was the claim of plaintiff that defendants undertook to put in repair a stairway leading to the basement in the building occupied by herself and her husband as tenants of the defendants, and that, after the stairway was-repaired,. she was assured by one of the defendants, who acted as the agent for all, that the stairway was entirely safé; but that it was constructed of such improper material that when she used it, some months thereafter, one of the steps broke through, resulting in her receiving serious injuries. Some of the assignments of error relate to the admission of testimony as to the condition of these stairs at times varying from the same ‘day the accident oc curred until 10 or 12 days thereafter, upon the ground that too much time had elapsed to make the testimony competent. These stairs were in a house used by but few people. We think the testimony, one witness supplementing the testimony of the others, was all properly admitted. The testimony of the successive witnesses fairly warranted the inference that the defective conditions continued until the latest time mentioned.by any of the witnesses.
It was the claim of the plaintiff that, 16 years prior to the accident, she had a hernia, caused by a childbirth, from which she did not suffer until she fell upon the stairs, when the hernia grew rapidly, and at the time of the trial it was very large. . It was her claim the enlargement of the hernia was caused by the. injury. Dr. McGraw was called as a witness by defendants to show that the enlargement might have been caused by subsequent childbirths (it having been shown Mrs. Arndt was the mother of four children), and that it was a common experience for such hernias to increase in size with very stout women. Objection was made to á question put to him upon the cross-examination. Under the latitude allowed in a cross-examination, the question was not objectionable.
Counsel for defendants drew out, by cross-examination, from the plaintiff and her husband, that the attorneys for the plaintiff were to have a share of any judgment which might he recovered by the. plaintiff. After this testimony was drawn out, plaintiff was permitted to show that neither Mr. nor Mrs. Arndt had any property of their own. It is said this was error, as it was calculated to prejudice the jury in favor of the plaintiff against the defendants; counsel citing Chicago, etc., R. Co. v. Bayfield, 37 Mich. 214, and Hunn v. Railway Co., 78 Mich. 529 (7 L. R. A. 500). In each of those cases the suit was brought by the representative of the estate of the deceased, who received injuries resulting in his death. Proof in those cases was received to show the needy condition of the family of the deceased, and as bearing upon the question of damages,- and the court very properly said the proof was not competent for that purpose. In this case counsel for the defendants contended the claim of plaintiff was not an honest one, but was a speculative one, and, for the purpose of sustaining their contention, put in the proof that the plaintiff was to share the verdict withhef attorneys. To meet that contention, proof was introduced showing the poverty of the plaintiff and her husband, for the purpose of showing their inability to employ counsel in any other way than in the way they were employed. There is nothing in the record to show the testimony was used by counsel, court, or jury for any other purpose. In view of the amount of the verdict, it is clear the jury did not, because of it, enhance the damages of plaintiff, and, if its admission was error, we do not think it can be said to have been harmful error.
Counsel assign error upon the refusal of the court to give their requests to charge. Such of them as were proper to be given were fully and completely covered in the general charge.
The judgment is affirmed.
The other Justices concurred. | [
-32,
-5,
-12,
-6,
-12,
0,
56,
-29,
17,
15,
15,
-5,
30,
34,
-7,
-55,
-11,
-25,
8,
-45,
-23,
-24,
-24,
-1,
5,
-11,
34,
-9,
6,
-28,
13,
-11,
-37,
-31,
14,
-56,
-2,
17,
12,
15,
26,
23,
51,
-21,
-65,
-12,
10,
-17,
43,
13,
27,
-34,
46,
-26,
-10,
-29,
-15,
70,
-42,
-36,
-5,
34,
-11,
-41,
-4,
-45,
7,
-16,
-43,
-33,
-52,
35,
9,
-68,
-45,
-28,
-23,
-24,
-62,
-19,
-6,
-6,
28,
-37,
-47,
61,
10,
-9,
-29,
-10,
-7,
69,
-8,
37,
-24,
20,
16,
-1,
48,
14,
-2,
3,
-32,
2,
-1,
29,
-83,
-71,
13,
8,
-4,
50,
35,
-9,
-12,
-41,
-30,
3,
-15,
-39,
19,
25,
9,
16,
-18,
2,
30,
-33,
-3,
-9,
1,
52,
-6,
2,
-50,
-12,
7,
-6,
9,
-44,
19,
-13,
42,
-31,
18,
41,
-16,
34,
-42,
-4,
-5,
33,
0,
49,
-16,
-14,
-55,
-2,
10,
0,
64,
16,
-55,
-4,
0,
-6,
-12,
-25,
12,
-11,
-2,
3,
-42,
-10,
-6,
36,
-2,
-36,
-20,
-3,
6,
32,
25,
11,
-14,
-20,
0,
25,
4,
-8,
16,
-33,
-55,
-20,
25,
15,
0,
7,
59,
-33,
3,
-57,
-15,
-54,
-8,
-37,
-24,
-26,
43,
-31,
4,
7,
-52,
-29,
17,
-38,
73,
-12,
-17,
30,
-61,
11,
3,
-4,
-37,
-11,
12,
19,
-26,
-18,
-7,
18,
-2,
41,
35,
-7,
-13,
16,
27,
10,
-51,
0,
9,
-52,
8,
-41,
-9,
-20,
-8,
-11,
15,
57,
19,
18,
-26,
-30,
17,
-11,
-41,
-13,
-2,
60,
-35,
-36,
-16,
10,
-6,
-1,
-23,
22,
3,
10,
17,
97,
-11,
6,
-45,
3,
-1,
-1,
-6,
26,
6,
-2,
-42,
3,
16,
-11,
12,
22,
2,
-52,
-12,
11,
42,
16,
-17,
18,
-27,
-23,
25,
-30,
14,
15,
0,
-15,
-2,
9,
-24,
-7,
-22,
43,
9,
9,
72,
3,
-5,
22,
-14,
-2,
5,
9,
-48,
5,
28,
-26,
62,
-31,
-58,
26,
-25,
4,
29,
-22,
0,
41,
10,
17,
-48,
17,
46,
-35,
-3,
-21,
-1,
21,
-14,
-49,
-15,
-3,
6,
-8,
-16,
-26,
51,
-35,
10,
-35,
-1,
-1,
65,
-2,
8,
-22,
47,
10,
3,
14,
-13,
51,
-26,
-20,
-7,
-35,
-20,
-19,
41,
38,
-57,
37,
-12,
-33,
0,
-26,
56,
-1,
-1,
-18,
-2,
8,
-48,
-23,
77,
-28,
0,
13,
-34,
8,
18,
1,
0,
0,
40,
-7,
-68,
-4,
-28,
-17,
2,
58,
-16,
49,
-14,
5,
-16,
-15,
29,
-17,
39,
15,
32,
-27,
30,
-37,
-9,
0,
18,
-24,
-17,
-41,
-20,
-17,
12,
10,
47,
19,
-23,
-4,
5,
-17,
-48,
27,
-35,
-8,
6,
-43,
-5,
-8,
16,
-7,
9,
14,
38,
-52,
18,
-14,
15,
2,
4,
12,
36,
-18,
-10,
4,
29,
-4,
-40,
-18,
-12,
-17,
5,
7,
19,
10,
-35,
23,
-1,
19,
-14,
-15,
17,
22,
47,
-46,
-19,
11,
44,
54,
-17,
-55,
29,
22,
28,
-8,
-44,
40,
-9,
3,
-74,
-7,
6,
47,
-42,
-54,
-3,
-8,
0,
-5,
42,
48,
-49,
44,
-29,
0,
23,
-10,
26,
-4,
-21,
18,
5,
-54,
-24,
-15,
-6,
23,
-12,
76,
6,
-61,
66,
0,
-22,
-3,
-11,
22,
-2,
2,
41,
6,
-2,
31,
38,
45,
65,
-1,
0,
0,
57,
51,
75,
0,
-33,
35,
14,
23,
-5,
-19,
44,
-51,
54,
-38,
-18,
20,
62,
-12,
18,
-35,
50,
16,
-15,
-19,
-6,
7,
-53,
-19,
19,
0,
-1,
1,
-39,
21,
-22,
-11,
0,
-22,
0,
38,
3,
-23,
-43,
-7,
-30,
-37,
-33,
-14,
-20,
-50,
-11,
38,
0,
-5,
-51,
-11,
-8,
-14,
36,
-36,
2,
25,
34,
-27,
-29,
7,
34,
-11,
-15,
9,
-20,
66,
-25,
22,
11,
-24,
42,
-20,
-31,
5,
-5,
-43,
-4,
0,
-38,
-51,
-9,
20,
-3,
45,
3,
-8,
-14,
31,
0,
-12,
0,
15,
2,
29,
-5,
-33,
-20,
18,
-9,
-44,
14,
-9,
-6,
33,
26,
-42,
-18,
-5,
0,
-4,
8,
20,
33,
-4,
-21,
-33,
50,
7,
30,
29,
36,
-13,
-4,
28,
-22,
24,
-14,
-50,
21,
-36,
0,
-41,
-12,
10,
9,
33,
7,
-32,
40,
-23,
24,
23,
11,
4,
0,
-13,
-9,
-46,
71,
7,
19,
-41,
-24,
12,
-7,
-42,
-28,
27,
-7,
-36,
17,
-7,
-35,
-17,
11,
0,
41,
12,
44,
11,
-31,
41,
40,
58,
52,
-61,
0,
-36,
-8,
10,
2,
23,
-3,
-16,
42,
-8,
24,
23,
-23,
-37,
8,
7,
-10,
2,
-21,
30,
-5,
-11,
33,
4,
9,
28,
-11,
-8,
0,
15,
9,
-29,
27,
-38,
-37,
22,
48,
-26,
21,
40,
10,
-35,
63,
-28,
-48,
53,
55,
-5,
28,
-25,
5,
30,
-33,
0,
-15,
-16,
53,
-1,
26,
16,
-5,
12,
-41,
16,
32,
35,
22,
-5,
-31,
-15,
-15,
-20,
28,
11,
15,
-3,
-22,
82,
6,
-63,
16,
-3,
1,
-35,
-46,
-29,
-6,
7,
3,
14,
-1,
56,
-7,
-13,
26,
-42,
-1,
11,
5,
-25,
15,
-62,
-23,
42,
54,
17,
-3,
12,
-49,
24,
-3,
24,
-7,
70,
24,
7,
-25,
37,
-19,
3,
28,
0,
-6,
0,
-44,
-12,
11,
-40,
22,
-27,
5,
-8,
-17,
1,
-6,
-4,
-6,
4,
35,
-2,
3,
15,
-35,
3,
7,
22,
-37,
-44,
35,
28,
20,
0,
-32,
69,
-25,
-26,
25,
-53,
6,
31,
31,
19,
53,
13,
-11,
9,
-14,
12,
13,
-34,
-19,
-19,
44,
37,
19,
-23,
28,
2,
-15,
-51,
16,
2,
8,
-22,
15,
37,
-19,
-40,
1,
66,
3,
47,
-24,
-17,
27,
-33,
29,
44,
-24,
38,
6,
13,
35,
-35,
28,
-21,
-27,
-65,
-35,
-29,
17,
-26,
-45,
4,
-46,
-33,
-37,
-11,
-13,
13,
-37,
-36,
-21,
16,
7,
-11,
5,
-23,
-72,
29,
15,
20,
-2,
0,
-10,
-20,
-29,
-18,
-6,
-20,
20,
-36,
22,
-2,
-10,
26,
33,
-19,
0,
47,
41,
-27,
-27,
31,
-23,
3,
22,
-2,
-4,
-64,
14,
43,
-1,
-1,
-29,
-28,
-18,
-30,
-44,
5,
-46,
61,
23,
28,
-8,
-60,
29,
87,
-4,
-15,
6,
10,
81,
18,
-40,
21,
-35,
13,
-36,
-2,
51,
46,
4,
30
] |
Hooker, J.
The plaintiff’s action was brought to re cover a balance alleged to be due upon eight promissory notes. The plaintiff obtained a verdict. Peters, the appellant, was a member of a copartnership styled Arthur Meigs & Co. These notes were signed by Carman, and were payable to Arthur Meigs & Co., and were by them indorsed and negotiated. Carman appears to have made the notes as an accommodation, to Meigs & Co., who received $10,000 in money from the plaintiff upon them, or similar notes which these renewed. The earliest note sued upon was dated July 25, and the latest October 10, 1890. In October, 1890, Meigs & Co. became pecuniarily embarrassed, and sold their shingle mill to Carman, who promised to assume and pay the outstanding notes as a portion of the consideration. Of this the plaintiff was at once informed. The notes were not paid at maturity, and this action was brought against the maker, Carman, and indorsers, Meigs & Co. Service was not obtained upon Carman or Meigs. The defendant claimed that, through Carman’s assumption of the debt, Meigs & Co. became his sureties, and that they were released by reason of an extension of time given to Carman by the plaintiff. To establish this defense, he proved that, after the maturity of these notes, the bank received otherjhotes from Carman, signed by Carman, Bromley &' Childs, from time to time, for a period of two or three years or more; discounts being regularly paid thereon. It appeared that the plaintiff was asked to receive other paper in lieu of the original notes, but refused, saying that it should not give them up until paid. There is testimony to the effect that, when the arrangement was made by which the subsequent notes were agreed to be taken, it was accompanied by a refusal to surrender the original paper or release the indorsers until the same was fully paid.
The court instructed the jury that, by the agreement for the purchase of the shingle mill, Carman became the principal debtor, and Meigs & Co. sureties; and he directed the jury to inquire whether, in the subsequent arrangement between Carman and the bank, it reserved the right of action against the sureties. Counsel for the defendant allege error upon the last proposition, claiming that the court should have directed a verdict for the defendant, upon the ground that the undisputed testimony showed that he was discharged by an extension of time to the principal debtor.
It is not every extension of time that discharges a surety.
‘ ‘ If the creditor, at the time he releases the principal, reserves his remedies against the surety, such release amounts to a covenant not to sue only, and does not discharge the surety.” 1 Brandt, Sur. § 147.
In Oriental Financial Corporation v. Overend, Gurney & Co., 7 Ch. App. Cas. 142, Lord Hatherley said:
“It is competent to the creditors to reserve all their rights against the surety, in which case the surety is not discharged; and for this reason: That the contract made with the principal is then preserved, because the creditors have engaged with the principal not to sue him for a given time, but subject to the proviso that the creditors shall be at liberty to sue the surety, and so turn the surety upon the principal without any breach of the engagement with the principal.”
The opinion of Mr. Justice Andrews. in the case of Calvo v. Davies, 73 N. Y. 217 (29 Am. Rep. 130), is to the same effect. It was there said :
“The remedies against the surety are reserved. The agreement does not operate as an absolute, but only as a i qualified and conditional, suspension of the right of action. The stipulation in that case is treated, in effect, as if it was made, in express terms, subject to the consent of the surety, and the surety is not thereby discharged.”
See, also, Hagey v. Hill, 75 Pa. St. 108 (15 Am. Rep. 583); Wyke v. Rogers, 1 De Gex, M. & G. 408; Sohier v. Loring, 6 Cush. 537. Many other cases will be found cited in 24 Am. & Eng. Enc. Law, 830, note 2. The same doctrine is laid down in our own case of Bailey v. Gould, Walk. Ch. 482. If, therefore, the defendant stood in the attitude of .surety, the court committed no error in submitting tbe question of his discharge to the jury. We cannot agree with counsel that there was no testimony tending to show such reservation. The cashier testified that they would not carry the notes on the books of the bank, but that he told Carman that he might substitute other paper. He said further: “There was to be no extension. I told him, plainly, we would not release Mr. Peters under any circumstances, or him either.” In this connection, we may add that we think the verdict was not so at variance with the weight of the evidence as to make a refusal to grant a new trial erroneous.
One other question demands notice, and requires a further statement of facts. It has been said that eight notes were sued upon, one of these'being known as “Exhibit A.” This was a renewal of a former note for $1,000, and was sold by the plaintiff, before maturity, to the Mecosta County Savings Bank. When Exhibit A became due, Carman paid Comstock, plaintiff’s cashier, $500 upon it, and a Carman, Bromley & Childs note for $500. The defendant claims that the plaintiff was not the owner of Exhibit A, and therefore had no right of action upon it, and that the admission of testimony regarding it was erroneous. It is said that the jury must have found that the plaintiff owned this note when suit was commenced, although there was no testimony showing it. We find, on examining the record, that Comstock testified that the plaintiff redeemed this note, after it went to protest, by placing in the place of it $500 in cash and one of the Car-man, Bromley & Childs notes. Again he said: “The plaintiff bank got the note by paying a Carman note and the money, after the protest. * * * I paid $500 in cash, and put in a Carman, Bromley & Childs note for $500, and took out this note.” The judge left the question of ownership to the jury, and we think this was right.
But it is urged further that the record shows that the verdict was a- compromise, and that it appears from the following circumstances: A witness testified that the amount due upon the eight notes, including principal and interest, was 17,211.27, and, excluding Exhibit A, $6,333.39. The verdict was for $5,000, from which counsel conclude that the jury gave plaintiff the principal of the eight notes, without interest, and that the verdict must have been the result of a compromise, because there was no dispute about the amounts due upon the respective theories. If the jury intended to render a verdict for the principal of the eight notes, only the plaintiff can complain of the fact that interest was not included, as the defendant was not injured. We cannot presume that they did not so find. The inference of a compromise is not a necessary one. The point is ruled by Benedict v. Provision Co., 115 Mich. 527.
The judgment is affirmed.
The other Justices concurred. | [
53,
17,
48,
23,
-27,
-4,
45,
-50,
26,
-26,
10,
-10,
17,
12,
-1,
-4,
66,
-30,
39,
-24,
-53,
-56,
-29,
-15,
-1,
22,
14,
-8,
-10,
-28,
-1,
55,
-14,
-6,
-54,
-7,
7,
27,
37,
-41,
-1,
-7,
55,
28,
-3,
-35,
10,
-10,
-4,
-42,
30,
-17,
3,
-14,
-50,
-4,
20,
-19,
-54,
17,
-6,
-34,
58,
-18,
13,
15,
-15,
-23,
45,
-10,
29,
-16,
33,
19,
-4,
-43,
-45,
15,
-54,
-35,
-2,
15,
-16,
22,
-7,
19,
-18,
21,
13,
23,
26,
-1,
-1,
-26,
66,
43,
2,
34,
28,
53,
18,
-40,
-44,
-18,
40,
3,
-31,
-37,
-73,
47,
13,
25,
-14,
-45,
-43,
-1,
-25,
0,
-2,
-29,
13,
39,
-25,
16,
-33,
56,
-56,
-29,
7,
41,
12,
-57,
-27,
32,
-4,
2,
4,
-37,
-45,
-11,
37,
-18,
-66,
26,
-13,
-29,
5,
-2,
-22,
-22,
-46,
-3,
-19,
3,
16,
-37,
-10,
-1,
18,
-38,
11,
-28,
57,
-30,
-25,
25,
-34,
0,
-14,
0,
21,
43,
-35,
-10,
23,
46,
6,
-19,
-21,
-41,
5,
48,
21,
-3,
38,
39,
12,
-12,
36,
24,
22,
-33,
-36,
-7,
11,
-41,
19,
-41,
37,
17,
39,
-12,
-4,
-8,
-5,
-7,
66,
-51,
-33,
7,
0,
15,
-19,
-21,
-22,
28,
-19,
-40,
-13,
12,
11,
23,
-31,
-30,
-38,
-33,
38,
5,
-3,
0,
-51,
-16,
15,
-4,
-47,
22,
0,
-9,
-13,
19,
-12,
-39,
-21,
-12,
0,
1,
-66,
-30,
-5,
37,
-23,
29,
-39,
45,
-36,
-8,
28,
-5,
-50,
-33,
6,
82,
-40,
12,
10,
-8,
7,
-4,
-3,
29,
-9,
-91,
30,
47,
-61,
-7,
-1,
13,
-46,
-38,
23,
-35,
-16,
0,
-5,
-34,
-4,
17,
-31,
-1,
17,
-6,
36,
10,
38,
6,
-17,
-7,
0,
1,
-27,
-25,
32,
-32,
11,
29,
4,
-17,
12,
-21,
-9,
-8,
-20,
-55,
24,
7,
-11,
-29,
28,
-1,
51,
20,
-26,
16,
13,
55,
32,
-50,
-30,
10,
26,
15,
-23,
-43,
-44,
-18,
23,
-12,
6,
-8,
5,
43,
-15,
-15,
-38,
-6,
-26,
-55,
-21,
-7,
20,
-21,
-22,
6,
-6,
51,
16,
-22,
-7,
33,
26,
-28,
-12,
15,
27,
16,
-53,
13,
-42,
41,
30,
28,
-26,
-13,
17,
59,
-32,
-14,
-39,
46,
3,
-29,
-7,
-41,
22,
31,
-16,
-45,
-53,
-27,
-77,
26,
33,
65,
23,
-55,
-4,
-44,
-54,
-18,
-55,
13,
13,
-10,
-13,
-11,
12,
0,
1,
15,
-16,
-34,
-27,
34,
-7,
-43,
10,
12,
27,
13,
78,
21,
-8,
-75,
23,
-3,
54,
-8,
-58,
9,
-29,
11,
8,
-20,
26,
1,
10,
6,
33,
-5,
28,
13,
3,
-4,
38,
10,
25,
-17,
75,
-27,
11,
-30,
12,
39,
-28,
69,
27,
-15,
11,
0,
60,
17,
38,
-18,
9,
11,
41,
-2,
-7,
-1,
-38,
-10,
28,
-29,
-22,
25,
45,
-13,
-24,
5,
-51,
32,
38,
22,
-44,
-22,
-70,
-48,
13,
0,
36,
-22,
-2,
-35,
37,
23,
-26,
-52,
-42,
33,
0,
-11,
3,
-16,
-2,
12,
-22,
-54,
-6,
31,
-13,
-11,
12,
1,
55,
48,
-23,
16,
-16,
44,
40,
-12,
6,
8,
-25,
49,
0,
7,
-1,
-34,
8,
37,
-5,
-28,
0,
-21,
17,
7,
-11,
-35,
-21,
5,
64,
17,
-30,
9,
-14,
0,
0,
28,
-7,
9,
16,
5,
-30,
67,
12,
18,
-3,
-12,
-28,
15,
-8,
-6,
45,
2,
-20,
-38,
21,
-45,
-20,
1,
4,
51,
-10,
-12,
0,
7,
-2,
34,
-34,
-8,
-7,
-59,
-56,
8,
21,
30,
-42,
0,
58,
3,
-29,
-7,
32,
29,
17,
16,
-5,
22,
18,
-30,
-29,
-5,
-34,
-29,
-28,
50,
-29,
16,
8,
-15,
24,
61,
-41,
-61,
-34,
-14,
20,
0,
12,
-12,
-19,
24,
59,
39,
-3,
-26,
-39,
26,
-24,
-43,
-51,
8,
-33,
7,
-10,
22,
-25,
-13,
-37,
5,
-11,
-28,
-5,
0,
-33,
8,
57,
-26,
1,
-6,
27,
-11,
-10,
20,
3,
-32,
-29,
-28,
6,
-37,
33,
68,
-19,
-13,
65,
12,
22,
-38,
26,
-32,
43,
30,
16,
-12,
-50,
37,
41,
-37,
-13,
-13,
38,
3,
0,
-23,
63,
2,
-34,
19,
23,
22,
-17,
-7,
-51,
27,
-14,
-5,
-14,
-25,
5,
-20,
0,
55,
23,
-17,
-61,
-27,
8,
-4,
44,
27,
33,
34,
22,
3,
4,
50,
-71,
-28,
19,
-9,
40,
-35,
-10,
-15,
3,
-8,
-47,
-10,
-12,
-9,
-36,
4,
22,
15,
31,
-41,
-35,
-10,
24,
-4,
-7,
-2,
-38,
4,
-6,
-1,
-15,
29,
48,
16,
10,
14,
58,
13,
-32,
6,
-12,
-22,
-5,
17,
29,
-6,
-4,
44,
-33,
-43,
18,
-21,
-27,
-18,
-23,
-12,
31,
32,
20,
-14,
9,
-15,
6,
-18,
40,
62,
2,
10,
38,
17,
57,
20,
0,
53,
-22,
-33,
-83,
22,
0,
-19,
-32,
-40,
-8,
-4,
-4,
-46,
-1,
-59,
63,
3,
5,
-15,
-57,
21,
-3,
-41,
-36,
76,
-5,
14,
-29,
28,
-42,
-5,
26,
-2,
-35,
-5,
-40,
10,
29,
62,
38,
-30,
-25,
-14,
-2,
44,
-2,
51,
-35,
-18,
0,
-27,
5,
15,
55,
21,
24,
83,
-12,
0,
4,
-2,
-50,
8,
-43,
-13,
20,
-22,
-4,
8,
12,
-1,
-49,
35,
18,
-45,
-52,
-14,
-15,
-1,
17,
19,
-3,
-20,
28,
30,
70,
-41,
25,
-8,
-20,
50,
7,
26,
-38,
-22,
46,
12,
-11,
25,
-6,
-28,
-6,
-29,
31,
-34,
25,
-52,
34,
32,
-27,
18,
31,
10,
0,
-26,
17,
25,
53,
45,
43,
-13,
-11,
-27,
-69,
41,
27,
3,
21,
51,
4,
-26,
-23,
25,
30,
0,
21,
-8,
-16,
42,
9,
-5,
16,
46,
4,
25,
-24,
-52,
25,
0,
54,
7,
9,
19,
-50,
22,
24,
-6,
19,
45,
-44,
11,
11,
67,
8,
-7,
-44,
-8,
13,
11,
29,
21,
37,
-22,
30,
21,
-1,
-1,
-17,
-1,
9,
-18,
-15,
0,
-43,
68,
26,
-16,
-9,
-3,
57,
-26,
-70,
32,
-11,
-24,
-2,
34,
-8,
-16,
-8,
-10,
23,
-30,
22,
-30,
-8,
10,
10,
-7,
-17,
-19,
-1,
-4,
17,
18,
6,
54,
-40,
-14,
-29,
4,
38,
10,
13,
17,
-10,
-19,
23,
22,
-21,
-13,
-56,
49
] |
Grant, J.
September 12, 1887, plaintiff commenced suit in tbe circuit court of tbe United States for the eastern district of Michigan, by capias ad respondendum, against Edmund W. Donovan and two others. Donovan's bail was fixed by the judge of that court at $10,000. He was arrested and imprisoned. Subsequently the bail bond was reduced by the court to $500. October 17, 1887, in pursuance of this order, a new bail bond was given for that sum, executed by James Giddey and James C. Wells. Upon the trial of that suit, plaintiff recovered a verdict for $12,455, on which judgment was rendered June 15, 1888. June 22, 1888, a fi. fa. was issued, returnable July 13, which was returned July 18 nutta bona. August 7, 1888, a ca. sa. was issued against the defendant Donovan, which was returned September 14, “Defendant not found.” November 2, 1888, this suit was brought against Mr. Giddey upon the bail bond. Donovan had not been surrendered by his bondsmen. The court directed a verdict for the plaintiff. Mr. Giddey died before the trial, and, upon the suggestion of his death, the executor was admitted to defend the suit. Upon the trial, defendant's counsel offered to show:
1. That Donovan was in the eastern district of Michigan during the life of the writ of ca. sa., and in the city of Detroit, and that the attorneys for plaintiff knew it.
2. That, while Giddey was sick, his son went to the marshal, during the life of the ca. sa., and asked him if he wanted the body of Donovan, and, if so, he would bring him, to which the marshal replied, “No.”
3. That, about three years after this suit was begun, the defendant executor caused Donovan to be located, and got an agreement from him to surrender himself if plaintiff's attorneys wanted him, and that plaintiff’s attorneys refused to accept the surrender.
4. That defendant’s counsel then offered plaintiff's attor neys to produce said Donovan if they would cause to be' issued an alias writ of ca. sa., which was also refused.
This offer of testimony was rejected.
Defendant’s counsel apparently relies upon How. Stat. § 7334, which provides that—
“If it appear on the trial of any such action against bail that an execution against the body of the defendant was_not issued as herein directed, or that it was not issued in sufficient time to enable the sheriff to execute the same, or that directions were given by the plaintiff or his attorney to prevent the service of such execution, or that any other fraudulent or collusive means were used to prevent-such service, the bail shall be entitled to a verdict in their favor.”
The writ was • properly and timely issued and returned. All the proceedings were regular. The offer did not tend to show any directions on the part of the plaintiff or his attorneys to prevent service, or that any fraudulent or collusive means were used to prevent it. The defendant’s right to surrender Donovan expired after eight days from the commencement of suit. Plaintiff’s cause of action was then complete, and neither he nor his attorney were under any legal obligation to issue a new writ, to accept the surrender of Donovan, or in any manner to waive his rights. This case is ruled by the following cases: Begole v. Stimson, 39 Mich. 288; Koch v. Coots, 43 Id. 30.
Judgment affirmed.
The other Justices concurred. | [
0,
-15,
-8,
-20,
-31,
-29,
10,
-23,
7,
9,
40,
-74,
10,
17,
10,
6,
-9,
-58,
-12,
-21,
67,
23,
-3,
3,
-1,
-2,
30,
2,
4,
-53,
36,
1,
-9,
32,
-7,
6,
9,
-74,
21,
0,
1,
-38,
17,
18,
-11,
9,
4,
-40,
43,
-53,
7,
23,
9,
42,
-36,
-7,
23,
-32,
-62,
23,
11,
-34,
-3,
-37,
-49,
20,
7,
25,
-29,
-6,
6,
19,
37,
23,
-18,
0,
-16,
-46,
-4,
-26,
-9,
62,
12,
14,
-26,
-50,
-10,
-65,
12,
46,
29,
11,
-21,
-40,
30,
-43,
47,
29,
-46,
-26,
60,
-1,
-81,
-6,
52,
18,
40,
-14,
-32,
12,
30,
22,
65,
25,
-22,
-61,
-32,
-8,
6,
23,
0,
-48,
66,
-24,
-22,
18,
1,
-9,
74,
15,
19,
47,
30,
35,
-38,
23,
13,
39,
19,
-32,
-45,
16,
-11,
-63,
-17,
-14,
4,
-14,
-32,
-9,
-41,
8,
45,
17,
47,
48,
62,
9,
30,
25,
9,
14,
34,
-50,
-24,
-76,
6,
-54,
7,
16,
-7,
16,
10,
21,
24,
69,
-15,
-2,
8,
29,
-1,
13,
16,
-72,
34,
-48,
22,
-4,
-51,
16,
-21,
2,
-12,
31,
5,
39,
30,
-75,
11,
32,
-12,
-12,
3,
-6,
-1,
-46,
10,
-9,
30,
-5,
2,
-11,
14,
-7,
-26,
19,
-6,
-49,
-8,
15,
11,
21,
-8,
-10,
-20,
-41,
42,
22,
-35,
9,
-35,
-1,
-31,
34,
26,
-2,
-2,
37,
0,
-24,
12,
-7,
-11,
-50,
27,
7,
13,
-39,
-17,
0,
-16,
14,
9,
9,
-11,
51,
15,
-17,
7,
-14,
-42,
-2,
-11,
12,
13,
11,
-14,
9,
21,
8,
-35,
-78,
-9,
9,
56,
-57,
-39,
-5,
-30,
-60,
10,
-18,
-36,
-2,
35,
0,
-15,
35,
-44,
23,
77,
-5,
5,
-43,
66,
45,
38,
16,
33,
-20,
1,
13,
-13,
10,
-8,
30,
26,
49,
-18,
-13,
-22,
35,
-24,
33,
62,
-27,
0,
-27,
44,
-59,
-25,
7,
-44,
-60,
5,
-25,
-12,
31,
-27,
32,
-67,
-5,
-5,
-17,
-49,
7,
0,
-18,
19,
-24,
18,
-14,
-9,
11,
-34,
17,
29,
-6,
-4,
9,
3,
-6,
39,
-15,
-56,
35,
17,
7,
66,
26,
44,
-30,
-37,
20,
19,
-37,
-70,
27,
38,
28,
67,
29,
-21,
-34,
29,
16,
-12,
14,
-10,
34,
2,
44,
10,
-56,
40,
38,
-11,
-30,
18,
53,
-43,
56,
21,
-20,
26,
17,
25,
-4,
-1,
-4,
-2,
5,
18,
-58,
-39,
-2,
-2,
36,
19,
-47,
15,
45,
23,
-30,
21,
-36,
23,
-28,
3,
-33,
34,
14,
32,
-54,
28,
17,
40,
-4,
5,
-60,
25,
4,
62,
-21,
7,
-13,
-50,
-3,
-16,
-21,
21,
-27,
36,
23,
27,
-4,
13,
-8,
5,
-4,
14,
23,
-22,
27,
-21,
12,
-8,
5,
17,
0,
5,
-29,
34,
39,
-1,
-31,
-29,
19,
-11,
-11,
-6,
-5,
27,
2,
-36,
-21,
55,
-24,
12,
-7,
22,
15,
-17,
26,
-6,
13,
-15,
-21,
17,
0,
-12,
-23,
-28,
1,
-1,
38,
8,
-1,
-1,
-34,
-12,
9,
-40,
53,
25,
-22,
41,
-37,
-12,
-21,
61,
37,
-29,
1,
-5,
13,
55,
0,
25,
-19,
-18,
36,
-14,
12,
4,
-20,
26,
-9,
-17,
-4,
33,
0,
6,
-57,
20,
-15,
-31,
-51,
-42,
2,
31,
-10,
62,
-11,
1,
-13,
-9,
29,
26,
7,
-53,
-45,
-19,
-7,
-41,
-16,
20,
-58,
-2,
3,
-5,
-42,
-15,
-3,
-28,
-26,
60,
-4,
0,
15,
-1,
85,
7,
19,
27,
-15,
-2,
-5,
0,
6,
41,
-21,
-32,
-52,
-33,
48,
-37,
-6,
-45,
42,
-6,
-12,
-1,
-26,
3,
2,
-41,
1,
24,
15,
28,
18,
-11,
20,
6,
-51,
-35,
9,
-2,
-2,
6,
-3,
2,
-28,
-16,
-1,
-16,
3,
-17,
56,
14,
0,
1,
46,
-32,
-9,
-7,
-54,
-14,
7,
-10,
-47,
15,
91,
24,
52,
13,
10,
23,
5,
-62,
41,
0,
-26,
-25,
7,
-10,
-49,
2,
-20,
-61,
4,
9,
-12,
10,
-27,
36,
-12,
27,
19,
-4,
3,
-76,
-8,
36,
14,
28,
-4,
2,
29,
47,
-21,
4,
-46,
-36,
11,
-12,
17,
33,
77,
-13,
26,
17,
18,
-59,
10,
14,
-12,
-47,
16,
-21,
23,
2,
21,
-17,
5,
44,
-4,
-20,
-32,
-9,
-2,
-70,
39,
-42,
-15,
31,
8,
-27,
-9,
-20,
-14,
48,
-2,
-15,
2,
-4,
20,
-19,
12,
-45,
-26,
37,
11,
28,
23,
-12,
26,
-34,
-65,
35,
-37,
-33,
15,
-37,
1,
-43,
-11,
-49,
6,
-41,
-20,
53,
-3,
-12,
-58,
21,
32,
-1,
23,
50,
1,
6,
22,
-21,
-57,
8,
-4,
-67,
43,
-14,
8,
19,
-47,
-62,
31,
25,
48,
57,
-9,
-51,
0,
37,
-11,
-37,
-34,
4,
19,
-7,
-11,
19,
-8,
-41,
-11,
27,
30,
-18,
-17,
-58,
32,
16,
-64,
-9,
12,
-5,
-20,
66,
-27,
-16,
19,
36,
-14,
9,
13,
-12,
-21,
31,
30,
-3,
-12,
-16,
13,
30,
27,
-14,
5,
-30,
-62,
12,
21,
5,
53,
32,
0,
7,
-20,
9,
-21,
-46,
-40,
-24,
15,
57,
-19,
1,
8,
14,
-28,
-45,
-31,
-29,
-26,
-15,
47,
54,
-10,
13,
-4,
-2,
42,
14,
-3,
-37,
12,
-51,
-20,
-13,
-49,
-7,
25,
43,
9,
2,
-48,
24,
11,
84,
-40,
-30,
7,
-12,
-26,
38,
37,
-43,
28,
33,
-19,
38,
-10,
28,
-37,
45,
19,
-40,
-35,
31,
-51,
-2,
14,
13,
-22,
19,
45,
0,
-34,
0,
-3,
56,
0,
38,
-35,
-1,
-6,
-23,
0,
10,
5,
-24,
32,
37,
-24,
-69,
10,
-33,
-25,
13,
28,
53,
9,
-18,
-24,
-8,
6,
-22,
-52,
3,
36,
-18,
25,
-64,
-43,
-46,
0,
-25,
-40,
55,
-39,
-9,
4,
54,
8,
-55,
7,
11,
52,
31,
-33,
-14,
35,
-6,
21,
40,
91,
11,
9,
-63,
-27,
-51,
40,
0,
-9,
-17,
27,
32,
20,
-1,
-31,
-10,
-2,
-26,
8,
-20,
-33,
3,
-8,
78,
7,
48,
-96,
5,
-29,
-26,
-25,
80,
20,
17,
1,
-58,
13,
-8,
-21,
-58,
49,
50,
40,
5,
6,
-65,
-23,
-27,
6,
17,
82,
-21,
-4,
23,
21,
-18,
-45,
-47,
-29,
-1,
-20,
-37,
74,
-17,
42,
-18,
3,
-11,
-1,
-17,
38
] |
Long, J.
This action was brought upon the common counts in assumpsit, and, on a trial, verdict was rendered in favor of plaintiff. The verdict is in form as follows:
“They say upon their oath that the said defendant did. undertake and promise in manner and form as charged in plaintiff’s declaration, and they assess the damages of the said plaintiff, over and above his costs and charges, at the sum of $204 and interest.”
This entry of verdict was made June '9, 1892. On July 7, 1892, judgment was entered on the verdict for damages $204, “and interest computed at the sum of $94.78,” making a total, as recited in the judgment, of “ $294.78.” No bill of exceptions was settled. The case comes here upon the record.
It is claimed that there was no warrant for the amount of interest added to the judgment. The statute provides, for interest upon verdicts between the time of rendering the verdict and judgment. How. Stat. § 1598. In this case the time was less than one month, and the interest would have amounted to but little more than $1; yet the interest added in making up the total of the judgment is computed at over $90. It is evident that an error has been made. The record does not show what the plaintiff’s claim was, 'whether upon a note or other contract, or upon open account, or what data the court had in fixing the time or rate of interest. The interest must have been computed from a date some months prior to the verdict. This was error.
In Bell v. Ardis, 38 Mich. 609, where a judgment was made to cover interest, and there was no data to show how much was due, the finding was treated on error as amounting to a mistrial.
In Parker v. Railway Co., 93 Mich. 607, where the jury agreed upon a verdict of $968, but the foreman, in returning the verdict, stated the amount at $800, and the verdict was so entered, he failing to state the amount agreed upon as interest, it was held error in entering judgment to include $168 interest, as there was no warrant for correcting, the verdict after the jury was discharged.
The judgment must be reversed, and new trial ordered.
The other Justices concurred. | [
-18,
6,
6,
-21,
25,
46,
72,
-79,
44,
43,
35,
-20,
-31,
-12,
5,
-44,
4,
-36,
-4,
-8,
-29,
-40,
4,
5,
-24,
10,
54,
0,
0,
35,
35,
20,
-19,
61,
-36,
-12,
-12,
-30,
0,
38,
55,
19,
7,
-24,
-32,
-1,
-8,
-32,
63,
-17,
-3,
-52,
-57,
-42,
-9,
-10,
25,
2,
-22,
-8,
4,
-29,
17,
-10,
-3,
-6,
-19,
-47,
-21,
-21,
-54,
15,
43,
-18,
13,
-18,
-30,
21,
-52,
-34,
-27,
-21,
18,
10,
11,
-55,
0,
-52,
7,
-30,
-40,
14,
-21,
-17,
51,
22,
34,
13,
4,
15,
13,
-3,
-53,
24,
-33,
24,
-46,
-12,
-37,
-1,
15,
9,
51,
-5,
-50,
19,
-56,
-3,
16,
-42,
16,
2,
31,
6,
-11,
47,
-30,
-8,
37,
27,
-4,
4,
-54,
31,
-10,
-7,
27,
-29,
27,
-16,
56,
-52,
-19,
-31,
-1,
19,
-18,
27,
-6,
-1,
-41,
11,
29,
26,
23,
-16,
-7,
-70,
1,
-61,
32,
-16,
-12,
-27,
16,
0,
-15,
-6,
6,
-19,
-2,
-13,
2,
-9,
37,
44,
5,
-92,
-2,
-22,
0,
29,
-18,
-8,
9,
1,
25,
-16,
-19,
-58,
13,
16,
-39,
6,
6,
0,
41,
-25,
38,
18,
10,
-80,
5,
30,
-48,
47,
61,
8,
-46,
11,
-5,
-14,
-27,
-14,
-17,
10,
-7,
-36,
7,
-28,
-13,
41,
-31,
-7,
-13,
-61,
12,
32,
-37,
54,
-1,
-1,
4,
-49,
1,
-17,
5,
-12,
-2,
33,
-12,
-34,
-9,
-35,
11,
28,
13,
-12,
-30,
45,
-1,
41,
-50,
-17,
-29,
-13,
2,
10,
-24,
-33,
-33,
71,
-30,
17,
-8,
-9,
31,
14,
-26,
33,
-3,
-32,
-4,
46,
-11,
-41,
-68,
-13,
14,
-37,
0,
-13,
-2,
4,
-28,
23,
-53,
50,
22,
-4,
42,
-51,
-11,
7,
42,
32,
5,
15,
8,
-1,
-11,
-17,
10,
37,
31,
-12,
-6,
-2,
-36,
-36,
-32,
37,
37,
0,
61,
-21,
-33,
-29,
40,
-55,
-37,
-4,
-22,
16,
-9,
10,
52,
-33,
-71,
8,
27,
45,
27,
30,
28,
-25,
4,
38,
20,
-20,
16,
1,
20,
-4,
12,
30,
-28,
-37,
-25,
5,
-34,
-23,
-9,
30,
-6,
-46,
-3,
-33,
-25,
12,
70,
-30,
32,
-21,
31,
28,
-22,
-60,
9,
39,
7,
10,
-39,
-9,
-11,
33,
40,
0,
-53,
51,
16,
50,
-30,
1,
31,
10,
-21,
-59,
-40,
-3,
-30,
19,
-12,
-22,
35,
-7,
0,
-26,
-35,
-39,
-32,
-11,
90,
8,
7,
11,
-22,
16,
-59,
22,
9,
-23,
-20,
-42,
-16,
6,
40,
35,
20,
-27,
26,
8,
16,
-78,
-16,
-31,
40,
21,
-24,
-14,
-6,
13,
14,
-42,
41,
21,
-4,
2,
0,
-16,
-2,
24,
-17,
-10,
37,
-31,
23,
-4,
52,
28,
29,
-61,
14,
0,
38,
41,
22,
-83,
18,
17,
22,
6,
-19,
44,
-8,
-4,
-8,
-9,
55,
-13,
-65,
-24,
11,
22,
-28,
9,
18,
18,
2,
1,
14,
-35,
-7,
-47,
11,
-25,
-33,
-36,
-54,
-14,
57,
-28,
-1,
-4,
20,
23,
-40,
10,
-45,
2,
-28,
20,
69,
-33,
19,
13,
-42,
-88,
0,
15,
3,
5,
30,
8,
-18,
-9,
10,
6,
42,
48,
-17,
49,
-35,
14,
-31,
-7,
-15,
1,
-12,
-35,
16,
25,
-34,
-11,
-68,
35,
-19,
-21,
4,
-18,
6,
39,
39,
38,
7,
1,
17,
-20,
-5,
37,
-1,
1,
23,
19,
-47,
-36,
32,
5,
21,
-39,
6,
-17,
20,
-20,
38,
-1,
4,
8,
13,
-66,
-8,
26,
13,
-7,
-41,
-2,
-28,
31,
32,
-37,
-13,
55,
17,
-46,
13,
-18,
15,
-1,
-12,
12,
42,
25,
-34,
12,
-3,
-40,
-2,
11,
44,
22,
19,
12,
-35,
-1,
-6,
-11,
-24,
11,
17,
4,
68,
17,
51,
0,
39,
0,
40,
29,
-28,
12,
23,
17,
-31,
-8,
34,
6,
-17,
-54,
-36,
-31,
-8,
-3,
-53,
32,
-47,
15,
25,
42,
3,
6,
-25,
6,
51,
-13,
-21,
-2,
-52,
10,
-14,
-8,
7,
29,
22,
-30,
-19,
31,
53,
-9,
4,
-24,
38,
50,
5,
19,
-20,
3,
34,
-16,
46,
43,
-2,
-62,
53,
-9,
29,
10,
-24,
8,
40,
-2,
-46,
-6,
51,
33,
7,
-31,
-17,
52,
-2,
-37,
-8,
17,
-52,
31,
34,
15,
75,
41,
-12,
-24,
33,
-35,
-1,
11,
-3,
-15,
14,
28,
34,
-71,
-3,
-31,
-29,
-6,
-6,
-6,
-23,
-3,
-11,
18,
31,
-21,
18,
-17,
-46,
4,
34,
5,
23,
-16,
-2,
19,
-46,
18,
-7,
-7,
-22,
-11,
-62,
-22,
-22,
-7,
-4,
-27,
10,
-4,
3,
7,
-15,
18,
23,
12,
36,
1,
-6,
16,
-19,
-17,
-17,
-33,
-38,
57,
-7,
-18,
-10,
58,
-29,
-26,
-20,
15,
-21,
-12,
-30,
-2,
24,
17,
27,
-13,
38,
-41,
49,
33,
-8,
33,
-37,
-27,
36,
-15,
-38,
50,
28,
-29,
23,
-5,
-20,
-24,
47,
-1,
-34,
-11,
4,
18,
21,
-30,
-15,
71,
5,
32,
15,
11,
-25,
10,
-6,
-18,
6,
29,
-15,
-14,
-1,
-15,
-14,
43,
17,
-12,
-14,
35,
-28,
-1,
-43,
28,
45,
-3,
-28,
-15,
33,
11,
18,
-2,
-32,
20,
-5,
-15,
-13,
-37,
45,
0,
-44,
31,
-19,
3,
-8,
-4,
-21,
-72,
-50,
0,
40,
20,
-7,
31,
-37,
22,
-31,
33,
43,
8,
-26,
35,
-13,
-23,
-1,
32,
-14,
11,
-59,
56,
28,
-37,
20,
-13,
-48,
-34,
24,
13,
-11,
-40,
5,
-10,
-46,
66,
-1,
28,
58,
-4,
24,
-25,
-41,
-50,
8,
0,
31,
31,
-13,
26,
48,
27,
44,
28,
-24,
68,
41,
-14,
-7,
-8,
16,
28,
16,
-22,
31,
-5,
7,
18,
13,
-17,
22,
26,
16,
-1,
-32,
13,
-14,
9,
-19,
1,
13,
15,
9,
-36,
38,
12,
-6,
-17,
7,
31,
-9,
17,
-51,
26,
-19,
8,
-36,
-26,
33,
40,
1,
-24,
-41,
-7,
-1,
25,
10,
0,
25,
-26,
13,
-28,
24,
-42,
-18,
-5,
-8,
-16,
-1,
-38,
5,
-12,
32,
-27,
-47,
-14,
38,
-31,
-45,
6,
-6,
-12,
-52,
0,
15,
16,
7,
35,
26,
-20,
-7,
-41,
42,
12,
-21,
-23,
2,
-19,
33,
16,
-5,
-60,
5,
41,
-8,
-14,
-2,
38,
29,
23,
30,
49,
9,
-19,
10,
7,
18,
18,
-6,
24
] |
Grant, J.
The agreed facts in this case are as follows:
1. Prior to May 8, 1869, the ownership of the land was in Rebecca Horton, as widow of Nelson D. Horton, deceased, and Carlos D. Horton and Mary E. Beard, the children and beirs at law of Nelson D. Horton, and the property was the homestead of Nelson D. Horton.
2. May 8, 1869, the' said Carlos D. Horton and Mary E. Beard gave to Rebecca Horton a life-lease of said premises.
3. By sundry and mesne conveyances the title of Carlos D. Horton Vas conveyed to Frances S. Farrand.
4. May 22, 1884, Frances S. Farrand conveyed the interest acquired from Carlos D. Horton to Etta M. Beard, and upon the same day the said Etta M. Beard gave to B. C. Farrand a mortgage on the entire reversion for $918.90, to secure the purchase price of the interest conveyed to her. Said mortgage contained a covenant on the part of the mortgagor to pay all taxes assessed upon said premises.
5. Said mortgage was assigned, June 16, 1884, to George S. Barrett, and by him foreclosed for the interest accrued and unpaid; the sale talcing place February 27, 1886, and a sheriffs deed being made to George S. Barrett. Redemption expired.
6. May 7, 1887, the said George S. Barrett, by his attorney in fact, conveyed, by ordinary quitclaim, the said premises to B. 0. Farrand and W. L. Jenks, and on the 18th. day of September, 1889, the said Barrett executed in person a conveyance by quitclaim, in usual form,- of the said premises to -the same grantees; and the said Farrand conveyed by ordinary warranty deed, except as against existing tax claims and mortgages, his interest in the said premises to Sheldon A. Wood, on September 23, 1889; and after the filing of the original bill in this case the said ‘Sheldon A. Wood conveyed, without covenants, his interest in the said premises to complainant.
7. September 20, 1886, the said George S. Barrett redeemed the said premises from the sale made for unpaid taxes of 1882 and 1883, paying therefor, for the taxes of 1882, the sum of $84.90, and, for the taxes of 1883, $71.14.
8. September 27, 1887, the said B. 0. Farrand and W. L. Jenlcs redeemed for the taxes of Í884, paying therefor $62.94; September 25, 1888, the said parties redeemed for the taxes of 1885, paying therefor $68.70; September 27, 1889, the said Jenks and Wood redeemed for the taxes of 1886, paying therefor $71.56; and all the rights of said Barrett for taxes paid were transferred to said Farrand ■•and Jenks, and the rights of said Farr and and Jenks transferred to Jenks and Wood, and the rights of said Wood transferred to said complainant by assignment.
9. At the time- of filing the original bill there were the •ordinary city, State, and county taxes assessed upon said premises for the years 1887, 1888, and 1889, in all amounting to upwards of $161, unpaid.
10. Said Eebecca Horton has occupied a portion of the premises continuously since the life-lease given to her in May, 1869, and has not paid any taxes assessed thereon beginning with the year 1882.
11. From September 1, 1885, to January 20, 1890, Etta M. Beard and her family occupied the property described in the bill as a home; Mrs. Horton also living there during the same time.
The court entered a decree that the complainant had a lien upon the life-estate of the defendant for the taxes bf 1882 to 1886, inclusive, which had been paid by the complainant and his assignors, and for the unpaid taxes of 1887, 1888, and 1889; that she pay the amount of such taxes within 60 days after service upon her of a certified copy of the decree, and that, in default thereof, her interest be sold by the sheriff of the county, in the manner provided for the sale of real estate on execution, for the taxes to and including the year 1886; and that, in default of the payment of the taxes for the subsequent years above named, a receiver be appointed to receive the rents and profits of the premises for the purpose of paying such taxes.
Defendant’s counsel insists (1) that- complainant has no lien or right of action for the taxes prior to and including 1886; and (2) that under our system of taxation complainant is not entitled to a receiver for the unpaid taxes.
1. It is conceded that the law imposes upon a life-tenant the duty to pay the taxes assessed upon the land. It is insisted, however, that the personal covenant of the reversioner in the mortgage to B. C. Farrand to pay the taxes, and the joint occupancy of the premises by the defendant and her daughter, the reversioner, operated to» relieve the defendant from the'payment thereof. The defendant, however, was a stranger to the agreement between the reversioner and B. C. Farrand. The fact that a reversioner mortgages his reversion, and in the mortgage agrees with the mortgagee to pay the taxes, is not of itself a release of that duty on the part of the life-tenant. Had there been a contract between the defendant and her daughter by which the daughter had agreed to pay the taxes, a different question would have been presented, which we are not now called upon to determine. A purchaser of a reversion, either by mortgage or absolute conveyance, is subrogated to all the rights of the original reversioner as against a life-tenant. The agreed facts contain nothing showing any intention or agreement to release defendant from this duty to pay the taxes. The decree, •therefore, covering the taxes which the complainant and his assignors have paid, is affirmed.
2. In New York the practice of appointing receivers in. similar cases prevails (Cairns v. Chabert, 3 Edw. Ch. 312;. Sidenberg v. Ely, 90 N. Y. 257); but under our method of enforcing the collection of unpaid taxes upon real estate, and under our system of foreclosing liens, we do not think the appointment of receivers the proper remedy. When it is determined by adjudication that defendant is under obligation to pay the taxes, it is quite probable that she-will do so. The appointment of a receiver is a harsh proceeding, and should be resorted to only in extreme eases.. In this respect the decree will be modified. The taxes, however, for the years named are past due, and, if not paid within 60 days after service upon the defendant of a certified copy of this decree, the complainant may pay them, and include the amount thereof in the sale ordered by this decree.
The complainant will recover costs of the court below, and the defendant costs of this Court.
The other Justices concurred.
Counsel cited, in support of this contention, Conduitt v. Moss, 102 Ind. 166; Graber v. Duncan, 79 Id. 565; Shelton v. Codman, 3 Cush. 318; Ladd v. Noyes, 137 Mass. 151. | [
21,
10,
10,
-15,
13,
22,
6,
37,
68,
-12,
11,
-23,
45,
24,
59,
36,
24,
0,
-30,
-11,
-45,
-22,
-80,
-7,
7,
-43,
22,
-20,
2,
-5,
55,
-27,
-14,
24,
29,
18,
0,
11,
45,
-11,
7,
-1,
10,
23,
18,
45,
-41,
-78,
-1,
-15,
2,
-27,
35,
-14,
4,
-12,
-18,
-13,
-41,
-3,
19,
-31,
-9,
19,
-50,
1,
27,
4,
20,
-31,
57,
-11,
2,
-24,
18,
-26,
64,
-19,
-36,
-13,
6,
-40,
19,
24,
-18,
-49,
26,
-38,
54,
50,
-21,
-9,
58,
12,
-38,
-5,
10,
33,
-18,
46,
-36,
-13,
-36,
32,
-2,
-28,
-9,
-1,
-9,
-61,
-3,
15,
44,
-10,
2,
-4,
-36,
-7,
-54,
-35,
-36,
-41,
-6,
-28,
-19,
51,
-45,
19,
-8,
1,
-2,
-54,
-56,
21,
34,
-10,
-39,
9,
-6,
2,
-17,
59,
-31,
-70,
-5,
2,
-15,
-21,
-24,
0,
-29,
63,
-3,
19,
38,
-33,
74,
-8,
-3,
-64,
-3,
-3,
5,
-44,
-53,
-28,
46,
-10,
1,
30,
35,
61,
-61,
-25,
31,
6,
2,
-18,
-26,
18,
-27,
18,
39,
-23,
3,
-84,
0,
-12,
0,
16,
-12,
-6,
4,
0,
-2,
14,
-10,
-57,
-6,
-47,
-53,
3,
24,
-6,
33,
-18,
-23,
-29,
13,
3,
3,
21,
30,
-29,
-37,
11,
23,
15,
40,
27,
37,
29,
-3,
0,
-56,
-37,
0,
-2,
0,
-19,
-49,
20,
-30,
-36,
0,
-3,
2,
20,
-25,
0,
5,
-14,
0,
-28,
-18,
51,
1,
-2,
1,
38,
-70,
39,
-68,
67,
-8,
-23,
14,
3,
12,
-43,
2,
4,
20,
-28,
41,
-44,
-23,
23,
33,
42,
4,
-7,
2,
-10,
-31,
-25,
-44,
3,
-41,
29,
59,
-30,
-32,
21,
11,
27,
-9,
35,
-24,
-13,
45,
5,
-2,
-30,
10,
13,
-14,
15,
57,
2,
-2,
-6,
-15,
-4,
12,
7,
20,
-20,
-23,
1,
67,
34,
4,
27,
23,
-20,
-31,
-54,
-16,
15,
40,
27,
-13,
-16,
4,
15,
17,
-8,
-66,
77,
-32,
6,
-36,
-9,
-1,
2,
23,
-7,
3,
-64,
-4,
6,
-10,
33,
49,
-43,
-17,
-26,
-49,
34,
-52,
6,
12,
11,
-30,
5,
13,
22,
21,
24,
60,
-2,
1,
-14,
7,
12,
-20,
-19,
56,
-55,
37,
19,
19,
-17,
26,
-29,
-22,
-32,
0,
6,
22,
34,
27,
55,
22,
29,
5,
0,
-8,
-26,
-16,
-2,
-12,
5,
2,
-30,
-1,
-14,
-55,
-20,
-20,
19,
-12,
-43,
-70,
4,
-22,
-14,
43,
-6,
48,
-32,
39,
-50,
25,
-1,
8,
-33,
9,
87,
43,
4,
6,
0,
-15,
-16,
21,
34,
-4,
-12,
-37,
17,
48,
14,
18,
-2,
-63,
10,
-51,
42,
22,
24,
26,
25,
0,
6,
-34,
-25,
30,
19,
-22,
17,
-18,
70,
-66,
16,
60,
2,
34,
-20,
55,
3,
12,
41,
17,
34,
22,
-18,
-51,
42,
10,
16,
45,
-59,
-16,
-4,
-22,
-14,
-17,
15,
13,
-7,
-18,
43,
-12,
39,
-34,
6,
-31,
21,
49,
-31,
42,
-31,
-14,
-12,
-15,
-1,
29,
-25,
20,
-31,
38,
10,
54,
19,
2,
-4,
29,
13,
-25,
-68,
-8,
26,
-68,
23,
42,
-17,
29,
11,
27,
2,
-46,
26,
7,
-14,
90,
58,
55,
12,
-35,
-2,
-7,
2,
-20,
23,
-17,
38,
0,
-6,
-25,
9,
17,
45,
-80,
68,
59,
-15,
-2,
-2,
-25,
-50,
-14,
3,
-77,
5,
9,
-55,
18,
18,
-12,
-35,
22,
-42,
21,
-23,
18,
-33,
-36,
19,
-8,
-13,
-24,
-25,
-7,
-32,
-54,
-22,
1,
69,
-49,
-37,
15,
-12,
0,
72,
-3,
50,
-14,
0,
-42,
75,
-45,
-6,
5,
-36,
20,
3,
-39,
19,
-10,
-22,
-58,
-3,
10,
-55,
4,
0,
19,
-51,
20,
12,
31,
49,
41,
56,
39,
-69,
-10,
31,
0,
-16,
-29,
-33,
-10,
6,
45,
7,
57,
7,
37,
-20,
9,
19,
-34,
8,
5,
-2,
16,
-29,
4,
25,
-45,
44,
-47,
56,
-3,
-65,
5,
-31,
-38,
-20,
-24,
6,
39,
7,
11,
9,
-15,
-13,
77,
-2,
-12,
32,
17,
-13,
18,
14,
-31,
10,
-28,
-47,
48,
25,
22,
7,
0,
53,
45,
-33,
32,
28,
30,
8,
8,
4,
-9,
11,
-57,
60,
23,
-37,
6,
62,
-33,
-13,
4,
37,
-1,
24,
30,
-14,
-21,
42,
3,
-20,
17,
-24,
-42,
-39,
-12,
13,
46,
-43,
-4,
-11,
15,
-3,
34,
-24,
-25,
-28,
-32,
-48,
22,
9,
23,
-21,
-39,
-10,
32,
11,
-55,
-3,
-26,
16,
59,
26,
-6,
-21,
-65,
1,
3,
34,
-43,
0,
67,
13,
26,
33,
2,
3,
-9,
5,
28,
-24,
-34,
25,
0,
-23,
-8,
30,
-11,
2,
7,
9,
-49,
-26,
22,
11,
-16,
27,
1,
-11,
12,
-64,
34,
-4,
17,
1,
33,
-53,
-26,
-19,
46,
-21,
23,
-27,
75,
48,
-11,
-41,
11,
40,
-67,
-5,
34,
-17,
-8,
-20,
-4,
10,
0,
47,
37,
8,
0,
58,
-19,
-16,
20,
-49,
-17,
-25,
-11,
-44,
21,
-2,
9,
-13,
-8,
-3,
-21,
-1,
-9,
2,
22,
-2,
-44,
-3,
7,
-36,
-21,
7,
22,
-45,
-50,
0,
24,
-11,
-21,
-28,
5,
-19,
33,
-68,
-24,
18,
-19,
-10,
-25,
-3,
21,
-5,
-71,
-35,
-8,
25,
11,
7,
14,
42,
-9,
20,
-28,
-24,
40,
29,
17,
22,
-48,
-35,
-20,
35,
1,
5,
19,
-22,
38,
6,
-3,
-3,
-53,
40,
-19,
12,
17,
8,
27,
20,
-5,
-20,
14,
31,
-6,
-21,
8,
-38,
10,
1,
-68,
-17,
-1,
1,
-17,
-6,
14,
-6,
18,
-2,
-27,
-41,
-90,
-87,
-41,
-21,
-2,
3,
25,
23,
34,
38,
-31,
2,
7,
-29,
-12,
-18,
-36,
38,
-26,
49,
-62,
3,
-9,
15,
-1,
-46,
4,
-32,
63,
-2,
28,
9,
-29,
-5,
53,
-17,
5,
-3,
-34,
32,
40,
36,
32,
-26,
-72,
-6,
-45,
23,
-48,
12,
34,
-2,
19,
18,
22,
22,
9,
-9,
31,
-74,
-16,
-19,
-6,
-53,
26,
-5,
45,
-13,
9,
1,
-28,
65,
-35,
22,
60,
-35,
-35,
27,
12,
-22,
-17,
10,
24,
-4,
-22,
19,
-6,
-40,
-1,
-37,
40,
30,
9,
-72,
11,
13,
35,
-18,
-112,
-8,
34,
43,
1,
21,
-16,
38,
55,
-18,
45,
1,
-22,
50
] |
Long, J.
It is alleged in the bill of complaint:
1. That the defendant was the owner of certain lands situate in Marquette county, and, being disposed to sell the same, addressed a written communication to complainant, September 19, 1891, containing a proposition to. sell the same, specifying the price per acre.
• 2. That the complainant, on October 17 following,, accepted such proposition by writing, and on October 1&> he received a telegram from the president of defendant:, company, saying: “Will send deed to-morrow.”
3. That the aggregate purchase price specified in the) proposition was $28,200, which was paid to defendant.
Complainant therefore charges in the bill that by these) means a contract of sale was made and concluded between the parties for the lands.
The answer admits the letter of September. 19, the; answer thereto, and telegram, but avers—
1. That this letter was but one of a series of letters-passing between Mr. Butler and Mr. Mather, president of the defendant company, on the subject in question; that the letters themselves had been preceded by three conversations between the parties relating to the same subject;-, that the purpose of the letter of September 19 was only to fix a price, the fact that any deed, if given, would contain certain reservations, being fully understood between., the parties; that all the letters and conversations must betaken together to ascertain the meaning of the transaction;; that complainant, Butler, well knew this fact, and construed the letter of September 19 accordingly.
2. That it Avas expressly understood, both in these prior-conversations and letters between Mr. Butler and Mr. Mather, that any deed, given by the defendant, of the-lands in question must contain reservations saving and reserving to defendant forever all metals, ores, and minerals,, and all slate, sandstone, limestone, granite, marble, and! other rock or stone valuable for building purposes, Avithi the right to dig, mine, and quarry the same, etc., and! to use so much of the land for that purpose as Avas necessary, and also a reservation of a right of way for railroads.across the premises; and that the letter of September 19,. counted upon by the bill as a proposition of sale, was. Avritten by Mr. Mather with this distinct understanding.
3. That, in the conversation referred to in one of the-letters, Mr. Mather carefully and fully explained' to Mr- Butler the nature of the reservations which would be included in any deed made by the comp>any as above set forth, and that these reservations were the usual reservations contained in deeds given by the Iron Cliff's Company in the form used by it; that Butler expressly stated in such conversation that he understood that any conveyance made by the company would contain these reservations, and all of them, and he further stated that he would purchase the lands subject to such reservations; that the letter of September 19 ivas itself a reply to a letter written by Butler, dated September 3, regarding the same subject, and containing a request fox an offer of the lands in question at some price for which the defendant company would be willing to sell the lands, and in which last-mentioned letter, also, the factor of price was the only one discussed; that this letter of September 3 written by Mr. Butler was of itself a' reply to a letter written by Mather, of August 31, in which reference was again made by Mr. Mather to reservations, and that no exceptions were taken by Butler, in any of the correspondence previous to the payment of the money and the tender of the deed, to the reservations proposed by Mr. Mather, and mentioned in the letter of August 31; that, before Butler delivered his certified check for the purchase price, he was shown the form of deed which he would receive, which form was the usual form used by the Iron Cliffs Company, and contained all the reservations mentioned, and, after having examined this form of deed, Butler thereupon handed to the messenger the check for the purchase price.
4. The answer positively denies j;he making of any such contract as that alleged in the bill and. .the power of Mather to make the same, and denies the making, or the power to make, any other contract for sale than one containing the reservations mentioned.
The proofs were taken in open court, and a decree entered finding that the contract between the parties did not reserve the rock and stone or the railroad right of way, and directing that the defendant execute and deliver to comjfiainant a deed containing the usual covenants of warranty, conveying to complainant the lands mentioned, excepting and reserving to the defendant forever all metals, ores, and minerals1 in or upon said lands, together with the continu •©us right to enter upon said lands and explore for, mine, ■smelt, and refine all such ores and minerals, and to remove and dispose of the same. Complainant was awarded costs. From this decree both parties appeal.
The court below, while admitting' the oral testimony on the hearing, refused to consider it in determining what the ■contract between the parties was. From the testimony of Mr. Mather, president of the defendant company, it appears that some time in August, 1891, complainant called upon him at his office in Cleveland, and wanted to buy these lands, and was advised that the company did not care to sell them; that Butler called again the next day,* and renewed the conversation, when he was advised by Mather that he was not prepared to take the matter up, but would consult with his people about it; that soon after,- and during the same month, he met the complainant at Marquette, when he again asked if the defendant would sell the lands, and wanted to know if the company would consider a proposition of $10 per acre, and was advised that, on returning home, Mr. Mather would consult his people, and write him. During some of these conversations Mr. Mather advised complainant that all the company’s deeds of these lands contained mineral reservations, and that, if a deed was executed, “it would contain our usual mineral reservations, which •included all stone.”
Mr. Mather further testified that the form of their deeds for many years had contained the reservations contained in the deed to complainant, except rights of way to railroads, and that he told complainant that this was the usual form of their deeds, and that, in addition to this form, the company had recently decided also to insert a reservation giving defendant the privilege to grant rights ■of way to railroads, and that complainant then said he understood that; that he then advised complainant he had ■better look at the form of the deeds and examine it. Mr. Mather further testified that he never had any authority from the company to make a deed of the lands-except upon the form contained in the deed in question. This deed contains this reservation:
“ Saving and reserving, however, unto the said party of the first part, and to its successors and assigns, forever,, all metals, ores, and minerals, and all slate, sandstone, limestone, granite, marble, and other stone or rock valuable for building or other purposes on or beneath the surface of said lands, or any part or portion thereof, together with the right to enter upon said lands, and to explore-therefor, and to mine, smelt, and refine such ores and minerals, and to quarry and dress such stone or rock, and to-remove the same, and for that purpose to erect or construct, or maintain all such buildings, machinery, roads, or railroads, sink such shafts, remove such soil, occupy as much of said land, and use and direct such streams or ponds of water thereon, as may be necessary or adequate to the-successful prosecution of such business.”
It appears that a subsequent clause -in reference to the-use of the lands for railroad purposes and the right of way over the lands for such purposes was contemplated to be inserted in those deeds, but was not in the form of deeds-in use at that time. This latter reservation is not important, however, in this controversy, as it is agreed that that clause is not now insisted upon.
Complainant denied that in these- conversations with Mr. Mather anything was said about some of these reservations in the deed. He states that—
“ Nothing was said about the stone that -I remember of. I don’t think the word ‘ stone ’ ever passed between us. Mr. Mather’s statement of the whole proceeding was correct, except as to that one thing in regard to stone and railroads.”
He was asked what his understanding was in reference to the written proposition of Mr. Mather, and, if lie-accepted it, what reservations there were of the stone, and. answered:
“ My understanding of it was, — in fact, I had really two' interpretations in my mind; I thought perhaps Mr. Mather had decided to sell me the land without any reservations, or I thought he proposed to sell the land with the mineral reservation, just as we had talked before. I thought it might be either way. I was willing to accept it upon the basis of the proposition.”
' It appears that complainant wrote Mr. Mather on September 3, 1891, asking prices of certain lands which he described. This was answered by Mr. Mather on the 19th, giving him prices on certain sections, as follows:
“In reference to our lauds in Marquette county, our people are not willing to give an option on them to you, but they will place the following prices at which they are willing to sell them for cash. We will not change these prices during the next 30 days, and during that time will give you the first chance at them. We will sell our lands in sec. 32 at $10 an acre, in sec. 33 at $100 an acre, town 49, range 25; in sec. 10 at $40 an acre, in sec. 15 at $50 an acre, town 48, range 25.
“ Yours truly,
“Iron Cures Company.
“By Wm. G-. Mather,
“ President.”
This was answered on October 5 by complainant, and in which he expressed surprise at the prices, but asked that he might have time to secure other lands to combine with them to bring the average price lower. On the 17th he again wrote Mather, accepting the proposition of September 19, stating:
“ I will take all the lands described in that letter, and at the prices named therein. Please make warranty deed or deeds conveying said lands to William O. Butler, Marquette, Mich., and forward same to J. M. WilkinsonY Bank, this city, together with draft on me for the amount of purchase price,” etc.
He also wired acceptance of the proposition, to which Mr. Mather wired back: “Telegram received; will send deed to-morrow.”
Prior to any of these written communications, and .after the talk between the parties in reference to these lands, in compliance with Mr. Butler’s request, Mr. Mather wrote him under date of August 31, 1891, that, after talking with his people, he found them quite indifferent to selling, especially at the price talked. In this letter Mr. Mather stated:
“You understand, of course, that in all our sales we always reserve the usual mineral rights.”
It appears that after the telegram and letter of acceptance from Mr. Butler of the terms offered, and on October 20, Mr. Mather forwarded the deed of conveyance for collection, at the same time writing Mr. Butler that he had ■done so. In this letter he advised Mr. Butler about the reservations contained in the deed, as follows:
“The reservations contained in the deed are as I told you they would be, — the reservation of all stone and minerals, and the right to explore and mine; also the reservation of the right to grant rights of way to railroads.”
A copy of the deed was sent Mr. Gibbs, agent of the ■defendant company, to show Mr. Butler. lie met Mr. Butler, showed him the form of the deed, and Butler said that it was a little different from what he had talked with Mr. Mather, but he would write Mr. Mather about it. He then made out his check for the amount of the purchase, $28,200, and gave it to Mr. Gibbs for the company, and taking the deed. It appears that Mr. Butler then wrote Mr. Mather, claiming that the reservations in the deed as to the stone should be stricken out, and a new deed given, not including the reservations of the stone and right of way for railroads. The defendant company agreed upon .striking out the reservation in reference to the right of way for railroad purposes, but refused to strike out the ■ones in reference to the stone, claiming and insisting that these reservations had been agreed upon.
We think the court below was in error in refusing to-consider the oral testimony in the case. The contract, if any was made in reference to the sale of the lands, Was. made up of these conversations, and the letters and telegrams passing between the parties. It is evident that. Mr. Mather, in these several conversations, meant to convey the idea to complainant that the company, if it made a sale, would reserve all minerals that it had been usual to reserve in its deeds. He called especial attention to the form of deeds which the company used, and advised complainant it would be well for him to look into these forms and examine them. Mr. Butler does not deny that this conversation was had, but says nothing was said about the reservation of stone. When examining the copy of the deed handed him by Mr. Gibbs, he saw that there was a reservation in reference to stone, and yet gave his check, certified by the bank, for the whole amount of the purchase. From these conversations, and the letters and telegrams passing between the parties, and the conduct of Mr. Butler in receiving the deed and paying for the lands before the alterations were made which he claims, it appears to us that the only construction which can be given to the contract -is that the stone was a part of the intended reservation, and so understood by the parties to the transaction, and that the form of the deed given met all the requirements of' the contract, except what is conceded in reference to the railroad right of way. The letter of August 31 apprised the complainant that there would’ be a reservation of the usual mineral rights. This had been explained by Mr. Mather in the conversations at Cleveland and Marquette, and he had called the attention of complainant to the form of deeds used. These deeds had always contained these reservations, and Mather advised complainant to examine their form.
It has been repeatedly held by this Court that, where the contract-is made by correspondence, the intent of the parties must be gathered from the whole of the correspondence. Francis v. Barry, 69 Mich. 313. The letters alone in this case did not contain the whole understanding of the parties', which must be interpreted with the aid of the oral testimony. The letter of August 31 is a part of the correspondence, and the expression of the “usual mineral rights,” which were to be reserved, could •only be explained by what had gone before in the oral •conversations in reference to the form of deeds used. These rules have long been settled in this State. Loud v. Campbell, 26 Mich. 239; Richards v. Fuller, 37 Id. 161; Phelps v. Whitaker, Id. 72; Bailey v. Cornell, 66 Id. 107. This rule is stated by Jones on the Construction of Commercial and Trade Contracts (section 134) as follows:
“The test of the completeness of the writing proposed as a contract is the writing itself. If this bears evidence of careful preparation, of a deliberate regard for the many questions which would naturally arise out of the subject-matter of the contract, and if it is reasonable to conclude from it that the parties have therein expressed their final intentions in regard to the matters within the scope of the writing, then it will be deemed a complete and unalterable exposition of such intentions. If, on the other hand, the writing shows its informality on its face, there will be no presumption that it contains all the terms of the contract. In every case, therefore, the uniting must be critically examined in the light of its surrounding circumstances, with a view of determining whether it is a memorial of the transaction.”
In this yiew of the case we need not discuss the question •of the power of Mr. Mather to make a deed other than in the usual form used by the company of which he was president. It is admitted that he had power to make the usual form of deed, and it was so made. We are satisfied that, taking the whole transaction as shown by the oral testimony and the letters, it was clearly understood what the reservations were to be, and that they are properly set ■out in tlie deed tendered by the defendant company. The bill is filed for specific performance of contract, and, it appearing that the deed tendered meets what the parties had agreed upon, the bill should be dismissed, with costs.
The decree of the court below must be reversed, and. a decree entered here in accordance with these views.
The other Justices concurred. | [
9,
19,
24,
25,
14,
51,
70,
24,
-5,
57,
32,
-3,
20,
-3,
-22,
-4,
3,
-35,
16,
25,
-13,
-14,
-3,
7,
-2,
-10,
-3,
-24,
-12,
1,
20,
31,
-20,
18,
0,
3,
28,
-8,
-21,
15,
0,
5,
35,
-12,
46,
19,
15,
-47,
6,
1,
48,
-33,
-1,
-29,
-13,
-37,
-49,
-18,
-5,
5,
-23,
-41,
-4,
-23,
8,
6,
10,
7,
20,
-39,
-26,
62,
10,
-29,
64,
16,
-19,
-27,
-36,
26,
-21,
-18,
31,
-41,
-8,
6,
-1,
-18,
8,
-2,
-12,
-15,
15,
3,
68,
0,
21,
39,
-23,
1,
-1,
9,
-46,
-2,
13,
-19,
-63,
-13,
-10,
21,
-32,
-50,
9,
-56,
-27,
4,
-19,
-27,
8,
-3,
14,
-38,
14,
3,
-46,
12,
-23,
11,
-14,
-7,
25,
-9,
-30,
14,
33,
-18,
-1,
-40,
-1,
-25,
-25,
-3,
-16,
-54,
-30,
20,
-52,
10,
-24,
2,
-28,
4,
7,
27,
14,
-32,
43,
-47,
45,
-43,
45,
2,
-12,
-60,
-58,
-7,
0,
-47,
0,
27,
26,
-17,
-12,
12,
7,
-30,
47,
20,
-28,
-14,
47,
5,
-10,
-49,
10,
-16,
-11,
0,
-46,
6,
35,
-18,
40,
-51,
-24,
44,
-14,
-9,
-19,
-23,
-34,
-67,
-2,
58,
-14,
-19,
15,
-13,
-12,
-7,
-15,
24,
-35,
-23,
-4,
13,
-4,
-31,
-12,
-1,
54,
25,
5,
26,
-10,
-40,
47,
-9,
6,
-5,
10,
-4,
-4,
6,
-39,
-5,
37,
24,
4,
14,
-37,
-24,
-28,
-45,
-8,
39,
-27,
-25,
0,
47,
-6,
-33,
-12,
7,
-9,
16,
16,
15,
-40,
-39,
1,
5,
8,
31,
12,
-29,
-14,
7,
-10,
38,
0,
1,
33,
66,
-45,
-15,
-9,
-30,
-13,
-46,
44,
-40,
23,
7,
-17,
42,
-12,
42,
-21,
-16,
-3,
-28,
7,
-6,
35,
51,
-11,
31,
37,
-11,
-37,
-34,
22,
-62,
1,
16,
3,
-17,
29,
-21,
-1,
3,
10,
-23,
-4,
12,
-23,
40,
46,
-56,
17,
19,
1,
26,
20,
-6,
50,
-3,
-17,
9,
25,
-45,
17,
-7,
12,
15,
0,
-60,
-38,
-30,
35,
33,
0,
36,
-10,
49,
-24,
-20,
34,
-9,
-16,
-32,
-42,
45,
-14,
-28,
2,
-6,
-9,
34,
30,
31,
2,
-65,
5,
-31,
-45,
-73,
35,
6,
-26,
39,
3,
26,
3,
-18,
-1,
12,
-16,
40,
34,
5,
0,
50,
70,
12,
-26,
-3,
-5,
14,
-8,
-3,
-5,
44,
17,
-14,
-4,
-35,
-48,
0,
2,
16,
7,
22,
-18,
38,
-17,
-6,
-19,
35,
23,
-39,
5,
-21,
4,
-3,
46,
13,
82,
12,
18,
33,
12,
-11,
64,
-43,
46,
-14,
-8,
26,
-28,
2,
52,
23,
-1,
-1,
8,
-38,
-62,
-4,
5,
49,
15,
48,
-22,
-17,
-46,
28,
26,
-27,
-1,
2,
-60,
-11,
-18,
51,
39,
-44,
52,
-21,
17,
13,
0,
-12,
3,
-37,
2,
-15,
28,
13,
8,
25,
27,
-13,
-6,
6,
26,
-13,
12,
8,
2,
1,
-11,
6,
2,
-66,
-30,
7,
4,
-11,
51,
-50,
9,
-19,
9,
-19,
-12,
-25,
47,
56,
12,
-4,
40,
20,
-6,
15,
-12,
16,
50,
63,
9,
-27,
22,
-36,
-36,
43,
41,
-36,
1,
32,
24,
-32,
-37,
-37,
-4,
-11,
47,
-12,
34,
-8,
-26,
-34,
-8,
-22,
-12,
21,
-13,
4,
10,
-24,
-15,
6,
47,
26,
4,
44,
5,
-16,
28,
-6,
-49,
-16,
11,
33,
-13,
41,
-7,
-7,
2,
10,
-26,
-9,
29,
-58,
24,
-10,
24,
-23,
-5,
23,
-30,
7,
57,
5,
13,
-41,
-13,
-52,
22,
44,
-38,
-68,
-13,
-38,
24,
-7,
24,
-6,
-23,
18,
-36,
10,
-19,
9,
-7,
-22,
37,
7,
37,
32,
-12,
-28,
-46,
-27,
17,
0,
-70,
-7,
1,
9,
-19,
14,
23,
30,
3,
32,
0,
-64,
44,
-5,
13,
-38,
27,
13,
13,
-17,
-7,
3,
-68,
26,
-30,
-43,
-6,
33,
25,
11,
22,
36,
-17,
-46,
3,
-23,
-61,
-28,
-15,
45,
-38,
85,
-15,
-15,
-19,
12,
50,
-42,
-8,
1,
-15,
12,
8,
19,
66,
-46,
17,
-6,
-17,
-20,
52,
-21,
38,
23,
35,
-35,
-11,
-15,
4,
-26,
17,
52,
24,
1,
9,
4,
46,
8,
40,
3,
-3,
20,
-19,
7,
14,
-26,
13,
38,
1,
1,
27,
-17,
19,
-7,
3,
32,
41,
3,
20,
7,
-7,
-13,
-22,
-9,
40,
-20,
4,
-4,
-6,
16,
11,
-3,
-20,
-22,
13,
-15,
30,
-33,
0,
10,
7,
-22,
-22,
5,
-20,
49,
-9,
-15,
-35,
10,
-14,
-15,
-22,
-42,
-32,
-17,
-41,
5,
16,
13,
28,
-8,
-38,
16,
26,
-7,
-5,
36,
2,
-21,
-73,
-16,
-26,
-9,
30,
8,
-36,
-17,
-3,
-21,
-9,
-46,
-10,
-20,
10,
21,
-43,
-32,
34,
-37,
-15,
20,
38,
-32,
0,
-4,
-27,
-17,
6,
-32,
-14,
-22,
31,
11,
-6,
-15,
10,
-17,
-46,
-21,
6,
-4,
-8,
-18,
-40,
-48,
-20,
5,
-22,
-3,
-38,
-1,
-44,
13,
-20,
4,
-20,
-48,
-48,
-34,
-20,
22,
-2,
-8,
-20,
8,
28,
0,
13,
8,
-10,
23,
-27,
-19,
38,
-19,
-25,
-6,
54,
-10,
0,
-20,
-5,
40,
15,
-21,
5,
-19,
24,
-17,
-38,
7,
-6,
-24,
-22,
8,
-32,
-1,
-17,
-14,
0,
9,
6,
15,
27,
25,
-12,
-1,
22,
-36,
-2,
5,
29,
-4,
10,
-12,
-8,
-1,
40,
18,
-8,
-55,
23,
-26,
-28,
-15,
2,
1,
-10,
3,
53,
-21,
17,
22,
-13,
-30,
-45,
7,
3,
-46,
14,
-28,
10,
20,
-7,
23,
-14,
17,
18,
-3,
4,
1,
41,
55,
40,
-48,
-27,
-2,
-49,
0,
10,
6,
-21,
3,
25,
23,
-24,
35,
8,
13,
18,
30,
-8,
38,
-11,
4,
-24,
-18,
26,
1,
16,
-39,
7,
18,
11,
-2,
39,
8,
0,
16,
12,
-8,
31,
35,
-26,
26,
54,
69,
-1,
-19,
-38,
-22,
-25,
-30,
-30,
2,
-4,
-7,
7,
1,
15,
23,
1,
-19,
6,
-17,
-35,
8,
42,
40,
31,
13,
-6,
-11,
51,
-34,
-4,
16,
44,
53,
-2,
-37,
-19,
14,
-2,
40,
35,
-6,
14,
-43,
-17,
4,
-17,
-43,
6,
-42,
-20,
0,
7,
-8,
38,
28,
42,
-41,
-36,
-10,
45,
39,
-12,
29,
26,
3,
22,
-25,
38,
0,
-31,
35
] |
Hooker, 0. J.
Plaintiff brought an action against defendant to recover damages for a personal injury, occasioned by slipping down upon the ice on a highway. It is contended by defendant's counsel that the evidence conclusively shows that the plaintiff was not upon the sidewalk when he slipped. No witness swears clearly that he slipped upon the sidewalk, but the plaintiff stated once in his testimony that he was on the sidewalk when he fell. We shall therefore treat the question as one for the jury.
The trial judge directed a verdict for defendant upon the ground that there was no evidence that the street was not in a reasonably safe condition for travel. The street had been recently paved, in the course of which the center of the highway was made higher than the existing sidewalks. It had previously been somewhat lower. The street was paved with cedar blocks, so laid as to make a gutter outside of the sidewalk. In this gutter was a catch-basin for the sewer, close to the place of the accident. This catch-basin had become filled up or stopped, so that the water did not run off, and, the weather being warm, the water accumulated at that point, and flowed upon the outer edge of the sidewalk, where it froze, and, it being covered with manure and dirt, plaintiff fell, and was injured.
It is claimed that defendant did not keep its walk in a reasonably safe condition for travel. Hnless the municipalities of the State are to be made insurers against accident, it is difficult to see how the plaintiff can be permitted to recover. Just what duty the city neglected, is not stated. By the paving improvement, the water-flowed upon the sidewalk and froze. Had it not been, made, it would have flowed upon the road, where it would, have frozen, and made it possible for an accident to happem there. No fault is found Avith the construction of the-catch-basin, and upon the Ayhole record it is plain, that from natural causes, Avithout fault upon the part of the» city authorities, some ice formed from the snow Avhich fell' in the highway. No liability attaches under such circumstances.
Some cases have been cited in support of the plaintiff’s' claim, but they relate to instances where, by neglect off the hydrants or waterspouts, Avater was permitted to drop-upon the walk, Avhere it froze. These cases are clearly distinguishable from the case before us.
The judgment must be affirmed.
The other Justices concurred. | [
-42,
56,
-11,
-17,
-22,
-21,
34,
36,
16,
73,
3,
-1,
69,
-9,
-26,
-36,
-28,
-35,
-11,
-4,
-78,
-33,
45,
-56,
-30,
12,
50,
-47,
-14,
28,
45,
4,
-25,
15,
-13,
36,
50,
47,
37,
43,
56,
10,
-12,
-47,
26,
4,
-16,
-22,
-2,
-37,
30,
30,
-25,
-67,
28,
17,
-6,
76,
-67,
-13,
-41,
1,
21,
-5,
47,
17,
-28,
-2,
-7,
5,
-94,
70,
-12,
-39,
-2,
42,
-20,
25,
-13,
20,
-46,
25,
35,
17,
45,
-8,
-52,
11,
11,
-30,
26,
4,
28,
5,
-57,
39,
-14,
-6,
12,
8,
2,
16,
26,
-15,
-16,
-15,
-48,
-84,
-44,
53,
-5,
47,
11,
11,
-17,
-43,
68,
-24,
-16,
-1,
37,
-12,
3,
1,
-80,
-20,
-8,
7,
-20,
-19,
-16,
6,
1,
51,
4,
25,
-64,
12,
47,
21,
33,
-16,
-5,
-24,
-2,
18,
27,
-5,
-39,
6,
-27,
16,
29,
-90,
19,
15,
0,
-19,
47,
10,
30,
7,
-14,
-1,
5,
0,
-13,
43,
0,
21,
70,
-26,
12,
-34,
22,
1,
19,
-3,
-24,
-1,
4,
8,
29,
17,
-19,
-51,
-73,
-9,
-19,
-7,
18,
-15,
-27,
-5,
-9,
16,
19,
10,
27,
-39,
-4,
-19,
-42,
-53,
-28,
16,
-8,
-8,
27,
36,
20,
-1,
-12,
-41,
6,
-17,
66,
-77,
13,
-31,
-2,
40,
56,
-38,
-16,
15,
-28,
-25,
-32,
-9,
14,
4,
-27,
13,
37,
36,
9,
15,
6,
7,
62,
61,
-56,
-62,
15,
2,
-61,
-23,
-49,
0,
21,
-81,
-38,
-32,
-32,
13,
42,
-1,
-62,
-12,
47,
90,
34,
10,
2,
-15,
12,
54,
-24,
-36,
0,
31,
-32,
23,
-46,
-52,
-11,
-12,
7,
47,
3,
-7,
5,
-19,
-30,
15,
-26,
13,
36,
-3,
47,
-28,
-14,
2,
-14,
36,
59,
5,
-42,
-6,
27,
-12,
35,
89,
-5,
10,
12,
41,
3,
21,
22,
-11,
-22,
43,
19,
85,
22,
-8,
45,
-6,
19,
-5,
11,
-38,
-48,
-36,
16,
-23,
15,
33,
17,
23,
-31,
45,
46,
-40,
33,
4,
-44,
43,
-18,
30,
19,
-60,
-23,
24,
-11,
11,
16,
15,
-37,
6,
30,
-41,
27,
-1,
-5,
-24,
-32,
-6,
34,
-41,
-1,
-11,
24,
-21,
22,
-7,
-23,
68,
-37,
-27,
-29,
13,
-34,
-64,
42,
39,
-24,
1,
31,
-37,
24,
-4,
-21,
-25,
-42,
-45,
-59,
-4,
15,
21,
45,
2,
-9,
10,
-24,
-4,
-12,
-18,
0,
49,
57,
11,
-35,
-40,
50,
-39,
-30,
11,
-56,
-19,
35,
-6,
-31,
34,
46,
24,
-46,
8,
7,
26,
26,
-19,
10,
-2,
19,
6,
-17,
-33,
19,
-12,
0,
7,
4,
-24,
27,
-62,
-25,
-47,
-52,
-22,
22,
-37,
-20,
31,
19,
18,
-8,
-23,
38,
0,
3,
18,
-15,
12,
27,
-35,
57,
-53,
-5,
10,
-13,
-27,
41,
-50,
-81,
0,
-19,
6,
30,
1,
18,
33,
21,
39,
-1,
15,
-25,
-17,
-35,
5,
30,
-1,
-12,
-38,
82,
71,
0,
3,
14,
0,
-29,
-27,
-14,
9,
-1,
28,
-21,
-9,
-22,
13,
-89,
-11,
21,
-30,
25,
24,
-1,
29,
-30,
4,
-1,
-11,
35,
28,
-1,
-19,
-19,
-32,
-21,
-14,
-71,
-26,
-29,
-9,
-12,
-20,
-19,
-24,
52,
-26,
-44,
-9,
13,
6,
-2,
30,
21,
-15,
-17,
63,
4,
-34,
28,
-30,
12,
58,
25,
18,
-12,
9,
12,
-8,
-12,
-56,
-12,
-46,
10,
1,
-25,
36,
0,
12,
11,
46,
36,
-21,
52,
-31,
-43,
-10,
50,
-38,
-54,
-10,
-48,
21,
-22,
-13,
-27,
11,
-80,
-21,
-31,
54,
7,
-3,
22,
5,
-7,
10,
-3,
-16,
-2,
-4,
12,
-14,
-20,
-11,
24,
-9,
-36,
8,
51,
-1,
19,
-45,
26,
2,
53,
10,
0,
6,
-26,
-14,
26,
-7,
-6,
41,
-27,
-22,
34,
33,
-18,
10,
2,
46,
-62,
-41,
-19,
37,
-13,
15,
-26,
-41,
2,
17,
-24,
23,
0,
-18,
-10,
-35,
-3,
-24,
-24,
33,
-47,
-25,
-8,
41,
-2,
-9,
26,
-5,
-25,
6,
-34,
-5,
-24,
-11,
2,
0,
-27,
35,
-3,
-12,
-34,
-28,
45,
-26,
3,
14,
12,
-35,
-20,
44,
-9,
39,
1,
-34,
67,
-24,
0,
5,
1,
47,
101,
-59,
-22,
35,
38,
-3,
-5,
45,
48,
-26,
15,
1,
16,
-12,
7,
17,
-37,
-21,
15,
-18,
-12,
34,
24,
81,
-11,
27,
23,
46,
8,
13,
-34,
19,
-4,
-53,
13,
-40,
0,
-21,
-1,
9,
-39,
29,
16,
32,
8,
26,
-11,
18,
21,
-17,
41,
-79,
30,
13,
7,
-19,
-59,
-11,
10,
6,
6,
-21,
-21,
-17,
26,
-10,
-28,
-37,
7,
-25,
-50,
-4,
6,
-19,
41,
-3,
-35,
6,
51,
-23,
-27,
-14,
-32,
4,
28,
-45,
-41,
66,
-22,
-49,
19,
-23,
-54,
5,
-30,
13,
-41,
-4,
8,
-41,
9,
26,
-5,
44,
-24,
20,
-17,
-8,
-11,
-3,
-11,
-2,
-12,
-18,
-3,
39,
17,
-30,
19,
42,
34,
17,
8,
-38,
15,
-16,
6,
7,
21,
39,
18,
-19,
7,
-18,
-32,
-29,
7,
8,
-6,
-44,
35,
-45,
32,
-45,
-4,
42,
-14,
24,
19,
25,
7,
-47,
-18,
38,
-37,
41,
0,
-13,
-20,
-19,
-34,
32,
11,
17,
32,
7,
17,
15,
-43,
0,
11,
3,
-15,
-32,
-40,
-43,
49,
3,
-5,
11,
-18,
37,
49,
79,
2,
-7,
10,
46,
-17,
-59,
18,
-30,
25,
-3,
14,
52,
-55,
11,
-18,
-21,
16,
56,
12,
52,
28,
-26,
-51,
-21,
-71,
60,
34,
-24,
-25,
24,
1,
-5,
-62,
-34,
-11,
-11,
-13,
5,
28,
-30,
16,
-6,
47,
4,
-30,
33,
-6,
38,
3,
4,
21,
5,
-66,
21,
-37,
15,
-8,
43,
-54,
-13,
9,
27,
19,
-5,
-2,
-65,
-47,
-13,
68,
-7,
8,
21,
-41,
-74,
-11,
3,
-17,
15,
42,
-18,
-29,
23,
-4,
-50,
-27,
60,
30,
-21,
1,
-25,
-6,
-2,
47,
56,
57,
-24,
-38,
7,
-9,
0,
9,
-38,
-7,
-19,
2,
-15,
-65,
-10,
-8,
11,
20,
-3,
-38,
1,
1,
-31,
-43,
24,
-42,
30,
77,
31,
-23,
-33,
-30,
16,
-24,
-10,
2,
24,
-7,
19,
26,
20,
86,
32,
27,
-37,
-49,
-11,
29,
5,
-25,
67,
-32,
22,
0,
-9,
18,
3,
39,
42
] |
Grant, ■ J.
Complainant, as administrator, filed this bill in equity to foreclose a vendor’s lien upon certain real estate.
The bill alleges that Mary Witter, on March 19, 1866, •was possessed in fee-simple of the real estate described; that defendant was her son-in-law, having married her daughter, by whom he had several children then living; that Mrs. Witter bargained and sold on that date to the defendant, for the consideration of at least $1,700, said land; that the deed therefor was duly executed and recorded; that to secure the payment of part of the purchase price defendant executed and delivered to Mrs. Witter two promissory notes for $300 each, dated-April 16, 1866, with interest; that prior to the execution of said deed Mrs. Witter had long lived upon said land, and had had the entire control thereof; that about the time of such conveyance said defendant moved into the house where Mrs. Witter lived, and continued to live with her there until her death; that Mrs. Witter died intestate October 11, 1884; that nothing has been paid upon said notes; that said defendant, on March 19, 1869, conveyed to one Swem 20 acres of said land, the title and possession to the rest of the land being in him. The bill claims a lien for said purchase money, and prays for a sale of said real estate.
The answer denies that Mrs. Witter, at the time of the conveyance, had a good and indefeasible title in fee-simple to the land; admits the conveyance to defendant; avers ■that her husband, John Witter, before he died, made a request to defendant that his wife should have a home with him while she lived; that shortly after her husband’s death she removed to his house, and lived there till about March 19, 1866; that she then claimed an interest in the land described in the bill, desired him to buy it, and move into the house situated thereon, and agreed with him that if he would move there she would deed him her interest in the land,’ mainly, if not entirely, in consideration of her support by him while she lived; that as, however, it might occur that differences might arise, and she and he and his family could not live together agreeably, and she might desire to go elsewhere to live and be supported, they agreed that, if such contingency did arise, she should be secured by the two notes, but that otherwise, if she lived with him, and had her support while she lived, that was to be pay in full for all the interest conveyed by her to him, and for that reason said notes were made; that, aside from this, she was paid for her interest in said land when the deed was executed; that she lived with him from that time until her death, and was supported by him; that he built a new house on the land, in which she selected a room, which she thereafter occupied; that his wife died in 1877; that after her death he hired help to keep house for him, in order that he might more completely and satisfactorily keep and perform his agreement with her; that the heirs of her first husband claimed interests in the land; that her son William Huston, o.ne of such heirs, claimed an interest, and defendant paid him #1,000, for which he received a deed bearing date the same day as the one from Mrs. Witter.
Decree was entered in the court below dismissing the bill.
At the time of the conveyance by Mrs. Witter to defendant she had three children living, — Eichard B. Huston, the complainant, William Huston, and the wife of the defendant. It was natural that she should choose to live with her daughter. She was possessed of some property, and loaned considerable in small sums, especially to her two sons and to Mr. Waldron, for which she took notes. Among her effects at the time of her death were 13 promissory notes. She had been married three times, and had had considerable experience in business affairs. While she may have claimed the entire title to the land conveyed,— about 90 acres, — she had not title of record to the entire land. Probably the defendant, now has title by adverse possession. But it is immaterial whether she had a good title. No question is raised upon the validity of the deed, or her competency to make it, or that she was in any manner deceived. It is the fair presumption that she desired to secure a home with her daughter and her family during the remainder of her life. The evidence shows that her confidence in the defendant was not misplaced. A home was furnished her, and she was kindly and comfortably taken care of until her death, at the age of 81 years> Complainant claims that she did work enough in the defendant’s family to compensate him fully for her support. It is undoubtedly true that she did more or less work in accordance with her age and strength. It would be indeed strange if she did not. i But this has no tendency to show that the arrangement was not made. During .her lifetime she asked for no payment either of principal or interest. She undoubtedly knew when her notes would become barred by the statute of limitations. Her conduct is very strong evidence that she was living there under some agreement. We think the evidence by a fair preponderance shows that these notes were given for the purpose stated in the- answer.
This bill is not filed in the interest of creditors, but in the interest of complainant and his brother, to whom she had made advances. She left a will, which was drawn by her brother, and left with him. After her death it was handed to William Huston, and was speedily lost while in his possession. Neither complainant nor his brother ■contributed anything towards the support of their mother. They have no equities, and, if they are entitled to a •decree, it must be because they haye clearly established the vendor’s lien. But in this we think they have failed. 'The evidence shows no intention on her part of retaining a lien upon the land. At the time of the purchase defendant paid Mrs. Witter $1,000 upon the purchase. This amount, and the care of Mrs. Witter, constitute a full ■consideration for the deed.
Decree affirmed, with costs.
Hooker, C. J., McGrath and Long, JJ., concurred. Montgomery, J., did not sit. | [
15,
56,
-32,
16,
-12,
5,
29,
60,
28,
7,
0,
-20,
33,
6,
33,
-11,
37,
-1,
-20,
7,
-14,
3,
-51,
15,
24,
-11,
68,
-29,
-13,
37,
29,
4,
-38,
49,
25,
5,
43,
-13,
22,
2,
-7,
27,
26,
50,
30,
12,
-14,
-33,
22,
10,
-22,
-61,
-6,
-45,
0,
-20,
-44,
-37,
-26,
0,
-3,
-66,
-30,
-30,
-36,
41,
49,
21,
-12,
-61,
48,
-22,
-5,
-28,
48,
-31,
8,
9,
-39,
14,
-22,
-27,
14,
15,
1,
-18,
-5,
-18,
-25,
-1,
-25,
20,
0,
11,
-6,
21,
50,
44,
7,
-1,
-30,
-21,
-14,
54,
37,
10,
-14,
-3,
-40,
-2,
-6,
-1,
36,
22,
-39,
-8,
-28,
-27,
-15,
-2,
12,
-63,
18,
-44,
-13,
13,
-34,
-21,
-15,
-9,
32,
-28,
-62,
-14,
-4,
-2,
-36,
-21,
-20,
-43,
-10,
-38,
-39,
-63,
-21,
-15,
-33,
-11,
-19,
-25,
-18,
73,
14,
25,
28,
-59,
33,
-27,
6,
-36,
31,
1,
42,
-51,
-40,
-31,
7,
-18,
0,
29,
17,
8,
-54,
-2,
21,
-11,
42,
-19,
-36,
-10,
3,
12,
-26,
31,
27,
-41,
4,
2,
0,
-27,
-18,
-45,
-17,
11,
-1,
36,
-11,
-45,
9,
-18,
-54,
-33,
12,
18,
58,
-35,
-37,
4,
-1,
-24,
-7,
28,
-26,
-19,
-53,
8,
21,
-21,
1,
32,
20,
16,
7,
32,
-62,
-49,
29,
-12,
61,
-23,
-14,
-20,
-35,
-7,
-4,
21,
13,
0,
-2,
31,
-16,
26,
-41,
-42,
-6,
36,
9,
-18,
-36,
4,
-41,
0,
-49,
60,
19,
14,
6,
5,
-26,
-43,
-13,
-9,
22,
-3,
67,
-63,
11,
11,
1,
-8,
27,
-2,
1,
29,
0,
-7,
-36,
-1,
-31,
-28,
40,
-27,
0,
20,
-7,
9,
-13,
52,
-2,
-26,
25,
-35,
-16,
-1,
26,
30,
-40,
-2,
6,
22,
-24,
-73,
35,
-6,
1,
6,
31,
13,
-5,
5,
12,
-5,
28,
-20,
31,
37,
-18,
-42,
-6,
34,
65,
-40,
3,
11,
0,
-12,
9,
-7,
-56,
73,
21,
9,
5,
-23,
10,
-5,
26,
-23,
-59,
-29,
-2,
20,
7,
29,
35,
8,
-16,
-21,
-28,
-3,
-35,
11,
-48,
26,
-2,
-24,
0,
-3,
4,
40,
19,
32,
9,
-45,
7,
15,
-22,
-63,
15,
-4,
8,
25,
-19,
2,
7,
-1,
-17,
36,
-6,
-2,
21,
9,
26,
70,
34,
35,
-7,
-9,
-2,
22,
-10,
4,
4,
3,
13,
-73,
-22,
-8,
-41,
-3,
-12,
18,
0,
11,
-70,
20,
-4,
39,
0,
12,
35,
-45,
2,
-17,
4,
34,
31,
-42,
63,
47,
9,
-33,
24,
-14,
-19,
-26,
25,
17,
49,
4,
-40,
13,
84,
2,
21,
-4,
-32,
14,
-48,
40,
25,
49,
10,
60,
7,
6,
-47,
-38,
10,
6,
-12,
6,
-8,
15,
7,
29,
76,
-1,
9,
-11,
39,
-11,
5,
16,
4,
-6,
22,
2,
-12,
1,
14,
-15,
1,
-38,
32,
25,
-15,
2,
27,
1,
-6,
16,
59,
-14,
-12,
4,
-41,
-28,
7,
-54,
21,
-30,
31,
5,
-2,
-11,
-34,
-7,
-18,
15,
-2,
33,
36,
47,
-10,
-25,
-8,
17,
21,
47,
-24,
-31,
-21,
-5,
-57,
67,
43,
-41,
26,
-15,
34,
-4,
-33,
-15,
32,
-19,
69,
38,
13,
12,
-36,
-11,
-10,
-57,
-32,
27,
-24,
22,
34,
-18,
-46,
20,
-19,
57,
-21,
56,
33,
-28,
-18,
15,
-15,
-20,
3,
54,
-47,
38,
-12,
-29,
-13,
6,
-42,
-47,
-21,
-64,
28,
-21,
34,
-53,
-25,
22,
-37,
-22,
12,
4,
-27,
-62,
-45,
11,
26,
26,
-39,
-20,
58,
-48,
16,
19,
-11,
66,
-19,
8,
-11,
33,
15,
-3,
4,
-41,
21,
-30,
-12,
-14,
-48,
-23,
-53,
-15,
-25,
-27,
11,
11,
26,
-37,
2,
6,
9,
19,
21,
33,
6,
-41,
-5,
14,
28,
45,
-8,
-27,
36,
-12,
3,
18,
25,
36,
-23,
-43,
23,
7,
-42,
32,
-10,
7,
9,
-50,
-43,
14,
-67,
15,
-22,
75,
7,
-16,
-2,
-20,
-31,
-6,
6,
-19,
8,
-22,
59,
-31,
-4,
2,
40,
-40,
-24,
53,
22,
-14,
65,
-16,
-18,
-1,
-22,
-28,
32,
-9,
-2,
3,
-18,
21,
31,
-16,
9,
-29,
52,
13,
-18,
21,
50,
-18,
-31,
30,
37,
-77,
-16,
59,
18,
24,
19,
16,
44,
9,
37,
-29,
-29,
29,
-41,
9,
2,
-34,
-59,
-42,
34,
8,
16,
-28,
0,
7,
46,
-26,
16,
-44,
-35,
-13,
19,
-44,
7,
-35,
29,
-5,
-14,
9,
20,
9,
-64,
-8,
-5,
29,
-1,
10,
44,
-62,
-46,
23,
-20,
12,
10,
-43,
-1,
0,
20,
8,
38,
-12,
11,
14,
5,
25,
-47,
0,
-11,
-19,
-7,
87,
-18,
0,
11,
-3,
-37,
-76,
24,
0,
-55,
17,
-24,
1,
4,
-20,
31,
0,
56,
-44,
34,
-63,
-26,
-20,
69,
-25,
36,
-12,
79,
6,
-5,
40,
-10,
-1,
-61,
22,
-34,
-38,
5,
-36,
-23,
3,
-6,
33,
44,
26,
-13,
2,
-35,
-5,
7,
-23,
-1,
-21,
-59,
-3,
19,
24,
-4,
-14,
11,
-17,
24,
-3,
-19,
0,
2,
26,
-75,
22,
27,
-45,
-44,
-11,
23,
-2,
3,
4,
9,
-24,
2,
-7,
13,
40,
26,
-20,
6,
-26,
-33,
19,
-6,
-31,
25,
-3,
-53,
-11,
8,
38,
0,
-2,
39,
6,
22,
-37,
-5,
-6,
41,
51,
21,
-2,
-23,
1,
-17,
25,
43,
36,
59,
-26,
20,
10,
-13,
17,
-67,
57,
-11,
68,
28,
2,
-11,
-4,
0,
48,
-8,
13,
-31,
-18,
12,
-49,
1,
-28,
-48,
3,
-42,
15,
-5,
-37,
2,
15,
8,
-16,
6,
-51,
-45,
-39,
-45,
10,
6,
-18,
-16,
5,
14,
-7,
-21,
5,
18,
-8,
28,
-1,
-41,
24,
1,
23,
-26,
33,
3,
-20,
31,
-31,
0,
0,
2,
20,
8,
23,
-17,
41,
74,
-32,
11,
23,
-42,
19,
81,
25,
19,
6,
-26,
-13,
-48,
26,
-7,
5,
40,
-42,
42,
20,
57,
53,
12,
-13,
-4,
-32,
-35,
-8,
1,
4,
45,
-21,
14,
-13,
20,
-16,
-34,
33,
17,
45,
44,
1,
-66,
11,
39,
-26,
12,
35,
-4,
-6,
-57,
39,
7,
4,
3,
-34,
2,
11,
4,
-29,
41,
-18,
24,
-12,
-49,
-15,
47,
68,
-9,
30,
-36,
20,
3,
-3,
56,
-3,
-1,
39
] |
Montgomery, J.
The plaintiff, as drain commissioner of the county of Lenawee, sues the defendants, who filed with him a petition reciting that a certain drain existed in the townships of Eollin and Hudson, in Lenawee county, known as the “ Posey Lake Outlet Drain,” and stating that—
“ Said drain needs deepening and straightening from the point where said outlet crosses the south line of the N. £ of the N W. £ of section 5, township 7 S., range 1 B.r Michigan, owned by Artemus Cooper, and running thence north-east along the channel of said drain into the lower end of Posey lake, as follows: To be straightened as much as the lay of the land along the said outlet will permit, from the south line of said N £ of N 'W. £ of section 5 to the highway between lands owned by A. Gowan, being part of N. E. £ of -N. E. £ of said section 5, and land owned by Artemus Cooper, being west part of N. W. £ of N. E. £ section 5; thence along the present channel of said Posey Lake outlet to the lower end of Posey Lake.”'
The petition concludes as follows:
“And your petitioners do hereby make application and respectfully request that said Posey Lake drain be deepened four feet, and straightened in the best possible way, in accordance with the provisions of Act No. 227 of the Public Acts of 1885, as amended.”
The declaration avers—
That plaintiff proceeded to examine the route, and determined that it was necessary and conducive to the public health and welfare that said drain should be deepened and straightened in accordance with the application; that, for the purpose of determining the practicability of said proposed deepening and straightening of said drain, he caused a survey and measurement of the line of the proposed drain to be made by a competent surveyor, and that upon such survey he found that the proposed deepening and straightening was practicable, and he made his order of determination in writing in accordance with his finding, and did establish the commencement, route, and terminus of said drain; that afterwards he applied to the ■owners of land through which the drain passes for releases of right of way and damages, which were refused; that he then made application to the probate court for the county for the appointment of special commissioners as provided by law; that one of the parties interested demanded a jury of 12 freeholders, and such jury was impaneled, and.disagreed; that a second jury was impaneled, which determined that the deepening and straightening of the drain was not necessary or conducive to the public health, welfare, and convenience, which finding of the jury was confirmed by the probate court, and that thereupon the commissioner dismissed the proceedings at the cost of the petitioners; "that demand was made upon petitioners for payment of the costs incurred, which was refused, and this action brought.
Defendants demurred generally to the declaration, and insisted that they were not liable for the reason that the proceedings were without jurisdiction.
The statute (section 1, chap. 3, Act' No. 227, Laws of 1885) provides that before the commissioner shall take action towards establishing a drain there shall be filed with him an application, signed by not less than five freeholders of the township; and further provides that such petitioners shall be jointly and severally liable for all costs and expenses, in case the commissioner, upon examination, ■or upon examination and survey, shall determine that the same is unnecessary or impracticable, or in case the proceedings shall be dismissed for other cause; and provides, further, that, if the persons signing such application shall refuse to pay such costs and expenses, the commissioner shall bring suit in a court of competent jurisdiction, and collect such costs and expenses, with costs of suit.
It is said that no determination has been made in this case that the drain is unnecessary, and hence the applicants are not liable for costs that accrued down to and including the survey, unless the proceedings were dismissed afterwards for some legal cause; that there is and has been no cause for such - dismissal, because all the proceedings' subsequent to the survey were absolutely without jurisdiction and void. It is contended that the line of the proposed drain was not sufficiently described, and that, therefore, it was impossible for the jury to find whether it ivas necessary to the public health and welfare that the drain should be constructed as described in the determination of the commissioner; for, it is said, the very ground upon which the jury may have proceeded is that the line was not sufficiently described.
"We cannot accept this view of the liability of the petitioners. They are actors in the proceedings, and the statute contemplates that they are the parties in the suit. It appears that the commissioner has in the proceedings followed the description contained in the petition. Indeed, he would be bound to do so if he proceeded at all. Having done so, and the jury having determined that there was no public necessity for the improvement, it is manifestly unjust that these petitioners should now attempt to shield themselves behind the alleged defects in their OAvn petition, and assert a want of jurisdiction. We think they are within the spirit and letter of the statute, and are responsible for the costs incurred.
Judgment will be affirmed, with costs.
The other Justices concurred. | [
0,
41,
49,
-13,
-25,
42,
-3,
-2,
-3,
73,
-2,
-80,
19,
12,
-6,
-21,
-1,
-70,
-18,
24,
-6,
-29,
71,
8,
9,
28,
11,
-17,
-29,
-4,
-42,
53,
-27,
25,
9,
-62,
21,
-46,
-9,
-17,
-54,
4,
9,
2,
9,
29,
52,
36,
34,
4,
-27,
-7,
-7,
1,
-66,
-56,
18,
-22,
3,
24,
-44,
8,
16,
36,
-9,
14,
-14,
19,
34,
-9,
-12,
42,
-2,
2,
72,
24,
23,
-33,
-22,
-1,
-49,
59,
24,
-16,
-12,
-52,
-78,
29,
45,
10,
4,
25,
-43,
15,
66,
0,
1,
-23,
-26,
-34,
-6,
63,
55,
0,
-16,
-28,
-21,
-18,
6,
2,
46,
-26,
15,
-51,
-69,
-58,
7,
-43,
38,
-14,
-25,
-16,
16,
11,
-49,
29,
-20,
-19,
0,
24,
14,
-3,
18,
-27,
7,
48,
-15,
3,
22,
50,
5,
21,
32,
-2,
-20,
47,
-3,
-2,
36,
-5,
-13,
-6,
31,
0,
29,
0,
22,
-32,
29,
34,
19,
-12,
28,
-21,
-66,
-6,
-35,
-21,
33,
14,
4,
8,
0,
-26,
-12,
-10,
-21,
49,
14,
35,
56,
-32,
46,
-20,
-57,
7,
20,
-33,
-19,
7,
22,
-42,
17,
-39,
-30,
82,
-2,
-17,
-32,
-6,
33,
-51,
-1,
-28,
-31,
-35,
-22,
-8,
0,
6,
15,
18,
0,
36,
-10,
31,
57,
-18,
20,
20,
61,
20,
34,
16,
-19,
29,
12,
2,
-7,
-36,
40,
-53,
24,
24,
-9,
41,
-4,
29,
-19,
-12,
-30,
-9,
-43,
-2,
33,
-25,
-41,
-14,
-44,
52,
-66,
-54,
3,
-39,
-6,
36,
35,
4,
19,
-3,
-13,
-7,
21,
9,
-22,
20,
-20,
-14,
-26,
-45,
-35,
12,
27,
-13,
-16,
-3,
-30,
44,
-24,
9,
9,
-27,
-37,
-38,
-13,
25,
-87,
13,
-41,
85,
-52,
0,
-32,
-42,
-6,
48,
45,
-105,
76,
0,
18,
0,
13,
-54,
13,
14,
-11,
14,
39,
-5,
25,
15,
-35,
35,
6,
17,
41,
-1,
36,
-13,
30,
43,
-19,
-1,
-21,
22,
6,
50,
-5,
43,
4,
4,
14,
-2,
30,
7,
-1,
-15,
-57,
29,
59,
9,
32,
46,
21,
-13,
-5,
-12,
-27,
-13,
-32,
6,
8,
54,
10,
-61,
40,
11,
-14,
13,
-1,
1,
-32,
-52,
8,
-69,
-25,
-30,
10,
33,
-35,
57,
-23,
51,
29,
-6,
23,
-38,
-35,
7,
-36,
0,
16,
11,
30,
4,
-15,
22,
-24,
20,
16,
-26,
7,
25,
0,
-12,
23,
13,
-6,
-29,
5,
28,
14,
73,
6,
48,
-9,
-65,
72,
3,
39,
-25,
7,
0,
-55,
0,
32,
35,
16,
-8,
-17,
0,
-4,
-72,
60,
-20,
86,
-1,
-1,
-33,
3,
41,
46,
-11,
37,
19,
-36,
-5,
3,
-5,
-18,
14,
38,
-24,
-8,
-38,
14,
49,
-4,
-26,
7,
39,
-43,
-35,
-21,
46,
-16,
26,
73,
7,
-66,
11,
-30,
-68,
-54,
-16,
-41,
20,
-2,
-6,
3,
34,
-27,
-21,
1,
-5,
74,
4,
50,
6,
36,
-3,
-45,
-13,
-47,
-28,
20,
25,
26,
-11,
33,
-26,
-47,
-17,
48,
-44,
-19,
7,
22,
43,
0,
27,
-38,
-25,
-25,
20,
-50,
77,
-21,
49,
-10,
-6,
-5,
-21,
-53,
34,
12,
-37,
6,
-15,
12,
-31,
0,
-9,
-3,
30,
-15,
12,
17,
22,
31,
-33,
-26,
-11,
-38,
-23,
11,
-5,
-21,
-25,
46,
20,
59,
18,
-6,
28,
-33,
-34,
31,
-13,
-3,
-30,
-12,
-20,
-11,
30,
-50,
-52,
-11,
-17,
-20,
-62,
-2,
-15,
36,
21,
50,
-20,
45,
-40,
-7,
16,
87,
-25,
33,
54,
-54,
-34,
-4,
55,
-10,
-33,
-21,
-42,
-15,
14,
-18,
-17,
-10,
7,
-13,
-33,
-36,
26,
61,
8,
18,
20,
5,
-29,
32,
17,
-7,
-11,
39,
11,
-52,
-11,
9,
-4,
-23,
-47,
31,
53,
-11,
14,
-17,
-10,
-9,
-8,
25,
10,
25,
40,
-18,
0,
-1,
33,
-81,
33,
-39,
30,
4,
-2,
33,
8,
35,
28,
-2,
30,
-43,
-37,
-66,
-21,
-8,
-4,
-20,
10,
-17,
-5,
-29,
18,
35,
18,
2,
-13,
-19,
23,
29,
-10,
20,
7,
8,
0,
-32,
22,
12,
40,
2,
-23,
13,
8,
-33,
5,
-13,
-65,
39,
45,
8,
76,
22,
-17,
-10,
-3,
70,
24,
67,
54,
-1,
-4,
14,
13,
5,
-31,
-2,
-44,
9,
31,
-9,
-9,
25,
0,
31,
27,
-30,
-2,
-23,
-30,
-45,
-14,
-16,
14,
30,
29,
-11,
28,
-54,
26,
15,
12,
-21,
-62,
-68,
-7,
12,
0,
-32,
-31,
-46,
-35,
-30,
57,
5,
-25,
42,
-3,
-3,
8,
-59,
-38,
66,
-7,
-47,
8,
39,
-34,
-14,
9,
-55,
-3,
-12,
7,
-18,
23,
35,
-46,
14,
-6,
-50,
3,
6,
0,
12,
15,
1,
-25,
8,
-10,
-24,
28,
-41,
45,
-27,
-75,
16,
-29,
-61,
-34,
42,
-26,
9,
-51,
-13,
-48,
-36,
-5,
31,
-34,
12,
-37,
-71,
-63,
-22,
-29,
-14,
10,
71,
23,
-7,
0,
-5,
41,
18,
57,
-1,
14,
-5,
-6,
-32,
37,
0,
71,
6,
-14,
-16,
-2,
-30,
74,
-10,
-14,
25,
-3,
8,
-2,
27,
6,
46,
-13,
-56,
-3,
44,
28,
-15,
33,
9,
4,
40,
-58,
-4,
-12,
6,
-60,
-41,
-62,
-63,
30,
1,
-1,
-7,
23,
-8,
33,
-57,
-28,
53,
1,
11,
-7,
-10,
18,
54,
-5,
-19,
20,
-38,
31,
32,
-49,
-76,
2,
-3,
14,
-61,
-23,
34,
5,
-41,
-20,
20,
-10,
-40,
-50,
37,
-43,
8,
-49,
35,
21,
11,
56,
0,
-6,
-7,
25,
-42,
6,
-9,
12,
-21,
-5,
15,
10,
5,
5,
-32,
-54,
-1,
30,
24,
36,
-29,
-19,
-48,
-1,
-80,
-71,
1,
-6,
-11,
43,
2,
0,
13,
12,
-15,
-6,
-6,
65,
-14,
21,
-19,
-48,
-5,
-34,
-5,
26,
51,
-49,
-13,
-38,
12,
52,
-17,
-13,
4,
10,
31,
9,
-2,
45,
-7,
-41,
18,
32,
20,
13,
-59,
-7,
-7,
8,
29,
19,
28,
21,
-7,
25,
6,
4,
2,
59,
-65,
-24,
-48,
-50,
18,
-13,
25,
-14,
29,
-82,
-6,
-53,
-20,
50,
34,
42,
-13,
-39,
-25,
-25,
-9,
2,
43,
-46,
1,
-21,
-33,
2,
-53,
-4,
40,
62,
-24,
58,
18,
19,
53,
-6,
44,
-12,
-11,
8,
36,
-1,
-26,
48,
6,
-4,
-17,
9,
40,
-67,
-64,
52
] |
Hooker, C. J.
The defendant took a policy of insurance in the plaintiff company on January 5, 1884, and remained a member until November 16, 1889, when he surrendered it for cancellation. ' The entry of cancellation was made in the company’s books upon the same day. At this time, defendant had paid his proportion of all assessments previously made, which covered no items after December 31, 1888. On January 15, 1890, an assessment was made to cover losses and expenses of 1889, which defendant paid. Subsequently, another assessment was made, as follows: For a deficiency in 1887, arising from error, mistake, or miscalculation in the amount assessed, and the amount realized from such assessment and from premium receipts, $3,748.95; for the year 1889, to cover disputed losses in litigation at the time of the cancellation, and to cover deficiency in collection of assessments for 1889, $5,730.63. His assessment amounted to $15.82. Hpon his refusal to pay, this action was commenced, and, judgment being rendered against him, he appealed to this Court.
The plaintiff company is a mutual fire insurance com. pany, organized under the statutes of this State (How. Stat. ■chap. 132). Section 4251 provides that the charter (i. e., the articles of association) “ may prescribe the liabilities of the members to be assessed towards defraying the losses and ■expenses of the company, and the mode and manner of collecting such assessments.” By the terms of plaintiff’s charter, “ any member may withdraw at any time by surrendering his policy, and paying to the secretary his proportion of all assessments to which this company is liable at the time of his withdrawal.”
This defendant returned his policy November 16, 1889, asking to withdraw. His assessments were paid. He subsequently paid the assessment made to cover the losses which had occurred in 1889, before November 16. By the terms of the contract, defendant had the right to terminate his membership ifby surrendering his policy, and paying to the secretary his proportion of all assessments to which the company was liable at the time of his withdrawal." At the time of his surrender he had paid all assessments that had been made against him, but the assessment for losses and expenses for the year 1889 had not been made. The company was liable to assessment for these items, and, for-aught that appears, such assessment might have been made at any time. It cannot be that defendant’s liability for his proportion of the 11 months’ losses could be avoided by a surrender of his policy, or its reception by the secretary. Yet such would be the effect of holding that a withdrawal could be effected upon a surrender of the policy, and payment of the assessments previously made. Defendant himself .did not take that view, and promptly paid his proportion of 1889 losses to the date of his withdrawal, as we think he was legally bound to do.
If right in this, we are unable to see why he was not equally bound to pay his proportion of losses incurred in previous years, but not previously assessed, if there were any such, for which the company was liable to assessment at the time of his withdrawal. We are unable to say that there were any such included in the deficiency for the year 1887, as it does not appear that this deficiency was not the result of a failure to collect.
The deficiency for 1889 arose from three items:
1. The Van Alstine loss, in process of litigation at the time of the surrender, but subsequently compromised.
2. The Towle loss, in litigation, and which went to judgment against the company after the surrender.
3. A failure to collect the assessment made in January. 1890.
The identical language used in this charter was used in the charter of the Union Mutual Fire Insurance Company, which came before this Court in the case of Union Mut. Fire Ins. Co. v. Spaulding, 61 Mich. 80. In construing it the Court held that the defendant was relieved from liability upon payment of existing losses (i. e., obligations) j and it was held in that case that “ losses that arose subsequently from failures to collect, or from any other cause, were not existing losses/'’ The principle deducible is that a member cannot, by a surrender, escape liability for such obligations as might lawfully be made the subject of assessment at the time of his surrender. We think we can see how any other rule would be oppressive upon other members, and might subject the more careless or ignorant members to loss, through the withdrawal of the shrewder ones, who, by a show of litigation, might postpone assessments. The Van Alstine and Towle losses being assessable, at the option of the officers, at the time of the surrender, defendant was liable to assessment for them when the assessment was made, under the principle above mentioned.
This view does not, in our opinion, conflict with the case of Tolford v. Church, 66 Mich. 440, where the trial court expressly found, as a matter of fact, that the defendant had paid more than his proportionate share of the liabilities of the company at the time of the surrender of his policy for cancellation, although a deficiency arose later through failure to collect.
The case of Hyde v. Lynde, 4 N. Y. 387, seems to hay© been based upon a statute giving to the officers a discretion in the cancellation of policies, and the amount to be paid by the policy-holder to be released. The decision was not unanimous.
As it appears that the judgment includes items upon which the defendant was not subject to assessment, it must be reversed, and a new trial ordered.
The other Justices concurred. | [
24,
-55,
25,
4,
11,
16,
6,
-64,
23,
-8,
29,
13,
22,
26,
24,
4,
-15,
2,
-15,
46,
-14,
-50,
-7,
-12,
-14,
-26,
53,
-5,
28,
-12,
-1,
5,
-40,
-29,
0,
25,
-21,
-11,
-53,
-13,
-7,
37,
15,
-60,
19,
-36,
-23,
-45,
9,
-9,
43,
-14,
-8,
-42,
-38,
22,
45,
15,
-42,
24,
-60,
-19,
28,
-1,
-13,
30,
-35,
15,
28,
9,
9,
-26,
-8,
-16,
4,
-23,
3,
7,
-33,
0,
-22,
-22,
-7,
-18,
11,
29,
13,
23,
38,
20,
-22,
-9,
-7,
-39,
-37,
34,
-7,
11,
-17,
69,
62,
-29,
-32,
-4,
-5,
25,
16,
-44,
-64,
-15,
-39,
8,
31,
-18,
39,
-4,
-61,
5,
-41,
-18,
33,
20,
6,
-45,
9,
39,
8,
-19,
-19,
14,
-39,
-30,
7,
-12,
28,
-25,
-9,
-21,
-15,
-11,
-4,
31,
-51,
4,
4,
17,
15,
-16,
-49,
-4,
0,
10,
21,
-14,
12,
-14,
-29,
1,
49,
-79,
-30,
-54,
5,
0,
-29,
7,
-16,
-2,
-11,
35,
10,
-22,
-28,
-25,
25,
-2,
48,
0,
-25,
17,
-24,
-13,
-22,
19,
47,
-57,
23,
-11,
-6,
-68,
13,
-25,
-56,
-12,
-11,
-3,
41,
45,
48,
5,
20,
-1,
-19,
15,
14,
-3,
73,
13,
-4,
6,
-11,
14,
-9,
-29,
-12,
57,
-6,
-14,
-26,
-21,
0,
22,
-15,
-41,
-15,
-24,
-35,
37,
-25,
7,
-36,
-9,
14,
45,
-33,
54,
12,
18,
35,
14,
-27,
16,
6,
-17,
-6,
8,
-7,
-4,
-22,
24,
-16,
34,
10,
34,
-43,
-37,
-33,
-44,
-19,
28,
-24,
28,
0,
-19,
4,
-43,
38,
-14,
34,
-14,
21,
23,
-1,
2,
13,
-29,
-32,
-18,
-58,
-8,
25,
-10,
-12,
-41,
-41,
-67,
-3,
3,
-26,
-15,
10,
-12,
45,
-12,
53,
-55,
10,
19,
-14,
-52,
0,
-37,
29,
32,
64,
26,
-22,
-19,
14,
-34,
-40,
-2,
-40,
-51,
46,
-38,
15,
-29,
-51,
26,
-6,
-5,
-1,
14,
-13,
-5,
41,
-36,
9,
28,
-57,
-26,
0,
37,
-16,
-12,
-22,
-6,
1,
0,
3,
16,
-17,
-17,
-24,
36,
-47,
-18,
12,
17,
-32,
20,
-15,
1,
-12,
50,
64,
-5,
-38,
20,
59,
-9,
-20,
-3,
63,
9,
-65,
-13,
9,
5,
69,
34,
-3,
-25,
14,
35,
-17,
59,
-46,
31,
18,
-27,
-18,
-24,
6,
-47,
5,
0,
-39,
-54,
-47,
36,
4,
48,
-48,
15,
-9,
-50,
-5,
7,
9,
12,
-17,
-25,
-23,
-40,
23,
-1,
-34,
-49,
-9,
14,
43,
-21,
11,
8,
8,
-21,
-9,
-48,
75,
-9,
29,
12,
-3,
-63,
34,
9,
-46,
-31,
0,
-34,
6,
-50,
-28,
4,
-17,
-10,
8,
24,
0,
-4,
-43,
6,
5,
-29,
-3,
-7,
41,
-26,
6,
-31,
34,
19,
-33,
37,
32,
-20,
25,
-15,
21,
12,
-19,
31,
8,
1,
18,
-12,
63,
-19,
-20,
-19,
-29,
-13,
-24,
-10,
1,
-26,
-54,
0,
-13,
-4,
22,
33,
-9,
-9,
-4,
-25,
22,
25,
36,
-5,
-10,
-39,
-1,
42,
-12,
-17,
2,
-31,
-22,
-4,
31,
-8,
47,
-12,
-39,
-13,
41,
16,
-22,
11,
38,
-13,
19,
17,
-57,
9,
62,
18,
-24,
22,
-56,
-11,
-2,
-14,
-13,
25,
39,
-3,
21,
20,
2,
-21,
14,
11,
12,
0,
-21,
-41,
-16,
24,
46,
45,
-22,
18,
24,
25,
-1,
19,
-25,
-45,
45,
12,
-21,
22,
-7,
-32,
10,
83,
-47,
18,
-1,
-48,
-5,
2,
-20,
38,
-10,
-40,
-6,
32,
9,
66,
7,
29,
-26,
-11,
19,
31,
11,
20,
-8,
-69,
-7,
14,
-5,
21,
-41,
24,
8,
31,
-39,
5,
44,
29,
12,
21,
-37,
-9,
-51,
0,
-80,
46,
-42,
-7,
1,
7,
-9,
39,
23,
18,
34,
14,
-9,
24,
52,
3,
56,
-36,
12,
34,
24,
9,
-8,
6,
20,
-22,
21,
46,
26,
-24,
21,
18,
-25,
-55,
39,
47,
-16,
22,
-29,
-15,
-13,
14,
-23,
55,
10,
-30,
13,
-55,
-31,
-8,
40,
7,
1,
-22,
-58,
-20,
7,
-29,
-41,
1,
-1,
26,
4,
13,
81,
-16,
2,
5,
33,
-46,
39,
-8,
48,
15,
-34,
64,
46,
52,
-22,
-15,
71,
26,
0,
-8,
-40,
3,
33,
-50,
16,
32,
-32,
-8,
24,
-2,
26,
2,
-6,
-57,
-25,
22,
-13,
78,
3,
-5,
-18,
-4,
57,
24,
76,
0,
-16,
-9,
-10,
10,
1,
44,
-37,
-13,
-16,
-80,
39,
-13,
-7,
32,
-8,
-34,
-14,
-49,
1,
10,
-31,
2,
-18,
10,
-3,
-17,
29,
2,
25,
-19,
25,
49,
-69,
-7,
-57,
0,
48,
19,
2,
12,
-23,
23,
30,
-2,
-33,
15,
-16,
-53,
-26,
17,
13,
0,
-12,
57,
10,
-28,
47,
-51,
-15,
18,
7,
-43,
10,
26,
25,
-1,
-73,
3,
15,
1,
16,
28,
-67,
-17,
18,
5,
-4,
-11,
-10,
9,
-1,
-30,
-32,
28,
-9,
-10,
-11,
-17,
28,
10,
-37,
-20,
5,
-21,
23,
-26,
-16,
-58,
-61,
-13,
0,
-27,
33,
-7,
2,
-66,
-4,
11,
-40,
57,
-28,
32,
-8,
-34,
-1,
-8,
47,
30,
0,
-8,
-6,
-27,
-12,
-25,
-23,
-18,
-43,
-12,
-22,
-19,
-30,
57,
19,
-20,
-54,
-18,
-13,
9,
-28,
14,
-6,
40,
-30,
-44,
-7,
8,
-29,
-2,
14,
-12,
-10,
18,
10,
31,
27,
29,
-24,
-35,
-8,
70,
-12,
-14,
-38,
43,
0,
-44,
36,
-8,
-72,
28,
26,
1,
-41,
4,
5,
14,
-37,
52,
44,
23,
48,
11,
9,
-32,
-29,
17,
5,
-12,
0,
-5,
21,
16,
-5,
27,
26,
-5,
-10,
63,
46,
-6,
-17,
23,
42,
54,
10,
-10,
12,
64,
-8,
-17,
32,
-28,
13,
5,
68,
36,
5,
10,
4,
38,
8,
75,
11,
-36,
-10,
-33,
16,
27,
24,
-34,
37,
1,
-44,
2,
41,
4,
39,
26,
12,
15,
49,
64,
-41,
8,
-48,
38,
-23,
-11,
23,
-21,
-29,
0,
10,
29,
38,
17,
-38,
-28,
52,
-14,
21,
-65,
-23,
5,
-18,
-20,
-19,
11,
32,
-16,
-21,
30,
-17,
25,
0,
-17,
-2,
10,
-5,
57,
51,
-1,
50,
-27,
2,
3,
34,
-34,
20,
-50,
24,
-4,
-43,
4,
27,
26,
22,
1,
2,
65,
-4,
-3,
0,
0,
-58,
55,
-30,
-21,
42,
28,
-16,
16
] |
Long, J.
This case was in this Court, at the October term, 1890, and is reported in 83 Mich. 356. On a new-trial in the circuit court, verdict was again directed in favor of the plaintiff, and judgment was entered thereon for $519. Defendant brings error.
It appears from the defendant’s testimony that the mortgage given was without consideration. The circumstances, under which the defendant obtained the property for which the action of trover is brought are as follows: Mr. Elijah D. Kitchen was in the dry goods business at North Lansing. He became indebted for stock purchased for his store to various parties in the sum of about $3,000-Finding it difficult to meet his obligations when due, he-applied to Mr. Francis M. Dodge for a loan of about $3,000. After some talk Dodge proposed, instead of loaning the money, to purchase the stock if he could get ifr cheap enough. Kitchen then told him of his indebtedness. After looking over the stock, Dodge proposed to-give him $3,000 for it. The arrangement was concluded, and a bill of sale given by Kitchen to Dodge of all the stock, store, fixtures, etc. Dodge paid $100 down, gave a note for $100 at three months, and a note of $500 for six months. He delivered to Kitchen these two notes. He also made a note of $1,000, due in nine months. This he did not deliver, but put it in the bank, to be delivered to Kitchen in nine months if no litigation about the stock was had. At that time Dodge gave as a reason why he would not loan the money that litigation might arise over the stock, and when he put the $1,000 note in. the bank it was understood that it was not to be delivered if any litigation was had over it. He told Kitchen that he thought litigation would arise over the' stock by the creditors. Dodge took possession of the store on the same day, and took about $50 worth of the goods out of the stock. On the next day, or the day after, Mr. Kitchen wanted to undo what had been done, and take back the stock. It was finally agreed by Dodge that he might do this, and it was arranged that Dodge might keep the $50 worth of goods, and have a horse, harness, and buggy which Kitchen owned, and take a chattel mortgage on the stock of goods for $400; and for this consideration he would give up the bill of sale, and turn the goods back to Kitchen. Dodge claims he resold the stock to Kitchen for the above property. The arrangement was made by which Kitchen got the goods back, and the money paid and notes given by Dodge were returned to him. Kitchen thereupon made the assignment mentioned in the former opinion of this Court, for the benefit of his creditors.
The question presented upon the record is whether, conceeding all that defendant’s testimony tends to show, he has any defense to the action. Is he in a position to set up the fraudulent character of the transaction between Kitchen and Dodge, if it was fraudulent as to creditors? The statutory assignment had failed, as held in the former opinion, by reason of not giving the bond required, and in consequence the legal title did not pass to the defendant under the assignment. It is contended by defendant that he holds the moneys arising from the sale of the goods for the creditors of Kitchen, and that by reason of that he may set up the defense of fraud against the mortgage; that no consideration passed for it. On the other hand, it is claimed by the plaintiff that the resale of the goods by Dodge to Kitchen was a sufficient consideration for the mortgage.
We think the defendant is not in a position to set np the fraud, if one in fact was perpetrated upon Kitehen’s creditors. No creditors are complaining, and the transfer from Kitchen to Dodge was valid between the parties. This being so, there was a sufficient consideration for the mortgage. The defendant does not occupy a position as to the property or to the creditors of Kitchen such as entitles him in a court of law to contest the validity of the mortgage.
Judgment affirmed.
The other Justices concurred. | [
-25,
63,
25,
23,
-12,
22,
46,
6,
10,
11,
-20,
-3,
-22,
23,
32,
22,
0,
-40,
-21,
6,
14,
-72,
-33,
-12,
-5,
-48,
21,
-19,
-15,
29,
20,
10,
-23,
66,
-51,
2,
-48,
6,
24,
-43,
1,
5,
7,
9,
32,
12,
1,
-58,
45,
-23,
10,
4,
-8,
1,
-14,
24,
-30,
26,
-17,
17,
47,
-68,
25,
-45,
17,
-5,
15,
-14,
26,
-1,
-27,
-14,
32,
-14,
22,
-9,
2,
14,
-20,
-39,
0,
-28,
21,
-33,
-28,
-13,
25,
6,
-56,
-18,
-25,
-3,
14,
-28,
36,
-26,
-3,
77,
3,
-34,
-27,
-53,
-30,
28,
8,
43,
0,
-18,
-76,
-2,
13,
-4,
65,
-2,
-25,
18,
-50,
-12,
2,
18,
-28,
15,
18,
-24,
31,
15,
-55,
-13,
0,
34,
-24,
23,
-32,
53,
-9,
-37,
22,
-6,
-64,
-15,
48,
21,
-24,
-52,
-46,
-15,
8,
-8,
23,
-25,
-57,
38,
-7,
42,
4,
11,
19,
-26,
38,
-13,
38,
-28,
28,
-24,
-5,
7,
-29,
-6,
-21,
-31,
7,
-5,
-42,
-37,
4,
75,
7,
-54,
-6,
-21,
9,
43,
5,
-19,
-16,
-68,
24,
14,
4,
16,
-20,
-10,
-25,
15,
-5,
21,
-28,
-15,
10,
60,
-17,
-78,
-40,
-43,
36,
-1,
25,
-42,
7,
0,
-52,
14,
-31,
3,
-57,
4,
16,
-47,
23,
2,
43,
59,
8,
25,
-7,
-59,
19,
11,
-16,
14,
-33,
11,
19,
18,
17,
-28,
-15,
12,
-7,
74,
22,
-39,
-14,
-41,
-14,
1,
-51,
9,
19,
75,
5,
-7,
-33,
-1,
17,
56,
-11,
10,
-12,
-59,
35,
42,
-47,
-5,
3,
0,
-31,
38,
-20,
42,
-9,
-41,
38,
32,
-34,
-5,
-24,
9,
-22,
4,
23,
-19,
19,
-7,
-3,
29,
0,
-7,
-52,
-15,
23,
-9,
-27,
11,
22,
31,
-28,
21,
34,
38,
-16,
-15,
-19,
-15,
18,
-19,
-13,
17,
-58,
-82,
4,
-8,
-2,
-48,
32,
-36,
15,
68,
33,
-24,
1,
31,
-39,
-5,
39,
9,
3,
1,
-90,
-3,
5,
9,
-12,
44,
-18,
-9,
29,
-42,
55,
-16,
41,
9,
30,
8,
19,
4,
-10,
-66,
-3,
11,
27,
-50,
-28,
49,
34,
7,
-10,
38,
-4,
25,
20,
-51,
14,
-48,
-31,
-37,
-20,
-33,
34,
36,
18,
18,
-19,
-4,
-5,
-10,
-46,
13,
-54,
62,
-8,
15,
14,
42,
26,
5,
-26,
-55,
-6,
31,
-64,
23,
40,
22,
35,
-38,
-33,
-2,
-65,
-35,
1,
3,
23,
-28,
-13,
15,
-15,
-15,
18,
-1,
60,
-59,
4,
-4,
-32,
9,
19,
-14,
28,
19,
12,
19,
-2,
-29,
80,
-15,
39,
38,
-25,
24,
26,
18,
31,
-8,
38,
38,
-3,
-23,
18,
11,
-35,
33,
4,
-29,
34,
4,
-13,
14,
56,
19,
15,
-8,
23,
0,
-20,
8,
9,
-21,
66,
-3,
58,
-57,
0,
38,
-35,
-26,
-34,
2,
13,
6,
-8,
11,
22,
-36,
-62,
-3,
41,
-41,
-16,
42,
-15,
37,
10,
23,
-53,
-23,
-87,
-48,
-28,
9,
38,
2,
-33,
11,
-12,
2,
3,
-2,
-6,
39,
-14,
-3,
11,
-29,
-17,
9,
-30,
-89,
10,
20,
2,
-4,
21,
7,
5,
23,
-27,
13,
30,
-11,
9,
67,
-47,
0,
-31,
30,
-5,
28,
14,
-13,
-10,
8,
-4,
-35,
-4,
24,
41,
17,
3,
-24,
-28,
-3,
31,
20,
-29,
18,
3,
1,
-26,
-2,
-41,
-28,
43,
20,
-18,
11,
-20,
11,
35,
-6,
-16,
0,
12,
-34,
-1,
-32,
-3,
-5,
16,
-30,
15,
-16,
0,
10,
5,
-25,
6,
-28,
-6,
-1,
-56,
-19,
44,
-78,
4,
-7,
27,
18,
-18,
5,
-13,
32,
-17,
-7,
22,
-37,
3,
51,
31,
57,
-37,
-43,
-24,
-5,
29,
-15,
-51,
17,
18,
73,
18,
-18,
43,
15,
-9,
-37,
4,
-12,
8,
16,
-15,
-4,
56,
-26,
-39,
-41,
17,
27,
3,
-29,
19,
4,
11,
38,
-45,
31,
54,
57,
-45,
-33,
-39,
-1,
-8,
-38,
-42,
12,
-30,
46,
-23,
8,
-55,
-15,
29,
-4,
28,
-13,
53,
19,
-3,
-14,
48,
4,
-13,
74,
1,
-26,
21,
-43,
11,
36,
48,
-54,
27,
21,
50,
24,
-38,
66,
30,
-4,
-18,
13,
39,
34,
-18,
-40,
12,
-3,
10,
-2,
-11,
-17,
-28,
17,
72,
14,
8,
25,
8,
-40,
23,
-56,
26,
27,
-6,
-5,
-58,
19,
25,
-5,
53,
-20,
10,
-34,
7,
0,
24,
-6,
-1,
10,
0,
-8,
13,
-16,
1,
31,
-18,
-37,
-4,
31,
-22,
5,
-28,
20,
-64,
25,
17,
-6,
-39,
-23,
-28,
-2,
11,
-37,
-53,
7,
-13,
32,
35,
-2,
33,
9,
11,
-6,
-4,
-10,
-26,
0,
-29,
0,
7,
24,
-9,
-20,
-40,
36,
33,
19,
1,
-58,
-7,
-20,
-8,
0,
30,
2,
20,
39,
55,
-25,
63,
-25,
-31,
-7,
8,
-13,
54,
21,
-3,
12,
-43,
-22,
-6,
-6,
-40,
-13,
64,
6,
19,
-40,
-67,
-5,
11,
-21,
4,
11,
20,
-3,
-22,
-21,
-23,
10,
-11,
-33,
3,
23,
-1,
-7,
-31,
4,
-40,
37,
3,
-11,
-62,
26,
-62,
10,
-24,
8,
-8,
-41,
15,
-30,
-17,
-25,
26,
12,
-25,
22,
8,
0,
-52,
-24,
8,
4,
25,
3,
20,
-99,
-25,
-65,
-19,
-64,
-25,
-27,
3,
71,
27,
9,
32,
-1,
-39,
12,
47,
-63,
4,
2,
-24,
2,
0,
-2,
-32,
-34,
6,
66,
14,
-6,
34,
-9,
2,
-22,
-8,
26,
28,
57,
-14,
-27,
-11,
41,
-9,
14,
11,
-3,
28,
-53,
-6,
-41,
17,
5,
8,
-3,
11,
-15,
13,
-10,
9,
23,
-26,
60,
15,
0,
9,
7,
-31,
0,
29,
0,
-12,
-31,
12,
4,
-6,
0,
-17,
19,
33,
29,
10,
39,
-9,
7,
-38,
-10,
-19,
-24,
28,
-65,
0,
25,
16,
50,
10,
22,
-31,
-20,
32,
1,
32,
45,
-48,
34,
-29,
60,
8,
-18,
0,
-16,
-24,
-31,
-6,
8,
24,
-56,
34,
43,
20,
29,
-44,
-36,
-46,
-7,
24,
4,
-18,
31,
42,
12,
0,
-46,
13,
-6,
-49,
46,
24,
-58,
-44,
-4,
-30,
1,
-33,
-6,
32,
5,
-5,
10,
31,
25,
15,
-42,
29,
-24,
52,
38,
19,
-66,
26,
58,
-6,
7,
-17,
21,
44,
49,
-6,
26,
16,
-27,
63,
23,
20,
-1,
-12,
23
] |
Hooker, C. J.
On the 28th day December, 1889, the following agreement was made between the Whitney & Courier Company and N. H. Eckler:
“ This agreement, made this 28th day of December, 1889, between the Whitney & Courier Co., of the city of Toledo, state of Ohio, parties of the first part, and N. H. Eckler, of Jackson, Mich., party of the second part, witnesseth:
“ That the said Whitney & Courier Co. have leased unto the party of the second part one Boardman & Gray piano, style 11, walnut, No. 16,646, branded, ‘ Boardman & Gray, of Albany, N. Y./ for the term of five months from date hereof, for the sum of three hundred dollars for the whole term aforesaid, to be paid as follows: One hundred dollars cash on the 15th day of January, 1890, and then fifty dollars cash on the fifteenth day of each following calendar month until the above sum is fully paid; payable at the office of the Whitney & Courier Co., 219 Summit street, Toledo, Ohio, with interest at eight per cent, per annum on all unpaid amounts, after becoming due, until paid.
“It is, however, provided that if at the end of five months, as aforesaid, the said party of the second part shall pay unto the said parties of the first part the sum of seventy-five dollars, with interest at eight per cent, .per annum after becoming due, then the said Whitney & Courier Co. hereby agree to sell to said party of the second part, in consideration of the sum last mentioned, the said instrument, and to execute to said party of the second part a bill of sale of the same.
“It is further provided and agreed that the said instrument shall be kept insured for three-fourths its value, for the benefit of the said Whitney & -Courier Co., by said-party of the second part, and shall not be removed from the premises now occupied by said party of the second part during the continuance of the above-mentioned lease without the written consent of the parties of the first part; and that a failure to pay any or either of the aforesaid sum or sums of money as the same shall become due, or any removal, or attempt at removal, of said instrument from said place, without the written consent of the parties of the first part, shall make void this lease and agreement, at the option of the parties of the first part, and they shall have the right to enter and retake, and may enter and retake, possession of said instrument, at maturity of any payment, or any time thereafter, or upon the violation of the terms of the said lease, in any manner whatsoever, by the party or parties of the second part, and may retain any and all sum or sums of money paid on this agreement and lease, as damages, in part, for any injury to said instrument, and for the use of the same, and for expenses in moving the same.
“In witness whereof, the said parties to this agreement have hereunto set their hands and seals this 28th day of December, A. D. 1889.
“The Whitney & Courier Co.
“W. S. Tuell, Treas.
Per T. G. Roberston. [l. s.] “N. H. Eckler. [l. s.]”
The piano was delivered to Eckler, who placed it in his dwelling, where it remained until the plaintiff replevied it from Eckler’s widow, the defendant. At the time of Eckler’s death, June 8, 1890, there remained to be paid upon the rent of said piano the sum of $50, which fell due about a week later. Defendant remained in the dwelling, and had possession of the instrument, which she claimed as her own, alleging that it was a gift from her husband at the time it was brought to the house. Plaintiff, the administrator of deceased, claimed it as a portion of the assets of the estate, and a short time after he paid to the Whitney & Courier Company the sum of $125, being the $50 due for rent, and the amount of $75 additional, mentioned in the lease, and took an assignment of the interest of that company to himself, as administrator, whereupon he replevied the piano, after making a demand upon the defendant for the same.
By the terms of the agreement, defendant’s husband acquired no title to the piano, beyond the right to use it for five months upon payment of the rent prescribed, and the option to purchase at the expiration of that time by paying $75 additional. Such agreement did not make him the purchaser of the piano, but gave him merely an option to purchase it later. Richardson v. Hardwick, 106 U. S. 252 (1 Sup. Ct. Rep. 213); Couse v. Tregent, 11 Mich. 65; Dunlap v. Gleason, 16 Id. 158; Preston v. Whitney, 23 Id. 260; Smith v. Lozo, 42 Id. 6; Gustin v. School-Dist., 94 Id. 502. If deceased gave the piano to the defendant, as she claims, she acquired no better title to the instrument than he had. It gave her, at most, the right, as against the Whitney & Courier Company, to pay the rent, and, if she chose, exercise the option of paying the sum of $75 and taking the instrument. This she did not choose to do.
It was claimed upon the trial that she was entitled to the instrument free from any claim against it; that, by giving it to her, her husband had signified an intention of purchasing it, i. e., had exercised his option of doing so, and thereby become obligated to pay for it, and, being so obligated, the estate was hound to make such payment for the benefit of his wife. This position is untenable. Unless the gift was completed by delivery to his wife, it was void, for want of a consideration. If completed by delivery, it was executed only to the extent of his interest in it, and, there being no consideration to support a promise to purchase and pay for it, even if one had been expressly made, she cannot require the administrator to pay for the piano, nor could she have a valid claim against the estate for the purchase price of $75 had she paid it. Whitaker v. Whitaker, 52 N. Y. 368 ; Wilbur v. Estate of Warren, 104 Id. 192 (10 N. E. Rep. 263).
Nor will the facts of this case permit the conclusion that, as between the defendant and her husband’s administrator, the purchase price of the piano is to be treated as a liability primarily against the estate, for the reason that it was not a debt against deceased. The deceased had never promised the Whitney & Courier Company to buy the piano, or to pay them for it. He died without obligating himself in any way to them. The only claim that they could have sustained against the estate was the amount of $50, back rent. To protect the estate, the administrator purchased the interest of the owners, and thereby he became vested with their right of possession at the expiration of the lease. Defendant’s rights were not affected by this. If the piano was given her, as she claims, she could have paid the balance of the purchase price to the administrator, and become the owner. If it had not been given to her, she would, of course, have no such right. This is a question that we do not find it necessary to decide. As the undisputed facts show that the plaintiff was entitled to the possession of the piano, the other questions may be disregarded.
The judgment should be affirmed.
The other Justices concurred. | [
7,
11,
51,
-14,
-29,
-24,
-33,
0,
32,
-55,
-30,
-21,
-66,
43,
-12,
53,
11,
-33,
32,
-19,
-19,
-27,
-27,
-32,
48,
14,
-4,
-20,
10,
-38,
-15,
87,
21,
38,
-13,
52,
-9,
25,
-3,
-68,
-6,
53,
4,
-4,
86,
27,
31,
-4,
32,
-65,
-11,
-30,
-2,
-13,
-6,
62,
-12,
-1,
-39,
48,
-50,
-73,
73,
-70,
-20,
1,
20,
-29,
33,
-7,
6,
-40,
12,
-19,
-7,
11,
8,
34,
-49,
-12,
20,
-76,
-13,
40,
-22,
77,
28,
-47,
40,
9,
8,
-18,
33,
50,
1,
55,
13,
10,
-15,
36,
19,
-66,
-41,
-19,
-1,
35,
25,
1,
-56,
9,
-31,
-39,
47,
-11,
24,
13,
12,
5,
0,
34,
29,
34,
-35,
18,
3,
52,
-82,
7,
-13,
33,
-14,
-53,
-49,
8,
29,
-12,
-23,
6,
10,
39,
8,
46,
-72,
40,
-24,
-54,
-26,
36,
-48,
20,
-2,
57,
-37,
20,
-10,
-27,
29,
14,
54,
-10,
-10,
-39,
33,
-60,
-61,
0,
-30,
-64,
-28,
74,
-25,
-16,
-37,
-32,
31,
-12,
8,
13,
-14,
14,
-2,
-6,
40,
-24,
39,
-49,
64,
42,
-10,
31,
-39,
-26,
23,
-40,
-87,
-38,
6,
-32,
1,
43,
26,
-52,
-74,
-11,
5,
-16,
16,
0,
1,
75,
-15,
57,
-57,
2,
0,
9,
20,
-67,
37,
27,
10,
-2,
22,
2,
-41,
-28,
33,
-2,
-5,
-1,
-55,
47,
17,
26,
19,
28,
-27,
-29,
-9,
-30,
-10,
-55,
-66,
12,
-11,
-43,
-42,
-23,
-19,
30,
-26,
1,
-33,
28,
4,
40,
-29,
-17,
7,
-31,
-47,
45,
-35,
42,
0,
-20,
2,
5,
-20,
95,
10,
-7,
39,
27,
-31,
-53,
22,
10,
-21,
-33,
13,
-64,
-41,
-58,
51,
0,
-29,
-28,
-27,
0,
-13,
31,
26,
-18,
-4,
0,
-10,
48,
33,
-26,
-82,
6,
52,
11,
42,
-16,
-32,
19,
6,
-80,
-32,
-25,
-17,
-8,
26,
-57,
14,
38,
-46,
29,
7,
-17,
-27,
50,
57,
24,
0,
-36,
-36,
-1,
20,
-38,
-9,
-36,
-16,
22,
66,
-3,
13,
-21,
-13,
-6,
-15,
36,
-19,
-25,
-1,
-50,
-21,
-5,
-15,
-106,
-23,
27,
11,
22,
-1,
78,
-3,
7,
22,
7,
48,
-11,
25,
-70,
4,
13,
-9,
22,
46,
35,
-23,
35,
-17,
43,
-22,
-11,
-27,
1,
24,
-35,
-4,
-15,
47,
-50,
-2,
-12,
7,
-33,
-20,
67,
9,
77,
-5,
14,
-16,
-46,
-28,
-49,
9,
42,
-11,
-40,
42,
-23,
27,
-15,
28,
-6,
42,
-37,
-26,
23,
20,
1,
-33,
-30,
-49,
-20,
34,
7,
-96,
7,
2,
-15,
31,
10,
-53,
-9,
0,
21,
56,
-26,
-19,
-10,
12,
36,
12,
-34,
3,
-2,
-25,
37,
-10,
28,
29,
27,
15,
10,
3,
-11,
-20,
66,
-13,
16,
58,
-16,
-7,
18,
24,
0,
89,
55,
-39,
-2,
35,
-8,
11,
39,
-16,
-24,
-21,
-36,
-54,
-20,
3,
-45,
6,
36,
-6,
-9,
37,
68,
-36,
-30,
-12,
0,
-56,
-4,
41,
-52,
14,
-4,
17,
30,
8,
-16,
59,
36,
22,
-48,
43,
24,
-56,
-10,
7,
-25,
49,
-8,
30,
-32,
10,
-19,
36,
46,
-96,
46,
15,
34,
27,
45,
17,
42,
27,
54,
30,
19,
5,
0,
-36,
4,
-29,
-47,
18,
-80,
3,
4,
-12,
0,
2,
-22,
43,
14,
-44,
78,
-18,
8,
-26,
-14,
-29,
-21,
44,
-41,
-14,
35,
3,
20,
29,
15,
-52,
1,
-25,
-45,
-1,
28,
-57,
44,
-22,
-51,
-5,
25,
10,
37,
-19,
-41,
-44,
-56,
15,
-22,
-16,
-13,
10,
-64,
15,
-4,
-5,
21,
-23,
73,
-2,
57,
-23,
23,
12,
55,
13,
42,
-45,
-28,
-5,
-46,
0,
-22,
-24,
-41,
-12,
55,
34,
57,
-67,
-18,
32,
2,
-52,
-34,
12,
-21,
32,
-33,
-68,
-2,
-36,
43,
-5,
-8,
32,
36,
28,
20,
-56,
3,
-39,
46,
-51,
-23,
63,
22,
-3,
-12,
-29,
-1,
-35,
-12,
-27,
45,
-9,
-4,
53,
-2,
-45,
-99,
53,
-6,
9,
44,
0,
-1,
67,
-3,
7,
-13,
20,
-6,
66,
27,
-7,
1,
-10,
19,
44,
-6,
-7,
3,
14,
-12,
-30,
36,
84,
47,
61,
53,
50,
-11,
38,
-54,
28,
-53,
-72,
54,
-2,
-42,
-10,
-9,
0,
19,
61,
-40,
30,
1,
24,
18,
-58,
48,
48,
5,
-54,
-41,
-11,
42,
18,
-64,
37,
-27,
-15,
12,
2,
45,
-43,
7,
-28,
-14,
50,
-15,
-19,
-10,
-16,
-18,
-76,
46,
-11,
-10,
-60,
-38,
-4,
40,
-44,
-3,
-37,
7,
-7,
-25,
16,
-10,
-49,
13,
14,
18,
-26,
17,
3,
56,
35,
-26,
54,
7,
-28,
16,
-21,
43,
10,
52,
55,
-12,
22,
89,
-60,
4,
2,
-48,
3,
29,
-7,
51,
11,
-30,
-50,
6,
19,
-34,
9,
-50,
-12,
25,
11,
-3,
22,
62,
72,
-26,
9,
-3,
26,
-61,
-96,
-29,
4,
-15,
-8,
-31,
-49,
-32,
-31,
1,
-21,
-66,
26,
18,
-6,
13,
-21,
-13,
8,
-22,
7,
73,
6,
-23,
-8,
8,
-36,
-32,
-36,
49,
-3,
-34,
-48,
-7,
16,
41,
70,
-17,
27,
-94,
-32,
48,
5,
-40,
-12,
-7,
-53,
-20,
24,
31,
29,
-15,
5,
28,
7,
-32,
-37,
45,
-11,
35,
-18,
-29,
-31,
-14,
-8,
1,
-1,
-8,
3,
16,
-4,
1,
43,
9,
-3,
-66,
14,
56,
-5,
-80,
-42,
38,
-4,
-1,
31,
-8,
-33,
6,
16,
18,
11,
32,
3,
-3,
25,
8,
-40,
0,
-7,
21,
58,
-60,
20,
7,
81,
-24,
-38,
-10,
1,
44,
13,
-24,
-5,
2,
37,
-31,
23,
-28,
-35,
-36,
-15,
-32,
11,
5,
-35,
6,
27,
-42,
-7,
11,
0,
19,
62,
-6,
18,
69,
11,
13,
5,
14,
-1,
0,
-60,
-5,
22,
-23,
30,
34,
27,
-17,
-25,
16,
6,
-13,
15,
19,
15,
73,
33,
17,
-1,
11,
-1,
-5,
-3,
-39,
43,
5,
64,
-10,
13,
36,
5,
3,
-24,
-1,
15,
-5,
-13,
4,
-62,
16,
24,
-23,
12,
8,
84,
-29,
18,
69,
51,
-9,
51,
59,
-2,
2,
-18,
-110,
-11,
-43,
-4,
-10,
24,
7,
21,
-60,
-12,
-88,
12,
-20,
-18,
-32,
-4,
-44,
-28,
15,
-15,
41,
-16,
14,
-18,
16,
9,
-9,
51,
-32,
60,
-59,
-58,
3
] |
Long, J.
Plaintiff lives at Lakeport, about 10 miles from Port Huron. On the day of the accident she was returning from a visit at Port Huron to her home. She had solicited a ride with two young men by the nam§ of Goodman, one about 19 and the other 14 years of age. They had a light wagon, drawn by one horse. On their way they drove to Et. Gratiot, to get from the defendant company two trunks belonging to a party in Lakeport, and for which they had the checks. The horse they were driving was four years old, but well broken. None of these parties had ever been at the depot at Et. Gratiot, and the horse had never been driven there. The situation of the streets, railroad tracks, and buildings of the defendant company is shown by the accompanying plat on page 32.
They drove down Michigan street to the tracks, and before turning into the depot grounds the older of the two boys got out of the wagon, went to the baggage room, and saw the baggage man, who took the checks, and delivered him the two trunks, telling him to drive up to the platform to get them. He put them on a truck, and wheeled them out to the end of the platform, near the train dispatchers’ office, and then returned for his horse and wagon. The horse was driven over the first line of tracks through the driveway, and turned round, backing the end of the wagon to the north end of the platform, and opposite the train dispatchers’ office. The older boy got out of the wagon, leaving his brother and the plaintiff in the wagon. The horse became restless, and the younger boy got out and took him by the bits. lie began to roar, when the older boy went to his head. The horse finally started and ran northward, and, swinging to the right across the tracks, overturned the wagon, throwing the plaintiff out, breaking her leg, and otherwise injuring her. The horse became frightened and unmanageable from the noise of an approaching train coming from the rear, and along the track on the east side of the depot. This action was brought to recover damages for the injury thus sustained by the plaintiff, and on the trial she had verdict and judgment for $3,000.
The duty alleged in the declaration is that, if the defendant had taken proper precaution to protect life and 2>rop-erty against such apparent danger as the operating of engines and cars along said mentioned switching tracks, it would have constructed and maintained a high board fence along the westerly side of its main switching tracks from said passenger, freight, ■ and baggage platform, at the southerly end of said building known as the “ dis23atchers’ office,” etc.; or, had said defendant kept an employé or servant at said platform to warn strangers coming there, with horses to receive or deliver freight or baggage, or to> assist in holding such teams, or maintained hitching posts or rings for hitching horses, the accident would not have happened. The breach of duty assigned is as follows:
“But, on the contrary, said yard, on the easterly side, and adjoining. said main switching tracks, is wholly unfenced, and said tracks laid level with said yard for the whole distance, and have so existed for more than a year past; while passengers desiring to take said railroad trains, •or receive or deliver freight from or to said railroad, or to receive or deliver baggage transported over said railroad, are compelled to go by the route aforesaid through the yard aforesaid to said platform as the only means of access foi such purposes.”
There is another allegation of negligence in the declaration, but which seems to have been abandoned on the trial. It was claimed by the declaration that the train was propelled along the track with great speed, and without any warning to the plaintiff or those in charge of the horse. ■On the trial, when proof was offered of this fact, the •court stated to counsel that he did not understand that in the operating of the train there was any negligence alleged; •and counsel for plaintiff agreed with the court’s views, •so that we may consider that question settled and out of the case. The only questions, therefore, for our consideration are (1) whether it was negligence on the part of defendant, under the circumstances, not to have built and maintained a fence along the side of these switching tracks; and (2) whether the plaintiff was in the exercise of due care.
1. The court below, upon the first question, directed the jury that if they found that the want of such a barrier left the station grounds in a condition not reasonably safe, and plaintiff’s injury would not have taken place except by reason of such insufficient condition, plaint-, iff and the .Goodmans being in the exercise of due care, the plaintiff was entitled to recover. We think this charge was not warranted. Counsel for defendant had asked the court to instruct the jury substantially that the defendant was not bound to fence its depot grounds. This instruc-. tion should haye been given. It was shown by the testimony of the station agent, and not disputed, that this ground east -of the dispatchers’ office and north to McNeil creek is used for passengers to get off and on trains; also for conductors leaving trains to go to the dispatchers’ office for orders. It is also used by conductors of switch engines to mark the string of cars to be disposed of. It is used by the general public in going to and from the ferryboats plying every 15 minutes from that side of the river to Point Edward, on the opposite side. It appears that it is necessary to have that point open so that the dispatchers may have a view of the yard and of the arrival and departure of trains, and that a fence there would hinder and obstruct the making up and working of trains. On the east side of these tracks, and below the dispatchers’ office, are two slip-docks where the trains are run onto the transfer boats to be carried across the river, and frequently from five hundred to a thousand cars a day are in the yard to be carried over, or have arrived in the yard from the other side of the river. The passageway for teams from Michigan street to the end of the platform opposite the dispatchers’ office varies in width. Opposite the storehouse it is 77 feet wide, while opposite the dispatchers’ office it is 27 feet to the tracks from the building. Across the tracks the ground is made level and smooth for people to pass over, hundreds of whom pass daily. So far as appears by this record, people have driven their teams in there with safety.
In a vast number of railway stations nearly the same state of tilings exists. Carriages and wagons come to these stations to meet arriving passengers. They draw up and await the arrival of the trains within a few feet of the track, and trains arrive and depart; and no one, so far as my examination has extended, has ever heretofore suggested that a railway company is guilty of negligence in not erecting a screen or fence so that horses standing there may not become frightened at approaching trains, except in the case of Simkin v. Railway Co., reported in 21 Q. B. Div. 453 (35 Amer. & Eng. R. R. Cas. 487). It appeared in that case that the plaintiffs were leaving a station belonging to the defendants, in a carriage, when the horse was frightened by the sight and sound of a locomotive engine at the station, which was blowing off steam. The horse upset the carriage, and the ■plaintiffs were injured. It did not appear that the engine ivas defective, or that it was used in an improper manner, or that the approach to the station was inconvenient; but the jury found that the defendants were guilty of negligence in not screening the railway from the roadway leading to the station, and that such negligence had caused the accident. It was said by the court:
“ We cannot think that in this case there is any evidence that ought to have have been left to a jury of negligence by the defendants* in not sufficiently and properly screening their railway from the road.”
There is no statutory duty cast upon the defendant to place a fence alongside of its tracks, and it is quite apparent that it would not only be a great inconvenience to have such a fence there to the defendant company, but to the public generally. The duty which the defendant owed to the plaintiff was to provide a reasonably safe place of ingress to and egress from its station. Negligence would mean the omission by the defendant to do something which persons conducting a railway with reasonable care and caution should do. It cannot be said in this case that there is any such omission of duty. So far as our observation extends, no railroad company has heretofore found it necessary, in the careful management and conduct of its business, to place fences or screens along its tracks for the purpose of preventing the frightening of horses approaching its station. Where passengers are accustomed to be received upon a train, whether at the station house, at the water tank, or elsewhere, rail road companies are bound to keep in a safe condition for transit tbe ordinary space in which passengers go to and from the train, and the latter have the right to assume that the grounds adjacent to the cars, within the limits in which persons necessarily and naturally go to and from them, admit of their getting safely out and in, even on a dark night; and passengers have a right to assume that no pitfalls are left near the traveled way. In such cases it might be necessary to erect barriers to prevent persons from wandering in the dark out of the traveled way, and falling into pits and getting into dangerous places. Such are the cases cited by plaintiff's counsel. Hulbert v. Railroad Co., 40 N. Y. 145; Cross v. Railway Co., 69 Mich. 363. But this case is not within the rule laid down in the cases cited.
2. The plaintiff's own testimony shows that not only were the Goodman boys guilty of negligence in attempting to keep the horse at the platform when it became restless at the noise of the train approaching from the rear, but the plaintiff saw and knew the danger herself, and could have avoided it by the least care on her part. She says she saw the railroad tracks there, and, after the horse had been backed up to the platform, she says she told the boys to hurry up, as she was afraid. She had not seen or heard any train at that time, but saw the tracks, and was afraid with the little boy in the wagon with her. She had plenty of time to alight from the wagon before any train was heard. After the train was heard, she' says, if the boy had done as she told him, he would have driven out, as that was what she would have done. There was. nothing unusual in the noise of the train. The horse became restless from the noise of the train before it was in sight, yet the boys, instead of driving out, attempted to hold him there; and the plaintiff, knowing the danger, kept her seat in the wagon. The boys knew the way out, and from the point where they stood it was a smooth driveway from 30 to 100 feet in width, safe to drive over. It appears that the horse first became restless and frightened from the noise, and not from the sight, of the train; and yet with a fonr-year-old colt, which had never been driven there before, they determined to try to hold him by the head, rather than drive out. The case falls precisely within the ruling of this Court in Geist v. Detroit City Railway, 91 Mich. 448. In that case the driver thought he could get across the track in front of a car going 12 to 15 miles an hour, whipped up his horses to do so, and was struck by the car. This was held to be negligence. In the present case, the plaintiff and the Goodmans saw the danger, and knew that they had a young colt not accustomed to the place and that there was a safe way out. Instead of adopting a safe course, they took their chances that they could hold the colt, and let the train pass. They miscalculated the chances, and must suffer the consequences.
We see nothing in the case warranting a new trial. The verdict and judgment below must be reversed. No new trial will be ordered.
The other Justices concurred. | [
10,
48,
27,
25,
-19,
-10,
32,
6,
38,
-37,
-5,
3,
9,
-9,
23,
0,
2,
5,
-32,
11,
-26,
-45,
-32,
-5,
-67,
-19,
15,
-17,
-19,
4,
13,
34,
-12,
44,
-22,
41,
19,
-33,
0,
1,
24,
-2,
21,
-6,
24,
35,
53,
2,
42,
-47,
11,
-9,
-13,
-1,
-1,
-16,
12,
18,
22,
10,
13,
-43,
22,
-40,
-11,
-2,
21,
-1,
-61,
57,
-22,
57,
0,
4,
-7,
2,
-4,
24,
-21,
2,
-22,
-7,
12,
-30,
-49,
-25,
-29,
-28,
-20,
-40,
-30,
-26,
-46,
1,
24,
-5,
-13,
-18,
-63,
-14,
-25,
9,
4,
-35,
-44,
-9,
-39,
-19,
-21,
-13,
-18,
11,
25,
-45,
11,
-31,
-4,
-9,
0,
19,
38,
-51,
16,
2,
-7,
-8,
-43,
27,
34,
-2,
25,
0,
1,
55,
67,
7,
-23,
-12,
48,
-19,
26,
34,
-13,
-4,
-4,
10,
-55,
32,
-19,
-8,
-53,
-15,
28,
-33,
49,
-23,
10,
-15,
52,
5,
30,
8,
16,
27,
-53,
-32,
2,
-6,
25,
5,
-25,
4,
24,
-49,
33,
50,
-6,
-8,
-49,
16,
-12,
15,
15,
-8,
-46,
-56,
18,
32,
-60,
8,
63,
-31,
-29,
-43,
-41,
37,
-9,
-22,
-16,
4,
32,
-14,
-39,
26,
-6,
3,
-17,
-14,
25,
-37,
43,
1,
-26,
-32,
-11,
-8,
-13,
-37,
1,
-55,
47,
8,
1,
29,
-24,
-69,
-42,
0,
-7,
16,
44,
0,
26,
-6,
-25,
-51,
3,
-8,
8,
-1,
51,
-8,
12,
-40,
35,
7,
-32,
-26,
-14,
66,
-13,
-10,
-34,
-8,
13,
21,
32,
-9,
10,
-22,
-7,
63,
-9,
49,
79,
18,
-42,
39,
-39,
-57,
40,
-30,
20,
-19,
-49,
-37,
41,
14,
30,
19,
60,
-10,
-20,
33,
-6,
-11,
-25,
4,
-11,
-26,
28,
-35,
-6,
11,
42,
-5,
47,
9,
-37,
20,
42,
-2,
0,
30,
25,
36,
-19,
12,
-35,
-21,
-20,
-13,
25,
0,
16,
-6,
5,
-16,
21,
0,
-29,
4,
-36,
14,
6,
17,
2,
-17,
-27,
10,
35,
42,
0,
14,
3,
-14,
-12,
27,
14,
-22,
0,
31,
47,
14,
-29,
25,
31,
-60,
40,
-27,
-32,
-34,
57,
-35,
-14,
-20,
1,
-54,
-9,
29,
25,
-8,
21,
21,
20,
-83,
-13,
-21,
13,
13,
51,
-10,
16,
11,
9,
-78,
6,
-5,
-12,
73,
50,
-35,
20,
-13,
1,
-45,
-13,
-51,
-45,
59,
-7,
-13,
46,
48,
45,
-11,
-9,
31,
-32,
-52,
18,
4,
66,
-14,
20,
-8,
-13,
-2,
26,
-1,
-11,
-22,
52,
-10,
33,
1,
17,
-2,
-25,
-2,
55,
52,
38,
-15,
28,
0,
33,
-32,
9,
14,
38,
-16,
36,
8,
10,
-17,
-11,
-10,
-25,
-24,
5,
18,
-11,
44,
-3,
4,
-16,
-7,
11,
-46,
43,
19,
23,
19,
-29,
16,
-49,
-12,
17,
1,
6,
-2,
31,
35,
14,
-29,
30,
-26,
73,
18,
-24,
4,
-17,
11,
16,
-19,
-3,
22,
-23,
41,
-75,
1,
-15,
5,
-9,
-34,
-40,
-8,
36,
38,
72,
-3,
-49,
-16,
25,
28,
4,
43,
26,
16,
-23,
-32,
36,
-9,
35,
-1,
3,
-26,
-16,
-29,
51,
-17,
23,
-29,
-27,
-5,
-49,
-14,
6,
12,
25,
13,
-11,
-27,
-16,
-5,
41,
-46,
-23,
-15,
8,
-68,
-12,
-3,
5,
-6,
35,
23,
4,
-16,
6,
-4,
14,
-50,
2,
-30,
33,
23,
19,
21,
42,
-2,
18,
-37,
-5,
0,
-28,
-26,
22,
-13,
-24,
-10,
18,
-16,
48,
6,
7,
-10,
41,
-64,
-22,
6,
19,
-16,
-46,
2,
-8,
14,
-44,
21,
-6,
13,
-41,
-1,
-17,
15,
-24,
-19,
-56,
0,
-22,
34,
0,
21,
25,
0,
-1,
22,
-1,
10,
38,
-49,
-32,
27,
9,
20,
-55,
8,
21,
17,
14,
38,
-1,
-8,
13,
-1,
-36,
26,
22,
-1,
-30,
-22,
-19,
29,
-32,
-29,
13,
-13,
-41,
-56,
-38,
31,
-56,
55,
-46,
-1,
27,
34,
-2,
-42,
-2,
2,
58,
-35,
-15,
-55,
-78,
13,
-79,
-18,
-78,
7,
13,
-30,
12,
-18,
-20,
46,
-71,
4,
19,
24,
7,
29,
-68,
-19,
17,
-32,
1,
18,
53,
-45,
11,
21,
3,
3,
24,
52,
14,
8,
2,
28,
43,
-16,
22,
-14,
-37,
39,
24,
-21,
-42,
-17,
0,
55,
7,
49,
45,
-7,
-42,
-31,
-12,
19,
0,
2,
-28,
11,
7,
-27,
9,
13,
30,
16,
35,
-7,
0,
15,
-1,
-4,
-24,
-7,
18,
18,
-14,
-37,
-3,
0,
20,
-34,
-14,
15,
23,
43,
-53,
-12,
-38,
-7,
38,
-11,
-43,
-31,
-31,
-8,
61,
-1,
-42,
-12,
23,
-12,
9,
-41,
22,
47,
40,
2,
18,
-37,
-17,
1,
-21,
-58,
-4,
-37,
-1,
-12,
-13,
72,
-12,
14,
22,
-36,
20,
42,
-56,
-48,
38,
6,
25,
14,
11,
-38,
4,
2,
17,
10,
-13,
20,
3,
-8,
9,
-4,
25,
4,
29,
22,
-58,
-13,
7,
9,
8,
-22,
-26,
-19,
-52,
-10,
-13,
7,
-1,
20,
8,
0,
-6,
31,
-46,
-41,
-6,
15,
7,
10,
-20,
49,
-22,
7,
0,
-2,
-15,
24,
0,
-26,
44,
-10,
33,
-28,
-44,
-3,
-4,
35,
45,
-34,
3,
10,
50,
27,
-42,
-43,
33,
-31,
-5,
21,
18,
-2,
-52,
-48,
6,
-32,
-7,
-33,
45,
17,
19,
15,
-38,
-41,
-70,
3,
21,
5,
-11,
-30,
-38,
9,
15,
-9,
-4,
31,
-3,
-8,
-5,
-35,
21,
17,
21,
-35,
10,
43,
-6,
-6,
8,
-56,
4,
13,
-13,
-25,
10,
4,
-14,
-19,
-33,
-4,
22,
-17,
-10,
53,
24,
8,
9,
-42,
-15,
-53,
-34,
24,
11,
2,
-35,
0,
1,
6,
-61,
50,
-7,
-30,
-5,
-5,
9,
11,
-21,
73,
-12,
17,
-7,
61,
-29,
-20,
-47,
-15,
34,
15,
7,
-44,
22,
7,
34,
25,
-61,
26,
17,
-27,
-11,
-9,
-25,
46,
14,
25,
31,
50,
-29,
-14,
-9,
25,
-31,
1,
51,
56,
25,
34,
-8,
-37,
27,
-26,
4,
-8,
-22,
-1,
-9,
-26,
17,
-54,
46,
0,
0,
-41,
47,
2,
-27,
44,
23,
-65,
-46,
-39,
-43,
21,
-66,
-19,
39,
-7,
60,
-16,
-20,
5,
-38,
-23,
22,
-32,
-14,
41,
9,
-21,
27,
38,
25,
6,
-18,
12,
47,
41,
45,
47,
15,
-13,
31,
-23,
43,
10,
65,
-1
] |
McGrath, J.
Section 7091</, 3 How. Stat., as amended March 6, 1893, provides that the clerk of the justices’ ■courts of Detroit shall have power to appoint one or more deputies when the necessity therefor shall be certified by the .justices, and that said clerk may revoke such ap}3ointment at pleasure, which appointment and revocation shall be operative from the time of filing the certificate thereof with the county auditors.
In August, 1892, said justices had certified to the board ■of auditors that seven deputy clerks were necessary, and seven were duly appointed. On March 16, 1893, the •clerk of the justices’ courts, whose term of office under the law as it existed prior to March 6, 1893, did not expire until July 4, 1893, and, under the amendment of 1893, until February 1, 1894, revoked the appointment of two of said deputies, and appointed two others (relators) in their, stead. On March 17, 1893, a majority of said justices certified to the board of auditors that the clerk of the justices’ courts had discharged A. and B., and offered to appoint relators, and that—
“At this time no necessity exists for the filling of the vacancies thus occasioned, as the business of these courts has fallen off to such an extent as to justify the undersigned to protest at this time at the placing upon the pay roll any names to succeed those removed. We further certify that no necessity exists for the appointment by said clerk of any deputy clerks for said courts.”
The board of auditors refused to pay the salaries of relators, basing their refusal on said certificate of said justices, and this is an application for a mandamus to enforce such payment.
Under the act, all costs, fines, and dues, of every description, in all proceedings in said justices’ courts, are received by the clerk, and he is required to give a bond to the county, conditioned to pay over all moneys received by him as clerk for the use of the county, and otherwise fully and faithfully discharge the duties of his office. The act authorizes the deputies to perform generally the duties of clerk, and empowers the clerk to require of each a bond, with such conditions as he may deem proper.
It is the evident intent of the act to place these deputies under the absolute control of the clerk. The act should receive a construction consistent with such purpose. It was certainly not contemplated that each certificate of appointment should be accompanied by a certificate of necessity. Such a construction of the act would put it in the power of the justices to dictate the appointment, and would prevent the clerk from revoking an appointment, and making another not approved of, except at the expense of assistance. When these appointments were made by the clerk, the certificate of a majority of the justices was on file with the board of auditors, declaring that seven depu ties were necessary. The appointments were valid under that certificate. If, however, a majority of the justices should, in the ordinary course, afterwards file a certificate declaring that the necessity no longer existed for so many deputies, it would be the duty of the clerk to reduce the number to that fixed by the certificate of the justices; but the certificate in the present case is aimed at the two new appointees, and the choice, in any event, as to who should remain, is with the clerk, and not with the justices or board of auditors; and the remedy is by a proceeding to. set the clerk in motion, and not by a refusal to'pay any two of the deputies whom the board of auditors, at the instance of the justices, may choose to select.
The mandamus must therefore issue as prayed.
The other Justices concurred. | [
16,
-2,
36,
-13,
3,
31,
9,
-30,
-20,
14,
-4,
-47,
-7,
16,
23,
-4,
17,
27,
-16,
-34,
-5,
-11,
-8,
-45,
-12,
35,
42,
-1,
-37,
-23,
-20,
-7,
10,
28,
3,
-46,
3,
6,
51,
19,
13,
-3,
13,
22,
-35,
-9,
49,
14,
7,
-37,
-55,
21,
-28,
65,
17,
44,
-25,
-1,
-2,
31,
-22,
40,
-15,
17,
-21,
-23,
28,
39,
14,
-44,
30,
-12,
-32,
2,
12,
16,
8,
-65,
-36,
36,
22,
-45,
-21,
-39,
-3,
14,
3,
-2,
7,
18,
-24,
-7,
-13,
46,
15,
0,
0,
-1,
42,
31,
-10,
-24,
-37,
31,
10,
-15,
-8,
24,
-13,
-14,
25,
25,
25,
19,
-6,
20,
-21,
-9,
-6,
-10,
5,
0,
7,
5,
-18,
-15,
-34,
-9,
0,
-16,
4,
10,
-1,
-53,
1,
9,
-19,
3,
27,
-9,
1,
25,
-14,
8,
-17,
-40,
-15,
21,
-10,
9,
28,
41,
67,
26,
-52,
0,
31,
-17,
33,
-47,
43,
-31,
-20,
-43,
-30,
32,
-37,
-39,
-20,
56,
2,
2,
0,
3,
8,
-93,
9,
15,
-28,
16,
-15,
9,
-7,
-30,
36,
-2,
1,
-42,
23,
-15,
-3,
13,
1,
-44,
63,
-37,
-15,
-16,
9,
17,
7,
14,
-41,
53,
4,
7,
-2,
33,
-53,
19,
-37,
0,
-7,
-3,
-16,
4,
-32,
-6,
9,
-12,
10,
-7,
44,
42,
-14,
-4,
18,
10,
15,
16,
24,
21,
40,
-3,
14,
8,
-36,
-1,
14,
42,
-38,
10,
-18,
33,
37,
1,
42,
-18,
15,
19,
31,
20,
26,
-6,
-58,
11,
-13,
21,
-24,
-18,
-29,
22,
4,
-25,
-16,
-39,
57,
28,
28,
-10,
9,
18,
78,
-18,
-25,
24,
-6,
-37,
-34,
-16,
-33,
-2,
-57,
34,
-15,
-28,
-18,
-27,
-32,
38,
-38,
-1,
-36,
77,
-7,
15,
-2,
29,
38,
-18,
-60,
32,
-24,
3,
-33,
5,
-49,
-43,
-18,
23,
28,
35,
-31,
11,
4,
-25,
-4,
19,
21,
5,
22,
19,
-17,
19,
17,
-1,
28,
48,
-22,
-24,
34,
-36,
29,
-34,
-12,
12,
77,
-21,
13,
-34,
41,
-100,
-11,
9,
4,
-36,
0,
-24,
-8,
19,
49,
24,
-3,
69,
-1,
-24,
8,
-15,
40,
-39,
18,
-26,
-2,
2,
-10,
-2,
-54,
-36,
28,
-1,
73,
39,
-30,
26,
22,
4,
33,
-13,
0,
40,
27,
-15,
-37,
-18,
0,
-4,
-8,
-36,
-33,
-29,
9,
23,
-43,
-4,
-7,
59,
-14,
1,
-52,
33,
3,
41,
1,
24,
-6,
20,
-60,
28,
31,
39,
8,
23,
-2,
-10,
46,
4,
32,
-42,
33,
-19,
20,
20,
22,
-32,
-4,
-6,
0,
44,
1,
27,
-48,
-33,
42,
68,
-1,
-40,
-68,
-14,
-32,
-21,
-17,
-6,
1,
38,
1,
52,
-9,
31,
4,
19,
13,
-37,
10,
34,
-9,
-22,
13,
20,
7,
1,
-24,
-7,
-39,
30,
-30,
19,
-20,
30,
6,
-16,
-74,
-48,
-35,
-25,
-42,
-33,
-21,
8,
23,
-5,
25,
-36,
5,
43,
-30,
-41,
-29,
-29,
-75,
-6,
5,
11,
-11,
17,
55,
9,
-4,
-52,
-32,
59,
52,
12,
33,
-18,
-56,
-7,
-5,
-25,
26,
-9,
-37,
20,
8,
36,
40,
0,
-22,
9,
34,
-28,
19,
-14,
-63,
3,
44,
22,
-13,
2,
-15,
-2,
-15,
0,
22,
34,
29,
39,
-30,
45,
12,
-17,
19,
-8,
19,
59,
33,
32,
-35,
-31,
40,
-28,
37,
-38,
-22,
-46,
-61,
37,
-23,
9,
12,
3,
-20,
-36,
17,
-33,
12,
0,
-25,
-38,
-6,
12,
5,
-29,
-23,
34,
24,
-13,
16,
-58,
1,
-19,
47,
7,
-17,
-12,
67,
-12,
-25,
-60,
2,
22,
6,
16,
-95,
7,
-26,
31,
-24,
71,
37,
5,
30,
-12,
-10,
48,
3,
-5,
0,
-4,
44,
-26,
-1,
-19,
2,
-37,
-6,
25,
-27,
15,
-4,
5,
-21,
24,
19,
-51,
-35,
12,
-2,
-58,
-15,
-22,
32,
6,
-28,
16,
-7,
36,
61,
0,
4,
-19,
-1,
-28,
8,
-26,
22,
63,
-42,
26,
10,
8,
18,
11,
25,
-43,
-17,
19,
35,
44,
41,
1,
8,
-10,
-10,
-16,
21,
24,
-58,
-8,
18,
-69,
4,
-23,
13,
-14,
10,
-35,
17,
46,
-9,
-36,
-1,
32,
-42,
53,
53,
-21,
-26,
-24,
-46,
-16,
39,
20,
-37,
4,
14,
-21,
18,
-7,
-8,
-16,
-11,
-15,
0,
15,
-44,
-16,
-2,
-53,
-1,
-65,
-13,
-74,
-33,
0,
44,
-22,
1,
0,
12,
13,
-8,
-14,
-18,
-3,
-27,
4,
-36,
-25,
4,
-5,
29,
7,
-4,
-69,
37,
12,
-42,
17,
-24,
19,
14,
34,
-35,
-3,
7,
-19,
23,
-21,
-53,
28,
42,
0,
-9,
-21,
-25,
34,
-16,
4,
-18,
45,
-15,
27,
15,
6,
22,
-15,
-41,
0,
-10,
-24,
-6,
-12,
33,
40,
64,
-55,
4,
25,
3,
-80,
43,
9,
-19,
-10,
7,
-44,
33,
8,
-28,
-14,
32,
-90,
1,
17,
-24,
-26,
26,
-37,
-36,
-2,
4,
17,
-16,
-34,
13,
8,
-29,
-27,
-15,
-1,
8,
29,
-42,
-6,
-11,
1,
2,
0,
-39,
-40,
-2,
-24,
48,
-33,
-24,
-23,
1,
37,
-51,
72,
0,
16,
-36,
-21,
17,
-30,
-28,
-33,
33,
33,
-22,
-6,
-42,
16,
-54,
14,
17,
64,
-32,
39,
-33,
43,
-62,
-7,
-14,
4,
43,
-43,
-9,
13,
36,
42,
7,
-37,
6,
23,
-8,
-14,
31,
12,
10,
-12,
24,
30,
-40,
43,
88,
-39,
-28,
13,
8,
51,
15,
-44,
28,
72,
32,
-59,
-18,
6,
34,
-26,
-22,
21,
11,
-6,
49,
-32,
-60,
-15,
4,
-19,
-18,
-12,
42,
14,
8,
43,
24,
24,
80,
-10,
-41,
3,
6,
-42,
-14,
2,
29,
-47,
34,
19,
-20,
-41,
14,
-34,
39,
10,
-5,
34,
-8,
6,
29,
-25,
58,
5,
8,
-16,
46,
-63,
-13,
0,
-23,
-6,
-6,
44,
-29,
31,
0,
-45,
-32,
-6,
44,
20,
0,
75,
-34,
-8,
-34,
52,
-70,
3,
41,
25,
-27,
-7,
-13,
-75,
-13,
33,
63,
13,
-15,
10,
5,
29,
-21,
-32,
-27,
-15,
-5,
-14,
56,
35,
0,
35,
19,
-47,
-36,
-10,
21,
0,
6,
-30,
-60,
-1,
2,
21,
36,
3,
4,
12,
-33,
28,
-38,
0,
-7,
31,
-41,
12,
36,
3,
-6,
14,
-10,
14,
63,
14,
-30,
-33,
0,
26,
-57,
22
] |
Hooker, C. J.
The plaintiff was employed to operate a machine called a “jack,” used for drawing logs into defendant's saw-mill. This jack consisted of an endless chain, upon which the logs were held by iron spurs, and was operated by power applied through iron gearing to one of the pulleys, upon which the endless chain ran, by means of a belt running upon a friction pulley. This belt was loose, and was designed to run the jack when it was tightened, by bringing a third and movable pulley down upon the belt, which was done by pulling down a lever. When the lever was released, the effect was to remove this pulley, thereby loosening the belt, and stopping, the machine. The heavier the load upon the jack, the more power was required upon the lever to keep the jack in motion, owing to the tendency of the belt to slip upon the pulley. Logs drawn up by the jack were unloaded upon skids on either side of the jack, and from the skids to the carriages, upon which they were sawed. The skids being nearly full, plaintiff drew a log up with the jack, which, falling upon the skids, crowded another log against a log upon the saw carriage, which in some way caused one of the logs to be thrown against plaintiff, seriously injuring him. The cause of the accident appears to have been the failure to stop the jack. Plaintiff claims to have released the lever, and that the jack did not stop as it should have done.
Plaintiff’s counsel contends that the failure of the machine to stop when the lever was released raises a presumption of negligence, thereby making it necessary for defendant to show an absence of negligence upon its part. On the other hand, the defendant maintains that plaintiff’s failure to release the lever caused the accident. Proof was offered to the effect that the jack worked properly immediately after the accident, and the plaintiff himself testifies that it had worked properly for 60 days before and up to the time when he was hurt, when it suddenly failed to respond to the release of the lever. No proof was offered which tended to show that the machine was out of repair, unless the testimony that it failed to work was such proof.
Counsel for plaintiff contends that, if the jury should find that the accident resulted from the failure of the machine to respond to the release of the lever, it necessarily follows that it was from abnormal causes, and that in such case the law presumes negligence, and the onus is upon the defendant to show the cause of the accident, or at least that it was not due to its fault. He cites a number of authorities, several of which are New York cases, to sustain his view of the law- They seem to be cases of injury to passengers by carriers, or to property by ware-housemen, in both of which classes of cases the defendants are under obligations to exercise a high degree of diligence. Without implying that the rule contended for is the law of this State in such cases (a matter upon which we find it unnecessary to express an opinion), the doctrine cannot be applied to the facts in this case; the general rule being that negligence cannot be presumed from the fact of-the injury, and, though it may be inferred from facts proved, it cannot be based upon guesses or conjecture.
In Quincy Mining Co. v. Kitts, 42 Mich. 34, 41, an employé at a mine was injured by the fall of a bridge. The cause was unexplained. The Court held that, while it might be guessed or surmised that there was negligence somewhere, it did not extend beyond conjecture, and that, if the master was to be held liable under such circumstances as were disclosed by the record in that case, on mere guesses or inferences respecting the existence of fault somewhere, the rule that an employé assumes the ordinary risks of his employment would be wholly done away with. “When a servant demands from his master compensation for an injury received in his service it is necessary that he trace some distinct fault to the master himself.” 42 Mich. 39.
In Hewitt v. Railroad Co., 67 Mich. 61, an engineer was injured in a collision with a flat car, which half an hour previous had run from a side track onto the main tiack, and stopped partly off the track. Various theories were suggested as to what caused the car to run from the siding, but there was no proof. In answer to special questions the jury found that the wind blew it off, and that it was not intentionally put there by any one. The Court held that, while negligence might be inferred from circumstances proved, it could not from conjecture, and set aside the verdict. See, also, Early v. Railway Co., 66 Mich. 349; Miller v. Railway Co., 90 Id. 230; Robinson v. Wright & Co., 94 Id. 283; Toomey v. Iron & Steel Works, 89 Id. 249.
In the present case there is no evidence tending to show that the machinery was out of repair, unless it is to be assumed from the.alleged fact that it did not stop when the lever was released. On the contrary, all of the evidence showed that immediately before and after the accident it was in working order. If there, were anything to show that the machine had been out of order, and that its working was spasmodic or uncertain, there might be room for the contention that defendant was negligent in not keeping it in repair; but the mill was put in good order in the spring, and the jack had worked perfectly up to the time of the accident, clearly indicating that defendant could have had no notice that repairs were necessary. It had a man about the mill who looked after the machinery, and there was no proof that he was incompetent or neglectful. Miller v. Railway Co., 90 Mich. 230. Nor is there anything to indicate that an inspection would have prevented this accident. It is contended that on a former occasion tbe jack had drawn a log too far, but our attention is not called to any proof showing the cause. We cannot, therefore, say that there was any'occasion to warn the plaintiff “that this machinery was liable not to obey the lever, and not work as designed.” An effort was made to show that this accident might have been caused by the use of rosin upon the belt, but we are pointed to no proper evidence of such fact.
An examination of the record reveals no evidence of negligence on the part of defendant that would have justified the circuit judge in submitting the case «to the jury.
Judgment affirmed.
The other Justices concurred.
Curtis v. Railroad Co., 18 N. Y. 534; Edgerton v. Railroad Co., 39 Id. 227; Caldwell v. Steamboat Co., 47 Id. 282; Seybolt v. Railroad Co., 95 Id. 562; 16 Amer. & Eng. Enc. Law, 453. | [
22,
10,
21,
-12,
38,
-15,
-42,
-41,
-2,
65,
0,
-8,
-6,
-18,
12,
-20,
19,
-33,
-26,
42,
26,
-28,
36,
-56,
-23,
-41,
4,
-37,
-4,
31,
-12,
8,
31,
-2,
-31,
39,
27,
33,
-8,
-51,
-15,
31,
46,
-39,
31,
13,
17,
-2,
-24,
8,
47,
-58,
16,
-82,
-44,
4,
30,
60,
-75,
66,
41,
-20,
21,
-61,
-11,
17,
-1,
1,
-19,
-30,
-36,
35,
-24,
-16,
-14,
-7,
-10,
50,
-20,
12,
-34,
20,
10,
15,
-11,
-19,
14,
-8,
-8,
-39,
-30,
-5,
-47,
73,
-40,
41,
-50,
-12,
-58,
39,
2,
49,
-22,
-44,
-22,
-45,
9,
-32,
-46,
7,
21,
11,
-11,
72,
40,
-19,
43,
-33,
-18,
16,
10,
9,
-26,
-1,
-24,
38,
-20,
-9,
22,
-18,
10,
3,
-2,
-3,
40,
9,
-16,
20,
5,
12,
18,
32,
-17,
35,
-24,
-37,
-44,
68,
-47,
12,
13,
8,
-35,
-30,
54,
-42,
-53,
8,
38,
-32,
2,
-11,
-9,
1,
-14,
6,
-19,
-28,
-10,
25,
-3,
0,
-34,
-14,
63,
6,
6,
13,
-33,
-25,
-29,
-9,
7,
-1,
-8,
12,
69,
16,
-6,
31,
-1,
-4,
-77,
-33,
-14,
-11,
-2,
-36,
42,
-2,
52,
-31,
-4,
-54,
-7,
12,
16,
-14,
8,
-26,
16,
69,
-8,
-27,
-74,
24,
-16,
-32,
12,
17,
10,
15,
22,
-48,
-38,
-42,
-25,
31,
28,
28,
-27,
-20,
11,
-23,
11,
-52,
-3,
-43,
49,
-54,
-3,
1,
-37,
16,
-19,
-19,
-29,
-30,
-1,
-20,
11,
-1,
7,
2,
-10,
-10,
-9,
-24,
-35,
-11,
10,
16,
-29,
28,
45,
-34,
35,
40,
4,
10,
7,
-14,
50,
37,
-46,
-14,
-42,
11,
13,
-18,
8,
12,
-22,
-15,
-29,
-28,
-27,
-13,
-16,
26,
35,
-20,
25,
-10,
31,
23,
42,
1,
-37,
-43,
-4,
-35,
-13,
17,
24,
45,
-16,
0,
37,
13,
-20,
-40,
-20,
27,
14,
18,
3,
-7,
-33,
6,
-26,
24,
-8,
-24,
-3,
19,
16,
-20,
-3,
49,
11,
24,
-13,
65,
-12,
-13,
30,
49,
-32,
15,
-37,
58,
-21,
-15,
-48,
-34,
16,
-27,
43,
5,
13,
-36,
41,
-32,
25,
-6,
22,
-13,
-15,
42,
38,
-39,
-9,
12,
41,
-59,
10,
10,
-15,
31,
-18,
-6,
-8,
-2,
15,
-30,
-25,
30,
-1,
38,
25,
10,
16,
-67,
-4,
-19,
15,
-9,
-73,
1,
-15,
30,
36,
34,
-19,
-1,
-29,
-34,
-13,
-55,
-18,
-9,
13,
14,
-3,
-34,
-40,
4,
5,
-30,
-22,
-12,
-18,
-1,
-7,
-12,
49,
-2,
-21,
-19,
32,
14,
12,
-6,
32,
9,
-14,
-23,
-29,
-43,
24,
-42,
14,
-15,
-31,
-5,
-1,
56,
-3,
8,
-24,
-45,
-4,
-16,
11,
12,
31,
28,
44,
-66,
-13,
-4,
24,
5,
27,
35,
22,
-47,
10,
-1,
-9,
-9,
34,
34,
-1,
-28,
36,
-54,
35,
-24,
-5,
-25,
7,
-20,
1,
6,
-10,
3,
-36,
-59,
4,
47,
90,
41,
27,
-1,
32,
22,
22,
37,
28,
23,
-4,
-72,
-34,
29,
-17,
7,
19,
17,
-68,
-29,
12,
-41,
-2,
-63,
50,
7,
5,
55,
-40,
-17,
56,
-39,
-10,
55,
-40,
31,
7,
16,
8,
-63,
-12,
43,
-55,
-22,
-23,
-39,
-14,
-40,
74,
-8,
1,
6,
20,
-9,
-17,
-59,
-29,
-34,
-30,
19,
76,
20,
-49,
32,
-15,
-16,
-9,
49,
-27,
-27,
69,
34,
5,
50,
-25,
-38,
-16,
22,
-6,
-1,
3,
25,
57,
3,
-19,
-1,
38,
-60,
-14,
52,
39,
64,
2,
-18,
-23,
19,
-37,
-31,
-21,
-3,
-16,
-35,
-38,
-54,
-24,
40,
10,
22,
-25,
30,
1,
-42,
26,
13,
-21,
42,
32,
-55,
-25,
17,
-19,
5,
2,
-10,
4,
9,
-33,
16,
18,
10,
21,
-2,
-14,
-17,
-14,
12,
23,
10,
17,
26,
-68,
72,
-42,
-4,
19,
-36,
-8,
-88,
-79,
38,
-46,
28,
-31,
17,
35,
14,
-52,
27,
18,
8,
9,
-43,
-39,
12,
-39,
-1,
-24,
-62,
19,
-70,
76,
22,
13,
1,
-17,
-26,
-5,
-45,
-12,
-14,
40,
24,
-16,
69,
-30,
-27,
-48,
-6,
35,
10,
57,
-17,
-12,
-16,
-21,
15,
-5,
-35,
10,
-62,
68,
-22,
28,
34,
29,
22,
27,
-34,
6,
-12,
83,
-18,
18,
61,
51,
-7,
-12,
-46,
-1,
32,
19,
85,
47,
-6,
23,
-36,
24,
9,
39,
30,
28,
-11,
4,
26,
-2,
-54,
-31,
-31,
1,
-48,
13,
-27,
6,
8,
-14,
24,
-50,
-55,
-6,
-63,
-51,
21,
-21,
10,
-5,
-9,
1,
34,
14,
-15,
-3,
7,
-23,
-1,
6,
-42,
12,
-26,
12,
17,
6,
-21,
4,
-30,
33,
-23,
-28,
-6,
50,
8,
39,
-32,
-15,
41,
-10,
-57,
5,
10,
-7,
13,
25,
-20,
16,
41,
-13,
-22,
29,
32,
0,
-55,
19,
44,
-25,
-1,
-2,
13,
43,
-34,
63,
-15,
-6,
32,
-50,
-39,
-63,
26,
-8,
-24,
10,
2,
-6,
-2,
-13,
-51,
46,
17,
16,
-20,
8,
20,
-8,
-20,
-38,
2,
25,
7,
-29,
60,
-18,
50,
-44,
-26,
47,
-32,
20,
-14,
11,
27,
71,
-38,
31,
29,
47,
14,
-44,
-31,
-1,
-17,
5,
22,
50,
34,
50,
-37,
-25,
27,
-7,
45,
1,
27,
-14,
59,
-4,
-50,
15,
5,
-20,
2,
-16,
0,
-35,
-26,
6,
-19,
0,
22,
2,
-7,
41,
-3,
-3,
-22,
-16,
33,
-76,
-42,
33,
13,
-27,
14,
-7,
33,
-20,
-52,
-5,
-23,
33,
-5,
-24,
-19,
50,
0,
35,
-9,
3,
3,
32,
-29,
7,
48,
35,
41,
13,
-40,
-10,
-41,
-30,
-19,
33,
-12,
-3,
3,
-36,
69,
-3,
81,
-22,
12,
-36,
-24,
58,
22,
26,
26,
21,
-6,
2,
32,
13,
-31,
75,
19,
52,
-12,
-3,
-79,
-22,
3,
40,
3,
26,
4,
-48,
-32,
4,
-8,
8,
22,
10,
-27,
-11,
-5,
-11,
4,
2,
-25,
-10,
10,
37,
11,
5,
79,
20,
62,
-20,
15,
-34,
-35,
-5,
-12,
11,
-55,
49,
28,
18,
11,
-44,
15,
40,
-43,
-13,
25,
18,
-31,
2,
-29,
-14,
21,
-40,
26,
22,
5,
-11,
-30,
-34,
-39,
-4,
-13,
28,
-29,
-1,
62,
22,
28,
19,
35,
-44,
25,
-22,
39,
-28,
-1,
18,
4,
-7,
-36,
33,
-5,
67,
-13,
35,
27
] |
Lon&, J.
This is a bill of review filed in tbe circuit court for Gratiot county, in chancery. The cause was subsequently removed to the circuit court, in chancery, for Kent county, where it was heard upon the merits, and a decree entered granting the relief prayed for by complainant.
It appears that Addison P. Cook was on May 22, 1876, the owner in fee of the E. -J- of the S. W. i of section 4, township of Hamilton, Gratiot county. He then resided in Jackson county. William Kerr, who resided in Gratiot county, had previously purchased from Mr. Cook an 80-acre tract in the township of North Star, Gratiot county. He had paid for this 80 acres in full. On May 22, 1876, Kerr visited Mr. Cook at his home, and purchased from him the 80-acre tract in the township of Hamilton for $1,200, paying $27 down, and giving back a purchase-money mortgage for $1,173, bearing date the same day as the deed, covering both the North Star and Hamilton parcels. Cook gave Kerr a warranty' deed of the Hamilton land. Kerr immediately left for home, taking his deed with him. Mr. Cook sent the mortgage by mail to the register of deeds of Gratiot county. Kerr, early in the morning of the 24th, drove to the residence of William J. Marshall, of Gratiot county, several miles from his home, and about five miles from Ithaca, and made an arrangement with Marshall to deed him both parcels of land. Kerr went to Ithaca, had the deed made to Marshall, reciting a consideration of $2,000, and placed on record. He also put on record the deed from Cook to himself. These papers were recorded in the office of the register of deeds about 9 o’clock in the morning of the 24th. On the afternoon of the same day, the register of deeds received through the mail the mortgage given by Kerr to'Mr. Cook, and recorded it. August 1, 1882, Marshall sold the North Star 80 to Homer N. Pember. March 19, 1884, Pember sold to defendant French. February 18, 1888, French conveyed by warranty deed to defendant Mc-Boberts, and McBoberts conveyed to defendant Steinhammer. McBoberts, on his purchase, gave back to French a purchase-money mortgage, whiGh mortgage French after-wards assigned to defendant Kobert H. Lee.
It appears, further, that on May 8, 1884, defendant French filed a bill in the circuit court, in chancery, of Gratiot county, against Addison P. Cook, to cancel the mortgage given by Kerr to Gook. Subpoena was issued, and personally served on Mr. Oook. September 13, thereafter, Cook entered his appearance in the cause, but no notice was served on the complainant’s solicitors; and on September 19 affidavits of non-appearance and regularity were filed by complainant’s solicitors, and upon which a decree was entered December 12, 1884, canceling the Cook mortgage. It was after the decree was entered that French deeded to McKoberts.
Addison P. Cook died intestate 'April 15, 1889, but before his death he had filed a petition for leave to file a bill of review in the proceedings commenced by French, which leave was granted to his administrator, who filed this bill June * 1, 1890. Proofs were taken before a commissioner, and on the hearing the court below made a decree setting aside the decree made in 1884, canceling the Cook mortgage, and also decreeing that the Cook mortgage was a valid and subsisting lien upon the premises, having priority in point of time and in law to the deed given by Kerr to Marshall. The court below further found that Marshall, at the'time of taking the conveyance from Kerr, had notice of the Cook mortgage, and was not. a bona ficle purchaser of the premises as against the mortgage. French alone appeals.
The decree below must be affirmed.
1. It is evident that Marshall, when he took the deed from Kerr, had actual knowledge of the Cook mortgage-We need not set out the evidence which leads to this conclusion. Kerr testifies to it, and, while Marshall denies all knowledge of it, yet we think the manner in which the deed was made, and corroborating circumstances, strongly show the fact.
3. The proceedings by French, under his bill to set aside the Cook mortgage, were irregular and void. The affidavit of non-appearance was filed, and the proceedings to default were taken, after Mr. Cook had caused his appearance to be entered, and no notice was given him of any proceedings thereafter. The first notice he had was that another parcel of land belonging to him had been sold to satisfy the costs in that case.
3. Mr. Marshall, having notice of the Cook mortgage, was not a good-faith purchaser, as against the mortgage.
4. When French acquired his title, the mortgage from Kerr to Cook was on record in the office of the register of deeds, and this was notice to him of the claim that Cook made upon the premises. He therefore took his title subject to any equities which Cook had under the mortgage.
5. It is claimed that Cook was guilty of laches in not commencing proceedings to enforce the priority of his mortgage lien over the Marshall deed. We think no such laches have been shown. He insisted to Marshall that he should claim such priority. Marshall held the title until 1883, and after French acquired it, and attempted by his proceedings to remove the cloud and cancel the mortgage, Mr.' Cook appeared in the cause. He was guilty of no misconduct, nor did he encourage any of the parties that he was making no claim. There are many excusing features showing why Cook did not sooner move, if, in fact, he was bound to assert his rights sooner. Marshall threatened suit, but never commenced it, though Cook asserted his rights. The case is governed by Mickle v. Maxfield, 43 Mich. 304; Johnson v. Shepard, 35 Id. 115. The court below, in granting leave to file a bill of review, did not find any such laches, and we fail to discover from the circumstances why such should be imputed to him.
Those who purchased from French are resting satisfied with the decree below. They have not appealed. They, apparently, are willing to rely upon the covenants in their •deeds from French. But, were this not so, they could claim no immunity, as subsequent purchasers, from the •effect of the subsequent order setting the decree aside. Ritson v. Dodge, 33 Mich. 463. Purchasers buy at their own risk as to the validity of a decree. McGoren v. Avery, 37 Mich. 120.
The decree of the court below must be affirmed, with costs.
McGrath, Grant, and Montgomery, JJ., concurred. Hooker, C. J., did not sit. | [
6,
17,
-4,
6,
-27,
15,
33,
44,
25,
2,
-21,
-21,
-1,
26,
23,
23,
-40,
-14,
-10,
-6,
21,
-25,
-50,
-30,
20,
-49,
0,
17,
-24,
-22,
-5,
-6,
-61,
40,
21,
0,
13,
52,
5,
8,
-6,
-27,
15,
-18,
31,
-1,
-22,
-61,
39,
13,
15,
-7,
25,
-9,
6,
44,
-22,
3,
-32,
-27,
10,
-25,
12,
0,
11,
16,
-1,
-2,
33,
-78,
-5,
-18,
-8,
1,
53,
8,
-24,
-42,
-31,
-27,
-26,
-40,
26,
0,
2,
-57,
8,
-20,
-18,
40,
12,
0,
-25,
-35,
48,
-20,
-3,
5,
20,
-12,
-33,
-54,
-22,
1,
18,
11,
-70,
-25,
-7,
11,
-23,
-15,
29,
-28,
-3,
-32,
10,
-45,
50,
0,
-14,
16,
32,
-57,
15,
-6,
-43,
-42,
-19,
-4,
-4,
4,
-22,
-6,
54,
11,
10,
-55,
-50,
-44,
-15,
-2,
-16,
-11,
-28,
-17,
9,
-81,
32,
-13,
-22,
43,
30,
23,
27,
-26,
73,
15,
5,
-28,
5,
-35,
4,
-11,
-10,
-35,
11,
21,
-30,
58,
44,
34,
-23,
40,
22,
18,
55,
-52,
-24,
30,
19,
15,
-2,
-12,
-12,
-2,
-5,
-3,
-56,
47,
-4,
-28,
-1,
-58,
-52,
37,
-18,
-13,
-32,
-8,
-13,
-34,
8,
-29,
35,
-27,
77,
-9,
-50,
82,
-28,
4,
6,
-25,
-18,
52,
-13,
-30,
36,
-42,
52,
42,
0,
14,
10,
-59,
56,
12,
12,
-12,
-37,
3,
16,
-13,
-33,
12,
31,
-22,
-7,
28,
42,
0,
-5,
0,
-10,
34,
-29,
-26,
-21,
42,
-48,
-1,
-21,
-8,
5,
47,
22,
31,
-16,
-13,
13,
-9,
-41,
-7,
-4,
-24,
-33,
-6,
3,
20,
-54,
18,
44,
4,
-58,
15,
27,
-46,
15,
30,
39,
-27,
-3,
56,
40,
48,
12,
-16,
-34,
-26,
21,
-41,
3,
9,
-3,
10,
-38,
-10,
21,
-26,
10,
-7,
-46,
-29,
-3,
-30,
-11,
0,
27,
-35,
12,
28,
-34,
-8,
23,
-67,
6,
14,
13,
-33,
33,
34,
-25,
-17,
-17,
-3,
15,
-5,
-26,
26,
29,
-27,
-19,
-22,
7,
-14,
57,
25,
38,
-2,
49,
-24,
-19,
48,
-2,
-2,
15,
49,
7,
-24,
-8,
-17,
16,
52,
-42,
-6,
-5,
40,
30,
40,
0,
-36,
33,
-33,
8,
-9,
-2,
-54,
17,
-5,
0,
21,
64,
-63,
31,
-8,
-40,
-29,
-21,
17,
0,
22,
22,
37,
15,
5,
-27,
6,
-86,
6,
-7,
-40,
-14,
2,
32,
-28,
17,
-56,
-35,
-39,
-4,
20,
-6,
11,
-57,
112,
-40,
14,
66,
-22,
84,
-22,
29,
-15,
25,
-7,
49,
43,
25,
25,
5,
3,
29,
27,
-17,
20,
10,
42,
-1,
-2,
-24,
21,
23,
60,
67,
8,
-18,
15,
27,
27,
-21,
13,
34,
26,
-28,
-20,
-33,
0,
42,
7,
-7,
54,
7,
49,
-45,
20,
35,
-24,
-19,
-4,
9,
7,
75,
28,
7,
-8,
-35,
24,
-19,
4,
-15,
44,
33,
-34,
-32,
-25,
45,
-3,
9,
8,
2,
-53,
-3,
0,
-17,
-72,
-75,
27,
-8,
3,
27,
-43,
-21,
-10,
0,
-33,
34,
5,
24,
24,
-12,
-2,
-7,
-31,
3,
-12,
-9,
7,
15,
62,
18,
-24,
26,
-33,
7,
9,
32,
16,
-17,
18,
1,
44,
-76,
3,
-14,
-30,
13,
9,
-10,
-40,
-27,
49,
-48,
-33,
-83,
-10,
-22,
34,
-8,
-30,
-31,
-6,
16,
27,
-79,
49,
-9,
-3,
-12,
-28,
-33,
9,
23,
16,
-82,
16,
-26,
-49,
-4,
2,
-25,
-56,
-15,
-30,
5,
0,
0,
-87,
-29,
19,
5,
-49,
14,
5,
15,
-63,
-90,
-35,
-4,
43,
3,
-11,
3,
-25,
26,
-6,
30,
3,
38,
13,
-49,
31,
-17,
3,
-36,
-2,
-24,
19,
21,
-38,
-36,
32,
-16,
-22,
40,
-4,
-26,
23,
0,
21,
-35,
19,
9,
57,
7,
-14,
4,
-15,
-34,
0,
33,
-58,
-5,
-58,
27,
-4,
-24,
8,
-25,
30,
47,
-1,
27,
25,
-46,
38,
-6,
18,
-36,
-1,
-7,
-15,
-76,
11,
-6,
51,
-18,
35,
4,
-2,
-11,
58,
-1,
56,
-19,
20,
34,
18,
-9,
-39,
97,
-22,
-17,
26,
19,
-59,
16,
58,
28,
64,
-39,
-11,
18,
7,
-40,
28,
-5,
57,
26,
16,
40,
17,
61,
30,
11,
-12,
44,
-3,
-28,
-8,
7,
74,
15,
3,
-24,
-9,
-33,
18,
-22,
-5,
7,
10,
-11,
38,
18,
-10,
-11,
-54,
0,
-23,
25,
12,
34,
18,
12,
10,
22,
30,
15,
-10,
8,
-79,
-17,
-86,
-5,
-29,
1,
-27,
-22,
-6,
-28,
3,
-21,
17,
-29,
44,
28,
5,
9,
-31,
-23,
-28,
-9,
31,
-5,
-4,
27,
67,
-5,
-14,
70,
25,
-9,
2,
1,
-4,
15,
20,
-42,
15,
55,
-32,
-28,
-43,
-3,
17,
-27,
-20,
-27,
-13,
16,
22,
-14,
-10,
17,
-1,
-5,
13,
13,
-47,
20,
-73,
-15,
-3,
7,
-20,
32,
4,
3,
-16,
9,
-25,
20,
-68,
-25,
-6,
53,
-59,
26,
-32,
-13,
12,
-31,
42,
10,
29,
9,
42,
-9,
16,
-18,
22,
-10,
-20,
-19,
-10,
46,
-9,
4,
6,
-9,
5,
39,
39,
27,
-9,
8,
22,
-21,
-1,
25,
-17,
20,
-33,
71,
-52,
11,
-9,
-3,
26,
-79,
22,
7,
-39,
18,
-14,
39,
27,
20,
-72,
0,
-38,
11,
10,
-36,
4,
11,
3,
14,
-32,
41,
-13,
-35,
-4,
-4,
-11,
38,
2,
-19,
1,
-20,
-3,
-32,
37,
47,
36,
51,
-58,
0,
-33,
-9,
2,
-73,
15,
-13,
-6,
-13,
-15,
-13,
15,
-9,
-21,
-24,
27,
-30,
21,
23,
-34,
-22,
-32,
-45,
8,
-27,
1,
-28,
-7,
39,
-13,
25,
41,
-16,
1,
14,
-23,
-61,
0,
-19,
-11,
28,
13,
78,
49,
-34,
28,
-33,
0,
6,
-11,
-15,
47,
1,
2,
-5,
20,
-28,
-15,
11,
-1,
-28,
40,
81,
37,
-10,
-5,
-44,
-5,
25,
4,
-20,
28,
-32,
-44,
20,
27,
-4,
-8,
-75,
-23,
25,
20,
-66,
33,
24,
-52,
-7,
6,
-9,
13,
-4,
-9,
-4,
-11,
-60,
1,
52,
39,
68,
47,
64,
-3,
-25,
-61,
-1,
16,
-44,
7,
-10,
-33,
-16,
30,
31,
-2,
61,
4,
70,
-4,
3,
12,
-29,
-6,
13,
7,
42,
9,
34,
-18,
24,
-4,
-42,
11,
-32,
-25,
2,
21,
36,
8,
19,
-52,
65,
0,
4,
-10,
-33,
86
] |
Montgomery, J.
This is an action of -replevin to recover possession of 43 sheep. One Zebina McOolman owned and leased to the plaintiff the south-east quarter of section 35, township of Mussey, county of St. Clair. He also leased to the plaintiff and gave him possession of 43 sheep, to be kept by the plaintiff on the farm for one-half of the wool and increase. March 5, 1891, defendant, who was township treasurer of the township of Mussey, took the 43 sheep from the plaintiff’s possession, drove them to Capac, 3 or 4 miles from the residence of plaintiff, and offered them for sale, to satisfy a special tax for a drain, called the “ Doty Drain,” against the land occupied by Whittaker. After forbidding Fuller to sell the sheep, and after demanding them, plaintiff brought replevin.
It was conceded by counsel for the defendant on the settlement of the bill of exceptions that if the plaintiff, under the proofs and his theory of the case, had a right to attack the validity of the Doty drain proceedings, the case should be reversed, and sent back for a new trial.
The learned circuit judge instructed the jury that, if the plaintiff was the true owner of the property, inasmuch as there was no tax or assessment against him, he might maintain, replevin. But he further charged that,—
“If the officer finds the'property claimed by some person as lessee, for instance, for the purpose of increase, as is claimed in this' case, while the true owner is behind, and he himself could not have taken the property away, yet the law steps in, and makes this property liable to seizure by a public officer for taxes against the owner, and does not let it be avoided by such a contract; otherwise it might be put out of the law’s reach, and in that way he (the owner) would avoid taxation and avoid the payment of taxes by simply leasing or disposing of his property in that way.”
He further charged the jury that—
“Mr. Whittaker in this suit asserts absolute property and ownership and right of possession by his writ, and now the question comes before you to determine whether he in any way, being the owner, and being entitled to the possession, has waived the right of possession, so that he is now estopped by the law from asserting his claim of ownership, if he had one; and that is the main question I shall submit to you.”
It is claimed by the defendant that when he went to make the levy to satisfy the tax Mr. Whittaker pointed out the property in question as the property of Mr. McOol man, and that plaintiff is therefore estopped from now bringing this action of replevin while the officer is proceeding to satisfy this tax. After giving an appropriate instrue-. tion upon this subject, the learned circuit judge further .said to the jury:
“Now, in this case, if you find for the plaintiff that Whittaker’s theory is correct, and that he gave no right or permission to seize them, and that he owned the sheep, and was entitled to their possession, and did not give a right or permission in any way to Mr. Fuller to take them, then you will find a verdict for the plaintiff, and assess his damages in that case at such sum as you find to have been proved before you. But if, on the other hand, you shall find that Mr. Fuller went there in good faith, and sought to find out the true condition of the property, and was misled, if the property was Whittaker’s, or, if not Whittaker’s, that he was told by Whittaker it was McColman’s, and he, in pursuance of that, made the levy, then Mr. Whittaker himself cannot maintain this suit.”
He further instructed the jury as follows:
“ Now, remember that in this case it depends upon who was the owner of the property. It is not claimed that Mr. Whittaker was the absolute owner; only that he was the conditional owner. You heard what I said in reference to that, in the first place, that no man can put his property beyond the reach of taxes; but, if he can, then, did Mr. Fuller levy on this property in good faith, having-reason from what was said by Mr. Whittaker to believe it was the property of Mr. McColman, and took it away? and in that case he is entitled to levy, or, if you find that the property was not Mr. Whittaker’s; in either of those cases you will find for the defendant, and assess his damages to the value of the property, as I say.”
We think that the jury must have understood from these instructions that, in order to entitle the plaintiff to recover, it must appear that he was the absolute owner of the property. This is not the law. See Cobbey, Rep. § 137, and Hunt v. Strew, 33 Mich. 85, in which case it was held that the lessee of personal property is the proper plaintiff in reiffevin. The plaintiff having the right, then, to bring replevin, and it being conceded that if he had the right to attack the validity of the tax he is entitled to recover, it follows that the case must be reversed; for it must be held that one entitled to the possession of personal property sought to be taken to satisfy a tifx against, a third person may defend his possession against the officer. Tousey v. Post, 91 Mich. 631, 634, and cases cited.
The question of estoppel was in the case, and, apart from the erroneous instruction which placed a burden upon the plaintiff to show a full title in himself, was properly submitted to the jury. Nor is the question presented here as to whether the officer had the right to levy upon an interest of McColman in the property, and to sell such interest as he had, as it not only does not. appear that such an attempt ivas made, but the concession of defendant would preclude him from raising this question on this hearing.
The judgment will be reversed, and a new trial ordered^
The other Justices concurred. | [
17,
22,
-12,
-27,
-23,
23,
19,
-7,
6,
63,
-13,
-37,
37,
31,
40,
-16,
13,
-48,
-20,
15,
16,
-16,
-1,
-55,
46,
-10,
16,
-46,
-46,
7,
-25,
17,
-19,
4,
7,
-12,
-33,
15,
-15,
-67,
-19,
-24,
21,
-16,
18,
0,
-13,
12,
17,
-8,
9,
-33,
15,
-16,
-1,
-35,
-37,
5,
-20,
35,
7,
-32,
16,
22,
18,
43,
1,
-15,
-31,
-56,
11,
6,
-36,
-30,
14,
-9,
11,
5,
-7,
26,
22,
-15,
47,
-4,
-44,
-10,
-15,
-8,
-26,
-5,
2,
-16,
-17,
38,
-7,
50,
44,
24,
-6,
-7,
-44,
11,
16,
45,
-30,
-22,
-6,
-35,
-33,
-6,
45,
-16,
25,
-27,
31,
-32,
-33,
-23,
-16,
18,
16,
-19,
11,
1,
-26,
-19,
14,
-26,
-15,
31,
5,
-35,
-6,
-31,
17,
-1,
-41,
9,
35,
39,
32,
12,
-38,
3,
-33,
15,
0,
-31,
24,
17,
-18,
46,
47,
22,
15,
-4,
21,
7,
4,
19,
-3,
8,
-11,
-8,
-43,
6,
11,
-20,
14,
13,
27,
-20,
-31,
19,
1,
-14,
-8,
-1,
2,
-47,
-26,
-1,
25,
-19,
-30,
-16,
-51,
16,
4,
43,
7,
-22,
-1,
-33,
-16,
33,
-2,
1,
-38,
0,
16,
51,
-4,
-6,
39,
-29,
51,
-28,
-4,
-58,
-48,
0,
-47,
-28,
-11,
14,
37,
-25,
5,
-62,
28,
-5,
15,
27,
-54,
-52,
-4,
3,
67,
-16,
-10,
11,
55,
0,
-24,
-38,
-33,
42,
-20,
-11,
-25,
0,
-18,
-51,
79,
-8,
5,
-16,
-21,
81,
-32,
-32,
-18,
35,
18,
-8,
-14,
-6,
21,
-24,
-28,
15,
0,
-14,
48,
-30,
9,
8,
36,
1,
-8,
20,
36,
31,
-46,
-41,
-43,
11,
6,
-4,
57,
-31,
-34,
6,
-1,
32,
-33,
29,
-26,
10,
-10,
-10,
0,
-17,
12,
43,
1,
-19,
52,
16,
11,
25,
16,
19,
53,
13,
-12,
-21,
21,
3,
-15,
-11,
-16,
23,
4,
-26,
19,
21,
2,
-37,
15,
-53,
39,
20,
9,
6,
45,
-15,
-7,
68,
3,
-54,
-1,
-21,
34,
27,
30,
-87,
-57,
-29,
40,
-3,
63,
-2,
19,
-17,
-11,
-39,
-23,
26,
-33,
18,
5,
63,
30,
-25,
3,
52,
-15,
9,
68,
48,
-20,
-5,
8,
-5,
-37,
-63,
-28,
9,
56,
3,
36,
16,
12,
24,
-11,
-41,
-67,
0,
20,
-55,
-27,
3,
45,
-48,
-10,
9,
-30,
-1,
-32,
33,
28,
39,
9,
-19,
38,
-37,
-24,
-36,
22,
56,
2,
-10,
7,
-28,
-8,
39,
3,
12,
-40,
43,
-4,
-19,
-6,
-8,
8,
-69,
5,
8,
35,
-11,
44,
-85,
72,
-1,
8,
-6,
-5,
7,
16,
-24,
29,
10,
45,
-11,
-24,
0,
-24,
33,
0,
15,
-17,
26,
-10,
38,
-35,
37,
17,
-34,
-5,
-12,
-69,
-63,
3,
41,
0,
-26,
63,
1,
-5,
-18,
13,
-28,
8,
-38,
8,
6,
88,
30,
15,
59,
37,
-46,
10,
4,
26,
31,
9,
7,
28,
-22,
-21,
-64,
0,
-11,
-68,
-17,
5,
58,
2,
27,
-14,
25,
37,
10,
40,
21,
57,
71,
18,
17,
-7,
16,
1,
43,
13,
-38,
29,
8,
-5,
5,
15,
0,
-9,
-9,
15,
-16,
41,
42,
-14,
-30,
-13,
-10,
48,
17,
17,
14,
-17,
36,
-34,
-29,
-14,
26,
-25,
-33,
42,
4,
-17,
8,
-15,
65,
26,
-5,
-24,
18,
54,
-56,
-35,
8,
-34,
-32,
15,
42,
-40,
17,
-38,
-55,
37,
-1,
8,
-29,
23,
-29,
-17,
-62,
1,
-12,
20,
18,
12,
-16,
42,
24,
52,
53,
-28,
-43,
-6,
57,
14,
-20,
6,
-40,
75,
82,
-8,
2,
5,
-39,
33,
20,
-22,
-8,
11,
-20,
23,
37,
-18,
9,
-21,
12,
-43,
-37,
-10,
-27,
-33,
-26,
-73,
15,
-7,
46,
45,
-3,
3,
22,
-19,
-22,
26,
-30,
9,
-37,
-8,
0,
-46,
-42,
13,
-31,
-11,
-2,
-42,
-41,
-19,
54,
-42,
26,
-8,
-11,
-19,
-35,
-42,
-41,
-23,
-4,
12,
-38,
-10,
-33,
-23,
-7,
-28,
43,
1,
-16,
1,
-17,
34,
-5,
41,
9,
64,
-1,
-6,
-32,
-2,
-41,
6,
-40,
-73,
6,
5,
-55,
0,
0,
-8,
-70,
6,
15,
0,
17,
-24,
-33,
-12,
-21,
15,
35,
0,
9,
0,
14,
9,
-27,
7,
-39,
-34,
-31,
8,
-9,
0,
26,
11,
33,
21,
2,
46,
32,
13,
4,
-32,
-32,
17,
-8,
37,
28,
-9,
34,
1,
24,
41,
7,
-6,
-14,
28,
-49,
63,
-51,
-60,
-16,
-13,
28,
-14,
33,
-8,
-31,
10,
34,
52,
69,
-6,
-29,
12,
11,
-27,
13,
-1,
-14,
-18,
-22,
12,
-20,
-30,
-15,
47,
18,
7,
-8,
-19,
-12,
-46,
1,
9,
17,
-8,
1,
-18,
9,
24,
-74,
-21,
7,
-14,
52,
-14,
-54,
31,
-1,
23,
0,
26,
0,
-5,
-38,
18,
-47,
-54,
10,
3,
-22,
3,
16,
-14,
-25,
-24,
0,
-27,
-22,
33,
-31,
-10,
11,
-34,
24,
-50,
10,
8,
14,
22,
-13,
-59,
29,
-50,
0,
24,
-12,
-24,
6,
-12,
26,
-20,
11,
-2,
6,
-27,
0,
16,
19,
25,
42,
-36,
0,
3,
0,
-66,
23,
-17,
-10,
19,
-33,
-33,
19,
-46,
-92,
-25,
3,
-8,
25,
-16,
13,
-52,
-10,
-36,
45,
-17,
37,
-30,
-16,
29,
16,
30,
-1,
25,
-2,
3,
28,
33,
10,
-4,
0,
-29,
0,
10,
-11,
-97,
9,
46,
32,
-9,
33,
16,
9,
-9,
-35,
-28,
5,
-33,
1,
3,
-32,
-3,
19,
46,
9,
25,
31,
-20,
7,
10,
-7,
-10,
-75,
17,
-32,
-27,
-8,
15,
-62,
-7,
14,
60,
19,
-21,
-27,
-42,
-16,
-20,
-6,
-50,
-19,
5,
-14,
-14,
8,
-37,
0,
-15,
19,
-45,
50,
-22,
44,
-29,
19,
-16,
1,
20,
-6,
30,
-78,
15,
-18,
9,
20,
-26,
33,
10,
59,
27,
6,
7,
21,
-34,
22,
83,
41,
34,
40,
-15,
-31,
-49,
-32,
20,
20,
11,
-6,
26,
-15,
25,
47,
-3,
30,
-13,
-28,
-18,
-9,
13,
42,
21,
10,
-8,
-42,
18,
-53,
-56,
-1,
16,
3,
21,
-20,
-78,
-44,
55,
34,
21,
15,
-34,
14,
-35,
4,
11,
-52,
72,
-13,
-6,
-11,
38,
0,
76,
49,
29,
-53,
-66,
17,
-6,
28,
10,
11,
-6,
45,
-21,
0,
34,
16,
17,
72
] |
Grant, J.
The Attorney General asks leave of this Court to file an information in the nature of a quo warranto' against the Detroit Suburban Kailway Company. The petition was filed March 7, 1893. The reason assigned for the joetition is that said railway company is exercising a franchise and privilege not conferréd by law, in that the permit given by the township board is void upon its face, because it purports to grant an exclusive and perpetual right. .The authority conferred by the township board of the township ■of Greenfield is attached to the petition, and reads as follows:
“ Franchise eor Woodward-Avenue Street Kailway, or I-Iigiiland Park Koad.
“At a session of the township board of Greenfield, county ■of Wayne, and State of Michigan, held on the 17th day of October, A. D. 1885, at which a quorum of the board was present, the following preamble and resolution was submitted, and, after a. careful consideration, was unanimously .adopted:
“ ‘ Whereas, Frank E. Snow and William A. Jackson, of Detroit, Michigan, contemplate the construction of a railway on Woodward avenue, commencing • at the railroad ■crossing, and running thence north-westerly along, upon, or adjacent to the Detroit & Birmingham Plank Koad to ■the six-mile stake on said road; and
“ ‘Whereas, the construction of said railway is deemed to be a valuable improvement to the property along said road, and to the township of Greenfield: '
“ ‘ Therefore, resolved, that for and in consideration of the sum of one (1) dollar to the township board in hand paid by the said Frank E. Snow and William A. Jackson, the ¡receipt whereof is hereby acknowledged, we, the township board, hereby grant, convey, and quitclaim unto the said Frank E. Snow and William A. Jackson, their successors .and assigns, the exclusive and perpetual right and privilege of constructing, maintaining, and operating a railway for the transportation of passengers along and upon said road as aforesaid, and hereby authorize the execution of an instrument conveying the said right and privilege to the ¡said Snow and Jackson for the perpetual use of said roadway for the purpose of said railway, together with the Tight to construct and operate all necessary switches and appurtenances thereto belonging: Provided, that said railway shall be constructed at least 10 feet east of the west line of said highway, and also that said railway shall at all times maintain an open ditch or suitable drainage along said road, with all necessary sluiceways and other conveniences for the proper drainage of said road, and the property abutting thereon; and provided, that the rate of fare on said railway shall not exceed five (5) cents for each passenger per trip.’”
The authority conferred by statute upon the township board is found in How. Stat. § 3548, and is as follows:
“Any such company may extend, construct, use, and maintain their road in and along the streets or highways of any township adjacent to said city or village, upon such terms and conditions as may be agreed upon by the company and the township board of the township, which agreement, and the acceptance by the company' of the teims thereof, shall be recorded by the township clerk in the records of his township.”
How. Stat. § 8646, authorizing the Attorney General to file informations of this character, reads as follows:
“An information in the nature of a quo warranto may .also be filed by the Attorney' General, upon his own relation, or upon the relation of any private party, on leave granted, against any corporate body, whenever such corporation shall—
“1. Offend against any of the provisions of the act or acts creating, altering, or renewing such corporation; or
“2. Violate the provisions of any law, by which’such corporation shall have forfeited its charter by misuser; or
“3. Whenever it shall have forfeited its privileges -and franchises by nonuser; or
“ 4. Whenever it shall have done or omitted any acts which amount to a surrender of its corporate rights, privileges, and franchises; or
“5. Whenever it shall exercise any franchise or privilege not conferred upon it by law.
“ And it shall he the duty of the Attorney General, whenever he shall have good reason to believe that the same can be established by proof, to file such information in every case of public interest, and also in every other case in which satisfactory security shall be given to indemnify the people of this State against all costs and expenses to be incurred thereby."
Snow and Jackson and others organized a corporation known as the Highland Park Eailway Company, May 11, 1886, and Snorv and Jackson then transferred all their rights to said company. This company constructed the road, and operated it till February 1, 1893, when it transferred all its franchises, rights, and property to the respondent.
No claim is made that either the Highland Park Eailway Company or the respondent was not duly organized, or that the road was not constructed in full compliance with the terms of the resolution of the township board, or that the respondent or its assignor has violated any of the conditions thereby imposed. No person living in the-locality has made complaint. The municipality makes no objection. The sole contention of counsel for the relator is that the case falls within subdivision 5 of section 8646, above quoted, for the reason that the franchise, conferred upon a legal corporation, in terms extended beyond the life -of that corporation. If the 30 years had expired, a different question might be presented. The sole question is whether the petitioner establishes a case of such public interest as to justify the interference of the State.
The statute confers the power upon the township board to grant the right, which may be exercised for a period of 30 years. The respondent is exercising that right within the period of its life, and after the construction of its plant, and road at great expense, and the use thereof for nearly seven years. In Maybury v. Gas-Light Co., 38 Mich. 154, it was sought to deprive the ■ corporation of its franchise for violations of the conditions under which the franchise was granted. The Court said:
“But the permission to lay these pipes do.es not differ in any respect from that required lor laying railways over land, or ditches through it. It is not a State franchise, but a mere grant of authority, which, whether coming from private owners or public agents, rests in contract or license, and in nothing else. A violation of the contract, ■or an unauthorized intrusion, must be redressed, as all •ordinary wrongs are redressed, by the usual legal remedies. It in no way concerns the State whether the power is granted or withheld, nor whether the corporation has or has not fulfilled its agreements. The injured party has a remedy for any grievance, but the State is no more interested than it would be in the question whether or not a railroad company has lawfully acquired its right of way.”
This case was cited with approval in People v. Railway Co., 92 Mich. 522, in which it was said:
“The right' being such an one as the common council had a- right to grant, and the common council having .assumed to grant the right, the case presented is not such .an one as calls for the exercise of the jurisdiction of this •Court in a public proceeding instituted by quo toarranto.”
It is true that in the present case the question relates to the validity of the franchise or privilege as granted, while in the former cases the forfeiture of the franchises was involved. But we do not think that the petition presents a case of such public interest as to justify the granting of the application. It is a matter of local interest, in which the municipality and its people are interested. So long as they are content, we do not think ihe State is interested.
Application denied.
The other Justices concurred. | [
41,
32,
29,
-7,
3,
13,
34,
28,
26,
0,
-2,
-43,
1,
18,
29,
63,
-12,
-3,
8,
22,
36,
16,
27,
-61,
-37,
21,
13,
7,
-49,
2,
27,
-42,
-35,
45,
-12,
26,
92,
-24,
16,
-5,
-23,
16,
-14,
37,
27,
-7,
25,
-38,
56,
-63,
-19,
101,
1,
5,
-47,
-8,
10,
-24,
-10,
11,
-49,
-23,
57,
30,
-21,
2,
9,
46,
7,
-51,
9,
85,
-21,
-3,
47,
0,
2,
-40,
15,
42,
15,
23,
14,
-46,
-28,
16,
6,
1,
-13,
33,
18,
-44,
-22,
-2,
29,
24,
29,
-14,
-44,
-12,
-14,
77,
46,
-18,
9,
-11,
30,
-14,
49,
25,
-8,
0,
-5,
-70,
-34,
-9,
10,
0,
30,
-66,
-8,
-68,
-9,
36,
-22,
-33,
36,
-36,
-38,
11,
51,
-24,
2,
37,
36,
9,
-18,
3,
26,
53,
11,
54,
12,
2,
13,
2,
15,
0,
1,
-17,
47,
-25,
42,
-3,
-1,
39,
14,
16,
61,
41,
54,
48,
20,
-13,
-63,
-3,
-47,
1,
18,
50,
-11,
8,
1,
-76,
-8,
20,
-16,
105,
-10,
33,
7,
45,
-2,
-23,
-4,
-42,
33,
-16,
9,
-72,
31,
-39,
-8,
-16,
-53,
40,
4,
-45,
-18,
-24,
4,
-46,
-13,
19,
-12,
-43,
-31,
14,
-17,
30,
-14,
41,
4,
-10,
35,
2,
10,
-8,
48,
-48,
70,
0,
24,
58,
-39,
-1,
-31,
-21,
-61,
-27,
22,
-10,
3,
16,
15,
5,
-4,
-19,
1,
8,
-6,
41,
-34,
-62,
12,
14,
-35,
-76,
-24,
5,
7,
13,
-46,
-40,
-20,
-7,
-2,
-11,
37,
-14,
-13,
51,
-33,
0,
8,
-28,
-30,
8,
-20,
7,
-18,
-7,
8,
-13,
-27,
1,
85,
-18,
-30,
15,
-1,
-69,
-68,
44,
30,
32,
-43,
-21,
-11,
32,
29,
-8,
27,
58,
-7,
32,
34,
26,
-5,
2,
41,
63,
-23,
-5,
45,
10,
-11,
-15,
32,
18,
48,
24,
-26,
-16,
-7,
5,
48,
-18,
54,
-13,
-4,
3,
-25,
-9,
36,
16,
17,
-5,
-53,
23,
86,
-31,
-6,
-11,
-60,
17,
32,
-32,
-20,
-24,
32,
31,
40,
31,
16,
-12,
-2,
-52,
-38,
7,
-41,
-33,
20,
-22,
-31,
40,
1,
-48,
2,
19,
38,
55,
13,
-15,
16,
-12,
-100,
-1,
2,
-4,
7,
-13,
-37,
24,
6,
-2,
18,
-19,
-51,
70,
-46,
-22,
-5,
33,
52,
29,
-8,
21,
-3,
16,
-8,
-18,
2,
8,
-14,
-42,
28,
43,
-12,
-55,
-14,
17,
5,
64,
-28,
-16,
56,
74,
54,
52,
-7,
45,
6,
-46,
11,
-2,
1,
0,
-17,
17,
14,
-9,
-7,
-30,
27,
2,
18,
33,
18,
4,
-14,
-29,
56,
-12,
12,
-24,
-26,
-92,
-34,
-54,
-8,
-4,
24,
69,
-17,
-72,
-53,
-1,
-53,
-15,
24,
36,
-50,
30,
-72,
-17,
4,
60,
32,
67,
31,
4,
-28,
3,
-18,
35,
0,
17,
18,
50,
-27,
67,
-26,
-15,
-62,
-75,
3,
0,
45,
20,
-34,
-19,
-14,
52,
-44,
-41,
36,
9,
24,
46,
20,
12,
-30,
6,
35,
-22,
-26,
1,
40,
23,
0,
6,
14,
9,
-34,
88,
-21,
-14,
1,
11,
1,
-37,
-16,
13,
-12,
73,
-23,
-26,
-6,
-14,
46,
-8,
-30,
-2,
5,
30,
59,
16,
16,
0,
13,
-38,
68,
-5,
-27,
-43,
-4,
52,
-18,
-31,
28,
-16,
-4,
-1,
14,
14,
19,
-12,
56,
-11,
-49,
8,
-33,
-23,
-24,
9,
-1,
20,
-14,
0,
-23,
-42,
45,
-40,
-9,
5,
-25,
-23,
-14,
-21,
-19,
38,
20,
-21,
1,
78,
30,
-24,
-2,
-37,
22,
-48,
-26,
-40,
7,
46,
-33,
14,
-22,
20,
-81,
-62,
-24,
-12,
15,
22,
14,
55,
39,
36,
8,
-10,
-28,
-6,
-5,
-7,
-56,
-38,
35,
-17,
-3,
-58,
7,
28,
10,
47,
-24,
-17,
20,
2,
-10,
-22,
9,
-74,
-19,
-29,
37,
-2,
31,
7,
-48,
66,
-31,
6,
47,
8,
38,
1,
45,
2,
20,
4,
-41,
-42,
11,
-44,
-61,
14,
9,
49,
-48,
33,
31,
-5,
22,
16,
44,
26,
2,
-30,
22,
-46,
7,
35,
-5,
-49,
-25,
23,
36,
-28,
19,
16,
-47,
-12,
-19,
-32,
-8,
7,
-7,
10,
-1,
20,
10,
14,
11,
13,
-31,
2,
-53,
-26,
-17,
4,
-7,
14,
-51,
-9,
-33,
-14,
71,
0,
-2,
-11,
42,
42,
-51,
5,
-10,
-4,
-29,
27,
46,
6,
-16,
6,
13,
9,
6,
3,
42,
-56,
-30,
-1,
-91,
28,
6,
23,
-46,
-51,
-12,
5,
-4,
-35,
22,
-68,
-15,
-22,
21,
-24,
-1,
-35,
36,
3,
-18,
11,
-25,
0,
-9,
34,
-53,
42,
30,
-5,
0,
41,
28,
-20,
-19,
-12,
-8,
0,
-11,
-10,
23,
5,
-1,
-5,
-24,
31,
-13,
11,
0,
34,
-35,
-5,
-7,
-13,
7,
-13,
61,
2,
-3,
-6,
-12,
-5,
29,
31,
-5,
8,
-12,
-11,
-25,
-19,
-15,
-17,
-21,
22,
39,
-8,
12,
-15,
-23,
-5,
-19,
23,
-21,
-27,
-33,
41,
0,
-29,
-22,
6,
-16,
-36,
5,
9,
12,
32,
12,
-17,
-17,
7,
5,
2,
-33,
-1,
23,
-3,
-21,
35,
30,
24,
8,
-22,
-19,
-45,
4,
-20,
46,
21,
4,
-41,
-18,
-16,
-45,
-18,
-55,
19,
-11,
15,
-77,
5,
-62,
-38,
3,
-41,
38,
-51,
11,
26,
53,
25,
-16,
-29,
-38,
-81,
-13,
-117,
6,
-36,
-27,
-4,
-4,
37,
19,
-16,
18,
-84,
13,
-5,
5,
-31,
80,
-45,
-1,
-30,
-7,
-21,
44,
56,
8,
-28,
-33,
31,
13,
-13,
-30,
-3,
-20,
68,
-21,
-18,
6,
-34,
-44,
28,
11,
-5,
-16,
34,
-37,
-38,
-4,
-43,
-61,
-16,
-56,
13,
15,
31,
57,
-20,
-35,
-5,
-24,
-12,
-12,
32,
16,
27,
8,
-21,
0,
-21,
59,
-4,
28,
-59,
29,
-25,
41,
0,
-58,
-26,
32,
6,
-1,
-42,
5,
-13,
1,
-43,
-4,
21,
41,
-56,
-29,
25,
0,
-35,
16,
46,
44,
-14,
-33,
-37,
-15,
-39,
50,
7,
-25,
6,
-45,
15,
7,
2,
-27,
-4,
11,
-81,
33,
-37,
5,
48,
22,
61,
42,
-40,
-39,
3,
5,
-13,
-19,
-51,
10,
4,
-43,
57,
34,
-3,
61,
-17,
-49,
14,
4,
0,
2,
39,
24,
52,
-8,
21,
30,
42,
-38,
27,
-43,
-35,
0,
-57,
0,
-7,
-36,
36
] |
Hooker, O. J.
The plaintiff brought an action of ■ejectment to try his title to certain wild and unoccupied lands. He bases his claim to them upon a conveyance from the Amboy, Lansing & Traverse Bay Railroad Company to one Henry Day, while defendant claims title under .an Auditor General's deed for delinquent taxes for the years 1874 to 1880, inclusive, excepting those for the year 1875. A large number of assignments of error appear in the record, which can be conveniently considered upon the following questions:
1. Does plaintiff's record evidence show a valid conveyance from the federal government to Ashbel Green?
2. Is the identity of Ashbel Green aforesaid, as the grantor of plaintiff, established by competent evidence?
3. Had Rose and Stevens an interest which affected plaintiff's right of recovery?
4. Was defendant's connection with the land such as to subject him to an action of ejectment?
5. Questions involving the validity of defendant's tax deed.
Plaintiff’s title: By act of June 3, 1856 (11 H. S. Stat. at Large, 21), Congress granted certain lands to the State of Michigan, to aid in the construction of the Amboy, Lansing ■& Traverse Bay Railroad. The State accepted this grant, and in turn granted the lands to the railroad company, by Act No. 126, Laws of 1857. The effect of this legislation has been settled by this Court, so far, at least, as to determine that the title of the United States was divested, and that; when earned, the -railroad company might select any land within the prescribed limit of 6 miles, if not 15 miles. Johnson v. Ballou, 28 Mich. 319, 388. The documentary proof in this case shows:
1. The acceptance required by section 5 of the act of 1857.
2. The filing of the maps required by section 6 of said act.
3. The certificates of the Governor that two sections, of 20 consecutive miles, of the road, were completed, whereby the company became entitled to select and sell 240 sections-of land.
4. The appointment by the Governor of Amos Gould as agent to select lands for the company.
5. The selection of the lands in question by the company, on file in the Land Commissioners office, at Lansing, over the signature of its president, with the confirmation of the board of control.
6. The filing of a list containing the lands in question, as selected, in the office of the Secretary of the Interior,, with the approval of said secretary.
7. The conveyance by the railroad company of the lands-in question to Henry Day.
It would seem that the appointment of the agent, and the certificates of the completion of the road, made by the Governor; the selection of the lands, and filing of the list, by the company, rvith the Commissioner of the State-Land Office; the certification of the same by the State Land Commissioner to the Secretary of the Interior, and his approval, — ought to be sufficient proof that the railroad, company had complied with the requirements of the law to the satisfaction of the State and Federal governments,, if, indeed, it did not preclude their questioning the same..
It is true that objection was made to the introduction of the several documents by which plaintiff sought to-prove these things, but we think them all admissible.
Objection is made that the selection of the land is not shown to have been made by the agent appointed by the-Governor, as required by both the Federal and State acts. The latter provided for the . nomination of the agent by the railroad company. No express provision required the preservation or filing with the State or Federal departments of any selection or report of the agent, and the list filed with the Land Commissioner by the company, and approved by the Secretary of the Interior, may be assumed to have ■been properly selected, especially as it appears to have been .acted upon; the Land Commissioner having certified to •the list as a true and correct list of the lands selected by the agent of the State of Michigan, and the Secretary of the Interior having approved it as such.
Perhaps the most serious point raised relates to the authentication of the certified copy of the list of lands ¡selected by the agent, and filed in the office of the Secretary of the Interior. The point to the objection seems to be that the certificate warrants the inference that the list •of lands is not complete. It seems to be the practice of .such department to certify a document so far as it applies to the particular property involved, and in this case the list included only the land in question here. To have certified the whole list . would have made unnecessary ■expense, and incumbered the record with voluminous papers of no value'. The same practice prevails in certifying field notes of surveys. See Gilman v. Riopelle, 18 Mich. 158; Lacey v. Davis, 4 Id. 150, — where it is held .that authentication according to the practice of the ■department makes papers admissible, though not certified in accordance with our statutes.
Without deciding that these proceedings are necessarily •conclusive against the Federal or State governments upon the question of the title of the railroad company, it is not too much to say that, in the absence of any proof to the •contrary, they are prima facie evidence; and whether this title could be controverted by any one may be doubted ■(see Jackson, Lansing & Saginaw R. R. Co. v. Davison, 65 Mich. 438), — especially by persons not claiming title under some other grant from the government. Furthermore, when the defendant asserts title in himself, under his tax deed, he asserts that the government has parted with the land; otherwise, it would not have been subject to taxation, and his tax deed' would fall. If we accord to the tax deed all the weight as evidence that can be claimed for it, viz.,, that it is prima facie evidence that the lands were taxable, and, therefore, that the government had parted with its-ownership, it'- does not militate against plaintiff's claim, while, if the proceedings showed that the lands were assessed in the name of the plaintiff, the plaintiff and defendant, would be in the attitude of parties claiming under a common grantor, and under the well established rule it would be unnecessary to go behind plaintiff's title. Eames v. McGregor, 43 Mich. 313. And in the absence of such evidence of assessment to the plaintiff or his grantors, avo* ■are not called upon to assume that the taxes upon which •defendant bases his claim arose upon an imaginary title-emanating from the government, when a prima facie one is shoAvn, Avhich is consistent Avith defendant's alleged title. Eaton v. North, 20 Wis. 449. This vieAV disposes of the many assignments of error which pertain to this branch of the case, for Avhile there Avere other documents than those* mentioned, offered to prove this title, and admitted against, objection, they Avere unnecessary, and may be disregarded, inasmuch as the court might properly have said to the jury that Ashbel Green had title to the property.
The identity of Ashbel Green: In January, 1864, Henry Day conveyed the premises to “Ashbel Green, of New York." In 1884, “Ashbel Green, of the toAvnship off Palisades, in the county of Bergen, and state of New Jersey," conveyed the premises to the plaintiff. Plaintiff' showed by one Rose that he kneAV Ashbel Green, who-made this deed, and at one time he told him he lived in NeAv Jersey. This evidence Avas clearly hearsay, and n.ot. admissible. But, in the absence of any testimony to the-.contrary, there was ample evidence to Avarrant the conclusion of the identity of the Ashbel Green who Avas the* grantee of Day, and him who was the grantor of the plaints iff. The proximity of the township of Palisades to the city of New York, and the well-known custom of residents; of neighboring hamlets to do business in said city, together' with the testimony upon the subject, were quite sufficient. See Goodell v. Hibbard, 32 Mich. 47; Eames v. McGregor, 43 Id. 313,—cited by counsel for plaintiff. The defendant-was not injured by the testimony. This appears to have-been the view entertained by the circuit judge.
What was the interest of Rose and Stevens? Defendant-sought, on cross-examination, to draw out some evidence-tending to show that two men, named, respectively, Eose and Stevens, had an interest in the land, upon the claim that this would affect plaintiff’s right to recover. This appears to have been upon the theory that they should have been made parties plaintiff, or that it would limit-plaintiff’s recovery to an undivided interest, or possibly defeat it altogether, if Eose and Stevens were entitled to-exclusive possession. lie claimed to expect to show that-one of them had charge of the land, or paid some taxes,, under a contract which wa$ produced, and which reads as-follows:
“This agreement, made this twenty-ninth day of April,,. A. D. eighteen hundred and eighty-four, between Levi Tillotson, Jerome K. Stevens, and Julius K. Eose, all of the city and county of Saginaw, State of Michigan, witnesseth as follows:
“ Whereas, the said Tillotson has this day purchased from Ashbel Green, of New York city, state of New York,., for the joint benefit of said Tillotson, Stevens, and Eose,. the folloAving lands, viz. [here follow descriptions of various parcels in different counties], for the sum of four-thousand dollars ($4,000), said money having been paid by said Tillotson:
“It is agreed between the parties hereto that all money advanced by each of them shall bear interest at the rate of seven (7) per cent, per annum, and also that each and every one of them shall be entitled to and receive pay for- all services and expenses in the matter of purchase and sale of said lands. Said Tillotson agrees that he will advance all moneys which may be needed to clear up and pay all taxes and assessments now or hereafter on said lands. Whenever enough of said land has been sold, and money enough received on the same, to repay the several parties hereto the amounts advanced by them, in money or otherwise, together with the interest on the same, then and at such time all the lands remaining unsold shall be divided equally between the parties hereto, share and share alike. This agreement is binding on' the heirs of the parties hereto. All losses, if any, on said investment, are to be borne equally by the parties hereto.
“Signed and delivered this twenty-ninth day of April, ■eighteen hundred and eighty-four.
“In presence of—
“Jerome K. Stevens.
“Julius K. Eose.
“Levi Tillotson.”
We think that this contract did no more than to create an equitable interest in Eose and Stevens, and there was no offer to show an}' other right to possession, while it seemed to be conceded that the lands were wild and unoccupied. Under these circumstances the exclusion of the contract and testimony was proper.
Was defendant’s claim such as properly to subject 'him to an action ? In view of the zeal of defendant in defending his tax title, we think little hesitation should be shown in holding that it was. Eepeated decisions have, however, set the question at rest. He admitted that he paid for, procured, and caused to be recorded, the tax deed under which he is here claiming title. Anderson v. Courtright, 47 Mich. 161; Hoyt v. Southard, 58 Id. 432; Heinmiller v. Hatheway, 60 Id. 391; Murray v. Hudson, 65 Id. 674.
This, in our opinion, disposes of all the questions involved, except those arising upon the tax deed.
The plaintiff claims that, if the record shows facts sufficient to invalidate the tax proceedings for each and every of these years, the deed must be held void, while the ■defendant contends that this Court will only so hold upon .grounds pointed out by the circuit judge. He asserts that no defect in the tax of 1876 was pointed out by the .-judge. »
It is a convenience to this Court to have the questions •of law upon which it must pass specifically pointed out by -the trial court, as has been said in Demill v. Moffat, 45 Mich. 410, and other cases. But we understand that these •cases go no further than to hold that the trial judge •should clearly show the question of law that takes the case from the jury. This must be understood to be restricted to reasonable limits. In Demill v. Moffat, Mr. Justice Cooley said:
“ Was he [the trial judge] of opinion that the plaintiffs had given no evidence tending to the proof of their heir-.ship? * * * Did he think adverse possession was .satisfactorily made out? * * * Did he think the defendants had proved title out of Thorn through the alleged deed to Hamilton? * * * But we need not proceed from point to point in the case, and endeavor to .surmise on what ground the plaintiffs were turned out of court. * * * In other words, we are invited to review this case upon all the facts."
In this case the court held that the tax proceedings for ■each year were void, and the judge was particular to give his reasons for so holding in regard to the tax for each year except 1876. This raises the legal question whether the facts in the record show the tax proceedings for the several years void; and it has frequently been held that the result of the case here cannot depend upon right reasons for his ruling having been given by the trial judge.
It is settled law that if any portion of the tax is void the sale based thereon is void. Rogers v. White, 68 Mich. 10; Sinclair v. Learned, 51 Id. 335; Hall v. Kellogg, 16 Id. 135. Tax titles for the years 1874, 1876, 1877, 1878, 1879, and 1880. are involved.
Included in the township tax for the year 1874 were the-sums of §300 for contingent fund, and §200 for poor fund. The record shows that the voters voted a number of items at the annual township meeting, but these items do not appear to have been submitted to them, or in any way mentioned. Subsequently the township board voted them. This was unauthorized. The power of the board to raise money for these purposes depended upon the neglect or refusal of the voters to do so, and unless the proposition was submitted to them they cannot be said to have done either. Harding v. Bader, 75 Mich. 316; Newaygo Co. Manfg. Co. v. Echtinaw, 81 Id. 416.
The roll for the year 1876 shows excessive taxes to have been levied against one parcel of the land, amounting to nearly seven cents, and against the other amounting to nearly eight cents. Under repeated adjudications this is sufficient to render the deed invalid, so far as it is based upon the tax for that year.
The rolls for several years show large amounts charged against the land in the column headed “Township Tax.-”' It can be accounted for only by assuming that the general highway tax is included. Jhe law in force at that time provided that the annual township meeting might, upon the estimate of the highway commissioner, .vote to raise a sum not exceeding one-half of 1 per cent, upon the aggregate valuation of the township, according to the assessment roll of the preceding year, for roads and bridges, the same to be levied and collected in the same manner as other township expenses. Comp. Laws 1871, § 1269. Again, section 477, subd. 15, provides that the board of supervisors may authorize a township, by a vote of the electors, to raise by tax a sum not exceeding §1,000 in any one-year, to build or repair any roads or bridges in the township, or in the use of which the township may be- interested, to be “ assessed and collected in the same manner as other toAvnship taxes are, now assessed and collected by law."
Section 1002 provides for the delivery of the copy of the roll, with taxes carried ont, with the school, library, twoT mill, and sehoolhonse taxes in one column, the highway taxes in another, the township taxes in another, etc.,, “and if other taxes are at any time required by law they shall be placed each in another column." This section applies to all taxes raised, and is sufficiently broad to cover all that may be raised. Its requirements are intended to afford tax-payers the means of ascertaining the purposes-to which the taxes paid are to be applied, and such statutes are mandatory. Case v. Dean, 16 Mich. 12. This statute distinguishes highway taxes from township^ taxes. Money raised under the first of these provisions-has been held to be rightly included in the highway column (Silsbee v. Stockle, 44 Mich. 561), and that raised under the second would seem to be on the same footing.. The blending of the township and highway taxes, even were it proved beyond the realm of conjecture, would be a violation of the law. To hold otherwise would, in view of the case of Silsiee v. Stockle, leave it optional with the supervisor to put these taxes in the highway or township column. This disposes of the tax titles for the years 1877, 1878, 1879, and 1880, and the deed must therefore be held to have conveyed no title to the defendant. It follows that the trial judge committed no error in directing a verdict, for the plaintiff.
Judgment affirmed.
The other Justices concurred. | [
8,
26,
48,
-3,
1,
51,
39,
-18,
49,
33,
-27,
-25,
8,
36,
68,
8,
-23,
5,
-17,
6,
0,
-44,
-12,
-2,
2,
-60,
23,
10,
-27,
-14,
22,
24,
-7,
21,
47,
36,
-6,
-18,
-22,
-14,
-47,
23,
-16,
-2,
22,
1,
-6,
-23,
-32,
-53,
-10,
-28,
-41,
-31,
-2,
14,
2,
-44,
-30,
-9,
-10,
-46,
3,
-16,
-4,
28,
-13,
-16,
23,
-55,
-46,
30,
-20,
-37,
0,
-3,
15,
1,
-13,
24,
-39,
3,
-14,
-57,
16,
14,
4,
8,
38,
-14,
-31,
-69,
-30,
29,
30,
51,
-14,
5,
26,
-2,
-36,
61,
-8,
-29,
40,
-17,
-38,
-51,
-29,
-29,
2,
-20,
15,
-75,
-36,
-29,
16,
-18,
-5,
-23,
26,
-54,
15,
18,
-13,
25,
-60,
32,
-31,
14,
31,
-33,
-37,
11,
26,
-3,
-33,
-55,
9,
-5,
9,
3,
-2,
-33,
-27,
-15,
40,
19,
2,
-42,
-8,
40,
24,
-15,
-11,
4,
27,
-37,
65,
-62,
19,
-14,
7,
-23,
-25,
5,
21,
10,
-9,
45,
-14,
-2,
-16,
-10,
33,
39,
53,
34,
-35,
-7,
4,
-15,
7,
1,
-65,
-7,
33,
-6,
6,
-20,
29,
16,
18,
-52,
-41,
82,
-1,
-4,
-19,
3,
-3,
-80,
26,
20,
-44,
-9,
42,
-67,
8,
91,
-26,
-4,
32,
-8,
28,
10,
28,
-41,
58,
-38,
19,
18,
-14,
3,
22,
2,
7,
26,
-37,
41,
14,
-10,
42,
0,
-51,
-10,
8,
-20,
-12,
-10,
-4,
15,
-23,
-32,
-1,
-21,
25,
-54,
-8,
44,
-32,
-27,
-56,
17,
13,
-31,
12,
-29,
1,
-32,
11,
48,
-6,
12,
-27,
-31,
-15,
21,
-21,
6,
-5,
0,
39,
88,
-15,
-22,
34,
-28,
-27,
-42,
56,
-17,
28,
19,
-34,
24,
-34,
0,
11,
37,
21,
-46,
-26,
-11,
9,
46,
38,
24,
17,
-12,
-21,
1,
28,
35,
33,
11,
26,
35,
4,
-16,
13,
17,
13,
-34,
24,
0,
35,
10,
-2,
-6,
-42,
14,
-17,
-12,
17,
64,
20,
-30,
-3,
15,
46,
5,
24,
42,
-10,
-5,
-19,
-28,
2,
-38,
55,
47,
0,
-35,
26,
30,
-57,
-14,
32,
-6,
6,
-2,
-29,
-20,
-11,
11,
1,
-23,
-13,
22,
2,
24,
34,
5,
-4,
-22,
-125,
-5,
39,
-9,
-2,
-10,
20,
51,
8,
-17,
22,
18,
-24,
29,
-19,
-17,
-4,
-1,
55,
22,
-40,
-55,
-36,
-14,
-26,
-15,
17,
51,
17,
-10,
-15,
6,
0,
-26,
-11,
47,
14,
10,
-21,
-23,
30,
-6,
11,
17,
35,
0,
27,
-44,
-3,
-7,
4,
38,
-17,
14,
30,
-20,
-31,
-33,
14,
-10,
22,
43,
-8,
14,
-3,
-30,
42,
-6,
-38,
47,
7,
-19,
-24,
-3,
-7,
22,
3,
34,
-55,
-11,
-21,
-10,
-20,
3,
14,
7,
-39,
25,
-53,
38,
53,
-51,
32,
4,
14,
5,
42,
18,
-4,
31,
-7,
-24,
36,
-16,
-8,
28,
-21,
14,
-22,
7,
38,
2,
-14,
-8,
-15,
-23,
-43,
23,
-7,
-61,
-13,
-3,
23,
20,
29,
22,
31,
-22,
39,
-3,
-48,
-10,
41,
4,
9,
11,
18,
-5,
12,
20,
-8,
-13,
-7,
83,
-8,
-20,
38,
-1,
1,
31,
6,
-46,
11,
9,
0,
-5,
-12,
-17,
-14,
-9,
31,
14,
17,
-23,
33,
-11,
-9,
20,
3,
-36,
36,
81,
-5,
-13,
18,
-13,
6,
50,
-60,
18,
23,
-50,
-16,
-5,
-61,
0,
6,
-22,
0,
29,
-19,
-76,
13,
-1,
-56,
-36,
10,
-58,
39,
-25,
8,
-13,
-35,
8,
16,
-17,
47,
-32,
6,
-1,
-2,
0,
7,
33,
-30,
-24,
0,
-68,
-18,
4,
-29,
1,
26,
24,
-11,
2,
-71,
1,
-10,
10,
-27,
61,
12,
-34,
11,
-20,
-47,
53,
33,
3,
-31,
4,
8,
34,
-16,
0,
48,
54,
-9,
26,
12,
-53,
20,
-20,
2,
-3,
-14,
5,
67,
-39,
-26,
1,
-2,
12,
4,
20,
-50,
23,
-15,
-7,
13,
-4,
52,
-14,
9,
-22,
-34,
-12,
-8,
-19,
-28,
14,
14,
-1,
-22,
26,
5,
-4,
-3,
-14,
-25,
31,
8,
6,
37,
-27,
7,
-2,
-9,
-25,
64,
-41,
29,
25,
22,
-32,
-27,
25,
3,
-38,
0,
48,
100,
48,
0,
23,
32,
4,
58,
5,
-29,
7,
10,
-4,
1,
-42,
8,
33,
4,
-2,
45,
-24,
11,
2,
-9,
74,
-4,
38,
16,
10,
23,
-31,
20,
7,
53,
9,
17,
3,
0,
37,
20,
-7,
-11,
-24,
-7,
9,
-14,
-41,
-12,
-8,
14,
-37,
-13,
-34,
32,
41,
19,
8,
-30,
-13,
15,
-13,
-46,
-17,
-30,
-42,
-40,
-2,
-29,
-2,
10,
8,
-42,
52,
21,
15,
47,
54,
10,
-23,
-40,
9,
-4,
-79,
3,
-22,
-15,
-24,
-25,
27,
-65,
-45,
12,
10,
-22,
-4,
-47,
-56,
13,
31,
-5,
28,
-3,
-47,
61,
-27,
-41,
10,
-17,
3,
-2,
4,
24,
-25,
-43,
29,
-11,
-35,
-29,
-1,
22,
-14,
-18,
-26,
-26,
-16,
-67,
27,
3,
5,
-23,
4,
-28,
23,
-14,
9,
-10,
-72,
23,
-8,
-20,
41,
0,
-28,
-14,
60,
5,
19,
-3,
11,
43,
10,
4,
11,
40,
-6,
-13,
18,
25,
-3,
-7,
-41,
-16,
-7,
-25,
1,
-35,
-16,
18,
-7,
-37,
26,
-11,
-35,
-75,
16,
-9,
-18,
-9,
-26,
30,
-20,
-26,
2,
29,
21,
-18,
8,
11,
-11,
14,
-30,
-6,
24,
6,
40,
-29,
-23,
24,
-16,
22,
-45,
31,
34,
-24,
-1,
9,
36,
-64,
-24,
25,
-46,
48,
23,
27,
-16,
4,
32,
-13,
-34,
-24,
-29,
17,
27,
-11,
14,
17,
12,
-15,
-13,
37,
-37,
9,
41,
15,
-26,
0,
-26,
-42,
-33,
-28,
-22,
24,
26,
37,
-2,
-10,
34,
-46,
-39,
21,
47,
0,
51,
-49,
16,
-38,
-12,
37,
1,
24,
-36,
28,
18,
53,
-16,
-4,
20,
-52,
-23,
-29,
10,
40,
23,
-22,
29,
47,
36,
0,
-60,
-20,
21,
-22,
-43,
31,
57,
-12,
3,
23,
37,
10,
4,
8,
-4,
-52,
-13,
-14,
-5,
43,
-21,
24,
20,
9,
-43,
62,
-28,
-62,
23,
58,
-31,
29,
-17,
-33,
20,
-15,
18,
0,
-20,
14,
4,
13,
-1,
-15,
-62,
26,
-58,
-8,
5,
14,
-36,
40,
-1,
-18,
-23,
-53,
1,
85,
25,
-19,
19,
-22,
32,
29,
-24,
-3,
9,
10,
22
] |
McGrath, J.
This is an application for a mandamus to compel respondent to approve relator’s bond as a retail dealer in liquors.
Eelatqr is carrying on a hotel in the village of Newaygo known as “ The Courtright,” having a frontage of 175 feet on the main street, and which is wholly occupied by relator. It is insisted by respondent that relator has for some years operated, and now proposes to operate, two separate bars in said hotel, — one on the first floor, and one in the basement, — both of which have independent entrances from the street, and also from the alley in the rear of the hotel, and both of which are accessible from the hotel office. The bond described the place at which the business is to be carried on as “at the Oourtright,” and respondent insists that the description is not sufficiently specific to prevent the maintenance of both bars under one license.
The form of the bond required by the law of 1887 is set forth in the act, and contains the following recital:
“ Whereas, the above-named principal projaoses to carry on the business of - (and describing the place of business), at -, in the county of-.”
The place of business of relator is the hotel known as “ The Courtright,” and that description includes any room within the curtilage. The statute recognizes the fact that other lines of business are often carried on upon the same premises within which the liquor business is or is to be carried on, and makes a distinction in its restrictions between the room in which liquors are kept for sale and the place within which the business is carried on. Section 14 makes it unlawful to permit any student or minor to play at cards, or any game of chance, in any part of any building in which liquors are sold, while section 15 makes it unlawful to allow any minor to visit or remain in any room where liquors are sold, unless accompanied by his father or other legal guardian. Section 17 provides that all saloons, restaurants, bars, in taverns or elseioliere, and all other places where liquors are sold, except drugstores, shall be closed on certain days, and during certain hours.
In Goff v. Fowler, 3 Pick. 300, defendant was licensed as an inn-keeper, and it was insisted that such license did not extend to a building detached from the house proper, but it was held that the detached store was a dependency.
In Com. v. McCormick, 150 Mass. 270 (22 N. E. Rep. 911), it was held that a license to sell jn a “ one and a half story building” imported an authority to sell anywhere in such building.
In City of St. Louis v. Gerardi, 90 Mo. 640 (3 S. W. Rep. 408), the Planters’ House occupied oné-half of a square and had three street fronts, and a bar at each of the front entrances. The bars were screened ofi by partitions, and had direct communication, by means of doorways, with the office rotunda and restaurant. The ordinance provided that application for licenses should be made in writing, and should state specifically where the dramshop was to be kept, and that—
“All licenses issued under this ordinance shall be kept posted up in some conspicuous place behind the bar, and as near the center thereof as possible.”
Held, that the place at which the dramshop was to be kept was the Planters’ House; that the bar is simply the means of carrying on the business, and, where it is kept at the designated place, the mere fact of the licenses erecting more than one bar at such place, so connected would not render him guilty of a violation of the ordinance. See, also, Salt Co. v. Wilkinson, 8 Blatchf. 30; Hochstadler v. State, 73 Ala. 24; Com. v. Stratton, 150 Mass. 188 (22 N. E. Rep. 893); Com. v. Jones, 142 Id. 573 (8 N. E. Rep. 603); Com. v. Barnes, 140 Id. 447 (5 N. E. Rep. 252); State v. Moody, 95 N. C. 656.
Section 8 of the act provides that upon filing the bond the principal shall not be allowed to sell “in any other building or place than that specified in said bond without giving notice, and executing another bond.” This language would seem to exclude the idea that the principal cannot sell elsewhere in the same building, and that if he should change the location of his bar to another room in the same building he would be obliged to give a new bond. This section is discussed in People v. Brown, 85 Mich. 119, 121, and the language used is, “one place of business.” The bond requires a description, not of the room or rooms, but of the place of business.
In the present case the entire premises are occupied by one proprietor.' They have a well-known designation. They are connected by doorways, as are the rooms in which the bars are located. The whole is one place, with one proprietor. The statute imposes the tax, not upon the amount of the business, nor upon each bar, but upon the business of selling liquor at the place of business designated.
The mandamus must issue as prayed.
The other Justices concurred.
Act No. 313, Laws of 1887. | [
41,
34,
13,
23,
-23,
4,
4,
29,
-46,
34,
-23,
23,
-4,
0,
66,
18,
-4,
39,
-8,
-8,
33,
7,
-37,
-6,
29,
17,
30,
35,
-31,
-20,
11,
-3,
-21,
4,
-11,
-9,
31,
12,
30,
-11,
22,
51,
35,
16,
-27,
-7,
0,
-72,
40,
-45,
-2,
0,
-3,
70,
-20,
25,
-30,
-1,
30,
92,
25,
1,
-26,
18,
6,
-33,
22,
-2,
15,
-37,
30,
-4,
-59,
12,
0,
21,
16,
-5,
-2,
27,
10,
-15,
-5,
0,
-68,
50,
12,
11,
15,
-28,
-4,
-13,
-52,
-13,
-10,
-4,
-21,
-13,
36,
-4,
-3,
-36,
0,
-10,
42,
36,
14,
-21,
9,
-23,
19,
-46,
42,
-18,
-32,
2,
-31,
-21,
0,
21,
39,
4,
82,
8,
4,
-41,
-12,
-26,
-41,
-65,
-12,
18,
10,
5,
5,
-19,
-33,
56,
1,
-12,
5,
40,
59,
61,
19,
-8,
-32,
2,
-27,
11,
-4,
12,
14,
31,
-27,
13,
26,
-11,
5,
-8,
18,
0,
-17,
-14,
-1,
-29,
-16,
-6,
-34,
34,
-18,
50,
25,
74,
16,
-47,
38,
-15,
-57,
-1,
-29,
52,
2,
22,
50,
-18,
39,
-55,
-12,
3,
-37,
-13,
-37,
31,
21,
27,
-31,
6,
-56,
0,
-56,
0,
1,
25,
44,
-31,
-13,
21,
-61,
-10,
-30,
14,
-63,
-26,
15,
-23,
-30,
6,
9,
8,
-62,
-7,
10,
32,
-57,
-37,
7,
-17,
-5,
0,
-46,
-59,
-24,
50,
-12,
-5,
7,
-11,
21,
36,
3,
43,
-46,
-28,
-5,
-37,
-22,
16,
-32,
-15,
2,
-15,
11,
31,
-40,
39,
19,
-8,
11,
-25,
21,
-11,
-6,
35,
-28,
0,
22,
10,
0,
40,
-36,
-23,
68,
-26,
-21,
-8,
28,
14,
-12,
-8,
24,
11,
13,
50,
-2,
20,
-26,
0,
-13,
15,
31,
31,
-26,
-15,
10,
0,
-49,
30,
-29,
27,
12,
2,
-2,
33,
-54,
5,
33,
18,
-12,
-31,
-9,
-41,
-25,
11,
29,
3,
19,
29,
13,
-48,
34,
-1,
9,
-18,
29,
0,
33,
-16,
8,
-31,
-56,
-17,
9,
-16,
-61,
42,
61,
-54,
-18,
26,
69,
-44,
41,
-16,
-3,
9,
27,
-38,
-11,
-38,
-40,
-6,
31,
40,
2,
-23,
-42,
-12,
12,
43,
-4,
9,
-20,
-24,
31,
-48,
-2,
34,
24,
-16,
-9,
-2,
-11,
-8,
10,
-72,
0,
-10,
-34,
15,
32,
-46,
26,
-40,
22,
-12,
-47,
-50,
-52,
25,
0,
-13,
-34,
-34,
-28,
43,
0,
-30,
7,
-91,
-23,
13,
27,
-10,
0,
15,
0,
42,
51,
42,
-28,
-14,
-35,
7,
29,
39,
-20,
-62,
-5,
-24,
-11,
-31,
0,
-4,
48,
-62,
-32,
30,
-36,
15,
-61,
-18,
-26,
62,
-14,
-54,
-2,
14,
-14,
-11,
-39,
-10,
-24,
-16,
-4,
26,
-54,
0,
5,
-14,
-2,
46,
-33,
6,
-23,
35,
-3,
63,
28,
-26,
93,
13,
-2,
20,
62,
-15,
-39,
-35,
-13,
-19,
-33,
3,
35,
6,
-24,
-1,
76,
22,
12,
25,
32,
26,
48,
54,
-6,
-41,
-32,
-13,
-39,
35,
23,
-5,
1,
-1,
-19,
-20,
5,
19,
-5,
42,
-9,
-2,
-57,
-3,
-35,
5,
-45,
19,
31,
19,
-5,
9,
21,
23,
9,
14,
-27,
-21,
-61,
-24,
23,
10,
7,
-15,
-42,
21,
-8,
44,
-13,
-11,
-15,
-2,
48,
-34,
0,
16,
44,
25,
17,
16,
12,
20,
13,
27,
-7,
30,
9,
-33,
14,
2,
-56,
30,
-24,
1,
-42,
24,
-17,
-12,
-43,
-21,
-23,
21,
13,
-31,
-8,
-56,
-20,
-31,
34,
20,
-48,
-21,
-4,
4,
-50,
0,
-30,
-49,
-21,
41,
-5,
22,
-14,
0,
-1,
14,
-20,
-1,
-33,
26,
-41,
42,
-25,
27,
4,
-5,
31,
40,
0,
28,
4,
16,
33,
-27,
-10,
-14,
-3,
45,
35,
33,
1,
-17,
-32,
14,
-24,
18,
31,
9,
-16,
48,
46,
37,
-36,
-2,
-5,
-20,
20,
-19,
18,
61,
-81,
-39,
18,
-48,
-1,
20,
-18,
54,
11,
-55,
-55,
-22,
-31,
-36,
43,
31,
17,
66,
-32,
-17,
-18,
17,
58,
35,
-3,
1,
-28,
33,
44,
7,
6,
-26,
-12,
41,
27,
0,
44,
7,
3,
-5,
21,
-15,
1,
35,
40,
-22,
-35,
10,
14,
20,
-40,
-51,
4,
-33,
22,
51,
25,
-29,
14,
26,
-14,
-6,
-61,
-44,
18,
69,
-50,
-1,
-17,
9,
-15,
-38,
41,
10,
-40,
-24,
10,
-81,
-29,
-22,
45,
-4,
21,
33,
25,
-38,
-35,
9,
15,
29,
-32,
-19,
1,
-12,
21,
35,
-20,
4,
-7,
-18,
-30,
-80,
20,
-69,
-15,
26,
-17,
-27,
42,
3,
-52,
13,
-27,
16,
-4,
-5,
-18,
15,
-10,
-6,
-12,
66,
-53,
5,
5,
32,
-13,
-28,
-10,
14,
10,
12,
-47,
41,
3,
-15,
-43,
-32,
40,
-1,
2,
-48,
-3,
-2,
-47,
49,
0,
5,
1,
-15,
-14,
-22,
3,
-33,
0,
-23,
-22,
-29,
19,
-4,
-47,
0,
-9,
19,
-40,
-19,
39,
24,
4,
-8,
14,
42,
-14,
43,
1,
-23,
-13,
10,
-4,
-17,
1,
-45,
5,
-6,
-13,
7,
-4,
-18,
-5,
-29,
-7,
-12,
20,
-41,
1,
7,
23,
38,
-24,
6,
14,
2,
-8,
-56,
33,
-21,
9,
-50,
3,
-7,
26,
6,
5,
54,
-46,
-48,
47,
14,
-24,
24,
-34,
33,
-29,
-63,
32,
-15,
21,
23,
25,
28,
34,
11,
11,
15,
-6,
-17,
-57,
6,
26,
0,
-15,
-52,
17,
64,
-31,
24,
18,
20,
-35,
-19,
51,
14,
54,
-7,
20,
-3,
43,
36,
18,
28,
39,
19,
-29,
62,
-22,
-7,
-9,
-33,
-49,
-69,
-48,
-5,
-48,
33,
17,
-45,
15,
49,
58,
5,
12,
26,
2,
13,
9,
-39,
-82,
2,
11,
23,
17,
22,
-2,
20,
-29,
25,
-4,
27,
-4,
53,
-44,
-20,
-19,
0,
-16,
-8,
9,
43,
11,
0,
-33,
-8,
15,
28,
-45,
10,
8,
-27,
0,
-10,
-83,
28,
-26,
48,
-22,
8,
2,
65,
-68,
66,
-6,
84,
22,
45,
-1,
36,
6,
2,
13,
-9,
-41,
-5,
28,
72,
-80,
37,
37,
-14,
19,
0,
-27,
9,
50,
-10,
-37,
82,
0,
27,
-8,
-9,
-11,
-48,
-43,
13,
12,
13,
-28,
51,
10,
-31,
35,
-4,
-33,
16,
20,
-26,
-16,
46,
-14,
-18,
-30,
-83,
75,
-5,
10,
17,
10,
-2,
-15,
-15,
-4,
9,
-26,
-4
] |
Grant, J.
O.ne Allington was the owner of 555 shares of the capital stock of the defendant conqpany. In May, 1891, he duly assigned the certificate and the shares of stock mentioned therein to plaintiff. The assignment was on a printed blank upon the back of the certificate, and authorized the assignee to make the necessary transfer on ‘ the books of the company. Plaintiff at once applied to Charles Wright, the president of the company, to have the transfer made upon the books of the company. The secretary was not then present, and the transfer was not made. Subsequently plaintiff again applied, and was then informed by Mr. Wriglit that he would be very glad to transfer it, but that Mr. Aldington had notified him that he (plaintiff) had no right to it. Plaintiff thereupon instituted this suit by filing a declaration, in which he set forth the assignment of the stock to him, his possession of the certificate, and the refusal on the part of the company to cause the transfer to be' made upon its books. His allegation for damages is—
‘■‘'That, by and through the aforesaid misconduct of the said defendant, the said shares of stock became and were wholly lost to the said plaintiff, and the said plaintiff thereby lost the benefit and advantage which he otherwise might and would have derived from the said shares of stock, and the said plaintiff hath been and is thereby deprived of great gains and profits, which he might, and otherwise would, have derived through the sale of the said shares of stock.”
At the conclusion of the evidence, 'the court directed a verdict for the defendant, for two reasons:
1. There was no evidenoe of conversion.
2. Plaintiff had neither claimed nor shown any special damages by reason of the refusal to enter the transfer of stock on its books.
Plaintiff insisted that he was entitled to recover the full value of the stock, and that he had given evidence from which the jury might find the value.
The declaration is not one in trover for the conversion of the stock, but rather in an action upon the case for damages caused by the wrongful act of the defendant in refusing to register the transfer. We think the direction of the circuit judge was right. Under our statute and the decisions of this Court, plaintiff was the absolute owner of the stock, and possessed the evidence of title. He thereby became a stockholder, had the right to attend meetings, 'to share in the profits, and, in fact, was entitled to all the rights of every other stockholder, notwithstanding the refusal of the president to register the transfer. He could by tbe proper proceeding have compelled the proper officers of the defendant to register the transfer. The statute provides that shares of stock may be transferred by indorsement and delivery of the certificates thereof, and that such transfers are valid between the parties thereto. Under this statute it is held that the transfer upon the books is not necessary to the validity of the purchaser’s title. Mandlebaum v. Mining Co., 4 Mich. 465. It was there held that a bona fide purchaser for value of such certificate, duly assigned, will be protected in his title the same as a purchaser of negotiable paper. See, also, Walker v. Railway Co., 47 Mich. 338; Daggett v. Davis, 53 Id. 35.
Plaintiff had not been deprived of his property, nor of his evidence of title, ñor of his possession thereof. It cannot therefore be said that he has wholly lost his property. On the contrary, he is entitled to all the rights and remedies of any stockholder. The defendant, by the action of its president, did not convert the stock to its own use, nor by such act become the owner thereof. Plaintiff gave no evidence of any special damages caused by the wrongful act of the defendant’s president, and therefore could not recover any more than nominal damages. Inasmuch as this does not affect the costs, the judgment will not be reversed.
Judgment affirmed.
Hooker, C. J., McGrath and Montgomery, JJ., concurred. Long, J., did not sit. . | [
20,
3,
57,
-24,
-2,
-5,
69,
6,
25,
-3,
-10,
-39,
44,
31,
19,
-17,
-1,
15,
9,
-27,
22,
-32,
-9,
-25,
28,
-34,
-20,
0,
25,
3,
-24,
-7,
-48,
0,
-19,
70,
-35,
-23,
-8,
-32,
28,
22,
48,
1,
-10,
1,
-17,
-46,
0,
-57,
53,
-3,
31,
-11,
18,
-12,
-22,
-15,
0,
-41,
-19,
-39,
66,
-4,
12,
25,
-7,
-24,
11,
-21,
-27,
13,
11,
-6,
2,
-65,
-46,
11,
-15,
-39,
52,
-38,
14,
-42,
-55,
32,
37,
9,
-1,
15,
-6,
-42,
-23,
-43,
-5,
32,
42,
1,
-1,
28,
11,
2,
-30,
-1,
13,
8,
16,
0,
-14,
3,
24,
18,
16,
14,
-17,
-29,
-43,
-31,
-40,
-24,
15,
-7,
17,
13,
-19,
64,
-12,
-49,
-15,
34,
-10,
-19,
-102,
39,
15,
-7,
-10,
-22,
-35,
-26,
-16,
33,
-29,
-44,
-17,
49,
14,
17,
-53,
-2,
8,
30,
43,
31,
-21,
3,
0,
11,
53,
-62,
13,
33,
9,
-16,
7,
4,
-3,
-27,
-13,
13,
-34,
20,
2,
-32,
-12,
52,
12,
-62,
-40,
-14,
-12,
15,
52,
8,
13,
-47,
31,
-9,
26,
35,
28,
40,
-22,
72,
-23,
22,
-15,
-11,
35,
-12,
16,
-19,
-12,
13,
10,
-20,
39,
-34,
27,
3,
-24,
56,
41,
-32,
-1,
71,
12,
-45,
1,
-30,
28,
20,
-21,
0,
7,
-35,
25,
-16,
-2,
31,
-19,
-3,
-24,
4,
12,
-20,
19,
-4,
46,
-29,
-36,
7,
1,
-40,
-27,
-49,
-13,
-5,
-26,
51,
4,
40,
-43,
14,
2,
2,
-8,
24,
-30,
-30,
22,
33,
-31,
-3,
22,
-45,
-10,
-18,
13,
-20,
-12,
-23,
5,
-10,
28,
-30,
2,
-2,
6,
12,
12,
1,
1,
4,
-46,
14,
-1,
-22,
-29,
12,
55,
10,
25,
-49,
85,
26,
9,
28,
-18,
-13,
-11,
-16,
-13,
51,
38,
27,
-24,
-33,
-16,
-32,
23,
1,
14,
-40,
18,
-10,
11,
29,
5,
-44,
16,
32,
-33,
11,
7,
28,
29,
-20,
30,
17,
-22,
-10,
-26,
-24,
-21,
-30,
12,
-40,
29,
-36,
16,
-19,
53,
-32,
1,
-2,
-58,
-89,
11,
28,
-36,
-46,
-2,
10,
-4,
28,
28,
-17,
19,
31,
61,
-41,
7,
-37,
17,
38,
-41,
-14,
56,
14,
9,
13,
10,
-26,
15,
3,
-15,
-55,
-27,
58,
1,
24,
-18,
-30,
26,
25,
7,
4,
-20,
-16,
-63,
11,
13,
43,
-44,
16,
-16,
-6,
-18,
0,
-5,
13,
-54,
-16,
-91,
-17,
34,
0,
12,
14,
9,
4,
21,
-50,
0,
-38,
52,
-28,
53,
30,
16,
-44,
-20,
-28,
2,
-39,
47,
35,
-50,
-9,
-29,
45,
49,
-10,
-24,
25,
-18,
-19,
-15,
-8,
21,
6,
-21,
49,
13,
7,
13,
34,
24,
68,
-2,
-11,
25,
9,
-2,
12,
43,
-15,
38,
-10,
17,
-7,
10,
28,
20,
10,
43,
-35,
32,
19,
-10,
12,
24,
-25,
-15,
43,
-44,
-41,
0,
-2,
12,
51,
-16,
-2,
-47,
40,
-43,
-44,
4,
9,
-13,
20,
64,
-7,
12,
12,
3,
-1,
1,
0,
28,
-16,
20,
-26,
25,
61,
-12,
-60,
-26,
49,
-46,
-25,
-11,
5,
3,
9,
-22,
26,
-14,
36,
31,
28,
-51,
-18,
-36,
-18,
74,
48,
33,
-44,
30,
-11,
16,
2,
16,
-3,
10,
-22,
-13,
-27,
-36,
11,
-17,
18,
-36,
20,
-18,
12,
-5,
-1,
-33,
18,
47,
10,
-48,
19,
58,
-23,
10,
30,
0,
-7,
-8,
-20,
-19,
1,
0,
-36,
-16,
25,
49,
-58,
-21,
32,
34,
17,
8,
8,
-5,
-1,
-14,
-35,
22,
-66,
-15,
20,
1,
10,
-28,
25,
-12,
-10,
-39,
-10,
27,
-40,
64,
-4,
21,
31,
-16,
0,
-39,
-8,
-24,
-7,
-33,
67,
-12,
-47,
-16,
-17,
57,
27,
10,
-8,
10,
6,
15,
0,
-11,
32,
34,
-43,
16,
-14,
-20,
-24,
10,
-9,
-7,
-51,
-33,
66,
-13,
13,
-35,
-6,
-23,
-24,
6,
-5,
16,
-4,
19,
-13,
-1,
3,
20,
29,
-9,
0,
-31,
11,
12,
8,
10,
-5,
-2,
-13,
3,
-28,
-15,
26,
25,
-26,
-2,
-11,
44,
-30,
15,
-34,
10,
5,
38,
22,
-4,
54,
0,
55,
-11,
-15,
-17,
8,
8,
-20,
13,
43,
22,
-29,
-1,
-1,
-59,
42,
-2,
-1,
8,
-13,
11,
-42,
-35,
-30,
-11,
16,
15,
-21,
-35,
20,
-10,
-40,
66,
-39,
-1,
-24,
2,
-12,
30,
-8,
-7,
-36,
-35,
-36,
50,
-7,
28,
80,
13,
26,
25,
-27,
18,
-49,
-12,
23,
-46,
6,
45,
-66,
34,
-2,
17,
17,
-29,
-15,
-31,
53,
2,
26,
10,
37,
37,
-20,
-7,
17,
-13,
45,
-65,
-7,
-17,
-36,
-39,
18,
-5,
-52,
-22,
37,
-1,
-31,
2,
-9,
20,
-43,
5,
-43,
-27,
12,
67,
-23,
5,
19,
5,
-87,
2,
37,
8,
-9,
2,
8,
15,
12,
-27,
4,
-30,
-20,
-33,
-19,
17,
-26,
-29,
-22,
-43,
0,
10,
5,
-33,
12,
43,
23,
-47,
-41,
-52,
-10,
-1,
-17,
37,
-72,
7,
13,
-41,
-14,
-18,
44,
-3,
7,
-18,
20,
0,
50,
-45,
42,
14,
-18,
-37,
-2,
-5,
-1,
27,
-53,
3,
-42,
-20,
-43,
-41,
8,
64,
-10,
-46,
25,
-15,
0,
-50,
15,
-42,
-12,
-75,
-75,
61,
-43,
-19,
32,
-17,
25,
-33,
-8,
54,
7,
15,
27,
-42,
19,
-11,
25,
-21,
32,
-63,
25,
12,
-2,
11,
11,
-6,
-48,
-23,
7,
-6,
-9,
0,
33,
2,
22,
7,
-13,
24,
22,
34,
-11,
0,
1,
18,
-17,
2,
1,
-5,
41,
11,
-6,
-1,
-1,
29,
40,
18,
-44,
-46,
-17,
-3,
42,
46,
-37,
49,
36,
50,
13,
-83,
-4,
12,
37,
13,
43,
9,
21,
-42,
-19,
-21,
-5,
54,
17,
-7,
-87,
24,
25,
46,
-29,
1,
-9,
-25,
-65,
7,
10,
-33,
-30,
-19,
6,
-1,
6,
-7,
-23,
-2,
-25,
-11,
-10,
37,
49,
-31,
24,
13,
-20,
61,
-40,
-39,
-6,
38,
-8,
-2,
5,
-22,
48,
-5,
-27,
28,
-31,
40,
0,
-38,
9,
27,
-7,
9,
-41,
2,
15,
24,
52,
8,
43,
-8,
0,
20,
39,
29,
-41,
13,
-35,
25,
-20,
-33,
-39,
41,
55,
13,
10,
-12,
9,
15,
84,
-31,
29,
-29,
10,
0,
9,
7,
27,
7,
29
] |
McGrath, J.
This is trover for a bedroom set partially constructed by plaintiff upon defendant’s premises.
But two questions are presented. A witness called by plaintiff was asked how much it would cost to replace the set, or make another just like it. Plaintiff was an expert wood carver. The set had been the first constructed after a unique design invented by plaintiff. It was richly carved. It could not be said to have had an ascertained market value. The witness had himself worked upon the set ten and one-half months, and had testified that he knew how much time plaintiff had spent upon it. Other testimonjr had been given by experts of its value. Such opinions were, at best, but estimates. It was competent, in connection with such testimony, to show the actual cost of construction. Property is often the subject of legal valuation, concerning which no proof of value in the market can be given, because it is not brought into the course of trade, and it is incapable of any estimate in that mode. The value, in such case, is to be ascertained from such elements of value as are attainable.
The only other question raised is that the detention of the set by the president was without authority of the company, and he alone is liable in tort to plaintiff. This question does not seem to have been raised upon the trial below. On the contrary, the defense below was that the company had a lien upon the property for lumber and machine work which went into its construction. A bill for this work and materials, including other claims in favor of defendant and against plaintiff, was presented, and it was claimed that, for the lumber and machine work, defendant had á lien, and, further, that, upon presentation of the bill, plaintiff agreed that the set might remain until the bill was paid. Defendant cannot now and here be heard to say that the conversion was not its act.
The judgment is affirmed.
The other Justices concurred. | [
0,
31,
-29,
-37,
-7,
-43,
22,
21,
15,
-19,
34,
13,
38,
10,
31,
-1,
-15,
-28,
10,
10,
20,
-17,
-27,
0,
-9,
-9,
13,
0,
-17,
63,
-4,
-19,
-9,
-23,
-45,
42,
3,
26,
-23,
28,
50,
-25,
43,
-37,
14,
23,
36,
-52,
46,
20,
35,
-20,
27,
-17,
35,
-10,
-16,
26,
-24,
39,
24,
-35,
-20,
-34,
36,
-15,
50,
9,
-32,
-13,
-49,
35,
21,
-27,
4,
-52,
-36,
39,
-30,
-22,
16,
4,
16,
-6,
-23,
1,
22,
-13,
24,
2,
-36,
16,
32,
20,
-16,
49,
1,
53,
20,
36,
18,
44,
-44,
-15,
15,
-6,
-47,
-78,
-16,
10,
13,
-18,
1,
4,
0,
-1,
-45,
-23,
-21,
-8,
9,
44,
1,
-46,
10,
1,
25,
-30,
-4,
-27,
33,
7,
-40,
29,
-12,
-28,
5,
-12,
-6,
-20,
45,
51,
-14,
23,
-9,
18,
-5,
-9,
-62,
-30,
3,
25,
-27,
-14,
20,
-24,
-46,
-25,
24,
-69,
53,
-13,
-14,
-9,
15,
-21,
-14,
11,
17,
0,
24,
-3,
-25,
-31,
45,
50,
22,
-51,
-43,
-20,
-15,
-5,
40,
5,
18,
-15,
5,
39,
30,
8,
47,
11,
-44,
19,
-26,
-4,
-8,
-4,
3,
4,
-10,
-41,
14,
-15,
27,
-16,
-7,
-3,
12,
15,
-11,
11,
-58,
-41,
-6,
28,
5,
-17,
5,
-11,
-2,
-4,
-18,
-29,
-31,
-9,
3,
14,
98,
-13,
-89,
23,
-13,
-17,
-6,
-18,
12,
0,
19,
-31,
-14,
-19,
-45,
-17,
3,
-37,
-34,
15,
-16,
-12,
-22,
-23,
19,
42,
-11,
-7,
4,
74,
-23,
-54,
-15,
31,
23,
11,
35,
-9,
6,
10,
-32,
43,
-31,
5,
33,
40,
0,
-30,
-35,
-14,
-3,
-24,
21,
13,
-2,
0,
0,
9,
13,
25,
0,
-29,
37,
-9,
35,
-85,
55,
23,
-12,
-26,
-4,
-33,
-48,
-36,
32,
-27,
-9,
46,
0,
40,
-7,
17,
-14,
-28,
36,
-17,
48,
8,
-43,
-2,
-25,
-21,
2,
0,
-29,
15,
35,
-25,
34,
-47,
-51,
-6,
-38,
21,
26,
-6,
7,
-29,
58,
-18,
0,
22,
59,
16,
2,
-48,
-29,
35,
-4,
-49,
24,
-3,
32,
-7,
-38,
33,
32,
13,
-23,
8,
-2,
35,
71,
15,
16,
-14,
-14,
-15,
-11,
-16,
0,
23,
-19,
10,
-14,
-1,
8,
-42,
-33,
1,
-79,
49,
-5,
-19,
7,
-11,
34,
17,
-11,
-33,
0,
13,
-41,
-36,
24,
7,
-22,
7,
-36,
-33,
12,
-59,
-43,
3,
18,
-9,
-65,
-8,
-27,
13,
-33,
39,
-17,
-18,
-2,
-1,
-8,
-1,
22,
-16,
7,
28,
56,
20,
20,
21,
66,
-47,
-26,
2,
-47,
-1,
-61,
27,
-16,
-11,
7,
-2,
-2,
-7,
-48,
-8,
-49,
14,
-35,
-23,
48,
5,
-25,
43,
48,
-4,
-37,
-4,
-7,
5,
21,
-26,
20,
-89,
90,
4,
50,
0,
18,
-17,
26,
-29,
8,
-51,
1,
22,
26,
5,
65,
5,
16,
43,
13,
-11,
-13,
11,
30,
20,
50,
-14,
-44,
22,
-45,
4,
-1,
4,
-17,
25,
45,
-50,
-50,
8,
-15,
1,
10,
25,
-61,
-6,
-2,
-61,
23,
-60,
7,
4,
43,
14,
-17,
1,
30,
-12,
-37,
11,
57,
36,
9,
43,
14,
-70,
-25,
14,
-12,
64,
-10,
14,
44,
-59,
4,
32,
15,
22,
-20,
35,
-4,
-49,
39,
-24,
-45,
28,
31,
12,
1,
-6,
-36,
-38,
8,
9,
-23,
-29,
32,
35,
-26,
1,
23,
25,
-13,
5,
-3,
42,
17,
0,
36,
-26,
-20,
-4,
41,
21,
-38,
-30,
-29,
21,
-54,
-20,
-58,
16,
-26,
-18,
-19,
-15,
-24,
-29,
-76,
-11,
16,
34,
13,
30,
-43,
-19,
22,
-28,
-40,
-24,
-27,
-16,
32,
-28,
-24,
-11,
-42,
-51,
-28,
3,
-11,
78,
2,
27,
31,
4,
-6,
-21,
22,
25,
-8,
-14,
34,
31,
34,
2,
-50,
-7,
-5,
-3,
-11,
-2,
-27,
6,
-12,
-22,
-10,
23,
21,
6,
39,
-12,
-47,
-22,
6,
5,
-2,
-27,
-24,
8,
-6,
52,
-48,
17,
5,
-3,
48,
39,
1,
16,
14,
-24,
10,
-14,
31,
-11,
27,
12,
-42,
20,
6,
-4,
10,
1,
9,
1,
0,
23,
18,
-23,
-41,
18,
-1,
31,
36,
-57,
5,
-10,
-25,
27,
-16,
-4,
48,
-31,
-23,
-13,
47,
-42,
5,
60,
-21,
-20,
5,
-10,
-22,
3,
36,
-1,
5,
10,
13,
-2,
-9,
-14,
41,
-9,
-2,
18,
-2,
35,
2,
-13,
-48,
-28,
29,
-22,
49,
-30,
-6,
-8,
19,
25,
22,
4,
-9,
9,
-27,
7,
-33,
-2,
-18,
-29,
19,
-11,
-11,
17,
-24,
-42,
-22,
-3,
50,
13,
-48,
56,
-6,
33,
33,
-7,
-23,
-4,
-32,
-22,
2,
-11,
-1,
0,
-83,
10,
33,
-7,
-20,
-62,
18,
-27,
-4,
10,
0,
23,
8,
21,
44,
59,
48,
3,
27,
-25,
-13,
52,
-39,
-37,
24,
-27,
28,
42,
-6,
5,
22,
14,
-3,
-41,
29,
21,
7,
-21,
7,
43,
49,
7,
30,
7,
-52,
0,
4,
-5,
9,
-67,
-11,
-36,
-39,
-27,
0,
26,
-20,
40,
1,
33,
-40,
-36,
34,
-45,
0,
2,
-7,
-16,
11,
-36,
-47,
7,
41,
12,
-34,
21,
-5,
10,
19,
1,
-14,
42,
43,
-5,
-16,
17,
-49,
20,
-15,
27,
33,
6,
-11,
-4,
17,
41,
44,
-1,
10,
11,
9,
38,
4,
-3,
-4,
-12,
47,
-1,
62,
43,
8,
-25,
19,
-9,
-22,
4,
41,
11,
24,
43,
-35,
0,
-2,
9,
34,
-45,
-18,
10,
18,
-29,
18,
-3,
0,
-14,
3,
-33,
9,
-9,
-27,
31,
-14,
42,
51,
0,
2,
10,
-43,
-9,
32,
-2,
0,
19,
-22,
39,
-6,
-2,
-27,
19,
-14,
-9,
-25,
16,
1,
2,
7,
7,
-51,
28,
-26,
-40,
23,
43,
8,
-31,
-35,
-49,
-34,
2,
18,
-38,
0,
36,
-1,
-29,
-22,
0,
8,
-17,
36,
60,
-2,
37,
-30,
-15,
-36,
-42,
-42,
-36,
-12,
13,
9,
0,
32,
16,
40,
12,
-6,
-93,
5,
-12,
-12,
-65,
0,
-6,
16,
-32,
-24,
31,
24,
-13,
3,
-3,
19,
-20,
-4,
7,
-8,
6,
29,
5,
-22,
8,
-14,
-44,
42,
-39,
-4,
-13,
-30,
-5,
21,
18,
27,
-42,
0,
23,
-18,
-62,
-31,
11,
67,
36,
-25,
11,
-28,
30,
25,
-28,
70,
28,
38,
44
] |
Grant, J.
I concur witb my Brother Montgomery that there was no negligence in the rate of speed of the defendant’s train, or in the piling of the wood along its track. I think the circuit judge was correct in directing a verdict for the defendant.
1. The plaintiff’s wife was herself guilty' of contributory negligence. The road was dry and hard. She had two horses, and a lumber wagon with a box, and a spring seat fixed upon the box. She did not stop her team to listen. She had been for a long time familiar with the crossing, and had frequently driven over it. When upon the little rise of ground from 90 to 100 feet from the crossing, she looked to the west, and saw no train approaching. The horses were accustomed to the cars, and were not afraid. They were farm horses. She said she was on a slow walk. She did not stojr, and the horses stepped upon the track just as the train struck them. If the woodpile, from the rise of ground to the track, obstructed her view of the approaching train, it was her duty to stop and listen when nearer the track. Had she stojtped upon the rise of ground, it is quite probable that she would have heard the train. She testified:
“I did not stand still. My horses were on a walk, and when I got there I pulled on the linés, and came almost to a standstill, and looked, and listened if I could hear the cars, and I did not hear them, so I went along. I was on a slow walk. * * * I did not stop. I drove right onto the crossing. The horses were between the rails when I first saw the train. When I got on the track the train was right there.”
She did not listen for any train or signals, from the rise of ground to the track. She evidently assumed that there was no danger of the approach of a train before she could get across. In this she was not in the exercise of common prudence, either for her own safety, or that of those traveling upon the railroad. Van Auken v. Railway Co., ante, 307, and authorities there cited.
But, according to the evidence of her own witnesses, •when she came within 20 feet of the track she could have seen the train, had she looked. It is no excuse to say that she was looking to the east. The track to the east Was in plain view for some distance back from the cross ing. The danger, if any, was from the other direction. She could, however, have looked both ways in an instant, and had ample time to stop within 20 feet. 'While she was Avalking her team, according to her own testimony, less than 100 feet, the train, which Avas running at 'a laAvful rate of speed, ran about 80 rods. Passengers upon the highway must be charged Avith knoAvledge of the lawful rate of speed at which trains may run, and must govern themselves accordingly. Trains are not limited in the rate of speed they may run in the country, and across the public highways, where the travel is limited. The •commerce of the country demands rapid! transit. Robinson v. Railroad Co., 79 Mich. 328.
These trains must run where the view is obstructed by cuts, by embankments, by trees, and other things. He who does not choose to stop and listen, where he cannot see, must suffer the consequences of his own negligence. My OAvn vieAVS of the duties of travelers upon the highway, in approaching railroad crossings when they cannot see, are fully expressed in Van Auken v. Railway Co., supra, and the authorities there cited.
2. The court Avas, in my judgment, correct in holding that it Avas conclusively established by the evidence that the statutory signals were given. I deem it proper to refer to the entire testimony in the case on this point, and the circumstances surrounding each witness who has testified thereto, in order that there may be no misapprehension of the facts to which the law is to be applied.
Mrs. Shufelt's testimony amounts simply to this: That, if the signals Avere given, she did not hear them. The only reason she had for saying that they Avere not given was because she did not hear them. She was in the midst of the noise made by two horses and a lumber wagon traveling over a hard road, and did not listen from the time she left the rise of ground until she reached the track.
Miles J. McKay was sitting on his horse, 30 or 40 rods south of the crossing, facing west of north, and was watching the train all the time it came around the curve. He was waiting for a man who was coming across a farm near where he stood. His testimony, on direct examination, is: “I did not hear any signal, — whistle or bell.” On cross-examination, he said: “I was not paying particular attention to the whistle and bell; had no occasion, that I know of, particularly.”
Yirgil Wells and his brother were driving with a team about half a mile north of the crossing, saw the train come around the curve, and testified: “We did not hear the train whistle or ring any bell.” On cross-examination he said: “I did not hear whistle or bell. They might have sounded. I did not hear them. That is as much as I can say about it.”
Cephas Wells was with the last witness at the time. He testified: “I saw the train a minute or two, — a second or two. I did not hear it whistle or ring. We were within hearing distance. I did not notice any indications of a whistle, by a puff of steam or anything. I was watching it as it rounded the curve.” Cross-examination: “I wasn't paying attention to see if the whistle or bell sounded. I wasn't interested. All I can say on that subject is, I didn't hear it.”
Timothy Fee was a farmer whose house was about 40 rods west of the highway, and 30 rods south of the railroad. He- was in his field west of his house, cutting corn. He said: “I did not notice the train when it passed. I did not hear it whistle or ring. It is a general occurrence for trains to pass there every day. I paid no attention to the like. I was within hearing distance, but I did not hear it.” Cross-examination: “I paid no attention to the train. I might have seen it, but did not remark it. I can't say I saw it. I don't remember whether I did or not. I won't swear it did not ring or whistle either. I did not hear it to draw my attention. Trains pass and repass so frequently I pay no attention, unless they whistle to drive stock off.”
Justus Berry lived 80 rods north of the crossing. From his house the railroad is visible from the curve to the crossing. He was at work to the west of his house, and saw the train just as it came out of the curve. He said: “1 can’t say positively whether it whistled or rung, or either. I can always hear them plain, and usually note it; but I can’t say, in regard to that special train, whether it did or didn’t. I don’t remember hearing it. I did when they got down to the crossing. I heard them toot the alarm. I thought it was cattle. They were then behind the woodpile, very close to the crossing, I should judge.”
The above is all the evidence on the part of the plaintiff on the subject of signals.
The engineer of the train testified positively that he sounded the whistle for the crossing. The fireman and the conductor also testified that the whistle was blown. The conductor testified that the train was behind time; that he had passengers for Grand Bapids, was anxious to make the connection at Beed City, and was listening for the sound of the whistle. The bell was rung automatically, by air; and the fireman testified it was last started at Chase, seven miles west; that it rung continuously from there till the time of the accident; and that he stopped it after the accident. The engineer also testified that the bell was ringing.
Joseph Finsterwald was at the depot in Beed City, waiting for this train. He testified that while standing upon the platform he heard the crossing whistle; that at the time it whistled he was walking with another man to the west side of the depot to get a cigar; that on hearing the whistle for the crossing he remarked to his companion that they would not have time to get the cigar; that his companion, who was one of the employés of the depot, replied that they would have time, as the train stopped a few minutes. The3r got the cigar, and on their return saw the train standing about half a mile up the track.
Nathaniel' Clark, a resident of Reed City, was coming towards the south, on this same road, about 80 rods north of the crossing. He heard the crossing whistle, — two whistles. Shortly after that he heard the whistle again. He was then going up a grade in the road, and the crossing was hidden from his' view. On reaching the top of the grade, he saw the train backing up. He testified: “I know, by sound, the first whistle I heard was for Walker’s crossing. The next would be about at the curve west of the highway. I am positive I heard the whistle, and also heard the bell ring.”
Augustus Roberts lived about a hundred rods south of the crossing, Was in his field, sowing grain, and heard a whistle. He said: “It seemed the usual short whistle, and I did not pay any attention to it. It was a locomotive whistle for the crossing.” Afterwards, he saw the train backing up.
Samuel Wolfe is a farmer, and has lived in the vicinity 21 years. He was in the smoking car of the train. He testified that he had been noticing the whistles for several crossings west of this one. He heard the whistle foi; this crossing. He wanted to take the train north at Reed City, and knew that this train was late.
Louis Barrett lived in Reed City. Was approaching the crossing from the depot at the time. He did not see the train' until it was standing on the track near the crossing. Was familiar with locomotive whistles. Supposed the crossing whistles to be two whistles, — two long blasts. Heard two whistles, and said it might have been more.
Marcus Laffler was at the depot, waiting for the train. Was standing between the rails. There was quite a crowd upon the platform. He was facing west, watching for the train. Saw steam escape, and then heard the sound of the whistle, after which the train came down, and stopped about half a mile from the depot. There were one or two blasts of the whistle, and the steam sailed to the south. “I saw one puff of steam, and heard a short blast of the whistle, and there were two or three long puffs of steam, and two or three sounds.”
John I. Edwards was waiting at the depot to take the train. Walked to the extreme west end of the station, and stood looking west up the track. Heard the usual whistle for the crossing.
William Hogan lived at Reed City. Was about 30 or 40 rods east of the crossing. Heard the train coming, and saw it. Heard the whistle, and saw the escaping steam from the whistle. The train was just then rounding the curve west of the crossing. It was the crossing whistle. On cross-examination he said that the first whistle was blown around the curve, where he could not see the curve. He went out for the purpose of driving some cows off the track.
John Einkbeiner testified: “Heard the train when it was coming to Reed City. Heard the whistle, but did not know whether it was for the crossing or for the curve.”
Fred Kopnick was working in a mill east of the crossing, — the same mill where the two last witnesses were employed. Heard two whistles. Afterwards, he heard another one, and then saw the train backing up.
F. 0. McCollum, a physician, was on the train. Had been reading a few days before how they made signals by whistles, and recollected that two toots, followed by two short ones, were the signal for a crossing, and, having nothing else to do coming home, watched all the crossings. He heard two whistles, followed by two short ones, and knew that this was the last crossing before entering Reed City. He said: ffI am positive the signal whistle I heard on that train was for that crossing.”
George Forest was on the train. Heard the whistle for this crossing. He said it was a regular crossing whistle,— two long and two short.
Barlow Davis, postmaster at Evart, was at the depot, standing on the track, when the train came around the curve. He remembered very distinctly that it whistled, and that the whistle he heard was the usual signal for a crossing.
Of the six witnesses for plaintiff, not one was paying any attention or listening for the signals. One did not even hear the train. The testimony is purely negative, and of the weakest character. We know from common experience that people usually pay no attention to sounds to which they are daily accustomed. All these witnesses lived for several years in close proximity to this railroad, where these signals were given many times daily. Placing this testimony in the strongest light for plaintiff, and it shows only that these six witnesses were in position where they might have heard the signals, had they been paying attention and listening; but they were not, and therefore they cannot tell whether they were given, as some of them frankly state. The duty to give these signals is imposed by statute, and the presumption is that defendant’s employés performed it. It was therefore incumbent upon plaintiff to overcome this presumption by competent evidence, from which the jury might justly infer the fact that the duty was disregarded. Whether, in the absence of any evidence by defendant, a ease was made for submission to the jury, we need not determine. Of the 16 witnesses who testified for the defendant, 6 were upon the train, were paying attention, and swear positively that the signals were given. Of the other ,10, 8 swear positively that they heard them, and the fair inference from the testimony of the other 2 is that the signals they heard were the regular crossing signals. The danger signals are so different from the crossing signals that one would readily note the difference. To submit the ■question to the jury, under this evidence, would be equivalent to saying to them that they might base their verdict upon prejudice, and not upon the facts proven. A verdict for the plaintiff, under this evidence, would be a reproach ■upon the jury that rendered it, and upon the court which permitted it to stand.
This precise question was involved in Lake Shore & M. S. R. R. Co. v. Miller, 25 Mich. 274, where the evidence •on the part of the plaintiff was substantially the same as in the present case. The charge of the court substantially ■directed a verdict, and this Court held that if the verdict had been contrary to the instruction the court should have promptly set it aside.
It has also been decided by the court of appeals of New York. Culhane v. Railroad Co., 60 N. Y. 137. It is there said:
"It is proved by the positive oath of the two individuals •on the engine, one of whom rang it, and by two others, who witnessed the occurrence, and heard the ringing of the bell. The two witnesses for the plaintiff merely say they did not hear the bell, but they do not say that they listened, or gave heed to the presence or absence of that signal. * * * As against positive, affirmative evidence, by credible witnesses, to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it, to .authorize the submission of the question to the jury. It must appear that they were looking, watching, and listening for it, that their attention was directed to the fact, so that the evidence will tend, to some extent, to prove the negative. A mere, 'I did not hear/ is entitled to no weight, in the presence of affirmative evidence that the signal was given, and does not create a conflict of evidence, justifying a submission of the question to the jury as one of fact."
Beauchamp v. Mining Co., 50 Mich. 163, is not decisive of this case. There is mo similarity in the facts, Avhich are not stated in the opinion. Young Beauchamp was struck by a stone when he was 500 feet from the defendant's mine. No statutory warning was there required. The sole question was not, as in this case, whether the warning was given, but also whether, if given, it was sufficient. There Avas no stated time for these blasts. The warning Avas usually given by the cry of “ Fire " by the miners. If that warning cry was given, still the question remained for the determination of the jury whether it was sufficient. There was evidence tending to show that the warning Avas given from íavo to five minutes before the blast, and Avhile the deceased was in a store a still further distance from the mine, and that Avhen he Avas struck he Avas behind an elevation where he could neither see the mine nor be seen by the miners. The writer of this opinion was the circuit judge before whom that case Avas tried. The issue involved, so far as the notice is concerned, will appear from the folloAving portion of the charge:
“ If the defendant cries out from near its mine, ‘ Fire/ it must go further, and cry out in such a way that any persons Avithin reach of where these stones were liable to be thrown would naturally be expected to hear the warning or alarm so given. As to whether such notice Avas given, you Avill take into account the surroundings, the situation, the distance to the road, the place where the boy Avas hit, and whether there was a hill or elevation between him and the place where these men Avere at the mine when the signals were given."
The defendant requested the court to charge, not only that the warning cry Avas given, but that it Avas sufficient to Avarn the deceased, who was out of sight, behind an elevation, and these two propositions were united in the same request.
The judgment is affirmed. | [
-1,
33,
6,
-18,
-32,
-6,
8,
62,
17,
1,
-6,
-2,
48,
-7,
18,
-45,
-20,
-16,
-62,
-4,
-21,
8,
-9,
32,
-55,
-9,
8,
-8,
-4,
37,
51,
29,
-44,
-6,
22,
2,
31,
30,
-10,
11,
14,
10,
-21,
-12,
23,
23,
57,
-22,
3,
-20,
64,
0,
13,
-35,
59,
24,
14,
31,
-32,
-29,
66,
-37,
-43,
-24,
2,
20,
17,
-29,
-79,
14,
-22,
4,
-12,
27,
-1,
20,
-3,
31,
-10,
26,
11,
-22,
15,
-9,
5,
-25,
-4,
-28,
-36,
-18,
4,
-16,
-49,
-6,
3,
23,
2,
-10,
3,
-3,
-37,
26,
18,
-18,
-30,
-15,
-4,
-45,
-11,
-29,
-6,
51,
-14,
11,
2,
3,
-8,
-72,
-18,
-8,
42,
-40,
24,
28,
-31,
-16,
7,
27,
-5,
0,
37,
-8,
-21,
-37,
54,
-43,
-78,
-38,
24,
-16,
-29,
44,
-5,
-30,
-26,
-23,
-40,
26,
-19,
-12,
10,
4,
-32,
-97,
3,
-27,
-11,
-28,
31,
2,
41,
78,
-17,
-10,
-91,
-6,
20,
-38,
-5,
25,
10,
3,
39,
-19,
68,
0,
-4,
6,
-41,
-10,
28,
8,
0,
37,
-56,
-15,
8,
39,
-36,
17,
31,
-7,
-15,
-42,
-12,
75,
-18,
6,
44,
-29,
18,
10,
-56,
36,
-54,
3,
-65,
0,
45,
-15,
17,
21,
-24,
-22,
-3,
0,
-18,
-45,
-6,
-56,
39,
-20,
20,
-2,
15,
-56,
-77,
9,
-13,
28,
16,
4,
-19,
-2,
-7,
-29,
22,
-77,
26,
-6,
47,
-23,
21,
-10,
18,
-12,
-7,
-29,
0,
23,
-26,
7,
-26,
47,
23,
-7,
67,
26,
-1,
-64,
-13,
29,
12,
34,
57,
4,
-65,
32,
-34,
-7,
55,
-21,
15,
-23,
-6,
-47,
40,
53,
-2,
50,
39,
25,
-27,
38,
-65,
-9,
-37,
21,
24,
-19,
69,
-76,
0,
38,
4,
85,
50,
43,
-28,
-50,
77,
-12,
13,
5,
67,
35,
-13,
7,
-26,
31,
-34,
-9,
34,
24,
20,
-3,
23,
-48,
7,
-25,
-42,
-31,
-19,
-42,
35,
37,
9,
-53,
6,
54,
-12,
85,
30,
21,
31,
-17,
-15,
2,
-36,
-22,
-11,
19,
32,
-18,
3,
-10,
35,
-15,
-19,
0,
-21,
12,
41,
-85,
-10,
-60,
20,
-60,
28,
-10,
11,
-7,
71,
13,
13,
-53,
13,
-63,
-29,
-5,
54,
-45,
47,
-22,
4,
-16,
24,
34,
-5,
40,
-20,
-18,
20,
0,
-11,
-30,
-61,
-26,
-30,
99,
-35,
-42,
38,
29,
5,
-15,
-4,
48,
-37,
-16,
-35,
-38,
27,
18,
-17,
-23,
6,
-33,
13,
32,
-32,
29,
62,
-25,
38,
-9,
40,
1,
-10,
42,
55,
1,
74,
19,
-26,
-23,
-3,
-49,
2,
-9,
-1,
-34,
37,
-8,
-12,
2,
-12,
-5,
-68,
-12,
-11,
-8,
13,
72,
-30,
26,
-34,
-1,
30,
-16,
51,
-10,
4,
37,
14,
1,
31,
-11,
9,
36,
-12,
28,
20,
38,
63,
-48,
39,
-40,
85,
17,
54,
5,
-12,
26,
25,
17,
-34,
37,
5,
-16,
-37,
-19,
-13,
-42,
-4,
-23,
-12,
-62,
61,
48,
50,
50,
-24,
-62,
-21,
8,
9,
7,
-13,
28,
-47,
-30,
66,
-33,
39,
13,
6,
-19,
3,
9,
7,
-37,
40,
21,
-19,
9,
-41,
-29,
-2,
-1,
11,
-39,
-19,
-60,
20,
49,
0,
-41,
9,
-58,
51,
18,
-2,
23,
9,
-14,
-1,
-10,
17,
-5,
-21,
11,
-25,
-46,
16,
7,
75,
-18,
-6,
22,
56,
19,
0,
-14,
-9,
-39,
-26,
-24,
1,
-2,
19,
1,
27,
-42,
28,
9,
-3,
-12,
26,
-42,
14,
3,
-10,
-6,
-57,
26,
-13,
56,
-23,
-19,
-8,
-5,
-48,
13,
-8,
5,
13,
15,
-46,
5,
-63,
-1,
26,
12,
6,
-36,
5,
-15,
41,
14,
12,
-42,
-61,
30,
26,
20,
15,
-4,
6,
-1,
19,
-17,
1,
13,
30,
11,
-43,
-23,
21,
-27,
-67,
-28,
-71,
-27,
-43,
-43,
30,
72,
-8,
-40,
-38,
51,
-17,
41,
-34,
29,
4,
-24,
-26,
24,
8,
-3,
4,
-20,
20,
-5,
-71,
21,
-38,
7,
-11,
34,
-34,
-37,
25,
35,
18,
26,
-90,
-23,
31,
-3,
44,
2,
-58,
2,
-60,
12,
-23,
-14,
17,
-44,
32,
29,
7,
-24,
13,
15,
-29,
31,
9,
-19,
52,
-69,
-11,
4,
-65,
85,
22,
-4,
-19,
9,
35,
87,
-21,
-13,
35,
-6,
11,
0,
30,
-4,
20,
-8,
25,
-33,
0,
-50,
11,
31,
9,
38,
-18,
-7,
-35,
-6,
-12,
-23,
-15,
-26,
49,
-21,
13,
-30,
-22,
-15,
38,
-27,
37,
-6,
1,
28,
-28,
22,
-33,
-28,
22,
-10,
22,
-36,
-3,
3,
29,
-14,
-24,
17,
37,
-12,
14,
-7,
42,
26,
81,
-19,
-15,
-53,
6,
-4,
3,
-86,
36,
-32,
-89,
-20,
-19,
18,
-38,
-3,
1,
17,
-25,
-7,
-12,
2,
-19,
39,
50,
-23,
45,
35,
-32,
-13,
15,
46,
14,
-19,
-7,
-18,
-15,
-8,
35,
42,
-11,
39,
0,
-5,
-75,
-13,
-1,
-6,
0,
-27,
-30,
16,
0,
5,
2,
26,
15,
14,
30,
-25,
-37,
-35,
-7,
-10,
24,
40,
12,
-2,
2,
64,
-14,
-42,
0,
23,
57,
-75,
43,
-19,
21,
-30,
-47,
68,
-19,
3,
43,
-12,
-10,
26,
8,
32,
-7,
-1,
50,
-42,
-33,
7,
-9,
58,
-10,
3,
30,
-20,
-27,
-47,
-3,
31,
0,
61,
-51,
-21,
-65,
-34,
-14,
-13,
-21,
1,
-1,
-32,
-37,
34,
-17,
36,
-25,
-1,
-10,
-23,
3,
17,
-36,
-67,
3,
53,
-10,
-30,
-43,
-47,
0,
18,
-14,
-24,
32,
37,
-27,
-21,
-43,
36,
26,
36,
-15,
52,
4,
21,
6,
-45,
-39,
-29,
-40,
18,
-12,
1,
-14,
-29,
-25,
52,
-56,
-26,
18,
-7,
2,
16,
38,
15,
-4,
53,
-14,
14,
-6,
20,
-27,
-30,
6,
-19,
14,
37,
-19,
-33,
2,
-9,
20,
-33,
-95,
62,
4,
-4,
-13,
5,
-32,
-21,
43,
43,
20,
21,
10,
-16,
-38,
-6,
-16,
21,
21,
47,
8,
29,
27,
-24,
45,
-3,
-17,
10,
12,
-32,
6,
-44,
69,
15,
15,
-21,
-21,
-31,
61,
7,
26,
38,
12,
-48,
1,
-50,
-32,
10,
-36,
-17,
-9,
18,
-21,
-25,
-41,
-48,
6,
-47,
-10,
-69,
-5,
25,
64,
-25,
19,
70,
4,
-20,
-54,
37,
69,
54,
4,
38,
-15,
-24,
-10,
-71,
32,
87,
41,
19
] |
Montgomery, J.
A bill was filed in the Wayne circuit to restrain the statutory foreclosure of a mortgage. The relief prayed for was granted, and the defendant appeals.
James Minock and Bridget Minock were husband and wife. The land in question was conveyed to them on the 8th of June, 184=6, by a deed in which they are named as grantees, as “James Minock and Bridget Minock, his wife.” On the 15th of March, 1882, James Minock had been adjudged insane, and the defendant, his son, had become liable to pay the expenses incurred in his defense on a criminal charge, and to be incurred in maintaining him at the asylum. With the expressed purpose of securing to defendant the repayment of these advances, Bridget Minock, on the 15th of March, 1882, executed the mortgage in question, which recites a consideration of $1,000 to the party of the first part, and provides:
“ The party of the first part * * * has granted, bargained, sold, remised, released, enfeoffed, and confirmed, and by these presents does grant, bargain, sell, remise, release, enfeoff, and confirm, unto the said party of the second part, and to his heirs and. assigns, forever, all those certain pieces or parcels of land [a description of which follows], together with the hereditaments and appurtenances thereunto belonging, or in any wise appertaining.
“ To have and to hold the above bargained premises unto the said party of the second part, and to his heirs and assigns, to the sole and only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns, forever.”
This grant is followed by the usual defeasance and power of sale, containing the further provision:
“And on such sale to make and execute to the purchaser or purchasers, his, her, or their heirs and assigns, forever, good, ample, and sufficient deed or deeds of conveyance in law, pursuant to the statute in such'' case made and provided.”
1. It will be seen that the mortgage does not purport to be given for the debt of the wife, but is given to secure obligations primarily those of her husband; nor was the mortgage given upon what was, at the time of its execution, her separate estate. She and her husband were tenants in the entirety, and neither could convey without the other joining in the conveyance. Fisher v. Provin, 25 Mich. 347; Ætna Ins. Co. v. Resh, 40 Id. 241; Manwaring v. Powell, Id. 371; Allen v. Allen, 47 Id. 74; Vinton v. Beamer, 55 Id. 559; In re Appeal of Lewis, 85 Id. 340.
2. It is contended, however, that the mortgage debt was wholly for necessaries furnished to James Minock, an insane person, for which his estate, or his right of survivor-ship in the farm, was clearly liable, and the giving of the mortgage by Bridget Minock bound her interest or right of survivorship, so that the mortgage was, from the beginning, a perfectly valid security. We do not think this contention can be allowed. The validity of the instrument as a conveyance of an interest in land cannot depend upon the question of whether the moral obligation of the husband to pay or secure the payment is greater or less.
3. It is next contended that, the mortgage evidencing an intent to convey the title to the property described subject to the defeasance, Mrs. Minock and her heirs are estopped from asserting an after-acquired title, and hence that, when, on her husband’s death, the full title vested in her, the mortgage from that moment bound the estate. This contention is based both on the claim that such is the common-law doctrine of estopped by deed, and also that the statute (section 8506, Plow. Stat.) is effectual to estop Mrs. Minock and her heirs. This section, so far as is material to the question here, is as follows:
“Unless the premises described in such deed [referring to deed on foreclosure] shall be redeemed within the time limited for such redemption, as hereinafter provided, such deed shall thereupon become operative, and shall vest in the grantee therein named, his heirs or assigns, all the right, title, and interest which the mortgagor had at the time of the execution "of the mortgage, or at any time thereafter, except as to any parcel or parcels which may have been redeemed and canceled as hereinafter provided.”
In Brayton v. Merithew, 56 Mich. 166, this statute was construed, and it was held that, as to one not under disability, the execution of a mortgage with this statute in force operated to pass, not only the estate actually owned by the mortgagor at the time, but an after-acquired title; or, in effect, that the statute is to be read into the mortgage, as a part of the contract. It is unnecessary, therefore, to determine what the rule would be in the absence of this statute. If this mortgage was, at its inception, such a contract as a married woman is entitled to enter into in this State, it must be held effectual to pass the title which vested in her at her husband’s death. But herein lies the difficulty. As already stated, neither the husband nor the wife could convey the estate vested in them in the entirety, unless both joined, and any instrument by which either attempted to make such conveyance would be void. See 2 Bl. Comm. 182, and cases above cited. The wife’s power to make contracts is not, general, but is statutory, and cannot be extended beyond the statutory limits. In the present case, as we have already pointed out, the attempt to convey the title which she held at the time in this property was ineffectual. Had she, in terms, contracted to bind an after-acquired estate, there is no authority, either at the common law or by the statute, by which she could have done so, for a consideration passing to another person. It has been repeatedly held that the statute of 1855 confers upon the Avife poAver only to contract and bind herself in relation to her property and estate already possessed, or referring to it, or in relation to property to be acquired by the contract, or in consideration of it. See Johnson v. Sutherland, 39 Mich. 579; Kenton Ins. Co. v. McClellan, 43 Id. 564; Reed v. Buys, 44 Id. 82. See, also, as bearing indirectly upon the subject, Hovey v. Smith, 22 Mich. 170; Kitchell v. Mudgett, 37 Id. 81; Carley v. Fox, 38 Id. 389.
It folloAvs, from the views expressed — First, that the mortgage was not valid, in its inception, to convey any estate; second, that it could not be effectual to pass an after-acquired title, because of the incaiDacity of the mortgagor.
The decree below was right, and will be affirmed, with costs.
The other Justices concurred.
James Minock was acquitted on bis trial for murder on the ground of his insanity, and his son became responsible for his support at the asylum. | [
-3,
18,
-24,
4,
5,
0,
48,
33,
29,
-15,
6,
-20,
3,
11,
18,
22,
-9,
-25,
-9,
3,
17,
1,
-59,
-7,
17,
29,
44,
-49,
0,
8,
23,
10,
-40,
35,
3,
-60,
-3,
-38,
34,
-11,
-2,
15,
-1,
58,
-26,
15,
5,
-59,
-21,
-4,
-46,
-63,
42,
-3,
-5,
26,
-26,
3,
-39,
-23,
7,
-52,
-18,
22,
-38,
6,
17,
1,
9,
-29,
25,
-15,
-5,
-6,
22,
16,
15,
-19,
-26,
-38,
7,
-19,
17,
-41,
-33,
-50,
-7,
-4,
-38,
32,
-18,
-11,
-12,
-1,
13,
-31,
-4,
53,
5,
47,
-22,
10,
41,
53,
-2,
-5,
-18,
-25,
-12,
17,
4,
-20,
34,
8,
-4,
-11,
-32,
12,
-8,
4,
-3,
-26,
-17,
-23,
-8,
-2,
-58,
-32,
11,
14,
-9,
-13,
-34,
-5,
-39,
-40,
-3,
19,
-14,
-24,
5,
-30,
-20,
-51,
-7,
-14,
28,
-61,
16,
7,
-18,
9,
30,
48,
62,
-61,
17,
-1,
2,
0,
9,
-19,
21,
2,
-71,
-43,
-4,
-24,
-12,
12,
10,
48,
-58,
-14,
7,
-7,
38,
-41,
-2,
-13,
29,
44,
-23,
22,
12,
24,
14,
-9,
21,
-20,
-6,
-15,
-23,
-14,
8,
12,
-19,
-24,
4,
-4,
-33,
6,
-3,
8,
30,
-36,
-1,
2,
0,
-44,
-46,
6,
19,
8,
-34,
24,
28,
0,
9,
-12,
41,
54,
9,
46,
-72,
-39,
9,
11,
-11,
-10,
-20,
-4,
3,
-2,
3,
26,
-35,
13,
-16,
-14,
-20,
13,
36,
-24,
-33,
-9,
5,
21,
11,
16,
-41,
29,
-4,
30,
30,
54,
16,
-22,
-2,
-12,
-14,
-13,
-23,
0,
87,
-11,
35,
-24,
7,
0,
-8,
-32,
28,
66,
-43,
-31,
-42,
8,
-36,
-27,
49,
-12,
-25,
-8,
-10,
-3,
-5,
-1,
-22,
14,
19,
-75,
-7,
9,
19,
8,
-17,
-4,
12,
48,
-20,
-29,
3,
-14,
-4,
7,
-2,
-11,
-3,
-6,
-34,
-17,
-6,
6,
9,
21,
-7,
-2,
-27,
0,
55,
-2,
-32,
-40,
57,
-6,
20,
-13,
-52,
56,
-5,
-27,
0,
3,
-7,
45,
7,
-16,
-3,
-28,
-12,
-5,
23,
19,
6,
-4,
-16,
22,
-27,
26,
-39,
17,
-34,
12,
-25,
-11,
-6,
-13,
17,
18,
9,
-18,
-6,
-33,
8,
-29,
-1,
-35,
2,
0,
55,
50,
0,
18,
9,
11,
-32,
-6,
0,
40,
0,
19,
59,
39,
14,
39,
-36,
-28,
12,
23,
-58,
15,
16,
6,
-21,
-53,
-21,
-25,
-81,
-45,
19,
17,
-37,
21,
-37,
25,
4,
12,
-40,
30,
-17,
-2,
11,
-18,
-15,
2,
33,
0,
23,
10,
-14,
18,
39,
-20,
-14,
11,
38,
-6,
4,
-42,
-38,
45,
57,
37,
54,
25,
-47,
24,
-45,
18,
60,
39,
7,
39,
3,
25,
-38,
-53,
55,
-6,
10,
-41,
7,
-9,
-22,
13,
22,
6,
-27,
-19,
43,
-49,
26,
-28,
34,
-13,
-21,
5,
-11,
-41,
36,
-4,
28,
-67,
-25,
15,
7,
11,
10,
-39,
5,
-3,
11,
24,
-6,
-35,
-67,
-26,
-8,
-30,
58,
-36,
42,
12,
32,
-27,
0,
-38,
-32,
13,
34,
44,
39,
19,
3,
-28,
-9,
3,
0,
39,
17,
-23,
2,
52,
-24,
32,
57,
0,
56,
-19,
36,
15,
-46,
-4,
-24,
-37,
15,
55,
-14,
-13,
-23,
14,
-22,
4,
-34,
25,
-16,
3,
64,
-34,
-33,
0,
-15,
54,
-15,
1,
30,
-20,
10,
9,
-19,
-41,
-24,
39,
4,
11,
-26,
-14,
12,
8,
-9,
-25,
13,
-40,
19,
-50,
23,
-71,
-36,
35,
-23,
2,
-26,
19,
0,
-39,
-9,
-11,
-19,
46,
-11,
-26,
38,
-32,
22,
51,
-5,
40,
-37,
27,
17,
24,
21,
0,
-12,
-44,
9,
14,
-14,
3,
-37,
32,
-10,
-33,
4,
-20,
0,
15,
49,
-3,
-12,
25,
4,
0,
-11,
6,
-38,
-3,
-49,
4,
-4,
47,
-4,
-70,
-11,
9,
26,
29,
-9,
40,
36,
-38,
45,
7,
-10,
31,
6,
-11,
0,
-22,
-36,
34,
-59,
5,
-34,
49,
-28,
-32,
27,
-32,
-34,
-1,
-17,
-42,
63,
22,
45,
2,
-18,
-45,
56,
-43,
23,
52,
25,
-7,
5,
15,
-49,
12,
15,
-3,
60,
-4,
22,
31,
-29,
21,
34,
-15,
-6,
-33,
7,
8,
12,
5,
12,
-57,
-1,
49,
13,
-41,
-27,
-22,
-33,
-20,
-1,
39,
42,
26,
76,
-53,
48,
14,
-2,
16,
-8,
21,
-67,
-30,
19,
53,
24,
-17,
0,
-2,
31,
-35,
20,
-6,
-6,
-43,
12,
-9,
-23,
-4,
10,
-30,
5,
9,
-22,
-26,
-25,
-3,
18,
51,
-24,
30,
21,
-34,
-28,
20,
-28,
0,
-8,
-33,
-23,
-6,
31,
-3,
40,
9,
-18,
31,
-7,
-15,
-21,
-59,
-33,
-3,
-9,
59,
-37,
4,
19,
7,
-7,
13,
30,
-25,
4,
3,
-44,
2,
-10,
-4,
-18,
-10,
-13,
-50,
25,
-35,
12,
-33,
52,
-60,
40,
-11,
51,
-33,
-24,
-8,
-25,
-16,
-14,
24,
7,
2,
9,
-30,
-22,
-4,
3,
-19,
36,
33,
-31,
2,
-31,
-12,
-2,
21,
-16,
-16,
-34,
19,
24,
27,
-15,
0,
24,
45,
-16,
-39,
20,
38,
5,
24,
-47,
15,
-11,
-12,
-18,
52,
35,
-13,
12,
23,
-20,
-29,
-47,
-15,
-28,
33,
21,
0,
-1,
15,
-36,
11,
-2,
-49,
10,
21,
-59,
-44,
13,
37,
-37,
-10,
35,
20,
7,
-18,
-3,
-13,
0,
20,
-23,
-10,
-13,
-13,
-35,
23,
37,
42,
38,
-28,
-10,
54,
26,
8,
-23,
33,
-32,
20,
19,
-8,
-34,
-20,
-4,
-12,
-38,
19,
27,
0,
1,
-29,
-6,
-37,
-7,
-11,
-54,
22,
35,
9,
44,
50,
38,
-12,
13,
-11,
-2,
-5,
-78,
45,
22,
-22,
7,
7,
-3,
-5,
-49,
-13,
3,
-30,
47,
8,
-23,
52,
-4,
0,
-41,
-16,
-30,
-59,
19,
-9,
9,
-12,
48,
12,
1,
0,
-52,
44,
56,
-15,
29,
-5,
-12,
0,
53,
43,
19,
9,
-15,
13,
22,
37,
-64,
20,
-16,
-52,
23,
-18,
56,
8,
16,
-1,
28,
-50,
-6,
-34,
-6,
38,
46,
-11,
0,
-48,
-7,
-3,
18,
42,
-19,
4,
63,
-18,
-31,
-24,
32,
25,
-31,
27,
-11,
-20,
-7,
24,
15,
0,
3,
21,
30,
15,
35,
4,
-15,
29,
20,
-64,
-9,
4,
49,
35,
-7,
0,
-11,
10,
-8,
36,
52,
13,
-17,
91
] |
Long, J.
Respondent was convicted in the supeiuor court of Grand Rapids, under an information charging that she did solicit and induce Emma Haehn and Lillie Pail, females, to enter a house of ill fame, situate at Woodville, resorted to for the purpose of prostitution and lewdness, for the purpose of becoming prostitutes.
It appeared that at the term of court at which the respondent was tried, and before her trial came on, one Frank Smith had been prosecuted and convicted under an information charging that he did solicit and induce one Anna Nelson, a female, to enter a house of ill fame in the city of Grand Rapids, resorted to for. the purpose of prostitution and lewdness, -for the purpose of becoming a prostitute; and that Lillie Pail, named in the .information against respondent, was a witness against said Frank Smith; and also that said Anna Nelson was to be used as a witness against the respondent, her name being indorsed on the information for that purpose. The same panel of jurors remained during the term of court, and several of them who served on the panel in the case against Frank Smith were called in the case against the respondent. Counsel for respondent examined these jurors on voir dire. They were asked if they served as jurors in the case of The People v. Frank Smith, and heard Lillie Pail testify. This was answered in the affirmative. Counsel then asked:
“ Did you, from the evidence in that case, form any opinion as to her character for virtue and chastity?”
The answer, under objection from the prosecution, was excluded. Five jurors who sat in the case of Smith remained on the panel in thé present case.
Lillie Pail was called as a witness for the prosecution, and testified substantially that on Sunday, December 12, 1892, the respondent asked her to go to Woodville, into a house of prostitution, to become a prostitute. On the next day she saw the respondent again, who gave her 50 cents to pay her fare and that of Anna Nelson on the ■ train to go there, the respondent at the same time-telling her that other girls were going, and to go to the depot, but not to recognize her there. The witness also testified. that before that time she had had illicit intercourse with a man for pay. This was only a few days before the respondent solicited her to go to Woodville. The testimony tended to show that the house to which, the respondent solicited these girls to go was a new one, but the witness Lillie Pail testified that the respondent said it was a sporting house.
The statute under which the prosecution was had reads:
“Every person who shall keep a house of ill fame, resorted to for the purpose of prostitution or lewdness, and every person who shall solicit or in any manner induce a female to enter such house for the purpose of becoming a prostitute, or shall by force, fraud, deceit, or in any like manner procure a female to enter such house for the purpose of prostitution or of becoming a prostitute, shall be deemed guilty of a felony, and, upon conviction thereof,' shall be punished by imprisonment in the State prison not more than five years, or in the county jail not more than one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment,, in the discretion of the court.” 3 How. Stat. § 9286.
It is contended by counsel for respondent that the conviction must be set aside for the reasons:
1. That there was no evidence that the house to which these females were asked to go had ever been resorted to for the purpose of prostitution or lewdness.
2. That the words used in the statute, “for the purpose ■of becoming a prostitute,” imply a change of state or condition, and that these females were shown to have already become prostitutes before beihg solicited.
3. That the testimony did not show that the respondent solicited Lillie Pail to go to this house, and that what was said amounted to nothing more than an inquiry if she would go to a sporting house.
4. That the court erred in permitting the jurors who had formed part of the panel on the trial of Frank Smith to sit in this case.
1. The testimony tended strongly to show that the respondent had prepared this house at Woodville as a house of prostitution, and visited Grand Eapids for the purpose of soliciting females to go there for the purpose of prostitution. It is not a necessary element of the offense that the house should already have been resorted to for such a purpose by other females. The gravamen of the offense is' in soliciting females to enter such house 'for the purpose of becoming prostitutes, — that is, a house designed and kept for that purpose, whether it had already been resorted to by others for that purpose or not. If the testimony of Lillie Pail is true, the respondent had prepared a house for the purpose of prostitution, — a “sporting house,” as she told the witness.
2. The offense was charged in the language of the statute, — that is, soliciting females to enter a house of ill fame, kept for the purpose of prostitution and lewdness, for the purpose of becoming prostitutes. There was some testimony tending to show that these girls had already entered upon a life of shame, and that when the respondent found them they were then, or had been, inmates of a house of prostitution. The question is therefore presented whether the Legislature intended to create an offense under the statute which should apply to one who solicits a female who is already a prostitute to enter a house of prostitution, and especially where the female so solicited is at the very time an inmate of a house of prostitution. The language of -the statute is peculiar: “Every person who shall solicit or in any manner induce a female to enter such house for the purpose of becoming a prostitute,” etc. It is contended by counsel for respondent that the word “ becoming,” as used in this statute, implies a change of state or condition, and that one who is already a prostitute cannot, within the meaning of the statute, become what she already is.
The court, speaking of this subject to the jury, said:
“It is not a question of removing prostitutes from this city to some other town, to get rid of them. The statute is aimed at the person who is so depraved as to become the go-between between innocent girls and houses of ill fame, or between women and houses of prostitution, by-means of solicitation. If the court should charge that the Legislature intended to forgive the person whose business it was to solicit women of pronounced bad character from one' house of ill fame to another (which I shall not charge), then, in such case, it would be a matter of serious deliberation whether Lillie Pail had become such a notorious prostitute, she being a young girl of 17 or 18, and never, so far as the evidence in the case is concerned, had submitted her person to a man until a few days before the alleged solicitation, — as to whether she was what would be termed a common prostitute.”
The court had evidently overlooked the testimony of Lillie Pail. She was asked:
“Q. What were you doing at this time? What were you employed at, — what work, if any?
“A. I was in a sporting house. It would have been a week Monday night that I had been there. Mrs. Cook came on Sunday night. That sporting house was located next door to Nellie Angel’s, what was called 'No. 50 East Fulton street.’ It was kept by a Mrs. Wilson.
“Q. Had you been doing business there, as you call it?
"A. Yes, sir.
“Q. By 'business’ you mean entertaining men for pay, as sporting women do?
"A. Yes, sir.
“Q. Having illicit intercourse with men for pay; that is what you mean by 'business?’
"A. That is what I mean; yes, sir.-”
The court in its charge did not direch the jury whether the respondent could or could not be convicted if the girl Lillie Pail was a common prostitute at the time she was solicited to go to Woodville, but left that question an open one, putting the case to the jury upon the theory that the evidence would not warrant them in finding she was a prostitute at that time. The charge was misleading to the jury, and the court should have construed the statute, so that the jury might have such construction as a guide in their deliberations. There was strong evidence that the girl was a common prostitute, and then actually in a house of prostitution. The clause under which the information was filed makes the offense complete when the solicitation is of females to become prostitutes. Some force must be given to the word “become;” and it is evident that the Legislature did not intend to make the offense complete by the mere soliciting of a female who is already a prostitute, and in a house of ill fame, to go from that place into another house of like character. The next clause of the act makes it an offense to procure a female by force, fraud, deceit, or in any like manner, to enter such a house for the purpose of prostitution. The same statute also punishes in like manner all persons who keep houses of ill fame, resorted to for the purpose of prostitution or lewdness. The court should have directed the jury that if they found the female Lillie Pail to have been a common prostitute, and actually in a house of prostitution, at the time respondent solicited her to go to Woodville, the respondent should be acquitted of the offense charged in the information.
The other questions raised need not be noticed.
Judgment reversed, and new trial ordered.
The other Justices concurred.
See People v. Troy, post, —, where a challenge for cause was sustained under a similar state of facts. | [
33,
12,
56,
49,
-19,
-26,
-5,
15,
-54,
-48,
-40,
-18,
27,
-33,
-7,
-21,
-21,
-39,
44,
-65,
9,
-4,
-1,
10,
-37,
4,
4,
23,
-34,
3,
47,
53,
19,
44,
5,
-1,
10,
-26,
8,
-31,
-6,
19,
-27,
25,
0,
88,
-11,
12,
-3,
12,
3,
-38,
-29,
20,
-19,
-86,
11,
-3,
26,
41,
-14,
-26,
-40,
-25,
-3,
-71,
-5,
-27,
-47,
-19,
0,
0,
-11,
-44,
60,
18,
3,
-8,
-10,
31,
-58,
-41,
-1,
-6,
-6,
-7,
-43,
-18,
-9,
-22,
22,
-54,
-15,
-4,
55,
0,
23,
-11,
7,
2,
-14,
-5,
-80,
-30,
-29,
-21,
-32,
60,
-7,
47,
-38,
-25,
64,
-3,
-66,
-42,
11,
-16,
-8,
-75,
-4,
3,
12,
16,
46,
-13,
-10,
-94,
6,
-41,
-9,
-22,
32,
7,
5,
47,
11,
-23,
48,
-11,
11,
20,
-3,
35,
-45,
-3,
-101,
35,
2,
9,
-50,
-51,
59,
28,
39,
-48,
-17,
-49,
25,
23,
-47,
-25,
-29,
-25,
5,
-49,
-9,
26,
40,
-4,
-29,
41,
0,
28,
4,
-6,
-57,
-56,
-41,
35,
9,
56,
-25,
19,
-3,
-42,
17,
9,
-8,
-27,
-29,
35,
17,
-32,
32,
54,
-3,
-30,
40,
2,
43,
-1,
-59,
54,
41,
9,
-48,
8,
-8,
-11,
29,
40,
-11,
1,
-27,
-22,
-45,
3,
-24,
1,
40,
5,
14,
30,
-36,
-44,
0,
19,
-19,
18,
-36,
-2,
14,
-32,
-53,
-10,
39,
5,
5,
42,
6,
-24,
-2,
0,
3,
-5,
-45,
-28,
-16,
48,
32,
0,
11,
54,
-91,
16,
45,
8,
54,
-1,
-9,
-6,
22,
2,
36,
-18,
48,
89,
-57,
0,
18,
6,
45,
-13,
-27,
-53,
2,
65,
-21,
20,
-2,
-13,
-21,
-30,
19,
-84,
-63,
-10,
23,
-17,
49,
34,
-20,
5,
86,
-4,
-29,
4,
-32,
3,
38,
-10,
27,
-17,
41,
51,
-4,
36,
-42,
-53,
6,
-39,
33,
-41,
30,
11,
4,
-38,
28,
4,
-17,
-22,
-24,
12,
14,
52,
-22,
-51,
-33,
7,
-39,
79,
-15,
17,
-8,
41,
-5,
43,
8,
-65,
-33,
-31,
-42,
-12,
-46,
14,
1,
-34,
26,
-105,
44,
-29,
23,
24,
-65,
-17,
3,
-2,
12,
-15,
-5,
-17,
18,
-6,
13,
-23,
-29,
-70,
61,
7,
-25,
-30,
15,
43,
20,
-19,
-2,
8,
-33,
4,
2,
-19,
54,
12,
-22,
-4,
-3,
-48,
-29,
2,
0,
39,
-7,
-6,
16,
4,
-32,
20,
21,
-62,
-12,
43,
72,
28,
-49,
2,
-37,
-1,
15,
48,
86,
23,
22,
33,
21,
-49,
-20,
-40,
25,
-21,
33,
56,
18,
25,
53,
39,
49,
19,
71,
-7,
-29,
-14,
35,
-3,
0,
4,
19,
8,
-3,
-40,
-28,
29,
-26,
69,
14,
-4,
-5,
-34,
51,
-38,
-4,
-3,
0,
-1,
35,
43,
-47,
4,
59,
92,
-2,
28,
20,
21,
7,
-10,
5,
-10,
-24,
24,
13,
-7,
-9,
-47,
39,
13,
59,
62,
63,
-6,
24,
-15,
19,
-4,
15,
-3,
-24,
-72,
-17,
-17,
37,
-31,
-43,
45,
34,
12,
-7,
4,
1,
24,
-1,
-35,
-13,
-18,
-39,
-5,
19,
38,
16,
6,
-3,
3,
-9,
-19,
11,
15,
-7,
-47,
-20,
-31,
-13,
67,
73,
-28,
16,
56,
59,
-11,
-1,
-42,
32,
-26,
-30,
-57,
35,
-18,
2,
-36,
60,
-13,
23,
0,
55,
-3,
1,
23,
25,
2,
-3,
26,
-3,
28,
67,
-10,
-7,
-25,
3,
-18,
-14,
3,
-81,
11,
39,
-58,
2,
-33,
-9,
-6,
39,
-36,
41,
28,
-9,
0,
-61,
-28,
4,
21,
10,
38,
9,
-24,
20,
-1,
-27,
-19,
-18,
0,
-45,
10,
-27,
23,
-5,
5,
2,
-38,
-32,
8,
-10,
-21,
17,
-31,
-26,
21,
8,
-24,
-62,
-9,
25,
-25,
27,
-19,
-8,
36,
26,
42,
-24,
6,
-27,
15,
-24,
-31,
-12,
-45,
14,
-47,
-66,
-13,
1,
-49,
-63,
0,
-19,
50,
-7,
-24,
77,
25,
-18,
-16,
0,
23,
34,
25,
-37,
77,
-8,
19,
-4,
-13,
-18,
-16,
39,
-95,
31,
-14,
14,
43,
35,
30,
-7,
44,
-34,
27,
5,
1,
38,
38,
-10,
-8,
-30,
-68,
21,
28,
-10,
-18,
15,
1,
17,
-35,
-9,
17,
76,
0,
30,
62,
-27,
23,
-9,
-40,
0,
31,
-52,
45,
16,
27,
22,
-12,
14,
-26,
8,
-44,
-1,
4,
10,
-43,
22,
-86,
-2,
-6,
18,
43,
45,
17,
-30,
-18,
-94,
2,
8,
51,
-27,
19,
35,
32,
-2,
-6,
13,
-9,
0,
-4,
18,
29,
-49,
25,
24,
18,
-68,
4,
-47,
-10,
-1,
-14,
-53,
-6,
-35,
5,
-2,
-56,
-3,
-31,
61,
55,
49,
4,
18,
-4,
19,
-31,
-59,
-47,
-39,
21,
-45,
-47,
-37,
67,
-49,
28,
-8,
0,
-54,
55,
-37,
14,
6,
13,
-4,
58,
73,
-12,
24,
-5,
-40,
13,
-16,
9,
50,
6,
73,
18,
-41,
-47,
21,
32,
-65,
-35,
6,
-77,
-19,
-11,
-79,
-5,
-30,
-80,
-3,
23,
4,
37,
-23,
-13,
-10,
50,
-18,
-31,
-53,
18,
-9,
-17,
36,
15,
33,
-56,
41,
15,
-9,
-35,
-32,
-24,
20,
-32,
55,
27,
30,
-13,
-19,
30,
0,
21,
-6,
0,
40,
75,
40,
-34,
-1,
-46,
71,
72,
12,
-34,
36,
-3,
-29,
1,
-42,
-2,
22,
8,
29,
16,
-34,
-72,
-25,
0,
-53,
-10,
28,
-77,
11,
-20,
-23,
72,
-23,
13,
17,
43,
5,
-17,
10,
51,
-33,
-49,
33,
43,
57,
37,
35,
0,
14,
-7,
-20,
12,
56,
-22,
-57,
-17,
41,
-5,
-16,
-23,
-26,
28,
-30,
21,
-6,
-35,
14,
-12,
24,
29,
8,
0,
8,
30,
44,
-1,
-14,
-12,
31,
-43,
-31,
-7,
14,
64,
-10,
49,
28,
9,
-38,
39,
-5,
-37,
-38,
-49,
6,
48,
4,
-14,
-3,
22,
29,
26,
-68,
6,
14,
17,
8,
-10,
-23,
40,
23,
6,
41,
28,
30,
-8,
-24,
-1,
-8,
-9,
30,
27,
38,
7,
-35,
-25,
-45,
36,
35,
26,
-19,
-2,
-6,
-3,
46,
-30,
14,
-24,
26,
-42,
10,
-12,
-6,
-8,
-15,
11,
-97,
55,
-28,
25,
-40,
-27,
-11,
38,
14,
-16,
-12,
0,
-28,
-21,
20,
-11,
-23,
26,
-44,
-39,
-13,
-22,
-40,
5,
-9,
-59,
39,
17,
29,
-15,
-13,
8,
-4,
-36,
6,
-12,
-6,
12
] |
McGrath, J.
This is assumpsit, originally brought in justice’s court, for work and labor.
The court below made the following findings:
“In the spring of 1889 the defendant was the owner of 840 acres of land in Charlevoix county, in this State. About the 6th of March, 1889, he made the following agreement with one Arthur Leclear: The said Leclear was to go on the defendant’s land, and cut logs and bolts, and market and sell and receive payment for the same. He was to pay the expenses of the job, pay the defendant $1.00 a thousand stumpage for logs, and 25 cts. a cord for bolts. He was to furnish the use of a team, and defendant was to furnish the use of a team. Leclear was to have $20 a month for his services, and his wife was to have $3 a week for her services in boarding the men, and what was left was to be divided equally between defendant and Leclear as profits. The stumpage was to be paid first, and then the expenses of the job, including the pay of the men, were to be paid by Leclear; after that, he and his wife to receive above amounts, and balance, if any, divided as above. It was agreed that at any time when Leclear could not, from the proceeds of the logs and bolts, pay expenses, he should cease further work under the contract.
“In the month of December, 1889, the defendant, who lives in the township of Paris, Kent county, Michigan, went to Charlevoix county, and, by a subsequent agreement then made between himself and Leclear, he sold the logs and bolts thereafter for that winter, and collected the pay for the same, and paid all the expenses of the job, including the men, out of such money (the subsequent agreement modified the original agreement only as stated); and. on the 6th of March, 1890, gave orders to the men upon the railroad station agent for the balance of their wages then due for the winter’s work, signing the orders with his own name. *
“In May, 1889, the plaintiff, who lives in Byron, Kent county, Michigan, and whose sister was the wife of said .Arthur Leclear, went to Charlevoix county, and was employed by-Leclear to work on the job. The plaintiff is a deaf-mute of the age of 26 years. He was told by Leclear that he was to pay him, and that the money to pay his wages was to come from Buck; He worked from that time on until the next March. He was paid by defendant, under the said subsequent agreement, for his work from the time that defendant went to Charlevoix in December, 1889, but his work for the previous summer and fall was not paid for. Defendant did not know that plaintiff was not paid for his summer’s work until after his final settlement with Leclear. Leclear received, for logs and bolts sold prior to December, 1889, about $2,000, none of which was paid to defendant, except about $16 in money, $20 in road work, and a house, for which Buck allowed Leclear $300, and a barn, $25. Buck paid $104= for supplies for the job at Leclear’s request, and this sum, together with the stumpage for the logs and bolts, exceeded the amount received by Buck, as above stated. Said defendant did not, on the 8th of March, A. D. 1890, or at any other time, promise or agree to pay plaintiff for said labor, or any part thereof.
“I find that there was no partnership in fact between Arthur Leclear and defendant. Said plaintiff was not employed to do said work and labor by the said defendant or for him, but said plaintiff was employed by one Arthur Leclear, and said work and labor was done for said Arthur Leclear. Said Leclear had no authority to hire or employ any person for defendant. Said Arthur Leclear and defendant were not partners in any business, and they did not hold themselves out to the plaintiff, or to the public, or to any one, as partners.
“I find, as a conclusion of law, that defendant is not liable in this action to pay plaintiff’s claim herein, or any part thereof.”
Much controversy has arisen over the conclusiveness of profit sharing as to the liability to third persons of such profit sharer. The authorities upon that question are not harmonious, even in our own State. All, however, agree that profit sharing is evidence tending to show partnership. It was held in Beecher v. Bush, 45 Mich. 188, and in Colwell v. Britton, 59 Id. 350, that merely sharing in profits, where third persons have not been legitimately led to believe there was a partnership, does not create one as to them, unless there was one in fact. In both of those cases, however, the party sought to be charged as a partner received a percentage of the proceeds as a measure of compensation,— the one as, rental, and the other as commission. Both come within the generally recognized exception to the rule laid down by a large number of authorities, that, as to third persons, profit sharing is conclusive as to liability. Smith v. Bodine, 74 N. Y. 30; Leggett v. Hyde, 58 Id. 278; Haas v. Roat, 16 Hun, 527; Greenwood v. Brink, 1 Id. 227; Beudel v. Hettrick, 45 How. Pr. 198; Vanderburgh v. Hull, 20 Wend. 70; Heimstreet v. Howland, 5 Denio, 68; Everett v. Coe, Id. 180; Burnett v. Snyder, 81 N. Y. 550; Richardson v. Hughitt, 76 Id. 55; Eager v. Crawford, Id. 97; Ford v. Smith, 27 Wis. 261; Nicholaus v. Thielges, 50 Id. 491; Smith v. Knight, 71 Ill. 148; Niehoff v. Dudley, 40 Id. 406; Meserve v. Andrews, 104 Mass. 360; Haskins v. Burr, 106 Id. 48; Mollwo v. Court of Wards, 4 Moak Eng. R. 121; Ross v. Parkyns, 13 Id. 834, 839 (note); Ex parte Tennant, 22 Id. 831; Colly. Partn. (6th ed.), 70-72; Story, Partn. § 27; Smith v. Watson, 2 Barn. & C. 401; Heran v. Hall, 1 B. Mon. 159; Bartlett v. Jones, 2 Strob. 471; Whitcomb v. Converse, 119 Mass. 43; Harvey v. Childs, 28 Ohio St. 319.
It is not necessary to rest the present case upon this naked rule. The court below, undoubtedly recognizing the rule laid down in Beecher v. Bush, that the test of part nership as between the parties is their intent, found there was no partnership in fact between Leclear and defendant; but in Cleveland Paper Co. v. Courier Co., 67 Mich. 152, 158, it is held that—
“As to third persons the liability of a partner is frequently imposed, though it was not the intention of the party sought to be charged to become one, and even though a partnership could not have been made.”
Numerous authorities might be cited in favor of this proposition.
It is held in Eastman v. Clark, 53 N. H. 276, that sharing profits in any other sense than sharing them in the capacity of a principal is not an absolute test of one's liability; that his liability depends upon whether he is a principal, bound by a contract made by himself, or his agent acting by his authority. Chief Justice Bellows died pending consideration of the case, and extracts from his notes are printed with the opinions filed in the case. He said that the recognized test had been announced in various forms as “a community of interest in the profits;” “a participation in the net profits;” “a participation in the profits as profits;” “a specific interest in the profits, with the right to an account;” that, “to constitute a community of interest in the profits, there must be a common interest in them as a principal trader, and as distinguished from a right as a creditor to receive a sum of money out of the profits, or a sum proportioned to the quantum of profits, or even a share of the profits as a compensation.”
In Loomis v. Marshall, 12 Conn. 69, 77, Huntington, J., says:
“This community of profits is the test to determine whether the contract be one of partnership; and, to constitute it, a partner must not only share in the profits, but share in them as a principal.”
In Cox v. Hickman, 8 H. L. Cas. 268, 306, Lord Cranworth says:
“It is often said that the test, or one of the tests, whether a person not ostensibly a partner is nevertheless in contemplation of law a partner, is whether he is entitled to participate in the profits. This, no doubt, is in general a sufficiently accurate test, for a right to participate in profits affords cogent — often conclusive — evidence that the trade in which the profits have been made was carried on in part for or on behalf of the person setting up such a claim. But the real ground of the liability is that the trade has been carried on by persons acting on his behalf. "When that is the case, he is liable on the trade obligations, and entitled to its profits, or to a share of them. It is not strictly correct to say that his right to share in the profits makes him liable to the debts of the trade. The correct mode of stating the proposition is to say that the same thing which entitles him to the one makes him liable to the other, namely, the fact that the trade has been carried on on his behalf; i. e., that he stood in the relation of principal towards the persons acting ostensibly as the traders, by whom the liabilities have been incurred, and under whose management the profits have been made.”
The doctrine of these cases is the groundwork of the opinion of Mr. Justice Cooley in Beecher v. Bush, where it is said that the elements of partnership are—
“ Community of interest in some lawful commerce or business, for the conduct of which the parties are mutually principals of and agents' for each other, with general powers within the scope of the business, which powers, however, by agreement between the parties themselves, may be restricted at option, to the extent, even, of making one the sole agent of the others and of the business.”
In the present case the agreement was that both parties should be compensated, the one for the timber, and the other for services; each supplied a team of horses; help was to be employed, and the wife was to be paid a certain amount for the board of such help; the timber was to be converted into logs and bolts; Leclear was to market and sell the logs and bolts, and pay the expenses, not only the stumpage and his own wages, and the board of the men, but all the expenses, including the wages of the men. The manner in which the business was to be conducted was regulated by the agreement. Leclear was left no option except such as might be exercised by a mere foreman. In December the only modification made in the agreement was that defendant, instead of Leclear, should market and sell the products, collect the proceeds, pay the expenses, and account for the balance. The character, of the venture was not changed. Leclear was none the less agent of both when he Avas paying out their moneys for labor expended upon their logs and bolts, than was defendant after December. Although the agreement provided that Leclear should pay the expenses, it is evident that such expenses Avere to be paid out of the proceeds, and- the contract provided that, at any time when Leclear could not from such proceeds pay the expenses, he should cease to work.
The only provision lacking in this arrangement is one with reference to joint participation in losses. As between themselves the inference is, if any losses were sustained by an excess of expenses over proceeds, that Leclear should pay such loss. But to constitute one a partner as to third persons, it is not at all necessary that he should agree to share in the losses of the business. Sager v. Tupper, 38 Mich. 258, 265.
It is clear that these operations were carried on in behalf and for the benefit of both Leclear and defendant. When the timber was converted into logs and bolts, such products became the property of both. The labor was expended, reducing the timber to that condition, for the benefit of both, in order that profit might be realized. Upon the sale of the products the proceeds belonged to both. In Beecher v. Bush it is said: “If either had failed to perform his part of the agreement, the remedy of the other would have been a suit at law, and not a bill for an accounting;" but, in the present case, defendant would certainly have been compelled to resort to the latter remedy. Here were all the indicia of partnership relations, except, perhaps, that defendant was not to share in losses. The business was in no sense Leclear’s independent business, carried on by him in his own way. The conduct of the business was restricted and regulated by the agreement. There was community of property, community of interest, and community of profits. The venture was one launched for the benefit of both parties. Both were principals, and what was done for their mutual benefit must be deemed to have been done by authority of both. Corey v. Cadwell, 86 Mich. 570. Purvis v. Butler, 87 Id. 248.
The judgment below is therefore reversed, and judgment entered here for the amount of the judgment in the justice’s court, with interest from the date of said judgment, and costs of both courts.
Long and Grant, JJ., concurred with McGrath, J. | [
45,
24,
-20,
-13,
41,
18,
-28,
-4,
26,
48,
15,
-17,
-16,
-18,
12,
2,
-27,
-68,
8,
-14,
12,
-46,
21,
-44,
-45,
7,
27,
-2,
-38,
40,
-70,
27,
-54,
-30,
9,
-15,
19,
-22,
-35,
-31,
6,
-29,
-5,
-11,
8,
13,
-18,
13,
41,
-20,
2,
13,
-3,
5,
-7,
28,
-13,
27,
-24,
58,
18,
-64,
1,
-16,
29,
-28,
-11,
39,
24,
16,
-49,
34,
10,
-26,
-5,
19,
-23,
-19,
-39,
38,
35,
8,
0,
-5,
-2,
3,
-47,
-6,
0,
7,
-43,
-27,
-5,
44,
49,
0,
-45,
51,
-2,
19,
35,
15,
9,
-8,
-20,
-37,
-18,
-28,
-75,
36,
10,
-2,
41,
-19,
5,
-11,
15,
-72,
10,
-5,
-37,
-26,
-7,
-21,
-24,
-10,
-41,
-9,
1,
17,
37,
-22,
20,
-12,
-14,
52,
34,
30,
-3,
-19,
18,
29,
-24,
16,
17,
-36,
-3,
-54,
-27,
-5,
-15,
-12,
31,
-19,
-11,
5,
50,
17,
81,
-37,
33,
33,
-2,
-22,
-38,
-5,
-11,
-39,
37,
11,
17,
-10,
-19,
-17,
47,
-9,
28,
-14,
-19,
-8,
3,
-13,
-64,
-3,
-1,
1,
22,
36,
-18,
-22,
15,
7,
30,
10,
-1,
23,
-30,
-27,
-12,
26,
-16,
-26,
3,
12,
-26,
-26,
15,
38,
-6,
14,
23,
8,
-47,
-16,
-40,
71,
-54,
-27,
20,
-69,
4,
5,
32,
-3,
4,
-41,
14,
36,
13,
-3,
-58,
-19,
46,
-27,
-17,
-45,
30,
-34,
42,
0,
-15,
-47,
-6,
-18,
38,
10,
-31,
-11,
15,
52,
-48,
3,
-21,
-5,
-18,
11,
56,
3,
-70,
14,
-77,
2,
24,
46,
23,
1,
-11,
21,
-9,
-16,
31,
1,
33,
2,
-46,
12,
-33,
24,
-15,
11,
23,
6,
-67,
-44,
16,
-21,
-14,
-37,
-36,
23,
33,
-6,
-4,
-11,
6,
68,
77,
13,
26,
-7,
-41,
17,
-80,
-7,
-6,
21,
-11,
-40,
-15,
-3,
0,
-45,
-32,
-26,
15,
-40,
-24,
-15,
-8,
-18,
-10,
-12,
-5,
30,
18,
71,
2,
3,
-37,
34,
17,
-44,
13,
34,
-24,
0,
-13,
50,
15,
-19,
50,
11,
30,
17,
-20,
-3,
19,
-34,
18,
-52,
18,
-23,
-12,
68,
-6,
14,
3,
-23,
29,
43,
21,
0,
21,
44,
14,
12,
-38,
-5,
49,
-9,
30,
40,
7,
7,
13,
-6,
-32,
-52,
-16,
55,
33,
1,
3,
35,
20,
-36,
-4,
-13,
-48,
14,
8,
1,
22,
21,
11,
26,
37,
-31,
-50,
-46,
33,
17,
27,
-15,
-20,
2,
2,
-15,
-12,
-28,
27,
-3,
-16,
8,
23,
-67,
24,
34,
-18,
17,
76,
19,
31,
-11,
60,
13,
14,
-50,
-10,
-18,
3,
0,
51,
42,
-4,
-9,
-72,
18,
-60,
-29,
-31,
-16,
74,
-12,
14,
-16,
-9,
49,
45,
-34,
-30,
3,
-19,
41,
36,
-13,
-11,
-24,
16,
20,
-24,
6,
36,
20,
7,
29,
10,
-7,
11,
42,
-20,
24,
17,
3,
-35,
-21,
21,
-8,
63,
18,
33,
-24,
-3,
18,
-9,
-50,
-22,
9,
19,
35,
56,
0,
-20,
-27,
-2,
-42,
-3,
-3,
45,
48,
-26,
-8,
55,
-35,
19,
-19,
18,
-7,
13,
17,
14,
-20,
21,
-13,
0,
36,
-4,
23,
16,
40,
-36,
-16,
-54,
41,
18,
25,
11,
20,
-21,
-14,
6,
-15,
28,
53,
7,
-18,
3,
15,
-12,
-18,
-15,
-18,
51,
-2,
-16,
22,
-28,
-23,
49,
-16,
-40,
-42,
22,
-69,
-50,
12,
-34,
-16,
38,
-24,
29,
-28,
19,
-41,
58,
-15,
-14,
10,
21,
15,
-16,
3,
47,
50,
8,
39,
-60,
-2,
-16,
22,
-22,
-23,
-63,
13,
0,
-40,
-2,
-34,
2,
57,
-43,
49,
-43,
-5,
-29,
-2,
1,
0,
46,
-5,
7,
20,
-15,
2,
-5,
25,
-18,
41,
26,
38,
18,
64,
44,
-2,
42,
29,
-6,
-39,
30,
40,
58,
-36,
-32,
-18,
-40,
8,
-14,
-14,
-16,
6,
-76,
33,
-33,
12,
-11,
69,
46,
6,
-53,
-7,
9,
-37,
-41,
3,
-7,
-12,
-29,
-5,
-28,
-34,
-14,
13,
22,
32,
-10,
18,
37,
11,
-20,
-35,
56,
18,
-11,
42,
-1,
-19,
7,
12,
5,
-23,
22,
-52,
-7,
-33,
-13,
-62,
-26,
47,
51,
-1,
51,
31,
31,
5,
-21,
16,
25,
6,
-25,
0,
25,
66,
-19,
30,
-14,
6,
-33,
1,
4,
-31,
4,
31,
44,
21,
11,
-7,
-20,
-35,
-12,
11,
52,
-21,
27,
67,
2,
40,
-27,
-32,
-35,
-1,
35,
-22,
4,
-22,
1,
-2,
-6,
-56,
-35,
-25,
0,
29,
-8,
-39,
31,
-33,
-21,
33,
-48,
56,
31,
-53,
-24,
-25,
33,
-5,
36,
4,
-31,
-20,
-29,
11,
34,
44,
-13,
-45,
9,
23,
-58,
1,
22,
-2,
-55,
5,
23,
-2,
-39,
-1,
4,
-40,
7,
31,
-56,
-3,
50,
-37,
-4,
-1,
27,
-2,
51,
3,
-8,
-32,
-99,
-53,
24,
-23,
19,
-66,
14,
-109,
23,
-2,
-67,
-50,
-3,
-33,
-18,
-5,
-7,
44,
-21,
28,
8,
34,
-43,
10,
-15,
43,
-23,
-6,
-20,
-24,
-2,
12,
0,
30,
-9,
53,
-14,
46,
-6,
-67,
33,
0,
33,
-3,
-24,
0,
32,
-5,
-26,
-18,
8,
20,
-29,
-12,
-45,
61,
3,
-34,
1,
-8,
11,
-7,
-1,
57,
-7,
-15,
-37,
-3,
-16,
-2,
-49,
-46,
26,
-7,
-27,
-19,
11,
-18,
-25,
-16,
-10,
21,
15,
-55,
-2,
26,
8,
-12,
18,
-34,
10,
-3,
-5,
-34,
18,
33,
24,
7,
11,
31,
7,
8,
9,
-34,
48,
71,
16,
-46,
-31,
-19,
-7,
-15,
1,
-62,
-36,
-1,
24,
37,
17,
23,
27,
-13,
-27,
-12,
-20,
32,
-20,
-37,
-33,
0,
-95,
18,
-54,
91,
19,
24,
28,
1,
12,
3,
-11,
1,
-21,
5,
11,
47,
-43,
-4,
11,
-31,
-9,
13,
-20,
-53,
35,
-47,
11,
37,
-21,
-36,
20,
41,
26,
-27,
7,
-4,
13,
42,
43,
17,
12,
-38,
-66,
6,
-12,
13,
0,
15,
33,
12,
22,
-30,
-34,
-14,
15,
-33,
15,
11,
-10,
-23,
44,
-17,
27,
-18,
19,
-50,
-6,
-53,
-4,
37,
4,
0,
-32,
-21,
-28,
3,
-4,
47,
49,
-4,
-9,
6,
2,
-23,
0,
-33,
-10,
-28,
-31,
46,
32,
10,
-13,
68,
10,
-70,
-18,
-29,
35,
-27,
-17,
31,
1,
29,
-2,
12,
-6,
-29,
-6,
92
] |
Montgomery, J.
Belator asks for a writ of mandamus-to compel the respondent to proceed to appoint com missioners on claims in the estate of Harriet J. Comstock,, deceased.
It appears that an order for the hearing of claims before the judge of probate was made on the 29th of August, 1890, and that, proceeding under such order, the creditors filed claims against said estate; that a hearing was had, and various claims allowed. This was after the appointment of a special administrator, and before the general administrator was appointed. The relator was subsequently appointed general administrator of the estate, and made application to have commissioners appointed to hear claims against the estate, which was denied.
The relator contends that the judge had no power to-make, the order which has been proceeded under until a general administrator was appointed, and that such order was void. It may perhaps be doubted whether the statute (How. Stat. § 5853) is broad enough to authorize the proceedings taken in this case; but, if it be conceded that the application was not sufficient to justify the court in proceeding to the allowance of all the claims which were-considered, it is very evident that the more appropriate remedy to test the validity of the action would have been by appeal.
But a more conclusive answer to the present application, we think, is that it appears that all parties to these proceedings have waived any objection to the proceedings, and are estopped now from invoking the remedy sought. It, is very evident that the present proceeding is directed against the action of the probate court in allowing the-claim of William B. Comstock. After the allowance of this claim, one of the three other heirs interested appealed to the circuit court from the order, and afterwards, having parted with her interest in the estate, dismissed her appeal. Subsequently the two remaining heirs sought to reinstate-the appeal, and in that proceeding set out “that such claim of appeal from the probate court was taken by the appellant, Helen E. Coombs, after consulting the relators,” who were the other heirs interested. See Comstock v. Circuit Judge, 95 Mich. 48. The position taken in that proceeding by the parties in interest was so inconsistent with the present application as to work an estoppel against their right to contest the action here brought in question. We , think it very clear that, if they were the parties directly asking the aid of the Court, they would be concluded by the judgment in that case. As the administrator represents only their interests in this proceeding, he should also be estopped. Wells, Ees. Adj. § 54.
The writ should -be denied, with costs payable out of the estate.
The other Justices concurred* | [
35,
0,
28,
20,
8,
-2,
1,
29,
-9,
-24,
-1,
-61,
19,
62,
-10,
-22,
0,
-10,
28,
-56,
-22,
-10,
0,
40,
-4,
-60,
36,
5,
12,
7,
-32,
-23,
-31,
26,
-20,
7,
44,
-69,
37,
20,
18,
44,
28,
32,
-41,
10,
-19,
-3,
8,
8,
-29,
-36,
-31,
58,
5,
3,
-14,
10,
29,
-52,
-30,
13,
13,
-10,
-9,
98,
10,
-26,
-51,
-44,
-1,
14,
30,
72,
4,
9,
11,
-65,
32,
35,
46,
-40,
25,
23,
-5,
13,
0,
2,
24,
18,
-48,
-3,
-76,
2,
10,
2,
33,
-4,
75,
12,
-14,
-19,
-38,
4,
-2,
-4,
8,
17,
27,
-27,
61,
12,
8,
13,
-37,
13,
-26,
-36,
-7,
-28,
-14,
-15,
-4,
-19,
-1,
11,
14,
-26,
7,
12,
24,
37,
35,
-23,
-7,
-18,
0,
-33,
-40,
0,
0,
-52,
7,
-18,
23,
-22,
34,
-15,
-29,
5,
42,
22,
-1,
56,
57,
-6,
36,
-17,
26,
38,
35,
28,
-60,
13,
-5,
7,
30,
-16,
33,
14,
-18,
67,
-25,
6,
-27,
-22,
29,
33,
-49,
37,
0,
48,
29,
-8,
-32,
-33,
7,
6,
29,
0,
-4,
-7,
15,
41,
-2,
37,
-4,
33,
12,
31,
-39,
36,
-16,
-7,
7,
-27,
6,
-80,
3,
-32,
-23,
50,
-40,
14,
-13,
-15,
1,
-22,
-6,
43,
13,
71,
25,
-13,
-2,
-29,
-8,
-20,
-28,
-1,
1,
-40,
25,
25,
16,
1,
40,
-15,
-11,
-28,
-1,
26,
28,
-54,
-17,
12,
-19,
38,
-7,
13,
12,
15,
9,
9,
24,
-36,
-17,
22,
-41,
-62,
-3,
-17,
-54,
-8,
-21,
-59,
-10,
-23,
26,
9,
-15,
7,
47,
-26,
19,
2,
-42,
11,
3,
-27,
-14,
10,
-11,
10,
-63,
17,
-2,
-18,
-35,
39,
-7,
-25,
21,
-9,
-26,
37,
-14,
13,
64,
8,
-40,
30,
10,
9,
37,
-32,
-40,
-39,
8,
-10,
-3,
27,
-3,
-3,
28,
-2,
-21,
7,
15,
-7,
15,
-56,
3,
-25,
-5,
17,
4,
32,
17,
39,
-12,
16,
31,
-37,
23,
25,
-12,
53,
-62,
16,
23,
-12,
-12,
5,
9,
-7,
37,
-83,
36,
29,
-48,
23,
-24,
12,
15,
-24,
36,
-57,
-34,
50,
6,
8,
28,
-14,
29,
-7,
-20,
-25,
16,
-27,
20,
30,
0,
-58,
12,
-41,
-8,
6,
-12,
19,
-9,
-15,
7,
39,
48,
-19,
-7,
43,
-42,
62,
-2,
-11,
4,
23,
4,
51,
-22,
1,
-30,
8,
-4,
13,
-24,
-5,
-9,
10,
4,
-45,
-1,
31,
59,
12,
53,
48,
63,
-3,
3,
14,
55,
2,
11,
0,
4,
27,
-25,
0,
31,
-18,
0,
1,
-38,
11,
38,
39,
14,
4,
-12,
-20,
-41,
-7,
-9,
-21,
0,
24,
-6,
-31,
-22,
-21,
36,
0,
1,
9,
1,
-3,
-46,
8,
24,
24,
-17,
-20,
28,
16,
35,
33,
7,
0,
9,
8,
29,
0,
-18,
-8,
-36,
-21,
-5,
15,
-18,
21,
26,
-10,
-16,
23,
-8,
-24,
7,
24,
-16,
-33,
0,
-36,
-33,
-19,
-15,
0,
-27,
-33,
-39,
-36,
0,
34,
30,
-3,
45,
16,
-8,
-30,
-1,
-44,
2,
27,
-46,
-67,
-16,
-10,
34,
17,
-1,
-10,
-26,
0,
3,
-17,
-41,
-32,
12,
9,
23,
27,
57,
-12,
2,
3,
3,
-21,
-19,
0,
-2,
6,
-29,
-7,
-36,
25,
-3,
42,
-31,
42,
-13,
4,
51,
-51,
0,
-49,
20,
9,
41,
10,
16,
-41,
-12,
7,
29,
-12,
17,
-11,
-19,
-15,
-20,
-33,
5,
20,
4,
3,
31,
-3,
-3,
20,
19,
7,
13,
-27,
-35,
-20,
15,
-60,
28,
-30,
9,
30,
39,
-29,
-63,
-17,
11,
-9,
-2,
-18,
12,
-22,
47,
-5,
-27,
12,
11,
-30,
-50,
11,
27,
50,
-1,
-3,
6,
24,
-29,
2,
-22,
21,
5,
-13,
-8,
24,
-3,
5,
-29,
-47,
-16,
-37,
13,
-11,
-4,
-33,
3,
-23,
20,
14,
-15,
20,
-46,
5,
0,
0,
-47,
13,
-15,
-38,
8,
-33,
66,
2,
26,
15,
-48,
21,
21,
-22,
0,
-42,
68,
26,
-15,
-34,
50,
-58,
-36,
22,
28,
41,
3,
31,
-12,
8,
18,
-16,
-8,
47,
-16,
-26,
-19,
25,
-34,
34,
-34,
9,
-4,
38,
-6,
26,
-1,
34,
-49,
31,
12,
-23,
4,
-9,
-26,
10,
-10,
-24,
57,
-34,
6,
-25,
-12,
20,
-30,
-25,
-24,
39,
8,
-47,
-19,
17,
6,
-14,
-1,
-4,
45,
-34,
39,
-39,
30,
-10,
11,
5,
-14,
37,
56,
-31,
0,
-65,
11,
-5,
28,
-8,
-42,
21,
8,
-39,
-17,
-3,
-18,
21,
5,
-6,
-22,
29,
-12,
14,
-17,
27,
58,
22,
11,
16,
8,
-1,
-38,
-22,
57,
-26,
23,
-20,
-55,
-4,
-50,
15,
-19,
-12,
-26,
31,
19,
1,
23,
-71,
11,
-11,
0,
45,
28,
-15,
-19,
-16,
-45,
40,
18,
-60,
33,
-21,
16,
-9,
20,
-41,
0,
-42,
-38,
1,
-6,
-68,
12,
0,
-3,
-11,
6,
33,
-18,
-19,
-25,
57,
-14,
21,
-14,
-51,
-44,
-4,
-49,
12,
-2,
30,
-39,
-23,
4,
-20,
29,
36,
-33,
6,
81,
11,
-7,
62,
30,
-64,
-10,
-1,
8,
-15,
25,
11,
-27,
-37,
-8,
-18,
-37,
-14,
-10,
37,
-15,
-5,
-49,
14,
17,
10,
-9,
74,
-16,
-52,
-21,
-33,
-12,
8,
28,
30,
-21,
-42,
-15,
2,
8,
-14,
4,
22,
-10,
30,
-107,
19,
-26,
-3,
31,
-10,
19,
-22,
-45,
-11,
-27,
27,
-30,
60,
65,
14,
-26,
8,
30,
29,
-30,
80,
-34,
1,
9,
-38,
-10,
2,
-60,
3,
35,
-25,
-1,
-3,
-11,
41,
-23,
17,
52,
31,
-24,
-45,
-5,
13,
32,
0,
-30,
25,
39,
-15,
-51,
22,
-35,
-49,
34,
-17,
-5,
34,
12,
-75,
-8,
-24,
39,
-7,
16,
10,
10,
-8,
26,
-12,
-24,
-23,
-8,
13,
15,
-17,
7,
37,
19,
-43,
20,
8,
5,
46,
-2,
17,
-59,
33,
-49,
13,
39,
19,
24,
0,
-20,
11,
-23,
43,
-35,
-37,
-10,
-72,
-15,
-14,
25,
6,
23,
-10,
8,
0,
-12,
-7,
-21,
19,
-32,
-25,
-35,
-34,
49,
40,
18,
8,
0,
62,
-72,
49,
-10,
62,
5,
15,
30,
-13,
24,
-28,
0,
19,
-28,
-48,
-30,
-32,
-7,
42,
-15,
28,
19,
-37,
23,
-51,
3,
-43,
-13,
0
] |
Per Curiam.
This case does not differ in any material respect from that of Burnham v. Home Ins. Co., 119 Mich. 588. The questions involved are discussed in the opinion in that case.
The judgment is affirmed | [
-39,
64,
17,
-45,
-56,
-1,
25,
51,
22,
21,
3,
26,
22,
-10,
2,
-37,
32,
40,
-2,
0,
-57,
31,
-33,
35,
-12,
-17,
5,
60,
6,
68,
-41,
0,
15,
4,
-60,
-1,
25,
22,
-18,
-77,
-37,
35,
30,
-56,
-45,
3,
39,
5,
0,
-32,
51,
8,
11,
-34,
13,
4,
-10,
2,
0,
19,
-29,
9,
2,
50,
39,
-10,
6,
16,
92,
45,
19,
29,
-20,
-23,
56,
18,
-1,
85,
-63,
5,
-12,
-35,
31,
25,
-40,
-51,
13,
34,
-28,
-10,
3,
-1,
12,
-55,
-26,
27,
44,
-18,
19,
-8,
-30,
-39,
65,
50,
-63,
-44,
-22,
-11,
-2,
-53,
-13,
11,
-17,
-30,
-15,
58,
17,
58,
-13,
-25,
7,
57,
-17,
-3,
-32,
2,
13,
-35,
-44,
-22,
-13,
41,
-3,
34,
37,
16,
31,
0,
16,
-19,
58,
5,
49,
-9,
13,
-15,
18,
-18,
-8,
-46,
16,
46,
-25,
4,
41,
18,
-34,
-37,
47,
15,
5,
3,
-15,
27,
5,
19,
-4,
8,
-10,
51,
39,
-35,
16,
-1,
37,
4,
-14,
44,
9,
9,
-19,
2,
19,
-12,
-26,
0,
-32,
0,
2,
-56,
-38,
-8,
0,
48,
-39,
47,
23,
68,
-42,
-38,
-29,
10,
11,
-17,
8,
1,
-20,
-37,
14,
23,
31,
39,
-47,
-35,
11,
11,
23,
24,
-45,
24,
25,
-5,
-41,
5,
-56,
-59,
13,
-9,
18,
-24,
-22,
30,
18,
6,
31,
70,
-7,
8,
8,
-36,
-15,
-1,
9,
12,
2,
-39,
12,
-9,
26,
12,
7,
-13,
-5,
64,
28,
-5,
-8,
13,
-2,
4,
23,
39,
-47,
-22,
1,
-23,
11,
-19,
-2,
-37,
-32,
75,
-11,
-14,
-18,
-8,
0,
4,
-9,
-47,
0,
-6,
-21,
8,
-33,
16,
30,
-23,
0,
18,
41,
40,
10,
-51,
22,
-4,
0,
-38,
-62,
-52,
26,
-23,
-10,
31,
19,
10,
-12,
15,
7,
19,
-33,
50,
6,
32,
14,
72,
-42,
18,
5,
-6,
-7,
40,
33,
-43,
-74,
-29,
64,
-99,
57,
-5,
-42,
-11,
4,
29,
-20,
24,
65,
-42,
-40,
0,
-1,
17,
-25,
-63,
29,
-6,
-17,
-43,
16,
12,
7,
10,
-16,
30,
7,
-18,
-3,
17,
-30,
43,
3,
56,
15,
0,
-41,
17,
-5,
-39,
-14,
30,
11,
-17,
-38,
27,
-25,
37,
36,
-25,
-42,
24,
-6,
-53,
20,
-7,
-19,
29,
-7,
-22,
6,
23,
-56,
-86,
-21,
15,
-35,
18,
18,
-27,
-20,
-60,
-42,
12,
-21,
-22,
19,
-27,
39,
-34,
8,
46,
-35,
15,
-37,
5,
-10,
25,
19,
8,
26,
9,
-18,
-4,
-58,
49,
-3,
13,
18,
12,
-41,
-18,
-11,
5,
-15,
-40,
-24,
9,
9,
-9,
32,
36,
-66,
20,
-68,
7,
0,
16,
12,
-12,
45,
-61,
31,
9,
-19,
-24,
-29,
40,
-21,
-53,
47,
26,
-23,
-4,
0,
-31,
-6,
3,
-7,
-24,
47,
-50,
-9,
8,
-6,
54,
-2,
7,
-38,
46,
39,
16,
11,
-45,
-22,
72,
-73,
-2,
-54,
-5,
20,
15,
-23,
8,
21,
-74,
-16,
-30,
11,
-25,
-10,
-10,
28,
-3,
-27,
-6,
23,
-57,
-2,
0,
15,
9,
-10,
-9,
22,
64,
-17,
4,
57,
6,
-18,
70,
-13,
-40,
-16,
-38,
4,
45,
1,
28,
-6,
-26,
7,
44,
-22,
-29,
24,
13,
35,
-38,
15,
-52,
-25,
27,
17,
14,
-4,
18,
-33,
5,
-12,
12,
-74,
-31,
-44,
34,
-4,
-11,
-11,
1,
-13,
-24,
-54,
-5,
58,
-12,
47,
-19,
-35,
6,
1,
-27,
-48,
9,
-2,
13,
-33,
-24,
31,
-16,
-48,
-28,
-28,
41,
-33,
-35,
-31,
17,
25,
13,
4,
-6,
-48,
-32,
20,
-43,
-18,
-19,
-16,
-31,
-11,
9,
-69,
16,
-15,
-29,
10,
14,
26,
30,
32,
-9,
42,
0,
-12,
-30,
-14,
5,
20,
34,
56,
-12,
-33,
38,
-26,
4,
5,
-14,
12,
10,
-45,
-3,
20,
18,
-3,
-36,
15,
-3,
50,
-28,
-12,
-38,
8,
19,
-6,
17,
23,
-38,
25,
27,
13,
26,
15,
2,
-7,
19,
28,
-20,
-8,
-51,
49,
-38,
0,
0,
-2,
26,
-30,
37,
-25,
18,
-21,
-25,
7,
67,
17,
14,
34,
22,
51,
7,
20,
19,
-23,
-28,
9,
-38,
19,
-13,
49,
-22,
23,
-4,
-7,
-8,
-18,
-99,
-39,
-11,
31,
51,
14,
-11,
-17,
11,
13,
15,
-38,
17,
13,
0,
-8,
32,
-17,
-33,
-12,
30,
-47,
31,
-6,
-22,
0,
-1,
-5,
-15,
31,
-9,
-15,
-7,
-36,
-34,
-59,
46,
3,
-22,
38,
27,
-4,
5,
-34,
-31,
-23,
-35,
-20,
27,
-11,
32,
-40,
-18,
28,
44,
-31,
21,
7,
-19,
18,
-12,
21,
36,
22,
-4,
-3,
10,
-32,
-3,
-24,
37,
-2,
22,
-56,
-39,
-61,
-13,
-9,
-3,
-9,
-2,
-10,
-21,
10,
-15,
54,
-10,
-34,
-9,
20,
7,
-5,
-40,
9,
-62,
41,
30,
11,
46,
23,
21,
9,
36,
87,
-5,
9,
-7,
-8,
-31,
43,
-25,
-10,
23,
-62,
-40,
33,
-1,
70,
-84,
-36,
-48,
-27,
-7,
14,
39,
-12,
0,
10,
-5,
-4,
6,
-11,
7,
24,
-5,
0,
-3,
60,
-29,
-101,
71,
-36,
5,
21,
20,
13,
29,
-15,
9,
37,
-10,
-18,
35,
4,
34,
38,
-34,
-11,
-1,
69,
4,
65,
9,
-44,
33,
19,
-13,
25,
37,
-29,
8,
44,
13,
7,
-7,
59,
17,
-33,
22,
35,
-28,
0,
-37,
-3,
23,
0,
56,
26,
15,
13,
20,
6,
40,
44,
2,
3,
19,
-19,
-4,
-42,
6,
8,
4,
15,
-29,
6,
-19,
-54,
12,
25,
62,
19,
37,
7,
1,
-12,
2,
-4,
20,
6,
-5,
4,
33,
-5,
-47,
-35,
-21,
-17,
65,
-6,
-27,
-27,
-15,
-3,
-46,
-44,
-27,
-10,
0,
20,
14,
-8,
-63,
29,
31,
-22,
34,
-23,
-18,
0,
46,
-11,
-33,
-6,
-3,
55,
10,
-3,
2,
13,
-10,
-9,
-27,
-17,
41,
-42,
-37,
-15,
-27,
20,
3,
-16,
-26,
20,
-19,
11,
23,
8,
-14,
5,
-17,
7,
-59,
15,
0,
-2,
52,
-46,
-54,
3,
14,
-39,
32,
-40,
15,
-8,
-79,
38,
-44,
31,
-41,
-26,
-12,
-2,
29,
19,
9,
21,
22,
-8,
-6,
-14,
-11,
-17,
-21,
4,
-17,
-43,
-42,
44,
31,
-13,
0,
-30,
27,
0,
-9,
37,
-28,
-12,
-28
] |
Grant, C. J.
(after stating the facts). 1. In his opening statement to the jury, counsel for plaintiff said: “I am not going to produce Dr. Le Seure, because we do not feel able to produce him.” We see no objection to this statement. It was competent for the plaintiff to show that he could not produce a material witness, and to show the reason therefor.
Upon the trial plaintiff’s counsel stated to the court, in the presence of the jury: ‘ ‘ Something has been said about getting Dr. Le Seure here. I have his diagnosis, which I will offer in evidence, if my brothers don’t object to it.” Of course, the presumption is ■ that this diagnosis was favorable to plaintiff’s claim; else it would not have been offered. It was clearly incompetent, and his counsel so admitted. The offer should not have been made in the presence of the jury. The jury might readily di*aw an inference of its contents. Counsel should not offer testimony in the presence of the jury which they know is incompetent. The purpose of such offers is apparent. Scripps v. Reilly, 38 Mich. 14.
2. It is urged that the suit was prematurely brought, because it was brought before the expiration of three months after filing proofs of loss. The complete reply to this is that the defendant promptly denied all liability. By this conduct the defendant waived proofs of loss and' all limitations as to time. These requirements preliminary to the right to bring suit do not apply to cases where the defendant at once denies all liability. Norwich, etc., Transp. Co. v. Insurance Co., 6 Blatchf. 241; Manhattan Ins. Co. v. Stein, 5 Bush, 652; Francis v. Insurance Co., 6 Cow. 404.
3. A large number of letters were written by the secretary of the company to the attorneys for plaintiff, and by them to the secretary, after the letter of the company denying liability, and before the bringing of suit, in regard to this claim. This correspondence was had with a settlement in view, and with a distinct statement in the letters of both parties that it should not waive any defenses which the defendant bad. In one of these letters, dated March 31, 1897, written by plaintiff’s attorneys, the diagnosis of • Dr. Le Seure is stated as follows:
“Mr. Phillips was presented to the class in the hospital, and a careful examination made of his condition. A compensating curvature of the spine exists; pelvis tips about an inch. The diagnosis, in my judgment, is a rupture of a tendon of one of the muscles of the hip.”
This damaging testimony was placed before the jury for their consideration without any opportunity for cross-examination. Some' of these letters might be admissible as evidence of a waiver of the preliminary proceedings to suit, under Burnham v. Casualty Co., 117 Mich. 143, if all such- proceedings, as above shown, had not already been waived by the denial of all liability. But, even if they were admissible for this purpose, testimony of this character cannot be placed before the jury by such statements in a letter.
4. Defendant offered • to show by parol that plaintiff, after the above injury, had applied for membership in another fraternal organization, in which application he stated he had never been sick. This was excluded, under objection. Counsel seek to defend its admissibility upon the ground that the written application was out of the jurisdiction of the court, and in the hands of the chief Secretary of that organization, in Toronto, Canada. The written document had neither been lost nor destroyed, and the law provides a way for securing such testimony by deposition. The testimony was, therefore, properly excluded.
5. It is claimed that the plaintiff did not give timely notice of his injury, in accordance with the provisions of the charter and by-laws. Notice was served upon the company with promptness after he had been informed by one of his physicians that his illness did not result from disease, but from an accident. We do not think.that the first notice that he was suffering with neuralgia was binding upon him. It would be a hard rule, and one which the rules of the company must place beyond doubt, which would deprive a member of his benefits through the mistake of his physician. The notice was served as soon as he ascertained that the accident with which he had met was the occasion of his trouble. We think this a sufficient compliance with the by-law.
6. Dr. Hume was called as a witness by the defendant, and asked to state what he discovered on making his examination of Mr. Phillips. This was objected to, as a privileged communication. Defendant’s counsel appears to have admitted its privileged character, but sought to justify its admission upon the ground that plaintiff’s attorneys had served upon the defendant notice to produce a letter written by Dr. Hume, January 10, 1897, to the defendant. We do not find this letter introduced in evidence. It requires no argument to show that the notice to produce did not justify the admission of the evidence, or change the rule as to privileged communications.
7. The court instructed the jury that, if the plaintiff is entitled to recover in this case, ‘ ‘ I instruct you that, unless he recovers over $100, he will not recover his costs, but defendant will recover costs against him.” This was an action of assumpsit, and although, in an action of tort, such an instruction has been sanctioned (Steketee v. Kimm, 48 Mich. 322), it has been held improper in an action of assumpsit (Sixma v. Montgomery, 98 Mich. 193). This was an action of assumpsit; therefore the instruction was erroneous.
8. The complaint is made that one of plaintiff’s counsel, in his closing argument, used unjustifiable language, which would naturally tend to prejudice the jury, within the rule of Britton v. Railroad Co., 118 Mich. 491. There seems to have been much feeling, between counsel exhibited on the trial of this cause, as appears from the record. The closing argument of plaintiff’s counsel appears in the record, while that of the defendant’s does not. There was language used which we think the presiding judge, upon his own motion, should have checked. We do not fee! disposed to criticise what appears upon the record here, as it is not likely to occur upon a second trial.
Other questions are raised, but we think they come within the rulings already made, and will not occur upon a new trial.
Judgment reversed, and new trial ordered.
Montgomery, Hooker, and Long, JJ., concurred with Grant, O. J. Moore, J., concurred in the result. | [
57,
-13,
29,
4,
-1,
-11,
-12,
36,
-24,
8,
-17,
-37,
81,
17,
-28,
-11,
-9,
-18,
-4,
-88,
-19,
-8,
-6,
-9,
18,
-46,
-2,
33,
5,
-15,
59,
-11,
-44,
10,
-37,
-3,
32,
-47,
-32,
3,
60,
-4,
39,
-5,
-25,
-16,
-46,
-22,
5,
3,
64,
31,
12,
-25,
5,
-21,
38,
67,
0,
-71,
-22,
-57,
35,
-29,
-26,
0,
-8,
12,
-23,
-13,
-58,
14,
56,
-5,
24,
-70,
-21,
-6,
-19,
-8,
81,
-20,
79,
-28,
17,
22,
38,
-19,
22,
4,
19,
1,
-4,
-7,
-7,
-13,
73,
16,
45,
45,
-39,
23,
-17,
-46,
-14,
35,
-15,
-25,
19,
29,
9,
-24,
20,
-17,
-19,
-33,
-17,
8,
-53,
-7,
5,
-50,
0,
15,
12,
65,
31,
-26,
-33,
20,
37,
1,
-34,
35,
17,
-10,
-47,
-4,
37,
-33,
3,
42,
2,
-8,
-32,
30,
-18,
-15,
1,
57,
-3,
-1,
-51,
0,
-33,
40,
-4,
-27,
78,
-25,
46,
36,
-16,
-16,
2,
-27,
7,
-18,
36,
1,
-2,
34,
-9,
-22,
-15,
-3,
74,
-15,
-22,
0,
-23,
9,
14,
16,
32,
-32,
-1,
43,
-20,
5,
-13,
-12,
-29,
38,
10,
37,
-19,
1,
53,
-27,
-5,
5,
-55,
-6,
42,
16,
-32,
-66,
8,
15,
-29,
79,
-17,
-39,
29,
-37,
-19,
-41,
-6,
-20,
-26,
-1,
-2,
27,
-22,
-20,
-39,
-13,
-47,
-17,
-30,
29,
-66,
19,
13,
-13,
70,
-36,
41,
32,
-69,
0,
66,
-34,
-25,
-9,
-28,
-37,
-22,
12,
4,
32,
42,
3,
-59,
-42,
0,
26,
-54,
-31,
-40,
48,
-40,
23,
46,
-16,
-30,
15,
66,
-9,
35,
-34,
-19,
10,
33,
-24,
-39,
35,
-28,
19,
-43,
10,
-54,
0,
-44,
4,
-11,
-16,
-18,
0,
77,
3,
-12,
-15,
43,
34,
51,
55,
-28,
6,
25,
36,
-23,
13,
23,
-50,
-42,
-22,
-9,
-21,
-32,
55,
-14,
29,
16,
2,
-33,
-57,
-22,
-23,
8,
18,
-1,
-23,
0,
-28,
14,
-62,
-24,
41,
-47,
8,
0,
-38,
-11,
-3,
-16,
-45,
9,
24,
-11,
-27,
-13,
12,
-4,
22,
7,
-22,
-6,
35,
-6,
-11,
28,
-22,
52,
1,
42,
-31,
26,
-12,
16,
0,
33,
27,
16,
3,
-8,
8,
20,
24,
11,
-50,
-7,
-33,
-42,
-45,
36,
1,
-67,
28,
-53,
-20,
-7,
-8,
6,
73,
-15,
23,
-1,
11,
-17,
-42,
32,
24,
5,
51,
-40,
-4,
-9,
36,
16,
-9,
-9,
-11,
-42,
1,
-14,
-32,
-4,
7,
41,
77,
57,
10,
-9,
-38,
84,
-2,
-4,
13,
-1,
-45,
20,
1,
7,
-39,
-3,
24,
-30,
-56,
3,
-21,
22,
-53,
37,
-5,
-24,
-1,
11,
17,
-29,
-47,
9,
43,
22,
69,
28,
0,
-28,
-22,
-38,
62,
10,
69,
1,
8,
35,
11,
21,
23,
10,
0,
-4,
-25,
22,
19,
15,
17,
14,
-36,
25,
-18,
-7,
2,
-32,
48,
-47,
19,
-2,
-3,
-7,
36,
48,
-38,
-33,
25,
13,
-45,
17,
-15,
-24,
-12,
-14,
-32,
-75,
-13,
7,
14,
-39,
-20,
-10,
18,
8,
-1,
39,
-33,
21,
-38,
-20,
24,
-41,
37,
-9,
22,
40,
19,
11,
2,
-71,
18,
-5,
-34,
-54,
5,
3,
5,
-37,
44,
13,
-43,
61,
31,
44,
-46,
13,
14,
-3,
-10,
-21,
-18,
-49,
43,
24,
-26,
33,
19,
-6,
49,
74,
-13,
4,
5,
49,
44,
-17,
33,
40,
-41,
41,
14,
30,
17,
23,
9,
29,
-26,
43,
-7,
44,
-6,
-16,
-44,
-10,
48,
-27,
13,
-7,
35,
7,
12,
-35,
-18,
10,
-23,
-70,
-12,
21,
-23,
-1,
-14,
-4,
-16,
4,
-20,
-6,
-19,
35,
-9,
1,
18,
-21,
-26,
-32,
14,
-18,
38,
9,
-8,
29,
-42,
10,
19,
45,
-28,
14,
-25,
-27,
7,
15,
83,
32,
25,
56,
-59,
8,
0,
-2,
30,
16,
-57,
41,
-9,
1,
-25,
-33,
72,
-9,
-20,
-31,
37,
5,
27,
-30,
2,
13,
-10,
12,
-2,
39,
-80,
-7,
1,
-11,
-55,
0,
28,
16,
3,
-2,
-2,
29,
-31,
-3,
-46,
33,
33,
58,
31,
-2,
15,
10,
4,
-6,
47,
-17,
-32,
19,
-4,
14,
36,
29,
-7,
49,
-4,
-36,
34,
-16,
-17,
-1,
-18,
-18,
10,
1,
-21,
32,
-11,
1,
32,
17,
-51,
2,
-7,
-61,
31,
4,
15,
-4,
-7,
15,
-3,
47,
12,
-52,
-13,
33,
-13,
-52,
13,
29,
-15,
-10,
-42,
18,
41,
-26,
34,
29,
20,
30,
-23,
-11,
-28,
-10,
39,
-22,
39,
29,
-23,
-3,
-30,
10,
50,
60,
20,
3,
-27,
17,
-24,
18,
-1,
-6,
-11,
25,
4,
38,
20,
-33,
18,
-23,
5,
-19,
-5,
-54,
-100,
-23,
48,
15,
12,
-10,
-8,
-38,
-44,
31,
-19,
-40,
-46,
53,
-38,
5,
34,
29,
-14,
-13,
47,
0,
-12,
23,
-23,
0,
3,
29,
3,
-47,
22,
14,
-34,
20,
-54,
-9,
-5,
18,
-11,
14,
45,
-9,
1,
-28,
47,
32,
-27,
-11,
-7,
-13,
-18,
-33,
-32,
7,
-49,
11,
-6,
-5,
0,
20,
-21,
-3,
-7,
14,
-46,
-15,
-33,
-28,
-41,
-11,
-4,
6,
18,
2,
-17,
-40,
18,
20,
-14,
-23,
82,
51,
-49,
-58,
-31,
0,
-10,
-10,
7,
-8,
24,
11,
-74,
0,
-48,
36,
-12,
-20,
25,
-18,
-14,
40,
-28,
17,
-31,
52,
-44,
19,
44,
-33,
-42,
-37,
19,
-6,
-9,
46,
-1,
-6,
-25,
-65,
36,
-43,
-1,
-10,
-35,
-35,
48,
77,
8,
-49,
5,
27,
-44,
24,
-1,
17,
10,
-28,
-47,
42,
19,
12,
-8,
20,
10,
-12,
25,
31,
-23,
-3,
-52,
1,
40,
3,
30,
30,
36,
51,
19,
0,
-38,
27,
-40,
-24,
20,
0,
19,
4,
27,
-14,
-5,
40,
-31,
-34,
-28,
-61,
-16,
36,
-24,
-22,
19,
-30,
11,
-19,
-25,
-1,
4,
-3,
7,
8,
-13,
-8,
9,
-12,
-36,
8,
25,
-23,
28,
-48,
21,
-10,
28,
2,
-10,
-31,
-4,
51,
21,
-49,
-19,
-24,
-24,
23,
-58,
-3,
22,
-11,
-7,
-11,
-8,
24,
21,
-41,
13,
-32,
-44,
-6,
36,
-56,
24,
-2,
31,
-29,
2,
40,
-8,
-27,
13,
27,
25,
16,
12,
66,
47,
29,
-47,
5,
9,
12,
-4,
-40,
-22,
4,
-46,
-18,
-50,
4,
6,
19,
22
] |
Hooker, J.
The plaintiff brought replevin for a quantity of lumber which defendant caused to be manufactured from timber cut from land owned by the plaintiff. By way of defense the defendant asserted that some of this lumber was cut from trees that he obtained from another locality, and the remainder was the product of two trees that were cut by road commissioners in constructing a highway upon the premises of the plaintiff, and that the same were taken by him under permission given him by the road commissioners. There was evidence tending to prove the first of these claims, and the jury seem to have found it to be true. The second was proved by the undisputed evidence, and the court directed the jury to find for the defendant as to the two trees. Upon a general verdict and judgment for the defendant, the plaintiff has brought error, and contends that the defendant acquired no title to the two trees.
The defendant proved by one Sherman that he- (Sherman) was the manager of J. M. Longyear’s land office at Marquette; that Mr. Longyear was the land agent of the plaintiff, and the office mentioned was the office of the plaintiff; and that, in the ordinary course of business, correspondence relative to lands belonging to the plaintiff passed through the hands of the witness. The following letters were thereupon read in evidence:
“ J. M. Longyeae, Agent,
“The Keweenaw Association (Limited).
“Marquette, Mich., May 31, 1895. “Conrad Carlson,.Esq., (C. T.)
“ Clerk Board of County Road Commissioners,
‘‘ Bessemer, Mich.
‘ ‘ Dear Sir: The question of granting the right of way asked for by your board, as per your letter of the 27th inst., has been referred to the owners-of the lands touched by the highway in question, and I will advise you in due course as may be directed. Permit me to inquire upon what grounds the board of county road commissioners have assumed to act in the matter of opening a local road lying wholly within the boundaries of Ironwood township. Why is it that the township authorities are not moving in the matter of this highway, instead of the county board ?
‘ ‘ Yours truly,
“Dictated S. J. M. Longyear, Agent.
“M.”
“J. M. Longyear, Agent,
“The.Keweenaw Association (Limited).
“Marquette, Mich., July 2, 1895. “Clerk of Gogebic County, (C. T.)
“Bessemer, Mich.
“Dear Sir: Referring to your application of the 27th of May, on behalf of the board of county road commissioners, for the right of way for a highway in towns 47-47 and 48-47, same has been referred to the owners of the following described lands; and I am directed to advise you that the right of way will be donated, providing the board will provide and make payment for the value of timber to be cut in opening the right of way. The lands herein referred to are the entire section 3, and the N. E. qr. section 9, 47-47, and the S. E. qr. section 33, 48-47, from the south line northerly to the main line of the Duluth, South Shore & Atlantic Ry. Will you please have me advised as to when the board will have the line of the road staked out, so that we can go over it and estimate the amount of timber that will be cut, and also send me map or other description that will give me the width to be cut on our land ? We would prefer to estimate the timber after the line is actually staked out on the ground, if practicable, as in that way we will have the correct estimate of the timber.
“Yours truly,
“Dictated S. J. M. Longyear, Agent.
“M.”
The plaintiff contends that this testimony does not show that the road commissioners were given authority to cut the two trees standing upon the proposed right of way; and, if the letters were to be so construed, it does not appear that Longyear authorized the writing of said letters, or that he had authority to do so if he did. We think the plaintiff is justified in its contention. The letters indicate a willingness to permit the construction of the highway. They give no authority to do so, or to cut timber, except upon the condition stated therein. They contemplated that the plaintiff should have an opportunity to estimate the timber before it was cut, and did not authorize the cutting of timber until- that condition was complied with. It follows that the judgment must be reversed.
'There is another question raised by the record, which may arise upon another trial. The logs from the two trees, which, upon this record, appear to be the property of the plaintiff, were commingled with the logs from other trees, which the jury must have found to have been cut from lands not belonging to the plaintiff. It is contended, however, that this commingling of the logs resulted in such a confusion of property as to give the plaintiff the title to the whole. The doctrine of accession through confusion of goods is old. Stephenson v. Little, 10 Mich. 433; Wetherbee v. Green, 22 Mich. 317 (7 Am. Rep. 653); Fowler v. Hoffman, 31 Mich. 225. But it involves a forfeiture, and is never applied where it can be consistently avoided. In Wetherbee v. Green it is said:
“But this rule only applies to wrongful or fraudulent intermixtures. There may be an intentional intermingling, and yet no wrong intended; as where a man mixes two parcels together, supposing both to be his own, or that he was about to mingle his with his neighbor’s, by agreement, and mistakes the parcel. In such cases, which may be deemed accidental intermixtures, it would be unreasonable and unjust that he should lose his own, or be obliged to take and pay for his neighbor’s, as he would have been under the civil law. Morton, J., in Ryder v. Hathaway, 21 Pick. 305. In many cases there will be difficulty in determining precisely how he can be protected with due regard to the rights of the other party; but it is clear that the law will not forfeit his property in consequence of the accident or inadvertence, unless a just measure of redress to the other party renders it inevitable. Story, Bailm. § 40; Sedg. Dam. 483.”
In such cases, as in those where the commingling is lawful, as by agreement, the rule does not apply, and the parties become tenants in common of the whole. 6 Am. & Eng. Enc. Law (2d Ed.), 593, and cases cited. There is no reason why the same rule should not apply in any case where the goods are'identical in quality, and of equal value. Id. 597. The law will not deprive a wrong-doer of his property, if it can be justly avoided; and in 'the case of Mittenthal v. Heigel, (Tex. Civ. App.) 31 S. W. 87, it is said that, when mortgaged property is commingled.with property of like kind and equal value, the more equitable doctrine of giving to each party his due proportion will govern, rather than the harsher one of holding the whole subject to the mortgage. See, also, D. M. Osborne & Co. v. Cargill Elevator Co., 62 Minn. 400; Armstrong v. McAlpin, 18 Ohio St. 184.
The record discloses no bad faith, and there is nothing to indicate a difference in quality or value of the lumber of the same kind. If, therefore, the plaintiff was entitled to the product of the two trees, it should have contented itself with a proportionate share of the lumber.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
32,
52,
11,
-28,
-33,
5,
16,
-2,
-10,
49,
21,
-49,
28,
5,
55,
-22,
2,
-6,
16,
46,
3,
-33,
4,
-9,
-36,
-48,
-10,
17,
-11,
23,
-19,
23,
34,
22,
-3,
0,
13,
14,
-18,
25,
6,
0,
5,
-53,
26,
-2,
22,
-19,
27,
-14,
42,
16,
-60,
-44,
-38,
3,
9,
-6,
-5,
42,
-5,
-24,
-2,
-7,
47,
-37,
7,
33,
31,
-49,
-37,
16,
-13,
-2,
60,
14,
-7,
7,
-25,
49,
-10,
27,
32,
-29,
-30,
-31,
-57,
-39,
4,
-18,
-24,
-49,
-11,
6,
60,
49,
-34,
7,
-21,
3,
32,
56,
32,
-42,
-8,
-18,
-9,
-43,
2,
9,
10,
-16,
1,
-26,
35,
-37,
30,
13,
38,
21,
1,
-33,
8,
52,
-29,
60,
7,
2,
0,
-24,
46,
-29,
14,
8,
50,
34,
-39,
11,
12,
20,
29,
63,
-18,
15,
-26,
-32,
-25,
6,
-41,
-6,
-21,
-18,
-1,
-12,
10,
8,
18,
-32,
75,
-26,
8,
-17,
-7,
-24,
-51,
-1,
-23,
18,
-35,
17,
24,
-26,
-31,
-35,
18,
8,
24,
47,
-26,
-1,
23,
7,
38,
-13,
-25,
-17,
33,
-21,
10,
8,
19,
0,
-7,
-34,
-20,
60,
-13,
7,
-9,
26,
7,
-73,
7,
3,
-18,
-16,
-1,
-24,
-26,
18,
-6,
48,
-31,
-24,
11,
35,
-12,
-27,
15,
-45,
35,
17,
61,
1,
-15,
9,
1,
5,
49,
-14,
-28,
-48,
5,
-20,
-27,
-18,
-12,
-2,
7,
-26,
-8,
-37,
-38,
12,
17,
22,
-40,
-24,
13,
23,
15,
-33,
-10,
-28,
-39,
5,
11,
-25,
-28,
-9,
-8,
36,
-12,
15,
-24,
-2,
12,
51,
-43,
-16,
-19,
34,
50,
25,
-64,
-12,
10,
-2,
2,
7,
15,
-28,
-10,
-12,
-37,
36,
-26,
29,
-7,
-2,
12,
10,
-20,
-11,
28,
17,
30,
-43,
-3,
-23,
0,
-12,
-28,
-14,
4,
2,
8,
-12,
32,
33,
6,
-21,
4,
0,
-11,
28,
-4,
8,
-32,
-42,
-8,
15,
4,
-9,
7,
50,
-4,
2,
-59,
47,
-31,
-13,
-6,
39,
6,
-56,
7,
-22,
-17,
-31,
28,
29,
-7,
17,
-7,
-5,
-32,
10,
40,
-39,
67,
-46,
-20,
-2,
-53,
0,
-7,
-36,
-5,
16,
29,
7,
11,
10,
15,
-36,
-52,
-23,
8,
13,
-7,
0,
30,
41,
13,
-57,
-20,
-39,
-46,
29,
15,
10,
31,
10,
48,
2,
-23,
-35,
-22,
-11,
-36,
-15,
29,
44,
5,
4,
-17,
-50,
-15,
-31,
-36,
37,
62,
32,
-55,
-2,
-16,
-8,
14,
-18,
5,
-10,
18,
-6,
-3,
-37,
30,
27,
-7,
-10,
52,
41,
12,
-27,
46,
-28,
3,
20,
-34,
-9,
-17,
9,
50,
-38,
32,
35,
-11,
4,
-29,
-12,
-27,
17,
-9,
-47,
-27,
-2,
7,
50,
19,
-43,
0,
0,
-57,
0,
-8,
28,
16,
-50,
64,
-26,
11,
1,
4,
-38,
26,
-8,
0,
-38,
31,
31,
-8,
34,
-25,
1,
8,
32,
48,
-5,
-19,
6,
8,
-11,
13,
47,
-22,
-31,
11,
5,
-13,
10,
54,
10,
8,
-25,
-12,
-23,
-23,
-18,
64,
43,
-31,
-6,
11,
-44,
-14,
-12,
1,
30,
-3,
41,
26,
4,
47,
-28,
-43,
52,
8,
-15,
0,
26,
3,
-36,
-28,
1,
-9,
35,
17,
-27,
-7,
1,
5,
0,
-14,
9,
32,
8,
27,
-20,
-6,
-26,
22,
-7,
65,
-29,
-31,
10,
13,
-51,
54,
-18,
-60,
-47,
1,
0,
0,
40,
-12,
-49,
-16,
10,
-30,
-13,
18,
-31,
45,
-26,
-39,
-17,
34,
-22,
2,
12,
37,
-14,
-2,
23,
-21,
-5,
-5,
35,
-19,
-30,
-56,
-25,
-19,
-13,
38,
-7,
-21,
15,
-8,
-2,
-42,
-37,
-34,
16,
11,
65,
15,
-21,
25,
-14,
-49,
4,
-6,
-25,
9,
7,
42,
56,
-8,
12,
29,
51,
-3,
31,
-29,
-33,
31,
43,
45,
-7,
5,
23,
6,
0,
15,
-16,
-21,
-28,
-42,
4,
-39,
27,
9,
-34,
32,
16,
-35,
2,
0,
-37,
-33,
3,
1,
-5,
-50,
41,
-61,
-18,
-20,
7,
54,
-13,
-8,
15,
11,
23,
-6,
9,
52,
-1,
-3,
0,
-55,
-18,
21,
0,
19,
41,
45,
-36,
21,
7,
-16,
-74,
4,
27,
42,
23,
8,
-26,
62,
-13,
9,
30,
22,
10,
17,
-41,
-2,
48,
14,
-9,
-26,
7,
25,
-27,
0,
-48,
-10,
72,
14,
44,
-13,
23,
2,
-38,
19,
3,
26,
6,
-10,
58,
-15,
67,
8,
-14,
12,
7,
-14,
-40,
-46,
-51,
22,
-32,
-9,
-48,
-13,
11,
17,
38,
-11,
-22,
-18,
-33,
31,
15,
1,
0,
5,
-36,
-38,
-11,
-18,
-30,
53,
-18,
-28,
-3,
8,
23,
28,
17,
-6,
-55,
-15,
-5,
-47,
-17,
20,
-55,
-30,
-1,
-4,
-21,
-52,
-28,
9,
-7,
-28,
3,
-50,
-10,
39,
0,
-29,
29,
18,
-5,
21,
-23,
-7,
13,
-34,
-14,
0,
-24,
0,
-1,
-7,
-33,
11,
12,
-28,
2,
-1,
25,
33,
-9,
-5,
38,
-25,
-2,
-10,
7,
-19,
24,
11,
30,
-4,
-8,
-9,
-60,
-20,
15,
2,
18,
0,
27,
-16,
5,
-8,
-50,
6,
-2,
26,
-14,
14,
0,
48,
-20,
-44,
10,
27,
-9,
0,
-34,
-11,
7,
29,
-9,
-4,
-17,
14,
23,
1,
20,
-15,
-17,
-38,
0,
1,
9,
1,
-29,
20,
13,
5,
23,
44,
-6,
-47,
-37,
25,
-37,
7,
-27,
-5,
1,
31,
16,
-11,
-8,
32,
-29,
-17,
-61,
6,
-5,
-26,
43,
58,
0,
-30,
-30,
7,
-27,
49,
31,
6,
32,
15,
12,
3,
-24,
-21,
-18,
-10,
18,
-16,
10,
-10,
35,
-4,
-40,
41,
9,
8,
41,
-12,
-56,
-16,
-3,
-48,
0,
-25,
-8,
-35,
22,
15,
29,
-15,
19,
-23,
-7,
13,
29,
-9,
42,
-22,
-15,
28,
-2,
52,
5,
12,
-74,
12,
-13,
11,
17,
-11,
-14,
-10,
-5,
7,
42,
-8,
30,
21,
-12,
28,
69,
-31,
-13,
-20,
-16,
-9,
0,
4,
44,
10,
32,
-7,
42,
33,
53,
29,
-11,
-18,
-9,
19,
-42,
27,
-9,
6,
9,
-30,
-18,
25,
-47,
-27,
63,
33,
-44,
22,
-30,
-52,
3,
-45,
11,
61,
-44,
-4,
33,
-17,
-23,
-31,
-36,
38,
10,
9,
10,
12,
-2,
27,
62,
-4,
-24,
-68,
11,
8,
-8,
21,
33,
15,
-29,
37,
-1,
-5,
-21,
25,
37
] |
Montgomery, J.
This is an appeal from orders of the court made subsequent to the granting of the decree. The decree of the court, dated March 16, 1898, filed May 4, 1898, granted a divorce to complainant on the ground of extreme cruelty. It provided for a division of the prop erty of complainant, both real and personal, between the parties, in the following manner: Within 10 days after service upon her of a copy of the decree, the defendant was required to make an inventory of the personal property (which was in her possession), and divide the same into two parcels, and give notice of the same to the solicitor for complainant, and also at the same time give notice to said solicitor of the amount which she would give or take for the one-half interest in the equity of complainant in the real estate. Within five days thereafter, complainant should make his choice of one of the two said parcels of personal property, and also notify defendant, within the same time, of his option to give or take the amount proposed by her for said half interest in said equity in the real estate. In case the defendant should not comply with the above terms within the time limited, the household goods should belong to the defendant, and the real estate to complainant. In case of division of said household goods as provided, defendant should immediately deliver to complainant the parcel selected by him. Should complainant elect to pay defendant for her interest in said equity, she should surrender possession of the real estate within 10 days after payment of the amount to be paid as aforesaid. In case defendant gave notice within 10 days of what she would give or take .for the half interest in said equity, and complainant elected to accept the money, the defendant was required to pay such sum within 30 days after complainant made his election to accept the same, and her failure to pay the'same within such time should operate as an abandonment of her offer to give or take as aforesaid, and should entitle complainant to have all of said equity, and defendant to have all of the household goods. In such case, if one-half of the household goods had been delivered to complainant, they should be returned to defendant.
May 6, 1898, a copy of decree was served on defendant. May láth, defendant served lists of two parcels of personal property, and gave notice that she would give or take $1,000 for the half interest in the equity in the real estate. May 18th, complainant served on defendant notice of acceptance of her offer to give $1,000 for the equity, and selected parcel No. 1 of the personal property. On the same day the personal property was divided, and complainant removed the parcel selected by him. June 20th, the 30-day limitation fixed by the decree for the payment by the defendant of the amount offered by her for complainant’s equity having expired on the 17th, and she having failed and neglected to pay the same, complainant caused a tender to be made to defendant of the amount of her lien on said real estate, viz., $961.75, under the decree in cause No. 17,437. She was at the same time requested to state when she would vacate the premises, and where • she desired complainant to return the personal property.
June 22d, defendant filed a petition for an order extending the time to pay the $1,000, and requiring complainant ’to allow certain set-offs, and to furnish an abstract of title of the premises in question. July 13th, Judge Carpenter, before whom said petition was heard, denied the said application of defendant, without prejudice. July 15th, complainant filed a petition for a writ of assistance as against defendant and Ernest Cobb, a tenant under her. July 27th, Judge Donovan, who heard the above application, made an order dismissing the same, and also requiring complainant to furnish an abstract of title, and extended the time for payment of the amount offered by defendant for complainant’s interest in the real estate 20 days from the date of the order. August 10th, the opinion of Judge Donovan was filed, authorizing the defendant to deduct $26.80 for the abstract of title procured by her from the $1,000, and allowing her to tender the balance into court. August 11th, an order was made by Judge Donovan granting leave to defendant to make a tender to complainant’s solicitor of the amount offered by her, and directing complainant to deliver to defendant a deed of his interest in said premises.
From these orders denying the writ of assistance, ex tending the time to make payment, and charging complainant with the cost of an abstract, complainant appeals.
It is contended by appellant that the court cannot, after enrollment, alter or amend its decree, and that, therefore, the orders in question were unauthorized. Judge Donovan recognized the general rule contended for. In his opinion he said, “The court’s decree to give or take so much for the property, made by Judge Aldrich, can in no way be disturbed, except to aid in executing and performing it, which power we claim to possess. ” We think Judge Donovan did not mistake the power of the court. While the court has not, after enrollment, power to amend the decree without a rehearing, it retains the power to modify by a subsequent order the time of its enforcement. 5 Enc. Pl. & Prac. 1057, and cases cited in note. The case shows that defendant was entitled to the real estate on payment of $1,000, and there is enough to show that she was delayed in her negotiations for the money by the assurance of complainant’s attorney-in-fact that he would furnish an abstract of the property, which he later declined to do. The case was a proper one for an extension of time for performance of the decree. We do not, however, find that the original decree required complainant to furnish an abstract, and think that this requirement was a modification in substance of the decree.
The order will be so modified that the defendant may have 30 days from the entry of the decree in this court to make tender of the $1,000. No costs will be awarded on this appeal.
The other Justices concurred. | [
-37,
6,
-11,
29,
-66,
28,
26,
15,
28,
5,
-13,
4,
-27,
48,
-10,
-8,
-8,
-76,
-16,
3,
-26,
13,
-5,
-33,
67,
4,
14,
-21,
30,
-40,
-5,
-19,
-31,
30,
19,
-51,
20,
-45,
43,
20,
20,
-13,
-18,
35,
-26,
-11,
-14,
-53,
3,
7,
-45,
-40,
28,
-19,
54,
-1,
-32,
-16,
-8,
-21,
-18,
-19,
-36,
1,
14,
80,
-18,
-55,
-40,
-66,
-22,
-42,
42,
-21,
-9,
-20,
22,
-37,
-11,
29,
11,
-41,
21,
-7,
-38,
0,
11,
13,
8,
31,
-26,
39,
-21,
-7,
-15,
-11,
29,
0,
28,
20,
19,
-43,
5,
28,
-12,
19,
34,
-19,
-8,
-14,
35,
-41,
54,
-14,
-47,
15,
-39,
-48,
-30,
-61,
29,
10,
28,
-12,
60,
-27,
-21,
-12,
10,
-4,
-7,
52,
2,
-10,
27,
-24,
-9,
0,
-2,
-10,
25,
-42,
26,
-13,
-7,
3,
18,
-17,
-31,
3,
6,
4,
-5,
62,
46,
-40,
26,
-24,
5,
-3,
48,
0,
-15,
-21,
4,
-16,
-38,
9,
-4,
9,
32,
-3,
-27,
-11,
-6,
-8,
4,
-37,
-12,
6,
5,
35,
8,
-12,
39,
4,
-42,
-8,
-9,
20,
-1,
-7,
12,
28,
20,
-8,
47,
-25,
46,
8,
-29,
-7,
-9,
6,
-16,
-16,
27,
-5,
-26,
29,
-31,
22,
-44,
0,
-36,
6,
-34,
-6,
-25,
54,
13,
22,
-64,
-6,
-47,
-56,
7,
33,
24,
62,
-1,
66,
3,
-9,
22,
26,
11,
25,
20,
-20,
-18,
38,
-12,
-37,
35,
31,
-17,
17,
-16,
18,
13,
44,
-17,
35,
32,
-1,
-4,
35,
38,
-9,
14,
22,
31,
7,
19,
-23,
31,
-9,
-1,
17,
2,
5,
-1,
-42,
19,
-9,
-19,
-10,
-41,
-19,
-24,
-14,
-36,
11,
-8,
-17,
9,
4,
28,
21,
3,
-26,
8,
31,
4,
30,
-34,
-7,
46,
-4,
-35,
-73,
36,
10,
8,
13,
-25,
-40,
-24,
-59,
-8,
-20,
14,
2,
20,
30,
-45,
0,
-9,
18,
25,
10,
-23,
8,
10,
7,
17,
-14,
-17,
9,
16,
29,
10,
-3,
27,
59,
-10,
13,
-12,
-34,
10,
-47,
53,
-3,
8,
6,
14,
-10,
32,
84,
-13,
15,
-7,
54,
8,
5,
3,
-6,
-21,
18,
42,
-10,
-14,
-47,
37,
8,
26,
-25,
19,
8,
-7,
-9,
12,
-19,
-38,
6,
3,
1,
26,
31,
-28,
-28,
-19,
5,
16,
28,
-38,
9,
14,
-32,
2,
41,
-3,
9,
12,
-52,
19,
-6,
-25,
26,
-18,
11,
2,
-18,
-56,
29,
-26,
-12,
11,
17,
6,
-20,
43,
0,
9,
16,
27,
-2,
43,
-7,
11,
-6,
36,
-3,
5,
11,
15,
-26,
21,
43,
-36,
26,
34,
1,
24,
10,
12,
-18,
-4,
21,
16,
54,
18,
87,
28,
-5,
-47,
-54,
36,
48,
26,
-31,
6,
29,
-10,
-36,
45,
45,
21,
-8,
33,
20,
-45,
33,
-14,
-6,
-42,
20,
-15,
7,
-39,
6,
32,
1,
-9,
9,
-27,
-28,
4,
-29,
-26,
-11,
-9,
-1,
18,
30,
-7,
-29,
-42,
-30,
17,
-15,
0,
14,
10,
-43,
-6,
-33,
-15,
22,
-10,
0,
53,
24,
-12,
-7,
0,
3,
49,
18,
-15,
4,
23,
0,
44,
-10,
-20,
8,
48,
35,
-43,
-11,
-12,
0,
-2,
-10,
40,
45,
-31,
-38,
-37,
44,
-18,
-19,
-13,
5,
-9,
-34,
-23,
-10,
-54,
37,
20,
29,
8,
80,
-10,
-56,
-27,
26,
37,
-32,
-25,
-41,
-1,
-12,
8,
16,
-32,
0,
38,
0,
-9,
-8,
37,
-51,
1,
-37,
-79,
60,
-6,
1,
-6,
12,
44,
15,
-20,
-4,
-17,
-33,
-7,
-26,
-27,
-17,
60,
0,
0,
42,
-20,
15,
-55,
28,
-3,
2,
9,
-47,
-37,
14,
-2,
-24,
-11,
25,
-22,
-52,
-69,
-10,
-2,
75,
-29,
-17,
7,
-7,
17,
-6,
0,
3,
18,
5,
21,
9,
4,
-7,
14,
-13,
17,
-38,
30,
10,
-34,
27,
26,
10,
85,
21,
-14,
78,
8,
-9,
-15,
-30,
-11,
42,
-48,
-39,
-41,
13,
-22,
-48,
0,
-8,
-8,
28,
-10,
-37,
74,
-43,
56,
-36,
-16,
10,
-12,
-22,
-3,
26,
31,
-8,
-19,
31,
-19,
-9,
-15,
-11,
40,
9,
3,
48,
0,
28,
-9,
11,
-17,
-4,
-52,
35,
-63,
-7,
27,
0,
3,
4,
-19,
-88,
-8,
26,
-2,
27,
32,
65,
13,
26,
28,
-7,
-6,
37,
1,
21,
-20,
41,
5,
-40,
-21,
-7,
-30,
-29,
8,
-49,
69,
-1,
-14,
-48,
-13,
-3,
-1,
-1,
13,
0,
-21,
4,
14,
-1,
16,
49,
-32,
32,
-27,
1,
-53,
8,
-13,
-44,
-27,
-11,
-5,
-41,
24,
12,
-2,
14,
-29,
10,
6,
-5,
8,
4,
6,
-52,
-1,
-26,
3,
10,
0,
31,
-33,
10,
-2,
-15,
-28,
-18,
19,
-41,
-24,
-50,
48,
-20,
-31,
-18,
33,
29,
13,
-40,
-34,
-53,
-25,
-17,
33,
-38,
57,
-35,
-10,
36,
-30,
-100,
-23,
-34,
-13,
-3,
-11,
-24,
-19,
-61,
0,
-13,
0,
-27,
12,
60,
-24,
14,
-80,
-18,
-7,
-7,
3,
-10,
11,
-7,
-10,
22,
2,
-7,
-1,
17,
-15,
44,
-5,
-27,
8,
42,
-28,
41,
50,
-58,
45,
4,
-37,
-15,
32,
-12,
22,
-12,
-20,
-81,
-27,
5,
31,
-11,
-21,
22,
27,
30,
12,
-12,
-17,
20,
-40,
-36,
-28,
19,
22,
13,
10,
-5,
9,
1,
-26,
23,
-2,
-10,
46,
-22,
4,
-4,
-73,
28,
-13,
72,
34,
-31,
6,
-16,
0,
-30,
-12,
19,
-39,
34,
17,
15,
-65,
3,
41,
0,
38,
6,
-20,
0,
2,
-22,
-26,
-21,
36,
-9,
3,
-5,
80,
-19,
-16,
58,
25,
-10,
70,
10,
-15,
-32,
18,
17,
26,
-50,
20,
3,
11,
-26,
-39,
-9,
34,
-29,
-8,
9,
19,
0,
-12,
-25,
0,
-15,
10,
-11,
-2,
-18,
19,
-9,
-12,
12,
-29,
-13,
-21,
17,
57,
15,
58,
-12,
6,
39,
3,
2,
28,
29,
-52,
28,
-51,
12,
-75,
35,
58,
-53,
36,
14,
28,
3,
-16,
-37,
17,
-57,
-27,
-34,
-21,
-1,
39,
2,
-24,
5,
6,
-35,
-39,
-33,
5,
30,
1,
-18,
-31,
-51,
51,
-23,
13,
-10,
-21,
4,
-15,
4,
-1,
21,
-44,
3,
36,
20,
22,
-63,
58,
42,
2,
1,
-30,
13,
17,
67,
-18,
11,
-7,
37,
-6,
-2,
1,
11,
-3,
35
] |
Grant, C. J.
(after stating the facts). 1. It is contended by counsel for the defendant that there is no dispute on the testimony; that the policies were forfeited by the failure of Mr. Jones to pay his assessments in April; that the company had a right to refuse to reinstate him, if in their judgment he had become impaired as an insurance risk; that their action, in the absence of fraud, was final; that there was no waiver by reason of the statements made by any officer of the company; and that, therefore, the court should have directed a verdict for the defendant. This presents the principal question in the case. Mr. Randall was the managing officer of the company, and appears to have been intrusted with the full management of its business. The office was at Lansing, and under his control, and he resided there. If it be conceded that Mr. Jones' policies had become forfeited by the nonpayment of these assessments, the authorities are quite uniform that this-forfeiture might be waived. The law does not favor forfeitures, in fact, abhors them, and will avoid them whenever any reasonable ground can be found for so doing. Hartford, etc., Ins. Co. v. Unsell, 144 U. S. 439, and authorities there cited. It ‘is undisputed that Mr. Randall informed Mr. Jones, within a few days after the time limited for payment, that he would have to furnish a health certificate from the physician of the company, and that he gave Jones such a certificate to be filled out. This he did, and the certificate, in due form, was given to the company, through Mr. Randall. This was a waiver of the failure to pay, and entitled Mr. Jones to reinstatement. This action of the company was not avoided by the subsequent act of Mr. Randall in taking the certificate to the physician, and inducing him to make the indorsement thereon which he did. Miesell v. Insurance Co., 76 N. Y. 115; Jackson v. Relief Ass’n, 78 Wis. 463. The learned counsel for the defendant argues that there is nothing in the testimony to indicate that Mr. Jones was informed that his payment would be accepted after maturity if he were in good health. We think it a fair inference from the testimony that it was the understanding between Mr. Jones and Mr. Randall that the only thing required for him to do, in order to be reinstated, was the procurement • of this certificate and the payment of his money. It was in accordance with the usage of the defendant. It is not necessary that there be an express waiver; it may be implied from circumstances. Mobile Life Ins. Co. v. Pruett, 74 Ala. 487, and authorities there cited.
2. While it is true that Mr. Jones paid all his assessments, except this last, at the office of the company, it is established by the testimony of Mr. Randall, not only that he was in the habit of collecting delinquent assessments both with and without certificates of health, but that he told Mr. Jones that the company undertook to go and see its members who lived here at Lansing, upon the street, that he could get at handily, and collect their assessments. This was in reply to a question from Mr. Jones asking where he should make his payments. Randall had then collected his membership ,-fee. Besides, the statement made by Mr. Jones tí) Mr. Randall, which the latter did not at the time deny, that “he [Jones] was entitled to the same treatment as other members,” is evidence tending to show that Jones understood this method of doing business. It is urged that this statement of Mr. Jones was hearsay, made in his own interest, and against the interest of the defendant, and after the controversy had arisen. The conversation took place while Mr. Jones was insisting on his rights, and referred to the custom testified to by Mr. Randall. We think it was legitimate evidence to show knowledge on the part of Mr. Jones of the custom. In our opinion, there was enough in the case to go to the jury upon the question of waiver, and to justify the conclusion of the jury that Mr. Jones acted upon it. Upon this point the court instructed the jury as follows:
“Now, if you find that the language and actions of this company, through Mr. Randall, the head of its executive management, clearly indicated on the part of the society that it would not take an advantage of the default of the member here situated as Mr. Jones was, if he did not pay within the 30 days, but that it would accept his payment after that time, providing he were in good health, and if, after the expiration of this month of April, he was in good health, and Mr. Jones knew of this, and relied upon it, 'and believed it, and was honest in it, the company is estopped from setting up the forfeiture. If the company’s conduct was not such as to fairly indicate an intention so to do, but was merely the extension of favors here and there, then it would not be an estoppel. But if the conduct was such as to give people — give Mr. Jones— to understand, as I said, that he might pay after the 30 days, and it would 'be accepted if he was in good health, then the company is estopped, if he honestly believed that, and acted upon it, providing he was in good health at the expiration of that 30 days, and during the time following, when the negotiations took place between the .parties.”
This instruction is fully sustained by the authorities. Nibl. Acc. Ins. & Ben. Soc. § 299; 2 Bac. Ben. Soc. §§ 361, 433; Loughridge v. Endowment Ass’n, 84 Iowa, 141; Helme v. Insurance Co., 61 Pa. St. 109 (100 Am. Dec. 621).
3. It is urged that undue prominence was given to the testimony of Mr. Randall, which the .court in its instructions read to the jury. We think not. The question of waiver depended mainly upon the testimony of Mr. Randall, and, under the circumstances, we do not think that such undue prominence was given to it as to justify a reversal of the case upon this ground.
4. Error is assigned upon the statement made in the instructions to the jury, viz., that they must determine “whether the probabilities are that he [Jones] knew it.” The court in this portion of the instructions was referring to this question of waiver. That expression was used in the following connection:
“ The plaintiff in this case asserts that the forfeiture of the policy alleged and insisted upon by the defendant has been waived by it, and that it is now estopped to assert it as against the plaintiff. The burden of proof to sustain such waiver rests upon the plaintiff. I have told you that, in order to create an estoppel as against this company and in favor of Owen Jones, under the claim of the plaintiff herein, it must appear that there has been such a course of dealing between Mr. Jones himself and the assurance company, and between the assurance company and others here in the city, known to Mr. Jones, that Owen Jones was led to believe, and had a right to believe, that if he failed to make his payment in April, 1896, it would be accepted thereafter, or that he would be reinstated upon the payment of his assessment at some date after the maturity of the date of payment, and that, in omitting to make this payment, he did rely upon such a course of dealing. Now, I charge you, gentlemen, further, Mr. Jones not being here to tell for himself what he relied upon or what he knew, that you must determine that from all the evidence in the case, from the conversations between him and Mr. Randall, from the length of time that he was here, the extent of the company’s con duct as detailed by Mr. Randall, the extent of the district that defendant went over, and from all the circumstances, what Mr. Jones did and said, so far as the evidence discloses it, you are to determine from that whether Mr. Jones did know about this course on the part of the company, whether the probabilities are that he knew it, and you believe that he knew it from the evidence, and whether he relied upon it, and whether he was honest in that reliance.”
The court was dealing with a case where the party with whom the transaction was had was dead, and could not speak. The jury, therefore, were charged with the duty to determine the question of waiver from the conduct of the parties, the deceased’s knowledge of the method of business, and the actual facts of the transaction. The charge, taken as a whole, cannot be construed to have turned the jury loose in the field of speculation, and to have permitted them to find a verdict without any substantial evidence.
5. The court instructed the jury that, if Mr. Randall refused to receive the assessments from Mr. Jones upon his offer to pay, no actual production of ‘the money was necessary. We think the instruction correct. Where the company absolutely denies liability, a tender would be useless, and the law does not require useless things to he done.
6. Mr. Jones, in his application, was asked the questions :
“ Q. Are you now in good health?
“A. Yes.
“ Q. Do you usually enjoy good health?
“A. Yes.
“ Q. Who is your physician ?
“A. Dr. Hayden. * * *
“ Q. Have you ever had any serious illness or injury, and, if so, when and of what nature?
“A. La grippe slightly, several times. * * *
“ Q. Have you had any sickness in the last five years?
“A. Nothing more than la grippe, or cold.
“ Q. Give name and residence of the attending physician.
“A. Dr. Hayden.
“ Q. How long since you consulted a physician?
“A. Four weeks ago.
“ Q. For what disease?
“A. La grippe, or cold.
Q.‘ Give the name and residence of such physician.
“A. Dr. Hayden. * * *
‘ ‘ Q. Have you ever had any of the following diseases: * * * Disease of the heart ?
“A. No.”
The policy provided that, if any of these answers were untrue, the policy should become null and void. Dr. Hayden was called as a witness for the defendant, and, after testifying that he had been consulted by Mr. Jones for la grippe, he was asked: “Were you consulted by Mr. Jones during this period for any other disease than la grippe?” Objection was made to this as incompetent, under 2 How. Stat. § 7516. The doctor also testified that all the information he had pertaining to any alleged complaints of Mr. Jones was acquired during the relation of physician and patient, and that he had no information pertaining to has condition aside from what he obtained by observation and from his statements while acting as his physician. Dr. Hayden was also asked if he treated Mr. Jones at any time for any disease of the heart. These questions were objected to as incompetent under the statute, and the objection sustained. The statute is as follows:
“No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which informatioia was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”
It is sought to sustain the admission of this testimony under Brown v. Insurance Co., 65 Mich. 306 (8 Am. St. Rep. 894). In that case the deceased had taken out two policies of iaasurance, wa’itten application being made for each. In her first application she stated that some nine or ten years before she had had typhoid fever, and that' her attending physician was Dr. Henderson. In her second application she stated that she had never been sick. In that case the majority of the court was of the opinion that Dr. Henderson might testify to the fact that he had treated her for typhoid fever, and that it did not come within the prohibition of the statute. That decision must be limited to the facts in that case. Mr. Jones had made no other application, and had made no reference to Dr. Hayden as having treated him for a specific disease, aside from that stated in the application for membership in the defendant. We think this case clearly within the prohibition of the statute, and the questions were properly excluded.
7. The court was requested to give the following instruction: .
“If the jury find that Owen Jones made no,payment of the assessment of April, 1896, and made no payment of this assessment afterwards during his lifetime, and stated to other persons that he had dropped it or would pay no more assessments upon it, and took no steps to be reinstated other than to make an application, and took no further steps to keep his membership good or to keep the certificates in force, then I charge you that he .had abandoned the certificates and his membership, and the plaintiff cannot recover, and your judgment should be for the defendant.” _
This was refused. That one may acquiesce in a forfeiture is undoubtedly true. The request assumed certain things to constitute of themselves an abandonment of the policies and acquiescence in the forfeiture. This request would permit a jury to consider, as evidence of such acquiescence, the fact that he had made no payment of the assessments, leaving out of consideration the fact that the company absolutely declined to accept and that he had offered to pay. It also would permit them to find that the failure to take steps to keep his membership good or to be reinstated was evidence of such abandonment and acquiescence. If Mr. Jones had done all that the law required of him to procure his reinstatement, he had a right to rest there upon his rights. The law did not compel him to at once apply to the courts for reinstatement, or to have the policies adjudged to be alive. Miesell v. Insurance Co., supra. The request, as framed, was properly refused.
Judgment affirmed.
' Montgomery, Hooker, and Long, JJ., concurred. Moore, J., did not sit. | [
48,
-44,
-1,
1,
-12,
10,
12,
-40,
-13,
51,
26,
0,
45,
11,
9,
-5,
-2,
17,
5,
-29,
-35,
-37,
4,
-2,
-33,
-42,
-27,
17,
40,
25,
0,
-13,
-17,
2,
-17,
14,
5,
-16,
-6,
-8,
-6,
-18,
-2,
12,
-43,
-4,
-13,
-42,
10,
-18,
70,
30,
10,
-18,
17,
-14,
50,
-10,
-3,
-36,
-39,
-25,
66,
-30,
-31,
-3,
-22,
30,
30,
9,
25,
-6,
3,
28,
26,
-32,
0,
29,
-16,
-12,
45,
-29,
19,
-22,
-20,
29,
51,
19,
16,
35,
-10,
-27,
-23,
-67,
-33,
-24,
34,
11,
4,
21,
-32,
-4,
-25,
-10,
-30,
29,
51,
-22,
-43,
2,
60,
0,
15,
0,
-1,
-34,
-5,
4,
-44,
-17,
43,
-9,
31,
21,
24,
43,
51,
-58,
-53,
18,
20,
2,
-36,
22,
19,
-47,
-3,
-4,
-10,
5,
10,
64,
22,
-19,
-6,
-4,
10,
14,
-17,
-1,
-28,
19,
20,
-17,
6,
41,
-11,
-13,
23,
-35,
4,
15,
3,
-11,
-37,
-19,
34,
2,
42,
15,
70,
0,
-23,
-24,
-25,
0,
20,
20,
16,
5,
-57,
6,
-27,
-3,
42,
-33,
17,
-13,
1,
-21,
-32,
-11,
-29,
31,
0,
32,
-17,
36,
40,
-32,
-25,
-13,
8,
25,
16,
23,
46,
-31,
7,
60,
6,
23,
16,
-60,
-16,
6,
-10,
10,
6,
-24,
4,
0,
-9,
-5,
-38,
-34,
12,
20,
-50,
-24,
-29,
-2,
-12,
38,
32,
21,
40,
-6,
27,
21,
-16,
-12,
13,
-35,
13,
-9,
-46,
-36,
-8,
5,
-23,
23,
24,
52,
-92,
-38,
-6,
5,
-60,
-2,
-30,
57,
-54,
-20,
50,
-50,
-14,
22,
47,
7,
-4,
-18,
-33,
-56,
18,
9,
1,
12,
-37,
12,
-52,
-2,
-20,
25,
-45,
-5,
-2,
50,
-9,
-19,
96,
-20,
1,
-2,
81,
-22,
34,
39,
-55,
-19,
12,
-10,
-5,
41,
-18,
28,
-30,
-45,
-20,
-49,
7,
0,
-5,
15,
15,
16,
-19,
-38,
43,
-17,
0,
12,
0,
-24,
-33,
-37,
1,
-95,
-2,
-2,
-44,
-1,
-21,
11,
4,
-20,
10,
-74,
5,
41,
-43,
6,
10,
-21,
-2,
32,
-7,
-46,
-25,
47,
4,
1,
-14,
0,
9,
56,
44,
-13,
-8,
-9,
31,
0,
-29,
-45,
-3,
24,
-64,
9,
34,
31,
42,
-6,
-52,
-20,
-52,
1,
-7,
-5,
-45,
-24,
-42,
7,
10,
-2,
-12,
54,
-40,
21,
-21,
16,
-38,
-16,
17,
41,
-95,
16,
1,
0,
-12,
39,
-21,
-8,
-15,
13,
-7,
-40,
12,
-16,
3,
-10,
-19,
34,
38,
-23,
-1,
-17,
54,
-7,
26,
-30,
-4,
-13,
-26,
-19,
26,
-45,
0,
52,
-2,
-10,
-6,
2,
33,
-65,
13,
-23,
-45,
-46,
-46,
41,
-7,
1,
-33,
27,
12,
21,
-10,
17,
7,
-21,
14,
13,
8,
62,
-25,
50,
18,
-10,
9,
-22,
29,
-14,
-36,
-7,
63,
6,
5,
-13,
45,
31,
24,
0,
-38,
7,
-25,
-18,
-6,
-29,
-27,
15,
-2,
65,
17,
4,
-60,
35,
15,
-47,
-9,
36,
-8,
-3,
-21,
17,
-37,
-2,
-11,
0,
-4,
1,
-10,
-2,
28,
1,
42,
2,
10,
-73,
-3,
8,
-31,
2,
-28,
67,
23,
-21,
-27,
-7,
22,
23,
-5,
25,
-39,
-13,
1,
24,
-47,
14,
27,
38,
9,
60,
57,
-35,
-27,
14,
42,
-14,
-45,
-27,
-44,
45,
-13,
23,
40,
11,
16,
9,
50,
-4,
-21,
2,
4,
20,
-24,
-9,
37,
-22,
27,
1,
-32,
44,
39,
-14,
19,
-14,
8,
21,
21,
-21,
-15,
-7,
2,
20,
3,
47,
-11,
-5,
-9,
6,
7,
-7,
-20,
-81,
-20,
47,
23,
9,
-22,
-33,
-17,
21,
-23,
-13,
20,
17,
20,
-29,
1,
46,
-19,
10,
-76,
16,
-12,
-25,
-4,
-17,
16,
-17,
3,
13,
57,
-16,
-4,
20,
-8,
-13,
15,
20,
15,
18,
68,
-64,
0,
15,
70,
-1,
0,
-31,
43,
14,
-3,
-28,
-14,
-4,
-29,
-31,
-13,
-9,
19,
5,
-26,
50,
38,
3,
3,
-15,
12,
-67,
-16,
29,
14,
13,
31,
38,
0,
27,
-10,
-21,
-27,
-42,
-23,
59,
3,
12,
45,
-10,
30,
-36,
2,
-7,
9,
-2,
28,
-18,
8,
7,
-19,
50,
-10,
-6,
53,
52,
-47,
-6,
-10,
-37,
-4,
-17,
-14,
39,
-41,
-5,
-2,
-16,
17,
34,
6,
-36,
10,
1,
-49,
27,
13,
20,
-13,
0,
4,
21,
4,
33,
-83,
-31,
-14,
26,
3,
44,
-30,
-5,
-41,
-84,
7,
0,
29,
39,
23,
-6,
-3,
-49,
-28,
-42,
-23,
11,
-67,
0,
26,
-14,
7,
2,
43,
53,
27,
26,
-23,
-9,
-14,
43,
72,
26,
22,
17,
-19,
44,
-6,
-12,
5,
-27,
-21,
12,
-11,
42,
-32,
-10,
-10,
12,
6,
-27,
34,
-23,
-14,
-18,
3,
-2,
19,
-17,
13,
-26,
-7,
-16,
0,
-5,
-35,
9,
11,
-11,
13,
6,
-44,
20,
13,
-2,
-28,
23,
0,
8,
14,
32,
18,
-35,
7,
-14,
-10,
17,
4,
20,
-8,
-26,
21,
-38,
-21,
-42,
18,
-13,
13,
-21,
1,
-38,
-18,
-9,
-17,
51,
-23,
-45,
-1,
24,
-37,
-41,
-13,
-6,
-16,
-21,
-37,
4,
-11,
-2,
16,
-9,
-16,
-29,
38,
-11,
-24,
28,
20,
-27,
-56,
-32,
-15,
-13,
-22,
10,
14,
24,
0,
-11,
12,
-24,
51,
23,
-20,
-10,
-22,
-12,
49,
-3,
-13,
5,
11,
-34,
3,
23,
-17,
-6,
-78,
14,
39,
-26,
-9,
-4,
-15,
0,
14,
-12,
-34,
-35,
20,
5,
-45,
38,
46,
19,
-24,
1,
-3,
-20,
4,
22,
-12,
13,
43,
-31,
6,
11,
1,
15,
-1,
-12,
-3,
70,
-31,
-24,
-38,
-49,
-23,
33,
-6,
18,
23,
27,
8,
0,
12,
-18,
21,
7,
19,
18,
-31,
2,
-12,
10,
-28,
75,
41,
-59,
34,
-9,
-60,
5,
2,
-40,
-8,
26,
-47,
6,
31,
-43,
-5,
3,
-9,
16,
49,
33,
-39,
-34,
-20,
23,
12,
-11,
15,
25,
-12,
21,
-6,
38,
60,
-1,
-15,
9,
47,
-3,
-43,
-28,
-26,
38,
11,
5,
8,
13,
0,
30,
-29,
16,
-10,
29,
14,
-25,
4,
-14,
-10,
46,
23,
27,
18,
7,
-21,
-18,
1,
-9,
34,
-44,
-8,
7,
-1,
2,
32,
59,
43,
-1,
-15,
38,
6,
-14,
-12,
32,
-12,
-12,
-20,
-30,
-7,
43,
7,
27
] |
Hooker, J.
Frederick Fowler and Fremont Fowler were father and son; and the record indicates that the son, Fremont, was unsuccessful in business, if not profligate, and that for many years he made heavy draughts upon his father’s patience and generosity. He was in debt to him as well as to others. He died on February 9, 1891, at his home,: — a farm owned by his father. A short time before his death he procured some money from his father. Eli Rogers, the father’s brother-in-law, who was present at the interview, testified that the property in question was purchased by Frederick Fowler for $2,000, which was paid by Rogers at Frederick Fowler’s request. The administrator attempts to dispute this by alleged statements of Frederick Fowler to the effect that decedent’s property was sufficient to more than pay his debts, and that, if there was more than enough to pay him, he would pay other creditors; but the briefs of plaintiff’s counsel assert that Frederick Fowler always claimed to be absolute owner of the property, and nevér claimed to be holding it as mortgagee. A bill of sale was produced, which Rogers said he induced Fremont to' give to his father at a time subsequent to the loan, but that Frederick Fowler had nothing to do with that transaction. The only evidence that tended to controvert the testimony of Eli Rogers was given by Kate Fowler, Fremont’s widow, upon cross-examination. She was called by the plaintiff to prove that the defendant took the property from the farm after Fremont’s death. Upon cross-examination she said:
‘ ‘ I knew at the time he was making this disposition of this property that he was claiming that he was doing it in accordance with a claim that he had purchased it from my husband. * * * I knew in the fall of 1890 that my husband was in debt. I knew that he got some money from his father during the winter. I knew that he got $1,200. I knew that he got it, by his telling, and by Eli Rogers. * * * I knew my husband made a list of property for the purpose of obtaining the money. I wrote it down myself as he told it to me. * * * I knew Mont, was going to get the money from his father, and I knew he did obtain it. My husband told me that he got the $1,200, and gave a mortgage.”
She also testified that she knew where most .of the money was paid out by her husband.
The principal question in the case was whether the defendant purchased the property, or took a mortgage upon it for $1,200 or more. It was left to the jury, and it is manifest that they found that the defendant did not purchase the property; for, if they had not, their verdict could not have been in favor of the plaintiff. The claim is made by the counsel for the plaintiff that we should say that there was no evidence tending to show that the defendant had a lien upon the property, and that his defense necessarily rested upon his alleged purchase. That there was a transaction of some sort, there is no room to doubt; and if, as is now claimed by plaintiff’s counsel, the testimony of Kate Eowler was hearsay, and should not be considered for that reason, and for the further reason that she should not have been allowed to testify against her husband’s administrator, by reason of her being disqualified to testify against the husband without his consent, there would seem to be little, if any, testimony contradicting the defendant’s proof. The contention that we should disregard this testimony does not impress us favorably, for it places the plaintiff in the position of using it to obtain a verdict, and insisting upon disregarding it to sustain ■the verdict. We must say, therefore, that it was proper to submit the question to the jury, and that it conclusively appeared in the case that the defendant had a lien upon some or all of this property, his claim of ownership having been denied by the jury.
The court was requested to instruct the jury to render a verdict for the defendant. This was upon the theory that, whether he was owner or mortgagee, he had a right to the possession of the property. The court instructed the jury as follows:
“The contention of the plaintiff is that it was a mort-. gage for $1,200 only, and, if you find that it was a mortgage for that amount only, then I think the defendant would have a right, even though it were not for such an amount as equaled the value of the property, to take possession of the property, under the evidence in this case, and that his possession would not be wrongful, unless he went so far as to deny the right of the estate in that property; and, if he did go so far, notwithstanding he had a mortgage upon the property, as to say or to insist that there was no right left in Fremont W. Fowler, that he had no rights in the property, that his personal representative, the administrator, had no right in the property,— was insisting th^,t he was the owner of it entirely^ — then there would be a right of recovery here -in the administrator for so much as the value of this property which he was insisting he owned was in excess of the lien which he actually had upon it. And, in determining the amount of that lien, you would figure the interest upon it from the time when it was given up to the present time, at 6 per cent.”
It was contended by the plaintiff that the defendant had sold sufficient property to more than pay his claim, and that, therefore, no tender before suit was necessary. If the defendant had sold sufficient to pay his claim, the lien was discharged, and there was no occasion to make a tender; and upon a refusal to deliver the remainder, accompanied by a claim of ownership, trover would lie. In the case of Brink v. Freoff, 40 Mich. 613, 44 Mich. 69, trover was sustained where, an installment being overdue, more than sufficient property was sold to pay it. Iler v. Baker, 82 Mich. 226. But in the present case the defendant claimed that the mortgage was not paid by a sale of the property, and that, until it was paid or tendered, he had a right to the possession, and the court so instructed the jury. Had he stopped there, the defendant would have no cause for complaint; but he did not. They were told further that if, under such circumstances, the defendant claimed to hold as owner, and denied that the plaintiff had any title whatever, there would be a right of recovery for the excess over and above the amount necessary to pay up the mortgage. Counsel for the defendant contend that until the defendant’s mortgage was paid or tendered, or he had, through sale of the property, realized sufficient to pay his claim, he had a right to retain the possession; and this seems plain enough, unless, as counsel for the plaintiff contend, his claim of absolute ownership and denial of plaintiff’s title deprive him of such right. Plaintiff’s counsel assert that such claim should be treated as a waiver of the lien; but we think otherwise. In the cases of Ball v. Cook, 77 Mich. 681, and Iler v. Baker, 82 Mich. 230, the right of the mortgagee to receive the amount due him was recognized, notwithstanding such a claim. In the latter case, at least, the claim was made upon the trial, and the question went to the jury, as it did in this case. There is much in this record that tends to support the claim of the defendant, and, though the issue was found against him, if made in good faith, it would be rather severe to require him to lose his entire debt because he had not succeeded in establishing the identical claim made. As we have seen from the cases cited, such a penalty was not imposed in other cases. If the lien was not.lost by such claim, it would seem to follow that he had a right to enforce it by taking possession of and selling the property; and, if so, it is hardly consistent to say that an immediate right of replevin or to recover in trover arises because of the claim of ownership.
In Brink v. Freoff, supra, it was held that trover would lie for a wrongful sale of the property, and that a tender was unnecessary, because the sale had put it out of the power of the mortgagee to return the property wrongfully sold. In Rail v. Cook, supra, it was said a tender was unnecessary. That case is thought to support plaintiff’s theory, and it is said that the property had not been sold, yet the court sustained the action, and held that a tender was unnecessary. It is true that the report fails to show that the property was sold, but the record discloses that the action was brought some four years after the demand, which, taken in connection with the statement in the opinion that “ I think the tender would be unimportant, as is pointed out in Brink v. Freoff, supra,” would indicate that it had been sold. In that case the statement that a tender was unnecessary was put upon the express ground that, by reason of a sale of the property, it could not be complied with. Again, in Rall v. Cook the court used this language:
‘ ‘ He knew then that the bill of sale afforded no protection to Cook, but he also knew that Cook had valid liens upon the property, placed thereon by his. own act, and that Cook had the right to retain possession under them; and it was as much his duty to make a tender in one case as in the other.”
This would indicate that the right to possession was not lost, and that the duty to make a tender would have existed, had it not become unimportant for the reason mentioned. But the matter was set at rest in a later case, written by the same distinguished judge, from which we may infer still more strongly that the property had been sold in the case of Rail v. Cook. In Iler v. Baker, 82 Mich. 230, Mr. Justice Champlin said:
“His position with reference to the property was that of a pledgee or mortgagee in possession. If the testimony of plaintiff was entitled to credence, then there was an extension of time for the payment of the money due to Mr. Baker. But the time was indefinite; and, had he retained possession of the goods, it would have been necessary for the plaintiff both to have made a tender of the. amount due, and to have made a demand for the delivery of the property, before he could maintain an action of trover for its conversion. But Baker, being in possession as pledgee of the property, as the testimony shows, sold sufficient, and more than sufficient, to pay the debt due to him from Her, in which case he became bailee for Iler of the remainder of the goods, and also it was his duty to pay over the surplus money realized on the sale, over and above the debt due to him, on request; and in such case neither tender nor demand was necessary before bringing action, where the pledgee asserted absolute title to the goods, and denied all right of property in the pledgor to them.”
We are of the opinion that the learned circuit judge was not justified in the instruction that trover would lie for property in the lawful possession of the defendant, which he had a right to retain for the satisfaction of his lien. Had a tender of any balance due him been made, the case would be different. Under this instruction the jury may have found for the plaintiff, notwithstanding the possible fact that the mortgage was not fully paid. '
Allusion has been made to the character of the testimony in support of the claim that the transaction amounted to a mortgage. The testimony of Rogers clearly showed that the property was purchased' by the defendant. There was no other witness to the transaction, and the contrary was made to appear, if at all, by testimony of doubtful admissibility, in the main, because much of it was hearsay. A perusal of the record satisfies us that this was one of the cases where some instruction upon the weight of evidence would have been proper. Counsel presented the following requests:
“4. You are instructed that the uncontroverted testimony of a credible witness ought not to be lightly disregarded, and you have no right to substitute a fanciful hypothesis to account for facts which are explained by direct testimony. Your verdict should be based on the evidence, and that alone; and it is the duty of the jury to harmonize all proven facts, if possible, with the conditions found surrounding the case, and the circumstances proven to have existed at the time of the occurrence. ”
“6. If thé jury believe the testimony of Eli B. Rogers, there can be no further inquiry. The defendant is entitled to a verdict upon that finding.”
Judges are properly reluctant to call attention to the testimony of particular witnesses, and doubtless in this instance the trial judge thought the subject sufficiently covered by the charge. We think, however, that it would have been better to have given the fourth request, if not the sixth.
It is contended, further, that the administrator had no authority to commence this action, because nearly four years had elapsed after his appointment. There was no plea to the jurisdiction; nor any showing that the estate had been closed, or that the administrator had been discharged. We have recognized the necessity for the extension of the authority of executors and administrators for a period longer than the statutory one, and their acts at a later date have often been sustained. Larzelere v. Starkweather, 38 Mich. 96; Church v. Holcomb, 45 Mich. 37; Norman v. Olney, 64 Mich. 561; In re Beniteau, 88 Mich. 154.
There are other points raised, but, as most of them pertain to the admissibility of testimony of witnesses and the conduct of counsel, we do not discuss them. They raise questions which are governed by rules which should be well understood.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. - | [
67,
45,
18,
-7,
37,
34,
5,
11,
97,
-14,
60,
-71,
74,
25,
22,
5,
46,
-23,
-4,
-36,
-10,
-16,
18,
4,
55,
-7,
-4,
-16,
-30,
9,
20,
-9,
-54,
47,
32,
15,
19,
-60,
0,
-17,
-24,
5,
39,
-58,
19,
4,
-25,
-101,
-2,
-28,
12,
-39,
46,
8,
33,
-31,
45,
49,
-68,
-7,
18,
-52,
18,
-28,
-40,
57,
-27,
8,
59,
37,
0,
-8,
8,
15,
7,
-26,
-2,
8,
13,
-1,
-15,
-12,
6,
-26,
8,
-9,
8,
-11,
8,
3,
5,
-12,
46,
14,
-28,
-20,
-32,
59,
-22,
15,
36,
-79,
-19,
22,
33,
-7,
-42,
-45,
-47,
19,
11,
-6,
72,
22,
-29,
-66,
-52,
5,
-44,
-17,
-32,
-19,
-18,
-58,
12,
56,
-41,
8,
23,
15,
10,
-15,
-15,
-22,
-38,
-30,
-20,
-53,
-117,
-30,
18,
31,
-14,
-68,
19,
29,
-24,
-4,
15,
-2,
-3,
18,
-11,
6,
30,
-31,
-23,
-21,
26,
6,
17,
-2,
39,
-36,
-25,
-20,
-5,
-58,
38,
-18,
51,
93,
-45,
-36,
47,
3,
86,
-27,
-16,
-31,
-24,
17,
-6,
-2,
43,
-13,
0,
19,
52,
70,
10,
26,
-28,
54,
-53,
9,
-64,
-43,
33,
3,
13,
-8,
-9,
-69,
23,
2,
37,
-32,
20,
-38,
5,
26,
4,
-42,
-65,
3,
31,
-58,
24,
23,
55,
14,
27,
12,
-57,
-44,
6,
-1,
-49,
10,
-3,
-32,
17,
-8,
-4,
28,
-79,
-9,
-46,
20,
-10,
-18,
0,
-36,
-40,
-30,
-28,
50,
-75,
15,
-56,
32,
4,
91,
-13,
41,
-37,
-3,
-8,
-37,
11,
12,
1,
-8,
59,
-60,
-3,
1,
25,
74,
0,
-82,
20,
34,
-19,
-15,
-36,
17,
-29,
-18,
54,
-42,
5,
9,
-15,
2,
-29,
54,
-44,
-15,
25,
-25,
1,
-55,
40,
26,
28,
3,
26,
-43,
32,
-20,
3,
29,
35,
-1,
19,
10,
-18,
12,
62,
-9,
-4,
-11,
48,
34,
-22,
28,
-32,
22,
29,
-14,
-23,
23,
16,
31,
-11,
-8,
0,
71,
-60,
-24,
-48,
17,
-13,
-20,
38,
-15,
-26,
-52,
-1,
2,
15,
-23,
39,
-3,
-10,
-18,
-19,
-22,
-22,
16,
-30,
-20,
-30,
12,
37,
-7,
50,
9,
68,
-3,
-24,
-14,
-3,
-25,
-53,
-60,
-1,
-6,
29,
18,
-30,
-24,
0,
-6,
-35,
18,
-45,
18,
-12,
19,
38,
49,
10,
5,
3,
-38,
-39,
2,
-9,
7,
19,
11,
-15,
70,
-3,
-41,
-67,
-43,
-19,
6,
7,
-23,
30,
28,
0,
-25,
38,
-26,
62,
-23,
56,
-20,
13,
-18,
-6,
-25,
27,
71,
10,
-9,
20,
15,
55,
-15,
16,
31,
-47,
-31,
46,
21,
4,
-31,
5,
14,
-12,
50,
1,
-13,
-15,
51,
33,
36,
12,
33,
-13,
-41,
67,
-38,
-23,
14,
-18,
79,
-9,
-15,
43,
-12,
40,
-17,
36,
6,
88,
0,
-3,
-25,
-12,
-21,
-8,
77,
22,
12,
-15,
-56,
-6,
12,
36,
2,
18,
7,
-4,
-32,
30,
52,
19,
-28,
-46,
-62,
14,
-8,
37,
-25,
-49,
-31,
32,
1,
21,
0,
6,
53,
17,
-26,
38,
-35,
6,
-45,
29,
-26,
44,
-2,
-25,
-38,
29,
-29,
-66,
25,
46,
-21,
15,
16,
41,
11,
-1,
33,
-22,
-24,
33,
23,
40,
-14,
-9,
-15,
-21,
14,
0,
-21,
25,
4,
-18,
-37,
-32,
-38,
68,
41,
-37,
45,
61,
4,
-3,
-46,
-60,
-13,
64,
12,
-47,
32,
21,
-23,
8,
-10,
-3,
-69,
6,
-42,
-20,
-69,
-3,
43,
6,
-22,
-9,
8,
1,
18,
-20,
-7,
-22,
-11,
5,
56,
1,
-30,
-29,
-19,
-22,
72,
-3,
52,
-63,
-19,
0,
46,
-5,
36,
-5,
-59,
34,
15,
-2,
24,
9,
-42,
-48,
-15,
-16,
-18,
-39,
70,
6,
25,
13,
2,
35,
-1,
12,
-17,
0,
-40,
59,
-57,
31,
-9,
-24,
3,
24,
-15,
63,
22,
-26,
-2,
-37,
-37,
-2,
51,
-35,
-70,
22,
25,
-17,
-30,
32,
-9,
-46,
24,
-89,
20,
-3,
-26,
29,
-44,
-47,
-76,
8,
42,
34,
-57,
-9,
35,
22,
47,
61,
-34,
-22,
57,
39,
-16,
50,
9,
24,
-10,
22,
-42,
0,
21,
-14,
-15,
-22,
75,
32,
32,
-3,
-6,
39,
7,
18,
15,
13,
-34,
-17,
2,
8,
-22,
12,
35,
6,
34,
3,
-8,
48,
16,
20,
0,
0,
60,
43,
-14,
-15,
-4,
-12,
-5,
25,
17,
29,
-39,
-58,
1,
36,
6,
11,
-43,
-51,
-27,
-11,
-33,
32,
17,
0,
-32,
-9,
-30,
15,
-30,
-28,
21,
-32,
44,
32,
-16,
3,
-21,
-15,
-17,
0,
-23,
-36,
-23,
-26,
18,
29,
31,
-5,
-1,
31,
27,
62,
-46,
-30,
6,
-44,
-56,
-7,
80,
71,
-14,
-31,
60,
3,
2,
21,
-24,
-11,
11,
-5,
9,
22,
8,
24,
-25,
35,
-2,
56,
-60,
-22,
17,
29,
-6,
65,
57,
83,
29,
2,
20,
-54,
5,
-66,
-6,
-5,
-51,
1,
-9,
-21,
-85,
-21,
43,
20,
-55,
37,
24,
-50,
12,
-4,
-24,
7,
-37,
-61,
-36,
25,
7,
-26,
5,
13,
20,
38,
-26,
-106,
5,
5,
-64,
-27,
-59,
3,
-45,
-17,
5,
25,
30,
-5,
-4,
-16,
39,
-32,
0,
18,
11,
69,
30,
23,
3,
-20,
-2,
20,
-74,
24,
-22,
-101,
-67,
-6,
45,
-55,
-60,
-11,
-18,
-5,
-22,
21,
-23,
64,
15,
-16,
-11,
7,
-35,
-12,
-42,
-10,
55,
67,
-30,
39,
9,
-70,
43,
-49,
15,
-21,
45,
23,
-22,
27,
77,
-23,
-48,
-8,
0,
-2,
-54,
-24,
-30,
58,
14,
-33,
-42,
-4,
-50,
-4,
-30,
42,
-14,
8,
-7,
17,
-12,
-62,
-68,
-18,
-6,
-31,
-14,
-33,
24,
2,
6,
-14,
11,
-4,
11,
47,
-39,
-19,
37,
5,
18,
-51,
21,
43,
-29,
14,
2,
8,
-77,
27,
9,
12,
32,
-65,
38,
15,
-29,
61,
68,
-41,
76,
18,
77,
-2,
-15,
18,
19,
-27,
5,
-4,
21,
0,
-11,
52,
4,
43,
6,
-8,
-31,
-2,
-22,
-37,
-37,
46,
20,
33,
-4,
13,
-37,
-13,
-10,
-55,
97,
2,
-19,
32,
-39,
1,
-28,
-11,
-21,
-33,
24,
10,
4,
-12,
13,
-3,
-57,
-21,
-15,
-4,
32,
14,
-21,
-4,
49,
-13,
-18,
-80,
5,
-3,
42,
-9,
22,
43,
6,
43,
5,
-4,
-39,
-10,
18
] |
Moore, J.
The defendants appeal from a judgment obtained against them by plaintiffs. The bill of particulars is as follows:
1897, July 6. Gas plant sold to defendants_____________$365 00
1897, July 6. Extra light for bar-room sold to defendants 4 10
1897, July 17. Repairing leaky sink.___________:.________ 1 45
1897, July 17. 200 pounds of carbide, at 6 cents per pound: 12 00
1897, July 17. 200 pounds of carbide, at 6 cents per pound. 12 00
1897, July 20. 200 pounds of carbide, at 6 cents per pound. 12 00
1897, July 23. Bell call system sold to defendants....... 12 00
It is the claim of plaintiffs that, prior to June 27, 1897, one of the defendants came to their store to inspect an acetylene gas light they were showing; that at his request one of the plaintiffs and their agent, Keisel, visited defendants’ hotel and grounds at Jenison Park, on Sunday, June 27, 1897, and made him a proposition for lighting the hotel and grounds at Jenison Park with a plant similar to the one shown him at the store; that a proposition was made, reading as follows:
“I propose to furnish and install in your hotel and grounds at Jenison Park one 50 one-half foot burner Star acetylene gas machine, together with all piping and fixtures necessary to make a complete'gas-lighting plant for i. e. hotel office and parlor, dining-room, and 14 outside lights on grounds. Fixtures for dining-room to be 2-light bronzed pendants; office and parlor, 2-light brass pendants; 10 outside lamps for posts. You to furnish balance of outside lamps, and all the posts for outside lighting; also to furnish man and team to plow furrow for laying pipes, and board for men while engaged in constructing and erecting plant. Price complete, including 100 pounds of carbide, $365. Respectfully,
“W. C. Keisel.
‘ ‘ Further, material and workmanship to be first-class in every particular, and guarantee the lights to be uniform and steady. Further, if all the outside lamps are furnished by you, a reduction of $2.50 each for each lamp so furnished by you. Payments 50 per cent, in 30 days, balance of 50 per cent, in 60 days.”
Mr. Jenison said the terms and price were satisfactory, and wanted plaintiffs to put in a plant at once. He said he would call at their office with his attorney, and draw up a contract according to the terms of the proposition and the verbal agreement. Later Mrs. Hanchett, acting for defendants, telephoned they feared the proposed plant would be dangerous, and to do nothing until Mr. Jenison called. Mr. Jenison called on plaintiffs June 28th or 29th, and said he had heard objections to the proposed plant. Plain- • tiffs claim he was told they were without foundation, but they did not desire to sell him what he did not want, and, if he would pay the freight for the things ordered, that would end it. It is claimed that, after further talk, Mr. Jenison’s fears were removed, and he directed the plant to be put in, and agreed to pay for it at the times and prices named in the written proposition, which was then before the parties, and that, acting upon this agreement, made upon a week-day, plaintiffs put in the plant. One of the plaintiffs testified that, after the work was completed, he had a talk with Mr. Jenison, who said he was pleased with the light, and asked the witness to look after the carbide, and see that plaintiffs’ firm kept plenty on hand, so they would not be without lights. The plaintiffs claim that the quantity of carbide charged in the bill of particulars was furnished defendants, as well as the other items named in the bill of particulars; that statements of the account were sent to Mr. Jenison, who said: “ You have been sending me statements, and I am tired of it. I intend to pay one hundred cents on the dollar, but I cannot be forced.” It is claimed the plant was completed July 10th. The hotel, including the plant, was burned July 24th. It is claimed by the plaintiffs that, after the fire, their agent was at the hotel grounds, and had a talk with Mr. Jenison. Concerning this the agent testified:
“He [Jenison] said: ‘I would like to have you come back with me to my barn. There was some carbide that was not used, and see if it is all right, and, if so, I wish you would take it back, and give me credit for it.’ And I said: ‘Certainly; if there is anything here I can take back in that respect, that is all right. I will take it back, and give you credit for it,’ — which I did.”
The amount taken back and credited was 250 pounds.
It is the claim of plaintiffs that the call bells and repairing the sink were for defendants, whose arrangements with the tenant, Mr. Bryant, as testified to by defendants’ witness, were as follows:
“Mr. Bryant leased the property, and was to furnish the hotel with provisions, and pay the help, and divide the profits at the end of the season. We were to furnish the house with all the furnishings, and buy them, — -pay for them.”
It is the claim of defendants that they did not know the plaintiffs in the transaction; that they dealt with one Keisel, and no acceptance was given the written proposition on Sunday; that on Monday, at the store, Mr. Jenison expressed his distrust of the safety of the proposed plant, and that, after much talk, it was agreed the plant was to be put in on trial, defendants to have 30 days in which to try it, and were to be under no obligations to purchase it unless satisfactory to them after 30 days’ trial, and that this verbal agreement was to be put in writing by defendants’ attorney, and was to control; that such an agreement was drawn, and was to be signed, but was not, though Mr. Keisel agreed to sign it while the work was going on. Defendants also claim that none of the other items were properly chargeable to them. The respective parties gave testimony tending to show their respective claims. The testimony was as conflicting as could well be. The witnesses for the plaintiffs were flatly contradicted by the witnesses sworn on the part of the defendants. The case was submitted to the jury, who found in favor of plaintiffs.
After the plaintiffs rested their case, defendants asked the court to direct a verdict, for the reason that the testimony showed no contract was made except a contract made on Sunday. At this time defendants had not rested their case, and when their motion was overruled they entered..fully upon their defense. It is not possible to read the testimony without arriving at the conclusion that this plant was put in pursuant .to an agreement made subsequent to Sunday. The important controversy about this agreement is whether it provided for an absolute sale, as claimed by plaintiffs, or whether the plant was put in upon trial, as claimed by defendants.
It is said the court erred in allowing any testimony as to what occurred on Sunday, and that a Sunday contract is void, and a ratification of it is impossible; citing Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Mich. 355 (40 Am. Rep. 476); Brazee v. Bryant, 50 Mich. 136. The court instructed the jury that all testimony, so far as it tended to establish ‘a Sunday contract, was withdrawn from their consideration. He charged them, “A contract wholly or in part made on Sunday is absolutely void by the laws of this State, and cannot be enforced by either party.” They were also told that, unless the contract was made upon a week-day, plaintiffs could not recover, and that the burden was upon the plaintiffs to establish their case. We do not think defendants have any right to complain of this feature of the case.
This case was tried once before, at which trial Mr. Keisel’s testimony was taken. At the present trial the plaintiffs claimed he was out of the State, and was at Seattle, Wash. They showed by the affidavit of a deputy sheriff that a subpoena had been put in his hands for service, that he was unable to find Mr. Keisel in the State, and was informed he was at Seattle. It was also shown by an attorney that Mr. Keisel informed him he was going to Seattle to take charge of the business of a Grand Rapids company, and had been absent from Grand Rapids two months, and the attorney was employed to look after his business interests here, which business required him to correspond with Mr. Keisel; that he knew his handwriting, and that he received one letter from him postmarked Seattle, Wash., March 10, 1898, and another postmarked April 18, 1898. This trial commenced May 13, 1898. It is alleged the admission of this testimony was error; that, before it should have been permitted, the testimony of some person with whom he had formerly lived should establish the fact of his absence. The important thing to be shown to allow the testimony to be read is the absence of the witness from the jurisdiction of the court. It is immaterial by whom it is shown, if it is in fact shown. We think it was established, and the testimony was competent Howard v. Patrick, 38 Mich. 795; Stewart v. Bank, 43 Mich. 257; Dunbar v. McGill, 69 Mich. 297.
It is claimed plaintiffs failed to establish any liability on the part of defendants to pay for the carbide and the other items in the bill of particulars, and the court should have so directed the jury. We cannot say from the record, taking the surroundings of the case, the relationship of the tenant with the defendants, the statement which Mr. Keisel says was made to him by one of the defendants, that there was no proof of a liability. We think, with the trial judge, it was a question for the jury.
Complaint is made of the argument of plaintiffs’ counsel, which it is said was prejudicial, and, taken in connection with all the surroundings of the case and the verdict of the jury, should be regarded as reversible error; counsel citing Seligman v. Ten Eyck's Estate, 60 Mich. 269, Donovan v. Richmond, 61 Mich. 470, Amperse v. Fleckenstein, 67 Mich. 248, and many other cases. Any argument of counsel based upon matters outside the record is reprehensible, and ought to be promptly stopped by the trial judge. It is, however, just as much incumbent upon the attorneys of the defeated party to confine themselves to the record as for the other attorneys to do so. The record is not very full as to what occurred, but it is full enough to indicate the remarks of counsel were not unprovoked in one of the instances about which complaint is made. When the attention of the trial judge was called to the argument, he at once said to the attorney it was improper, and what was said was withdrawn by the attorney. While condemning the course of counsel, we are not inclined, under such circumstances, to reverse the case. Sweet v. Railroad Co., 87 Mich. 559; De Long v. Booming Co., 88 Mich. 282. In the other instance of which complaint is made, the attorney was commenting upon the testimony of a witness, and her manner of giving it. While we might not be inclined to draw the same inference from this testimony that counsel drew, we do not think what he said is reversible error. The case of Dikeman v. Arnold, 83 Mich. 221, is in point.
A motion for a new trial was made and overruled. Among other reasons urged why a new trial should be granted was that the verdict was contrary to the weight of evidence. In his disposition of the motion the trial judge said:
“One of the principal reasons alleged on the part of the defendants for a new trial in this case is that the verdict of the jury was against the weight of the evidence. In the opinion of the court, that was true.”
It is urged here with great persistence and apparent feeling that the verdict rendered was an unrighteous one; that, the circuit judge having found it was against the weight of evidence, it was his duty to set the verdict aside; and, as he has failed to do so, this court ought to do what he ought to have done. Before determining this question, however, the rest of what the circuit judge said upon that branch of the case ought to be quoted. It is as .follows:
“Yet it does not necessarily follow that a new trial should be granted for that reason. It is the province of the jury to find the facts from the evidence. It is its duty to find those facts, if in favor of the plaintiff, from a fair preponderance of the evidence. Fair preponderance of the evidence means the weight of the evidence, which the jury was instructed did not mean the greater number of witnesses sworn on a given point. The credibility of the witnesses was for the jury. All the facts and circumstances proved in the case the jury had the right to- consider in determining whether the witnesses testifying on the part of the plaintiffs were entitled to greater credit than those testifying on the part of the defendants, notwithstanding the witnesses on the part of the defendants exceeded those on the part of the plaintiffs in number. The court, from personal acquaintance with defendants’ witnesses, may have thought they were entitled to greater credit. It was not the province of the court to determine that question. The jury has determined that against the defendants, as it had a right to do, and the court would not be justified in granting a new trial on that ground. ”
The testimony in the case, as we have before said, was very conflicting. While the judge ought not to invade the province of the jury, and substitute his judgment of the questions of fact for that of the jury, he ought not to hesitate to take the responsibility of setting a verdict aside if he is clearly of the opinion the verdict is an injustice to the parties. We all know the weight to be given to the testimony of a witness will be largely determined by his appearance and manner. The jurors and the circuit judge saw the witnesses. Their opportunities for deciding who of these witnesses were telling the truth were much better than ours. We are not so clearly satisfied the verdict is against the weight of evidence, and worked an injustice to defendants, as to feel justified in reversing the case.
The other assignments of error have been considered, but we do not deem it necessary to discuss them.
Judgment is affirmed.
The other Justices concurred. | [
9,
11,
-25,
-23,
-14,
-2,
17,
-9,
46,
-6,
9,
-13,
13,
-4,
0,
-22,
-4,
13,
0,
-13,
33,
-3,
-17,
-8,
-39,
21,
8,
-29,
-56,
18,
5,
-36,
-12,
-11,
-31,
32,
-17,
16,
1,
-12,
-34,
-11,
48,
9,
-20,
19,
-9,
-24,
67,
6,
15,
-22,
37,
-7,
-10,
-29,
-50,
46,
-33,
13,
4,
9,
30,
12,
24,
-6,
30,
-44,
-28,
44,
-12,
10,
20,
-23,
28,
-48,
-11,
-33,
-63,
-10,
-32,
-16,
15,
26,
-20,
68,
20,
24,
33,
9,
-25,
-9,
-13,
27,
34,
1,
-5,
-6,
13,
40,
2,
-18,
-91,
-18,
30,
30,
-32,
-38,
-16,
28,
-48,
-12,
15,
-9,
-18,
28,
18,
-10,
41,
4,
7,
-29,
14,
1,
12,
10,
-6,
-48,
-28,
-28,
-24,
-19,
-17,
18,
0,
-8,
17,
49,
-50,
-38,
3,
21,
-24,
43,
-37,
51,
1,
50,
-64,
20,
-3,
-36,
-16,
36,
11,
-4,
-31,
-20,
30,
-18,
22,
-5,
1,
-39,
0,
-12,
6,
-43,
10,
-9,
-38,
0,
-11,
1,
45,
46,
15,
-56,
-51,
-39,
-14,
-18,
-9,
22,
62,
-6,
0,
18,
-13,
21,
52,
2,
-57,
0,
-55,
-3,
48,
-17,
28,
4,
0,
-7,
-3,
-5,
45,
-1,
8,
59,
5,
-6,
-13,
43,
-21,
-19,
34,
59,
-40,
-8,
-12,
-24,
-5,
-18,
-29,
41,
-53,
12,
-7,
17,
40,
-21,
-101,
28,
18,
25,
-40,
-9,
11,
35,
-32,
-23,
-53,
-5,
-19,
4,
-28,
14,
-40,
-37,
-12,
52,
0,
54,
-29,
23,
-40,
-3,
-13,
-5,
-9,
-28,
10,
19,
-40,
-4,
25,
21,
-26,
-31,
-16,
56,
-48,
-39,
-1,
59,
-40,
-14,
-1,
30,
7,
-27,
31,
-29,
-1,
-2,
2,
-15,
23,
12,
-22,
-22,
4,
39,
46,
-16,
49,
-12,
-23,
18,
-17,
-59,
-58,
-36,
12,
-69,
27,
32,
6,
-14,
-10,
3,
-29,
-16,
-19,
1,
1,
9,
-25,
30,
15,
-11,
-3,
14,
-39,
11,
44,
6,
32,
-21,
-34,
-2,
-34,
4,
20,
-30,
-52,
51,
18,
12,
30,
20,
19,
18,
-44,
5,
0,
20,
24,
-37,
30,
-65,
-23,
-27,
-13,
-28,
30,
18,
29,
-12,
-39,
72,
57,
-2,
44,
-37,
29,
3,
-2,
-42,
-9,
30,
13,
-29,
-43,
10,
23,
-9,
-8,
2,
-24,
35,
37,
-49,
-8,
-14,
-2,
6,
34,
-27,
-8,
-9,
4,
9,
-20,
14,
17,
-20,
-50,
-60,
-2,
-18,
-27,
26,
30,
-10,
-32,
25,
-14,
32,
46,
8,
-10,
-2,
12,
9,
-27,
-29,
6,
-16,
3,
9,
50,
19,
-9,
6,
57,
-42,
33,
-17,
-22,
20,
-35,
-5,
-3,
0,
-28,
26,
-8,
3,
-39,
-21,
-18,
21,
-8,
40,
23,
-12,
-12,
8,
21,
40,
-12,
-17,
16,
15,
17,
32,
31,
-5,
47,
6,
10,
25,
0,
-1,
-18,
19,
46,
1,
-36,
6,
-35,
55,
28,
-41,
1,
15,
22,
-26,
-11,
-22,
23,
12,
9,
-1,
-21,
-29,
-8,
37,
-15,
-2,
26,
18,
19,
-79,
1,
15,
-17,
-13,
-8,
-45,
-72,
-61,
23,
-37,
2,
-10,
32,
6,
9,
13,
-14,
-19,
2,
-56,
-1,
-13,
39,
16,
-24,
22,
26,
-21,
-5,
61,
-16,
76,
20,
-7,
60,
-51,
-2,
-55,
-19,
7,
12,
-61,
-4,
20,
-15,
-20,
0,
9,
29,
-7,
-2,
-2,
-54,
-29,
1,
6,
28,
-10,
-55,
3,
-6,
16,
-9,
-2,
14,
15,
1,
-26,
0,
-3,
42,
4,
3,
2,
45,
0,
-46,
25,
-13,
39,
-25,
-6,
-44,
-9,
-8,
46,
-19,
8,
0,
-14,
-39,
30,
-8,
56,
-33,
45,
-54,
-5,
9,
23,
-2,
17,
-4,
13,
50,
2,
18,
-6,
-22,
-51,
-22,
-17,
-38,
56,
14,
22,
25,
0,
1,
-20,
36,
24,
13,
-36,
20,
-44,
67,
-6,
-34,
2,
46,
11,
-37,
-39,
-55,
7,
-47,
8,
-66,
21,
22,
42,
52,
9,
-56,
11,
-18,
4,
-29,
-40,
-2,
25,
9,
43,
-1,
-17,
52,
-11,
11,
57,
-22,
9,
0,
19,
-23,
-24,
24,
-17,
64,
11,
-16,
-31,
1,
-24,
-5,
-54,
-4,
-12,
14,
8,
-11,
-44,
-35,
11,
-26,
31,
15,
2,
5,
-10,
-1,
25,
8,
-38,
13,
-15,
-22,
-2,
-10,
-25,
-11,
26,
3,
-67,
34,
-26,
-18,
-45,
25,
75,
11,
0,
35,
-33,
36,
-45,
39,
25,
60,
12,
14,
6,
10,
9,
-36,
-24,
33,
18,
45,
45,
7,
-13,
14,
28,
-13,
-30,
-39,
31,
-19,
-4,
-41,
10,
-82,
-105,
3,
-44,
1,
1,
3,
16,
14,
-18,
29,
-30,
-3,
7,
-42,
47,
55,
29,
60,
-28,
9,
-24,
-15,
-32,
23,
-46,
35,
-6,
-28,
7,
47,
-37,
-4,
-18,
-50,
5,
-47,
11,
14,
24,
3,
-6,
60,
-14,
-8,
-26,
-23,
37,
-23,
-4,
28,
30,
58,
-5,
6,
-15,
13,
3,
-34,
-42,
-12,
-33,
0,
-57,
-42,
-15,
29,
-15,
7,
-13,
14,
5,
7,
-29,
-2,
-30,
21,
-42,
-2,
-13,
-76,
-13,
-24,
13,
-2,
33,
-4,
36,
74,
-46,
3,
31,
-26,
3,
17,
-23,
-23,
11,
26,
28,
-11,
-30,
8,
9,
-39,
-15,
0,
99,
52,
-13,
-26,
59,
-52,
57,
-16,
-3,
-54,
0,
5,
-11,
15,
-18,
23,
29,
12,
-36,
13,
64,
10,
-28,
-20,
-1,
-11,
-17,
16,
-11,
5,
-1,
-21,
36,
6,
-1,
43,
0,
-12,
-66,
-5,
30,
27,
35,
29,
5,
-13,
48,
8,
-38,
-7,
2,
5,
-6,
47,
-24,
6,
-39,
-9,
-49,
20,
46,
20,
3,
-4,
19,
5,
-2,
49,
26,
-55,
-10,
-5,
10,
-3,
-15,
-8,
15,
-16,
4,
-52,
57,
39,
12,
-8,
-14,
-3,
78,
1,
2,
38,
19,
-57,
13,
-19,
-42,
12,
-11,
-27,
2,
69,
10,
-35,
3,
9,
34,
-19,
41,
-8,
26,
-44,
65,
-42,
-40,
-42,
-26,
-49,
-8,
-8,
17,
6,
18,
43,
-37,
-2,
27,
-6,
-31,
58,
-2,
32,
3,
35,
-13,
3,
-9,
-16,
45,
12,
-12,
26,
18,
0,
15,
-41,
-17,
9,
14,
-9,
-36,
-11,
4,
18,
-45,
-23,
2,
11,
-29,
9,
1,
-6,
25,
30,
19,
33,
41,
22,
-48,
-45,
-17,
57,
51,
-12,
15,
-10,
1,
2,
-36,
64,
41,
-8,
-12
] |
Montgomery, J.
Bill to quiet title. Complainant claims under tax deeds based on the sale of 1893 for taxes of 1891, and on the sale of 1894 for taxes of 1892. Defendants own the government title. The case was heard in open court, and the bill of complaint dismissed. The case is brought here on appeal.
1. The tax deed of 1893, for taxes of 1891, was held void for the reason that no report of sale was filed in the office of the county clerk, as required by section 70 of the tax law (Act No. 206, Pub. Acts 1893). This holding is supported by Millard v. Truax, 99 Mich. 157, and Jenkinson v. Auditor General, 104 Mich. 34. It is insisted, however, that the court was in error in finding as a fact that no report of sale was filed. The evidence upon this point was that no report was found in the files of the case in the circuit court in chancery. Complainant cites section 99 of the tax law, which provides, “No tax, or sale of property for any tax, shall be rendered or held invalid by showing that any record, statement, certificate, affidavit, paper, or return cannot be found in the proper office, and, unless the contrary is affirmatively shown, the presumption shall be that such record was made, and such certificate, statement, affidavit, paper, or return was duly made and filed,” and contends that, under this section, the absence of the report is no evidence that such a report was not in fact made. This contention cannot be sustained. We think the purpose of reversing the presumption as to records of judicial proceedings is not manifested by these provisions. It will be observed .that the report of sale is not specifically mentioned, but the papers mentioned are certificate, affidavit, paper, and return, — such papers as are usual in proceedings preceding the decree. We held in Benedict v. Auditor General, 104 Mich. 269, that this provision did not apply to the affidavit of publication in the proceeding to adjudicate the tax delinquent. The case is analogous.
2. As to the deed of 1894, for taxes of 1892, the court held the deed invalid, on the ground that the owner had attempted to pay the taxes, and had been prevented through no fault of his own. Complainant contends that this proceeding is not a proper one in which to try this question. We think the contention should be allowed. See Kneeland v. Wood, 117 Mich. 174.
3. The defendants further contend that, as to the tax of 1892, the proceedings taken in 1894 are invalid, for want of a sufficient affidavit of publication; and, as this point was distinctly made in the court below, we are bound to consider it. The affidavit was as follows:
“State of Michigan, County of Baraga.
“Sylvester Kinney, being duly sworn, deposes and says that he is the publisher of the L’Anse Sentinel, a newspaper published at L’Anse, in the county of Baraga and State of Michigan, and circulating in said county; that he is familiar with the facts herein set forth; and that the order and petition, of which the annexed printed advertisement is a true copy, was duly published in said newspaper once a week for four successive weeks (five publica tions) prior to the 2d day of October, A. D. 1894.” (Duly sworn to.)
Section 66 of the statute requires publication for four consecutive weeks next prior to the time fixed for hearing. We think it entirely clear that this proof was insufficient. The order which was published was dated 70 days before the day fixed for the hearing. Certainly any four weeks within the two dates would have answered the description given in the affidavit.
An attempt was made to show by parol testimony in this case that the notice was duly published. The statute (section 66) provides that “proof of the publication of the order and petition herein required shall be filed in the office of the county clerk before any final order is made.” This clearly manifests a purpose to make the filing of proof of publication a prerequisite to the entry of a decree, and, when the court acted without this evidence of authority, the order was without jurisdiction.
Decree will be affirmed.
The other Justices concurred. | [
-51,
29,
36,
21,
5,
26,
44,
-29,
24,
37,
-7,
6,
-14,
46,
7,
0,
10,
-16,
-22,
-25,
-29,
-11,
-23,
-21,
9,
-1,
11,
7,
-24,
-17,
6,
-8,
-57,
36,
60,
-5,
26,
-50,
35,
5,
-27,
76,
-17,
-42,
-11,
-9,
-24,
-1,
23,
-3,
-25,
-46,
-31,
-37,
19,
-17,
-10,
-4,
-15,
-27,
19,
8,
30,
14,
-11,
4,
15,
-30,
16,
-67,
-18,
-2,
-14,
-14,
-14,
-14,
7,
30,
-33,
31,
3,
-43,
43,
-38,
-7,
-45,
3,
-23,
28,
0,
-23,
-54,
-11,
-10,
29,
23,
16,
27,
0,
9,
-4,
48,
2,
31,
38,
-49,
-24,
-16,
-23,
-41,
10,
-36,
11,
-2,
4,
-40,
20,
-5,
4,
-14,
21,
-4,
18,
-10,
-6,
24,
-10,
-6,
-14,
18,
38,
-10,
-69,
9,
-10,
1,
21,
-14,
-6,
9,
15,
9,
-4,
-84,
1,
65,
20,
-15,
22,
-30,
-29,
41,
36,
-9,
-42,
-11,
6,
-59,
16,
-43,
42,
18,
-41,
-64,
7,
44,
8,
-11,
-5,
-15,
35,
20,
-18,
-14,
-21,
-16,
26,
18,
18,
18,
28,
-29,
46,
-21,
1,
-10,
-3,
-30,
23,
-30,
50,
63,
-32,
24,
-6,
-23,
-3,
-1,
30,
-20,
-22,
-69,
-9,
11,
-2,
12,
19,
-17,
-37,
37,
-20,
-29,
9,
-21,
-3,
8,
18,
-18,
3,
14,
53,
74,
-11,
-13,
-21,
-30,
14,
-2,
-13,
56,
15,
37,
-6,
-52,
-25,
-45,
15,
0,
-9,
14,
-41,
-12,
-16,
-9,
38,
14,
0,
-7,
22,
17,
4,
-9,
-37,
-25,
3,
-29,
3,
-5,
-22,
0,
18,
49,
5,
-24,
-37,
-48,
58,
-39,
-6,
20,
11,
30,
33,
28,
12,
-7,
6,
-10,
-51,
3,
-4,
-30,
23,
31,
-61,
32,
-1,
26,
-2,
-3,
-9,
-20,
-42,
18,
-35,
35,
8,
2,
7,
16,
-16,
-7,
8,
0,
-8,
-22,
-32,
-26,
30,
7,
41,
20,
47,
27,
11,
17,
-12,
0,
11,
-2,
26,
6,
7,
16,
11,
42,
38,
-57,
-11,
45,
23,
2,
8,
-2,
21,
11,
17,
-63,
-24,
-35,
-6,
14,
54,
-29,
28,
42,
-63,
21,
10,
65,
-25,
0,
-1,
36,
21,
-17,
28,
-6,
-24,
37,
22,
48,
23,
-31,
-14,
17,
-72,
-42,
55,
32,
-16,
15,
-58,
57,
-46,
-17,
21,
-25,
-34,
48,
18,
9,
-15,
25,
14,
15,
2,
-32,
32,
10,
-18,
6,
22,
4,
32,
-39,
25,
-3,
-81,
34,
-3,
29,
1,
32,
-32,
22,
26,
30,
-17,
50,
44,
-17,
-9,
-34,
3,
-5,
41,
-7,
55,
6,
20,
20,
-28,
-11,
-2,
-26,
25,
81,
27,
14,
-19,
3,
7,
14,
-19,
-11,
-35,
1,
14,
-27,
1,
33,
-18,
26,
1,
-29,
-8,
20,
28,
2,
18,
-35,
-10,
7,
-2,
52,
57,
-72,
15,
-39,
-12,
-18,
-25,
-19,
-14,
0,
-27,
-41,
20,
-14,
-6,
-2,
-10,
-40,
-51,
21,
8,
-14,
39,
5,
-10,
13,
-1,
13,
-10,
-40,
-56,
19,
-31,
-29,
23,
-33,
-4,
-1,
10,
-27,
-42,
-57,
29,
25,
6,
25,
-12,
28,
-6,
25,
-22,
21,
40,
27,
-21,
-7,
26,
17,
-9,
1,
14,
16,
45,
42,
-5,
-23,
-68,
-16,
14,
0,
40,
27,
14,
1,
3,
16,
7,
30,
-16,
26,
14,
45,
-49,
27,
-14,
42,
3,
48,
-12,
67,
6,
3,
11,
-1,
-14,
-42,
-4,
4,
-66,
26,
22,
-18,
-15,
-18,
-1,
-39,
41,
-41,
16,
-35,
-9,
-56,
-51,
-10,
-21,
-62,
20,
-72,
-3,
-12,
-30,
-59,
46,
-17,
-24,
-30,
39,
-50,
73,
6,
-27,
17,
-3,
-8,
-39,
11,
-30,
10,
-21,
-17,
-20,
37,
22,
-8,
24,
-17,
-13,
-11,
-4,
15,
-46,
20,
29,
-28,
28,
21,
55,
3,
-6,
37,
2,
-28,
2,
-4,
14,
19,
10,
-24,
28,
0,
44,
5,
-34,
-12,
13,
-15,
-20,
2,
-3,
37,
14,
-19,
0,
-10,
4,
-41,
-37,
-3,
3,
-4,
-56,
-19,
17,
18,
-6,
-28,
-3,
28,
5,
3,
46,
-36,
60,
-8,
45,
-37,
30,
47,
33,
-13,
0,
-20,
21,
28,
6,
-39,
-43,
-10,
13,
0,
36,
37,
45,
20,
33,
-6,
-2,
29,
28,
-58,
2,
26,
-4,
10,
-9,
-28,
9,
43,
-32,
14,
-16,
31,
26,
31,
34,
-30,
23,
37,
-7,
-1,
13,
8,
-34,
-34,
-9,
-6,
12,
-5,
3,
15,
65,
0,
0,
-47,
-12,
-59,
26,
-36,
-17,
4,
26,
-1,
19,
26,
-18,
42,
-5,
15,
5,
28,
43,
6,
-25,
-5,
-17,
-3,
-51,
-25,
37,
17,
12,
8,
-16,
12,
24,
-6,
-19,
12,
-8,
-25,
-34,
-4,
11,
-58,
-3,
27,
0,
1,
-12,
11,
-29,
-9,
11,
9,
-11,
28,
-22,
-63,
25,
19,
-10,
-15,
23,
-17,
32,
-57,
-45,
49,
-2,
-20,
0,
-30,
-26,
-19,
15,
-28,
-27,
-22,
-52,
-14,
40,
-15,
-54,
6,
-9,
-5,
-9,
23,
8,
-16,
-13,
52,
-7,
5,
7,
-37,
-13,
-90,
-11,
-42,
5,
57,
24,
-66,
-19,
13,
-17,
-11,
-9,
11,
38,
30,
2,
-14,
39,
-39,
-38,
19,
53,
-63,
3,
-2,
2,
-57,
-35,
-6,
-15,
-22,
-18,
11,
-32,
27,
-15,
1,
-46,
2,
33,
-19,
-41,
6,
20,
0,
-3,
-4,
47,
-4,
-1,
-7,
4,
23,
11,
1,
27,
18,
-10,
11,
-56,
33,
13,
37,
17,
-4,
6,
9,
28,
-26,
-17,
-1,
-10,
-14,
41,
-65,
0,
-47,
-15,
-30,
-8,
10,
5,
-16,
51,
-30,
8,
-17,
-2,
-3,
-5,
-3,
0,
-10,
11,
-14,
29,
23,
28,
-8,
5,
-29,
-61,
-30,
-10,
-41,
8,
-5,
74,
-3,
-19,
-20,
-16,
-42,
3,
26,
-12,
22,
19,
24,
-24,
54,
5,
-9,
20,
-48,
25,
35,
13,
-2,
-11,
-17,
-30,
-7,
13,
15,
-2,
-14,
23,
-13,
78,
35,
-1,
27,
-23,
-40,
-11,
-4,
-33,
16,
-48,
-14,
4,
17,
51,
11,
0,
38,
-48,
-21,
-13,
17,
4,
51,
1,
23,
-37,
19,
7,
-30,
-6,
-4,
28,
5,
3,
-31,
-8,
-33,
35,
19,
18,
-19,
-38,
-37,
-20,
-7,
-17,
-12,
2,
-23,
17,
-31,
29,
-34,
38,
0,
-4,
-12,
-73,
-11,
36,
15,
-9,
24,
-8,
62,
35,
-8,
3,
5,
-29,
54
] |
Grant, C. J.
(after stating the facts). Complainant insists that he is entitled to relief upon any one of four grounds: (1) Want of consideration; (2) false representations; (3) mutual mistake; (4) nonexistence of the subject-matter.
Good faith on the part of the defendants is conceded. It is also conceded that all parties acted in good faith, and believed the tax title was good. This is evidently a case of speculation. There was no fraud. Complainant chose to rely upon a quitclaim deed, by which he took only the title which defendant Carpenter had. Peters v. Cartier, 80 Mich. 124 (20 Am. St. Rep. 508); Beakley v. Robert, ante, 209. Complainant purchased at his own risk. Courts cannot read covenants into deeds. This would be in direct contravention of the statute., 2 How. Stat. § 5655. Complainant chose to buy upon the faith of the validity of the tax title without any examination. It was a voluntary payment, not induced by any fraud. Under his own allegation, Mr. Clink gave him only an opinion as to the soundness of the title. Where one took a quitclaim deed, and was evicted by an older and better title, held, that he could not recover the price paid. Soper v. Stevens, 14 Me. 133. Where both parties acted under the belief that the quitclaim deed conveyed a valid title, and the title wholly failed, held, that the grantee could not recover back, “for the parties to deeds know that a warranty is required to hold the seller to warrant the title, and they regulate their contracts accordingly.” Earle v. De Witt, 6 Allen, 520, cited and approved in Tucker v. White, 125 Mass. 346. Chancellor Kent held: “The vendor [of land] selling in good faith is not responsible for the goodness of his title beyond the extent of his covenants.” Gouverneur v. Elmendorf, 5 Johns. Ch. 79. See, also, Stoddard v. Prescott, 58 Mich. 542; Inhabitants of Barkhamsted v. Case, 5 Conn. 528 (13 Am. Dec. 92); Clark v. Sigourney, 17 Conn. 511.
Decree affirmed, with costs.
The other Justices concurred. | [
3,
-9,
-25,
-15,
10,
25,
51,
28,
30,
65,
25,
11,
20,
-6,
34,
-30,
9,
24,
-9,
16,
4,
-20,
5,
23,
10,
-47,
51,
-35,
-22,
10,
20,
-8,
-30,
22,
-26,
-3,
-1,
-7,
13,
35,
-2,
-7,
-54,
-3,
-10,
7,
-32,
-42,
36,
-41,
21,
-23,
17,
-55,
35,
9,
-23,
1,
-17,
-49,
10,
-29,
22,
-4,
-59,
-8,
12,
40,
8,
-43,
-21,
-3,
-1,
-13,
37,
10,
4,
38,
-25,
26,
20,
-53,
56,
-52,
6,
-19,
49,
-15,
-12,
4,
-18,
-23,
15,
-13,
27,
33,
83,
27,
-7,
23,
-49,
55,
25,
-7,
-13,
-14,
-11,
-37,
-40,
-29,
3,
-17,
25,
-24,
13,
-3,
4,
-24,
12,
-36,
28,
-59,
-23,
-29,
4,
62,
31,
-50,
-46,
11,
73,
-18,
-66,
29,
-3,
-50,
-12,
10,
19,
22,
-19,
17,
-29,
-69,
-34,
-23,
36,
-24,
-19,
30,
-39,
63,
27,
0,
-33,
-15,
-11,
-12,
42,
-99,
39,
43,
-43,
9,
-21,
-8,
-16,
3,
2,
15,
36,
-11,
-16,
-15,
1,
8,
28,
-18,
-6,
-25,
-7,
10,
28,
7,
-8,
-72,
-1,
-13,
18,
-19,
2,
7,
-10,
34,
-7,
21,
-30,
23,
-2,
-60,
-14,
-81,
-24,
10,
5,
-33,
29,
-96,
17,
26,
-45,
38,
0,
-42,
0,
12,
31,
-7,
11,
-13,
13,
46,
-17,
0,
-54,
-59,
-5,
34,
29,
18,
-50,
19,
0,
-11,
13,
-26,
31,
-10,
0,
0,
1,
22,
-21,
-29,
-14,
-25,
-5,
-3,
-13,
10,
-35,
0,
-18,
29,
-17,
-22,
34,
28,
-26,
-41,
-11,
13,
1,
-63,
14,
-68,
21,
21,
6,
-20,
-8,
31,
-6,
25,
9,
3,
-52,
13,
-18,
38,
6,
-2,
25,
4,
-36,
59,
-14,
28,
27,
-15,
55,
-28,
21,
-32,
-4,
62,
-14,
11,
3,
4,
-10,
-31,
9,
21,
11,
-47,
4,
29,
2,
23,
2,
12,
8,
40,
-9,
17,
-26,
-32,
10,
-25,
14,
8,
32,
-13,
-42,
5,
57,
-52,
-24,
58,
-13,
-32,
-20,
-15,
35,
-8,
37,
-62,
-36,
-20,
11,
28,
12,
-41,
58,
10,
-17,
-11,
-21,
58,
-16,
3,
-37,
44,
47,
1,
26,
-15,
-52,
9,
75,
38,
-7,
-20,
35,
51,
-38,
-24,
31,
42,
-15,
-16,
-1,
2,
-52,
-69,
-12,
-24,
-96,
21,
25,
-15,
28,
9,
30,
9,
-61,
-30,
0,
-20,
-41,
-17,
3,
0,
22,
9,
-4,
-38,
-17,
3,
-2,
20,
-7,
-46,
-65,
0,
42,
23,
-40,
20,
-22,
31,
-3,
-12,
-42,
-6,
72,
20,
50,
39,
13,
-1,
30,
-17,
-4,
-33,
5,
41,
18,
31,
11,
7,
29,
-52,
17,
-21,
-21,
-80,
-27,
4,
22,
-43,
-21,
24,
-5,
-12,
-41,
23,
11,
-19,
-38,
3,
26,
36,
18,
63,
92,
-43,
14,
-19,
57,
-10,
15,
-5,
38,
-38,
-17,
-36,
16,
-7,
13,
1,
2,
-1,
-7,
10,
-12,
-9,
-4,
20,
-5,
18,
-6,
-27,
-29,
3,
-11,
-10,
15,
-19,
26,
0,
41,
2,
-12,
-72,
-20,
16,
6,
25,
41,
22,
-9,
22,
10,
39,
-5,
-1,
16,
82,
-38,
-1,
10,
21,
-9,
28,
28,
-11,
2,
59,
-21,
-48,
-60,
-51,
14,
12,
29,
20,
3,
0,
13,
0,
0,
8,
12,
22,
69,
9,
29,
12,
-29,
60,
6,
31,
16,
75,
33,
-10,
44,
16,
-40,
-13,
31,
51,
0,
52,
22,
-69,
43,
4,
-11,
-7,
36,
-12,
31,
-20,
38,
-57,
-57,
26,
-41,
-62,
-6,
-12,
-51,
-52,
-35,
-49,
22,
-29,
-52,
-1,
14,
-82,
17,
61,
-7,
36,
42,
-56,
-17,
-4,
-6,
-10,
-26,
-37,
0,
15,
14,
49,
-52,
3,
-44,
4,
43,
-12,
22,
-6,
-22,
-13,
-19,
22,
58,
12,
35,
20,
10,
-67,
27,
46,
58,
3,
3,
-49,
11,
3,
39,
1,
-31,
-39,
-9,
17,
17,
3,
-50,
29,
-3,
-23,
-4,
36,
-8,
-26,
-52,
-7,
-12,
-21,
-53,
36,
25,
-44,
-20,
4,
-21,
24,
27,
3,
-4,
-24,
28,
-41,
36,
-63,
-7,
35,
26,
-11,
56,
-7,
2,
26,
-30,
-13,
-2,
32,
-6,
-22,
15,
29,
-1,
10,
9,
-5,
55,
-7,
-50,
-22,
-35,
-22,
-5,
32,
-6,
-6,
-29,
5,
-45,
6,
-14,
60,
51,
16,
20,
2,
-34,
19,
-25,
3,
28,
-5,
-24,
-3,
39,
29,
5,
19,
3,
58,
-17,
-18,
-14,
-30,
-19,
-58,
25,
-34,
55,
-72,
32,
-57,
-30,
-8,
7,
-12,
-11,
16,
-39,
27,
69,
11,
10,
-41,
-34,
46,
-30,
-23,
52,
42,
49,
37,
39,
6,
36,
-13,
-13,
33,
22,
-17,
-28,
-12,
-15,
-3,
5,
48,
1,
12,
18,
26,
-19,
-44,
9,
-12,
-22,
26,
3,
-32,
12,
-22,
12,
17,
62,
-12,
15,
-48,
-16,
44,
-60,
-21,
13,
-71,
36,
-2,
43,
12,
-44,
-17,
-49,
-37,
38,
-8,
7,
-19,
-27,
28,
-19,
8,
1,
29,
-27,
36,
-13,
-26,
2,
-65,
-26,
-24,
0,
-34,
6,
42,
12,
1,
1,
34,
-49,
-16,
2,
-6,
12,
-11,
-45,
-5,
17,
-56,
-20,
58,
30,
-21,
-24,
-61,
6,
-14,
-7,
-14,
-12,
39,
55,
-11,
-52,
-26,
-46,
-10,
-37,
0,
11,
45,
-18,
26,
-12,
4,
19,
-23,
13,
2,
-8,
-18,
29,
-49,
52,
32,
18,
31,
26,
11,
-33,
62,
13,
7,
32,
-27,
14,
-33,
6,
-10,
-49,
49,
-39,
-12,
12,
-24,
-9,
37,
25,
16,
0,
19,
14,
-14,
-28,
-38,
0,
-2,
10,
-12,
-28,
-5,
23,
13,
-9,
-10,
6,
46,
12,
-20,
-36,
-27,
-20,
-28,
19,
-43,
2,
50,
17,
29,
-49,
-15,
-19,
-54,
26,
13,
-19,
11,
-82,
12,
-7,
66,
21,
-30,
5,
-51,
-20,
0,
24,
-37,
-2,
11,
-44,
-12,
0,
-17,
6,
16,
0,
43,
72,
29,
-15,
-38,
-22,
-27,
-11,
-3,
-2,
35,
-15,
-27,
5,
60,
33,
18,
-9,
23,
-7,
-36,
12,
32,
11,
19,
2,
2,
-19,
-1,
6,
-10,
-55,
8,
-1,
4,
28,
-3,
-92,
-13,
13,
1,
0,
17,
-45,
0,
-12,
7,
6,
-24,
5,
-13,
21,
-55,
22,
13,
62,
50,
37,
-50,
-69,
-9,
65,
32,
-14,
6,
-17,
30,
-23,
-23,
41,
40,
31,
40
] |
Hooker, J.
The plaintiff was the successful bidder for the contract for the erection of the city hall at Lansing. According to the specifications, the bidders named the stone from which they respectively proposed to build the face of the walls, and the plaintiff named “Blue Amherst. ” His bid also contained a tender of ‘ ‘ Blue Amherst Select ” at an increased cost of $2,160. After his bid was accepted, the board of public works directed him to substitute Blue Amherst Select for Blue Amherst stone, and he at once changed his order in compliance therewith. The council repudiated this action without delay. The building was completed and accepted, and the contract price of $108,000 was paid to the pláintiff,. but the council refused to pay the sum of $2,160 for the substitution of Blue Amherst Select stone, denying the authority of the board of public works to make the change and bind the city therefor, and claiming that the council did not consent thereto. The brief of counsel for the plaintiff states that the committee of the board of public works recommended the acceptance of the bid of the plaintiff on March 25, 1895, and that the report was adopted by the board, and its action was ratified and confirmed by the council, on the same day. Counsel say that the specifications required alternative bids on stone, and that the contract executed by the board of public works on behalf of the city contained paragraph 3 of the specifications, reading as follows, viz.:
“(3) Should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted ■ shall be made by the board of public works, and the sum herein agreed to be paid for the work, according to the original specifications, shall be increased or diminished, as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alteration, upon the written order of the said board, and the valuation of the work added or omitted shall be referred to three (3) arbitrators (no one of whom shall have been personally-connected with the work to which these presents refer), to be appointed as follows.”
Their contention appears to be that this paragraph authorized the board of public works to increase the expenditure by changes in the specifications. But we agree with the learned circuit judge that this cannot be true. Under the charter the city council determines whether it will build a public building. The board then procures plans and specifications, and reports them, with an estimate of cost, to the council. Bids are advertised for, but before a contract can be made it must be authorized by the council. In this case the council authorized a contract to be made binding it to pay $108,000 for the construction of a building according to certain plans and specifications. The board of public works cannot bind the city by an agreement to increase the contract price. We are not cited to any case upholding such power. If this arrangement binds the city, then there is no limit to the power of the board to make changes in material and construction at the public expense. We feel that this is a hard case, and that there is a moral obligation on the part of the council to pay for this extra which the public would be slow to forgive a private person for disregarding; but we have not the power to give relief.
The judgment is affirmed.
The other Justices concurred. | [
-18,
-8,
37,
-48,
-42,
29,
-1,
4,
46,
0,
32,
-23,
23,
10,
24,
14,
-37,
-39,
18,
40,
-17,
-25,
-12,
-17,
-10,
40,
38,
-32,
-12,
-58,
-17,
16,
7,
36,
-13,
53,
16,
11,
23,
10,
37,
-30,
-64,
-62,
15,
-30,
24,
-32,
31,
-28,
-64,
25,
-13,
-4,
8,
22,
32,
-25,
-43,
40,
-20,
-16,
-1,
8,
41,
12,
0,
-4,
4,
-34,
-6,
32,
19,
-72,
0,
2,
5,
5,
-49,
36,
-10,
33,
2,
-24,
6,
36,
-4,
-30,
34,
-25,
-43,
-26,
28,
36,
-19,
56,
-54,
18,
41,
33,
-18,
17,
-13,
-31,
-2,
-1,
-52,
-31,
5,
1,
0,
-39,
56,
-15,
-13,
1,
-29,
35,
-28,
-29,
22,
41,
-40,
-13,
1,
-6,
-10,
-31,
-46,
-70,
3,
-48,
1,
16,
12,
54,
9,
-19,
7,
13,
56,
54,
-72,
-5,
-3,
-1,
-14,
40,
-77,
-2,
-53,
-52,
-3,
-4,
-4,
1,
-36,
-45,
68,
-20,
7,
-1,
-1,
-54,
-43,
-26,
-24,
0,
29,
48,
0,
12,
-26,
0,
46,
8,
38,
18,
-8,
-36,
17,
-6,
62,
-15,
19,
7,
67,
8,
25,
-2,
18,
-20,
-73,
-20,
-16,
13,
14,
2,
-11,
16,
3,
-14,
-19,
-36,
-27,
-23,
44,
-53,
22,
43,
3,
-3,
-48,
22,
20,
23,
17,
17,
27,
-23,
-5,
7,
7,
18,
-53,
41,
36,
11,
2,
-6,
0,
-7,
28,
3,
1,
-1,
-3,
68,
19,
-20,
-41,
8,
-37,
18,
11,
-72,
-8,
-14,
-11,
-23,
34,
3,
31,
7,
7,
3,
-3,
10,
-6,
-11,
46,
0,
-4,
-4,
-20,
-21,
2,
31,
-24,
46,
-15,
27,
28,
91,
-42,
6,
-52,
-60,
14,
18,
-3,
-27,
-34,
-15,
4,
8,
-15,
37,
-10,
10,
30,
1,
43,
-74,
34,
11,
7,
24,
-24,
-82,
-56,
16,
62,
23,
31,
34,
3,
56,
42,
-7,
24,
-61,
-4,
7,
-11,
3,
-16,
15,
-71,
-24,
-11,
-39,
2,
-3,
1,
16,
59,
0,
-25,
-20,
3,
-9,
-16,
-7,
0,
33,
57,
-5,
-11,
-18,
26,
43,
14,
-43,
4,
17,
-63,
-27,
22,
-4,
22,
8,
-45,
20,
2,
12,
-33,
3,
-15,
7,
52,
24,
2,
-5,
-13,
-50,
-36,
4,
12,
46,
-2,
-3,
-46,
37,
35,
15,
36,
54,
-41,
59,
15,
5,
7,
-18,
66,
-14,
13,
-2,
-20,
-42,
-18,
-4,
7,
-14,
2,
-7,
-33,
-51,
-3,
-38,
7,
31,
-1,
-23,
-32,
-4,
-31,
2,
-38,
18,
-21,
-11,
10,
-14,
-27,
-30,
-17,
12,
7,
51,
6,
40,
10,
27,
22,
-21,
13,
-9,
-77,
-9,
-47,
-34,
62,
-12,
-31,
15,
-15,
-1,
-31,
-5,
-20,
38,
-28,
-6,
-17,
22,
-6,
7,
-35,
18,
46,
-14,
-15,
16,
11,
5,
26,
-41,
68,
46,
-21,
4,
-1,
-40,
15,
21,
-30,
17,
4,
-12,
-11,
47,
20,
-32,
17,
6,
51,
2,
-24,
31,
62,
-1,
7,
48,
12,
-22,
-8,
11,
-19,
-17,
25,
28,
-8,
-52,
7,
44,
26,
9,
13,
5,
-54,
27,
-47,
-33,
-14,
-67,
13,
8,
5,
22,
0,
19,
15,
-7,
-25,
31,
1,
-11,
-22,
46,
-34,
-27,
-55,
-21,
17,
81,
30,
21,
-6,
-6,
-18,
-1,
-4,
6,
19,
-57,
7,
15,
20,
-10,
-23,
-7,
75,
30,
-12,
14,
22,
24,
24,
0,
-33,
-14,
0,
5,
-57,
16,
4,
4,
17,
10,
-18,
33,
-14,
9,
50,
6,
7,
-11,
38,
10,
0,
47,
-34,
8,
-32,
-45,
-12,
-2,
7,
43,
8,
-27,
-43,
-30,
-5,
-31,
25,
13,
6,
7,
-49,
11,
-41,
-36,
-59,
12,
19,
60,
-22,
-24,
23,
-22,
-37,
7,
-49,
-65,
-27,
8,
34,
31,
-27,
-14,
-3,
9,
-32,
45,
-30,
-86,
41,
-25,
27,
25,
-5,
-4,
7,
-10,
59,
-31,
-25,
-32,
-24,
0,
-13,
45,
-12,
-39,
36,
-32,
53,
-1,
11,
10,
-74,
-41,
-28,
30,
-1,
23,
-4,
7,
1,
-7,
67,
-39,
24,
-50,
-41,
-36,
15,
-1,
31,
9,
17,
21,
-33,
12,
58,
-4,
18,
-33,
27,
31,
-1,
-15,
28,
-45,
41,
12,
7,
0,
39,
37,
-18,
-15,
15,
-11,
-31,
-42,
5,
-50,
2,
-31,
45,
-88,
105,
14,
7,
-51,
-39,
21,
-31,
7,
56,
17,
19,
30,
11,
-39,
-14,
8,
47,
-23,
4,
40,
22,
6,
0,
25,
-18,
-25,
22,
-17,
23,
-2,
-41,
-12,
-74,
-22,
-29,
5,
-14,
9,
16,
5,
-40,
-22,
-25,
-54,
-9,
-13,
-16,
-6,
-11,
-49,
-50,
-18,
74,
3,
-64,
32,
-31,
10,
12,
-7,
14,
-12,
-56,
21,
14,
20,
-40,
1,
20,
6,
-18,
-14,
11,
14,
11,
5,
16,
11,
3,
-51,
-5,
-44,
-19,
-4,
-4,
-12,
-1,
-51,
-1,
56,
-25,
-1,
4,
-1,
3,
31,
-4,
15,
16,
19,
-42,
-10,
-15,
4,
22,
-32,
-23,
-3,
20,
-8,
-67,
-15,
-37,
28,
-4,
5,
-37,
-21,
-17,
-41,
12,
-29,
0,
3,
-21,
-4,
-65,
40,
-23,
23,
-7,
-20,
29,
28,
47,
-26,
52,
28,
-13,
4,
-8,
10,
-33,
31,
-8,
35,
-38,
-28,
42,
28,
21,
-14,
-36,
-7,
-19,
13,
-45,
34,
-4,
-6,
22,
10,
-10,
-39,
40,
2,
54,
29,
13,
33,
-21,
-3,
-28,
-11,
10,
-38,
24,
-10,
-21,
6,
12,
25,
0,
-24,
42,
-40,
10,
45,
13,
-24,
-53,
-29,
11,
-23,
56,
78,
19,
-6,
-22,
11,
6,
-29,
-26,
9,
21,
26,
-11,
17,
14,
14,
19,
-35,
-11,
28,
12,
24,
39,
-37,
-20,
-17,
22,
25,
-34,
17,
-27,
48,
28,
23,
-18,
26,
-22,
-19,
34,
3,
-74,
30,
-1,
-23,
35,
17,
29,
2,
8,
-11,
-34,
14,
42,
-18,
13,
-31,
4,
-52,
-62,
13,
18,
-13,
54,
12,
46,
56,
-3,
-12,
-32,
65,
-7,
-43,
61,
26,
22,
-11,
50,
19,
-3,
19,
43,
0,
-21,
13,
9,
-39,
10,
-27,
-1,
-32,
-15,
10,
48,
-25,
-13,
44,
-54,
4,
15,
8,
-9,
11,
38,
-1,
-59,
-33,
0,
-38,
-15,
-20,
-19,
-15,
39,
29,
-16,
53,
-60,
-25,
47,
9,
-6,
-20,
-65,
23,
-2,
27,
-18,
-4,
-11,
22,
24,
-52,
41,
-11,
15,
17
] |
Montgomery, J.
This is an action of trover to recover the value of certain store fixtures and bicycle sundries taken on two attachments in favor of the Detroit Journal Company and Fred H. Lutz, respectively, against the property of the Davidson Cycle Company, a foreign corporation. Plaintiff is the assignee of the Davidson Cycle Company. Defendant Fox is the constable who served, the writs. Defendant Watson is a warehouseman with whom the property was stored. The circuit judge held that the attachment proceedings were valid, and directed a verdict for the defendants. The plaintiff contends that the law makes no provision for service of attachment from justices’ courts against foreign corporations, and that if section 8143, 2 How. Stat., applies to such proceedings, the service should be on an officer or agent of the corporation. It is also contended that the return of service is defective in each case, for reasons which will be referred to later on.
1. Prior to 1879 justices of the peace had no jurisdiction to issue attachments against foreign corporations. In that year section 6831, 2 How. Stat., was amended so that it now provides that:
“Any plaintiff shall be entitled to an attachment against a defendant in any action founded on a judgment, or on a contract, express or implied, if such plaintiff, or some person in his behalf, shall make and file with the justice an affidavit * * * containing a statement. * * * Fifth, that the defendant is a foreign corporation.”
The clause last quoted is the one introduced by way of amendment. Language could not well be clearer. Is the service provided by the justices’ act sufficient? This amendment is to the justices’ act, and the act, as amended, is to be construed as a whole. Sections 6840 and 6841 provide for service either personally or by leaving with the custodian of the property seized. But it is contended that section 8143 provides the exclusive mode of service in attachment cases. -This section makes no provision for service in case no officer, member, clerk, or agent of such corporation be found within the county. The' language of the section is permissive, and we think it should be so construed. It does not, therefore, provide an ex-' elusive mode of service.
2. In the Journal Company case the return of service is as follows:
“By virtue of the within writ of attachment, I, David W. Fox, on the 9th day of September, 1897, at the city of Detroit, Wayne county, Michigan, seized the goods and chattels of the defendant, the Davidson Cycle Company, a foreign corporation, within named, which are mentioned in an inventory, of which the annexed is a copy; and I hereby certify that I have made diligent search and in quiry, and am unable to find said Davidson Cycle Company, or any person on whom personal service of the within writ could be made as against the said Davidson Cycle Company, within the said county, and therefore, on the 14th day of September, 1897, because the said defend-ant could not be found, I left a copy of the within attachment and of the said inventory, duly certified by me, with Frank H. Chapman, in whose possession I found the said goods and chattels; and I certify that said defendant has no last place of residence within said county; and I further certify that I retained the within writ in my hands, and made diligent search for the said defendant, during all the time within which personal service might by law have been made.”
In the Lutz case the return was as follows:
“By virtue of the within writ of attachment, I, David W. Fox, on the 10th day of September, 1897, at the city of Detroit, Wayne county, Michigan, seized the goods and chattels of the defendant, the Davidson Cycle Company, a foreign corporation, within named, which are mentioned in an inventory, of which the annexed is a copy; and I hereby certify that I have made diligent search and inquiry, and am unable to find said Davidson Cycle Company, or any person on whom personal service of the within writ could be made as against the said Davidson Cycle Company, within the said county, and therefore, on the 15th day of September, 1897, because the said defendant could not be found, I left a copy of the within attachment and of the said inventory, duly certified by me, with Frank H. Chapman, in whose possession I found said goods and chattels; and I certify that said defendant has no last place of residence within said county; and I further certify that I retained the within writ in my hands, and made diligent search for the said defendant, during all the time within -which personal service might by law have been made.”
Each of these returns shows—
First. That the officer was unable to find the defendant.
Second. That he retained the writ in his hands, and made diligent search for the defendant, during all the time in which personal service might by law be made.
Third. That the defendant had no last place of residence within the county.
Fourth. That service was made on the person in whose possession the property was found at least a sufficient length of time before the return day.
It is urged that the return should have certified that the officer made diligent search to find a last place of residence of defendant, and that a return in terms that the defendant has no last place of residence within the county is* not sufficient. The statute does not require any more specific return in that regard than was made in this case. Buehler v. De Lemos, 84 Mich. 554; Nicolls v. Lawrence, 30 Mich. 395, 397.
It is also said the return, showing the officer retained the writ in his hands, and made diligent search for defendant, during all the time in which personal service could be made, does not show that he could not find the defendant. It is true, this language does not, standing alone, show this fact; but the officer also returns, “I * * * am unable to find the said Davidson Cycle Company.” This is sufficient.
The fact that substituted service was made in one case more than six days before the return day does not invalidate the service, in so much as it appears that the officer retained the writ and made diligent search for the defendant for all the time required. Matthews v. Forslund, 113 Mich. 416.
We find no error. Judgment affirmed.
The other Justices concurred. | [
-37,
-14,
46,
13,
-2,
29,
-1,
-41,
20,
29,
-33,
41,
-20,
47,
4,
-24,
63,
-9,
30,
19,
17,
-46,
9,
-28,
23,
-7,
34,
-16,
-6,
7,
-22,
-15,
-42,
-8,
-5,
23,
-42,
9,
39,
-40,
6,
-2,
85,
-35,
-7,
5,
30,
33,
37,
-56,
43,
5,
-17,
-4,
-20,
7,
-3,
37,
4,
51,
4,
-6,
17,
-11,
-25,
-3,
-23,
35,
49,
-45,
0,
-41,
4,
40,
30,
-34,
-38,
-24,
-18,
-7,
-18,
-53,
16,
-26,
-16,
17,
31,
-9,
4,
-24,
-46,
26,
-76,
-35,
-29,
-17,
29,
-44,
-9,
-19,
-5,
-28,
-1,
31,
-34,
45,
4,
-70,
-1,
-13,
14,
-4,
20,
-31,
-23,
-16,
-7,
-38,
68,
0,
13,
26,
22,
-23,
-20,
-19,
1,
-37,
7,
40,
-23,
9,
-14,
-18,
-62,
-5,
20,
7,
-8,
17,
4,
21,
36,
-5,
-5,
23,
63,
-16,
-78,
17,
11,
38,
9,
22,
-3,
-21,
-7,
-4,
23,
-14,
32,
0,
-37,
-9,
-2,
19,
5,
5,
-25,
47,
4,
35,
-19,
38,
0,
-32,
-86,
-2,
-19,
-8,
5,
20,
9,
-6,
4,
-1,
39,
-31,
5,
-6,
63,
15,
-51,
2,
-54,
20,
-1,
-3,
-5,
-11,
-12,
-33,
-47,
-41,
-22,
0,
69,
47,
2,
15,
-38,
35,
-38,
-40,
5,
0,
-22,
-43,
4,
-20,
-13,
29,
0,
-17,
-51,
-52,
-15,
6,
13,
-14,
-25,
44,
2,
-27,
-40,
7,
-9,
-13,
10,
80,
-2,
3,
-14,
-32,
38,
-61,
1,
-13,
-15,
27,
-27,
-56,
-24,
-12,
9,
-36,
11,
-7,
-3,
2,
-2,
67,
-16,
15,
7,
-41,
24,
-10,
9,
48,
-9,
4,
-19,
37,
0,
-29,
39,
38,
14,
-39,
1,
18,
0,
-31,
-18,
-26,
5,
-41,
-18,
8,
-23,
22,
-7,
38,
-25,
31,
33,
-38,
-5,
55,
19,
-10,
-27,
14,
17,
-42,
-33,
-21,
-33,
16,
-37,
26,
9,
-53,
43,
33,
51,
35,
30,
-49,
-20,
77,
28,
41,
16,
-51,
15,
-36,
17,
-47,
20,
-14,
30,
-36,
15,
-8,
25,
-24,
4,
26,
-23,
-2,
2,
-22,
26,
-17,
20,
7,
-28,
18,
15,
29,
-55,
25,
32,
8,
21,
22,
-71,
20,
37,
14,
30,
-44,
15,
-2,
5,
-24,
-29,
29,
-21,
-10,
-31,
30,
-17,
-20,
7,
-4,
6,
18,
-7,
-35,
-28,
-13,
22,
-39,
-22,
-28,
-4,
1,
-15,
47,
-1,
47,
-24,
0,
-26,
7,
-14,
28,
-16,
31,
-31,
24,
-45,
-40,
33,
37,
15,
33,
-16,
-29,
16,
41,
-38,
7,
23,
-19,
40,
-36,
59,
28,
-5,
-45,
27,
-7,
16,
0,
-17,
-31,
-19,
-36,
-12,
0,
-12,
-4,
-76,
12,
1,
20,
-58,
-25,
-47,
29,
-53,
-4,
9,
28,
42,
-32,
3,
-8,
16,
-10,
-25,
27,
38,
-7,
6,
24,
38,
-33,
-4,
60,
-16,
-13,
52,
-36,
12,
-4,
-26,
-14,
1,
-29,
-52,
6,
-21,
-17,
-38,
0,
-6,
41,
16,
19,
-31,
-22,
-35,
2,
-1,
29,
-10,
4,
-11,
7,
-25,
11,
-42,
12,
-16,
9,
2,
-34,
19,
46,
-18,
20,
-6,
-7,
32,
28,
7,
40,
2,
35,
42,
41,
-25,
22,
51,
-27,
10,
-6,
-65,
41,
-12,
-9,
7,
41,
-8,
-62,
-9,
9,
-8,
-20,
4,
8,
20,
2,
-5,
-16,
-32,
39,
-35,
11,
-85,
14,
-20,
1,
-43,
-10,
-10,
38,
18,
0,
5,
-9,
-1,
-7,
5,
19,
12,
8,
11,
-12,
36,
-26,
9,
-9,
28,
-59,
7,
-32,
10,
-43,
1,
-11,
23,
-2,
21,
-55,
-51,
-21,
42,
-11,
45,
-53,
-23,
2,
10,
0,
-20,
67,
-31,
3,
-4,
-5,
-10,
-4,
-3,
26,
-2,
8,
-4,
-16,
10,
-19,
49,
32,
3,
15,
6,
-1,
-2,
-26,
-21,
5,
-34,
-25,
6,
19,
-56,
17,
14,
54,
-29,
-11,
-4,
-30,
32,
16,
13,
-22,
-29,
18,
-21,
15,
4,
26,
-46,
-26,
-39,
20,
54,
-16,
-1,
1,
-2,
19,
14,
-47,
-15,
18,
51,
-13,
22,
48,
21,
52,
-26,
-19,
-3,
-36,
16,
26,
68,
25,
-16,
-9,
-7,
-21,
1,
-21,
28,
30,
0,
-1,
0,
1,
27,
5,
-3,
-24,
-16,
18,
29,
23,
6,
-2,
24,
-15,
-3,
-47,
11,
-13,
-21,
15,
4,
8,
-12,
-47,
15,
-71,
-2,
20,
-19,
-14,
-37,
33,
29,
14,
9,
-22,
2,
-29,
-20,
-16,
2,
28,
6,
8,
47,
-12,
-1,
-51,
-6,
59,
21,
-7,
-42,
25,
3,
-24,
-33,
-48,
-23,
-4,
-32,
-36,
-26,
-2,
-11,
45,
15,
32,
-11,
-1,
-4,
10,
25,
36,
16,
71,
25,
-42,
6,
40,
5,
-13,
-55,
-34,
7,
0,
18,
15,
-19,
0,
-46,
19,
17,
-43,
-19,
12,
19,
-21,
3,
70,
27,
-45,
-15,
-33,
4,
10,
-4,
38,
-91,
-23,
-10,
-6,
9,
-15,
-4,
-44,
-22,
12,
-46,
-26,
12,
46,
6,
7,
-10,
-22,
2,
16,
10,
-2,
44,
3,
-9,
-38,
-31,
24,
-24,
-33,
10,
22,
-8,
28,
-34,
-5,
-41,
10,
-13,
19,
1,
14,
22,
23,
-24,
58,
14,
-10,
-46,
18,
-48,
28,
16,
-11,
2,
-49,
-19,
14,
22,
33,
19,
-1,
-31,
17,
-60,
-14,
-6,
21,
-45,
-14,
28,
-20,
24,
-21,
31,
-12,
12,
16,
35,
22,
45,
-13,
-48,
-36,
-4,
-11,
40,
55,
-51,
2,
-9,
0,
-15,
28,
-19,
56,
-5,
-51,
-16,
-13,
-25,
28,
8,
-15,
-25,
2,
2,
-26,
-9,
0,
45,
-34,
-2,
-7,
26,
-43,
0,
41,
16,
34,
42,
43,
21,
-6,
-2,
-36,
50,
-30,
12,
43,
15,
15,
1,
9,
15,
27,
12,
0,
21,
-10,
16,
32,
57,
-11,
7,
65,
-21,
8,
5,
9,
25,
-43,
-20,
-29,
2,
23,
-2,
10,
-7,
9,
-4,
-18,
-18,
72,
17,
-15,
-36,
-6,
29,
-4,
-4,
8,
-16,
4,
-3,
29,
-36,
44,
-17,
12,
-10,
31,
6,
-25,
-78,
-19,
5,
-4,
11,
-13,
-12,
9,
23,
11,
-21,
69,
-1,
-23,
-13,
60,
19,
-25,
9,
22,
-40,
1,
9,
-37,
41,
-1,
-32,
-16,
20,
37,
-28,
-11,
23,
-8,
9,
-5,
48,
-38,
12,
45,
1,
5,
0,
-20,
1,
24,
-20,
9,
-8,
6,
-74,
19,
51,
-5,
8,
46
] |
Long, J.
Plaintiff brought suit in assumpsit against defendant for services, claiming that he had- worked for defendant for a number of years under an agreement that he should receive for his services $1,'200 a year as salary, and 8 per cent, of the net profits; that the services had terminated; and that there was a balance due him of $5,000. Defendant pleaded the general issue, with notice of set-off and recoupment. The case was referred, and the referee made findings, and settled a bill of exceptions, from which it appears that, in 1889, the plaintiff entered into a contract with defendant to superintend and manage the defendant’s factory, for which he was to receive $1,200 a year, and 8 per cent, of the net profits. The business was done in the name of the Murphy Iron Works. The original contract was renewed from time to time, without material change, sometimes by a new contract, and at other times by a verbal continuance of a former one, until December 31, 1896, when the contract relations ceased. When the time came for a final separation and settlement, defendant caused an inventory of the property on hand to be made. Plaintiff refused to settle on that basis,- and brought this suit. The referee found that plaintiff’s salary had been paid in full; that he had drawn $17,970.12 on account of profits; and that there was still due him, on net profits, the sum of $1,455.62. A bill of ■ exceptions, with assignments of error, was settled, and filed with the report of the referee. Exceptions to the report were also filed, 'the exceptions were overruled by the court below, and defendant brings error.
Defendant claims here that the plaintiff cannot recover in this action, because (1) the parties were partners, the accounts unsettled, and the sole remedy is in equity; (2) it is impossible in the present suit at law to settle the accounts or fix the rights of the parties.
It is unnecessary to set out the whole contract here to ■ determine the question whether the parties were partners. The contract recites that—
“ This contract is made * * * between Thomas Murphy, proprietor of the Murphy Iron Works, of the one part, and George L. K. Morrow, * * * of the other part, whereby the said George L. K. Morrow agrees to manage and superintend the machine and foundry business carried on by the said Thomas Murphy, under the name of the Murphy Iron Works, * * * for which the said Thomas Murphy ágrees to pay the said George L. IC Morrow the sum of * * * ; also that, should Thomas Murphy desire to sell out part or the whole of the business, then this contract ceases at that time. * * * ”
From the wording of the contract, the pleadings in the case, and testimony given by Mr. Murphy, it is evident that the parties did not become partners. The notice under the plea sets out that the work and labor for which the action was brought was done under a special contract or agreement in writing, by the terms of which defendant agreed to hire the plaintiff at an agreed compensation; that the plaintiff left his employment; that he neglected his duties as superintendent, and that defendant was entitled to his best mechanical ability; that, by such inattention to his duties as superintendent and manager, the business of the defendant was injured. Mr. Murphy’s testimony is in keeping with this notice. The fact that the contract provides that the plaintiff should have a share of the profits does not necessarily make the parties partners. The contract simply fixes the measure of plaintiff’s compensation for his services as superintendent and manager. Stockman v. Michell, 109, Mich. 349.
It appeared that three suits were pending against Mr. Murphy at the time this action was brought, and that those suits were still undetermined at the time of the report of the referee. It is contended by defendant that no settlement and adjustment of the accounts could be made, and no' determination of the net profits had, until after these suits were disposed of. Two of these actions were in tort, and the damages unliquidated. In the first suit, defendant was sued in Chicago for libel. The second suit was for the unlawful discharge of an apprentice. The third suit was a case in which Mr. Murphy sued to recover on an account of $625. The defense in that case was that the Murphy Iron Works guaranteed that the furnaces put in should be smokeless, and that they were not as guaranteed. The referee did not take these matters into consideration in fixing the amount due plaintiff on percentages. We think that the referee was correct in this. There was no indebtedness in the actions of tort, and could be none, until they were in judgment, and there was no amount which the referee could deduct from the profits. Hill v. Bowman, 35 Mich. 191. Plaintiff had no control over these suits. The .contract, in effect, provides for a settlement at the end of the year, and that the percentages on accounts unpaid at the time of the year’s settlement, which were contracted during the year, were to be paid as soon as such accounts were collected or paid. The referee found that there were certain accounts due and unpaid, which remained uncollected. These accounts were not determined in fixing the amount of the plaintiff’s percentage, and the suits were not considered in the computation. Of the third suit, which was to recover on the account of $625, we think no competent evidence was given which would have warranted the referee in taking it into account.
It is contended that the referee charged the defendant too much for the iron castings. Castings had been sold during the year 1896 at from two to five cents per pound. The referee fixed the price at two and a quarter cents. The testimony supports this finding.
Defendant claims that the referee erred in refusing to credit -him interest on the part of the purchase price of the plant paid by him. The defendant was receiving 92 per cent, of the profits as a consideration for the investment he had in the business. He also received $3,000 salary per year. We find nothing in the contract which provided for interest on the investment by the defendant, and the referee was not in error in that respect.
There is one item in the account in which we think the referee erred. He found that the plaintiff, while superintendent and manager, was indebted to the Murphy Iron Works for material and labor furnished to him by it for his own private use to the amount of $388.19. He also found that it was the custom to charge this to the expense account; that Mr. Murphy was also indebted for material and labor furnished for his private use, but the amount could not be exactly determined. He refused to charge ' plaintiff this, because he says it was the custom to charge this to expense account. We think the evidence does not show that Mr. Murphy knew of any such custom, and, in fact, it appears that Mr. Murphy’s private work was charged to himself. Under the contract, Mr. Murphy ■was entitled to 92 per cent, of this $388.19, which would amount to $357.13. This amount must be deducted from the plaintiff’s judgment. Aside from this we find no error in the case. With this deduction from the judgment, it will he affirmed. Defendant will recover the costs of this court.
Grant, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit. | [
-16,
-18,
7,
31,
27,
16,
28,
-89,
21,
5,
-7,
-7,
38,
-38,
6,
-32,
-14,
-56,
8,
-12,
38,
-51,
7,
-21,
-4,
25,
7,
-21,
-6,
9,
-16,
3,
-45,
59,
-72,
48,
18,
-1,
-26,
-44,
28,
0,
15,
-9,
31,
48,
-8,
8,
31,
-37,
0,
-29,
8,
19,
-24,
-36,
-31,
59,
-28,
10,
-12,
-20,
14,
-17,
10,
4,
26,
-12,
16,
15,
-56,
20,
34,
1,
21,
-26,
4,
-18,
-18,
-14,
-24,
16,
20,
-65,
-17,
35,
-11,
6,
7,
20,
-28,
45,
-17,
36,
0,
2,
9,
27,
-39,
44,
48,
25,
-42,
1,
-9,
33,
-32,
14,
-31,
62,
-32,
-17,
44,
-45,
-24,
-13,
-12,
-25,
-10,
1,
18,
33,
40,
36,
1,
2,
-33,
-20,
-1,
49,
2,
16,
-9,
-10,
-7,
0,
32,
26,
10,
6,
37,
-39,
-50,
-29,
-37,
30,
-45,
7,
0,
-36,
-40,
-27,
40,
1,
12,
-15,
0,
-28,
81,
-49,
29,
6,
50,
-2,
-13,
-41,
-21,
-39,
0,
10,
-34,
-9,
-45,
-23,
-1,
22,
4,
-36,
-29,
-15,
-5,
10,
-31,
-54,
32,
-14,
25,
47,
-31,
52,
41,
-30,
-9,
-36,
-46,
4,
23,
-16,
12,
6,
15,
-19,
-36,
8,
23,
34,
11,
24,
-39,
-4,
-10,
4,
21,
-35,
-60,
35,
-43,
-27,
-26,
28,
29,
29,
-37,
10,
-44,
-60,
16,
-4,
47,
-7,
-40,
12,
29,
-18,
-41,
-51,
8,
23,
11,
3,
-33,
-31,
-57,
-20,
7,
-12,
-30,
-9,
-11,
74,
-20,
6,
5,
2,
-11,
-24,
-31,
-1,
17,
-19,
-6,
49,
-44,
21,
51,
-29,
12,
28,
17,
43,
-4,
-44,
74,
41,
-34,
-32,
-33,
25,
-22,
13,
-34,
0,
-30,
-23,
-2,
22,
-13,
5,
-30,
15,
29,
-10,
15,
-38,
64,
36,
51,
-19,
-8,
31,
-59,
-42,
0,
-19,
56,
37,
-42,
3,
21,
-53,
-22,
-11,
-1,
-2,
68,
-1,
-25,
22,
19,
-59,
-4,
28,
-10,
35,
36,
-8,
10,
4,
-30,
4,
37,
-19,
38,
0,
-39,
-20,
22,
19,
33,
-24,
21,
48,
-14,
-15,
-36,
34,
26,
-54,
72,
-15,
26,
-65,
4,
63,
51,
67,
14,
-32,
-37,
42,
37,
-31,
-4,
-38,
-38,
-18,
-32,
18,
28,
18,
-4,
63,
-30,
-36,
9,
6,
-14,
1,
-39,
61,
23,
-17,
-22,
-25,
28,
21,
-4,
-4,
-56,
6,
-38,
13,
15,
11,
25,
39,
-8,
-26,
-40,
-15,
15,
-10,
-6,
-13,
-30,
-29,
-6,
-34,
4,
11,
15,
-14,
-44,
-12,
-42,
-47,
40,
-16,
62,
25,
49,
16,
-34,
14,
36,
-15,
49,
7,
-3,
-12,
-18,
-3,
21,
-23,
32,
-4,
-19,
-23,
-30,
21,
-49,
10,
-13,
7,
29,
8,
-2,
26,
12,
0,
-20,
33,
13,
47,
-1,
29,
4,
-56,
60,
31,
25,
27,
14,
40,
-15,
-4,
41,
-6,
0,
32,
-54,
-18,
40,
-8,
-23,
-10,
2,
-28,
-3,
-1,
6,
45,
41,
13,
-10,
-10,
-50,
22,
-17,
2,
36,
-16,
-15,
-31,
-6,
-4,
1,
3,
-29,
14,
-34,
-11,
63,
-12,
-14,
12,
-12,
-39,
30,
3,
-28,
-29,
31,
6,
14,
-11,
8,
69,
18,
-29,
49,
4,
-10,
-5,
9,
-15,
-33,
22,
23,
-29,
-1,
-11,
21,
-25,
0,
-5,
7,
-4,
-2,
4,
-20,
53,
22,
57,
-21,
10,
1,
36,
-7,
35,
13,
-52,
38,
16,
-6,
47,
34,
17,
60,
-13,
-35,
-14,
-10,
-15,
54,
-12,
-10,
13,
23,
-57,
-14,
7,
30,
51,
-6,
-9,
-29,
-18,
15,
6,
-51,
-17,
65,
-59,
-28,
0,
-10,
10,
24,
22,
-2,
9,
-23,
0,
34,
-16,
-18,
38,
6,
21,
9,
-52,
-59,
-36,
-41,
3,
-59,
12,
-15,
24,
13,
9,
-11,
-36,
-15,
-7,
9,
-2,
14,
34,
63,
23,
-12,
-14,
-7,
27,
-15,
6,
-53,
3,
-35,
-31,
-31,
50,
8,
8,
13,
72,
-42,
6,
3,
-24,
3,
-21,
-36,
-30,
-14,
15,
-12,
-17,
9,
4,
47,
10,
-36,
19,
20,
7,
-16,
-2,
23,
-18,
38,
29,
-19,
7,
36,
-18,
7,
-15,
16,
-52,
67,
15,
23,
-19,
-35,
-4,
7,
-20,
33,
-14,
73,
22,
12,
12,
5,
-44,
-22,
-16,
5,
-21,
-44,
-18,
-27,
56,
48,
-25,
0,
-56,
-35,
-3,
16,
50,
-3,
0,
-9,
7,
16,
-10,
65,
-37,
5,
-17,
70,
52,
-36,
50,
-31,
-20,
25,
-16,
6,
-27,
-11,
60,
0,
3,
-67,
-32,
6,
-6,
-44,
-3,
-11,
26,
-7,
-40,
-102,
-23,
12,
-48,
2,
43,
4,
-4,
3,
-12,
-21,
21,
-3,
47,
-23,
4,
54,
-22,
-17,
19,
-46,
-10,
-9,
-10,
3,
-31,
-19,
15,
-7,
-41,
-24,
-26,
-11,
20,
8,
-10,
82,
8,
30,
37,
-25,
-40,
57,
23,
3,
21,
-36,
-69,
31,
9,
21,
20,
-34,
-44,
11,
-19,
-45,
-17,
-24,
19,
11,
-49,
-20,
12,
-20,
-3,
-7,
-42,
32,
-1,
26,
-22,
-12,
32,
-11,
-14,
-11,
-21,
-57,
27,
18,
10,
-47,
7,
1,
-2,
-4,
-37,
-19,
45,
-44,
14,
71,
-2,
-15,
6,
62,
32,
-11,
14,
-48,
-49,
32,
-38,
1,
20,
62,
-1,
-68,
40,
-4,
-47,
-19,
4,
-45,
-4,
-19,
-22,
12,
-1,
10,
5,
-2,
-24,
-16,
49,
22,
-43,
-41,
-32,
-33,
-32,
18,
19,
-9,
-59,
30,
43,
-47,
-54,
34,
47,
-25,
1,
-31,
7,
13,
0,
32,
-17,
53,
48,
12,
-37,
31,
-9,
21,
-58,
53,
-66,
26,
-2,
0,
23,
37,
44,
16,
0,
5,
-52,
-7,
51,
49,
-4,
-19,
-3,
-4,
37,
34,
51,
12,
31,
-24,
-38,
-24,
10,
19,
-24,
24,
41,
13,
35,
39,
-24,
7,
0,
17,
-16,
19,
-69,
-2,
-23,
33,
33,
24,
-24,
-43,
-18,
14,
-6,
46,
26,
-44,
6,
-34,
28,
-46,
-40,
-44,
-30,
-52,
7,
23,
41,
9,
36,
-3,
28,
13,
4,
-24,
-84,
5,
-25,
46,
-20,
-22,
-16,
19,
6,
10,
-30,
47,
-30,
-47,
50,
15,
-34,
-24,
-64,
-5,
24,
-24,
25,
36,
2,
45,
-52,
6,
-3,
28,
-3,
-8,
9,
-7,
-10,
-16,
-7,
32,
40,
-6,
-26,
8,
13,
36,
18,
-21,
46,
5,
21,
-27,
2,
64,
-32,
-16,
10
] |
Moore, J.
A reference to the report of this case when it was here before (Blodgett v. Foster, 114 Mich. 688) will do away with need of making so long a statement of the case as would otherwise be necessary. Upon the trial of the case the witnesses were examined in open court. As a result of concessions made by the solicitors in open court, there are not many questions now open for controversy. One of the most important questions relates to the effect of a contract reading as follows:
“In consideration of the faithful performance of the above and foregoing contract by the parties of the-first part, which they agree to do, it is hereby agreed by the parties that the prices for lumber shall be one dollar per M. feet higher than prices named in the within contract.
“ Chittenden & Herrick, “By C. C. Chittenden.
“John J. Foster & Co.,
“By John J. Foster.”
This contract was made in April, 1893, and was indorsed upon a contract, known as the ‘ ‘ Lake City Contract,” dated April 23, 1892, between the same parties, providing for the sale of lumber to be cut from standing timber estimated to make 15,000,000 feet. There is not very much controversy about the circumstances under which this contract was made. Chittenden & Herrick had entered upon the manufacture of the lumber. The stock did not turn out as they expected. It was either very good or very poor. There was but very little of the intermediate grades. They found they could not carry out the contract without loss. They concluded that, in justice to themselves and their creditors, they ought not to continue it; that it would be better for them and their creditors that they should become liable for any damages for its breach, rather than to attempt to carry it out, and they decided not to carry it out. After reaching this conclusion, Mr. Chittenden had an interview with defendants, and explained the situation fully to them, when it was agreed that defendants would advance the price a dollar a thousand, and Chittenden & Herrick should complete the contract. Prior to this, Foster & Co. had been authorized to make payments on the contract to Blodgett & Co., who were authorized to receive them. Later a copy of this contract of April, 1893, was attached to the copy of the prior contract in the hands of Blodgett & Co., and the contracts were assigned to them. After this contract was made, lumber was manufactured and shipped to Foster & Co., who prepared statements, some 19 of them, showing the amounts received by them, in which the lumber was billed at the enhanced price, and acceptances for the balances shown by these statements were remitted by them to Blodgett & Co. 13,500,000 feet of lumber was manufactured under these two contracts, and was received by defendants. It is now claimed by them there was no consideration for the contract of April, 1893, and that they should not be bound by their statements or by the contract. It is contended by complainants that defendants are bound for two reasons:
1. Because Chittenden & Herrick decided to give up the old contract, and this was assented to by the defendants’ consenting to make a new contract, in which the price of the lumber should be one dollar a thousand greater than in the old contract.
2. Because Blodgett & Co., who were bankers, made large advances to Chittenden & Herrick on the strength of this new contract, of which Foster & Co. had knowledge.
The circuit judge found in favor of the contention of complainants.
The authorities are conflicting as .to whether such a contract as the one of April, 1893, is based upon a sufficient consideration. The question is not an open one, however, in this State. In Moore v. Locomotive Works, 14 Mich. 266, defendant refused to complete its contract with the plaintiffs, except under a substituted agreement. In disposing of the case, after a review of the authorities, Justice Cooley, speaking for the court, said:
“ Each of these cases is to the point now in issue before us. It is true that in each the abandonment of the con-, tract by the plaintiff was before very much had been done under it, and on the claim' that the bargain was a hard one upon him. But neither of these circumstances can distinguish the cases from the present. An unprofitable contract is not, by that circumstance, made any the less binding on the promisor; and the promisee has the same right and the same power to discharge a contract in consideration of a new promise, after breach as before. A different case would be presented if the plaintiffs below had relied upon an agreement to waive the damages, made after delivery, for in that case nothing would have remained for them to do or to promise which could be a consideration for the waiver. But here, although they had done the work which enabled them to deliver the engine, they refused altogether, according to their statement, to go further, except under the substituted agreement; so that the plaintiffs in error actually received the property under the promise which they now insist is invalid. If they regarded it for their interest at the time to make the arrangement, and have obtained the property under it, it is not in our power now to set it aside on the ground of their being entitled to just as much under the contract before existing. They knew their legal rights at the time, and must be supposed to have consulted their own interests in entering into the new arrangement.”
In Goebel v. Linn, 47 Mich. 489 (41 Am. Rep. 723), an ice company had agreed with a brewer to furnish him ice for the ensuing season at $1.75 a ton. The crop of ice harvested in the winter was a short one. Ice was furnished under the contract until May, when the ice company refused to furnish any more for less than $3.50 a ton. The brewer agreed to pay this, and ice was furnished under this agreement. It was claimed by the brewer that the ice company took advantage of his necessities, and the new contract was made under duress. It was also claimed he obtained only what by his contract he was entitled to have at the lower price, and the new contract was without consideration. The court said:
“It is very manifest that there is no ground for saying that the note in suit was given without consideration. It was given for ice -which was furnished by the payee to the defendants, which was owned by the payee and bought by the defendants, and for which defendants concede their liability to make payment. What the defendants dispute is the justice of compelling them to pay the sum stipulated in the note, when, according to their previous contract, they ought to have received the ice for a sum much smaller. The defense, therefore, is, not that the consideration has failed, but that a note for a sum greater than the contract price has been extorted under circumstances amounting to duress. It is to be observed of these circumstances that, if we confine our attention to the very time when the arrangement for an increased price was made, the defendants make out a very plausible case. They had then a very considerable stock of beer on hand, and the,case they make is one in which they must have ice at any cost, or they must fail in business. If the ice company had the 'ability to perform their contract, but took advantage of the circumstances to extort a higher price from the necessities of the defendants, their conduct was reprehensible, and it would, perhaps, have been in the interest of good morals if defendants had temporarily submitted to the loss, and brought suit against the ice company on their contract. * * * But the defendants did not elect to take that course. They chose, for reasons which they must have deemed sufficient at the time, to submit to the company’s demand, and pay the increased price, rather than rely upon their strict rights under the existing contract. What these reasons were is not explained to us-, except as above shown. * * * What is certain is that the parties immediately concerned, and who knew all the facts, joined in making a new arrangement, out of which the note in suit has grown. The case of Moore v. Locomotive Works, 14 Mich. 266, where a similar case was fully considered, is ample authority for supporting the new arrangement.”
See Conkling v. Tuttle, 52 Mich. 630.
In this case, if Chittenden & Herrick did not go on with their contract, defendants could have sued them for a breach of it. They did not see fit to do this, but, instead, agreed, in order to have the contract completed, they would pay one dollar a thousand more for the lumber. Relying upon this agreement, Blodgett & Co. made advances to Chittenden & Herrick, who manufactured the lumber, relying upon the new agreement. The defendants received the lumber under the new agreement, and from time to time sent their acceptances, for the amount due upon the basis of the new agreement, to Blodgett & Co. Under these circumstances, we do not think they can say they are not bound by the agreement.
The next question of importance relates to one item of $325 paid for insurance on the Hoxeyville contract, and one item of $1,033.34 for insurance on the Lake City contract, which it is claimed complainants should pay. The circuit judge rejected these items. Whether they should be rejected or not depends upon the construction to be given to the provisions contained in the contracts in relation to insurance. In the first-named contract, the parties of the second part therein agree to pay one-half of the insurance on said lumber. In the Lake City contract the language as to insurance is: “Said Chittenden & Herrick agree to keep said lumber insured to 80 per cent, of its value, and to pay two-thirds of the cost of the insurance; the other third to be paid by the parties of the second part.” It is the claim of Chittenden & Herrick that the lumber was to be insured treating its value as being the price for which they sold it. Defendants claim it was to be insured for its market value, irrespective of the price which they paid for it. The question is not free from difficulty. The insurance was to be of lumber at Hoxeyville and Lake City. Its value there was, doubtless, what the parties had in mind. Chittenden & Herrick were required to make a monthly statement to Foster & Co. of the quantity of lumber in the yards, and of the different grades and qualities. With this statement in hand, and the prices named in the contract which were to be paid for the lumber, it was a simple matter of computation to learn what the value of the lumber was which was to be insured. Chittenden & Herrick were to procure the insurance. If the price for which they sold the lumber was not to be regarded as its value for insurance purposes, how could they arrive at the amount for which it should be insured ? It was not marketed by them to anybody except the defendants. They had no way of knowing how much it brought in the market. The defendants never furnished them monthly statements of its value, based upon the price it brought in the market. Mr. Foster testified it was none of the business of Chittenden & Herrick for what Foster & Co. sold the lumber. There was no testimony in the case showing what the various grades of the lumber was worth, from month to month, at Hoxeyville and Lake City, except as it may be inferred it was worth the price for which Chittenden & Herrick sold it to Foster & Co. We think that price should govern in construing these contracts.
The remaining important question for discussion is a claim of $4,000 damages for delay in commencing the work at Lake City.. The contract provided the work should be commenced June 15, 1892. It was not commenced until September or October. The cause of this delay is explained by Mr. Chittenden as caused by litigation between the party from whom they bought the timber and one who claimed adverse title to it. This litigation resulted in the person from whom they bought the timber being enjoined from selling it. He said the matter at the time was explained to Mr. Foster, who said he was entirely satisfied, and to go ahead with the manufacture. An examination of the record convinces us the defendants were satisfied with the explanation, and excused the delay. There were upwards of 13,000,000 feet of lumber manufactured by reason of this contract. A great many statements of account were made by the defendants, and a great mass of correspondence resulted in relation to it. No claim was made, in these statements or in this correspondence, of any intention to claim any damages because of the delay in commencing the work. These statements are 21 in number, running over a. period of néarly two years. No item for damages was charged against Chittenden & Herrick upon the books of defendants. The contract of April, 1893, was made after this delay occurred. There is nothing to indicate any claim of damages until they filed their answer in this case. They accepted the lumber manufactured under this contract, making no claim on account of delay. By accepting and retaining the lumber under such circumstances, they have waived the.terms of the contract as to time. See Crane v. Wilson, 105 Mich. 554.
The claims for damages on account of misgrading the . lumber and lath, and for wrongful piling of lumber, have been considered, but we do not deem it necessary to discuss them. We do not think the court erred in his disposition of the case.
The decree is affirmed, with costs.
Grant, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit. | [
24,
28,
6,
-18,
-9,
1,
21,
-28,
56,
-8,
7,
-5,
1,
20,
61,
-15,
-41,
-27,
5,
7,
36,
-28,
-3,
-41,
-15,
-47,
-34,
-47,
-45,
43,
-7,
54,
-62,
34,
-7,
5,
-8,
44,
10,
-31,
9,
2,
-8,
-73,
36,
21,
36,
-21,
58,
2,
25,
5,
22,
-27,
-16,
30,
-24,
37,
-15,
51,
9,
-45,
-7,
-14,
32,
-77,
-6,
-5,
47,
45,
-33,
-8,
30,
-20,
43,
-12,
-10,
-32,
-64,
-26,
-8,
0,
36,
-51,
-34,
13,
3,
-12,
18,
57,
-46,
-18,
-17,
63,
5,
8,
25,
46,
-60,
30,
67,
41,
4,
14,
-9,
12,
-34,
-14,
-29,
33,
-14,
50,
27,
16,
-21,
-17,
2,
31,
41,
7,
23,
45,
-19,
-24,
7,
0,
8,
-32,
-1,
-28,
2,
-33,
-40,
67,
-21,
20,
21,
0,
-2,
-4,
78,
14,
-51,
-23,
-15,
1,
-47,
7,
-3,
-14,
-24,
19,
51,
-16,
16,
-10,
-29,
-19,
2,
-76,
59,
1,
0,
-41,
-46,
-35,
-14,
-18,
-10,
72,
-2,
33,
-49,
-5,
50,
5,
39,
-31,
1,
20,
-5,
-3,
-6,
-7,
-19,
-8,
55,
43,
-3,
66,
43,
-19,
-57,
14,
-19,
26,
-34,
-43,
23,
23,
4,
-24,
-75,
0,
-50,
14,
14,
0,
27,
29,
4,
31,
-41,
-10,
33,
73,
-15,
-10,
38,
-58,
12,
-45,
3,
-14,
-21,
-73,
35,
4,
7,
-50,
-37,
25,
-29,
-67,
26,
-40,
-11,
-1,
21,
24,
0,
-6,
-29,
-22,
18,
-10,
-2,
30,
11,
32,
-29,
26,
26,
66,
-26,
3,
-52,
10,
-61,
-51,
-38,
37,
10,
-61,
57,
-39,
-19,
30,
26,
28,
-15,
-11,
45,
24,
-57,
-12,
-4,
-24,
-35,
-30,
10,
-31,
-4,
17,
4,
-5,
-4,
-13,
-18,
-25,
59,
3,
-2,
-65,
72,
36,
-44,
-17,
-8,
-60,
-11,
-31,
-40,
-29,
-15,
59,
-25,
19,
5,
-38,
-31,
-22,
-21,
-38,
18,
-35,
22,
9,
0,
-42,
26,
26,
0,
41,
-15,
31,
51,
0,
-65,
4,
40,
-5,
10,
-44,
-20,
-13,
22,
19,
13,
-8,
15,
41,
-12,
-43,
6,
-6,
18,
-25,
6,
-22,
59,
14,
-90,
21,
-10,
-21,
-22,
1,
18,
-12,
44,
-15,
53,
34,
22,
24,
0,
-6,
-10,
-13,
-24,
19,
0,
20,
-6,
-16,
-5,
-2,
-94,
14,
-20,
35,
12,
17,
62,
-21,
34,
23,
11,
25,
-62,
-24,
39,
43,
-23,
53,
-34,
-11,
-73,
-84,
-12,
-5,
-4,
-19,
-38,
-38,
7,
-14,
8,
31,
8,
-25,
20,
-47,
-20,
-67,
-3,
-3,
19,
27,
57,
12,
6,
-11,
51,
16,
30,
27,
-23,
-7,
-37,
2,
19,
-11,
-22,
0,
5,
3,
-41,
-10,
-26,
10,
-18,
7,
-18,
-25,
12,
42,
26,
-7,
46,
-30,
9,
28,
51,
8,
-3,
-44,
53,
60,
16,
-18,
10,
-45,
-16,
48,
53,
2,
-1,
33,
-22,
5,
61,
-32,
-29,
24,
40,
-35,
-36,
15,
3,
-10,
39,
39,
-97,
-17,
5,
24,
-38,
-8,
49,
48,
10,
-32,
-63,
47,
26,
-7,
-9,
37,
-34,
-50,
3,
-61,
1,
-39,
45,
-28,
12,
11,
-3,
-24,
8,
-12,
-1,
14,
-3,
28,
9,
-47,
33,
7,
-23,
22,
29,
80,
2,
-2,
19,
-49,
-48,
36,
-42,
23,
-4,
15,
8,
25,
22,
1,
-10,
-19,
27,
10,
-21,
-68,
-6,
12,
60,
2,
-7,
-46,
19,
-29,
-1,
44,
11,
17,
-1,
17,
0,
10,
-20,
-22,
22,
-8,
-16,
-18,
8,
18,
-9,
-47,
-10,
23,
-43,
22,
-44,
-1,
33,
-15,
-46,
-76,
-29,
-16,
-23,
-41,
0,
5,
0,
-6,
25,
16,
-17,
-43,
-48,
42,
59,
9,
72,
-17,
-26,
43,
-18,
-26,
-1,
22,
-33,
26,
-9,
24,
16,
-5,
5,
-3,
8,
4,
-14,
-8,
-13,
25,
-7,
-25,
-51,
-3,
9,
15,
12,
-23,
-3,
36,
-44,
-10,
-35,
8,
-16,
-29,
36,
10,
-22,
-39,
-25,
-2,
13,
-38,
-14,
36,
-20,
47,
19,
-22,
-33,
-28,
57,
-14,
-1,
-12,
17,
41,
-24,
-31,
63,
14,
12,
24,
-63,
-29,
-32,
26,
-16,
-3,
25,
14,
-1,
5,
27,
-33,
-5,
49,
68,
73,
35,
39,
17,
-27,
21,
-1,
-2,
-15,
-32,
28,
-14,
-42,
8,
-26,
-1,
-26,
-13,
-17,
8,
-55,
33,
-23,
37,
-15,
6,
17,
-34,
-1,
-12,
20,
23,
2,
8,
43,
23,
46,
14,
33,
11,
-49,
45,
5,
47,
8,
-36,
17,
20,
-4,
-42,
0,
-24,
30,
-2,
-45,
3,
4,
10,
-27,
7,
-55,
29,
-20,
-65,
-25,
-6,
0,
28,
18,
-35,
1,
8,
-13,
19,
12,
32,
-20,
-33,
24,
-30,
2,
1,
2,
16,
-26,
-20,
-16,
31,
-65,
-5,
-53,
54,
11,
-30,
61,
26,
-14,
50,
37,
21,
1,
-33,
-29,
-17,
-32,
-14,
-50,
71,
-1,
10,
-2,
-7,
10,
14,
47,
-36,
-47,
-16,
50,
24,
-8,
0,
7,
-34,
11,
-21,
9,
-16,
-5,
56,
1,
2,
-23,
-10,
-61,
-18,
-33,
-28,
-17,
4,
67,
-24,
67,
-25,
-45,
35,
-34,
-18,
-7,
23,
-41,
34,
-9,
-61,
-25,
48,
-1,
-1,
27,
41,
15,
15,
-28,
28,
-8,
44,
19,
-65,
-14,
-53,
-46,
-55,
-9,
31,
-22,
-36,
-27,
-2,
11,
32,
32,
-8,
-7,
2,
42,
8,
14,
19,
21,
10,
-10,
0,
12,
18,
-68,
-39,
46,
-51,
-30,
43,
42,
21,
-21,
12,
36,
-6,
2,
33,
-67,
28,
41,
22,
-15,
54,
0,
33,
-53,
15,
-26,
-4,
8,
6,
20,
62,
64,
8,
-48,
-31,
-12,
-15,
26,
21,
-44,
-21,
36,
-26,
52,
22,
25,
29,
24,
3,
-34,
-7,
66,
6,
23,
20,
18,
-6,
56,
-2,
37,
19,
33,
-33,
-51,
-38,
-39,
-17,
-21,
-12,
1,
-27,
-41,
-3,
-17,
-29,
14,
22,
23,
28,
54,
-24,
34,
-15,
-4,
-58,
-5,
-8,
-29,
4,
56,
13,
-20,
27,
20,
34,
39,
-16,
-54,
25,
-48,
30,
-10,
25,
10,
45,
-17,
-19,
-9,
13,
7,
-28,
46,
22,
-53,
8,
-10,
-20,
16,
-12,
-23,
32,
0,
-55,
-44,
-29,
-18,
-27,
-9,
-15,
-6,
-9,
47,
-18,
-50,
-1,
42,
-14,
-90,
-7,
-9,
20,
-2,
-45,
44,
-2,
-2,
10,
-26,
86,
22,
2,
30
] |
Moore, J.
The defendant, Henry K. Jones, obtained a judgment against the Detroit Mill-Supply Company, and levied upon certain personal property which' he claimed belonged to it. The plaintiff claimed to be entitled to the possession of said property by virtue of a chattel mortgage for $1,300 given to him by said Detroit Mill-Supply Company, and replevied the property levied upon. After all the proofs were in, the circuit judge directed a verdict in favor of defendant, for the reason that no authority had been shown for the giving of the mortgage. The plaintiff brings the case here by writ of error.
. It is his claim that early in 1896 he loaned Mr. Taylor $700 to enable him to engage in business; that afterwards Taylor and one Major E.’Jones formed a partnership, under the name of the “Universal Engineer & Mill-Supply Company,” into which partnership the business of Taylor was merged, the new company assuming the debt of Taylor to Broughton, giving the latter notes therefor. In June, 1896, a corporation was formed called the “Detroit Mill-Supply Company,” and it is the plaintiff’s claim that this corporation took over the business of the Universal Engineer & Mill-Supply Company, and assumed the debt due plaintiff. He also claims that in October, 1896, he loaned the new corporation $40Q, and that said corporation also owed S. Smith' $200, which debt was assigned to him, and that on December 3, 1896, the corporation was authorized to give him a mortgage for these debts, and that on December 5th such a mortgage was given. It was filed on the 12th of December, and soon thereafter Mr. Broughton took possession of the property by virtue of his mortgage, and was in possession when defendant levied upon the goods. It is the claim of defendant that the debt of $700 was the debt of Taylor, and not of the Detroit Mill-Supply Company; that the $400 was not borrowed of Broughton, but was borrowed of one Kretzschmar, and the note of the corporation was given for it. No proof on the trial was given as to the debt of $200 to Mr. Smith. It is also the claim of defendant that, while the mortgage is dated December 5 th, it was not given until the 11th, and after one of the creditors of the company had attached some of the goods of the company, and was given without authority, and for the purpose of defrauding the creditors.
A number of errors are assigned, but, if the circuit judge was right in holding the mortgage was given without authority, that will end the discussion. The property covered by the mortgage was practically all the property of the corporation. To take possession of the property described in the mortgage was to take possession of all the property of the corporation, and practically ended the business. There does not seem to be any written record' of the election of directors, but we think it is clearly established there were four directors, who undertook to and did manage the affairs of the company. Such authority as was given to execute the mortgage was given at a special meeting of the directors, at which meeting but two directors were present. There is nothing to show that the other directors were ever notified that such a meeting was to be held or that such action was to be taken. While the management of corporations is usually left to their directors, no court, so far as we know, has ever held that one-half of the directors of a corporation, without the knowledge of the others, can dispose of all the property of the corporation by action at a special meeting, notice of which is not given to all the directors. The case comes within Covert v. Rogers, 38 Mich. 363 (31 Am. Rep. 319); Doyle v. Mizner, 42 Mich. 332.
Plaintiff urges that, though the directors were not properly authorized to make this mortgage, it may be treated as the act of the stockholders; citing Eureka Iron & Steel Works v. Bresnahan, 60 Mich. 332; Preston Nat. Bank v. George T. Smith Middlings Purifier Co., 84 Mich. 364. The trouble with this contention is there is no evidence to show that there was a meeting of the stockholders held for the purpose of giving this mortgage, or that all of them ever assented to the giving of it.
It is now urged that, as the record shows that upon the same day the mortgage was filed a bill of sale was given to John H. Jones as trustee for all the creditors, one creditor could have no rights over the others. This claim was not made in the court below, but, on the contrary, Mr. Broughton claimed to be in possession of the goods under his chattel mortgage. It has been so often held that we will not consider a point raised here for the first time, it is not necessary to do more than cite some of the authorities. Waterman v. Waterman, 34 Mich. 490; Hogelskamv. Weeks, 37 Mich. 422; Maxwell v. Bridge Co., 41 Mich. 453; Chatterton v. Parrott, 46 Mich. 432; Winchester v. King, 48 Mich. 280; O’Neil v. City of Detroit, 50 Mich. 133; Lane v. Boom Co., 62 Mich. 63.
We do not deem the other assignments of error of sufficient importance to discuss them.
Judgment is affirmed.
The other Justices concurred. | [
8,
25,
32,
-31,
-48,
18,
11,
-66,
29,
10,
-2,
-16,
26,
12,
29,
-17,
19,
-19,
15,
-11,
48,
-48,
-44,
-37,
-8,
15,
-27,
-3,
-12,
45,
-26,
0,
0,
26,
-21,
-1,
-25,
-1,
4,
-80,
-36,
35,
-6,
9,
25,
9,
40,
18,
28,
-47,
15,
-55,
38,
-23,
-21,
-22,
-45,
24,
-8,
-4,
11,
-38,
43,
33,
2,
9,
4,
-1,
24,
4,
-37,
2,
35,
-11,
2,
-46,
-2,
-15,
-42,
-51,
-13,
-17,
53,
-7,
-51,
29,
-18,
12,
-33,
-4,
9,
8,
-42,
30,
49,
-16,
8,
8,
-37,
24,
-42,
-14,
-49,
35,
-12,
6,
21,
5,
-22,
47,
-4,
-2,
26,
13,
-46,
-9,
-18,
-21,
41,
-29,
10,
4,
-12,
-1,
0,
27,
-11,
-55,
19,
54,
15,
-29,
-67,
-8,
-37,
-30,
7,
38,
-41,
28,
55,
2,
-27,
-8,
-44,
52,
31,
24,
-10,
-18,
-36,
0,
27,
32,
5,
-25,
-6,
31,
39,
-5,
31,
-6,
34,
-12,
-61,
10,
-9,
-21,
-27,
0,
-29,
0,
-54,
-39,
14,
-27,
-13,
-24,
-20,
-38,
-37,
-17,
-17,
-17,
11,
-4,
26,
-12,
19,
0,
30,
6,
-60,
19,
-82,
20,
3,
-43,
27,
12,
28,
-23,
-6,
-48,
13,
-23,
50,
5,
-15,
32,
0,
3,
30,
7,
-16,
18,
-67,
-59,
13,
-25,
23,
-10,
-37,
27,
-47,
-40,
-14,
2,
40,
-18,
-68,
44,
19,
20,
-15,
4,
23,
-7,
-3,
-40,
-60,
4,
-35,
-17,
-18,
-15,
-14,
-10,
6,
48,
-36,
19,
-13,
11,
-24,
-4,
-63,
-9,
40,
10,
-15,
70,
-58,
13,
53,
-58,
12,
-10,
-16,
41,
-22,
-20,
21,
4,
-25,
-16,
-25,
61,
-34,
14,
4,
-13,
-26,
9,
24,
4,
-4,
32,
-16,
24,
-6,
23,
17,
-4,
44,
7,
43,
-46,
-37,
13,
-36,
-5,
-39,
-20,
29,
36,
-21,
-57,
9,
-30,
-8,
-8,
-12,
16,
4,
31,
30,
-2,
27,
-18,
6,
32,
-15,
-16,
18,
27,
31,
-23,
-7,
16,
12,
2,
40,
8,
-47,
7,
36,
-19,
-11,
-10,
5,
35,
16,
-17,
12,
25,
-15,
-47,
-6,
-6,
-39,
-5,
2,
20,
34,
8,
13,
1,
-48,
-5,
17,
-8,
18,
3,
27,
-4,
-51,
-6,
17,
51,
14,
46,
-59,
36,
13,
23,
-1,
0,
-52,
17,
-18,
-9,
13,
-11,
43,
17,
9,
0,
-46,
14,
-40,
11,
17,
67,
14,
-67,
12,
-8,
-42,
-25,
16,
25,
-16,
11,
-37,
-11,
-7,
22,
23,
-20,
4,
5,
20,
13,
-46,
-43,
40,
-41,
51,
9,
3,
4,
-34,
-57,
22,
7,
50,
11,
-33,
-5,
-14,
37,
17,
-2,
16,
-22,
-21,
-6,
-13,
18,
0,
41,
-32,
14,
52,
-16,
-24,
-4,
35,
-1,
22,
7,
3,
28,
28,
19,
40,
-47,
57,
-15,
25,
-10,
17,
-21,
-35,
44,
47,
-31,
-18,
43,
-36,
49,
8,
-28,
-15,
0,
40,
2,
-9,
4,
25,
59,
7,
6,
-44,
-28,
-16,
-33,
-16,
34,
14,
31,
-1,
2,
15,
27,
-15,
10,
-69,
6,
-15,
-9,
0,
-18,
-27,
21,
-14,
-14,
-18,
46,
-5,
-25,
-21,
32,
4,
12,
-13,
29,
42,
2,
55,
15,
3,
35,
-5,
35,
-1,
21,
32,
-18,
1,
11,
-13,
-25,
9,
-26,
16,
26,
-13,
-16,
-14,
38,
5,
29,
-64,
27,
-17,
-40,
25,
8,
-23,
-5,
-20,
6,
13,
0,
-10,
6,
-17,
3,
-13,
-19,
23,
-20,
45,
-55,
17,
-17,
14,
-37,
-43,
27,
6,
-11,
-10,
-5,
-19,
18,
-23,
3,
-20,
-14,
11,
-73,
-2,
29,
-9,
16,
-30,
17,
-5,
18,
17,
-37,
26,
14,
-28,
43,
27,
14,
8,
-41,
-31,
-25,
-30,
-11,
-40,
5,
-38,
11,
-9,
-1,
9,
-2,
25,
9,
-13,
-2,
6,
-12,
17,
-8,
-13,
21,
33,
-29,
-5,
-12,
-47,
38,
-37,
9,
-72,
27,
-17,
12,
31,
-3,
-36,
22,
-14,
36,
19,
11,
30,
-16,
-30,
8,
18,
-34,
-28,
14,
32,
36,
-3,
-14,
72,
25,
13,
-38,
31,
-10,
-14,
60,
18,
7,
38,
8,
10,
-18,
-8,
-20,
69,
-17,
12,
-57,
-35,
-5,
27,
26,
9,
-15,
0,
9,
-1,
-22,
17,
-31,
-26,
-14,
-26,
11,
-28,
-3,
-22,
15,
19,
-15,
31,
-47,
19,
-26,
20,
56,
4,
58,
-8,
36,
22,
-23,
24,
-4,
-1,
0,
-29,
45,
-6,
5,
-29,
-15,
-9,
-31,
44,
14,
7,
-9,
-14,
6,
-32,
14,
-1,
-1,
-5,
26,
18,
21,
-27,
-33,
-76,
5,
29,
-5,
-26,
-22,
-7,
0,
15,
23,
-3,
35,
18,
12,
45,
9,
29,
-43,
-6,
14,
-42,
-16,
-48,
2,
28,
-49,
20,
54,
-27,
-48,
9,
-24,
-40,
24,
-24,
5,
43,
4,
29,
14,
29,
-26,
3,
-26,
26,
14,
-13,
-27,
79,
55,
36,
3,
-20,
5,
-12,
8,
-63,
0,
27,
13,
-21,
-31,
0,
13,
-3,
-9,
-7,
-1,
29,
-10,
13,
17,
-18,
3,
16,
-25,
-1,
8,
-22,
10,
6,
40,
-30,
40,
3,
-10,
2,
5,
-34,
50,
-71,
54,
16,
-31,
-37,
10,
44,
21,
36,
8,
4,
-7,
-14,
-56,
-18,
35,
17,
33,
-26,
14,
-50,
16,
-5,
-1,
-2,
2,
-1,
-20,
10,
-1,
14,
27,
33,
-9,
-42,
38,
17,
-48,
-14,
-23,
-34,
4,
21,
54,
-46,
-12,
-28,
-3,
2,
2,
39,
39,
-28,
-3,
53,
23,
-13,
-1,
14,
-27,
16,
57,
-22,
-43,
26,
5,
15,
-22,
2,
-30,
14,
-46,
34,
4,
8,
59,
0,
-27,
29,
-27,
9,
3,
3,
-33,
-40,
-6,
-95,
46,
38,
-38,
42,
32,
-10,
-16,
-36,
20,
-1,
6,
7,
54,
-5,
3,
-16,
-15,
-8,
13,
13,
-44,
35,
-58,
-13,
-7,
32,
12,
5,
22,
-55,
0,
33,
-15,
25,
31,
-30,
-23,
13,
20,
-61,
-44,
-57,
-19,
5,
0,
3,
42,
0,
-9,
26,
60,
-6,
-32,
12,
-64,
-8,
-18,
-19,
-39,
-9,
-21,
9,
22,
1,
-16,
59,
-29,
-39,
53,
55,
-64,
10,
-53,
-34,
-36,
-8,
14,
33,
-9,
2,
-9,
4,
9,
26,
2,
28,
-23,
7,
16,
34,
-13,
9,
66,
-6,
-9,
-14,
17,
21,
-4,
-10,
39,
-35,
24,
-4,
0,
52,
8,
1,
41
] |
Grant, C. J.
(after- stating the facts). We think there is ample testimony to sustain the conclusion of the learned circuit judge. Mr. Halladay owned no other land in that section. Heller was his neighbor, and had been for many years. We think it is a fair deduction from the evidence that Heller knew of the existence of this mortgage. There was no record of any other undischarged mortgage given by the Halladays. Heller knew that they had given a mortgage. It is evident from the testimony of the witness Garbutt, the attorney for Halladay and Heller, who drew the deed and took the acknowledgment thereof, that this mortgage, was referred to, at the time the negotiations for the 'purchase were going on, as being upon the land covered by the deed.
Whether, under the circumstances of this case, the index of the mortgage, to which Heller’s attention was called at the time, was sufficient to put him upon inquiry, we need not determine.
Decree affirmed.
Montgomery, Hooker, and Moore, JJ., concurred. Long, J., did not sit. | [
23,
22,
26,
-6,
-20,
52,
3,
84,
0,
10,
8,
-19,
6,
8,
7,
-16,
13,
6,
14,
4,
-15,
-7,
-16,
25,
16,
-12,
47,
29,
18,
44,
48,
5,
-9,
42,
-25,
-3,
34,
10,
24,
-29,
-24,
-5,
4,
-20,
7,
31,
-28,
-65,
3,
-36,
39,
-33,
41,
-7,
18,
-22,
-19,
-8,
-42,
-11,
17,
-54,
-6,
4,
-54,
20,
37,
0,
33,
-55,
-15,
-8,
22,
-53,
54,
-18,
34,
20,
-43,
-34,
-30,
1,
75,
15,
14,
-62,
45,
-17,
14,
9,
0,
3,
34,
-24,
11,
-6,
62,
89,
42,
54,
-45,
-45,
-4,
30,
5,
-4,
1,
-30,
34,
-65,
38,
5,
17,
-18,
-43,
-18,
-20,
-8,
-36,
-22,
-26,
-53,
-7,
-10,
-12,
54,
-71,
-20,
-51,
-20,
-19,
-19,
-15,
25,
2,
-60,
-22,
-36,
-2,
-35,
62,
-27,
47,
-78,
-35,
-10,
-6,
-3,
-26,
17,
-22,
4,
-25,
23,
23,
-14,
-4,
-54,
64,
-32,
17,
10,
-45,
-30,
-39,
2,
20,
-14,
6,
17,
20,
33,
-2,
-1,
37,
-16,
17,
1,
18,
-19,
-17,
23,
-9,
14,
34,
-39,
-7,
-10,
0,
-46,
-15,
-11,
-4,
6,
-12,
56,
-54,
-13,
-2,
-32,
-33,
-12,
10,
4,
0,
28,
1,
-24,
-14,
31,
-12,
38,
17,
-79,
-43,
2,
0,
32,
-6,
0,
74,
45,
-29,
24,
-69,
-42,
8,
-10,
-9,
20,
-80,
18,
-21,
26,
23,
31,
-8,
-42,
-10,
-10,
22,
7,
-28,
-39,
-27,
31,
-2,
-4,
5,
-5,
-63,
4,
-31,
58,
-15,
7,
-12,
18,
-38,
-47,
12,
83,
-47,
-37,
12,
-56,
-14,
6,
41,
53,
19,
-47,
-30,
40,
-8,
-24,
-30,
13,
-73,
-24,
8,
-5,
32,
34,
-36,
40,
11,
41,
20,
-19,
47,
-34,
-22,
2,
33,
17,
12,
13,
50,
-12,
8,
-14,
-3,
27,
-14,
-4,
15,
-11,
3,
-4,
27,
24,
55,
17,
-7,
33,
-55,
-30,
0,
-8,
5,
14,
10,
-38,
-7,
-20,
53,
-37,
-23,
40,
8,
16,
3,
56,
14,
-10,
-10,
-51,
-4,
19,
-8,
1,
17,
-39,
51,
-31,
-80,
-6,
-43,
20,
-42,
25,
5,
16,
-20,
-17,
15,
6,
28,
-36,
38,
21,
15,
-16,
-29,
0,
-21,
-48,
30,
-8,
31,
1,
-30,
-9,
-47,
6,
-1,
-31,
-53,
37,
-28,
31,
19,
48,
8,
52,
-15,
-2,
-1,
41,
-31,
-30,
0,
28,
-44,
-6,
40,
13,
-43,
-33,
-18,
-38,
-16,
-14,
-54,
50,
-1,
1,
-3,
32,
-9,
10,
-13,
-26,
-11,
34,
-4,
32,
49,
40,
-13,
-2,
-3,
-11,
-7,
-31,
-20,
1,
-16,
-5,
-39,
-25,
-2,
-23,
-7,
6,
20,
0,
-38,
48,
13,
-3,
-8,
33,
38,
17,
-8,
-5,
11,
-20,
26,
32,
3,
74,
-28,
14,
19,
-48,
22,
-35,
65,
-1,
21,
39,
40,
-4,
-31,
6,
-33,
-9,
32,
-15,
47,
36,
-6,
32,
30,
3,
6,
25,
20,
-12,
-25,
56,
-54,
-20,
-83,
-49,
-11,
29,
23,
-39,
36,
-6,
9,
-28,
14,
-27,
-51,
1,
42,
24,
25,
0,
5,
-19,
18,
-16,
-4,
33,
52,
0,
-1,
15,
-36,
9,
45,
-12,
15,
-4,
50,
-51,
2,
-28,
-29,
-33,
27,
37,
16,
-26,
68,
71,
-5,
-43,
-13,
49,
17,
17,
15,
-4,
-47,
16,
-27,
15,
-38,
18,
-20,
-68,
0,
8,
-40,
-54,
12,
16,
-7,
-6,
2,
-58,
-12,
-8,
-36,
29,
18,
-14,
36,
-56,
45,
-9,
-23,
-19,
-22,
-11,
-22,
-33,
-17,
-62,
-26,
-5,
-10,
-2,
-67,
-28,
9,
-46,
-18,
33,
32,
22,
2,
25,
-12,
36,
-1,
12,
-13,
-64,
-21,
12,
53,
68,
-64,
1,
-51,
9,
48,
-18,
16,
19,
6,
14,
-14,
-16,
18,
5,
7,
35,
15,
34,
20,
14,
0,
56,
12,
-57,
8,
-4,
-21,
40,
26,
-20,
-3,
-46,
3,
-2,
-1,
11,
-11,
-38,
-1,
0,
15,
0,
-43,
-13,
-19,
0,
-22,
11,
2,
-31,
1,
16,
5,
-7,
24,
0,
21,
-55,
-9,
-9,
50,
-46,
7,
17,
-27,
-12,
36,
1,
-21,
6,
2,
-10,
54,
15,
45,
56,
-5,
54,
4,
-7,
-4,
-16,
11,
4,
-8,
42,
-13,
-14,
-14,
82,
29,
-4,
27,
-13,
-32,
-22,
34,
-5,
1,
-11,
47,
-38,
-14,
0,
-26,
34,
31,
3,
-30,
6,
33,
20,
-25,
0,
-31,
0,
7,
5,
-12,
22,
10,
-2,
7,
-33,
3,
10,
18,
12,
11,
30,
18,
-32,
-43,
21,
-98,
32,
3,
-13,
41,
-65,
-74,
15,
21,
-6,
10,
-26,
21,
25,
23,
24,
44,
-32,
-4,
-59,
-42,
14,
-14,
-13,
-19,
-12,
-12,
26,
-54,
-43,
21,
1,
-6,
-46,
5,
0,
-3,
-7,
-9,
-9,
0,
-20,
17,
-12,
17,
-32,
7,
-44,
-13,
18,
65,
-6,
10,
7,
17,
50,
42,
29,
-53,
19,
-16,
26,
36,
23,
43,
-8,
-16,
31,
-10,
-23,
29,
14,
-21,
-7,
39,
-20,
33,
-55,
28,
-56,
-45,
-13,
27,
36,
36,
-43,
1,
41,
15,
-44,
5,
33,
3,
-23,
-59,
-3,
22,
-46,
3,
39,
19,
-47,
-27,
21,
31,
-3,
15,
-16,
4,
-2,
39,
-8,
-28,
-13,
-18,
-16,
5,
24,
33,
-7,
-28,
-39,
14,
7,
30,
-18,
25,
35,
-9,
16,
44,
-36,
26,
52,
56,
-38,
3,
-10,
17,
-12,
-45,
-14,
-2,
31,
9,
-16,
-53,
-4,
-2,
36,
-3,
-2,
-1,
-20,
-14,
12,
14,
14,
-5,
9,
-25,
-4,
10,
-12,
60,
21,
-28,
0,
-3,
3,
23,
40,
11,
54,
-15,
37,
10,
-22,
-8,
-48,
-26,
34,
15,
-30,
28,
44,
-8,
14,
-12,
-25,
0,
-55,
-12,
-39,
-6,
-4,
-39,
-4,
-41,
23,
34,
-39,
47,
13,
-63,
-2,
38,
-9,
3,
40,
-59,
0,
-16,
-2,
24,
23,
-48,
37,
20,
15,
21,
-26,
-55,
-15,
-15,
-9,
8,
1,
-30,
-45,
19,
5,
15,
16,
-44,
5,
33,
-9,
-8,
-11,
7,
-21,
72,
14,
-21,
0,
2,
34,
-5,
26,
12,
15,
27,
-7,
-45,
5,
-26,
-22,
-1,
-4,
-31,
1,
0,
9,
-13,
0,
14,
-19,
32,
-17,
-6,
-51,
11,
37,
55,
-35,
-55,
-2,
54,
17,
-70,
18,
-16,
-10,
-4,
-7,
26,
6,
-8,
39
] |
Montgomery, J.
This is a petition to set aside a sale of lands for taxes under a decree rendered by the circuit court for the county of Macomb, in chancery. The petition was presented to the court in which the decree was rendered, and the relief prayed was granted. The grounds upon which the relief was afforded were two:
1. That the treasurer failed to resort to personal property on the premises for the collection of the tax.
2. That the warrant for the collection of taxes was returned to the county treasurer on February 26th, instead of March 1st.
The statute (section 42, Act No. 206, Pub. Acts 1893) reads:
“The supervisor shall thereupon prepare a copy of the said assessment roll, with the taxes assessed as herein-before provided, and annex thereto a warrant signed by him, commanding the township or city treasurer to collect the several sums mentioned in the last column of such roll, and to retain in his hands the amount receivable by law into the township treasury for the purposes therein specified, and to account for and pay over to the county treasurer the amounts therein specified for State and county purposes, on or before the first day.of March next following.”
And section 55 is as follows:
“If the township treasurer or other collecting officer shall be unable to collect any of the taxes on his roll, assessed on real property, he shall make a statement of the same, with a full and perfect description of such property as assessed upon said roll, with the several taxes assessed upon each parcel thereof, which statement shall be verified by the affidavit of such treasurer or collector that such taxes remain unpaid, and that he has not, upon diligent inquiry, been able to discover any goods or chattels liable to pay such sums, whereupon he could levy the same.”
It is contended by the petitioners that return at the proper date is jurisdictional, and that the return in this case was premature, and hence all subsequent proceedings are invalid. Under the former tax law a premature return was held to deprive the owner of a valuable right, and to render a sale void. Bailey v. Haywood, 70 Mich. 188. See, also, Millard v. Hayward, 107 Mich. 219. The petitioners contend that the case of Thatcher v. Powell, 6 Wheat. 119, is in principle like this. On the other hand, the reasoning of the contestants is (1) that the statute makes the tax a lien upon the land from December 1st; (2) that the jurisdiction of the court to enforce this lien is obtained on publication of notice; and (3) that any intervening irregularity is not material, — -citing Auditor General v. Sparrow, 116 Mich. 574. The case of Thatcher v. Powell, supra, involved the construction of a very different statute from ours. The return of the sheriff to the court was the basis of jurisdiction. It was held that the absence of the report defeated the jurisdiction. Under our statute, however, the petition of the auditor general, together with proof of proper publication, confers jurisdiction upon the court, and the failure of the collector to make a timely x-eturn does not affect the jurisdiction or avoid the lien. In Auditor General v. Sparrow, supra, referring to the force and effect of our statute, Mr. Justice Hooker said:
‘ ‘ The law proceeds upon the theory of the existence of a claim upon behalf of the State against the property owner for taxes which have not been paid, and cites him into court to answer a bill to enforce this claim against the property taxed. It is not a sufficient answer for him to show that the treasurer would have been a tx-espasser had he seized personal property, or that he had not demanded payment, or that it might have been collected had he been diligent or brought an action, — all of which, perhaps, are permitted, and possibly directed, by the law. If all of these things should be proved, the fact would remain that the tax was still due and unpaid.”
In a supplemexxtal brief the petitioners’ counsel state that the sale had not been confirmed when the petition was filed, and that it does not appear by the record that it has ever been confirmed. It is apparent that what is meant by the petitioners’ counsel is that no formal order confirming the sale has been entered; but section 70 of the tax law provides that:
“Alisales shall stand confirmed, subject to the right of redemption provided for in section seventy-four, unless objections thereto are filed within eight days after the time limited for filing such report, without the entry of an order or further notice. ”
We find no jurisdictional irregularity, and feel compelled to reverse the order below, and dismiss the petition, with costs.
Grant, C. J., Moore and Long, JJ., concurred. Hooker, J., did not sit. | [
3,
11,
9,
21,
-50,
49,
29,
4,
-5,
40,
15,
-19,
-25,
40,
-11,
-13,
4,
-30,
-22,
48,
-28,
-31,
-1,
-17,
8,
37,
29,
15,
-30,
2,
-40,
6,
-42,
37,
47,
-30,
24,
-51,
38,
20,
-60,
22,
-34,
-22,
-23,
-35,
-19,
-26,
33,
-3,
5,
-13,
-46,
-33,
-5,
36,
-36,
-72,
-6,
-39,
-4,
3,
-10,
9,
1,
1,
-32,
-33,
29,
-61,
8,
1,
-1,
-20,
49,
22,
-3,
1,
-39,
75,
12,
-37,
-20,
-37,
-12,
-82,
-3,
-17,
46,
-20,
17,
-17,
-24,
9,
31,
15,
38,
-9,
17,
24,
-29,
21,
-40,
10,
13,
-35,
-1,
-19,
-18,
-51,
16,
-46,
21,
-36,
-14,
-14,
-39,
-9,
24,
-21,
31,
-21,
26,
-16,
15,
13,
0,
-1,
-21,
35,
54,
44,
-31,
-29,
-8,
-6,
-5,
-6,
-4,
8,
-11,
24,
-14,
-31,
33,
-50,
59,
-33,
1,
-7,
-36,
3,
-3,
10,
-10,
-3,
-2,
-26,
24,
0,
-9,
25,
-38,
-35,
-24,
3,
-13,
-9,
-11,
15,
27,
9,
-25,
28,
8,
-13,
-22,
30,
14,
10,
4,
-22,
27,
-17,
18,
-10,
-28,
1,
51,
-28,
5,
4,
-8,
-36,
4,
15,
3,
-7,
-44,
-3,
0,
-53,
-5,
7,
-29,
-20,
72,
-48,
-54,
-13,
-36,
-31,
-18,
-6,
-22,
-6,
33,
5,
14,
2,
54,
21,
16,
8,
14,
35,
-28,
19,
-7,
26,
7,
10,
46,
-17,
-21,
-47,
-23,
12,
16,
0,
-38,
-23,
-4,
-22,
-15,
31,
-13,
-8,
32,
22,
-3,
2,
-57,
-36,
-9,
-20,
5,
13,
-3,
-31,
-5,
52,
-22,
-20,
-60,
1,
49,
18,
-8,
0,
4,
66,
34,
47,
6,
-5,
14,
-17,
1,
8,
-18,
-43,
-4,
10,
-26,
47,
-40,
-4,
10,
6,
-19,
-17,
0,
49,
-53,
10,
2,
-39,
24,
24,
-3,
56,
45,
-20,
47,
3,
-6,
12,
45,
31,
37,
20,
-29,
23,
10,
0,
9,
-38,
22,
39,
24,
-32,
0,
35,
23,
30,
39,
-31,
-20,
41,
9,
-4,
-33,
-15,
39,
18,
25,
-91,
-44,
-24,
9,
5,
52,
15,
33,
37,
-45,
-5,
-32,
43,
-10,
15,
-19,
78,
30,
8,
1,
-12,
-36,
9,
30,
54,
-11,
1,
5,
-33,
-48,
-46,
17,
29,
9,
8,
17,
-7,
-44,
12,
-36,
-12,
-32,
24,
9,
-10,
-23,
16,
40,
-55,
3,
-13,
32,
-2,
14,
16,
52,
8,
-16,
-18,
25,
-48,
-51,
18,
-63,
23,
-3,
39,
-6,
-25,
-12,
43,
-11,
35,
-10,
11,
39,
-10,
0,
3,
20,
35,
11,
-28,
39,
1,
0,
-33,
-13,
-35,
0,
0,
-15,
38,
-23,
-19,
24,
-15,
15,
13,
-9,
-29,
3,
-30,
10,
2,
-1,
-18,
-42,
14,
-40,
-9,
-10,
16,
19,
-43,
2,
-23,
-13,
24,
44,
-35,
-10,
-68,
31,
-1,
-14,
9,
-1,
-18,
-29,
0,
39,
-9,
-22,
29,
-29,
-55,
-57,
19,
21,
-3,
18,
-17,
-16,
-40,
-25,
23,
-43,
-26,
1,
23,
-27,
10,
40,
-34,
-23,
51,
15,
-11,
-37,
-21,
71,
45,
40,
27,
10,
26,
19,
3,
-30,
-16,
-13,
-22,
-10,
7,
0,
29,
7,
47,
6,
-15,
60,
45,
-36,
-45,
-93,
-12,
40,
24,
-13,
38,
13,
29,
-14,
-19,
4,
11,
-7,
10,
-5,
19,
-3,
16,
14,
38,
42,
65,
-4,
61,
9,
-47,
-25,
-21,
-31,
-43,
-9,
14,
-43,
28,
-28,
-22,
16,
-42,
1,
-17,
40,
-7,
14,
-36,
14,
-29,
-49,
11,
11,
-71,
59,
-22,
26,
19,
4,
-77,
52,
9,
29,
6,
0,
-69,
103,
16,
-14,
23,
16,
-35,
36,
-36,
-1,
42,
-14,
32,
-22,
30,
26,
-3,
15,
-13,
-30,
-31,
17,
-1,
-26,
-5,
-44,
15,
4,
-8,
44,
-8,
-55,
32,
-20,
-16,
-28,
15,
25,
20,
9,
37,
-2,
-13,
40,
-15,
-12,
5,
3,
-31,
-5,
20,
-55,
-15,
-2,
-16,
-15,
-15,
-26,
-18,
-29,
-40,
-19,
-27,
-65,
-32,
-8,
-16,
6,
-2,
-6,
42,
-6,
-16,
31,
-51,
94,
-25,
35,
-9,
32,
35,
41,
8,
14,
18,
45,
45,
11,
-8,
-22,
-26,
-6,
-42,
18,
73,
9,
11,
-17,
27,
-2,
49,
14,
-1,
-44,
34,
-19,
-24,
0,
1,
52,
12,
-67,
-17,
7,
67,
45,
17,
9,
30,
0,
25,
-55,
29,
-14,
16,
2,
-31,
-58,
37,
3,
-2,
0,
42,
16,
26,
25,
2,
-23,
-88,
5,
-42,
26,
16,
25,
-48,
-39,
-7,
-6,
31,
-21,
-15,
1,
24,
24,
58,
-8,
20,
8,
-28,
-28,
-15,
24,
19,
6,
15,
-17,
29,
26,
-3,
4,
48,
-21,
-6,
-44,
17,
-10,
36,
-12,
13,
20,
11,
38,
7,
-19,
3,
28,
-5,
28,
5,
-16,
-51,
28,
20,
-69,
-28,
33,
-41,
14,
12,
-23,
-16,
-29,
-51,
-15,
-39,
-22,
13,
0,
-58,
-21,
-56,
-9,
18,
34,
-10,
-12,
-25,
18,
31,
-9,
-17,
24,
28,
-29,
18,
-35,
12,
-6,
34,
-19,
-35,
-14,
-2,
11,
58,
12,
-9,
-4,
25,
-39,
-17,
-17,
47,
21,
27,
17,
22,
20,
3,
-50,
3,
16,
-51,
5,
-39,
-7,
-6,
-7,
-86,
10,
-43,
-27,
-3,
-44,
37,
-28,
20,
-59,
4,
12,
33,
-30,
4,
37,
-34,
23,
12,
12,
37,
0,
-6,
0,
10,
2,
4,
30,
37,
0,
-12,
-53,
19,
16,
36,
20,
-22,
-21,
-25,
-12,
-20,
11,
-63,
-33,
-14,
3,
-57,
3,
29,
6,
17,
-10,
46,
19,
3,
-18,
-27,
1,
2,
6,
-14,
28,
-33,
6,
-27,
49,
-7,
22,
81,
-6,
-33,
-22,
-45,
-21,
-26,
-23,
-93,
-3,
22,
55,
36,
-23,
9,
-30,
5,
11,
16,
-4,
31,
17,
-24,
-21,
47,
52,
-17,
20,
-36,
41,
11,
11,
-33,
-45,
-14,
2,
22,
-9,
14,
41,
-27,
12,
-11,
119,
47,
10,
-5,
-17,
-69,
0,
17,
-29,
8,
36,
17,
27,
35,
21,
-24,
3,
27,
-33,
-8,
-17,
-9,
29,
17,
44,
-16,
-16,
16,
18,
-50,
-12,
-29,
-16,
-11,
36,
-39,
-37,
0,
27,
34,
61,
-37,
-39,
21,
-14,
-45,
27,
-23,
57,
-9,
31,
-23,
28,
-55,
68,
25,
10,
18,
-12,
34,
24,
-3,
-25,
0,
-22,
7,
11,
-4,
25,
-15,
-73,
59
] |
Hooker, J.
We are asked to issue a writ of mandamus to compel two adjoining counties to rebuild a bridge across a navigable stream which is the boundary line between them. This is upon the grounds — First, that it is a common-law duty; and, second, that the counties are under contract obligations with the State to do so. Whatever we may think of these two grounds as furnishing a sufficient reason for such relief as is here asked, in ordinary cases, we are of the opinion that the legislature has authorized the building of a bridge, to take the place of the former one, upon a different site, thereby authorizing the counties to allow the highway in question to remain without a bridge at the former site. See Act No. 458, Local Acts 1897. Since this act was passed, the boards of supervisors have been unable to agree. The Antrim county board has at all times been willing to aid in building a bridge, but upon a different site. The Kalkaska board, by its answer, admits its duty, and expresses its willingness, to join in the construction of a bridge, but only upon the old site. The relator, moving at the instance of some of the inhabitants of the vicinity, seeks to compel the erection of the bridge upon the former site. There is no more reason for our compelling Antrim county to join in building a bridge at the old place than there would be to require Kalkaska to consent to the new. It is not for us to fix a site for this bridge. The power is expressly conferred upon the two boards, and not upon us. We have no doubt that, when the necessity for a bridge becomes sufficiently urgent, the inhabitants of the vicinity will find a way to induce the boards of supervisors to take action in the premises.
The writ is denied.
The other Justices concurred. | [
15,
14,
7,
32,
-19,
47,
-2,
11,
-35,
43,
-8,
-38,
8,
-2,
14,
-37,
-24,
-6,
2,
65,
-34,
-11,
25,
-7,
-17,
25,
28,
10,
-54,
43,
-38,
6,
-59,
52,
10,
-50,
15,
37,
46,
5,
-50,
-15,
-39,
-34,
8,
-1,
-16,
-35,
-23,
6,
-47,
11,
-15,
16,
1,
47,
17,
-33,
-32,
-6,
-39,
-30,
-3,
26,
-15,
-3,
-36,
5,
55,
-56,
-21,
8,
-13,
-64,
57,
48,
36,
-14,
19,
49,
-23,
49,
12,
18,
8,
27,
-40,
-9,
26,
28,
-21,
-83,
-43,
9,
16,
54,
-41,
-29,
16,
-11,
59,
17,
24,
17,
23,
-1,
-32,
-17,
39,
-30,
-24,
-1,
10,
-29,
27,
-48,
-26,
4,
-16,
-13,
-2,
55,
17,
-13,
-59,
-34,
40,
-28,
-19,
19,
-23,
-28,
43,
55,
2,
-1,
-28,
6,
51,
0,
-24,
51,
-2,
-12,
1,
-21,
29,
-34,
-50,
-8,
18,
20,
-6,
-46,
21,
29,
16,
-31,
13,
19,
-5,
50,
5,
-13,
-63,
-11,
-9,
6,
-28,
80,
34,
40,
-32,
41,
25,
-33,
15,
36,
-27,
9,
2,
47,
21,
21,
-6,
8,
-5,
16,
32,
-11,
-9,
-14,
28,
-22,
1,
43,
-26,
-8,
-8,
13,
-1,
20,
8,
-12,
-46,
-11,
-18,
2,
-41,
26,
-2,
57,
-56,
25,
-59,
66,
11,
0,
14,
-39,
9,
12,
46,
-47,
-58,
-10,
0,
40,
-1,
-19,
34,
35,
-9,
22,
2,
9,
13,
-11,
10,
-13,
-25,
34,
-53,
3,
19,
-4,
-11,
-54,
-2,
2,
-1,
-32,
-17,
0,
-11,
21,
10,
20,
-41,
-40,
16,
24,
-3,
-41,
-47,
-1,
-10,
19,
-42,
11,
4,
50,
47,
-3,
-98,
14,
40,
-8,
-36,
-22,
25,
-6,
-23,
-4,
0,
55,
-25,
5,
44,
32,
4,
3,
-11,
43,
-26,
10,
10,
-54,
-9,
-42,
-6,
-32,
5,
7,
27,
-19,
-51,
-3,
53,
3,
-2,
0,
-34,
17,
-24,
12,
31,
19,
-27,
-18,
-32,
15,
22,
-3,
23,
22,
40,
-18,
-19,
19,
9,
16,
-23,
40,
36,
-5,
9,
7,
-35,
11,
50,
16,
20,
-57,
-36,
-29,
-20,
-1,
-10,
-5,
17,
29,
-2,
45,
-50,
-1,
-32,
29,
-13,
-9,
16,
-6,
-40,
11,
28,
-16,
22,
27,
-10,
19,
29,
-16,
23,
20,
25,
9,
12,
55,
-21,
0,
17,
43,
31,
-10,
27,
34,
-7,
-29,
-56,
-27,
15,
-31,
-38,
12,
16,
-32,
17,
-31,
27,
-36,
-23,
-15,
46,
65,
-29,
40,
-31,
51,
-13,
22,
-28,
-44,
20,
23,
-9,
24,
10,
29,
-32,
-3,
16,
-23,
47,
-35,
2,
-58,
2,
36,
-50,
-14,
-59,
-11,
25,
12,
-41,
4,
-7,
-7,
6,
-63,
-58,
-22,
33,
-51,
-67,
-12,
17,
23,
-30,
-42,
-14,
53,
-50,
17,
-10,
14,
0,
-1,
15,
-14,
-21,
17,
-15,
-5,
38,
-10,
-74,
0,
35,
-24,
-28,
55,
3,
15,
2,
-9,
72,
46,
39,
-10,
58,
-25,
-66,
37,
19,
-46,
9,
48,
7,
-30,
78,
-13,
-6,
-3,
3,
-25,
3,
-19,
8,
41,
43,
33,
-17,
-32,
-41,
-18,
-25,
46,
33,
38,
-54,
-61,
71,
19,
-27,
28,
7,
8,
-9,
12,
12,
-6,
-47,
-59,
3,
2,
-22,
2,
-10,
-17,
16,
-15,
-1,
26,
-25,
31,
-25,
8,
-8,
-11,
0,
-7,
29,
10,
-4,
6,
-41,
-21,
-17,
-8,
-60,
-11,
-10,
-14,
7,
1,
-30,
-19,
-22,
20,
-34,
-28,
26,
-22,
12,
44,
-33,
2,
8,
-65,
49,
7,
-13,
43,
28,
-23,
-23,
-40,
-9,
63,
-15,
-20,
-81,
-7,
-14,
-29,
-1,
-13,
-30,
-21,
-56,
20,
-38,
-23,
-24,
-12,
23,
58,
-23,
49,
-10,
-3,
2,
47,
50,
21,
-1,
15,
33,
58,
-20,
-10,
-13,
32,
-2,
-10,
15,
-5,
-8,
-9,
50,
39,
5,
-54,
-45,
-18,
70,
19,
9,
-20,
-42,
17,
-30,
5,
38,
-37,
13,
23,
12,
63,
-15,
-22,
-76,
-16,
10,
-50,
32,
71,
-39,
35,
-12,
10,
3,
-3,
11,
30,
-31,
43,
8,
-38,
55,
-59,
18,
-3,
-1,
-11,
-14,
61,
5,
-21,
-10,
-16,
28,
-19,
-27,
-56,
7,
10,
43,
-6,
54,
-3,
-26,
-32,
-14,
-24,
0,
1,
-56,
26,
12,
-9,
38,
15,
2,
1,
-44,
25,
-25,
13,
13,
8,
-17,
55,
-32,
-16,
11,
-29,
47,
20,
-63,
-4,
-10,
16,
24,
5,
-5,
-16,
-7,
16,
49,
-51,
-60,
-6,
-3,
1,
-6,
-102,
-9,
33,
8,
-4,
-16,
-15,
-19,
-15,
-28,
14,
42,
-32,
3,
-41,
-20,
-8,
-16,
3,
22,
-17,
-36,
-8,
15,
-42,
-6,
-12,
-58,
-6,
-22,
20,
-1,
8,
17,
-46,
-9,
-6,
28,
-46,
-31,
-24,
9,
19,
15,
-15,
-9,
-17,
-11,
-10,
-51,
31,
5,
-12,
-36,
-61,
-27,
0,
-9,
-39,
-17,
-43,
-4,
20,
6,
43,
33,
34,
-9,
-5,
32,
5,
-12,
3,
-1,
62,
-37,
24,
-4,
-7,
-44,
-12,
12,
18,
15,
-17,
-15,
15,
4,
-54,
-10,
13,
-25,
0,
5,
10,
-14,
-2,
55,
-21,
48,
28,
-2,
13,
53,
20,
-80,
-2,
16,
-20,
-39,
8,
3,
-26,
-52,
-17,
14,
-41,
-2,
-21,
-13,
26,
-56,
47,
-23,
8,
-49,
44,
48,
33,
-21,
1,
0,
8,
44,
15,
29,
-58,
-49,
-44,
6,
-13,
13,
7,
19,
-52,
21,
29,
-16,
0,
-28,
-66,
-4,
-29,
-31,
25,
-5,
9,
21,
-40,
24,
-17,
74,
63,
53,
10,
2,
36,
11,
10,
-32,
15,
-42,
29,
12,
31,
28,
40,
26,
-56,
20,
18,
33,
62,
-1,
-8,
7,
-32,
-32,
-46,
-46,
-35,
-10,
70,
56,
22,
-26,
0,
-54,
16,
-41,
38,
17,
31,
-52,
-12,
-12,
-9,
51,
6,
34,
-37,
13,
-41,
68,
-20,
-23,
-9,
2,
0,
1,
21,
-22,
0,
24,
-17,
17,
17,
47,
31,
-40,
17,
35,
54,
-6,
36,
31,
7,
-28,
-3,
-22,
-7,
-55,
22,
37,
53,
-3,
26,
-14,
37,
-8,
-12,
5,
-48,
14,
-9,
34,
31,
-37,
28,
0,
16,
-63,
18,
-13,
0,
5,
-11,
-20,
25,
-42,
-35,
-23,
6,
61,
-16,
-10,
33,
17,
20,
39,
39,
13,
-39,
-16,
63,
45,
8,
57,
41,
7,
0,
24,
12,
57,
-42,
-41,
-14
] |
Montgomery, J.
This is an action for verbal slander. The circuit judge, at the close of the plaintiff’s case, directed a verdict for the defendant, and plaintiff brings error. The plaintiff and defendant were trustees of the Methodist Episcopal Church of Albion. A quarterly conference was called for the purpose of electing trustees for the ensuing year. The defendant was an official member of such conference, and entitled to a vote. The trustees were, in accordance with the church discipline, nominated by the pastor.. Among the names proposed was that of the plaintiff. The defendant thereupon moved that the name of F. W. Freese be substituted for that of plaintiff. A member of the board arose, and asked defendant for his reason for making the motion. The testimony is not entirely agreed as to what defendant said in response to the inquiry, but the disagreement is not, perhaps, substantial. If it were, the statement bearing most strongly against the plaintiff must be assumed to have been made. This is that the plaintiff was dishonest; that he was untruthful in his business dealings; that he was not only dishonest in his business, but that also in the church he failed to live up to the vows he took when he joined; that this was common talk; that he (defendant) frequently heard it on the street. Defendant also stated that he was sorry Howard was not there; that he would prefer to say whatever he .said in the presence of Mr. Howard. He also said his personal relations with Mr. Howard had always been pleasant. Another witness testified that defendant, on a previous occasion, had referred to a charge that plaintiff had not kept his word in regard to the purchase of the college farm; that he had refused to carry out a verbal contract for the purchase of the farm.
The plaintiff was called as a witness in his own behalf, and testified that he had not been guilty of dishonesty and deceit in his business dealings. The circuit judge was of the opinion that the occasion was privileged, that there was no proof of express malice, and that, therefore, the plaintiff was not entitled to recover, The ruling is challenged on both grounds. It is urged that the occasion was not privileged, for the reason that, if the defendant believed that the plaintiff was wanting in integrity, or that he failed to live up to his vows as a member of the church, it was defendant’s duty to take steps to expel plaintiff from the church, rather than to attempt to prevent his election to an office in the church. We cannot assent to his view. The defendant was called on to vote for or against the plaintiff, and it was certainly his duty, or at least his privilege, to make known, in response to an inquiry from another member of the conference, any facts within his knowledge which bore upon the question of plaintiff’s fitness for the place; and if this was done without malice, and in good faith, we have no doubt it was' privileged. O’Donaghue v. M’Govern, 23 Wend. 26; Dial v. Holter, 6 Ohio St. 228; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rep. 698); Kirkpatrick v. Eagle Lodge, 26 Kan. 384 (40 Am. Rep. 316); Howard v. Thompson, 1 Am. Lead. Cas. 167, note.
The question whether there is any evidence justifying an inference of malice is more difficult of determination. The rule is well settled that, when it appears that the occasion is privileged, the plaintiff has the burden of proving actual malice. The rule is stated in a note to Howard v. Thompson, 1 Am. Lead. Cas. 167:
“The showing of a privileged occasion prima facie removes the quality of malice, and puts upon the plaintiff a necessity of showing express or actual malice; and, if this be proved, the defense entirely fails. And this express proof of malice appears to consist in all cases in showing mala fides in the defendant, — that is, that the occasion was made use of colorably, as a pretext for wantonly injuring the plaintiff; and this express malice, being matter of fact and motive, is, upon sufficient evidence, a question for. the jury. The fact that the words were consistent with malice is not enough; they must be inconsistent with bona fides.”
We have held that malice may be inferred from circumstances under which the publication takes place in some cases, as that the slander was uttered in the presence of third persons, when no necessity existed for so public an accusation. Garn v. Lockard, 108 Mich. 196. So, too, if it be shown that the alleged slanderous statement was known to be untrue, this is sufficient proof of malice. Harrison v. Howe, 109 Mich. 476. But in this case there is no evidence of actual malice unless it be held that the. evidence tending to shovv that the charges made were ill founded is sufficient for that purpose. There was noth ing in the manner of the defendant on the occasion in question to indicate ill will towards the plaintiff; on the contrary, the evidence negatives this. No previous utterances of defendant tend to show malice. True, it appeared that the defendant had previously notified the pastor that he should oppose the re-election of the plaintiff as a member of the board of trustees, but this does not tend to show malice. If he had the right to oppose plaintiff’s re-election, he had the right to give notice of his intended action. The case, then, must turn upon the question whether malice was made out by proof that the charges made were not true in fact, without additional evidence that they were known by the defendant to be untrue. If the privilege is to prove of actual value to the defendant, it would seem that it is quite unsafe to say that evidence that the statements made are untrue in fact establishes malice. ■ The truth of the words may always constitute a defense. To remove privilege by evidence of the untruth of the words spoken would therefore leave one acting under a qualified privilege in practically no better attitude than one who .can plead no such privilege. This question was before the court of queen’s bench in Fountain v. Boodle, 3 Q. B. 5. It was said by Patteson, J., “Falsehood in fact is no proof of malice, unless the proof involves knowledge of the truth.” In Somerville v. Hawkins, 10 C. B. 583, it was said that the supposition that defendant believed the charge is always to be made when the question is whether a communication is privileged or not. In Harris v. Thompson, 13 C. B. 333, it was said by Williams, J., citing Fountain v. Boodle: “The mere circumstance of the statement being false will not suffice to show malice, unless there is some evidence to show that the defendant knew it to be false.”
The direction of the learned circuit judge was right. The judgment will be affirmed.
The other Justices concurred. | [
-12,
-71,
20,
21,
-12,
2,
51,
-34,
-9,
-37,
42,
-6,
64,
14,
-26,
-58,
9,
-31,
-13,
-56,
55,
-45,
6,
0,
25,
-26,
4,
21,
0,
7,
0,
28,
-24,
4,
-38,
-62,
23,
-18,
23,
-13,
-7,
-15,
12,
-3,
3,
24,
-12,
-28,
4,
12,
43,
-23,
-4,
19,
3,
-55,
-1,
19,
-18,
-61,
-14,
28,
-8,
-63,
27,
-11,
-8,
8,
-19,
-36,
-27,
-2,
-6,
-41,
-14,
-84,
15,
0,
-4,
-10,
-7,
1,
40,
-10,
-13,
-14,
51,
-2,
-3,
-16,
-15,
0,
-42,
-23,
2,
-7,
24,
27,
44,
9,
-21,
-26,
-27,
19,
-42,
33,
16,
0,
8,
-2,
40,
9,
31,
-50,
-5,
-42,
-14,
-16,
-10,
13,
18,
-18,
-20,
28,
0,
36,
31,
6,
-29,
13,
31,
12,
-12,
3,
2,
-30,
0,
11,
-23,
-26,
28,
0,
5,
5,
-16,
21,
-34,
40,
-9,
-34,
-12,
19,
12,
44,
63,
-6,
17,
-61,
-3,
21,
36,
46,
-42,
12,
-18,
-42,
14,
-3,
19,
-7,
-9,
55,
-18,
-20,
-68,
26,
-21,
5,
-9,
-14,
0,
42,
-7,
23,
1,
9,
48,
-8,
-27,
-3,
-25,
-11,
10,
20,
12,
35,
-41,
-5,
-20,
-26,
-18,
21,
5,
27,
-33,
-4,
44,
-36,
-1,
60,
-14,
29,
6,
-17,
34,
-12,
37,
-36,
-20,
3,
0,
54,
-31,
36,
-64,
-87,
5,
18,
-37,
-22,
-24,
-39,
0,
9,
0,
-4,
37,
48,
6,
-9,
-40,
0,
40,
8,
-22,
-20,
-10,
32,
-8,
28,
-17,
7,
34,
37,
-22,
-23,
-37,
5,
-50,
-25,
25,
11,
-29,
46,
2,
-57,
-21,
8,
10,
-2,
6,
-30,
6,
16,
34,
-5,
-25,
-17,
-24,
-17,
22,
-3,
33,
-15,
-25,
22,
25,
48,
-8,
15,
5,
-5,
0,
-7,
35,
32,
-27,
-19,
-5,
-31,
18,
-31,
-21,
40,
-9,
4,
-17,
-47,
23,
-10,
-11,
-29,
-6,
-25,
-1,
20,
-11,
31,
-27,
-97,
-1,
-40,
8,
-26,
-9,
-19,
49,
-32,
-4,
27,
8,
15,
0,
-8,
17,
-11,
-3,
-25,
12,
-18,
47,
14,
-9,
7,
0,
17,
-16,
-2,
-12,
-18,
-6,
-24,
-42,
-3,
22,
-9,
31,
-31,
17,
21,
0,
0,
-9,
-54,
75,
17,
-35,
2,
-3,
0,
-2,
-29,
-29,
22,
-24,
-39,
44,
-40,
-5,
68,
-50,
-4,
25,
-8,
22,
-30,
-69,
-1,
-74,
48,
-59,
37,
-21,
51,
-25,
4,
3,
6,
-14,
5,
16,
25,
-27,
-38,
-35,
48,
-10,
-42,
-27,
21,
9,
26,
40,
14,
38,
-28,
26,
15,
96,
54,
8,
22,
45,
-12,
5,
13,
8,
31,
-14,
-46,
-12,
0,
11,
-7,
37,
-14,
-20,
7,
-19,
19,
14,
34,
-45,
-23,
4,
8,
28,
-2,
19,
-6,
30,
-5,
-13,
-24,
-27,
11,
6,
5,
43,
-41,
19,
-23,
-17,
-10,
4,
7,
-14,
-6,
-24,
37,
32,
37,
2,
36,
-33,
-3,
-12,
-12,
-13,
-17,
26,
6,
-1,
-12,
-37,
12,
-31,
-23,
5,
-21,
8,
25,
16,
11,
-1,
16,
0,
-14,
-62,
50,
11,
44,
-1,
-49,
11,
-18,
22,
-34,
16,
29,
-4,
4,
61,
28,
26,
-15,
2,
35,
-22,
8,
68,
-6,
2,
-43,
21,
-2,
24,
57,
-3,
-47,
16,
37,
-2,
-47,
31,
26,
15,
-34,
15,
-33,
-30,
32,
9,
8,
2,
-6,
-6,
-12,
41,
28,
-17,
-6,
26,
-42,
15,
46,
-2,
-18,
16,
1,
5,
8,
33,
-21,
-5,
4,
9,
-50,
28,
8,
31,
-10,
14,
21,
-20,
-3,
-7,
9,
27,
-25,
-10,
-34,
0,
-36,
-19,
34,
22,
11,
-25,
-19,
-51,
19,
-20,
-14,
39,
-47,
14,
9,
38,
7,
20,
-23,
-47,
17,
-4,
-9,
18,
26,
-20,
16,
1,
-9,
10,
23,
-10,
32,
-36,
0,
-28,
26,
-16,
16,
38,
-45,
67,
10,
43,
-7,
17,
-39,
-16,
-25,
-31,
15,
8,
-33,
-57,
-10,
-41,
17,
19,
19,
-31,
12,
23,
2,
9,
35,
6,
3,
4,
14,
45,
8,
8,
-34,
53,
4,
10,
-20,
39,
0,
-11,
50,
42,
11,
27,
41,
5,
46,
54,
-42,
26,
51,
33,
-8,
11,
-15,
15,
4,
13,
-22,
-6,
3,
-14,
-40,
-3,
-4,
-14,
-9,
16,
-29,
3,
-28,
30,
-6,
8,
12,
17,
10,
-4,
-34,
35,
3,
16,
-4,
10,
3,
-3,
-12,
1,
14,
-30,
23,
-28,
7,
14,
21,
-20,
32,
-11,
14,
-13,
-7,
37,
-10,
79,
20,
46,
-71,
18,
20,
7,
30,
-14,
14,
38,
-48,
-25,
-3,
-16,
14,
-72,
-18,
3,
19,
30,
5,
-12,
-21,
6,
7,
-33,
5,
-9,
-7,
4,
-14,
-6,
-16,
-5,
68,
11,
-75,
-24,
-21,
-2,
14,
7,
-7,
44,
-51,
18,
-28,
-24,
21,
14,
-8,
-72,
-25,
20,
-13,
-43,
16,
8,
-44,
49,
-17,
-3,
25,
-9,
-8,
-5,
-6,
-17,
-7,
-17,
21,
-12,
-24,
-37,
24,
0,
40,
-67,
1,
10,
-29,
-13,
35,
-13,
50,
-21,
-34,
-12,
-26,
-22,
-5,
-19,
-6,
-16,
-3,
6,
-16,
7,
-11,
22,
9,
-27,
16,
13,
-38,
4,
38,
-1,
-26,
14,
-4,
-24,
-54,
-23,
-34,
-22,
11,
23,
-18,
26,
-20,
-9,
19,
11,
26,
1,
-11,
-13,
-74,
14,
-25,
-8,
-12,
-49,
1,
-12,
-22,
5,
34,
13,
14,
-32,
-47,
0,
23,
-37,
-3,
-44,
-10,
28,
-38,
35,
39,
-16,
-1,
-32,
-5,
23,
9,
10,
-4,
-31,
12,
20,
-11,
42,
60,
-22,
-5,
-15,
-28,
-13,
-13,
3,
-10,
-20,
6,
-6,
-40,
19,
23,
40,
8,
-19,
-31,
-42,
13,
-34,
41,
24,
27,
18,
19,
34,
-27,
-6,
-18,
6,
12,
-12,
4,
-17,
20,
-14,
-19,
-19,
-41,
57,
-4,
-11,
-43,
14,
72,
13,
-7,
2,
-33,
-6,
-38,
-28,
16,
-9,
42,
-14,
47,
-6,
48,
-39,
6,
-15,
22,
-18,
1,
-13,
52,
-2,
-40,
21,
1,
4,
3,
-18,
0,
10,
-53,
-40,
-55,
0,
-14,
28,
37,
-28,
30,
-23,
-27,
-66,
14,
-20,
-29,
4,
-26,
11,
-35,
57,
46,
37,
-33,
15,
19,
-6,
-74,
-28,
-57,
19,
8,
18,
-34,
21,
15,
58,
47,
36,
-45,
9,
9,
43,
43,
37,
36,
-18,
-53,
60,
7,
-7,
16,
-16,
62
] |
Moore, J.
On February 12, 1898, the petitioner made a written application to the auditor general to purchase the land in question, and paid to the auditor general, with such application, the sum of $236.18. On March 11, 1898, the auditor general executed a deed to the petitioner, conveying the land in question for the taxes of 1894, and issued tax receipts for the taxes of 1895 and 1896. On July 28, 1898, the petitioner, in order to complete the purchase of said land, paid to the auditor general $72.10, the amount of taxes of 1897 assessed upon said land, for which tax' the auditor general issued a receipt to him for $71.62, and returned the balance of 48 cents. August 3, 1898, the petitioner made application for the cancellation of the deed and receipts issued to him, and for refunding thereon, and with such application paid to the auditor general the sum of $81.30, and asked that the refunding upon the deed and receipts, and the amount paid with the application of August 3d, be applied to the purchase of the land, and that a new deed issue therefor; which was refused by the auditor general, and mandamus is asked for to compel the cancellation of the- first deed and the issue of a new deed on the last application. The auditor general refused to issue this deed on the ground that, as the taxes of 1897 had not been returned to his office, they were not included within the terms of the tax law, and the purchaser was not obliged to pay them as a condition precedent to the issuing of the deed, and that such sale was valid; and, in fact, seeks to have the case of Hughes v. Jordan, 118 Mich. 27, overruled by this court.
The case of Hughes v. Jordan has been reargued. We have had the benefit of most excellent briefs by the attorney general and by a number of other able lawyers. We are all agreed that the decision in that case must stand. Under that decision, the deed issued to the petitioner was void, and should be so treated in this proceeding. The amount paid to the auditor general when this deed was issued, supplemented by the payment of $72.10, equaled the amount due the State and the amount of taxes which were then a lien upon the land. The petitioner asked the auditor general to apply these amounts as a payment for the land. If no intervening rights accrued between the dates of these payments, the request should be complied with, and the deed should be issued; and it is so ordered.
The other Justices concurred. | [
-26,
50,
-5,
16,
-36,
56,
32,
23,
25,
14,
6,
-21,
24,
20,
-7,
12,
-21,
-54,
-12,
6,
-18,
-21,
-58,
-45,
-7,
16,
-30,
0,
-25,
-6,
0,
-15,
-25,
24,
44,
-15,
-46,
21,
25,
-17,
-62,
29,
-32,
-4,
-16,
-7,
13,
-53,
32,
15,
-12,
-51,
42,
-15,
32,
6,
-27,
-18,
0,
-55,
-5,
18,
17,
22,
-1,
-12,
-3,
-26,
42,
-18,
-29,
13,
4,
-72,
47,
34,
-2,
-21,
-85,
-35,
-33,
-42,
31,
-27,
20,
2,
23,
3,
59,
-7,
0,
-27,
20,
17,
33,
16,
-11,
24,
15,
26,
-2,
-63,
-45,
32,
60,
-62,
-43,
-6,
9,
-77,
43,
-48,
24,
-16,
-2,
-31,
-32,
11,
-18,
-56,
-16,
-13,
19,
-11,
9,
-15,
3,
-10,
-25,
-28,
21,
38,
-36,
7,
-34,
-43,
11,
-46,
2,
-6,
-22,
29,
-12,
-62,
-21,
53,
39,
-27,
39,
-40,
-46,
28,
9,
-8,
-22,
-27,
38,
-36,
39,
-55,
-4,
34,
-32,
-37,
-27,
43,
15,
-13,
11,
24,
70,
14,
-46,
4,
25,
-27,
15,
37,
41,
-25,
0,
-3,
2,
-12,
-8,
-37,
-3,
7,
15,
-16,
20,
-9,
23,
-34,
-11,
6,
-4,
-10,
-16,
-32,
-11,
-43,
19,
41,
39,
26,
53,
-13,
-17,
72,
-28,
-22,
-13,
-17,
-28,
5,
-37,
-9,
16,
-38,
8,
-11,
-10,
13,
-4,
7,
21,
32,
-7,
32,
-46,
19,
30,
-20,
-14,
-16,
24,
13,
-19,
-26,
-61,
11,
-24,
1,
9,
2,
-1,
-16,
46,
20,
-26,
-52,
-36,
19,
-11,
-21,
9,
-5,
-2,
-7,
-17,
56,
0,
-46,
-31,
-32,
9,
-13,
-3,
49,
-9,
58,
31,
6,
-14,
-20,
17,
-42,
-52,
5,
22,
-36,
29,
54,
-18,
23,
40,
28,
31,
-9,
5,
-27,
21,
41,
-10,
-1,
3,
21,
41,
-1,
-24,
6,
0,
1,
20,
22,
-19,
-45,
31,
-8,
21,
24,
-52,
10,
7,
-2,
-13,
-30,
17,
23,
11,
11,
-17,
37,
-2,
54,
58,
-28,
-41,
-14,
5,
-26,
11,
20,
27,
15,
15,
-32,
-45,
-42,
49,
5,
30,
2,
15,
-1,
-62,
23,
29,
38,
-53,
14,
-14,
48,
3,
16,
-2,
13,
-15,
58,
37,
20,
52,
9,
9,
15,
-54,
-25,
21,
-24,
-7,
42,
-8,
7,
-11,
4,
12,
-30,
-40,
10,
-1,
-2,
-27,
39,
20,
-33,
8,
-27,
-10,
-36,
-8,
-5,
-18,
17,
43,
-49,
48,
-24,
-33,
29,
2,
53,
23,
4,
-45,
20,
-5,
23,
-3,
55,
36,
-42,
-6,
-38,
19,
-5,
42,
-7,
31,
0,
59,
34,
-8,
-30,
24,
-37,
-47,
30,
17,
46,
-61,
-33,
42,
-21,
25,
-16,
-12,
-15,
-33,
31,
1,
50,
-48,
19,
-54,
-11,
-65,
16,
29,
35,
-9,
-38,
-39,
16,
-19,
-6,
21,
-37,
32,
-58,
17,
0,
4,
-31,
-9,
11,
-25,
-4,
14,
-13,
-6,
52,
-1,
-43,
-30,
0,
18,
-44,
11,
17,
7,
-52,
-33,
3,
-4,
-26,
-16,
9,
-71,
3,
49,
17,
31,
-5,
-12,
17,
4,
-36,
49,
6,
15,
50,
1,
5,
-39,
-44,
14,
29,
-14,
0,
-6,
-38,
-24,
25,
-4,
25,
16,
-32,
22,
10,
3,
-7,
-49,
0,
32,
28,
32,
45,
46,
-1,
-11,
10,
12,
2,
-43,
15,
4,
48,
-15,
0,
-1,
16,
37,
83,
-16,
60,
25,
-20,
17,
-21,
22,
-19,
-40,
-24,
-47,
-3,
3,
-38,
-24,
-15,
-18,
-24,
20,
-47,
61,
-44,
4,
-33,
-39,
36,
0,
-37,
30,
-26,
41,
0,
-30,
-56,
-16,
38,
-34,
-32,
-42,
6,
41,
28,
-13,
46,
25,
4,
-28,
32,
-61,
15,
-17,
-2,
-12,
26,
-15,
-22,
-12,
-7,
-29,
7,
3,
16,
-16,
-16,
-32,
12,
-13,
0,
35,
47,
20,
47,
1,
-56,
14,
-15,
1,
0,
26,
-17,
37,
-19,
-25,
23,
-45,
38,
25,
4,
-13,
17,
-14,
25,
13,
-23,
27,
-43,
28,
-14,
-67,
-18,
32,
20,
-6,
-2,
32,
-17,
-13,
19,
-8,
18,
-26,
-2,
31,
-15,
28,
8,
78,
-9,
5,
23,
19,
1,
30,
13,
36,
-14,
-12,
-36,
24,
-66,
22,
-48,
30,
63,
-7,
32,
-1,
56,
-37,
32,
-7,
-28,
0,
-9,
-17,
59,
2,
7,
-8,
31,
-28,
4,
2,
5,
24,
35,
-9,
26,
8,
67,
-12,
16,
-3,
16,
4,
-24,
2,
-19,
30,
16,
-25,
6,
40,
-29,
7,
-22,
12,
-29,
49,
10,
15,
-39,
9,
-16,
-11,
-4,
-8,
22,
-13,
-22,
0,
45,
19,
35,
10,
11,
-7,
-9,
-27,
9,
27,
30,
30,
28,
-55,
30,
12,
-38,
-6,
72,
-17,
-26,
-61,
40,
2,
7,
29,
23,
-26,
7,
17,
-7,
-6,
-3,
25,
26,
-14,
-9,
-48,
-18,
24,
28,
10,
31,
39,
-25,
0,
-15,
-42,
-4,
-45,
-61,
8,
-17,
24,
3,
2,
10,
10,
-22,
-18,
12,
15,
-28,
-15,
-11,
-48,
-9,
-45,
-2,
42,
29,
-24,
1,
-36,
26,
14,
-30,
-10,
-58,
-5,
-57,
-1,
46,
-18,
-12,
1,
22,
-4,
16,
8,
15,
41,
67,
-39,
1,
36,
6,
-39,
9,
49,
-49,
-19,
-18,
-14,
21,
-52,
-35,
-20,
4,
31,
21,
-65,
0,
-59,
22,
-49,
7,
4,
43,
-32,
4,
0,
-11,
44,
-30,
40,
-2,
10,
5,
-5,
31,
49,
-8,
26,
28,
-5,
-2,
-16,
9,
-3,
17,
38,
-22,
17,
-33,
29,
14,
11,
15,
-30,
2,
39,
-35,
-8,
52,
8,
-38,
-16,
33,
0,
-15,
30,
-16,
-40,
-12,
16,
-17,
33,
3,
15,
-16,
13,
5,
40,
34,
14,
-27,
-38,
-48,
-83,
-50,
-30,
-57,
42,
33,
62,
35,
-100,
12,
-57,
-14,
21,
20,
6,
-21,
-34,
59,
-22,
34,
9,
-37,
13,
-67,
-27,
-8,
39,
-8,
-37,
13,
-39,
-16,
4,
25,
-13,
-27,
20,
1,
37,
48,
-7,
-69,
-97,
-31,
-70,
10,
2,
-17,
-9,
-3,
-17,
24,
31,
-25,
-13,
32,
0,
-37,
-20,
36,
41,
11,
38,
37,
-16,
1,
20,
-17,
-12,
9,
28,
-18,
40,
-28,
-26,
-17,
2,
58,
56,
-33,
9,
-36,
-25,
18,
-17,
-21,
5,
-11,
-12,
-4,
32,
-46,
32,
55,
40,
-38,
-31,
1,
68,
11,
-34,
8,
-27,
63,
0,
0,
13,
12,
-22,
23
] |
Hooker, J.
The defendants have appealed from a decree requiring them to execute a mortgage upon certain property for $1,000, in complainant’s favor, to secure his support for the remainder of his life. The decree was based upon an alleged arrangement between them whereby the mortgage theretofore existing was delivered to complainant’s daughter, one of the defendants, upon condition that he should receive such support, and a subsequent agreement that defendants would secure him for such support upon other property, to be received in exchange for the farm upon which the former mortgage was an in cumbrance, provided that complainant should discharge such mortgage, which he did. The learned circuit judge, who saw the witnesses, was of the opinion that it would be unconscionable for the defendants to refuse such security after receiving the former mortgage and its discharge, and in this view we concur. We are of the opinion that the defendants have been disposed to provide for the complainant, but have felt that it would be an injustice to them if required to pay or secure the amount of the original mortgage, in view of their agreement made at a time when their differences were under discussion. At that time the farm which the defendants had received from the complainant was in their possession, but, after it was proposed to part with it, he. refused to discharge the mortgage unless the defendants would protect him, which they agreed to do. The circuit judge has placed a construction upon the acts and agreements of the parties which does substantial justice, and is as favorable to the defendants as they had- a right to expect. We are satisfied that the Camden property was purchased with funds that indirectly came from the property received from the complainant, if it was not paid for with money received by reason of his discharge of the original mortgage. The decree of the circuit court is therefore affirmed.
Grant, C. J., Montgomery and Moore, JJ., concurred. Long, J., did not sit. | [
25,
-4,
-4,
11,
-35,
10,
38,
8,
0,
20,
52,
-38,
25,
23,
24,
-11,
22,
-32,
-32,
20,
-35,
-34,
-5,
22,
-7,
-12,
43,
14,
32,
63,
4,
-53,
13,
57,
-27,
-37,
13,
-16,
42,
-17,
-4,
29,
-33,
-6,
-25,
18,
-9,
-61,
-16,
-33,
-9,
8,
11,
-25,
-2,
27,
0,
-40,
-43,
0,
-19,
-12,
-17,
9,
-21,
15,
-28,
16,
2,
-7,
-8,
-7,
-14,
-26,
66,
-12,
5,
23,
-32,
0,
9,
-8,
44,
-5,
-11,
-25,
-8,
-41,
-15,
12,
-38,
11,
-16,
-10,
-33,
41,
53,
56,
13,
23,
-15,
-3,
-5,
18,
7,
0,
-5,
-39,
-4,
36,
-8,
-30,
54,
-11,
-46,
-28,
-87,
0,
-31,
-44,
-11,
-9,
0,
-42,
0,
30,
-38,
-30,
-22,
-4,
6,
-35,
-23,
-9,
-11,
-35,
8,
15,
16,
-8,
76,
-11,
-7,
-62,
7,
-32,
48,
-10,
-42,
28,
-5,
-18,
-18,
49,
57,
16,
-16,
-21,
27,
9,
11,
-4,
-43,
-14,
-30,
-9,
-44,
5,
8,
7,
38,
66,
-56,
-9,
41,
-44,
24,
34,
-8,
-32,
5,
52,
9,
8,
38,
16,
14,
5,
31,
-12,
-60,
-20,
7,
11,
-6,
-5,
30,
-26,
-12,
13,
-46,
-5,
12,
32,
2,
-55,
-15,
-40,
-9,
-13,
-25,
38,
-5,
1,
-20,
13,
6,
19,
-19,
29,
15,
62,
-45,
-13,
-90,
-26,
-24,
11,
29,
35,
-51,
-14,
12,
23,
-23,
11,
10,
12,
1,
14,
-44,
10,
-14,
-35,
-61,
17,
-12,
20,
12,
-2,
-27,
-2,
-18,
64,
0,
23,
-36,
-4,
2,
13,
46,
31,
-31,
20,
33,
-28,
27,
10,
3,
10,
-1,
0,
-23,
65,
-5,
-25,
-32,
15,
-56,
15,
14,
42,
-16,
23,
-34,
-19,
-29,
21,
7,
26,
46,
-56,
-7,
-2,
39,
3,
-29,
8,
30,
-12,
2,
-40,
21,
22,
21,
-24,
30,
11,
-5,
-28,
0,
14,
7,
19,
-3,
24,
-54,
-39,
-39,
-21,
36,
3,
16,
-20,
23,
-8,
46,
-47,
-22,
42,
-20,
-15,
-30,
23,
4,
42,
16,
2,
-13,
0,
-16,
10,
-18,
0,
39,
-15,
-38,
-31,
-9,
24,
-1,
18,
-5,
33,
-16,
-6,
0,
-12,
-22,
8,
35,
-10,
-59,
1,
25,
6,
-6,
-20,
14,
4,
47,
-11,
-11,
0,
-16,
33,
-22,
-13,
-8,
22,
-18,
-15,
28,
10,
30,
13,
-10,
5,
-5,
-40,
-39,
0,
38,
-3,
-39,
-12,
1,
-23,
-12,
-35,
-28,
-26,
-18,
-48,
-72,
31,
17,
-30,
-35,
-17,
-28,
6,
25,
44,
-18,
1,
17,
25,
36,
-23,
12,
-5,
20,
-18,
-19,
1,
20,
22,
-50,
4,
-14,
-4,
31,
-29,
11,
29,
10,
-14,
-29,
65,
8,
0,
-3,
10,
33,
0,
15,
-61,
19,
-6,
1,
-32,
21,
14,
-31,
12,
22,
-2,
-25,
-42,
52,
-4,
-31,
-24,
30,
-32,
-37,
6,
14,
-50,
-48,
12,
38,
28,
0,
17,
36,
19,
-31,
20,
-1,
2,
-7,
76,
-3,
-14,
-56,
-51,
-1,
-3,
31,
-17,
17,
3,
31,
-23,
22,
-32,
-44,
1,
39,
14,
67,
-21,
26,
-35,
-11,
-22,
23,
22,
-1,
5,
4,
4,
-27,
13,
18,
-3,
35,
21,
25,
-55,
-27,
-44,
-21,
2,
-13,
77,
-11,
-52,
12,
23,
4,
-46,
8,
7,
-23,
-17,
27,
-29,
-69,
30,
3,
56,
-36,
44,
-7,
-44,
-6,
18,
-32,
-33,
8,
22,
6,
24,
-30,
-49,
-9,
0,
-8,
15,
5,
4,
48,
-49,
44,
8,
-15,
19,
23,
7,
11,
17,
0,
-40,
-20,
7,
-39,
7,
-18,
5,
4,
-26,
0,
15,
-34,
18,
-24,
-11,
-3,
16,
43,
-42,
-13,
-32,
-20,
8,
-23,
29,
-34,
34,
-33,
-2,
3,
-46,
4,
49,
-17,
51,
9,
40,
8,
27,
17,
12,
20,
-26,
-12,
-4,
-6,
50,
-23,
-26,
-17,
-17,
30,
-29,
13,
10,
-6,
-4,
36,
8,
-25,
0,
-3,
0,
-37,
-5,
-25,
56,
-67,
4,
0,
18,
7,
-7,
31,
-19,
-35,
31,
23,
-25,
78,
-59,
-15,
-23,
12,
-50,
39,
-22,
27,
54,
-16,
-14,
22,
36,
-9,
8,
45,
-13,
75,
48,
45,
29,
0,
39,
8,
-5,
-13,
-29,
13,
-19,
-16,
-7,
30,
-24,
0,
47,
16,
-14,
0,
-27,
-15,
-10,
20,
37,
-27,
-9,
58,
-5,
15,
21,
6,
6,
-7,
-3,
18,
-6,
-1,
24,
-18,
-3,
2,
-36,
-16,
-3,
-14,
-9,
-9,
-39,
-14,
-22,
-3,
8,
8,
-30,
-20,
2,
20,
7,
-31,
34,
-46,
40,
-46,
-29,
3,
-37,
-27,
18,
6,
20,
-12,
-15,
-18,
28,
0,
20,
44,
-39,
-24,
-14,
-17,
-2,
-12,
-7,
-5,
-42,
-23,
0,
-15,
15,
22,
-13,
-38,
-16,
-13,
-29,
-20,
0,
4,
-23,
22,
-17,
6,
14,
1,
-22,
9,
-48,
-12,
16,
28,
-40,
9,
-13,
21,
50,
19,
-34,
-27,
-3,
-13,
24,
22,
21,
25,
-40,
2,
50,
7,
-25,
35,
4,
7,
-21,
7,
-24,
38,
-17,
2,
-24,
-32,
18,
-22,
-6,
-5,
-1,
-9,
63,
9,
-10,
-40,
32,
18,
5,
-27,
35,
6,
-55,
26,
32,
3,
-12,
-15,
18,
22,
9,
-22,
-66,
6,
24,
36,
7,
-41,
32,
-16,
39,
14,
-28,
10,
-18,
-14,
-26,
-20,
20,
-25,
-2,
22,
52,
-2,
4,
23,
-52,
-12,
35,
28,
-1,
3,
21,
-21,
14,
-42,
-5,
31,
-17,
30,
6,
-9,
20,
-16,
68,
-29,
0,
-3,
-27,
-3,
18,
43,
1,
-25,
16,
40,
-1,
-11,
-36,
50,
-27,
-17,
-7,
-10,
-14,
17,
-16,
7,
60,
11,
6,
1,
20,
-27,
-17,
-17,
30,
23,
-34,
27,
37,
9,
21,
-44,
-2,
24,
-57,
27,
-43,
1,
13,
10,
-11,
-16,
25,
0,
-57,
17,
13,
-6,
-9,
31,
7,
-4,
32,
-45,
36,
27,
-4,
50,
5,
-22,
13,
41,
27,
31,
1,
-36,
0,
-61,
-4,
-48,
4,
17,
-41,
32,
10,
29,
7,
-45,
15,
18,
-21,
-10,
-58,
6,
-33,
63,
36,
-10,
-19,
-4,
-24,
-32,
35,
-30,
-8,
2,
-16,
-40,
-23,
16,
15,
55,
9,
-19,
21,
2,
6,
12,
15,
-1,
13,
9,
21,
26,
-25,
21,
67,
-2,
-60,
-36,
23,
24,
-7,
-17,
4,
-26,
4,
19,
29,
56,
-16,
5,
61
] |
Per Curiam.
On March 28, 1893, the defendants5 costs were taxed at $236 by the clerk of this Court, upon a judgment of this Court theretofore rendered against the plaintiffs, reversing the judgment of the circuit court for the county of Wayne, and ordering a new trial. Plaintiffs, being non-residents, were required to give security for costs, which, on May 15, 1893, they did, in compliance with an order of the Wayne circuit court. An execution issued for the collection of said judgment, and was returned unsatisfied on the 6th day of June, 1893, and the next day defendants’ counsel filed a certified copy of the undertaking, and moved this Court for an amendment of the judgment, so that it should include and run against the sureties for costs.
The case is governed by Ortmann v. Bank, 42 Mich. 464.
The motion will be denied, with costs.
See Wheeler v. Meyer, 95 Mich. 36. | [
-8,
37,
-14,
-10,
-16,
9,
21,
-19,
-32,
-47,
29,
-41,
-34,
5,
16,
-10,
7,
7,
26,
-11,
-12,
-6,
-23,
30,
-18,
-1,
44,
11,
22,
-22,
8,
-22,
-41,
36,
16,
-26,
0,
19,
21,
12,
-27,
8,
10,
-14,
-42,
1,
29,
9,
18,
-1,
26,
7,
-36,
2,
-7,
-1,
-13,
-17,
-39,
-5,
-11,
2,
57,
29,
41,
-52,
-4,
38,
-2,
-17,
-5,
7,
32,
-2,
25,
-48,
-47,
1,
-66,
-33,
18,
-62,
4,
-24,
-40,
0,
-10,
-30,
-20,
22,
-28,
70,
-37,
-36,
14,
73,
12,
-1,
52,
-21,
-10,
-42,
5,
41,
40,
7,
-30,
-4,
-36,
16,
28,
-8,
-10,
-2,
-18,
13,
-62,
14,
49,
-9,
29,
-3,
9,
-13,
26,
-6,
-25,
-15,
24,
-26,
12,
-11,
-87,
-17,
-7,
8,
-5,
-38,
-20,
-9,
36,
-4,
7,
-17,
50,
35,
23,
10,
6,
-24,
-63,
13,
38,
62,
6,
7,
-8,
-24,
-18,
-33,
69,
7,
-34,
-45,
8,
13,
2,
-1,
0,
-19,
40,
3,
-21,
-27,
27,
60,
44,
8,
-15,
16,
-16,
26,
30,
-5,
41,
-17,
21,
-3,
-14,
-14,
27,
-11,
-31,
0,
0,
-21,
75,
-13,
7,
17,
-3,
-40,
-4,
26,
32,
-26,
22,
-65,
-52,
-30,
6,
-2,
12,
-15,
-1,
35,
-2,
-43,
-10,
-12,
11,
-18,
-13,
-15,
-14,
-8,
4,
11,
23,
13,
-33,
-9,
13,
12,
-18,
-31,
-12,
5,
24,
39,
-23,
-5,
-8,
-21,
-14,
15,
-14,
9,
-13,
17,
22,
-13,
-71,
-1,
-15,
4,
5,
-16,
8,
-35,
22,
40,
-7,
-31,
20,
11,
26,
-2,
8,
17,
17,
4,
51,
-6,
0,
-27,
2,
-16,
-29,
-27,
15,
-21,
28,
46,
21,
11,
-23,
-11,
31,
2,
19,
-20,
2,
-15,
21,
27,
-53,
-25,
29,
-29,
-34,
26,
46,
16,
12,
-38,
-8,
-4,
-13,
-28,
4,
55,
-6,
0,
0,
49,
-15,
2,
-21,
6,
1,
6,
-52,
30,
44,
-6,
33,
-34,
-35,
24,
0,
6,
15,
-6,
-28,
-50,
-19,
0,
14,
-17,
48,
-13,
-20,
20,
17,
10,
-9,
-23,
14,
6,
13,
-12,
25,
43,
10,
-18,
7,
-1,
-30,
9,
50,
-22,
35,
-4,
-26,
56,
-34,
-16,
33,
37,
5,
10,
-23,
-12,
-17,
28,
-15,
19,
2,
36,
5,
-6,
-9,
26,
50,
-8,
6,
1,
-8,
-1,
-24,
-3,
54,
25,
0,
-62,
-21,
-13,
-21,
-11,
-14,
12,
39,
59,
-2,
-17,
-3,
11,
-2,
29,
3,
-24,
0,
-19,
-14,
22,
55,
-14,
50,
-19,
66,
19,
-58,
24,
-45,
-25,
10,
0,
-31,
8,
-19,
-22,
0,
16,
42,
47,
-55,
33,
16,
5,
7,
42,
-1,
-17,
13,
-22,
4,
34,
29,
2,
2,
-34,
-25,
-16,
18,
9,
12,
-58,
-28,
-15,
31,
-33,
-37,
-29,
-44,
16,
-10,
8,
48,
-1,
-19,
8,
-17,
-42,
-2,
-26,
12,
-45,
-3,
24,
17,
-27,
0,
-17,
-53,
-39,
0,
33,
-51,
0,
28,
4,
0,
-21,
29,
-1,
-85,
3,
12,
-6,
-37,
-21,
57,
-3,
35,
15,
-11,
-53,
20,
-6,
31,
-35,
-13,
43,
-15,
16,
-22,
14,
91,
56,
-1,
-15,
-34,
-3,
44,
46,
-5,
27,
-24,
22,
-13,
-39,
0,
6,
-43,
-13,
-26,
-19,
-29,
-12,
-2,
18,
29,
22,
42,
-7,
-38,
-101,
41,
-50,
-9,
-24,
-1,
44,
-55,
-8,
-21,
-18,
-6,
-53,
-33,
-15,
-30,
-4,
31,
-33,
6,
-54,
3,
-41,
-12,
2,
-20,
-3,
-25,
-23,
-2,
-45,
-2,
-28,
-25,
7,
-16,
-76,
-32,
18,
-22,
15,
0,
31,
-3,
18,
38,
13,
-26,
-7,
-48,
26,
85,
12,
-13,
-40,
-37,
-8,
-2,
-3,
-60,
-12,
-20,
10,
52,
-9,
10,
-11,
28,
21,
-21,
2,
-15,
-1,
-13,
-11,
8,
16,
40,
7,
-49,
-61,
-43,
22,
39,
28,
-52,
0,
-40,
38,
32,
23,
6,
-9,
-42,
11,
9,
-37,
0,
0,
-32,
-28,
8,
66,
38,
25,
38,
6,
-31,
9,
0,
-49,
35,
-66,
-18,
21,
1,
29,
13,
2,
6,
9,
68,
-8,
-3,
-20,
-18,
21,
18,
-48,
-54,
43,
-29,
-11,
-30,
43,
32,
25,
-22,
-8,
-60,
35,
11,
-20,
6,
-20,
-1,
19,
4,
-32,
-2,
39,
-4,
7,
14,
16,
33,
9,
-9,
39,
-34,
9,
-20,
-19,
-38,
-26,
-29,
-15,
1,
-2,
-3,
-13,
-26,
-29,
0,
-24,
2,
29,
-15,
-19,
-18,
2,
-7,
-2,
2,
48,
10,
41,
0,
35,
-18,
3,
-27,
-14,
52,
14,
-30,
26,
-40,
-18,
-16,
16,
-46,
57,
-26,
51,
40,
46,
-14,
20,
0,
16,
15,
31,
18,
33,
-28,
-5,
3,
-19,
19,
-43,
-7,
0,
-30,
42,
-45,
-4,
25,
9,
22,
0,
43,
-24,
30,
43,
30,
28,
30,
-16,
45,
1,
-11,
19,
25,
-8,
12,
-6,
-23,
52,
-3,
42,
7,
4,
-36,
75,
48,
9,
-8,
36,
-14,
-1,
11,
14,
23,
7,
-23,
4,
-22,
4,
-9,
22,
-36,
-23,
-8,
34,
25,
-8,
-26,
24,
-33,
20,
-23,
2,
17,
-26,
-11,
-7,
8,
7,
9,
70,
-70,
-26,
-12,
-29,
-20,
12,
51,
26,
-30,
41,
-5,
18,
-31,
-23,
-22,
-18,
-5,
22,
21,
-14,
-15,
-4,
37,
17,
-34,
19,
-12,
-25,
-44,
-19,
3,
-14,
-6,
18,
8,
36,
-3,
12,
37,
2,
41,
-15,
18,
68,
-15,
-18,
0,
-26,
26,
-28,
-42,
-32,
2,
-1,
16,
-17,
29,
16,
-50,
-37,
49,
-19,
-32,
13,
14,
45,
8,
40,
26,
7,
-17,
-15,
-18,
-2,
2,
16,
2,
-14,
3,
-33,
-22,
-37,
33,
59,
-58,
-61,
-69,
-23,
30,
-9,
9,
12,
-22,
27,
-15,
37,
18,
-44,
22,
-44,
40,
15,
-12,
-59,
-30,
-15,
4,
16,
-10,
36,
-9,
-23,
25,
-23,
14,
27,
-40,
-7,
19,
-33,
-4,
2,
-24,
-41,
17,
-13,
-8,
-36,
11,
1,
26,
23,
-32,
21,
0,
-17,
-6,
-24,
30,
12,
34,
18,
38,
-32,
31,
36,
-22,
-53,
-58,
4,
2,
-13,
27,
-26,
-19,
-23,
23,
15,
13,
-18,
-1,
17,
-26,
-12,
68,
19,
22,
-26,
42,
-14,
-25,
10,
-2,
59,
12,
-7,
-30,
16,
15,
1,
28,
4,
48,
-19,
-35,
56
] |
Grant, J.
Section 135 of Act No. 206, Laws of 1893, reads as follows;
“When any deed, land contract, plat of any town site, village, or addition to any town site, village plat, or city, or other instrument for the conveyance of title to any real estate, is presented to the register of deeds of any' county in this State for record or filing in his office, he shall require of the person presenting the same a certificate from the Auditor General, or from the county treasurer of the county, -whether th'ere are any tax liens or titles held by the State, or any individual, against such piece or description of land sought to be conveyed by such instrument, and that all taxes due thereon have been paid for the five years preceding to the date of such instrument, and in default of the presentation of such certificate he shall not record the same until such certificate is secured and presented. The register of deeds shall note the fact upon said deed that such certificate has or has not been presented to him when such instrument is presented for record, and, in case the person presenting such instrument shall refuse to procure such certificate, he shall indorse that fact upon said instrument, over his official signature, and shall refuse to receive and record the same: Provided, that the provisions of this section shall not apply to the filing of any town or village plat for the purpose of incorporation, in so far as the land therein embraced is included in a plat already filed in the office of the register of deeds, or in so far as the description of lands therein is not changed by such plat, nor to the filing of a copy of any town, village, or city plat in case the original plat filed in the office of such register of deeds has been lost, or destroyed, nor to any sheriffs or commissioners deed executed for the sale of lands under any proceeding in law or by virtue of any decree of any of the courts of this State, or any deed of trust by any assignee, executor, or corporation executed pursuant to any law of this State. A violation of the provisions of this section by any register of deeds shall be deemed a misdemeanor, and, upon conviction thereof, he shall be fined not to exceed one hundred dollars, and he shall further be liable to the grantee of any instrument so recorded for the amount of damages sustained, to be recovered in an action for debt in any court of this State.”
Relator contends'that this section is void, for the following reasons, viz.:
First, (a) The title to the act does not cover the section; (b) the act embraces more than one object.
Second. Its provisions cannot be complied with by the officers named.
Third. It is an unwarrantable infringement of property rights.
1. The evident purpose of the provisions of this section is to secure the collection of taxes, which is one of the general objects stated i-n the title to the act. We think, therefore, that the section cannot be held void, under section 20, art. 4, of the Constitution. The rule of construction in such cases is stated in City of Grand Rapids v. Burlingame, 93 Mich. 472, as follows:
“If the title expresses a general purpose, all matters fairly and reasonably connected with that purpose, and all measures which would facilitate its accomplishment, would not be in conflict with the above provision of the Constitution.”
The fact that it imposes a condition which must be fulfilled before a deed is entitled to record, thereby changing in this respect the recording act, does not affect its validity any more than the change in the jury law made by, Act No. 150, Laws of 1881, affected the validity of that act. Hall v. Burlingame, 88 Mich. 438. See, also, People v. Mahaney, 13 Mich. 494.
2. The section must be interpreted in the light of other laws imposing duties upon the Auditor General and county treasurers, and requiring them to keep records of taxes paid and unpaid, of tax liens, and the issuance of tax deeds. It certainly was not contemplated by the Legislature that these officers should go outside the records of their own offices for information necessary to make the certificate. All State, county, . township, and in many cases city, taxes, when not paid to the collector, are required to be returned to the county treasurers, and, when not paid to them, they are required to make feturn thereof to the Auditor General. A record is there kept of all such taxes, tax liens, and tax deeds. As to all other taxes above enumerated, the presumption is that they are paid. In view of these facts, it seems reasonable that the expression “that all taxes due thereon have been paid for the five years preceding to the date of such instrument” refers only to the records kept by these officers, and that the certificate must be made from the facts shown by these records. With this construction of the section, the officers named can easily comply with it.
3. The instrument is entitled to record, unless the certificate shows that all taxes have not been paid for the five years previous to its date. If, at the annual tax sales, the lands have been sold to individuals, this is payment, within the meaning of the law. The public revenue has thus been collected, and neither the State nor municijoality is any longer interested. It is entitled to record, notwithstanding the certificate shows that there are tax liens and tax titles held by the State for taxes which were assessed before the commencement of the five years named, and that there are tax titles held by individuals. Only when the certificate shows that the taxes have not been paid for the five years is it not entitled to record. Neither does the law require that the certificate specify the unpaid taxes, nor the outstanding tax titles and liens. The general certificate required by the act is sufficient.
4. We do not think that the provisions of the section constitute an unwarrantable infringement of property rights. Mere inconvenience, however great, is not sufficient to defeat a law. That is a consideration for the Legislature, and not for the court. The State may enact stringent measures to enforce the collection of the public revenue. The law provides ample remedies for the property-owner to contest the validity of the tax assessed against him. He may pay the tax under protest, and at once bring suit to recover it back. He may appear in court when the State brings suit to foreclose its lien, and there contest its validity. The register of deeds is a constitutional officer, but the conditions under which deeds are entitled to record are entirely within the discretion of the Legislature, and the court cannot declare them void because they are harsh. Besides, the recording of the deed is not necessary to pass title. The registry law is only designed to record and preserve evidence of title. Title passes upon the execution of the deed, and possession under it is notice to all of the rights of the grantee in possession. A similar statute was held valid by the supreme court of Minnesota. State v. Register of Deeds, 26 Minn. 521.
Writ denied, but without costs, as this was an amicable suit to test the validity of the section.
The other Justices concurred. | [
-6,
46,
46,
-7,
-24,
32,
44,
-5,
66,
32,
-1,
0,
35,
-7,
-9,
47,
-46,
-12,
-38,
10,
-31,
-32,
-36,
-5,
37,
7,
36,
95,
-15,
15,
15,
34,
-83,
25,
19,
0,
-2,
26,
15,
2,
-29,
11,
-29,
8,
-4,
27,
-15,
-61,
-13,
-35,
2,
22,
47,
20,
40,
25,
-52,
-61,
-2,
-31,
-58,
-30,
-37,
-19,
-40,
-18,
24,
5,
15,
-86,
-11,
8,
-25,
-21,
77,
-9,
16,
73,
-41,
23,
9,
-49,
11,
-76,
-29,
-32,
10,
-41,
44,
-12,
-8,
-29,
-2,
23,
-19,
-5,
74,
7,
13,
23,
0,
61,
36,
42,
-2,
18,
-22,
-21,
1,
-38,
-8,
-30,
-19,
-90,
11,
7,
-9,
23,
31,
-23,
40,
-38,
36,
-28,
5,
47,
-8,
-15,
-36,
-7,
20,
-26,
-49,
-35,
-38,
-27,
-40,
-15,
51,
-2,
-2,
23,
-35,
-44,
-5,
-32,
-6,
5,
-11,
25,
-57,
31,
15,
12,
-78,
34,
6,
-40,
9,
-59,
27,
48,
-11,
-37,
-36,
21,
-13,
-36,
1,
45,
30,
38,
-5,
-7,
33,
-66,
28,
9,
23,
22,
15,
23,
20,
17,
22,
-39,
-47,
22,
-7,
15,
24,
12,
-8,
5,
28,
-12,
-44,
27,
-42,
-59,
-9,
-10,
28,
-11,
4,
-4,
-7,
20,
-23,
44,
-60,
-4,
-36,
14,
25,
-9,
30,
26,
63,
42,
0,
40,
5,
11,
-22,
-9,
18,
-30,
-22,
18,
2,
41,
-2,
-29,
-14,
20,
10,
-11,
-30,
107,
-10,
45,
-2,
-15,
-26,
11,
35,
-23,
-32,
16,
-28,
3,
-81,
55,
-22,
-23,
32,
24,
-20,
-37,
10,
44,
16,
-41,
17,
-26,
30,
16,
-37,
30,
-9,
3,
-10,
-21,
-3,
6,
6,
-60,
-54,
-11,
-14,
-22,
22,
56,
-20,
42,
-41,
95,
-6,
-5,
25,
-18,
-2,
30,
-13,
49,
13,
11,
20,
-17,
-27,
12,
-21,
-32,
-7,
-35,
-11,
15,
1,
-1,
30,
16,
0,
35,
5,
5,
-4,
-36,
-4,
31,
46,
34,
7,
-39,
-10,
42,
31,
-40,
12,
38,
2,
-51,
0,
-29,
62,
-9,
41,
-67,
-51,
-23,
3,
-16,
50,
13,
16,
6,
-56,
1,
-6,
38,
0,
-2,
-32,
46,
-21,
11,
-21,
7,
26,
25,
49,
78,
-10,
-55,
36,
-15,
-30,
12,
52,
-9,
33,
-3,
-25,
17,
-19,
-19,
0,
-24,
-30,
11,
-57,
3,
-40,
14,
-5,
13,
-13,
-12,
-21,
-50,
-6,
-4,
-57,
-22,
11,
-27,
17,
-49,
-76,
-8,
-26,
29,
-3,
15,
-30,
5,
-2,
30,
29,
57,
31,
-39,
8,
-59,
19,
-7,
56,
-40,
35,
32,
13,
-22,
-70,
-50,
-44,
-26,
-12,
33,
-16,
8,
-15,
30,
43,
-8,
48,
-21,
-31,
-34,
1,
-27,
0,
-7,
16,
32,
-12,
-19,
-32,
25,
-31,
0,
16,
17,
-15,
30,
7,
49,
72,
-2,
3,
-45,
23,
14,
-45,
-17,
29,
12,
-50,
-52,
-11,
9,
-25,
-12,
-33,
-18,
-19,
-15,
-21,
-4,
8,
18,
29,
12,
-4,
-68,
-20,
-41,
-32,
40,
-20,
-9,
14,
-28,
15,
61,
29,
-19,
-12,
-31,
8,
79,
42,
32,
6,
38,
-15,
58,
-4,
13,
40,
40,
-44,
-21,
-2,
24,
27,
37,
7,
-45,
-9,
-19,
27,
-20,
-52,
-27,
-18,
38,
42,
44,
-21,
-5,
9,
4,
15,
7,
-23,
-22,
-5,
29,
-8,
7,
-2,
5,
-4,
88,
11,
9,
-3,
-50,
-11,
-8,
-15,
30,
18,
0,
-54,
12,
26,
-6,
-2,
-28,
-42,
8,
13,
-52,
48,
-26,
19,
-36,
-71,
8,
-41,
-109,
-35,
-24,
-39,
14,
-34,
-45,
22,
7,
6,
-19,
3,
-47,
34,
36,
-39,
19,
23,
-4,
-17,
53,
-46,
14,
0,
-5,
-44,
45,
14,
20,
-45,
-21,
-37,
-14,
26,
1,
10,
19,
3,
-29,
-21,
-47,
27,
80,
23,
10,
39,
-24,
4,
24,
6,
10,
26,
-34,
0,
18,
12,
55,
-25,
9,
-3,
9,
-34,
7,
-14,
-11,
-35,
-1,
71,
-20,
9,
-18,
-81,
-9,
16,
37,
-36,
43,
48,
34,
-32,
23,
-15,
-38,
25,
54,
-17,
-24,
60,
34,
38,
-63,
8,
28,
35,
2,
-6,
1,
38,
-6,
23,
-31,
-37,
26,
-49,
19,
27,
45,
18,
0,
39,
11,
-8,
-4,
6,
-63,
-7,
-9,
4,
51,
13,
8,
13,
42,
11,
-6,
-4,
52,
30,
38,
22,
36,
2,
14,
-53,
2,
-28,
-17,
-30,
-74,
13,
-13,
0,
-16,
18,
15,
20,
29,
9,
-3,
12,
-55,
-25,
-54,
53,
29,
4,
17,
-3,
34,
5,
-6,
-61,
10,
-23,
5,
37,
33,
16,
-56,
11,
-31,
-7,
68,
14,
14,
0,
-13,
-30,
0,
14,
4,
-24,
6,
-9,
15,
-23,
7,
-11,
-9,
-4,
79,
-10,
16,
0,
-13,
0,
-48,
26,
-7,
-1,
19,
32,
-21,
30,
-14,
-12,
-49,
26,
-2,
29,
-25,
17,
1,
22,
-32,
0,
-56,
20,
27,
-17,
18,
-18,
21,
-29,
-15,
-7,
27,
24,
-6,
34,
27,
-45,
6,
-16,
8,
-36,
63,
-36,
16,
-13,
-15,
-42,
-40,
-19,
-84,
18,
49,
44,
-80,
-11,
0,
-13,
-46,
-8,
52,
21,
-11,
-43,
4,
56,
0,
-17,
-41,
48,
-47,
-35,
-3,
16,
-1,
-12,
-4,
3,
32,
12,
-39,
-39,
-44,
42,
47,
-50,
27,
17,
3,
-15,
13,
41,
2,
-16,
13,
1,
-13,
22,
-49,
10,
-26,
10,
32,
-12,
-32,
-6,
2,
-21,
44,
0,
29,
-4,
2,
-41,
13,
3,
-1,
-36,
-44,
-44,
-17,
-20,
10,
5,
4,
-8,
22,
-9,
38,
29,
8,
56,
7,
-36,
-5,
-6,
-14,
-32,
46,
-23,
-24,
11,
-32,
67,
44,
11,
-40,
-14,
-78,
-11,
-41,
13,
-87,
-16,
31,
67,
16,
-14,
-39,
-38,
-32,
7,
-7,
-13,
35,
-13,
29,
-22,
58,
74,
0,
3,
-12,
33,
-3,
7,
-22,
41,
5,
-68,
-12,
-10,
21,
-12,
-31,
-42,
37,
43,
-16,
-48,
30,
-27,
12,
30,
1,
4,
54,
15,
-45,
-44,
18,
25,
-48,
-12,
11,
17,
5,
-22,
40,
4,
38,
35,
24,
-20,
10,
-40,
-9,
52,
11,
4,
45,
69,
-30,
0,
-22,
16,
-9,
-15,
-32,
-13,
-31,
-51,
-3,
-22,
-9,
38,
-8,
-17,
-25,
20,
-39,
61,
-45,
14,
-55,
-48,
-7,
51,
27,
-32,
42,
-7,
40,
8,
-2,
26,
-7,
-19,
38
] |
Long, J.
The only question in this case is, the construction to be placed upon the language contained in a deed from defendant to complainant. It appears that defendant was the owner of lot 12 in block 1 in Thresher’s addition to the city of Benton Harbor. On December 5, 1896, defendant and wife conveyed by warranty deed to complainant, for a cash consideration, a part of said lot, -the description being as follows:
“All that part of lot number twelve in block one in Thresher’s addition to the village, now city, of Benton Harbor, lying west of Ox creek, as located according to annexed plat, being that part of lot twelve lying west of a line beginning fifty-four feet west of tbe northeast corner of said lot twelve; running thence south, twenty degrees and thirty minutes east, seventy-five feet; thence south, sixty degrees and thirty minutes east, thirty-three feet, to a point at the alley thirty-four feet west from the southeast corner of said lot twelve; also a right of way fourteen feet wide immediately east of said described line, to allow Ox creek to flow unobstructed, and for no other purpose, except to keep the banks on either side properly piled, planked, and protected from washing. Parties of the first part except from the operation of this deed, and expressly reserve to themselves, their heirs and assigns, the right at any time to cover Ox creek wherever it touches or crosses lot twelve aforesaid, and, when so covered, to use and occupy all space and land to the line of said railway right of way first above mentioned. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining.”
This deed was put in escrow pending the fulfillment of a certain contract executed at the same time of the execution of the deed, which contract is as follows:
‘‘ This contract and agreement, made and entered into this 5th day of December, 1896, between Michael Galligan, of Benton Harbor, Michigan, party of the first part, and the St. Joseph Valley Railway Company, a corporation, party of the second part, witnesseth:
‘‘ Whereas, the said first party has sold to said second party, and conveyed by warranty deed, part of lot number twelve in block one, Thresher’s addition to the city of Benton Harbor, and has also conveyed the right of way for Ox creek over said lot, according to the description in said deed and the annexed plat thereof:
“Nozo, therefore, in consideration of the premises, and other valuable considerations, the said railway company, its successors and assigns, hereby agrees to so change the present location of Ox creek so that the angle or turn of said creek will be ten feet south of the southwest corner of the building belonging to said Galligan on said lot. The said railway company is also required to construct at least five piling, at twelve feet apart, on each side of the said creek from Territorial street to the rear end of said building, and to board the same up with two-inch plank.
“These several matters to be done by said railway company are to be done on or before March 1st, 1897; and said railway company is hereby discharged from any and all damages that may hereafter occur by reason of said piling, other than such damages as are directly due to the negligence of said railway company; and said railway company is hereby released from any and all damages that may have heretofore occurred by reason of the construction of said road or said Ox creek. Said piling to be oak, at least sixteen feet long, and not less than ten inches in diameter at the butt end. The .covenants and agreements herein made to be binding on the said parties, their heirs, administrators, successors, and assigns.
“It is hereby agreed that, should said railway company desire, it may substitute eight feet piling in lieu of the sixteen feet piling hereinbefore mentioned, provided said railway company shall fill the rear of the lot east of Ox creek and south of the boiler shop with sand to a level with the front of said lot.”
Complainant complied with the conditions of the said contract, and by authority of defendant or his agent the deed was delivered to complainant about January 27, 1897.
It was admitted that complainant’s roadbed is now operated on the original and natural bed of the creek. In order to so occupy the creek bed, complainant purchased by deed a strip of land 14-J'feet wide off the west side of lot 12 for additional roadbed, and also a right of way across defendant’s land, 14 feet wide, for a new channel for the creek. On the east portion of said lot defendant had a boiler shop, and about February 15, 1897, he began making preparations to remove it over .and upon the piling along the banks of said creek, so that the boiler shop would be directly over the creek, and be immediately adjacent to the bridge across the creek, which bridge is the entire width of Territorial street. Complainant filed its bill to restrain the defendant from moving said building over said Ox creek, and, upon a hearing of said cause, the temporary injunction, issued at the time of the filing of the bill of complaint, was dissolved, and the court dis missed the bill of complaint, and assessed damages against the complainant in the sum of $139, together with $20 fees to the circuit court commissioner and costs to be taxed, whereupon complainant appealed. The question is whether or not the word “cover,” as used in the deed, authorized the defendant to remove his boiler shop over the creek. Defendant contends that it did.
We think the court was correct in his construction of the deed, and in holding that the defendant might place his shop there. The deed, so far as concerns this portion of the land, grants only a right of way for Ox creek “to flow unobstructed, and for no other purpose,” except, as stated in the deed, “to keep the banks on either side properly piled, planked, and protected from washing.” The right to cover Ox creek wherever it touches or crosses lot 12 is expressly reserved by the grantor, with the right, “when so covered, to use and occupy all space and land to the line of said railway right of way,” etc. This grant amounts to no more than an easement, and in no way affects the title or possession of the grantor. Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124). The grantee had a qualified possession only so far as it might be needful for its enjoyment. Morrill v. Mackman, supra. It appears that the only purpose for which the complainant desired the premises was for the making of a new channel for the creek, and for the flow of the water therein. The defendant surrendered no possession except for that purpose, and at the same time he reserved the right to cover and use it for his own purposes. Complainant contends that this covering was only to be by platform. There is no such limitation in the exception in the deed, and it cannot fairly be inferred from the testimony that that was the understanding between the parties.
The decree below must be affirmed.
The other Justices concurred. | [
-8,
66,
12,
-3,
-16,
10,
61,
-22,
52,
37,
10,
10,
41,
-13,
-6,
7,
-8,
-22,
-34,
-7,
-33,
-48,
-44,
-18,
-39,
1,
28,
-16,
-25,
-6,
-25,
25,
-29,
35,
-20,
35,
49,
-24,
-16,
-15,
2,
15,
-32,
-23,
21,
41,
15,
-28,
-15,
-18,
-17,
18,
28,
-42,
-28,
-44,
-64,
-14,
4,
5,
9,
-58,
-39,
-10,
-26,
23,
41,
-2,
57,
-23,
-25,
49,
-15,
-41,
45,
5,
23,
12,
-53,
20,
-10,
-1,
16,
-49,
-15,
-37,
-67,
-12,
-13,
-8,
-30,
-42,
-1,
-27,
16,
13,
14,
-7,
-33,
22,
-11,
48,
49,
9,
0,
4,
-54,
4,
-8,
12,
-6,
-48,
50,
-15,
-5,
-22,
-11,
-34,
-37,
-14,
24,
-24,
9,
28,
11,
-11,
-11,
-8,
9,
-10,
36,
-43,
-45,
26,
46,
13,
23,
-11,
43,
17,
35,
-5,
-52,
-36,
-38,
-15,
-13,
13,
-26,
-27,
-65,
8,
8,
-22,
-10,
17,
45,
-18,
50,
23,
21,
-12,
28,
-2,
-79,
7,
-19,
-21,
11,
59,
7,
19,
-14,
-40,
8,
5,
26,
-22,
-15,
20,
44,
5,
-26,
-1,
-32,
-44,
0,
8,
-19,
17,
39,
-5,
-20,
-30,
-40,
75,
-19,
-13,
-32,
12,
-30,
-50,
-32,
29,
-52,
5,
36,
51,
23,
7,
7,
32,
-41,
13,
25,
-37,
11,
6,
24,
-14,
49,
28,
41,
26,
-15,
-20,
23,
-1,
29,
-7,
28,
-35,
0,
-5,
-48,
9,
39,
22,
2,
16,
-15,
7,
-21,
-11,
-7,
-29,
-32,
-11,
-19,
27,
-53,
-56,
-45,
29,
35,
-30,
-6,
25,
-8,
21,
38,
39,
-10,
-37,
16,
-29,
-8,
-32,
-56,
7,
-17,
44,
21,
4,
-51,
-17,
-5,
-2,
-32,
22,
0,
-49,
8,
16,
-22,
16,
-4,
23,
-55,
21,
-12,
-1,
-44,
-25,
20,
32,
9,
-22,
-21,
-4,
-24,
-27,
-25,
-9,
-11,
24,
-30,
9,
6,
-7,
28,
0,
31,
-4,
-26,
37,
-1,
-4,
-15,
-27,
39,
72,
-14,
-5,
-7,
46,
10,
-24,
-63,
0,
4,
-3,
-36,
9,
18,
31,
-13,
-19,
-26,
-32,
50,
30,
43,
-2,
30,
30,
-8,
-18,
27,
-25,
24,
-5,
-29,
22,
2,
0,
-44,
21,
-8,
30,
56,
11,
29,
-17,
-15,
-10,
-30,
-27,
72,
-6,
-19,
23,
-28,
39,
-29,
-43,
17,
-31,
-24,
59,
12,
29,
57,
23,
65,
-9,
-45,
-24,
-15,
6,
-28,
-48,
-3,
35,
48,
-13,
-21,
14,
-52,
-33,
11,
11,
16,
-8,
-31,
27,
5,
-21,
22,
26,
-14,
-8,
17,
-44,
-11,
-7,
51,
2,
68,
-3,
-9,
43,
-12,
-24,
26,
3,
27,
-9,
6,
39,
-13,
45,
77,
27,
38,
35,
-13,
-20,
-55,
11,
-7,
10,
-9,
-17,
-43,
-23,
-22,
-3,
11,
-11,
10,
40,
-59,
19,
0,
34,
28,
14,
67,
23,
36,
-13,
30,
-11,
-16,
-31,
-8,
-56,
21,
8,
-11,
13,
23,
4,
-52,
-18,
6,
23,
-27,
-6,
50,
-14,
-4,
28,
4,
-44,
-16,
-3,
13,
-17,
69,
4,
3,
-10,
54,
-20,
-12,
-1,
50,
28,
15,
0,
-7,
2,
-14,
10,
-26,
26,
10,
29,
12,
-41,
-2,
-12,
-35,
30,
39,
-27,
-2,
9,
51,
-15,
-12,
-26,
6,
9,
46,
-6,
-16,
3,
-13,
-30,
-34,
-16,
9,
0,
-4,
-4,
6,
-18,
-17,
10,
46,
25,
-38,
34,
36,
3,
11,
22,
-36,
-3,
0,
-10,
-17,
20,
-5,
-34,
10,
14,
-19,
4,
41,
-43,
21,
-22,
35,
-28,
-22,
-38,
-46,
12,
34,
-40,
-15,
-17,
-33,
6,
18,
29,
-32,
-31,
-18,
-24,
22,
32,
56,
-8,
-16,
21,
-6,
42,
-36,
-36,
21,
-14,
50,
83,
-10,
-1,
21,
-62,
-21,
0,
25,
30,
-16,
13,
9,
28,
-24,
11,
15,
76,
19,
25,
19,
-43,
14,
13,
15,
0,
37,
15,
-55,
-18,
15,
12,
-60,
3,
-21,
-8,
0,
-7,
40,
-9,
27,
6,
15,
-34,
5,
18,
-26,
10,
-4,
-6,
-47,
-10,
6,
-26,
-57,
11,
47,
6,
19,
5,
-13,
5,
27,
18,
50,
-11,
10,
-14,
-32,
-30,
62,
-12,
28,
21,
19,
-28,
19,
30,
0,
-27,
3,
30,
83,
27,
35,
-8,
35,
15,
39,
-40,
26,
-24,
11,
21,
-27,
-7,
-4,
34,
3,
17,
53,
18,
15,
12,
5,
3,
19,
-2,
-31,
29,
12,
-1,
1,
-21,
39,
-39,
33,
-9,
-6,
24,
19,
-7,
-19,
15,
15,
0,
-60,
-28,
16,
-20,
2,
-27,
-64,
32,
4,
29,
3,
-17,
31,
-20,
-1,
29,
-33,
-58,
-11,
-50,
-31,
-9,
-24,
-20,
36,
23,
-39,
3,
-5,
8,
15,
13,
40,
-28,
-47,
16,
-24,
-27,
7,
-19,
30,
-13,
-25,
-34,
-11,
38,
-4,
-19,
-31,
-24,
-15,
-34,
30,
-19,
36,
0,
19,
-29,
-6,
-14,
9,
-8,
53,
-22,
29,
-15,
4,
-20,
-29,
-20,
-6,
0,
-47,
1,
-10,
35,
15,
-18,
-77,
29,
-22,
19,
-2,
29,
-37,
-1,
-36,
19,
-24,
-7,
-23,
-65,
3,
-4,
-7,
59,
-5,
2,
-17,
21,
-9,
-3,
-14,
13,
25,
6,
-14,
-12,
55,
-3,
2,
34,
-5,
-33,
15,
-4,
6,
-7,
0,
-44,
-2,
-43,
-10,
-25,
-31,
18,
16,
-37,
-40,
28,
4,
-29,
8,
-10,
3,
28,
23,
-3,
0,
-7,
-34,
-17,
10,
-47,
3,
-47,
-11,
16,
0,
12,
-61,
1,
49,
-3,
-12,
-43,
35,
20,
10,
4,
-13,
-15,
-42,
-22,
-6,
-17,
27,
62,
8,
-13,
20,
11,
-33,
-21,
5,
-20,
-39,
16,
1,
4,
-11,
28,
-19,
-26,
3,
-9,
59,
37,
-21,
-12,
-34,
-28,
-28,
-1,
-18,
-4,
-44,
8,
-5,
1,
-24,
-17,
-42,
-4,
12,
27,
-15,
23,
-9,
22,
-30,
-31,
36,
-30,
49,
-79,
-32,
44,
16,
-16,
-33,
23,
18,
-1,
46,
-44,
21,
44,
-41,
17,
8,
64,
26,
-39,
-22,
23,
-41,
-56,
26,
57,
8,
-17,
6,
-9,
48,
18,
5,
26,
-22,
-27,
11,
11,
50,
-28,
4,
8,
6,
-24,
47,
-6,
-70,
80,
43,
3,
2,
-23,
-12,
-41,
-13,
29,
16,
-20,
10,
-40,
-8,
-32,
-49,
-15,
51,
-11,
1,
8,
30,
-48,
55,
24,
35,
-28,
-44,
19,
73,
25,
12,
32,
-26,
22,
32,
10,
55,
-34,
1,
2
] |
Montgomery, J.
The complainant avers by its bill of complaint that it is a corporation, with its home offices at Colon, Mich.; that, prior to its organization, the defendant Isaac W. Lamb had organized a company at Concord, Mich., known as the “Lamb Knitting Company,” and that, at the time of complainant’s organization, it acquired all of the property, business, and good will of the Lamb Knitting Company from Isaac W. Lamb, and paid a valuable consideration therefor; that, at the time of the organization of the complainant, Isaac W. Lamb was interested in the organization of the company, and received a large amount of the capital stock; that the complainant assumed the name of the “ Lamb Knit-Goods Company” with the knowledge and consent and at the desire of Isaac W. Lamb; that the complainant was organized to conduct a business similar to that which had been previously ’ conducted by the Lamb Knitting Company, which was the manufacture and sale of knitted goods, principally gloves and mittens; that these gloves and mittens have in the main been knitted with a peculiar stitch, and that, from the connection of complainant’s name with said goods, the peculiar stitch has become known as the “Lamb Stitch;” that gloves and mittens may be manufactured by' the same machine with a different stitch, which will be equal to the complainant’s in durability; that the stitch used by the complainant is for the purpose of distinguishing complainant’s goods; that, after the ■organization of complainant, Isaac W. Lamb was in its employ for a number of years as superintendent, but that he became dissatisfied, and left complainant’s employ on the 8th of April, 1892; that thereafter he, with the assistance of others, organized a company known as the “Lamb Glove & Mitten Company,” at Perry, Mich., and commenced to manufacture gloves and mittens knitted with the same peculiar stitch as that employed by the complainant; that the name adopted by the defendant company is similar to that adopted by the complainant, and that purchasers and dealers are deceived thereby, and buy the goods of the defendant believing them to be the goods of the complainant; that the business of the complainant has been damaged thereby. Complainant avers that it is entitled to the exclusive use of the word “Lamb”. in connection with knit goods of any description, and to the word “Lamb” in its corporate name; that it has the exclusive right to use the peculiar stitch; and that for this reason the words “ Lamb Knit” have become and are a valid trade-mark at common law. The bill prays an accounting and an injunction.
The answer admits that the complainant assumed the name of the “Lamb Knit-Goods Company” with the knowledge and consent of Isaac W. Lamb, but denies that the complainant is entitled to the exclusive use of the words “ Lamb Knit,” or the urse of the word “ Lamb ” in connection with other words indicating knitted goods. The answer also admits that the complainant acquired all the property, business, and good will of the Lamb Knitting Company, but avers that Lamb acted in the transaction, not for himself, but as agent for the Lamb Knitting Corn pany. The answer also admits that the defendant corporation organized with, and is conducting a business under, the name of the “Lamb Glove & Mitten Company,” but denies the allegation that this name is so similar to complainant’s as to mislead purchasers and dealers. The answer further avers that the peculiar stitch adopted. by complainant has been in common use for many years; that the defendant Lamb is the inventor of the knitting machine upon which this stitch is made, and that he sold the rights, under patents granted to him, to the Lamb Knitting-Machine Manufacturing Company of Rochester, N. Y., and the Lamb Knitting-Machine Company of Springfield, Mass., which companies consolidated under the name of the “ Lamb Knitting-Machine Manufacturing Company of Chicopee Falls, Mass.,” and that this last-named corporation is still doing business under the name of the “Lamb Manufacturing Company,” and is manufacturing Lamb knitting machines; that in 1863 defend, ant Lamb invented a machine for knitting many kinds of knit goods, and procured a patent thereon, and afterwards procured patents on various improvements; that in 1885 he issued printed directions for using the “New Lamb Knitter,” manufactured by the New Lamb Knitter Company of Jackson, Mich.; that a large number of persons purchased these machines; that a large number of the persons and corporations which use these machines advertise such goods as made by the Lamb knitters, and that the name of “Lamb,” as applied to knitting machines, and the terms ‘ ‘ Lamb Knit ” and ‘ ‘ Lamb Goods, ” have been in common use in this country, by a large number of different persons, firms, and corporations, for more than 25 years.
The case was heard on pleadings and proofs, and the bill dismissed. Complainant appeals.
We are well satisfied that the complainant has not established its right to the exclusive use of the term “Lamb Knit.” The testimony shows that goods manufactured on the Lamb machine were in common use many years before the organization of' complainant company, and that, to distinguish such goods from goods knitted on other machines, they were designated as “ Lamb Goods,” “Lamb Machine Goods,” or “Lamb Knit Goods.” It also appears that the peculiar stitch which complainant claims exclusive right to was in common use before complainant adopted it.
The case narrows down to the single question whether the defendant infringed the rights of complainant by the use of a corporate name so similar to that of complainant as to mislead the public, and, if so, what remedy ought to be applied. There can be no doubt that by the transfer to the complainant of the good will of the Lamb Knitting Company it was the intention of the defendant Lamb to grant the right to use his name in connection with the complainant’s business. In fact, he assisted in organizing the corporation, and became a stockholder in the complainant company. The statute (3 How. Stat. § 4161a) authorizes the formation of a corporation, and provides that no two companies shall assume the same name, or a name so similar as to be liable to mislead. It is contended that the defendant Lamb had entered into no express agreement not to use his own name, and that Mr. Lamb, in making a sale of the Lamb Knitting Company to the complainant, was acting on behalf of the Concord company, and that the Concord company could not, and Mr. Lamb did not, sell the exclusive right to use Mr. Lamb’s name, nor undertake that he would not engage in any similar business elsewhere. It appears, however, that the proposition to the promoters of complainant came from Mr. Lamb, and, as before stated, he is estopped from asserting that the company did not take its name rightfully.
Reference is made to the case of Williams v. Farrana, 88 Mich. 473 (14 L. R. A. 161). That case, however, recognizes a distinction between a corporate name and that of a partnership. In the majority opinion it is said: “A corporate name is regarded in the nature of a trademark, even though composed of individual names, and its simulation may be restrained. After adoption, it follows the corporation.” Reference is also made to Supreme Lodge Knights of Pythias v. Improved Order Knights of Pythias, 113 Mich. 133. In the latter case there was no evidence that any person had been misled, and, while the case is near the line, the court held that the rights of complainant had not been infringed. In the present case the testimony shows that dealers have been misled, and in view of the fact that the complainant’s business is largely the manufacture of gloves and mittens, and that the name “ Lamb ” is prominent in the corporate name, we think it is likely to mislead. The case is very similar to Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462 (43 Am. St. Rep. 769). In that case the complainant’s name did not describe its business. The business was, in fact, the manufacture and sale of soap. The court restrained the defendant from carrying on the business in the name of the Higgins Soap Company. The court held that, even if the name was assumed in good faith, without design to mislead the public and acquire the complainant’s trade, the defendant, knowing the facts, must be held to the same responsibility. See, also, Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manfg. Co., 37 Conn. 278 (9 Am. Rep. 324); Myers v. Buggy Co., 54 Mich. 215 (52 Am. Rep. 811); Frazer v. Lubricator Co., 121 Ill. 147 (2 Am. St. Rep. 73); Pillsbury v. Flour Mills Co., 12 C. C. A. 432, 64 Fed. 841; Walter Baker & Co. v. Baker, 87 Fed. 209.
It is true.that the business office of defendant is not located in the same village as that of complainant, but it appears that the business has been conducted through agents largely, and that the public have, in numerous instances, been deceived. We think the case falls within the class in which protection should be afforded.
The decree will be reversed, and a decree entered restraining the defendant from continuing the use of the corporate name “'Lamb Glove & Mitten Company,” or any name in which the word “ Lamb ” appears, in connec tion with other words indicating a business similar to that of complainant. Subject to this restriction, defendant is at liberty to advertise its goods as made on the Lamb knitting machine.
The other Justices concurred. | [
-34,
-32,
11,
-37,
63,
44,
5,
-69,
11,
-3,
22,
2,
5,
-5,
14,
-14,
24,
-39,
11,
-21,
60,
-7,
-29,
-56,
2,
-1,
32,
-22,
-3,
-4,
5,
39,
3,
-29,
-4,
5,
34,
1,
1,
-56,
-9,
32,
29,
-78,
30,
13,
1,
-10,
57,
-47,
30,
-36,
7,
-10,
-66,
-66,
11,
19,
-64,
7,
13,
-39,
8,
-51,
0,
-46,
-1,
27,
-42,
-3,
-36,
13,
-60,
-48,
-43,
-68,
30,
-44,
-27,
-19,
-1,
3,
67,
-41,
-37,
31,
-15,
12,
-79,
12,
47,
30,
-8,
-37,
42,
36,
-12,
32,
-51,
4,
-14,
19,
-7,
11,
-30,
35,
-3,
-30,
-11,
57,
17,
46,
-6,
-24,
32,
-26,
-13,
-3,
10,
19,
-21,
30,
13,
22,
-19,
30,
18,
28,
-17,
63,
3,
25,
16,
-14,
-46,
-10,
8,
-10,
1,
18,
19,
37,
-20,
-16,
-47,
41,
-48,
31,
-29,
-58,
7,
-1,
39,
30,
3,
-32,
9,
-33,
70,
17,
-1,
46,
-29,
-3,
-40,
-11,
-18,
1,
-17,
-19,
-18,
41,
-12,
17,
-6,
-6,
-38,
-15,
-28,
-2,
2,
-44,
18,
-12,
-8,
-13,
3,
-34,
15,
0,
58,
-15,
-33,
-5,
-40,
-5,
19,
-30,
26,
-42,
10,
-13,
-31,
-39,
-4,
-15,
1,
-53,
-51,
-62,
-3,
19,
8,
12,
-26,
-8,
9,
-57,
-6,
21,
-14,
18,
-11,
26,
-54,
-75,
8,
17,
-10,
-58,
1,
-4,
20,
-25,
6,
-53,
35,
26,
7,
2,
-67,
-16,
21,
-30,
-25,
36,
11,
29,
-1,
24,
21,
37,
53,
8,
-29,
-33,
-65,
-12,
21,
0,
-53,
7,
-5,
20,
51,
-37,
24,
22,
-29,
27,
-35,
-18,
46,
64,
-39,
-29,
-23,
19,
50,
24,
15,
9,
-28,
-53,
17,
25,
-15,
20,
-51,
-18,
3,
26,
10,
-13,
62,
98,
45,
-38,
-9,
15,
-39,
2,
-31,
-12,
7,
61,
-31,
-3,
47,
-17,
-23,
-35,
-17,
-73,
23,
-8,
3,
49,
9,
-23,
16,
33,
21,
18,
5,
5,
-3,
8,
-11,
8,
9,
-58,
10,
-1,
-38,
-1,
36,
-33,
20,
-16,
7,
42,
67,
-12,
-17,
13,
-13,
-5,
-23,
-18,
-15,
24,
14,
-7,
71,
7,
-2,
-19,
-78,
43,
35,
10,
-47,
3,
2,
-14,
-6,
-13,
10,
25,
-5,
7,
0,
-16,
-13,
-34,
-71,
-27,
-41,
46,
10,
-1,
7,
-34,
57,
-29,
-18,
7,
-17,
-10,
-37,
59,
30,
40,
2,
12,
-19,
-18,
-14,
24,
8,
75,
-40,
-11,
-10,
-9,
25,
30,
16,
2,
-29,
14,
-21,
-9,
-28,
-19,
-5,
-74,
78,
4,
39,
-33,
25,
-9,
52,
-54,
30,
0,
5,
0,
-10,
-10,
23,
-16,
3,
-38,
-15,
3,
45,
-9,
16,
-2,
-29,
0,
18,
-2,
6,
62,
43,
-58,
51,
13,
-12,
-4,
2,
33,
3,
30,
63,
0,
23,
-4,
19,
-8,
38,
35,
42,
-1,
15,
31,
15,
-33,
23,
0,
-31,
-21,
70,
3,
-7,
-4,
3,
24,
0,
16,
9,
-27,
-48,
0,
12,
43,
20,
5,
0,
19,
11,
21,
-29,
-22,
5,
51,
8,
-12,
-10,
21,
9,
55,
-10,
-11,
39,
-33,
28,
-10,
34,
-32,
-26,
55,
16,
67,
-16,
13,
-14,
-2,
-13,
15,
16,
-30,
49,
7,
36,
-1,
57,
19,
-15,
44,
45,
8,
30,
-39,
-46,
-5,
13,
14,
42,
-6,
7,
-17,
14,
4,
21,
15,
2,
-5,
-21,
-35,
26,
33,
-17,
20,
57,
48,
-6,
5,
10,
-1,
14,
-14,
-4,
31,
34,
14,
-20,
51,
33,
47,
-1,
37,
-35,
0,
19,
-34,
10,
-89,
-7,
-54,
12,
8,
-3,
3,
-39,
-38,
30,
21,
-52,
-18,
62,
-11,
-15,
1,
42,
-19,
-4,
-15,
-20,
-59,
-53,
-26,
-85,
43,
-10,
-8,
-23,
-43,
23,
-41,
-36,
34,
-28,
-35,
52,
3,
31,
-14,
-39,
22,
-27,
-7,
27,
-42,
12,
24,
-32,
-67,
10,
32,
14,
35,
-1,
68,
-33,
-15,
-14,
-20,
18,
-46,
-32,
3,
30,
33,
8,
5,
-21,
10,
15,
-19,
-13,
-20,
54,
-12,
3,
29,
24,
-38,
1,
3,
32,
-15,
15,
0,
-22,
0,
2,
-32,
20,
0,
-19,
12,
-24,
-2,
21,
50,
8,
-34,
1,
-30,
52,
20,
82,
-23,
-58,
-22,
5,
-46,
-4,
-48,
47,
-3,
0,
-17,
-3,
-34,
-73,
-16,
30,
57,
65,
7,
0,
43,
34,
-27,
33,
-69,
30,
-12,
5,
25,
-39,
55,
29,
0,
16,
-17,
29,
-19,
68,
29,
14,
18,
18,
37,
3,
19,
12,
-6,
0,
7,
23,
-28,
-32,
9,
8,
-24,
-15,
-13,
-2,
17,
20,
-61,
32,
-20,
-17,
24,
-63,
-9,
43,
-64,
-22,
-34,
-66,
22,
15,
0,
61,
-44,
-31,
20,
-20,
-14,
15,
25,
-6,
45,
23,
-26,
37,
-39,
14,
-23,
21,
20,
27,
-37,
17,
29,
-13,
18,
36,
-18,
30,
-45,
2,
8,
-8,
-11,
-30,
-15,
35,
4,
-23,
-4,
33,
-14,
-19,
22,
14,
-43,
36,
9,
14,
1,
-33,
-19,
29,
-47,
61,
-29,
-57,
-50,
-11,
0,
-24,
-6,
13,
21,
25,
-75,
-9,
2,
-23,
-74,
9,
-2,
-21,
27,
20,
12,
20,
14,
11,
-24,
20,
7,
-7,
44,
16,
13,
-12,
23,
-69,
-10,
-71,
52,
-31,
19,
16,
-71,
2,
29,
-41,
28,
16,
3,
-48,
-9,
-4,
18,
-22,
-43,
27,
-43,
0,
17,
-32,
-51,
5,
0,
-47,
37,
37,
38,
-17,
-36,
30,
-7,
-1,
-10,
10,
-11,
-16,
-21,
21,
-51,
42,
35,
-8,
-31,
28,
-46,
-14,
1,
-5,
25,
12,
48,
24,
-11,
-7,
-50,
0,
0,
27,
4,
-29,
63,
-8,
-15,
36,
48,
-2,
-10,
-40,
-30,
0,
9,
-16,
32,
-26,
15,
22,
24,
10,
-6,
22,
20,
1,
-15,
6,
-70,
-20,
16,
41,
25,
-4,
-57,
-33,
10,
-22,
-24,
15,
-14,
-35,
63,
24,
56,
-28,
-23,
-30,
-33,
-33,
-11,
16,
22,
-12,
36,
-17,
25,
-13,
-6,
7,
-6,
4,
-3,
-1,
-26,
-19,
8,
-31,
-10,
25,
-24,
-6,
-32,
-5,
50,
6,
-43,
32,
-20,
-45,
-65,
-23,
67,
-29,
-34,
-19,
-45,
-10,
55,
25,
-41,
-5,
-20,
26,
-26,
12,
3,
29,
17,
45,
-35,
-12,
-3,
0,
45,
-28,
2,
-51,
30,
4,
20,
0,
-37,
-18,
74
] |
Brooke, J.
Plaintiff is the widow of Chauncey L. Staffan. Staffan had been a member of the defendant Cigarmakers’ International Union of America since September 15, 1894. He died October 11, 1917. The defendant is an association for the amelioration of labor, commonly called a labor union. It has headquarters in the city of Chicago and is made up of local unions maintained all over the United States, Canada, and Porto Rico, whose members are engaged in the cigarmaking industry. The parent body and the local unions of which it is made up operate under a constitution which the members take an obligation to support. Section 73 of said constitution provides:
“Any member other than retiring card holders, owing dues or assessments for eight weeks or more, stánds suspended from benefits. The death benefit shall not be included in the suspension from benefits in eight weeks’ arrearage. If the member or 20 cents dues paying members within two weeks from such suspension places himself within the eight-week limit and remains within such limit for ninety days from date of suspension, he shall be restored to his previous rights. Failing to comply with the above he shall stand suspended.”
Section 144 is as follows:
“Including the fifty dollars funeral or cremation expenses, there shall be paid upon the death of a member the following sums, viz.: If the decedent shall have been such member continuously for five years or longer period less than ten years next preceding his death, the sum of two hundred dollars. If the decedent shall have been such member continuously for ten years or longer period less than fifteen years next preceding his death, the sum of three hundred and fifty dollars. If the decedent shall have been such member continuously for fifteen years or longer next preceding his death, the sum of five hundred and fifty dollars.”
Section 144b is in part:
“Should any member be adjudged incurably insane or should any member be adjudged insane and committed to an institution for the insane and there remain for the period of two years and it shall then be the opinion of the officer in charge of such member that such insanity is incurable, then the amounts above provided to be paid in case of the death of such member (except the fifty dollars funeral or cremation expenses) shall become due and payable as in case of such member’s death.”
An exhibit taken from the ledger of the local union shows that Staffan on August 26, 1916, was in arrears 28 weeks ; that he. made payments on account thereof until at the end of 1916 he was in arrears 14 weeks. During the year 1917 he made payments reducing his obligation so that on June 23, 1917, he was less than 8 weeks in arrears. On that date the exhibit shows that he was dropped from the rolls under the provisions of section 144b above quoted. Staffan having been a member of the organization for upwards of 20 years, plaintiff was entitled to be paid the sum of $550 under the provisions of section 144 unless the fact that her husband had been in arrears more than 8 weeks during the year 1916 and the early part of the year 1917 operated to defeat her claim.
It is the contention of defendant that the provisions of section 73 relative to suspension are self-executing and that Staffan was automatically dropped from the rolls under the provisions of said section and never was reinstated under the provisions of section 67 which follows:
“Any member suspended by any local union can be reinstated on payment of $5, which may be paid in five weekly installments, or all at once, at the option of the union. But he shall forfeit all previous rights and benefits, and be considered the same as a new initiate. But this shall not be so construed as to mean the invalidation of any indebtedness, local or international, previously incurred. Nor shall any local union increase or diminish the fee herein set forth for the reinstatement, of any suspended member.”
John E. Kranich, the secretary of the local branch of which Staffan was a member, testified» that the last payment made by Staffan brought him within the 8 weeks’ limit fixed by the constitution. He further testified:
“At the time he was committed I wrote for instructions and they told me what entry to make.
“Q. In doing that you did not intend to suspend Mr. Staffan from the union?
“A. By the constitution he was suspended.
“Q. Was he ever before the local union?
“A. No, but if,—
“Q. Was he ever suspended by the local union?
“A. No. He never paid, the back dues without being urged. I went to see him, I didn’t really say to him he would have to pay up or I would have to drop him, but he finally did make it all up and at his death he had paid every assessment that was necessary to bring him within the constitution, he paid enough in amount to make 30c a week.
“Q. I believe you testified he was never suspended by this local union?
“A. He never was. * * * If we suspend a, man we do not still go around collecting dues from him, if he had been suspended under section 67 of our constitution he could have been reinstated on the payment of $5. He was not suspended by the local union, the International Union does the suspending. No matter what I do, I could pay sick benefits or do anything I have a mind to, to use up all the funds, but when the financier comes around he goes over all the books and checks up the items and if there are any sick benefits paid or dues collected that oughtn’t to have been' he checks it.
“Q. Does he notify the member that he is suspended?
“A. Why, yes.
“Q. Was Staffan ever notified that he was suspended?
“A. He was dead. No action was taken while Staffan lived.
“Q. He paid his dues to the local?
“A. Yes.
“The Court: What did the witness testify to as to the custom?
“Q. The .financial secretary comes around how often?
“A. About every five years.
“Mr. Balser: He testified they are automatically suspended.
“Q. Did other members ever fall behind?
“A. Yes, sir. There were several members who fell behind and were suspended. Staffan was never suspended.
“Q. Did other members ever fall behind?
“A. Yes, sir. There were several members who fell behind and were suspended. Staffan was never suspended by the local. The local secretary of this organization is the officer upon whom is laid the collection of assessments and weekly dues. It is one of my duties as secretary to collect either, 15, 20, or SO cents from each member each week and any assessment which may be levied by the C. I. U. A. That money is placed in the bank by the treasurer and is drawn on by the C. I. U. A., and money which Staffan paid into this fund from 1894 as assessments and benefits were drawn the same as the money from anybody else. He was never suspended. I do not know just what day it was I saw Staffan before he was committed, I would say about a week before, you couldn’t talk much of anything to him then, he did all the talking. I did think he paid the 50c before he was committed. He paid that in four installments and paid it off, that was entirely all right. The money is now in the hands of the C. I. U. A., and no money has ever been returned to Mr. Staffan, only that he got sick benefit under the constitution,”
• — and on cross-examination:
“A. The C. I. U. A. did not know, they have no way of knowing. The C. I. U. A. had no way of knowing until after Mr. Staffan’s death that Mr. Staffan had ever been back in his dues. On page 125 it is shown that Staffan was some 28 weeks back in the payment of his dues, but it is true that he paid along until he caught up, the local union accepted his money so that at the time of his death he was inside the eight-week limit or period and the $2.61 that he was back would not cut any figure as bearing on the claim he might have for $550. $500 of that money is for the wife and $50 is for funeral expenses.”
Further on re-examination:
“The financial secretary came here last on October 17, 1917. That was after Staffan’s death, before that he was here about 1912. I do not know whether Mr. Staifan [was] behind in his dues in 1912. I haven’t that in this book. It is true, members get behind in their dues and I go around and touch them up. We have to pay the local assessment. I go around and collect it and take it as dues and they expect to get the benefit of it.
“Q. And you lead them to believe they .will if they pay,—
“A. I am not trying to lead anybody. I suppose I might of told Chauncey Staifan that he would better hurry up and pay up or I would suspend him.
“Q. And he did pay up?
“A. He paid up.
“Q. And get within the limit, and all the suspending that is ever done is done by the local union?
“A. Well,—
“Q. And if you once suspend him and he wants to get back in, it costs,$5, that is true?
“A. Yes, it costs* him $5 to get back, but we are governed by the local union. It would not make any difference to me personally if Chauncey’s'wife got the money, I would like to see her get it, but as an officer of the union I cannot pay it, I have to live up to the constitution and see that it is enforced. Under the constitution if there is no beneficiary designated the wife is the beneficiary and Mrs. Staifan is entitled to this benefit if it is paid. * * *
“I do not know whether Staifan was ever behind in his dues prior to the time the secretary came around and before in 1906 or 1907 when he was sick, I cannot tell what happened then. I was at Howell. Staifan was allowed to pay up. The money was taken as dues. * * *
“This book which I hold in my hand is a day-book Ex. 5. Some of the entries were made in 1906.
“Q. State whether or not that book shows whether Chau'ncey Staffan was behind in his dues in the year 1906?
“A. It does not show, no. This day-book shows he paid $6.60 dues.
“Q. If he had been up in his dues he would not have paid that much?
“A. No, that is not quite sure. He was secrétary around 1906 before the last time. He was not suspended but he lost his office as secretary, he continued tp pay his dues.
“Q. And the C. I. U. A. secretary had knowledge of the fact he was behind?
“A. Why, sure.”
Upon an examination of this testimony we think it affirmatively appears that Staffan was in arrears as early as the year 1906. It appears that the financial secretary of the supreme body visited the locals about once in five years; that he was here in 1917, in 1912, and presumably in 1907. The visits in 1907 and 1912 occurred after Staffan’s delinquency in 1906 and the secretary of the supreme body according to the testimony of Kranich had knowledge of such delinquency. It further appears that during the years 1916 and 1917 Staffan was urged to make payments to the local in order to prevent suspension and that he made such payments for that purpose to a point which finally, and shortly before his commission as an insane person, brought him within the constitutional period of 8 weeks.
It is elementary that the law abhors forfeitures and will avoid them whenever reasonable ground can be found for so doing. We are of opinion that the facts in this case bring it clearly within the rule laid down in Wallace v. Mystic Circle, 121 Mich. 263, wherein we quoted with approval the following:
“If the company has, by its course of conduct, acts, or declarations, or by any language in the policy, misled the insured in any way in regard to the payment of premiums, or created belief on the part of the insured that strict compliance with the letter of the contract as to payment of the premium on the day stipulated would not be exacted, and the insured in consequence fails to pay on the day appointed, the company will be held to have waived the requirement, and will be estopped from setting up the condition as cause for forfeiture. In determining whether there has been a modification of the terms of the policy by subsequent agreement, or a waiver of the forfeiture incurred by the nonpayment of the premium on the day specified, the test is whether the insurer, by his course of dealing with the insured, or by the acts and dealings of his authorized agents, has induced in the mind of the insured an honest belief that the terms and conditions of the policy, declaring a forfeiture in event of nonpayment on the day and in the manner prescribed, will not be enforced, but that payment will be accepted on a subsequent day or in a different manner; and when such belief has been induced, and the insured has acted on it, the insurer will be estopped from insisting on the forfeiture. See Jones v. Assurance Co., 120 Mich. 211.”
See, also, Lord v. Protective Society, 129 Mich. 335. The recent cases of Edgerly v. Modern Maccabees, 185 Mich. 148, and Sumerlin v. American Fraternal Stars, 202 Mich. 154, upon which defendant seems to principally rely, have been examined. We are of opinion that the facts in the case at bar are so at variance with those considered in the cases cited as to render them inapplicable here.
Judgment is affirmed.
Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred with Brooke, J.
Ostrander, C. J. In my opinion Staff an stood suspended at the time of his death. | [
33,
-37,
-12,
-5,
24,
25,
-2,
-16,
47,
-3,
-5,
33,
41,
11,
58,
-4,
36,
-21,
26,
34,
-6,
-52,
-1,
-46,
-2,
13,
-9,
-20,
-8,
9,
-8,
-24,
19,
-88,
-42,
-17,
5,
-39,
1,
-12,
-3,
-24,
-17,
51,
5,
7,
-40,
-4,
3,
4,
-18,
-12,
27,
12,
8,
54,
9,
-3,
-39,
71,
3,
-55,
39,
-23,
35,
10,
7,
53,
-2,
-8,
12,
-29,
-25,
-12,
-10,
-7,
26,
-15,
-47,
-18,
12,
-26,
-18,
-13,
-42,
-41,
-43,
48,
-2,
31,
23,
-21,
-11,
-5,
-33,
-2,
3,
69,
-30,
23,
59,
-71,
-28,
46,
-11,
17,
10,
12,
-40,
-41,
-17,
34,
70,
50,
5,
-2,
-34,
-12,
-42,
36,
47,
-5,
-4,
-19,
-21,
4,
5,
73,
0,
43,
27,
-6,
-6,
-47,
-14,
-10,
32,
-15,
15,
-56,
-31,
61,
-26,
-26,
47,
21,
25,
7,
-25,
-42,
-33,
33,
32,
-25,
28,
-16,
60,
-11,
14,
21,
9,
-29,
-3,
3,
-32,
-48,
-17,
-20,
-27,
11,
-45,
-10,
-20,
0,
20,
23,
-13,
-17,
4,
33,
-37,
35,
-33,
25,
20,
-42,
-29,
-29,
49,
-7,
-45,
-48,
36,
1,
-3,
-5,
17,
-16,
0,
27,
14,
54,
-23,
26,
-25,
22,
3,
48,
-53,
14,
23,
16,
20,
-18,
-63,
20,
-47,
-34,
-32,
-34,
-67,
15,
19,
23,
-6,
-61,
36,
24,
-15,
-52,
-18,
40,
25,
44,
20,
-8,
-21,
-13,
41,
19,
-35,
-19,
0,
-5,
38,
-4,
-15,
19,
-11,
24,
-16,
35,
27,
23,
-29,
3,
-10,
26,
-20,
-30,
-27,
35,
-3,
26,
14,
-41,
55,
41,
26,
22,
-24,
-48,
33,
-4,
1,
-26,
30,
-6,
32,
-25,
-10,
31,
-57,
-54,
-23,
-1,
-25,
-35,
-35,
11,
29,
10,
22,
-4,
39,
25,
-10,
22,
29,
24,
3,
16,
4,
1,
-5,
44,
-41,
3,
0,
-40,
-18,
-9,
-15,
9,
20,
11,
-35,
-14,
-5,
-32,
-29,
-4,
-13,
3,
9,
-38,
-2,
7,
19,
-13,
-7,
-6,
-9,
-31,
-27,
-9,
-15,
28,
-40,
-16,
33,
23,
12,
-17,
-52,
-20,
42,
6,
-32,
-11,
-42,
0,
73,
-1,
-11,
93,
6,
46,
-14,
21,
35,
-2,
-3,
29,
11,
17,
13,
-5,
-26,
-3,
59,
37,
-11,
-37,
-40,
16,
-51,
83,
43,
47,
-10,
-1,
44,
-21,
-28,
16,
-35,
-16,
6,
32,
-18,
42,
-46,
73,
-56,
47,
-1,
40,
25,
-11,
-52,
19,
-7,
-49,
33,
-6,
-49,
20,
-20,
61,
-13,
23,
-14,
-18,
23,
-4,
15,
-36,
-8,
-34,
84,
-41,
27,
45,
-17,
-37,
-57,
44,
9,
-23,
-12,
-28,
0,
-33,
-64,
-48,
-9,
11,
25,
-7,
-4,
0,
46,
-29,
5,
3,
-44,
-9,
44,
-45,
-17,
-35,
-11,
59,
-23,
-18,
1,
67,
4,
-2,
-30,
-40,
0,
40,
56,
8,
-39,
36,
31,
18,
-15,
-44,
66,
11,
-39,
-68,
16,
-20,
-8,
-12,
32,
44,
-28,
-54,
-15,
-20,
5,
-3,
-19,
-11,
37,
-37,
8,
-7,
-23,
35,
-9,
-11,
-45,
-6,
1,
38,
12,
3,
-2,
-50,
-21,
-42,
28,
-15,
-11,
-21,
-29,
37,
13,
-1,
2,
14,
25,
14,
38,
41,
-60,
38,
7,
-50,
2,
-3,
0,
-16,
-25,
-12,
16,
-4,
20,
-15,
-37,
-3,
-23,
-47,
10,
36,
12,
-6,
-40,
-53,
-22,
1,
20,
29,
-51,
-46,
-18,
-17,
-6,
-51,
9,
14,
43,
17,
-46,
-6,
18,
25,
0,
-16,
-23,
34,
70,
-32,
-18,
69,
-12,
37,
-9,
30,
56,
-7,
-3,
0,
10,
-28,
3,
9,
-8,
6,
-61,
20,
-9,
11,
17,
33,
10,
6,
27,
19,
-6,
3,
2,
19,
-24,
20,
-7,
-16,
-42,
2,
4,
-24,
22,
6,
-7,
10,
-25,
-80,
-23,
8,
0,
-34,
7,
-16,
1,
25,
-14,
2,
-6,
-10,
0,
1,
33,
63,
-6,
-61,
24,
-12,
-58,
-9,
-6,
17,
-1,
-32,
-21,
-13,
49,
21,
-33,
-12,
57,
2,
-14,
-14,
-21,
34,
-6,
14,
-40,
-15,
-24,
22,
-29,
-25,
-14,
18,
-21,
20,
-2,
62,
20,
-5,
-45,
8,
64,
23,
33,
-8,
44,
-12,
-19,
4,
0,
28,
-68,
-32,
41,
39,
9,
4,
-9,
-25,
-35,
12,
25,
5,
9,
0,
-46,
7,
0,
-49,
7,
-6,
-11,
28,
-56,
55,
-27,
12,
-10,
10,
-28,
23,
-13,
-42,
16,
10,
12,
3,
53,
-36,
-3,
-11,
20,
-52,
-31,
27,
49,
68,
13,
25,
-37,
-54,
8,
0,
-67,
14,
67,
19,
2,
-19,
-15,
46,
9,
-25,
18,
3,
40,
-44,
-83,
-13,
30,
56,
-55,
11,
0,
-49,
-2,
-12,
17,
-1,
-16,
1,
-20,
44,
54,
14,
0,
41,
-8,
54,
46,
-13,
6,
30,
1,
-12,
-1,
63,
-39,
-11,
-77,
23,
32,
19,
38,
-12,
11,
-37,
-4,
26,
-39,
10,
-53,
-64,
25,
34,
-20,
-8,
-14,
-25,
23,
-11,
15,
-24,
-9,
43,
16,
-11,
27,
-36,
-26,
-32,
-15,
-63,
3,
11,
-66,
6,
-13,
-3,
-8,
37,
28,
22,
40,
17,
53,
-64,
-6,
-5,
-24,
3,
-8,
24,
4,
-6,
-24,
26,
-48,
-39,
-11,
-32,
21,
-26,
12,
78,
3,
34,
-8,
40,
-26,
-1,
40,
-24,
-59,
17,
-57,
-24,
-7,
-52,
-4,
8,
28,
6,
16,
-29,
-31,
-14,
-18,
8,
20,
-44,
-28,
-4,
15,
-13,
-40,
18,
-21,
21,
23,
-17,
-44,
27,
41,
0,
41,
30,
2,
-2,
-22,
17,
30,
-10,
-20,
16,
-31,
0,
-8,
13,
-1,
14,
18,
31,
37,
-51,
27,
1,
17,
-27,
-17,
32,
15,
-17,
-26,
55,
-3,
87,
-9,
68,
-1,
-20,
-33,
-19,
22,
-16,
-18,
10,
25,
12,
-19,
26,
-31,
-17,
60,
-3,
44,
8,
7,
-35,
11,
-37,
-28,
19,
-17,
-7,
25,
39,
33,
1,
22,
-13,
-28,
8,
67,
53,
-48,
-76,
-3,
17,
9,
51,
-12,
18,
26,
11,
79,
18,
-42,
-2,
-6,
-48,
31,
-1,
-21,
-1,
20,
-21,
48,
0,
16,
5,
-29,
-47,
12,
37,
-44,
-28,
23,
-30,
4,
-4,
9,
-7,
-25,
17,
10,
-17,
23,
18,
24,
4,
-2,
-8,
23,
35,
40,
-1,
-36,
-21,
-14,
-27,
-40,
-76,
-16,
-3,
-12,
46,
-51,
-26,
-56,
5,
46,
16,
-18,
5
] |
Fellows, J.
From this record it appears that defendant has at least two plants in the city of Detroit. The distance between them is five or six miles. It transports material from one to the other by auto trucks, which have trailers attached to them. The usual route taken passes along McGraw avenue, an east and west street, said to be 26 or 28 feet wide from curb to curb at the place of the accident herein involved. Plaintiff’s decedent, a little girl lacking one week of being four years old, was so seriously injured by one of these trucks that she died within a few hours. The declaration in this action brought by plaintiff, father of deceased, as administrator, under the “survival act,” counts upon the negligence of defendant as the proximate cause of her death. Upon the trial plaintiff called as an adverse witness under the statute the driver and cross-examined him at length. He testified that the accident occurred about half past 10 in the forenoon; that he was going from plant No. 1 to plant No. 3 with a load of automobile tops, proceeding west on McGraw. The truck consisted of a new six-cylinder Studebaker without the touring body, upon which the trailer attachment was placed; the trailer was about 20 feet long and was somewhat wider than the automobile proper. He testifies that he was going from 8 to 10 — 10 to 12 miles an hour; that he was on the right (north) side of the street; that he proceeded across Linwood avenue; that the little girl came out from behind a vehicle, variously called in the record a “mud wagon,” a “mud hack,” a “dump wagon”; that she came from the south; that he sounded his horn., applied his brakes, turned his machine to the right; that “she kept running right in”; that he reached out and pushed her back from the machine. Subsequent events tend to show that she was run over by the trailer. He testifies that but- for the dump wagon he would have seen the child. There is no other testimony as to how the accident happened. There is testimony that there were tracks of the automobile wheels on the curb, but this tends to corroborate the driver’s testimony that he turned his machine to the right in attempting to avoid the accident, rather than to disprove it.
After the accident the driver was taken before the prosecuting attorney and interrogated in the presence of a stenographer. He was also called as a witness upon the coroner’s inquest. The stenographers’ transcripts were offered in evidence. They are not incorporated in the bill of exceptions, but defendant’s counsel conceded they do not show any statement by the witness with reference to the dump wagon. Plaintiff’s counsel argues from this that the credibility of this witness was for the jury; that there arose a question of fact for the jury to determine; that the trial court erred in not submitting such question of fact to the jury and in holding that there was no testimony controverting the testimony of the driver as to the manner in which the accident happened. The difficulty with counsel’s contention and its availability to work a reversal of the case lies in the fact that there is no evidence in the case, either direct or circumstantial, that the accident happened in any other way than as testified by this witness. If plaintiff had introduced evidence showing or tending to show negligence, or had established facts from which an inference of negligence might be legitimately drawn, then the credibility of this testimony and the weight to be given it would be for the jury. But the happening of the accident alone is not evidence of negligence of the defendant sufficient to take that question to the jury. And. unless there was some evidence, either direct or circumstantial, that defendant’s negligence was the proximate cause of the death of decedent, a case was not made for the jury. If we should follow counsel’s contention to its logical conclusion, it would result that by calling an adverse witness under the statute and then producing evidence discrediting him, without any affirmative evidence of negligence, either direct or circumstantial, a case for the jury would be made out. We cannot subscribe to such a doctrine. The plaintiff is bound to prove his cause of action. He must make a prima facie case of negligence of the defendant before he is entitled to take the judgment of the jury. In the instant case he failed to do this. The defendant’s truck was on the right side of the street; there is no evidence of any defect in the brake; no evidence that the driver was exceeding the limit of speed prescribed by the statute or by any ordinance of the city of Detroit; no evidence that the driver did or failed to do anything which produced or would have prevented the accident. The case is clearly distinguishable from Winckowski v. Dodge, 183 Mich. 303, and quite like Barger v. Bissell, 188 Mich. 366. We may well dispose of this case with the concluding portion of the opinion in, that case.
“Drivers upon highways are not held as insurers against accidents arising from negligence of children or their parents, and though in law such negligence in a particular case may not be a defense, as contributory negligence, for a driver also guilty of negligence, the fact of an accident does not establish liability or raise a presumption that the driver is negligent.
“A careful consideration of the record in this case leads to the conclusion that this unfortunate accident occurred as the result of an emergency on the highway which arose through no fault of the driver, and that his conduct, under the circumstances disclosed by the evidence, raises no inference of actionable negligence which makes out a prima facie case.”
The judgment is affirmed.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
-6,
58,
27,
-16,
17,
-23,
-16,
-7,
18,
1,
-38,
-13,
36,
12,
16,
28,
72,
15,
-18,
-6,
10,
-41,
-25,
-21,
-25,
-7,
9,
-58,
-23,
35,
-23,
-4,
27,
-19,
-36,
32,
56,
-10,
40,
-15,
-17,
-2,
21,
4,
53,
3,
85,
25,
53,
-18,
1,
-6,
19,
-17,
14,
-32,
53,
64,
1,
41,
27,
-48,
40,
-32,
-39,
13,
30,
7,
0,
35,
-45,
14,
-3,
37,
-4,
-13,
18,
34,
-6,
23,
0,
16,
74,
14,
-8,
-16,
-46,
-16,
-35,
-37,
13,
-6,
-21,
14,
15,
3,
-42,
-25,
-24,
-27,
-31,
29,
29,
18,
-42,
-13,
-14,
-39,
8,
9,
22,
26,
18,
52,
17,
-11,
41,
-11,
5,
16,
32,
-39,
-23,
-40,
-14,
-6,
-32,
19,
50,
-6,
39,
12,
57,
27,
81,
0,
-30,
-46,
22,
57,
2,
39,
-15,
39,
-45,
47,
-36,
48,
-25,
-28,
-19,
8,
-26,
-52,
31,
-22,
23,
0,
45,
20,
-1,
-30,
29,
4,
-63,
13,
-42,
12,
-16,
-8,
2,
-12,
9,
-36,
47,
32,
-36,
48,
-73,
-14,
-10,
-17,
31,
-37,
-46,
-47,
5,
17,
-20,
-6,
10,
-17,
-10,
-39,
0,
38,
3,
-28,
24,
10,
47,
-23,
-11,
-56,
-13,
32,
-28,
23,
28,
-15,
56,
2,
25,
-30,
-21,
1,
8,
-40,
-2,
6,
16,
-46,
26,
-26,
-6,
-27,
-53,
-33,
5,
-1,
41,
-29,
-3,
30,
-20,
-12,
1,
-56,
12,
0,
51,
0,
6,
2,
60,
50,
-31,
-23,
-1,
4,
0,
3,
-17,
-25,
-39,
-51,
-40,
30,
-5,
-3,
16,
64,
28,
38,
53,
20,
-26,
32,
-17,
-42,
-19,
-34,
32,
-29,
-53,
-45,
14,
34,
31,
16,
-12,
-40,
-15,
-27,
15,
0,
-64,
16,
-43,
-8,
50,
-12,
21,
-7,
17,
9,
51,
-11,
-34,
6,
20,
4,
-45,
-19,
30,
4,
-45,
4,
13,
37,
-8,
-9,
4,
23,
49,
16,
39,
-13,
38,
32,
-41,
73,
-21,
-3,
-7,
40,
1,
10,
5,
2,
16,
69,
45,
21,
0,
-21,
-25,
4,
-4,
-11,
-16,
38,
-10,
17,
-26,
0,
72,
14,
2,
-27,
-20,
-59,
35,
-48,
-12,
-17,
58,
-6,
-4,
36,
16,
-42,
13,
25,
-22,
-89,
19,
-38,
-46,
44,
44,
-8,
-34,
56,
36,
-92,
-7,
-27,
7,
44,
5,
-13,
22,
-42,
5,
-20,
11,
-66,
-14,
59,
-51,
-4,
16,
10,
25,
-26,
-9,
76,
-38,
-14,
-2,
30,
13,
20,
26,
13,
-8,
-8,
-10,
-36,
-31,
-7,
32,
40,
15,
4,
23,
-31,
-63,
-63,
24,
23,
21,
-29,
27,
-4,
-7,
-4,
31,
-22,
23,
5,
6,
7,
1,
-10,
-56,
-16,
9,
-22,
-8,
-27,
5,
4,
-4,
32,
-18,
-10,
19,
-50,
59,
35,
14,
36,
25,
37,
2,
34,
18,
-9,
-53,
-59,
16,
3,
-30,
-20,
46,
-41,
24,
4,
-18,
44,
-33,
-2,
42,
-43,
-37,
20,
3,
-10,
-35,
50,
-23,
-18,
-27,
-54,
-26,
18,
18,
3,
53,
-11,
-39,
5,
-27,
18,
-6,
62,
-28,
-39,
-28,
-12,
1,
-4,
23,
-24,
18,
1,
-16,
-11,
1,
-15,
-1,
-21,
-16,
25,
-38,
14,
86,
4,
15,
3,
-28,
12,
-38,
-38,
41,
-27,
-42,
-23,
26,
-31,
1,
33,
0,
-37,
-42,
36,
-52,
-24,
13,
-3,
-13,
-68,
-26,
-55,
-1,
40,
-11,
12,
25,
-23,
0,
-45,
36,
-26,
3,
-24,
-36,
36,
-30,
3,
15,
7,
52,
7,
5,
-19,
77,
-42,
-52,
54,
25,
-28,
-15,
7,
17,
31,
-56,
-12,
-24,
5,
-4,
0,
-57,
-11,
13,
6,
-3,
-1,
-22,
-14,
-18,
8,
55,
14,
1,
1,
40,
-36,
41,
-27,
-7,
27,
13,
11,
-41,
-39,
-4,
-35,
16,
-31,
-23,
-15,
-15,
4,
-70,
4,
38,
-22,
-20,
-20,
-10,
68,
-29,
-37,
3,
4,
-43,
17,
-75,
-3,
-89,
27,
-26,
-58,
73,
42,
-18,
-10,
15,
14,
54,
-27,
-19,
-37,
-45,
0,
-58,
-11,
-56,
-3,
0,
-15,
-16,
5,
5,
-2,
-17,
14,
14,
1,
-53,
-19,
-44,
-22,
14,
-35,
-8,
-5,
33,
7,
8,
9,
25,
36,
-28,
46,
43,
7,
-3,
6,
-3,
-1,
48,
2,
38,
35,
33,
-34,
-16,
14,
16,
21,
-35,
13,
51,
-23,
-22,
-77,
-30,
25,
-47,
58,
-23,
33,
12,
11,
13,
5,
-6,
30,
42,
-1,
-32,
64,
2,
-28,
-29,
-7,
16,
-2,
-21,
-27,
-14,
19,
29,
-10,
-39,
-49,
30,
-20,
5,
-17,
37,
0,
29,
-39,
-12,
-29,
7,
2,
13,
-33,
-72,
-23,
-15,
-3,
17,
1,
-2,
22,
55,
14,
4,
-21,
42,
0,
-39,
-44,
-4,
-29,
18,
0,
-10,
42,
13,
44,
13,
-21,
-40,
12,
-28,
-24,
-29,
20,
-36,
1,
29,
-23,
6,
-21,
14,
21,
9,
-12,
-18,
32,
26,
8,
25,
5,
24,
37,
-11,
3,
-28,
12,
23,
-6,
-4,
-3,
-15,
29,
25,
-61,
0,
34,
33,
21,
9,
42,
-19,
-43,
-13,
22,
38,
7,
-51,
27,
35,
5,
-10,
-35,
3,
-3,
3,
-44,
14,
-8,
32,
-49,
2,
35,
-12,
48,
55,
-17,
-3,
-15,
16,
72,
-31,
6,
-14,
22,
-20,
7,
43,
26,
-8,
-31,
-18,
7,
-14,
1,
13,
7,
-22,
47,
-20,
-17,
-60,
-22,
-9,
-17,
-5,
-54,
-26,
18,
30,
56,
19,
9,
-5,
-38,
-39,
-37,
30,
34,
52,
-44,
43,
36,
-12,
-4,
25,
-34,
-14,
10,
-9,
-6,
0,
-31,
-40,
-14,
-31,
38,
39,
-55,
3,
9,
-16,
20,
-26,
-25,
-12,
12,
-80,
-49,
6,
0,
-10,
32,
-17,
14,
-12,
43,
-3,
-34,
-22,
-19,
13,
32,
33,
-3,
-13,
2,
-6,
51,
23,
-42,
19,
-38,
36,
0,
-18,
-54,
-42,
-44,
38,
10,
-31,
37,
20,
-11,
24,
-7,
-55,
15,
42,
-7,
-15,
37,
-20,
20,
-15,
20,
7,
49,
27,
6,
22,
28,
32,
-31,
-20,
-16,
-21,
-30,
-3,
19,
-29,
-24,
59,
-30,
16,
11,
-31,
-25,
3,
-22,
-30,
30,
16,
-56,
-10,
-49,
-19,
52,
-64,
26,
9,
31,
-5,
13,
-19,
-9,
36,
-36,
9,
16,
0,
44,
4,
28,
-28,
-14,
-17,
11,
-45,
18,
-27,
41,
35,
70,
-19,
-6,
-3,
-29,
21,
-18,
37,
15
] |
Steere, J.
Plaintiff recovered a verdict and judgment in the circuit court of Alpena county in the sum of $500 claimed as balance due him under employment by defendant, as special accountant, or auditor. Admitting service by him in that capacity under terms which are partially in dispute defendant contends as a matter of fact and law that full payment had been made for all services rendered. The defendant Qnaway-Alpena Telephone Co. was promoted and incorporated with a view to acquiring and holding the franchises and property of three less pretentious organizations known as the Onaway Telephone Co., The Alpena Mutual Benefit Telephone Co., and an unincorporated telephone system belonging to one Frank Calkins, at Gaylord. This scheme had its origin in the Onaway Telephone Co., which grew out of a telephone system at Onaway installed and run by John M. Clark, for a time, and later incorporated by him with, an authorized capitalization of $4,000, which he increased by 1909 to $50,000, he and his wife owning all but three shares. Subsequently they, with some other parties who had become interested, applied for and obtained permission from the Michigan railroad commission to increase their capital stock to $100,000. In 1911, Clark and one Morris T. Streeter, who was a somewhat reckless if not unscrupulous promoter, conceived the idea of organizing and promoting the defendant company to acquire and combine the three systems mentioned. Clark, his wife, and Streeter accordingly organized the defendant Onaway-Alpena Telephone Co. in October, 1911, with a capitalization of $1,000,000, and became its directors at the first stockholders’ meeting, Clark being elected president, and his wife secretary and treasurer. They obtained permission from the Michigan railroad commission to sell $180,000 worth of stock, the order providing that they were to pay from the proceeds $20,000 for the Calkins property, $62,250 for the Alpena company and exchange stock of the new corporation for stock of the Onaway Telephone Co. which had been issued and sold. They then entered upon a campaign of stock selling with Streeter as the active sales agent, blank certificates signed by Clark as president and his wife as secretary being liberally turned over to him in that shape for sale and disposed of by him in various ways and amounts to numerous purchasers in different parts of the State. It is indicated that more stock was disposed of by him than the company was authorized to issue. A witness named White, an experienced bookkeeper and accountant, who succeeded Clark’s wife as secretary and treasurer, testified of that phase of the situation:
“Going back into these stock transactions, the condition of the stock certificates themselves, if they wanted to find out who had bought any of them and transferred them, when there were no transfers on the stock certificates, a man could easily put in - a year and at the end of that time he would know just about as much as when he started.”
It was shown, however, that the company sold and realized on stock to the amount of $162,150, of which $50,000 worth went to Clark in purchase of or exchange for his stock in the Onaway Telephone Co.
Clark, Streeter, and White, who succeeded Clark’s wife, constituted the board of directors until July, 1918, when certain of the outside stockholders in different parts of the State became solicitous about their investments and actively interested themselves in the affairs of the company, which at the annual meeting of stockholders in July, 1913, resulted in a change of directors and control of the business of the corporation. The case of Clark v. Onaway-Alpena Telephone Co., 196 Mich. 168, may be referred to for further introductory matter, showing conditions and dissensions leading up to the events under consideration here.
In October, 1913, the board of directors consisted of Charles S. Davis and John W. Allen of Adrian, Charles Ruthruff of Jackson, Charles R. Henry of Alpena, and John M. Clark, who for a time continued a member of the board and was retained in the company’s employ as its secretary and manager of the physical and mechanical side of the company’s affairs after that board acquired control. Davis was elected president and, in addition to his duties in that capacity under the by-laws, was given, by resolution of the board, personal management of the commercial and business side of the corporation “with oversight and authority over all employees,” except as delegated by him to others.
A meeting of the directors held in Alpena, on October 21, 1913, was adjourned to October 25th at Jackson, where it was attended by four of the five members. Previous to this meeting a project to raise money by bonding had been mooted and the employment of an expert accountant to examine the books and records of the company and ascertain its true financial condition had been discussed by some of the directors. Plaintiff had been recommended to director Allen as an experienced accountant and auditor, and Allen had wired him to come over from Lansing for an interview that day and meet him in Jackson at the union depot. In response he went over to Jackson in the morning and between trains had an interview with directors Allen, Ruthruff and Davis upon the subject of his employment for the purpose proposed. He was at that time engaged on other work which he informed them he must first finish, told them that if employed his terms would be $10 per day (whether with expenses added is a matter in dispute), that he could not give them any estimate how long it would take or the approximate cost of an audit and, in reply to their suggestion that he go up to Alpena to tentatively look things over, said he would do so if they would pay his expenses. At the directors’ meeting a resolution was passed authorizing the president to take up with plaintiff “the matter of examining the books, papers and accounts of the company and ascertain if his work will obviate the necessity of having the same work done again when steps are taken to bond the company,” and the cost of the same. Davis wrote plaintiff making inquiry along the line of the resolution as did Allen also, to which plaintiff replied telling of his experience but otherwise without answer as to the cost or results, and on November 22, 1913, went to Alpena at Davis’ suggestion, returning home before Thanksgiving, and back to Alpena on November 26, 1913, where he remained working in defendant’s office most of the time until April 21, 1914. He testified that he could not and did not tell them how long it would take to make the audit or give them any estimate of the cost. For his services during that period he rendered bills for 119 days at $10 per day and expenses amounting to $387.96, making his total charge $1,577.96, upon which he received payments at different times amounting to $960.38, leaving a claimed balance of $617.58, to recover which, with interest, this action was brought.
Defendant pleaded the general issue with notices of special defense, the substance of which was that his employment was never authorized by the board of directors and no definite or express contract of hiring was ever entered into; that plaintiff never made any report or statement respecting his supposed audit of the books or statement of an accounting to defendant, for which reason his services were of little or no value, and for all services rendered by any implied contract or consent he had been paid in full, and more.
Upon the trial but two material issues developed, though many things were in dispute. Defendant’s counsel conceded that upon the record made, and especially a resolution of the board of directors passed February 24, 1914, plaintiff was entitled to pay for his services at the rate of $10 for each day he worked between December 22, 1913, and March 19, 1914, which had been paid in full, but contended that, both by the tentative terms he had stated and said resolution, he was to pay his own board and other expenses, and that his employment was definitely terminated by said resolution on March 19, 1914.
This left as the only significant issues in the case plaintiff’s right to reimbursement for expenses, and to pay for the days he claimed to have been in defendant’s employ after March 19, 1914.
Beyond what was said in the interview at Jackson, nothing definite is shown to have been directly said by either party in the nature of an agreement as to what compensation he should receive. Neither he nor Davis testify to any agreement on the subject during his preliminary visit to Alpena on November 22d, or on November 26th when he returned and began work. While they do not fully agree as to what passed between them on November 22d plaintiff’s only statement in regard to cost or compensation is:
“He told me somewhat more in detail than I had learned in Jackson about the family quarrel, and after listening to it I told him I thought they had rather an unpleasant mess here, but as to the real thing that they wanted me to come for, after going down to the office and meeting Mr. White and looking at the accounts and his books, I told Mr. Davis that I was satisfied Mr. White understood his business as near as I could tell, and that I refused to set any estimate on what the whole job cost because I couldn’t tell and the only way I would work was as I stated in Jackson on a per diem basis of $10 per day and expenses, that is when I was away from home. There was much more talk, but it seems to me that it was the substance of it.”
While Davis testified:
“When Mr. Humphrey was here on the 22d of November, 1913, no arrangements were made other than that he was to ascertain what it was going to cost us. He did nothing to ascertain, so far as I saw, for he spent his time with me and could have spent but a short time looking over the books, * * * I talked with him about ascertaining how long it would take. He said he wasn’t ready to take hold of it just yet and had to go back. * * * When Mr. Humphrey left on the 22d I didn’t make any arrangement with him to come back.”
There is a direct issue between plaintiff and the three directors as to plaintiff’s adding expenses to his per diem statement of charge in the interview at Jackson. They testified he answered to their inquiry that if employed his wages would be $10. per day and did not mention expenses, while he testified that he told them his charges would be $10 a day and expenses. He, however, returned to Alpena and commenced work on the 26th of November, remaining, apparently with Davis’ acquiescence, until into the ensuing. April, and rendered bills at different times for services and expenses, some of which were paid. The trial court rightly held, we think, that under all the circumstances shown the question of expenses was an issue of fact for the jury, and submitted it to them under proper instructions.
Upon the question of compensation after March 19th the court expressed a serious doubt during the progress of the trial as to that being a question for the jury, but finally submitted it to them as an issue of fact. This involves the most serious assignment of error in the case. Aside from .the authority given Davis by the resolution passed at Jackson to communicate with plaintiff on the subject of his possible employment and ascertain the probable cost, and whether his audit would suffice if steps were taken to bond, etc., as stated, no action was ever taken by defendant’s board of directors upon the subject until at a regular meeting held in Alpena on February 24, 1914, when the time and nature of his employment were discussed, the following resolution was unanimously adopted:
“Whereas, It is uncertain what expenses and time will be used in auditing the books of the Onaway-Alpena Telephone Company as at present they are being audited; be it—
“Resolved, That Henry Humphrey, as the auditor, be paid ten dollars ($10.00) a day for his services, he to pay his own expenses. Be it further—
“Resolved, That the president of this board be empowered to employ Robert Crable of Alpena, or some other auditor, to assist the present auditor of the company, Henry Humphrey, at such stipend as he shall deem proper. Be it further—
“Resolved, That the present employed auditor, Henry Humphrey, shall not be employed for more than twenty (20) working days from this date. Be it further—
“Resolved, That said auditors make and submit to the president of this company within said twenty (20) days, a report in writing of the entire work of auditing; such report to be full and complete to date.”
At this meeting other conditions unsatisfactory to the board were found and Clark’s employment as general manager was terminated. A resolution was passed that said Clark “be and he is hereby discharged and relieved and released from his said duties as general manager of the company from this date and moment forward, and such duties and the authority incident thereto be and. the same hereby are placed upon Charles S. Davis, without additional compensation.”
Plaintiff was soon notified of this. He testified that he remembered that meeting, and that Clark handed him an unsigned paper in an envelope, the next day he thought, which he opened when he got to his room. The paper was introduced in evidence and is as follows:
“At a meeting of the board of directors of the Onaway-Alpena Telephone Company, held February 24th, the' matter of work and compensation of the auditor now working on the books, Mr. Henry Humphrey, was freely discussed.
“It was stated by president Davis that although no definite understanding as to hotel expenses was had, that he thought Mr. Humphrey should pay his own hotel bill, or at least board at a place which he, Mr. Davis, considered good enough for himself.
“The president was empowered to employ Mr. Crable of Alpena to assist Mr. Humphrey for a time, it being understood that Mr. Crable would, while working with Mr. Humphrey, be able to get such information from Mr. Humphrey and his notes, and that he, Mr. Crable, would be able to continue work after Mr. Humphrey had been discharged.
“He was further empowered to require of Mr. Humphrey that his work be completed and a written report made of the same within 20 working days from that date, and to not pay him any further sums of money until such written report was made.”
The trial court held that this unsigned paper not being a copy of the resolution actually passed by the board of directors, was not of itself a notice that his employment terminated at expiration of 20 working days from February 24th, and against defendant’s request for a directed verdict on the proposition under consideration held that whether plaintiff had actual notice was a question of fact, charging the jury on that assumption as follows:
“The resolution was passed, and I, say to you as the law that the board of directors had a right to pass that resolution giving it effect 20 days from the date of its passage, and that if Mr. Humphrey from any source was fully apprised of the terms of that resolution, he would not have a right after the 19th of March to assume to remain in the employ of that company; and if he did so with that knowledge, he could not recover after the 19th of March for either compensation for his time or for his hotel or other expenses.
“He denies, gentlemen, and it is fair to say that he takes the position that he did not have any such knowledge as that, and you will remember that he was served that day with a paper made, I think, on the same typewriter that the resolution was made upon, not signed by any one, but served upon him by Mr. Clark, one of the directors, and I will read it to you. * * *
“Now, that is not any declaration that Mr. Humphrey’s services must terminate 20 days after that meeting. It says: ‘He was further empowered to require of Mr. Humphrey that his work be completed and a written report made of same within 20 working days;’ and I charge you that if that is all the notice that Mr. Humphrey had of that resolution and its contents, and afterwards Mr. Davis acquiesced in and authorized him to remain there longer than the period of 20 days, he would be entitled to his pay and expenses, if you find that he was entitled to the expenses under the contract during the time that he remained there until he was finally discharged. But he must sustain that contention by a fair weight of the evidence.”
In any aspect of this question it appears undisputed that plaintiff never advised the board of directors or any of its officers of the probable cost or length of time it would take him to examine the books of the company and audit , its accounts. He made a special trip to Alpena at defendant’s expense to look matters over, after being advised that information was desired, but states he did not go up to ascertain the time the work would take, did not and could not tell that, or the probable cost, and said:
“The purpose of my coming up at that time and staying one day and then going back was to satisfy Mr. Allen and the people there at Jackson.”
Whatever the nature of his hiring in the first instance, it is clear that it was not for any special length of time, neither was it by any special resolution of the board of directors. Plaintiff states, “I had no dealing with any one but Mr. Davis.” To what extent the individual members were previously advised is not shown, and perhaps immaterial, but the time when his employment would end was definitely fixed by a resolution of the board at the time the matter came before it on February 24, 1914. Plaintiff testified that he never saw this resolution and claimed for that reason he was not bound by it. The court correctly instructed the jury that if plaintiff was fully apprised of its terms from any source he would have no right to assume to remain as an employee of the company; but in view of his position “that he did not have any such knowledge as that,” which the court thought there was testimony to support, the question was left to the jury with the instruction that “he must sustain that contention by a fair weight of the evidence.”
It is not contended that the board ever ratified Davis’ claimed continuance of plaintiff’s employment after the 20 days, but his theory apparently is that under the paper served upon him by Clark, by which he was entitled to be governed in the absence of knowledge to the contrary, Davis had authority to continue him at work indefinitely if his report was not made. He testified that Davis had spoken to him about the resolution, and the 20-days feature, and a report being gotten out in that time, and said:
“When that time came I went to Mr. Davis and I says, ‘Now this report isn’t finished or the examination isn’t finished.’ Of course it was due to be finished according to the resolution. But man can’t do .impossible things; and I said, ‘The 20 days are up; now if you want me to go home, I don’t care anything about staying any longer, any more than this report is the first job I ever got at I didn’t finish up. I don’t like to leave things in this shape.’ ‘Well,’ he said, T don’t know; that was the resolution of the board, but I think your work ought to be rounded out. There ought to be some kind of a report made to let the stockholders know what we spent this money for, and I think that the stockholders will do justice to you, or the board will do justice to you, and I certainly shall use my influence to do the fair thing, but I cannot say further than that.’ ”
It would seem that this in itself was sufficient to put plaintiff, with his experience and knowledge of how corporate business should be conducted, on guard as to the authority of the agent with whom he was dealing. In a letter written Allen in October, before he was hired, he had emphasized the importance in investigating corporation matters of first knowing “that the record is straight and that everything done has the authority of the stockholders or directors, as the case may be, back of it.”
In Hurley v. Watson, 68 Mich. 531, the general principle is thus stated:
“If there is anything likely to put a reasonable business man upon his guard as to the authority of the agent, it is the duty of the third party to inquire how far the agent’s acts are in pursuance of the principal’s limitation.”
It was shown without question that the minutes of the directors’ meeting of February 24th, containing the resolution of which plaintiff admits he heard, was properly written up and officially signed in the book kept for such purpose, and was in the office among the books of the corporation where he worked and to which he had access. Asked about this he said, “I had access to the minutes of the meeting, so far as I know.” Asked, “And you didn’t have interest enough in it (the resolution) to open the book and see what was passed there relative to your employment?” he replied, “No, I didn’t go snooping around.”
Even conceding that, under the generally recognized implied powers of the president and general manager of a corporation to obligate it in the transaction of its usual and ordinary business arising in the course of its conduct, Davis had authority to hire an expert accountant to conduct a special audit of the financial affairs of this telephone company to the extent and at the expense claimed here, his powers in that particular were ended by this resolution. Not only must any important transaction of a corporation out of the usual course of its ordinary business be authorized by the board of directors, but the president as ministerial officer or agent of a corporation has no implied power to obligate it by any act or contract which in effect overrules or revokes action taken by its board of directors in relation to the same matter. 10 Cyc. p. 909.
It is true as noted by the trial court, the testimony of Davis and plaintiff is at variance in frequent particulars as to just how and to what extent direct knowledge of the resolution was brought home to plaintiff, but the conclusion is made unavoidable beyond issue of fact from his own testimony that he had ample notice of the resolution so far as it related to and fixed the limit of his employment before the 20 days expired. Davis testified that the next day after the resolution was passed plaintiff told him he had heard that a resolution had been introduced at that meeting discharging plaintiff and employing Robert Crable in his place, and Davis then told him what had taken place, saying:
"I told him that a resolution had been passed whereby he should close his work in 20 working days following February 24th and that he was to submit a report at the end of that time. Mr. Humphrey said it having been conveyed to him in some way that Mr. Crable was to take his place; and I told him that Mr. Crable had been employed to assist him by the resolution.”
And that he had a conversation with him later in which the matter of a report was discussed, and he then told him if he stayed beyond the 20 days it would be on his own responsibility as the board of directors had taken the matter out of Davis’ hands and left him no option. Concededly Davis’ testimony is only conclusive against plaintiff to the extent he admits the facts, but he was asked and answered in relation to this during his cross-examination, as follows:
"Within a few days after the 24th of February, 1914, Mr. Davis informed you that the board of directors of this company had fixed the date after which you were not to be employed, at 20 days after the date of that meeting. Didn’t he tell you so?
“A. Sometime within that time; sometime a few days afterward he.told me of the action. * * *
“Q. With referenee to the notification — your notification of the resolution which has been introduced here, which is said to have been passed on February 24th, you heard what Mr. Davis said in regard to that, as to whether or not you were notified of it the next day?
“A. Yes.
“Q. Was that true?
“A. I don’t think it was; no. I would say no because I — my observation is about that, that it was two or three days later. I don’t care, I had just as soon it would be the next day as not, but I don’t think it was. I don’t care what day it was.”
Recalled later in rebuttal plaintiff was examined by his counsel in relation to the paper Clark had handed him, of which he stated he never said a, word to Clark' nor told Davis he had it until just before he left, which he then told Davis he “had concluded to show him,” which he did, and Davis “brustled up” and denied its truth. After he had apparently finished his testimony in that connection, his examination in the case concluded:
“I ask you finally whether Mr. Davis ever notified you that you must quit within 20 days?
“A. No, sir, he—
• “Q. Explain it if there is something you want to say?
“A. All right. He notified me that I must quit. He told me. of the action taken by the board of directors at a meeting requiring my completion and requiring my report, a written report in a certain'time, and that was 20 days from a certain date, the date of the resolution, but it was, as I have already testified here, that at the end of the 20-day period I went to Mr. Davis and I said to him, The demand to finish a report — make an examination and make a written report, I couldn’t comply with it because I haven’t got the information to make it from; I haven't concluded.’ And he also told me in that conversation about getting Mr. Crable to assist me in the work.”
Re-cross-examination by defendant’s counsel:
“You don’t claim now to change any testimony given yesterday, do you, Mr. Humphrey?
“A. No, sir, not a word of it.
“Mr. Henry: That is all.
“A. That is, unless it is an accidental word sometimes, but not the substance of my testimony.”
Whether this concluding testimony on rebuttal was intended to relate to the time when plaintiff quit or prior interviews, it does not change the material substance of his former testimony, which clearly shows he had early notice of the resolution and its import from the president of the company, who fairly informed him that his employment beyond the 20 days was made by that resolution a matter for the board, which he thought would do justice, etc., concluding, however, with the warning, “but I cannot say further than that.”
Plaintiff’s own testimony leaves no issue for the jury on that branch of the case.
The judgment therefore is reversed, with costs to defendant, and a new trial granted.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
24,
32,
-11,
13,
12,
14,
27,
-24,
43,
18,
9,
34,
4,
13,
1,
-16,
-49,
-27,
7,
-18,
-1,
-80,
-63,
-28,
-14,
-19,
-9,
-13,
-13,
0,
25,
8,
-25,
-13,
-41,
-10,
-38,
-19,
-10,
-30,
-3,
12,
27,
-17,
-5,
40,
0,
-35,
28,
-37,
35,
17,
-8,
-27,
18,
-77,
16,
2,
4,
-8,
-23,
-21,
59,
1,
44,
18,
16,
10,
26,
11,
-9,
34,
-45,
3,
69,
15,
-19,
-23,
-50,
-5,
-8,
-32,
-2,
24,
-18,
-3,
7,
-10,
-18,
3,
-5,
-23,
-35,
21,
49,
-26,
0,
9,
0,
9,
0,
-42,
-19,
-32,
4,
7,
1,
-32,
-11,
-14,
-29,
-8,
1,
-38,
-2,
-21,
-5,
-13,
42,
-6,
-8,
1,
-2,
61,
22,
-4,
-22,
18,
-4,
36,
-26,
-27,
-44,
-5,
21,
-18,
-31,
-45,
-22,
-24,
2,
44,
21,
-5,
-26,
21,
-38,
8,
27,
2,
-11,
-13,
23,
63,
25,
51,
5,
12,
35,
-41,
-9,
-21,
24,
-23,
-50,
-30,
25,
27,
6,
34,
-23,
-9,
-23,
-69,
4,
60,
9,
5,
2,
-33,
34,
21,
-15,
-2,
-18,
-51,
79,
-43,
24,
-17,
0,
-4,
-5,
-36,
-69,
6,
88,
14,
-4,
12,
0,
-53,
-9,
-1,
-17,
18,
36,
0,
-33,
9,
-16,
31,
-10,
-49,
-33,
32,
-16,
-44,
30,
-20,
29,
55,
-11,
80,
-49,
-42,
11,
-6,
-50,
-29,
-8,
-20,
-4,
-23,
-20,
-17,
-5,
21,
11,
-4,
-36,
-52,
-9,
-13,
10,
-29,
-53,
-43,
-59,
70,
-16,
14,
-63,
48,
-36,
-2,
-10,
-4,
-28,
-23,
24,
21,
-29,
57,
6,
-30,
10,
28,
-48,
-37,
-2,
12,
26,
-8,
-43,
-68,
61,
-3,
33,
-8,
87,
-81,
-6,
-15,
-14,
-4,
-11,
-25,
-14,
-32,
6,
25,
63,
-35,
33,
13,
15,
13,
-28,
2,
-47,
2,
-32,
-5,
20,
21,
-42,
-55,
26,
32,
-5,
22,
-41,
-12,
63,
-17,
12,
43,
-1,
4,
-35,
19,
-37,
-10,
-3,
4,
2,
-34,
5,
16,
-7,
-21,
-16,
-36,
-37,
-38,
33,
-2,
-18,
-37,
2,
7,
71,
-5,
26,
7,
2,
20,
25,
-39,
-22,
-20,
-25,
-1,
45,
-11,
50,
-13,
-46,
17,
-1,
11,
2,
-21,
14,
38,
-38,
-15,
17,
36,
-17,
0,
-10,
-14,
-2,
2,
-54,
-11,
-52,
34,
-8,
17,
26,
22,
-1,
-63,
36,
-28,
-74,
18,
-22,
1,
-5,
68,
11,
5,
-42,
-38,
-40,
-81,
-30,
52,
20,
14,
-38,
-24,
8,
27,
1,
14,
-8,
-71,
20,
-9,
6,
8,
37,
-31,
17,
27,
46,
13,
-4,
-12,
54,
-11,
73,
21,
-2,
-27,
-19,
38,
20,
-10,
39,
3,
-45,
-3,
-1,
-30,
1,
17,
13,
-15,
-4,
-39,
-5,
-4,
31,
-2,
21,
19,
-6,
18,
-45,
6,
45,
-18,
-21,
18,
27,
-27,
67,
4,
9,
5,
34,
12,
-10,
45,
-20,
0,
15,
-39,
-12,
-1,
4,
-18,
8,
1,
-18,
-46,
1,
-19,
-24,
-27,
0,
9,
-8,
43,
31,
65,
-16,
2,
18,
-17,
-62,
32,
60,
-31,
-25,
-23,
70,
-40,
-33,
-2,
-1,
-31,
-36,
27,
-25,
-17,
40,
45,
19,
14,
-5,
21,
-30,
31,
11,
58,
-52,
-11,
-3,
41,
56,
-21,
45,
-26,
-49,
-18,
-11,
7,
3,
10,
30,
-17,
-49,
-48,
14,
-35,
-1,
3,
11,
31,
3,
39,
61,
-44,
11,
-8,
12,
-28,
29,
29,
-8,
0,
2,
18,
-34,
-15,
20,
-77,
10,
-15,
-29,
0,
-11,
-44,
-12,
8,
87,
32,
-8,
0,
14,
-36,
20,
-25,
16,
44,
-5,
-28,
-3,
11,
-6,
-22,
-50,
30,
-14,
5,
-52,
17,
-2,
-8,
58,
47,
-3,
-12,
-2,
5,
-62,
23,
-53,
-10,
-32,
9,
26,
17,
36,
-11,
35,
21,
40,
-14,
44,
-19,
-1,
-4,
54,
-3,
37,
0,
16,
-23,
0,
-27,
-29,
25,
6,
28,
-64,
8,
-12,
11,
12,
39,
-60,
53,
30,
-33,
-10,
-9,
18,
-40,
-36,
0,
-19,
55,
-3,
17,
36,
4,
-24,
13,
38,
39,
26,
-54,
0,
44,
-7,
36,
20,
-12,
41,
-36,
20,
5,
-10,
-54,
-2,
8,
-11,
-26,
46,
-1,
-2,
35,
10,
19,
21,
-23,
-3,
31,
16,
38,
-12,
-36,
-50,
24,
-74,
13,
-25,
-4,
9,
5,
56,
-35,
-8,
18,
-13,
53,
-7,
0,
37,
-7,
-12,
34,
29,
-42,
34,
29,
-16,
36,
47,
41,
-14,
15,
30,
-49,
2,
4,
32,
24,
3,
-4,
-44,
-20,
20,
22,
23,
-6,
-18,
20,
-3,
-70,
-62,
11,
-16,
0,
-52,
31,
-6,
56,
44,
17,
25,
14,
-10,
47,
20,
24,
54,
-22,
-6,
38,
-24,
-27,
-30,
-8,
-1,
-36,
-49,
61,
7,
-29,
18,
-56,
-43,
-10,
-50,
26,
25,
13,
-2,
26,
3,
-23,
45,
15,
-61,
24,
-9,
7,
-26,
26,
33,
27,
-52,
-20,
43,
-4,
-28,
3,
30,
-13,
-19,
-12,
-37,
15,
-34,
-18,
-22,
-11,
2,
0,
-14,
-2,
-6,
3,
10,
-23,
2,
20,
-40,
-22,
-58,
-20,
-34,
-7,
30,
44,
-47,
18,
1,
5,
-21,
48,
-21,
24,
-24,
-33,
0,
7,
61,
-10,
-40,
43,
-28,
-40,
-40,
0,
4,
-31,
-22,
33,
11,
0,
-44,
-10,
-41,
-11,
16,
-30,
-4,
59,
9,
23,
14,
12,
-93,
-13,
14,
-38,
19,
13,
-14,
-30,
-17,
7,
-9,
-22,
-28,
35,
15,
-17,
32,
-13,
-11,
0,
26,
-11,
7,
5,
20,
19,
69,
37,
-58,
-11,
-47,
-4,
33,
-37,
5,
-45,
28,
26,
25,
11,
-20,
-35,
15,
7,
24,
0,
5,
54,
43,
11,
-23,
-23,
-42,
2,
-14,
71,
-1,
24,
22,
-22,
-27,
17,
-5,
66,
8,
19,
6,
56,
-40,
-17,
11,
-13,
9,
20,
-16,
-77,
38,
62,
-32,
4,
-15,
-36,
40,
19,
21,
1,
11,
54,
7,
-14,
12,
65,
14,
-11,
-12,
-48,
0,
-46,
5,
29,
48,
-27,
10,
-14,
-29,
-2,
-2,
-1,
-8,
-57,
-25,
-55,
-17,
9,
21,
33,
38,
-28,
21,
39,
-8,
50,
29,
42,
5,
-5,
-27,
43,
22,
11,
25,
16,
26,
-34,
42,
-23,
11,
-49,
35,
-67,
-23,
31,
33,
13,
10,
-6,
-27,
10,
0,
-25,
40,
30,
4,
28,
12,
-31,
7,
44,
-28,
9,
-19,
56
] |
G. R. McDonald, J.
Defendant appeals as of right from his jury trial conviction of second-degree criminal sexual conduct, MCL 750.520c(l)(a); MSA 28.788(3)(l)(a), and sentence of four to fifteen years imprisonment.
Defendant raises several issues on appeal. However, we find one issue dispositive and reverse. We believe the trial court erred in admitting evidence of a separate uncharged crime,
The incident underlying defendant’s conviction .occurred on August 5, 1985. The victim, a twelve-year-old boy, arrived at defendant’s video arcade sometime around 1:00 p.m. Defendant offered the victim refreshments and money to play the video games. Excluding one short interruption, defendant and the victim were alone in the arcade. The victim testified that while he was seated, playing one of the games, defendant placed his hand on the victim’s thigh, moved it to the victim’s penis and requested permission to perform fellatio upon the victim. The victim then left the arcade and reported the incident to his mother.
Prior to trial, the prosecution moved to admit evidence of alleged prior sexual misconduct committed by defendant. A hearing on the motion was held on February 18, 1986. The prosecution argued that evidence of the prior act was admissible under MRE 40403), because it was similar to the instant offense and would tend to show "an absence of mistake or accident, et cetera, or intent et cetera . . . .” The prosecution conceded that identity would not be an issue at trial.
Defense counsel argued that the alleged prior bad act evidence was inadmissible as it was highly prejudicial and not relevant or material. Defense counsel noted that there was no indication that defendant’s intent would be an issue at trial. No claim had been made that the incident was an "accident, mistake or misjudgment.”
The trial court ruled admissible the prior bad act evidence stating that its admission would "avoid a possible claim of accident or mistake by defendant . . . .” The trial court further stated that the evidence was material to the determination of defendant’s guilt and that the similarities between the prior act and the instant offense were "strikingly the same.” The court also found that defendant had placed each element of the charged offense in issue by pleading not guilty.
Evidence of the prior bad act was presented at trial. The victim of the prior bad act testified that he was sexually assaulted in August, 1984, at age sixteen, by defendant, at defendant’s video arcade. He testified that defendant forced him into a back room, performed fellatio on him and forced him to engage in anal intercourse. We believe this testimony was not properly admissible and that the probable prejudice caused warrants reversal.
Generally, the use of evidence of other crimes, wrongs or acts to prove the character of a person in order to show that he acted in conformity therewith is prohibited. MRE 404(b). The policy underlying this general exclusion of similar bad acts evidence is the desire to avoid the danger of conviction based upon a defendant’s history of other misconduct rather than upon the evidence of his conduct in the case in issue. People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982). Although there are statutory and decisional exceptions to this general rule of exclusion, such exceptions have been confined to a few narrowly defined circumstances and must meet a number of evidentiary safeguards. Before evidence of the defendant’s other misconduct may be admitted:
(1) [T]here must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant’s identity'or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant’s guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice. [413 Mich 309.]
The first and perhaps most important determination the trial court must make is whether the proposed evidence is probative of one or more of the exceptions specified in the rule and whether that exception is material, that is, a proposition "in issue” in the case. People v Major, 407 Mich 394; 285 NW2d 660 (1979).
To introduce evidence under the exceptions listed in MRE 404(b), the prosecution must speciñcally identify the exception applicable and make a showing that the exception is material, or in issue. However, it is the defense and not the prosecution that chooses the "issues” in a case. The prosecution always has the burden of proof beyond a reasonable doubt as to all elements of the crime charged. A defendant’s plea of not guilty does not place each element in issue. Rather, which matters are placed "in issue” is a tactical decision left solely to the defendant’s discretion. Which matters are in fact placed in issue may be evidenced by the issues raised before or during trial, such as through counsel’s opening statement, a motion in limine, the nature of cross-examination by the defense or evidence offered by the defense. Golochowicz, supra.
In the instant case, the prosecution failed to specify under which exception the evidence was admissible. Instead, the prosecution loosed a "shotgun fusillade” of reasons which included most of the purposes named in the statute. Such an approach is not favored and usually hints that the prosecutor has an inadequate understanding of the correct application of the rule. Golochowicz, supra. The prosecution also failed to demonstrate that defendant placed any of the exceptions in issue, and the trial court erred in finding that defendant’s plea of not guilty placed all elements of the charged oifense in issue.
After examining the record we do not believe defendant placed any of the exceptions contained in MRE 404(b) in issue. The prosecution conceded at the hearing that identity was not to be in issue, and defense counsel stated that accident or mistake was not claimed thereby negating the trial court’s finding that motive and intent were "possibly” to be placed in issue. Thus, as none of the exceptions were placed "in issue” by defendant, the prosecution necessarily failed to show that any of exceptions were "material.” Golochowicz, supra. We therefore find that the prior bad acts evidence was improperly admitted. Given the graphic nature of the testimony by the victim of the prior bad act regarding defendant’s alleged sexual assault, we cannot say that its admission was harmless error and, therefore, reverse defendant’s conviction and remand for a new trial.
Reversed and remanded. | [
-13,
-19,
21,
27,
30,
-55,
-23,
-44,
-69,
45,
-38,
4,
22,
-5,
1,
-13,
-18,
-22,
8,
-74,
83,
-8,
1,
45,
-4,
-49,
29,
10,
-36,
-38,
32,
21,
-8,
-8,
17,
6,
31,
1,
20,
7,
48,
26,
21,
-75,
-64,
19,
21,
-20,
41,
17,
49,
4,
7,
6,
-42,
-47,
40,
21,
42,
-2,
-13,
55,
-15,
-72,
30,
-36,
-13,
-11,
-55,
36,
0,
17,
-40,
-36,
5,
-35,
-47,
18,
78,
36,
-33,
-4,
17,
23,
27,
-8,
50,
9,
1,
13,
11,
-48,
-36,
-10,
-38,
18,
15,
-33,
23,
-32,
0,
-3,
-54,
0,
19,
46,
-40,
-33,
-22,
6,
28,
-21,
8,
-48,
-18,
-38,
35,
46,
-37,
-64,
-13,
46,
42,
17,
5,
-25,
24,
-40,
-26,
-8,
-52,
34,
-29,
-24,
0,
20,
-10,
53,
28,
-24,
-33,
46,
50,
48,
28,
-36,
-83,
2,
39,
13,
-8,
-33,
-18,
5,
28,
-20,
-41,
-20,
15,
-36,
-61,
-4,
-37,
3,
53,
-37,
0,
-16,
6,
-16,
-29,
22,
30,
-4,
31,
10,
-27,
-35,
-22,
-12,
-58,
34,
40,
5,
-22,
-19,
-43,
-27,
-15,
5,
9,
-24,
0,
4,
70,
11,
17,
26,
56,
-14,
-8,
-37,
37,
-25,
57,
-17,
-31,
8,
-35,
0,
-22,
6,
16,
-35,
-10,
-46,
23,
-26,
12,
64,
-47,
-3,
20,
-31,
-38,
-9,
-17,
27,
-16,
11,
3,
23,
-20,
-43,
-14,
-23,
-12,
-1,
6,
18,
10,
2,
21,
-44,
12,
38,
20,
-17,
-11,
-25,
8,
-1,
-3,
-14,
-49,
-31,
2,
20,
-26,
-22,
21,
0,
7,
5,
-73,
29,
-7,
28,
-70,
-15,
8,
1,
3,
37,
-11,
-13,
-45,
37,
-9,
18,
9,
-16,
33,
-12,
-40,
-49,
-43,
42,
14,
30,
38,
33,
-16,
-36,
49,
-37,
-19,
15,
-19,
7,
40,
-33,
26,
-41,
3,
-8,
68,
-2,
11,
-5,
8,
-12,
-2,
3,
39,
10,
-44,
9,
54,
7,
-17,
-58,
-23,
-47,
-31,
-63,
23,
-70,
-11,
-1,
-9,
27,
-22,
20,
55,
-14,
1,
-1,
38,
40,
8,
-5,
29,
-17,
4,
38,
12,
29,
31,
-31,
24,
-30,
43,
-24,
26,
-22,
-31,
-13,
17,
35,
10,
-10,
-10,
-53,
23,
15,
13,
-4,
20,
60,
-49,
-86,
1,
33,
-6,
-10,
31,
-22,
19,
15,
-37,
3,
22,
-44,
20,
-35,
30,
3,
5,
14,
-19,
36,
8,
-42,
31,
-24,
-11,
37,
75,
-27,
43,
-8,
65,
-24,
-9,
-59,
-19,
-25,
-5,
-7,
15,
60,
5,
20,
4,
-5,
2,
-32,
-6,
-15,
16,
12,
39,
-3,
30,
-22,
7,
13,
47,
-31,
-27,
19,
-38,
-53,
1,
43,
-14,
15,
42,
10,
-39,
-24,
-54,
3,
7,
-13,
1,
4,
9,
0,
22,
50,
13,
-33,
18,
31,
-12,
-25,
-7,
-73,
-10,
-11,
11,
-31,
50,
-61,
-84,
-51,
-35,
17,
-4,
10,
20,
25,
-14,
50,
56,
44,
22,
-82,
50,
22,
26,
13,
2,
-8,
-16,
-26,
32,
0,
-5,
-13,
-58,
43,
-47,
36,
7,
31,
16,
14,
-55,
-70,
-9,
-16,
77,
5,
12,
-7,
47,
20,
-37,
40,
0,
23,
39,
5,
42,
-19,
-17,
36,
6,
-26,
4,
36,
-56,
-17,
-25,
-27,
-33,
-20,
98,
-47,
0,
-22,
22,
-1,
-59,
-69,
7,
-11,
17,
19,
6,
29,
25,
5,
32,
1,
6,
69,
46,
86,
21,
21,
-29,
-5,
8,
-5,
-69,
9,
-62,
26,
40,
2,
8,
-34,
-32,
-5,
42,
-63,
53,
24,
40,
11,
-28,
19,
22,
0,
17,
63,
17,
57,
19,
-1,
-58,
-21,
24,
44,
41,
-35,
3,
10,
56,
-21,
30,
11,
-43,
-53,
-59,
-2,
25,
-34,
-54,
-22,
53,
8,
-9,
3,
3,
-71,
61,
20,
24,
14,
-21,
-39,
-9,
-32,
-43,
5,
-18,
-19,
-52,
-10,
-42,
-50,
-40,
-17,
0,
-37,
-32,
-32,
-31,
9,
12,
-28,
-5,
7,
-9,
-15,
37,
21,
12,
14,
23,
21,
-2,
20,
-23,
-17,
3,
0,
6,
7,
0,
-15,
-59,
26,
2,
-36,
-8,
-5,
-31,
-28,
7,
30,
-19,
-24,
13,
-54,
-60,
2,
-12,
33,
15,
46,
-68,
-14,
29,
-43,
-21,
-72,
42,
-49,
27,
36,
7,
14,
0,
-22,
-29,
-11,
20,
-11,
20,
32,
13,
-4,
-22,
4,
-40,
30,
14,
49,
7,
-27,
0,
0,
41,
8,
-23,
101,
34,
-1,
-26,
-26,
-30,
-47,
-36,
14,
-1,
6,
26,
22,
-18,
34,
28,
1,
28,
-11,
-20,
-57,
1,
23,
10,
70,
16,
12,
37,
63,
-37,
-15,
-14,
-41,
-41,
8,
41,
-20,
15,
-14,
0,
-12,
-3,
43,
13,
19,
24,
-8,
-21,
15,
29,
4,
-24,
-48,
-39,
0,
16,
14,
8,
-9,
-73,
-58,
45,
-4,
-71,
74,
9,
34,
73,
-15,
-3,
49,
-21,
53,
-23,
-6,
21,
-2,
22,
4,
-18,
45,
0,
40,
27,
-6,
27,
-7,
-4,
27,
-20,
0,
36,
-21,
-64,
-12,
19,
18,
2,
-39,
-18,
-1,
-53,
-17,
-19,
-3,
-8,
-77,
28,
-36,
52,
-24,
-72,
-19,
-11,
8,
35,
-40,
30,
-43,
15,
22,
-7,
33,
-38,
16,
16,
-57,
-25,
11,
-17,
64,
-3,
26,
53,
-8,
-4,
27,
89,
7,
49,
5,
-38,
-32,
3,
18,
-13,
54,
7,
-16,
16,
21,
-48,
-2,
-8,
28,
37,
-31,
40,
-79,
7,
21,
30,
33,
12,
10,
-44,
1,
-22,
33,
59,
-19,
0,
-19,
12,
-37,
-51,
11,
-5,
-6,
-25,
39,
47,
3,
1,
14,
-35,
47,
22,
-40,
3,
-1,
-52,
-5,
-3,
-32,
43,
-46,
-35,
22,
-6,
14,
64,
45,
43,
-1,
-8,
4,
2,
-1,
16,
16,
33,
17,
14,
-38,
-6,
-43,
-38,
29,
4,
10,
-30,
-16,
24,
17,
-11,
-46,
35,
57,
19,
-3,
-13,
31,
-30,
-17,
-43,
16,
-34,
16,
-37,
-5,
-35,
0,
0,
46,
21,
-11,
-55,
-8,
-8,
28,
-47,
30,
32,
18,
0,
29,
-30,
-5,
-10,
-37,
-18,
0,
-17,
-22,
18,
-26,
-56,
-18,
7,
-2,
8,
-29,
36,
1,
-7,
33,
17,
25,
24,
-29,
2,
23,
-11,
-30,
31,
-3,
25,
-64,
-44,
33,
-16,
-24,
-39,
51,
8,
5,
-17,
-12,
-10,
3,
48,
15,
12,
-8,
-2,
35,
13,
-16,
-31,
58,
22,
8
] |
Shepherd, P.J.,
On April 3, 1986, plaintiff filed a wrongful death complaint against her late husband’s employer, defendant Great Lakes Steel Corporation. Plaintiff’s husband died as a result of extensive burns he received when a two-hundred-fifty-ton vessel containing molten steel overflowed while the decedent was working underneath the vessel while the steel was undergoing a process called "blowing.” Defendant moved for summary disposition under MCR 2.116(C)(4), (7) and (8). The court granted the motion, concluding that plaintiff had failed to state a cause of .action.
In reviewing a grant of summary disposition under MCR 2.116(C)(8), this Court is obliged to accept as true all well-pled facts and to determine whether plaintiff’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Bolton v Jones, 156 Mich App 642; 401 NW2d 894 (1986).
Generally, an employee’s work-related injury claim against his employer is governed by the exclusivity provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131). Michigan Courts have allowed for an exception in the case of intentional torts. Our Supreme Court has recently affirmed the exception and addressed the meaning of "intentional” for purposes of determining whether an employee may maintain a tort suit against his employer despite the exclusivity provision. See Beauchamp v Dow Chemical Co, 427 Mich 1; 398 NW2d 882 (1986). In Beauchamp the Court adopted the "substantial certainty” test, defined the following way:
The "substantial certainty” line of cases defines intentional tort more broadly. An intentional tort "is not . . . limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” It does not matter whether the employer wishes the injury would not occur or does not care whether it occurs. If the injury is substantially certain to occur as a consequence of actions the employer intended, the employer is deemed to have intended the injuries as well. [Beauchamp at 21-22.]
The Court also noted the chief problem with the substantial certainty test:
Selecting the appropriate intentional tort test is difficult. The problem with the substantial cer tainty test is that it is difficult to draw the line between substantia! certainty and substantial risk. In applying the substantial certainty test, some courts have confused intentional, reckless, and even negligent misconduct, and therefore blurred the line between intentional and accidental injuries. The true intentional tort standard keeps the distinction clear. [Beauchamp at 24-25.]
However, the Court found this test better than the true intentional tort test, i.e., the employer intended the specific injury. The Court indicated the chief problem with that test:
The problem with the true intentional tort test appears to be that it allows employers to injure and even kill employees and suffer only workers’ compensation damages so long as the employer did not specifically intend to hurt the worker. The facts in the Film Recovery Systems case are a good example. Prohibiting a civil action in such a case "would allow a corporation to 'cost-out’ an investment decision to kill workers.” Blankenship v Cincinnati Milacron Chemicals, 69 Ohio St 2d 608, 617; 433 NE2d 572 (1982) (Celebrezze, J., concurring). [Beauchamp at 25.]
The Court cited two cases in which the facts were examples of what would constitute substantial certainty. In Serna v Statewide Contractors, 6 Ariz App 12; 429 P2d 504 (1967), two men were killed when a ditch caved in and buried them alive. In the five months preceding the disaster, inspectors had warned that the sides of the ditches were not sloped properly, the sides were sandy, more shoring was needed, and escape ladders should be placed every twenty-five feet. During that time a cave-in had occurred, burying one of the decedents up to his waist. All warnings were ignored.
In a recent criminal prosecution case, People v Film Recovery Systems, decided in Illinois (and discussed in Beauchamp, 427 Mich 23), frs was in the business of recovering silver from film negatives. This was done by placing the negatives into vats of cyanide. Hydrogen cyanide gas bubbled up from the vats and there was inadequate ventilation in the plant. The employer knew about the dangers. The labels on the chemicals being used contained adequate warnings; as a result, the employer hired only employees who could not speak or read English. The workers complained about the fumes daily. In 1981, an inspector had warned that the operation had outgrown the plant. The employer’s response was to move the executive offices while tripling the size of the operation. Eventually one worker died and several others were seriously injured because of hydrogen cyanide poison. The corporate officers were convicted of involuntary manslaughter.
In the instant case, plaintiffs complaint has alleged the following: plaintiffs decedent was directed by his foreman to drive his slag-moving machine under the vessel containing molten steel during the "blowing” process; such an order was in violation of defendant’s own job-safety analysis; the blowing process frequently caused overflow spills of molten steel; and defendant had disciplined employees for refusing to drive under the vessel during the blowing process, thereby forcing the employee to choose between the substantial certainty of injury and losing his job.
Accepting these statements as true, as we must in reviewing a motion under MCR 2.116(C)(8), we believe plaintiff has stated a cause of action under Beauchamp. We note particularly the allegations that the act was in violation of defendant’s safety analysis and that spills were’ frequent. These alie gations resemble the sort of safety warnings the employers intentionally ignored in Serna and Film Recovery Systems. We therefore reverse the court’s dismissal of plaintiffs complaint.
We affirm the trial court’s dismissal of Count iv, the breach of contract claim, which is merely the tort claim restated in the form of a breach of contract claim. Since the court did not address plaintiffs Count v, claims of negligence and breach of warranty against the manufacturer of the molten steel vessel, we do not address those issues.
Affirmed in part, reversed in part and remanded for further proceedings.
M. J. Kelly, J., concurred. | [
-25,
13,
-70,
-31,
26,
38,
28,
-50,
25,
24,
14,
-36,
51,
22,
-4,
-18,
0,
5,
-54,
29,
-8,
-50,
-17,
-25,
-9,
-10,
-28,
3,
21,
-18,
-67,
39,
-22,
2,
-14,
-27,
0,
-20,
-28,
0,
-42,
-25,
51,
-42,
-12,
8,
68,
0,
26,
-44,
29,
8,
10,
-71,
48,
-5,
8,
41,
-10,
35,
-50,
-31,
32,
-32,
31,
8,
19,
37,
-60,
42,
-37,
22,
-10,
-49,
-21,
-41,
1,
49,
-18,
-47,
-5,
-29,
-2,
-31,
-48,
25,
-21,
28,
-20,
-18,
-17,
-46,
-38,
11,
-17,
3,
-10,
5,
-31,
36,
6,
64,
8,
-5,
-49,
8,
8,
3,
-10,
-9,
-8,
27,
-11,
16,
-6,
-6,
34,
29,
-2,
-14,
5,
-21,
15,
-37,
10,
13,
43,
-13,
104,
3,
47,
37,
-15,
-26,
-1,
-39,
-3,
14,
-14,
-5,
-25,
-5,
52,
-49,
0,
67,
-68,
-2,
-15,
-36,
-30,
13,
22,
-21,
3,
5,
4,
-40,
66,
56,
15,
-9,
52,
36,
-49,
-53,
-11,
27,
-9,
-40,
-9,
-34,
-8,
-55,
29,
23,
38,
-2,
-18,
17,
-22,
19,
-7,
4,
-5,
-39,
-13,
11,
-13,
56,
7,
-60,
-17,
25,
-6,
50,
-30,
19,
24,
-15,
51,
-53,
-8,
13,
-31,
48,
2,
14,
20,
31,
2,
40,
-42,
-46,
-33,
-30,
-5,
-35,
-31,
-34,
-6,
-28,
32,
8,
-13,
-45,
-28,
-27,
51,
-37,
31,
-10,
6,
13,
-28,
20,
12,
-14,
43,
-7,
0,
7,
-33,
-2,
-38,
-37,
16,
-29,
31,
28,
38,
-37,
41,
9,
-8,
-34,
-39,
18,
17,
-6,
-59,
82,
-46,
46,
-27,
5,
-35,
20,
-96,
-29,
-36,
-12,
54,
0,
-21,
-41,
25,
34,
25,
23,
0,
44,
14,
-15,
-40,
9,
-9,
6,
-46,
-3,
45,
-67,
19,
4,
63,
42,
36,
-60,
-17,
-4,
52,
5,
18,
5,
-12,
50,
-55,
1,
4,
-57,
-36,
-25,
10,
17,
25,
-14,
16,
9,
45,
-22,
2,
61,
1,
-50,
-66,
-42,
-6,
-13,
2,
52,
-22,
34,
6,
58,
-15,
-42,
20,
20,
-47,
-22,
38,
20,
42,
-79,
-33,
3,
12,
0,
-8,
-40,
9,
39,
18,
4,
21,
43,
34,
-32,
-21,
40,
26,
-21,
-27,
-1,
0,
-24,
-18,
-29,
19,
29,
-21,
5,
-18,
2,
15,
-27,
23,
-1,
-55,
46,
9,
0,
44,
8,
-23,
-2,
-9,
23,
-27,
-15,
-39,
-44,
32,
58,
-67,
46,
27,
14,
-21,
0,
18,
32,
-23,
-56,
18,
-36,
2,
-21,
15,
-5,
59,
0,
46,
-46,
-30,
-3,
61,
-6,
45,
5,
75,
11,
25,
-64,
-8,
-38,
-36,
16,
0,
-13,
-14,
1,
67,
-17,
-13,
1,
-44,
-35,
19,
24,
-21,
-12,
-29,
-24,
-31,
46,
-30,
56,
19,
-52,
28,
1,
40,
22,
-17,
11,
5,
-4,
11,
-3,
-11,
-32,
43,
-25,
30,
-6,
-16,
-11,
34,
10,
-25,
-52,
-10,
40,
33,
-10,
24,
24,
40,
-10,
-29,
65,
11,
-29,
-30,
-5,
7,
-19,
17,
-26,
19,
-9,
-32,
13,
-47,
3,
-5,
63,
-35,
17,
5,
-38,
16,
9,
39,
-30,
-14,
-60,
19,
27,
-46,
4,
37,
27,
12,
7,
6,
-24,
10,
1,
-47,
-6,
-16,
9,
-57,
-53,
-7,
-13,
-40,
-13,
74,
-1,
60,
-8,
34,
46,
4,
-18,
-14,
-64,
7,
-2,
-12,
23,
1,
-6,
6,
-2,
38,
46,
-65,
-66,
33,
-17,
48,
-14,
36,
35,
39,
-22,
-38,
0,
-10,
35,
-20,
-8,
6,
1,
63,
-26,
-29,
45,
39,
-21,
7,
21,
32,
14,
-20,
-5,
20,
-12,
-29,
-18,
-7,
-34,
-17,
-6,
13,
-54,
-5,
-1,
-15,
12,
46,
3,
24,
-31,
36,
-22,
32,
6,
-52,
-21,
20,
35,
-29,
-46,
53,
-46,
-33,
-7,
-29,
-43,
-23,
-11,
-4,
-48,
44,
55,
11,
-12,
35,
34,
-21,
32,
97,
-34,
-38,
-45,
-20,
6,
-38,
-41,
4,
38,
-21,
40,
15,
-22,
38,
28,
42,
44,
2,
-24,
2,
32,
-20,
-35,
-11,
-16,
-24,
22,
-4,
-28,
11,
30,
-25,
23,
-35,
-14,
-13,
-10,
-46,
7,
-2,
-37,
0,
-2,
60,
64,
-28,
37,
18,
26,
-6,
-26,
37,
75,
-45,
0,
64,
44,
33,
-27,
66,
-3,
-24,
-32,
-38,
37,
0,
19,
20,
9,
22,
22,
26,
-23,
-35,
19,
-58,
24,
-11,
21,
-11,
-9,
-44,
21,
-4,
2,
34,
-17,
-24,
61,
-19,
-65,
21,
-24,
-82,
-8,
17,
-21,
10,
26,
4,
-7,
-51,
-12,
48,
0,
-21,
34,
-18,
-39,
52,
34,
-4,
9,
74,
24,
-7,
7,
-15,
-36,
3,
57,
42,
39,
-25,
-18,
33,
6,
-21,
-5,
51,
13,
-43,
5,
69,
17,
27,
-1,
18,
-39,
-48,
-15,
13,
-20,
19,
26,
23,
21,
-43,
14,
3,
0,
6,
15,
19,
-8,
74,
18,
-33,
-16,
-2,
-72,
-10,
4,
-8,
36,
11,
-22,
47,
7,
66,
-4,
17,
-19,
43,
-23,
-48,
41,
4,
-16,
39,
-15,
24,
-3,
62,
-46,
-11,
6,
-15,
19,
-42,
-10,
2,
-6,
21,
39,
-19,
-28,
45,
-38,
14,
-67,
-20,
-46,
9,
-10,
-70,
45,
14,
13,
12,
-28,
40,
-27,
32,
-47,
-47,
38,
42,
41,
-25,
-2,
5,
-5,
-29,
-35,
40,
54,
41,
-2,
3,
-31,
50,
32,
22,
-12,
-60,
23,
36,
53,
-80,
12,
29,
-50,
-22,
-7,
-29,
-23,
-19,
9,
-8,
-23,
3,
-2,
15,
-24,
15,
-7,
-57,
12,
40,
-61,
-22,
45,
30,
51,
26,
40,
-29,
-33,
0,
10,
13,
-62,
-18,
-37,
-10,
48,
13,
-13,
21,
-5,
-4,
42,
-33,
-17,
30,
11,
-16,
52,
-20,
33,
24,
17,
-35,
-15,
7,
2,
-5,
2,
37,
37,
-67,
-2,
-33,
35,
19,
12,
40,
-10,
16,
-37,
-41,
14,
-24,
37,
-22,
0,
-16,
-29,
-5,
-66,
-22,
32,
3,
14,
40,
3,
-9,
-1,
38,
-10,
-62,
-8,
-2,
35,
0,
46,
25,
0,
20,
-18,
-6,
-57,
8,
-42,
26,
-65,
-6,
-6,
22,
-24,
-20,
-10,
2,
-7,
-20,
11,
19,
-36,
-4,
-102,
-42,
-29,
5,
-28,
12,
46,
-41,
-28,
-33,
3,
28,
-3,
8,
-11,
-24,
24,
7,
-4,
28,
58,
21,
19,
-14,
47,
-1,
-26,
-39,
30,
-37,
0,
-44,
-6,
34,
64,
10,
14
] |
R. M. Maher, P. J.
At the conclusion of an eight-day jury trial in the Washtenaw Circuit Court, defendant was found guilty of felony murder, MCL 750.316; MSA 28.548, and armed robbery, MCL 750.529; MSA 28.797. He was thereafter sentenced to life imprisonment for the murder conviction and sixty to ninety years imprisonment for the robbery conviction. He now appeals his convictions as of right. We affirm in part and reverse in part.
During the early morning hours of September 22, 1985, James Visel, a reputed drug dealer, was robbed and killed by three assailants at his home in Ypsilanti, Michigan. The assailants took Visel’s jewelry and stock of drugs before murdering him execution-style (i.e., shot in the back of the head at close range, while kneeling with hánds tied behind his back).
The next evening (September 23) at 9:30 p.m., Detective Joe Hall of the Washtenaw County Sheriffs Department received an anonymous call from a man who identified defendant as one of the assailants. When asked how he knew this, the caller said: "Well, you just follow it up. You’ll find out it’s true.” The caller went on to say that defendant drove a red or maroon pickup truck, model year 1982 or 1983, that defendant could be found at one of three addresses in Washtenaw County, and that defendant possessed a sawed-off shotgun and a pistol, both loaded, which he would not hesitate to use. The caller did not reveal the source of the information, and Detective Hall admitted that, at the time, he had no way of determining its reliability.
On the basis of this information, a stakeout was organized that night. Each of the addresses provided by the caller was placed under surveillance using unmarked vehicles. As Detective Hall and two other officers were making a final check of an address on Pearl Street, they noticed a red Ford pickup truck parked in the driveway. The truck was occupied by a white male. They suspected this to be defendant since an earlier lein check of all vehicles owned by defendant revealed that he owned a red 1983 Ford pickup truck. After they watched the truck for a few minutes, it pulled out of the driveway.
As defendant drove past the officers, they were able to observe his license plate number. A check of the number indicated that the truck did indeed belong to defendant. The officers followed defendant for a brief time and he began picking up speed. When defendant ran a red light or stop sign, back-up assistance was summoned. Soon, other police cars — marked and unmarked — -joined the chase. The marked car had its emergency lights and sirens activated. The vehicles raced along for about two miles, reaching speeds of up to eighty-five miles per hour. Then, the truck veered sharply left into the oncoming traffic, jumped the curb, flew over a wide ditch and through a fence, flipped over two or three times, and finally came to rest in a cornfield. Before the police could reach the truck, defendant, who was apparently unharmed, fled into the field. One officer observed a .22 caliber handgun underneath the driver’s seat of the truck.
A search of the field was conducted with the aid of several police tracking dogs. After an extensive search, defendant was located and placed under arrest. A search of his person produced some jewelry belonging to Visel. During a subsequent inventory search of the truck, the police found — in addition to the handgun — a syringe, more of Visel’s jewelry, and a 12-gauge sawed-off shotgun.
Defendant was brought to the police station at approximately 6:00 a.m. on September 24 and booked on a concealed weapons charge. That charge was later dropped and, in its stead, he was charged with open murder and armed robbery. At the time he was first brought to the station, Detective Hall advised him of his Miranda rights and asked whether he would make a statement. Defendant said only that he was tired, had been bitten by the tracking dogs, and wanted to sleep. With this, the interview ended and defendant was allowed to return to his jail cell.
On September 25, at 12:15 p.m., defendant was again brought to the interview room for questioning by Detective Hall. After being advised of his Miranda rights a second time, he purportedly indicated that he understood his rights, wished to waive them, and did not want an attorney present. He then proceeded to tell Detective Hall that he, along with Rodney Crawford and Robin Feldman, drove to Visel’s house during the early morning of September 22 with the intent to rob him. They waited outside until Visel returned home and followed him inside. Using electrical cord, they tied up Visel, his teenage daughter, and her friend. They took Visel downstairs where a safe was located and beat him until he disclosed the combination. Defendant and Feldman removed the jewelry, money, and drugs from the safe and took them outside to the truck. Crawford remained inside with Visel. While loading the truck, defendant heard two gunshots and observed Crawford running from the house. Defendant insisted that he had nothing to do with the shooting.
Shortly after making this statement, defendant was taken before a magistrate for arraignment on the weapons charge. The time was 2:00 p.m. on September 25 — approximately thirty-two hours after he was first taken into custody. The next morning, the weapons charge was dropped and he was arraigned on charges of open murder and armed robbery.
Prior to trial, defendant filed a motion for a Walker hearing to determine the voluntariness of his confession. He alleged that his statement to the police was involuntary for three reasons: First, defendant was allegedly denied an attorney after requesting one; second, the delay between arrest and arraignment was unreasonable and used to coerce a confession; and third, defendant’s injuries and the discomfort suffered at the jail house constituted physical duress. After hearing testimony and arguments on the motion, the trial court denied each of defendant’s claims.
Defendant’s trial commenced on May 13, 1986, before a jury in the Washtenaw Circuit Court. He was tried on charges of open murder, MCL 750.316; MSA 28.548, and armed robbery, MCL 750.529; MSA 28.797. On May 22, 1986, at the conclusion of an eight-day trial, the jury pronounced defendant not guilty of first-degree premeditated murder and second-degree murder, but guilty of felony murder and armed robbery. On June 27, 1986, defendant was sentenced to life imprisonment for the murder conviction and sixty to ninety years imprisonment for the robbery conviction. The sentencing court let stand both of those sentences despite defense counsel’s argument that the robbery conviction was subsumed within the felony murder conviction.
i
Defendant first argues that his arrest was unlawful because it was based upon information received from an anonymous source which was not shown to be reliable. He therefore claims that his inculpatory statements to the police, as well as the physical evidence obtained after his arrest, must be suppressed as "fruit” of the unlawful arrest.
A review of the record reveals that defendant did not assert this claim below, either at the suppression hearing or at trial. Hence, the issue has not been preserved for appeal. People v Coons, 158 Mich App 735, 740; 405 NW2d 153 (1987), lv den 428 Mich 900 (1987); People v Moore, 144 Mich App 104, 105-106; 372 NW2d 690 (1985). But, we may review newly asserted constitutional issues if our refusal to review would result in a miscarriage of justice. This is especially true where the record is sufficient to allow review and the issue is decisive of the outcome. People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972); People v Barr, 156 Mich App 450, 459; 402 NW2d 489 (1986). Here, because the record is sufficiently developed and the issue is outcome-determinative, we will briefly address defendant’s claim.
Very simply, defendant misconstrues the basis of his arrest. The informant’s tip served only as the impetus for the investigation, not the arrest. Defendant was stopped only after he ran a red light or stop sign, exceeded the speed limit, drove recklessly, attempted to elude the police, and left the scene of his own accident. These unlawful activities justified the search and seizure of both his person and truck. See People v Laube, 154 Mich App 400; 397 NW2d 325 (1986), lv den 428 Mich 856 (1987); People v Ragland, 149 Mich App 277; 385 NW2d 772 (1986).
ii
Defendant also argues that the statement given to the police should have been suppressed because (1) the delay between his arrest and arraignment was allegedly used to extract the statement and (2) his request for an attorney at the time of his arrest was refused. Because these arguments were asserted below, they have been preserved for appeal. However, we do not believe the trial court erred in not suppressing the statement.
The record shows that defendant was taken into custody at approximately 6:00 a.m. on September 24, 1985. At 12:15 p.m. the next day, September 25, he made a statement to Detective Hall wherein he admitted participating in the robbery but denied any involvement in Visel’s murder. A couple hours later he was arraigned on charges of possessing the handgun and sawed-off shotgun. This was thirty-two hours after he was first taken into custody. The weapons possession charge was subsequently dismissed upon imposition of charges of open murder and armed robbery. Defendant was arraigned on those charges sometime during the morning of September 26, 1985.
By statute, a person who is subjected to a felony arrest without a warrant must be brought promptly before a magistrate for arraignment on a complaint. MCL 764.13, 764.26; MSA 28.871(1), 28.885. Failure to promptly arraign violates that person’s state and federal due process rights, as well as those rights afforded by the Code of Criminal Procedure. People v Mallory, 421 Mich 229, 239; 365 NW2d 673 (1984). However, unreasonable delay does not automatically require suppression of any incriminating statements or evidence obtained during the course of the unlawful detention. Id., p 240; People v Jackson, 114 Mich App 649, 654; 319 NW2d 613 (1982). Rather, a confession or other incriminating evidence should be suppressed only where the delay was used as a tool to extract the confession or evidence. Mallory, supra, pp 240-241; People v Rutherford, 140 Mich App 272, 276; 364 NW2d 305 (1985).
As the trial court correctly found in the instant case, there was no showing that the thirty-two hour delay was used to procure defendant’s incriminating statement. When defendant was first brought to the police station, he indicated that he wanted to sleep. The police honored that request and did not attempt to conduct an interview at a time he might have been most vulnerable to coercion. Hence, a large part of the initial delay was due to defendant’s request for sleep. Further, he was not immediately arraigned the next morning because of a congested court docket. He was however, arraigned as soon as possible during the afternoon session of court. In addition, there is no indication that the police used coercive techniques upon defendant or that his statement was other than voluntary. After being refused the first interview, the police did not attempt a second until after defendant was well rested. That interview was preceded by the Miranda warnings, which he decided to waive. Finally, as the trial court noted, defendant had substantial past experience with the law and was not easily intimidated:
[T]he mere length of time itself, until it gets to the point where one would lose hope of arraignment, doesn’t strike the Court as being undue, particularly where we have someone as familiar with the legal system and physically and emotionally tough as the defendant. He could do 34 hours standing on his head .... Nothing like that is going to intimidate Mr. Lumsden.
We agree with the trial court that there was simply no showing that the delay in defendant’s arraignment was used to extract a confession.
As to defendant’s claim of being refused an attorney, there is no grounds for reversal. Although he insists that he had requested an attorney when first taken into custody, that allegation was denied by the interviewing police officer. Being an issue of credibility then, we will defer to the trial judge’s ability to better determine witness veracity. MCR 2.613(C). The judge found that "the defense witnesses do not instill confidence in the Court” and that the interviewing officer, having no personal interest in the case, was more worthy of belief. The judge also stated that he had "serious reservations as to whether the defendant made a timely request for an attorney.” Defendant has presented us with no evidence, other than his bare allegation, that the judge’s finding was clearly erroneous. MCR 2.613(C). The judge did not abuse his discretion in denying defendant’s suppression motion as to this claim as well.
hi
Defendant next argues that the trial court erred in not declaring a mistrial when two prosecution witnesses inadvertently referred to other homicides allegedly committed by defendant. We do not believe these references rose to the level of error requiring reversal.
Allegedly, prior to the robbery and murder of Visel on September 22, 1985, defendant was also involved in a similar robbery-homicide of two people in Dearborn, Michigan. That case, like the instant one, was the subject of community outrage and received much attention from the local media. In an effort not to risk injecting possible prejudice into this trial, the prosecutor warned his witnesses not to make any references to the Dearborn homicides. Despite the warnings, two witnesses inadvertently and briefly mentioned the homicides.
The first reference occurred during the testimony of Washtenaw County Sheriff’s Deputy Robert Marsh, handler of one of the police tracking dogs used in the search for defendant. When the prosecutor asked him what information he was acting on when he began the search, Deputy Marsh replied: "Information that he was armed and dangerous; wanted in connection with a homicide, two homicides and an armed robbery.” (Emphasis added.) The prosecutor immediately asked to approach the bench and an off-the-record conference was held.
At the conclusion of Deputy Marsh’s testimony, and out of the jury’s presence, the prosecutor stated for the record that the bench conference concerned Deputy Marsh’s reference to the other homicides. The trial judge then asked defense counsel whether he wanted a cautionary instruction. Counsel replied that he was in "the old dilemma for defense counsel” since a cautionary instruction might simply highlight the reference. Although counsel did not believe the reference was innocuous, he stated that he would not ask for a cautionary instruction and would not move for a mistrial because of it.
The second reference was made during the testimony of Deborah Schmidt, codefendant Rodney Crawford’s live-in girlfriend. During cross-examination of Schmidt, defense counsel was attempting to impeach her with a prior statement she had made to the police when the following colloquy occurred:
Q. And didn’t you also tell Detective Hall that in your statement of the 25th of September that . Rodney Crawford told you that Mr. Lumsden had killed Visel?
A. Yes, I did.
Q. And that was not true, either, was it? Rodney Crawford never told you that?
A. Oh, no, wait a minute. What I said to Joe Hall was that Rodney told me that Alan killed two people in Dearborn and he told me that he wanted to kill me and Rodney too. [Emphasis added.]
Defense counsel, in an apparent attempt to deemphasize the reference, did not immediately object, but rather, continued the questioning without hesitation. At the conclusion of Schmidt’s testimony, defense counsel requested a recess, at which time he expressed concern about her reference to the Dearborn homicides. After first noting that Schmidt’s answer was not directly responsive to counsel’s question, the trial judge stated that given "the giggling and the childish attitude which she displayed as well as by the answers to the questions and her depraved background [she was an admitted drug addict] ... I doubt that the jury’s going to give her much credibility anyway on any issue.” The judge also made the following observations:
[T]here is no such thing as a perfectly sterile trial. We deal with human beings and the law modernly is so complex and difficult an application that'it’s impossible no matter how much caution is exercised and we feel has been exercised in this trial to prevent matters from coming in which we would prefer had not .... I should note also that the Prosecutor is not responsible for this although he was obliged to present this witness he, as he stated, has cautioned her against it but he cannot control the kind of witnesses that have to be called in these cases .... And since he’s obliged to call them, all he can do is to instruct them and if they don’t follow those instructions there’s very little that the Court can do to enforce them. I don’t think a retrial would guarantee that this young woman wouldn’t blurt out whatever came into her empty hea — into her head the next time.
For those reasons, the judge ruled that Schmidt’s statement was not of sufficient weight to constitute grounds for a mistrial.
There is no dispute that the references to the Dearborn homicides were potentially prejudicial to defendant. The only question is whether they were so egregious as to constitute grounds for a mistrial. We must agree with the trial judge that they were not.
The test to be used in determining whether a mistrial should be declared is not whether there were some irregularities, but whether the defendant had a fair and impartial trial. People v Spencer, 130 Mich App 527, 540; 343 NW2d 607 (1983). The decision to grant or deny a mistrial motion lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. People v Holliday, 144 Mich App 560, 571; 376 NW2d 154 (1985), lv den 424 Mich 902 (1986); People v Green, 131 Mich App 232, 236; 345 NW2d 676 (1983). But, a mistrial should be granted only where the error complained of is so egregious that the prejudicial effect can be removed in no other way. People v Coles, 417 Mich 523, 554-555; 339 NW2d 440 (1983). Moreover, an unresponsive, volunteered answer to a proper question is not cause for granting a mistrial. People v McKeever, 123 Mich App 533, 538; 332 NW2d 596 (1983), lv den 417 Mich 1100.9 (1983); People v Stinson, 113 Mich App 719, 727; 318 NW2d 513 (1982), lv den 417 Mich 957 (1983). This is especially true where the defendant has rejected the opportunity to have the jury charged with a cautionary instruction. See People v Kiczenski, 118 Mich App 341, 347; 324 NW2d 614 (1982), lv den 417 Mich 953 (1983).
Here, the references to the Dearborn homicides were not grounds for a mistrial because they were unresponsive, volunteered answers to proper questions. Indeed, they were made despite the prosecutor’s attempt to prevent such. Also, both references were very fleeting and were not emphasized to the jury. The record showed that defense counsel skillfully continued the questioning of Schmidt without pause, thus down-playing its significance to the jury. Even had the jury noticed the inadvertent reference by Schmidt, as the trial court noted, it was unlikely she was given much credence given her demeanor. As to the reference by Deputy Marsh, by not even requesting a mistrial at the time it was made, defendant apparently concedes that it did not amount to a mistrial. Finally, had a cautionary instruction been requested, it could have removed the taint, if any, left by the references. As it was, the references were not so egre gious that the trial court abused its discretion in refusing to declare a mistrial.
IV
Defendant argues lastly that his sentence for armed robbery must be set aside because that offense is subsumed within the conviction of felony murder. In other words, defendant claims that one cannot be convicted and sentenced for both felony murder and the predicate felony. We agree with that argument, at least where — such as here — the predicate felony is punishable by a maximum of life imprisonment, and, therefore, order that defendant’s conviction and sentence for armed robbery be vacated.
In People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), our Supreme Court held that, in cases where multiple punishments are sought for a single offense, the question of whether double jeopardy bars multiple punishment is solely one of legislative intent. In so ruling, the Robideau Court stated that this analysis is consistent with the result reached in People v Wilder, 411 Mich 328; 308 NW2d 112 (1981), wherein it was earlier held that one could not be convicted of both first-degree felony murder and the predicate felony of armed robbery. 419 Mich 489, n 8. The Court reasoned that "[sjince felony murder is punishable by a mandatory life sentence, while the predicate felonies are punishable by no more than a term of years up to life, it may be inferred that the Legislature intended to punish a defendant only once for committing both crimes.” Id. Although that reasoning was dictum, and thus technically not binding upon this Court, People v Riley, 88 Mich App 727, 731; 279 NW2d 303 (1979), we neverthe less choose to follow it since the Supreme Court has unequivocally indicated which way the wind is blowing on that issue.
Accordingly, defendant’s conviction of, and sentence for, armed robbery must be vacated. In all other respects, his conviction of felony murder is affirmed.
Affirmed in part and reversed in part.
Neither the shotgun nor the handgun found in defendant’s truck was the instrument used to kill Visel. The murder weapon was subsequently found — also on the basis of an informant’s tip — in a field near the 1-94 expressway in Wayne County.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
20,
19,
-29,
-5,
-15,
-60,
-60,
-12,
-49,
16,
25,
-20,
-16,
-7,
42,
1,
35,
40,
24,
-21,
-23,
-30,
5,
29,
-34,
-80,
15,
35,
-49,
17,
-2,
21,
63,
-57,
19,
11,
17,
-37,
-23,
46,
-12,
-29,
2,
-18,
-29,
20,
9,
-55,
24,
-26,
-1,
9,
19,
0,
30,
11,
17,
9,
31,
28,
33,
1,
-35,
-28,
-10,
-33,
16,
22,
-7,
-19,
46,
-28,
-24,
20,
0,
2,
24,
31,
25,
-10,
-1,
6,
44,
18,
-23,
-40,
-36,
-38,
-48,
-33,
-2,
-7,
4,
9,
51,
-27,
16,
0,
-4,
-39,
-35,
14,
-10,
-25,
-2,
8,
14,
-72,
-13,
-20,
26,
4,
69,
23,
38,
-57,
-16,
16,
0,
42,
-19,
-32,
34,
-45,
32,
-45,
-18,
-29,
7,
-1,
26,
29,
12,
32,
36,
-5,
-36,
23,
-1,
23,
-56,
34,
8,
3,
3,
7,
-20,
-20,
14,
43,
-3,
-5,
-46,
33,
-2,
-25,
-19,
-26,
-36,
12,
-3,
-25,
74,
-16,
-13,
-21,
-60,
-42,
-20,
-33,
0,
-24,
17,
32,
89,
-9,
-9,
23,
-6,
-28,
-4,
5,
10,
36,
-59,
-58,
-2,
8,
-48,
-10,
20,
16,
-21,
-8,
45,
2,
1,
-6,
22,
20,
39,
-43,
36,
-7,
-13,
-37,
-13,
13,
6,
-5,
25,
-19,
14,
-47,
28,
-20,
-15,
12,
11,
-41,
-53,
-19,
21,
-24,
0,
-26,
-14,
34,
-22,
-4,
69,
-42,
13,
17,
-37,
-27,
33,
-41,
28,
28,
47,
-41,
13,
-24,
31,
72,
-17,
-30,
-32,
29,
-1,
-1,
-2,
6,
-46,
0,
26,
-20,
-30,
34,
-13,
2,
24,
32,
12,
46,
-8,
15,
-91,
-42,
9,
-10,
26,
-7,
-24,
-1,
-16,
49,
31,
-4,
77,
-11,
-21,
-8,
16,
7,
-36,
50,
-59,
-50,
17,
9,
8,
13,
25,
-16,
45,
-21,
-41,
16,
2,
-7,
-50,
-18,
18,
-8,
40,
-2,
-54,
13,
18,
-28,
15,
57,
38,
-36,
0,
-13,
48,
80,
-12,
4,
-5,
-50,
27,
11,
19,
15,
0,
16,
-1,
3,
-16,
69,
-14,
-10,
-9,
36,
13,
0,
-46,
-27,
-10,
-5,
-23,
-6,
-7,
55,
-43,
-64,
68,
-18,
26,
2,
-43,
-47,
-8,
5,
47,
-7,
78,
18,
-56,
34,
-9,
2,
-45,
-10,
-38,
20,
31,
-48,
-7,
27,
10,
-14,
-2,
7,
20,
30,
24,
-38,
55,
-25,
-3,
-44,
-6,
-90,
-30,
51,
-46,
1,
-19,
-56,
-59,
-34,
6,
-9,
22,
-68,
-42,
30,
38,
-19,
-23,
41,
-25,
42,
0,
-64,
-18,
-2,
40,
38,
-23,
-42,
-12,
-31,
-30,
-57,
-6,
20,
10,
-23,
36,
-5,
-24,
62,
7,
10,
59,
33,
60,
-38,
-6,
46,
-18,
3,
15,
-18,
-42,
-43,
29,
0,
22,
5,
-27,
-26,
5,
-36,
19,
9,
-21,
-44,
-25,
78,
7,
-4,
33,
19,
25,
-80,
-31,
-25,
27,
-36,
-37,
-39,
6,
-57,
24,
4,
-59,
0,
-12,
0,
49,
12,
8,
40,
3,
-46,
10,
-23,
-35,
-15,
-61,
-42,
-29,
22,
26,
23,
-22,
-4,
-3,
66,
17,
29,
47,
2,
-12,
9,
-17,
13,
-5,
3,
63,
-13,
-21,
18,
32,
14,
-59,
-13,
-27,
-17,
-25,
-18,
2,
-13,
34,
-18,
31,
19,
-15,
-14,
18,
-47,
-92,
-4,
-25,
-22,
-10,
18,
-6,
26,
4,
-5,
-16,
-27,
66,
-35,
27,
-1,
0,
-25,
46,
0,
-2,
-15,
-5,
2,
36,
-34,
-13,
-8,
-4,
-34,
-18,
-5,
-28,
0,
58,
37,
-2,
-38,
-10,
-4,
27,
-12,
-59,
26,
18,
20,
-2,
74,
21,
25,
-4,
66,
23,
31,
-10,
49,
1,
24,
38,
-29,
20,
25,
4,
52,
3,
-27,
6,
11,
2,
-30,
19,
-74,
39,
-39,
-3,
58,
36,
-18,
-13,
-3,
-33,
-1,
23,
-16,
39,
29,
-22,
22,
-11,
-38,
-38,
26,
20,
0,
-6,
14,
-16,
-31,
12,
-33,
-8,
-20,
-69,
38,
0,
36,
0,
-10,
-14,
-8,
-53,
-35,
-26,
37,
-5,
-15,
-20,
-9,
-43,
6,
-27,
-10,
-22,
-3,
21,
-10,
1,
-36,
-13,
-3,
24,
8,
1,
72,
-43,
17,
-16,
-3,
13,
-43,
-1,
21,
38,
-30,
-40,
-60,
-53,
22,
-13,
-14,
45,
0,
-16,
-20,
16,
-15,
-14,
64,
-3,
6,
42,
27,
-6,
37,
-15,
-16,
17,
-25,
47,
33,
-46,
-43,
49,
30,
-71,
-37,
-13,
25,
82,
-53,
-16,
20,
-38,
17,
25,
-33,
20,
17,
-14,
-12,
-65,
49,
-47,
-25,
2,
-16,
66,
-1,
-32,
-14,
-15,
24,
30,
4,
13,
-44,
13,
48,
-6,
28,
-9,
-1,
-49,
-12,
43,
-56,
-21,
-35,
-5,
-22,
78,
0,
27,
51,
46,
-19,
0,
30,
72,
21,
-45,
-22,
2,
26,
22,
-10,
0,
-5,
40,
-12,
47,
-30,
-4,
-60,
-46,
48,
-44,
9,
-35,
5,
56,
-46,
29,
23,
-24,
-2,
66,
7,
-48,
25,
24,
-3,
6,
-14,
-21,
10,
-11,
24,
35,
61,
41,
-16,
37,
35,
20,
-63,
-1,
-9,
27,
-2,
2,
9,
36,
-20,
1,
-13,
17,
27,
-19,
-18,
1,
-24,
25,
-21,
5,
-36,
-73,
70,
-5,
-54,
-7,
9,
-18,
54,
24,
65,
-56,
4,
-4,
-10,
-26,
24,
56,
6,
0,
20,
-23,
14,
67,
-2,
20,
17,
5,
-31,
8,
6,
-17,
44,
-19,
58,
5,
10,
-17,
-7,
-39,
-14,
-26,
20,
69,
-23,
6,
14,
10,
-15,
12,
47,
10,
51,
-5,
15,
-30,
34,
9,
-33,
57,
13,
-9,
8,
9,
-37,
29,
-23,
-59,
15,
-57,
-36,
-47,
-20,
21,
37,
15,
-50,
20,
-57,
-59,
49,
65,
-54,
-1,
12,
-46,
-2,
3,
-2,
14,
-1,
-32,
-7,
-19,
15,
4,
-58,
-16,
87,
33,
11,
72,
-10,
-24,
-53,
-35,
63,
-13,
14,
10,
-3,
-29,
13,
29,
-11,
-3,
-13,
-15,
21,
-5,
26,
40,
36,
53,
-51,
-38,
22,
11,
-3,
-33,
31,
16,
0,
41,
-19,
-39,
22,
-21,
24,
-16,
-29,
39,
40,
-22,
-10,
13,
35,
-11,
12,
-32,
-46,
43,
-85,
23,
-19,
13,
-63,
-37,
31,
-4,
11,
66,
36,
47,
-1,
-46,
-5,
-13,
-9,
2,
95,
-6,
11,
8,
5,
-22,
-33,
8,
-11,
31,
-17,
-16,
-7,
-4,
-15,
23,
-15,
-14,
-14,
-4,
-44,
-51,
34,
-13,
13,
-9,
35,
-49,
3,
-41,
21
] |
Per Curiam.
Plaintiff appeals, arguing that the trial court erred by giving the rule in Martin v Dep’t of Corrections, 424 Mich 553, 564-565; 384 NW2d 392 (1986), only limited retroactive effect. We affirm.
On October 18, 1982, plaintiff, Morris Martin, an inmate at the State Prison of Southern Michigan in Jackson, filed a complaint for declaratory judgment regarding the validity of a policy directive of the Department of Corrections. Plaintiff apparently had been disciplined for "substance abuse,” an offense defined in Policy Directive 60.01 by defendant, the Department of Corrections, as a major misconduct. Plaintiff argued that he was entitled to have past violation of that policy direc tive expunged from his files because defendant had never promulgated the directive as a rule pursuant to the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Ingham Circuit Judge Robert Holmes Bell, on April 12, 1983, granted defendant’s motion for summary judgment, holding that prison misconduct regulations need not be promulgated as rules under the apa because prisoners are not members of the "public” and that hence such regulations fall within the exception to the apa procedural requirements applicable to intra-agency directives which do not affect the rights of the public. MCL 24.207(g); MSA 3.560(107)(g). This Court reversed, Martin v Dep’t of Corrections, 140 Mich App 323; 364 NW2d 322 (1985), and four justices of the Supreme Court affirmed, Martin v Dep’t of Corrections, supra, holding that since the Legislature intended to treat prison inmates as members of the public for purposes of the apa, the department’s policy directives regarding such inmates do not fall within the relevant exception and hence must be promulgated as rules pursuant to the procedures set forth in the apa.
Subsequently, the case was returned to the trial court, where defendant moved for summary disposition. Judge Bell ruled, in pertinent part, in defendant’s favor, concluding that the Supreme Court’s holding should be given only limited retroactive effect, i.e., should be applied only to those cases pending in an administrative or judicial forum on March 28, 1986 — the date of the Supreme Court’s opinion — and thus could not be used to collaterally attack "Adjudications which have become final through lapse or exhaustion on appeal.” In this case, plaintiff’s original major misconduct charge had already ripened into a final adjudication and thus was found — under the lim ited retroactivity rule — to be insulated from disturbance.
In reaching its conclusion that the Supreme Court’s holding should be given only limited retroactive effect, and not the full retroactive application requested by plaintiff, Judge Bell rendered a well-written and well-reasoned opinion, which we now quote at length and adopt as our own.
Plaintiff seeks additional relief; namely an order directing the Department [of Corrections] to expunge from his prison files any and all record of past major misconduct violations premised upon the invalid disciplinary policy. Thus, the retroactivity of the [Supreme] Court’s ruling is placed at issue.
The Court’s present ruling is an inevitable function of the Supreme Court’s March 28, 1986 ruling. Although the Supreme Court merely reversed this Court’s earlier award of summary disposition, by ruling that prisoners are members of the public, it resolved the only substantive issue raised by plaintiff’s claim for declaratory judgment. Until then, the question was a matter of dispute even among different panels of the Court of Appeals. Cf. Thompson v Department of Corrections, 143 Mich App 29; 371 NW2d 472 (1985), Kirkeby v Department of Corrections, 141 Mich App 148; 366 NW2d 28 (1985), Martin v Department of Corrections, 140 Mich App 323; 364 NW2d 322 (1985). The Supreme Court’s decision is not a final adjudication of the disciplinary policy’s validity. Yet, by defining "the public” as including prisoners, the Supreme Court denied the Department its only legitimate justification for non-promulgation. The Supreme Court’s ruling thus sounded the death knell of PD-DWA-60.01. For this reason, the retroactivity of this Court’s present decision is inextricably bound to the Supreme Court’s March 28, 1986 ruling.
As a general rule, decisions of Michigan appellate courts are to be given full retroactivity unless limited retroactivity is justified. Moorhouse v Am bassador Ins Co, Inc, 147 Mich App 412, 420-421; 383 NW2d 219 (1985). Limited retroactivity is justified only where the decision establishes a new principle of law by overruling clear past precedent or by deciding an issue of first impression whose resolution was not clearly foreshadowed. People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982). The following considerations are pertinent to the determination whether a new rule of law should be given full retroactivity, limited retroactivity, or prospectivity only: (1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect of full retroactive application of the new rule on the administration of justice. Faigenbaum v Oakland Medical Center, 143 Mich 303, 312-313; 373 NW2d 161 (1985), [affd in part, rev’d in part sub nom Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986)].
The Supreme Court’s Martin decision does not overrule clear past precedent, but it does resolve an issue in a way not clearly foreshadowed. Prior to the Supreme Court’s decision on March 28, 1986, the Department had applied PD-DWA-60.01 to tens of thousands of prisoner misconduct charges since September, 1981, believing in good faith that the policy was valid and enforceable. In 1985, the Court of Appeals issued conflicting opinions as to whether prisoners are members of the public. Two of the six justices who participated in the Supreme Court’s Martin decision, dissented, concluding that for purposes of the apa, prisoners should not be considered members of the public. Thus, insofar as it was not clearly foreshadowed, the Supreme Court’s decision did establish a new rule of law. Limited retroactivity may be appropriate.
In determining whether justice would be served by limited retroactivity, the Court considers the three Faigenbaum factors. First, the Court considers the purpose behind the Supreme Court’s holding that prisoners are members of the public. The inevitable consequence of the decision is the requirement that the Department promulgate its prisoner disciplinary policy as a "rule.” The significance of this requirement resides mainly in the procedural safeguards and extent of public participation which attend a policy’s formal adoption. The prisoner disciplinary policy had apparently been adopted as a "guideline.” Martin, supra, 424 Mich 558, [n] 3. Thus, although it is clearly improper to adopt a guideline in lieu of a rule (apa, § 26), the adoption of PD-DWA-60.01 was attended by many of the same safeguards as rule-processing would have required. (See apa, § 24.) In view of this fact, and in view of the limited value of public participation in the formulation of rules designed to manage prisoner behavior, it appears the purpose of the Supreme Court’s ruling would not be significantly frustrated by giving it limited retroactivity. (Cf. Justice Cavanaugh’s dissenting opinion. Martin, supra, 424 Mich 565-567.)
The second factor the Court considers is the extent to which the old rule was relied upon. Before the Supreme Court’s ruling on March 28, 1986, there was no "old rule.” It had been definitively determined whether prisoners are members of the public under apa § 7(g). However, the Department had proceeded, not without some justification, under the assumption that prisoners are not members of the public and that its prisoner disciplinary guideline could be enforced without having been promulgated as a rule. Between September, 1981 and April, 1986, the Department enforced PD-DWA-60.01 as a primary means of controlling prisoner behavior in all of its correctional facilities and programs. During that period, it appears the Department enforced PD-DWA-60.01 in over 30,000 major misconduct proceedings annually. Adjudications of guilt have been used by the Department as a basis .... (1) [for] forfeiting prisoners’ disciplinary and good time credits, (2) for security classifications, and (3) for determining eligibility for parole. The Department has relied very heavily on PD-DWA-60.01 in its management of state correctional facilities. To now undermine this reliance by giving retroactivity to this ruling would not serve the interests of justice.
Lastly, the Court considers the effect of full retroactive application of the new rule on the administration of justice. In view of the Department’s great reliance upon PD-DWA-60.01, it is obvious that holding it invalid ab initio, thereby rendering all ensuing disciplinary adjudications void, would have devastating consequences for'the rule of order within state prisons. This result must be avoided.
For the reasons outlined above, the Court’s present ruling, a function of the Supreme Court’s March 28, 1986 decision, is to be given limited retroactive effect. The Court’s holding that PD-DWA-60.01 is unenforceable may be used to challenge only those misconduct charges under PD-DWA-60.01 which have not ripened into final adjudications. The issue may be raised only with respect to "pending” charges, whether pending at the predispositional, rehearing, judicial review or appellate level. Adjudications which may become final through lapse or exhaustion of appeal rights may not be disturbed by collateral attack ....
Accordingly, plaintiff’s request for expungement of past misconduct violations which have already ripened into final adjudications is denied.
See also Collins v Dep’t of Corrections, 167 Mich App 263; 421 NW2d 657 (1988).
Affirmed. No costs, a public issue being involved.
"The Department fully appreciated this, as evidenced by its April 3, 1986 promulgation, under the apa emergency rules provision (§ 48), of an amendment to R 791.5501. The new amended version of the prisoner misconduct rule embodies in promulgated form much of PD-DWA-60.01.” | [
9,
-49,
-32,
48,
5,
48,
-51,
-73,
-38,
38,
-63,
-1,
28,
26,
-12,
-29,
11,
55,
-40,
51,
10,
19,
31,
77,
-16,
15,
7,
62,
15,
25,
-9,
-6,
15,
-4,
-6,
-5,
12,
-4,
30,
31,
31,
-39,
27,
-36,
-103,
0,
22,
60,
54,
-23,
-8,
21,
-8,
36,
-26,
-27,
17,
-37,
-30,
50,
-65,
37,
-13,
-41,
38,
-17,
-27,
18,
5,
-7,
6,
0,
-34,
-5,
-17,
13,
7,
-2,
-5,
5,
-50,
29,
-2,
10,
-23,
22,
-14,
-27,
34,
28,
-31,
0,
-69,
-21,
-5,
34,
4,
-32,
20,
-14,
9,
-6,
2,
1,
6,
-6,
38,
6,
-17,
5,
19,
8,
-37,
-53,
17,
-53,
10,
17,
20,
-12,
9,
32,
20,
8,
27,
6,
38,
2,
15,
-5,
-13,
46,
-21,
-4,
-22,
25,
22,
65,
47,
-40,
-27,
-13,
13,
-48,
39,
10,
-4,
3,
34,
-6,
-35,
-37,
2,
23,
-36,
13,
-22,
-8,
-54,
29,
12,
-17,
-41,
-25,
11,
-5,
-66,
-9,
34,
-35,
1,
19,
22,
30,
6,
3,
-45,
25,
6,
-9,
-42,
28,
22,
-35,
-11,
27,
-37,
-31,
-77,
33,
11,
-12,
1,
-24,
25,
-24,
47,
68,
26,
-10,
-13,
9,
33,
18,
37,
10,
-11,
16,
-63,
4,
-3,
-19,
-18,
-2,
-6,
-32,
5,
-34,
-13,
63,
-61,
-6,
7,
-42,
25,
-19,
8,
17,
-5,
-34,
11,
17,
21,
-19,
-21,
14,
-22,
24,
26,
8,
-1,
27,
-12,
-20,
12,
21,
-16,
-14,
22,
39,
41,
4,
0,
13,
0,
-38,
20,
6,
-34,
-18,
17,
13,
-21,
20,
-10,
22,
-13,
-22,
-32,
-9,
-9,
-12,
-14,
2,
-17,
5,
-19,
5,
3,
-67,
45,
16,
43,
-20,
-50,
-35,
10,
18,
-13,
13,
41,
-29,
-50,
23,
83,
5,
37,
-18,
-9,
16,
15,
-16,
-9,
-69,
-8,
-1,
-20,
10,
30,
-29,
13,
-10,
-25,
-21,
-25,
-28,
-4,
-15,
42,
-44,
-69,
-15,
2,
-31,
12,
-45,
43,
-18,
34,
-3,
-5,
-14,
22,
41,
66,
23,
-2,
59,
-11,
48,
-4,
21,
9,
-45,
-24,
-15,
-24,
1,
-2,
-5,
45,
40,
20,
33,
-10,
20,
7,
-37,
-43,
8,
-18,
-8,
-49,
-46,
7,
-32,
-22,
12,
29,
28,
-20,
-7,
-24,
-12,
-1,
45,
72,
-37,
33,
8,
20,
35,
20,
0,
-9,
-76,
-17,
-8,
14,
-32,
-59,
-17,
-49,
-18,
-27,
-24,
55,
40,
38,
15,
-12,
-21,
12,
2,
22,
-41,
-35,
51,
-19,
21,
0,
48,
8,
2,
-17,
32,
15,
-27,
39,
-16,
70,
15,
0,
-60,
-8,
-21,
-8,
23,
-9,
24,
-14,
-51,
11,
-41,
-5,
8,
-62,
-53,
14,
26,
-39,
30,
-59,
-39,
12,
-3,
28,
-6,
24,
-55,
20,
-18,
-20,
-71,
-85,
40,
22,
-36,
-86,
-66,
-2,
-23,
-42,
4,
31,
-11,
-56,
-31,
39,
-20,
-21,
16,
-29,
18,
-36,
-21,
5,
5,
11,
-14,
36,
5,
-25,
-29,
24,
1,
-26,
7,
-28,
-31,
-14,
-14,
11,
-80,
-10,
47,
11,
21,
11,
45,
-1,
6,
-37,
30,
59,
-1,
30,
-19,
9,
72,
-22,
-7,
27,
65,
25,
-57,
14,
-66,
-24,
30,
50,
-48,
20,
15,
-6,
21,
-22,
-28,
-5,
-21,
33,
-8,
15,
-53,
37,
7,
-28,
-30,
-27,
-32,
33,
-11,
-9,
56,
27,
0,
7,
11,
4,
-17,
40,
-2,
13,
-35,
-29,
-4,
-58,
39,
25,
-4,
-25,
15,
7,
61,
43,
39,
-48,
11,
32,
-32,
37,
-2,
-6,
-25,
42,
-3,
75,
31,
-18,
25,
-7,
46,
0,
-8,
-9,
-37,
-10,
37,
40,
-32,
-19,
-46,
-5,
13,
-21,
7,
-2,
-41,
9,
35,
28,
2,
-3,
-10,
13,
-7,
29,
-1,
-20,
0,
37,
-3,
-50,
-30,
-33,
23,
-37,
12,
-32,
53,
-44,
-52,
-3,
-13,
6,
28,
-8,
-47,
0,
-3,
49,
-43,
-26,
-4,
-6,
-5,
-61,
-1,
-34,
3,
-15,
58,
20,
6,
31,
12,
33,
15,
-19,
2,
26,
31,
-24,
-13,
-28,
18,
0,
-35,
-1,
-39,
-17,
12,
-8,
25,
-1,
7,
-42,
-33,
-34,
7,
41,
40,
-5,
37,
48,
20,
-17,
-15,
16,
-52,
-83,
-16,
0,
9,
11,
-35,
4,
32,
39,
29,
21,
5,
6,
30,
5,
-34,
11,
38,
-1,
31,
-4,
26,
14,
35,
-58,
-29,
-10,
-35,
-37,
-2,
-31,
0,
35,
10,
-6,
-14,
-16,
0,
-27,
-14,
13,
-38,
6,
7,
21,
24,
17,
9,
-27,
-34,
-42,
-16,
-12,
35,
13,
44,
-14,
64,
-18,
43,
60,
10,
-45,
-8,
-18,
5,
7,
25,
42,
48,
0,
0,
-41,
53,
-36,
10,
42,
-12,
-47,
-30,
-8,
10,
-21,
18,
-37,
-40,
-9,
-32,
51,
-1,
16,
-24,
13,
-16,
-37,
12,
22,
9,
9,
20,
-29,
59,
-37,
32,
-44,
8,
0,
-69,
-21,
-13,
-28,
16,
-14,
21,
10,
23,
26,
-14,
-23,
-12,
21,
-17,
27,
-69,
-32,
22,
30,
-39,
-6,
-25,
-8,
15,
-45,
50,
-50,
37,
-24,
26,
-16,
-16,
3,
-14,
-53,
36,
-22,
-8,
18,
-45,
29,
21,
-16,
42,
6,
27,
1,
-20,
-22,
36,
-10,
-27,
-20,
-5,
37,
21,
35,
27,
-24,
28,
15,
55,
5,
-16,
-27,
50,
2,
50,
38,
-55,
52,
-25,
-1,
-4,
-1,
10,
20,
61,
-33,
-19,
3,
24,
-48,
-22,
93,
16,
-27,
12,
-12,
-15,
-19,
-2,
43,
-12,
-7,
17,
47,
-6,
11,
-18,
-24,
-33,
24,
36,
4,
14,
-28,
2,
34,
3,
50,
-36,
11,
-21,
21,
9,
43,
-5,
17,
28,
21,
-34,
-42,
22,
18,
12,
27,
17,
-19,
48,
61,
-52,
-18,
33,
32,
-13,
-11,
1,
16,
-21,
-47,
-6,
-12,
-8,
28,
-23,
6,
22,
48,
-19,
37,
20,
-33,
-7,
-3,
33,
-66,
-14,
-6,
-50,
11,
6,
-28,
0,
14,
-14,
-54,
78,
30,
56,
-25,
-15,
-9,
43,
-28,
33,
-9,
-30,
41,
-47,
-51,
39,
-34,
-37,
10,
-18,
14,
6,
-19,
13,
-31,
7,
-20,
-38,
-45,
19,
-24,
-15,
-54,
40,
-13,
-23,
30,
-17,
30,
66,
28,
9,
-28,
21,
13,
33,
57,
26,
-38,
15,
13,
11,
29,
-14,
-42,
47,
0,
0,
1,
-37,
14,
14,
-23,
28,
-76,
35,
-17,
16,
-40,
11
] |
Per Curiam.
Defendant Motor City Prescription Centers appeals by leave granted from an order denying its motion for summary disposition brought pursuant to MCR 2.116(C)(8). We reverse.
Lincoln Adkins, Jr. (hereafter plaintiff), and Theresa Adkins filed this action on October 30, 1984, alleging negligence and malpractice on the part of various physicians and pharmacies in prescribing and supplying plaintiff with excessive amounts of controlled substances during the years 1978 through 1984. Plaintiff claims that, as a result of defendants’ negligence and malpractice, he became addicted to several narcotic substances including Seconal, Valium, Tandearil, Nembutal and Gantanol.
As to defendant Motor City Prescription Centers, plaintiff alleges that defendant breached its statutory and common-law duties to plaintiff by (1) failing to maintain accurate customer profile cards, (2) failing to maintain accurate prescription records, (3) failing to identify over-prescribing physicians, (4) failing to independently determine that plaintiff was a drug abuser, (5) failing to communicate with area pharmacies regarding plaintiff’s status as a drug abuser, and (6) filling plaintiff’s prescriptions for highly abused substances. In his more definite statement filed May 2, 1985, pursuant to a court order, plaintiff identified eighty prescriptions for controlled substances filled by defendant for plaintiff from April 21, 1978, until April 16, 1984. In their briefs on appeal, the parties referred to 116 prescriptions filled by defendant for plaintiff over a period of six years. In any event, there is no dispute that each of the prescriptions was written by a licensed physician.
Defendant filed a motion for summary disposition under MCR 2.116(C)(8). At the hearing on the motion conducted January 3, 1986, defense counsel argued that plaintiff had failed to state an enforceable legal claim since a pharmacy owes no legal duty to its customers to monitor or police prescriptions issued by licensed physicians. The trial court rejected defendant’s argument and held that facts might develop which would support a finding that defendant owed plaintiff some or all of the duties alleged in the complaint.
This panel recently decided Stebbins v Concord Wrigley Drugs, Inc, 164 Mich App 204; 416 NW2d 381 (1987), in which we held that "a pharmacist has no duty to warn the patient of possible side effects of a prescribed medication where the prescription is proper on its face and neither the physician nor the manufacturer has required that any warning be given to the patient by the pharmacist.” 164 Mich App 218. For the reasons stated in that opinion, we hold that defendant pharmacy in this case had no duty to warn plaintiff of the potential side effects of the substances it was dis pensing to plaintiff in accordance with the prescriptions submitted, all of which were valid on their face. As we explained in Stebbins, a pharmacist owes his customers a duty to properly fill lawful prescriptions. Indeed, a pharmacist is held to a very high standard of care in performing this duty and may be held liable in tort for any breach. Stebbins, supra, pp 215-216, citing Troppi v Scarf, 31 Mich App 240, 245; 187 NW2d 511 (1971). Generally, however, a pharmacist will not be held liable for correctly filling a prescription issued by a licensed physician. Id.; Lemire v Garrard Drugs, 95 Mich App 520, 526; 291 NW2d 103 (1980).
In this case, plaintiff alleges that defendant pharmacist owed plaintiff the additional duty of maintaining detailed and accurate customer records, and a corresponding duty to identify addicted customers and their over-prescribing physicians, either independently or through the combined efforts of other local pharmacists. Presumably, plaintiff would argue that the pharmacist who identifies the addicted customer as a patient of an over-prescribing physician would then be obligated to act on the information and (1) refuse to fill prescriptions, (2) warn the customer or (3) notify the physician. Other jurisdictions which have been presented with this same theory of liability have overwhelmingly rejected it in favor of the more limited duty described in Stebbins.
In Pysz v Henry’s Drug Store, 457 So 2d 561 (Fla App, 1984), defendant pharmacist filled the plaintiff’s prescriptions for Quaaludes for a period of nine years. The plaintiff alleged that the defendant knew or should have known that the use of this drug over an extended period of time resulted in addiction and that the defendant knew that the plaintiff had in fact become addicted. According to the plaintiff, the defendant thus had a duty to warn the plaintiff of the dangerous side effects of the drug it was dispensing, to warn the physician that the plaintiff had become addicted and to refrain from further dispensing the drug to the plaintiff. The Florida Court of Appeals rejected the plaintiffs theory of liability and held that it is the physician who owes the duty to the patient to monitor prescription drug usage and that a pharmacist will not be found liable for lawfully filling a prescription issued by a licensed physician. 457 So 2d 562.
Pysz was followed in Jones v Irvin, 602 F Supp 399, 402 (SD Ill, 1985), where the federal district court also pointed to the duty of the patient to provide accurate information to the prescribing physician and the duty of the manufacturer to warn the physician of any adverse effects of its product. The court concluded that pharmacists should not be placed in the position of having to second guess every prescription in an attempt to avoid tort liability to its customers. Similarly, in Eldridge v Eli Lilly & Co, 138 Ill App 3d 124; 485 NE2d 551 (1985), the court explicitly rejected the theory that a pharmacist owes his customers a duty to act as a "safety supervisor” reviewing the propriety of prescriptions issued by the customer’s treating physician:
The plaintiff maintains many pharmacists may have greater knowledge of the propensities of drugs than physicians. He contends a pharmacist should, therefore, be under a duty to act as a safety supervisor and determine whether the physician has properly prescribed the drugs. The propriety of a prescription depends not only on the propensities of the drug but also on the patient’s condition. A prescription which is excessive for one patient may be entirely reasonable for the treatment of another. To fulfil the duty which the plaintiff urges us to impose would require the pharmacist to learn the customer’s condition and monitor his drug usage. To accomplish this, the pharmacist would have to interject himself into the doctor-patient relationship and practice medicine without a license. [138 Ill App 3d 127].
We agree with the foregoing analyses, plaintiff’s argument to the contrary notwithstanding.
In arguing that a pharmacist owes the customer a legal duty to monitor drug usage, plaintiff relies for authority upon the standards of practice adopted by the American Pharmaceutical Association in 1979 and upon an article published in a professional periodical. We are not persuaded by these nonlegal authorities, particularly in light of the cases cited above.
Plaintiff also relies upon Hand v Krakowski, 89 AD2d 650; 453 NYS2d 121 (1982), which we distinguished in Stebbins, supra, and Speer v United States, 512 F Supp 670 (ND Tex, 1981), aff'd 675 F2d 100 (1982), which is distinguishable since the duty owed by the Veterans Administration Pharmacy in that case arose because of the unique relationship between it and the V.A. psychiatric staff. 512 F2d 679-680. Moreover, the plaintiff’s action in that case failed because of the lack of a causal relationship between the injury suffered and the acts of the Veteran Administration employees.
Plaintiff’s reliance on United States v Hayes, 595 F2d 258 (CA 5, 1979), is similarly misplaced since that case involved the criminal conviction of a pharmacist who knew that certain prescriptions contained false names or had not been issued in the usual course of a professional practice. Plaintiff also cites Vermont & 110th Medical Arts v Bd of Pharmacy, 125 Cal App 3d 19; 177 Cal Rptr 807 (1981), in which a pharmacy and several pharma cists appealed the revocation or suspension of their licenses. This case is also inapposite since the issue presented there involved the interpretation and application of state licensing regulations.
Based on the foregoing analysis, we conclude that plaintiff has failed to state an actionable claim in negligence against defendant Motor City Prescription Centers since there exists no legal duty on the part of a pharmacist to monitor and intervene with a customer’s reliance on drugs prescribed by a licensed treating physician. This case is remanded for entry of an order dismissing defendant Motor City Prescription Centers pursuant to MCR 2.116(C)(8).
Reversed and remanded. | [
2,
1,
14,
46,
-23,
-9,
14,
-9,
-20,
29,
-22,
-33,
-16,
42,
24,
17,
-13,
4,
64,
-44,
-5,
-18,
17,
0,
11,
-44,
16,
45,
4,
2,
-16,
22,
17,
-7,
4,
36,
32,
-2,
29,
-17,
-8,
-28,
-3,
-39,
-25,
-27,
12,
23,
73,
-4,
20,
10,
-9,
12,
-22,
-11,
12,
-31,
17,
-21,
-50,
1,
-14,
-60,
4,
8,
10,
38,
35,
-16,
-21,
0,
-13,
19,
25,
-6,
33,
23,
19,
34,
-2,
-14,
41,
-11,
-42,
99,
-17,
4,
15,
-39,
24,
-57,
-24,
-52,
-5,
76,
-38,
-40,
32,
-8,
-5,
21,
4,
17,
3,
-4,
56,
-37,
-53,
-30,
20,
-9,
-23,
-29,
-18,
-11,
41,
2,
-29,
7,
35,
20,
62,
10,
18,
51,
2,
-7,
-50,
3,
27,
15,
10,
-16,
-1,
0,
14,
2,
22,
-1,
-18,
12,
27,
43,
9,
4,
7,
5,
9,
-14,
-40,
-11,
-19,
42,
-13,
14,
-6,
35,
-35,
18,
18,
-32,
24,
-10,
-7,
-13,
-55,
13,
-13,
34,
61,
-18,
42,
0,
-6,
-13,
12,
36,
-37,
-32,
-27,
3,
17,
-31,
19,
4,
41,
-54,
-31,
-9,
-22,
-33,
-30,
8,
-7,
-22,
-20,
65,
40,
17,
26,
-13,
-4,
-30,
19,
37,
-52,
-4,
46,
3,
0,
-29,
19,
-59,
37,
-46,
6,
-35,
-45,
-12,
-52,
-21,
38,
-2,
-12,
-17,
38,
-17,
-32,
-19,
11,
-1,
-5,
60,
-26,
8,
27,
-9,
20,
-5,
-40,
43,
-47,
-35,
-61,
56,
-72,
5,
-34,
31,
25,
22,
-18,
-35,
-43,
-31,
0,
0,
2,
-5,
21,
55,
-45,
43,
-8,
43,
9,
40,
0,
57,
-103,
11,
-15,
-62,
-26,
-19,
-16,
30,
22,
32,
55,
-31,
40,
-46,
-81,
47,
29,
61,
-27,
6,
-8,
-7,
-69,
-11,
30,
0,
-25,
-16,
-57,
5,
0,
14,
14,
15,
7,
-10,
-17,
30,
12,
-30,
27,
-29,
61,
-36,
-41,
-56,
5,
2,
41,
-34,
-43,
63,
-27,
6,
-55,
-21,
22,
-50,
23,
-26,
-12,
46,
9,
-49,
-22,
3,
-17,
-33,
-14,
22,
-30,
25,
-34,
-8,
2,
28,
14,
-6,
1,
0,
28,
-1,
26,
31,
-7,
-6,
29,
-40,
-25,
5,
-24,
-35,
0,
-39,
22,
-30,
11,
38,
-15,
54,
-38,
10,
-10,
5,
-25,
-42,
-7,
-53,
30,
42,
-16,
-60,
35,
-26,
7,
-25,
-58,
9,
46,
14,
-42,
-10,
3,
19,
-80,
4,
-9,
40,
22,
6,
27,
-8,
2,
16,
15,
-38,
30,
28,
35,
15,
-47,
2,
11,
35,
-18,
7,
24,
20,
-28,
-40,
6,
16,
-61,
-57,
-14,
0,
-15,
30,
11,
0,
-29,
4,
-7,
-14,
-17,
-8,
-42,
-15,
37,
8,
-19,
-36,
-24,
-14,
35,
20,
0,
-21,
41,
-3,
37,
8,
21,
2,
-47,
17,
19,
19,
-20,
-47,
38,
-61,
1,
9,
31,
3,
-46,
-13,
18,
0,
15,
42,
-43,
25,
-34,
9,
-32,
42,
-1,
-9,
-29,
25,
-12,
-1,
4,
31,
-60,
-21,
-36,
29,
33,
-43,
-51,
50,
-39,
-1,
-45,
8,
-68,
60,
-1,
-57,
0,
60,
56,
1,
-41,
-34,
66,
52,
-59,
9,
7,
-2,
-36,
-43,
-52,
9,
-14,
18,
34,
15,
7,
-8,
-4,
15,
2,
-7,
49,
12,
-6,
-13,
16,
-5,
-14,
24,
-6,
-3,
-4,
-21,
57,
22,
7,
32,
18,
-24,
-28,
15,
27,
9,
-40,
31,
7,
-33,
-3,
8,
-13,
15,
-39,
16,
-2,
11,
8,
-4,
47,
5,
8,
-18,
51,
-1,
-15,
45,
1,
-13,
-8,
42,
-28,
5,
-57,
-54,
13,
42,
48,
-44,
-37,
-18,
55,
-27,
3,
-38,
3,
-14,
15,
-10,
-19,
0,
-6,
-17,
72,
45,
48,
-20,
-42,
-1,
-19,
12,
-11,
6,
27,
-50,
39,
5,
-7,
-32,
-64,
15,
-1,
20,
-30,
35,
-25,
3,
-26,
52,
-7,
51,
-1,
-44,
-38,
-20,
-11,
0,
13,
-36,
-5,
-25,
-54,
37,
-44,
-32,
-44,
59,
0,
-2,
9,
-25,
-6,
-22,
-30,
46,
-37,
50,
-31,
14,
-7,
-19,
18,
17,
-26,
-36,
-32,
10,
-22,
-29,
52,
27,
36,
-31,
-20,
32,
-23,
40,
-23,
65,
52,
-37,
-18,
0,
56,
9,
-72,
-3,
60,
-25,
14,
-47,
36,
-20,
18,
-7,
-35,
63,
6,
-45,
-77,
25,
-34,
66,
33,
-30,
11,
59,
-49,
85,
-18,
18,
-4,
9,
-43,
-15,
-26,
16,
-37,
-28,
-8,
33,
-7,
32,
1,
-23,
1,
-14,
-12,
13,
37,
13,
-29,
-24,
-4,
-75,
-6,
-33,
30,
-11,
-16,
-11,
30,
6,
-29,
0,
63,
21,
-17,
-24,
-25,
26,
-2,
27,
27,
9,
10,
3,
-24,
4,
37,
20,
60,
-39,
-8,
18,
-43,
10,
-35,
45,
-26,
-4,
-1,
16,
12,
18,
-21,
11,
25,
-23,
-41,
0,
-51,
-48,
2,
-33,
-11,
-5,
18,
-1,
-18,
-29,
23,
35,
-52,
-5,
28,
-35,
4,
-2,
30,
2,
4,
18,
-15,
-38,
79,
4,
39,
15,
-21,
-4,
-34,
-40,
25,
-1,
-16,
16,
87,
-21,
48,
16,
-62,
-11,
-26,
-3,
14,
-7,
-41,
11,
-23,
15,
-18,
13,
31,
10,
14,
-23,
45,
36,
-34,
27,
63,
-51,
-17,
-11,
-3,
12,
-10,
49,
30,
23,
53,
-18,
53,
9,
-15,
-42,
-27,
35,
35,
6,
0,
-3,
4,
26,
59,
35,
-30,
-31,
13,
57,
-23,
-3,
8,
-9,
-39,
0,
9,
20,
-23,
42,
-8,
-34,
-15,
1,
2,
-42,
-14,
13,
-4,
-24,
-4,
28,
-63,
11,
14,
36,
-11,
8,
-20,
4,
-7,
11,
47,
-32,
9,
1,
14,
-23,
16,
-3,
28,
28,
-36,
-53,
-23,
2,
35,
48,
-2,
-52,
-18,
20,
10,
-5,
-37,
24,
37,
-11,
-29,
4,
16,
12,
-36,
13,
40,
20,
-20,
16,
52,
-17,
42,
-13,
0,
-55,
-36,
7,
34,
14,
-32,
-37,
-23,
-15,
42,
21,
3,
-25,
8,
-22,
-80,
43,
55,
33,
-35,
37,
2,
38,
-59,
22,
-17,
0,
35,
29,
0,
34,
4,
-25,
-15,
-16,
-8,
-34,
-49,
29,
34,
61,
-6,
-46,
-12,
13,
-13,
1,
-53,
17,
-31,
7,
-6,
-4,
9,
-6,
15,
25,
-2,
-34,
-8,
22,
9,
-47,
6,
-36,
1,
1,
37,
-15,
9,
29,
13,
45,
31,
-41,
18,
40,
31,
16,
-78,
2,
-43,
61,
-13,
0
] |
W. J. Caprathe, J.
Defendant appeals as of right from the revocation of his probationary sentence and from the trial judge’s sentence of from three to ten years’ imprisonment on defendant’s underlying offense of breaking and entering an unoccupied dwelling, MCL 750.110; MSA 28.305.
Defendant’s probation was revoked because of an allegation that he participated in the arson of a motor vehicle. One Russell Martin was convicted of the offense. Defendant had testified against Martin following a grant of immunity from the state fire marshal under MCL 29.7(4); MSA 4.559(7)(4). However, in the offender’s version of Martin’s presentence report, Martin implicated defendant in the arson. When defendant’s probation officer learned of defendant’s alleged involvement, he filed a petition to terminate defendant’s probationary sentence. Defendant was ultimately convicted of violating the terms of his probationary sentence in three respects: (1) failing to report for his June 25, 1985, probation appointment; (2) actively participating in an arson; and (3) associating with a person engaged in a criminal act.
On appeal, defendant claims that the trial judge erred in relying upon defendant’s involvement in the arson as a basis for revoking defendant’s probationary sentence since defendant testified under a grant of transactional immunity. We agree.
When defendant was charged with violating his probationary sentence, he moved for dismissal, arguing that, because he was granted transactional immunity by the fire marshal, he could not be charged for any of the events surrounding the arson. The prosecutor argued that the grant of immunity did not preclude revocation of defendant’s probation. In his appellate brief, the prosecutor further notes that none of defendant’s statements made under the grant of immunity were used against him at his probation revocation hearing. Instead, it appears that the testimony of Russell Martin provided the only evidence against defendant. The trial judge declined to dismiss the charges against defendant.
On appeal, we must decide the breadth of the immunity granted under MCL 29.7(4); MSA 4.559(7)(4). That provision states:
A person shall' not be excused from testifying or from producing books, papers, records, or memoranda in an investigation, or upon a hearing, when ordered to do so by the state fire marshal, upon the ground that the testimony or evidence, documentary or otherwise, may tend to incriminate the person or subject the person to a criminal penalty; but a person shall not be prosecuted or subjected to a criminal penalty for, or on account of, a transaction made or a thing concerning which the person may testify or produce evidence, documentary or otherwise, before the state tíre marshal. A person so testifying shall not be exempt from prosecution and punishment for perjury committed in testifying. [Emphasis added.]
Basically, there are two kinds of immunity, transactional immunity and use immunity. Transactional immunity is more comprehensive. Under it, a witness may not be prosecuted or punished for the offense to which the grant of immunity relates. Use immunity is more limited. Under it, a prosecutor may not use a witness’ testimony or any information derived from the testimony against the witness in a subsequent prosecution. Thus, while transactional immunity provides a complete bar to prosecution, under use immunity a witness may be prosecuted for the offense to which the compelled testimony relates, but only if the prosecution shows that the evidence used was derived from a legitimate source, wholly independent of the compelled testimony. 3 Wharton Criminal Procedure (12th ed), § 409, pp 94-95.
In the present case, we must decide whether the statute under which defendant was granted immunity provides for transactional or use immunity. If the statute provides for transactional immunity, then defendant cannot be punished for his involvement in the arson. If the statute only provides for use immunity, then defendant can be punished because the evidence the prosecutor used was from a legitimate, independent source, Russell Martin, rather than from defendant.
From the broad language of the provision, we conclude that the Legislature intended to grant transactional immunity under the statute. Our conclusion is buttressed by the Legislature’s use of the word "transaction” in the statute and the absence of the word "use.” Further, we note that the last sentence of the statute states that the grant of immunity under the statute shall not exempt the testifying witness from prosecution for perjury. From this language, we draw an inference that a person granted immunity under the provi sion cannot be prosecuted or punished for anything related to their testimony except perjury.
Our finding of transactional immunity is further supported by the similarity of the provision with the now repealed compulsory testimony act of February 11, 1893, 27 Stat 443, repealed by the Organized Crime Control Act of 1970, Pub L No 91-452, § 245, 84 Stat 931. At the time of its repeal, this act provided:
[N]o person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise.
This act became the basic form for federal transactional immunity statutes until it was repealed and replaced by an act providing only for use immunity, 18 USC 6001 et seq. For a discussion of the history of federal immunity law, see Kastigar v United States, 406 US 441; 92 S Ct 1653; 32 L Ed 2d 212 (1972).
Since defendant was granted transactional immunity under MCL 29.7(4); MSA 4.559(7)(4), the trial court erred to the extent it relied upon defendant’s involvement in the arson as a basis for revoking his probationary sentence. However, since the defendant was also found guilty of violating his probation by failing to report for his June 25, 1985, probation appointment, this case is remanded for further proceedings on defendant’s conviction of that violation alone.
We do not retain jurisdiction.
Sawyer, P.J., concurs in the result only. | [
11,
3,
-57,
22,
44,
25,
-46,
-33,
-53,
29,
-21,
-2,
49,
-48,
-51,
-26,
-3,
28,
24,
-39,
-7,
-3,
32,
15,
-25,
-58,
-7,
43,
-29,
59,
41,
-56,
10,
-32,
-44,
-59,
27,
12,
40,
23,
25,
-17,
18,
-8,
-61,
4,
-58,
8,
30,
13,
6,
26,
21,
27,
0,
14,
-1,
-5,
-7,
29,
-35,
21,
-26,
-43,
-21,
25,
-12,
7,
-30,
11,
17,
-54,
-59,
-20,
-56,
32,
-36,
33,
15,
52,
-25,
28,
17,
15,
8,
-1,
-3,
-33,
-25,
-4,
-34,
-27,
12,
-17,
-29,
-34,
-34,
0,
79,
-25,
-6,
-16,
18,
-17,
8,
-10,
-28,
12,
3,
-11,
-23,
-55,
-5,
-16,
-12,
-65,
-35,
27,
0,
19,
-1,
-64,
3,
-46,
67,
0,
38,
-41,
-33,
15,
-39,
30,
5,
4,
-30,
-15,
29,
43,
20,
10,
-11,
-16,
-11,
-6,
-11,
-1,
4,
-13,
13,
11,
-38,
-28,
-18,
27,
-21,
6,
37,
-49,
-18,
-26,
3,
-3,
-37,
-1,
-11,
-21,
-62,
-7,
-26,
-57,
26,
48,
-20,
5,
23,
-25,
-47,
9,
-22,
-5,
-32,
19,
0,
31,
23,
21,
-35,
26,
-37,
50,
-4,
13,
27,
-7,
55,
-4,
13,
3,
25,
0,
-9,
3,
17,
1,
33,
-29,
14,
12,
39,
-5,
-25,
0,
0,
-59,
-6,
-8,
0,
10,
27,
1,
-34,
-20,
18,
-14,
-54,
-14,
-17,
50,
51,
9,
-6,
-2,
25,
-3,
-20,
8,
69,
-5,
74,
23,
12,
27,
37,
1,
-17,
9,
-20,
6,
3,
-46,
-20,
-42,
17,
-10,
-36,
5,
-19,
-30,
-56,
42,
55,
20,
-2,
0,
-24,
49,
32,
25,
-5,
5,
5,
-43,
10,
39,
-20,
50,
-18,
17,
-26,
-35,
31,
6,
1,
-3,
-1,
-6,
-17,
43,
2,
-65,
20,
-11,
-29,
7,
47,
-16,
0,
2,
-10,
17,
2,
-47,
-29,
-18,
-23,
-22,
44,
-3,
-33,
10,
49,
22,
23,
-17,
18,
-52,
0,
0,
11,
-51,
23,
-14,
-32,
-86,
13,
-5,
-13,
0,
24,
46,
-34,
-24,
-61,
10,
50,
66,
-28,
27,
12,
-7,
-19,
-10,
-28,
-36,
-3,
9,
-11,
18,
-20,
15,
49,
-13,
-3,
-9,
-23,
-5,
11,
-10,
14,
4,
9,
-13,
-49,
11,
0,
0,
8,
5,
-33,
29,
-1,
-14,
-24,
-7,
-12,
31,
-11,
-28,
0,
37,
2,
-5,
40,
21,
26,
-110,
-34,
10,
-24,
10,
-35,
51,
-59,
-60,
-24,
-9,
8,
-38,
20,
43,
-2,
3,
-1,
-31,
-44,
-34,
-84,
42,
-6,
-24,
12,
83,
-3,
24,
4,
-35,
10,
7,
14,
0,
55,
-31,
54,
-7,
33,
4,
-35,
-5,
27,
5,
-15,
-12,
2,
-33,
8,
42,
-53,
-57,
-25,
21,
-10,
-26,
-11,
-16,
49,
3,
0,
-39,
11,
27,
-78,
31,
24,
4,
-21,
26,
12,
23,
-26,
-45,
11,
-16,
-5,
25,
46,
-24,
-30,
-16,
-19,
-5,
51,
10,
-36,
14,
-23,
-8,
0,
14,
-16,
62,
12,
28,
0,
0,
12,
-3,
8,
10,
4,
-14,
-1,
2,
4,
0,
2,
12,
32,
-7,
7,
-7,
0,
-32,
-65,
36,
79,
-28,
40,
-25,
47,
27,
15,
35,
-1,
39,
3,
-40,
9,
-21,
24,
62,
43,
-21,
25,
-16,
-35,
-13,
-46,
41,
-19,
23,
1,
-43,
58,
7,
55,
17,
12,
0,
-12,
-23,
-29,
42,
-21,
57,
-40,
-30,
28,
-4,
2,
18,
-27,
-26,
22,
-46,
-47,
40,
17,
6,
17,
24,
-20,
27,
54,
25,
-40,
-21,
-14,
-1,
13,
-23,
77,
9,
-16,
-33,
0,
-12,
19,
16,
14,
27,
-89,
34,
-17,
-7,
-22,
24,
-8,
40,
25,
23,
-40,
28,
10,
-3,
-23,
-21,
-69,
-62,
18,
54,
24,
-23,
-33,
23,
46,
9,
78,
1,
-17,
26,
64,
22,
-83,
-34,
25,
17,
-10,
11,
-83,
93,
4,
-54,
-32,
-58,
0,
-10,
-26,
-53,
25,
-26,
-4,
-13,
-57,
-35,
-15,
-32,
-52,
5,
-49,
-44,
-6,
55,
1,
-37,
33,
37,
60,
-4,
-13,
-37,
-23,
-9,
-36,
-15,
0,
0,
-20,
17,
48,
-38,
-32,
-28,
-28,
-2,
12,
-34,
6,
26,
-26,
28,
12,
-49,
9,
29,
3,
55,
-52,
4,
40,
-48,
-20,
-47,
23,
-3,
-86,
-48,
-47,
4,
8,
50,
35,
24,
-1,
60,
38,
-19,
9,
7,
11,
3,
-38,
-2,
-45,
30,
-23,
4,
54,
-70,
6,
-3,
14,
51,
18,
30,
8,
-87,
-1,
-28,
-68,
11,
11,
-39,
39,
-3,
48,
25,
26,
33,
53,
-85,
17,
-23,
-16,
34,
27,
41,
-24,
20,
0,
34,
-19,
-29,
14,
-23,
-5,
18,
23,
-22,
83,
-33,
17,
6,
-16,
32,
-20,
92,
62,
-26,
-32,
-7,
29,
0,
21,
-22,
-8,
-8,
29,
-7,
50,
-30,
-63,
-14,
55,
14,
-44,
59,
-7,
-3,
19,
-2,
-3,
-8,
-69,
-3,
-7,
-40,
-23,
-19,
-2,
-55,
2,
19,
-28,
18,
30,
-32,
7,
-52,
7,
-25,
9,
2,
-34,
-1,
-13,
-14,
52,
4,
21,
-18,
23,
7,
0,
22,
43,
62,
-10,
-33,
34,
-2,
-14,
31,
-23,
-11,
-1,
27,
11,
-53,
18,
-8,
-33,
-20,
41,
35,
3,
-16,
-35,
44,
-8,
-49,
15,
-16,
7,
24,
34,
-9,
6,
9,
-4,
26,
40,
-34,
-13,
33,
-62,
-32,
-10,
17,
1,
-48,
31,
6,
-2,
-24,
35,
-11,
14,
-4,
22,
12,
-15,
-3,
6,
84,
14,
26,
5,
-12,
13,
0,
71,
-39,
0,
34,
57,
13,
-32,
-15,
-1,
24,
-3,
56,
8,
-4,
-60,
31,
37,
-14,
11,
-48,
10,
-68,
-5,
-9,
29,
-30,
-26,
28,
-21,
2,
-37,
-9,
48,
-4,
36,
41,
-14,
-4,
33,
3,
-25,
40,
7,
-13,
4,
-6,
19,
-7,
-44,
23,
7,
5,
13,
32,
90,
-21,
35,
-27,
7,
14,
-7,
7,
-14,
16,
-53,
6,
-2,
-10,
-15,
36,
-22,
6,
1,
12,
-44,
15,
23,
45,
21,
-52,
0,
45,
-33,
14,
25,
72,
-13,
33,
-39,
-9,
40,
-19,
-5,
-2,
9,
-16,
2,
3,
-43,
12,
-28,
-22,
-40,
0,
13,
-18,
20,
19,
34,
-38,
4,
-64,
39,
62,
-10,
11,
-16,
1,
-6,
19,
0,
46,
2,
-38,
65,
-12,
-40,
27,
8,
2,
29,
-15,
27,
-74,
-28,
2,
7,
16,
-51,
51,
-10,
41,
-1,
69
] |
Kuhn, J.
The defendant is a corporation admitted to do business in both Michigan and Wisconsin, and at the time of the accident which gives rise to this litigation, was operating a street railway and interurban system, the entire system extending from the city of Bessemer, as its eastern terminus, in the State of Michigan, to the village of Gile, Wisconsin,.as its western terminus. Its tracks were laid along the main streets of the city of Ironwood, Michigan, and the village, of Hurley, in the State of Wisconsin. It operated interurban cars from the city of Bessemer to a point in the city of Ironwood, a short distance east of the State line. It also operated cars, designated as local cars, from Jessieville, a suburb within the city limits of Ironwood, through the city of Ironwood, through Hurley, Wisconsin, to Gile.
The plaintiff, at the time of the accident, was employed as a motorman on one of the city or local cars. His employment was limited to the city of Ironwood, and he commenced his run at a point in that city, took his car on a trip eastward through the city to the eastern terminal of the line at Jessieville and returned to the point at which he took charge, being at all times in the city of Ironwood. When he completed his run through the city of Ironwood, the car was turned over to atiother crew, the conductor on the plaintiff’s run becoming the motorman, and the car was then taken on a trip across the line into Hurley, Wisconsin, and return.
On the night of the accident, at about 8:30 in the evening, the plaintiff had taken his car on the trip through Ironwood to the eastern terminal of the line and was returning without any passengers. As the car turned the corner of Ayer and Marquette streets in the city of Ironwood, the trolley pole came off the trolley wire, and, as was his duty, he went to the rear of the'car with reference to it. In replacing the trolley pole, it was necessary for him to stand between the rails of the track in the rear of his car and man ipulate a rope that was attached to the trolley pole. As he was in the act of replacing the trolley pole, an interurban car approached rapidly from the rear and collided with his car, which resulted in the plaintiff being caught between the cars and severely injured, and as a result he lost his left leg at the thigh.
At the time of the accident the defendant railway company had not elected to come under the State workmen’s compensation law, and this action, was brought to recover damages as a common-law action, resulting in a verdict for the plaintiff in the sum of $12;500.
At the time the plaintiff was injured, he was 21 years of age and had resided in the United States a little over two years, having immigrated from Sweden, and it is claimed that he was unable to speak or read the English language and could understand but little of it. The defendant, on the trial, pleaded settlement and release, and there was offered and received in evidence on the trial, over the objection of plaintiff’s counsel, an instrument purporting to be an agreement in regard to compensation, signed by the plaintiff and bearing date of November 1, 1916, seven days after the accident. This agreement was made out on the usual blank form used by the industrial accident board. The defendant at the time of the accident was not subject to the provisions of the workmen’s compensation act and did not elect to come under that act for several months thereafter. This paper was signed by plaintiff while he was confined in the hospital, and about a month later he received a check for a little over $8, and thereafter he was paid about $16 every two weeks until the following March, a period of about three months. After he had consulted his counsel, he was advised to no longer accept payments and did not accept any money thereafter.
The questions which are raised by defendant’s coun sel are discussed in their brief and were discussed on the argument under three heads, as follows:
“(1) That the parties to this action, at the time of the accident, were subject to the rule of liability established by the Federal employers’ liability act, and that the case was improperly submitted to the jury upon the theory that the defenses were taken away.
“(2) That the settlement agreement having been entered into in good faith and the plaintiff, having received payments on that settlement after discovering that the defendant was not under the Michigan workmen’s law, ratified and confirmed the settlement agreement.
“(3) That the plaintiff could not maintain his action without returning or offering to return to the defendant the money received by him and the money paid for him under this settlement agreement.”
1. Is the defendant a “common carrier by railroad” within the meaning of the Federal employers’ liability act? (35 U. S. Stat. 65). In the determination of this question, and in attempting to ascertain what the legislative intent of congress was in passing the act in question, we will necessarily be governed by the Federal decisions. Whether or not it was within the legislative contemplation that the word “railroad” was to include a street railroad must be determined by construing the statute as a whole. Plaintiff’s counsel strongly urge that it was not the intention of congress by this act to legislate with reference to the employees of purely local street railways which might be engaged in interstate commerce, and cite, in support of their contention, the case of Omaha, etc., R. Co. v. Interstate Commerce Commission, 230 U. S. 324 (33 Sup. Ct. 890, 46 L. R. A. [N. S.] 385), where the court construed the act to regulate commerce, and the question was whether street railways became subject to its provisions and under the jurisdiction of the interstate commerce commission. Mr. Justice Lamar, in writing the opinion for the court in that case, showed the distinction between ordinary street railways and commercial railroads, and reviewed the act, and concluded, from its entire context and from provisions therein contained which were peculiarly applicable to commercial railroads and not to street railways operating only on the. streets of cities and villages, that it was not the intent of congress to include purely street railways within the provisions of that act. An examination of the Federal employers’ liability act, however, does not, in our opinion, call for the drawing of any such distinction, and, as was sjtid by Mr. Justice Clarke in reference to the Omaha Case, supra, in the more recent case of Washington Ry. & Elec. Co. v. Scala, 244 U. S. 630 (37 Sup. Ct. 654):
• “The case is of negligible value in determining either the construction of the act we are considering in this case (employers’ liability act), or the classification of the defendant, which clearly enough is a suburban railroad common carrier of passengers within the scope of the Federal employers’ liability act, as is sufficiently decided by United States v. Railway Co., 226 U. S. 14 (33 Sup. Ct. 5); Kansas City Western R. Co. v. McAdow, 240 U. S. 51 (36 Sup. Ct. 252); Spokane, etc., R. Co. v. United States, 241 U. S. 344 (36 Sup. Ct. 668), and Spokane, etc., R. Co. v. Campbell, 241 U. S. 497 (36 Sup. Ct. 683).”
It seems to us clear that the purpose and intent of the Federal employers’ liability act was to establish throughout the United States a uniform rule of broad liability on the part of common carriers by railroad'to their employees for negligent personal injuries, in so far as, and to the full extent to which the regulative power of congress extends, in order that the legal status of such employers’ liability for negligent injuries inflicted upon an employee* while both employer and employee are engaged in interstate commerce, instead of being subject to the uncertainty of varying rules depending upon the particular locality in which the accident may chance to occur, may be fixed by a single rule, and by such a rule, moreover, as will tend to impel such carriers to avoid, or prevent the negligent acts and omissions for which the statute gives the right of recovery, .thereby promoting not only the safety of the employees, but also, as a necessary consequence, the safer and less impeded transportation of the objects of commerce, whether freight or passenger. If any distinction whatever can be drawn between street railways and other railroads in any respect that can fairly be claimed to have a possible bearing on the question of the legislative intent of congress as to the inclusion or exclusion of the former class of carriers, the difference, we are convinced, will be found to be merely one of degree and not of kind. No substantial reason suggests itself to us why the safe and unimpeded transportation of passengers from one State into another on a local street railway line operating solely over city streets, and the safety of the employees of such a railway, should not have been objects of solicitude on the part of congress as well as the like beneficial results in connection with other forms of interstate railroad transportation. Nothing in the terms and provisions of the act indicates a design to exclude street railways. Every provision of the act is as applicable to a purely street railway carrier whose lines extend from one State into another, as to an interstate suburban electric railroad or an interstate steam railroad.
In the case of Arends v. Railway Co., 172 Mich. 448, this court had under consideration an act of our legislature, the title of which was “An act to prescribe the liability of common carrier railroad companies to their employees,” and the express language of section 1 of the act made it applicable to “every common carrier railroad company in this State.” (2 Comp. Laws 1915, § 5496). It was determined in that case that the term “railroad” was broad enough to include street railways.
In our opinion, it must be said that it was the intent of congress by the act in question to include street railways that were engaged in interstate commerce, and therefore, if it can be said that the plaintiff was engaged in interstate commerce at the time of the accident, his action should have been brought under the Federal act. See South Covington, etc., R. Co. v. Finan’s Adm'x, 153 Ky. 340 (155 S. W. 742); Kiser v. Railway Co., 188 Mo. App. 169 (175 S. W. 98).
It is the contention of plaintiff that even if it should be held that the defendant, in the operation of its street railway, was under the Federal act, plaintiff was not at the time of the accident engaged in interstate commerce and was not, therefore, subject to the provisions of that act. With this contention we cannot agree. In the instant case the street car upon which the plaintiff was employed was an instrumentality clearly engaged in interstate commerce, and the case comes within the test laid down in Shanks v. Railroad Co., 239 U. S. 556 (36 Sup. Ct. 188, L. R. A. 1916C, 797), where it is stated that the question is:
“Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?”
The car upon which the plaintiff was employed went from one State into the other, and the plaintiff being employed thereon, the case is clearly within the test above set forth, and it must, therefore, be said that he was engaged in interstate commerce. See, also, North Carolina R. Co. v. Zachary, 232 U. S. 248 (34 Sup. Ct. 305, Ann. Cas. 1914C, 159); Spokane, etc., R. Co. v. Campbell, 241 U. S. 497 (36 Sup. Ct. 683); Western Oil Refining Co. v. Lipscomb, 244 U. S. 346 (37 Sup. Ct. 623); South Covington, etc., R. Co. v. City of Covington, 235 U. S. 537 (35 Sup. Ct. 158, L. R. A. 1915F, 792); Moliter v. Railroad, Co., 180 Mo. App. 84 (168 S. W. 250).
It is next contended by counsel for plaintiff that, while under the State law the defenses of negligence of fellow-servant, contributory negligence, and assumption of risk were not open to defendant, nevertheless there was no prejudicial error committed in submitting the case on the theory that the case was not subject to the Federal act, because, under the facts in this case, the defendant was not deprived of making any defense that it could have made under the Federal act, and it is therefore contended that even if it should be held that the plaintiff was subject to the Federal act, the judgment should be affirmed. With this contention we cannot agree, because, under the Federal act, the question of plaintiff’s contributory negligence might properly be submitted to the jury as affecting the question of damages, and we are impressed that, under the facts of this case, the question was one of fact, and would necessarily be submitted to the jury.
2. With reference to the agreement in regard to compensation, which it is claimed the plaintiff signed following the accident, we are of the opinion that it should not be held as a bar to this action. In accepting these compensation checks, plaintiff testified that he did not know, and was not told, what they were for, and that he assumed that they were probably club money, as he had worked on a railroad in the old country where a fund was provided by the employees for such contingencies. At the time that the so-called release agreement was signed, the defendant had not elected to come under the workmen’s compensation act, and the agreement, therefore, was not binding upon the plaintiff at the time it was executed. See Bernard v. Traction Co., 188 Mich. 504. The court, at the request of the defendant, charged the jury that if they found that the agreement in regard to compensation was a mutual agreement and the parties understood each other, or if the plaintiff after-wards ratified the agreement by his action and intent to release the defendant, the plaintiff would be bound by it, and it would be an absolute release. This was as favorable an instruction as the defendant was entitled to. Plaintiff’s testimony tended to show that his signature to the instrument was obtained by false and fraudulent representations, and even if it purported to be a release or could be construed to be a release if entered into fairly and understandingly, in our opinion the jury was warranted, under the testimony and the charge of the court, in finding that it was not binding upon the plaintiff.
3. Neither are we of the opinion that, because of the claim that it was not understood by the plaintiff that the amounts received were in settlement of the disputed liability, it follows as a matter of law that a return of the money was necessary. The question was in dispute and should be submitted to the jury. See Brown v. Railroad Co., 183 Mich. 574.
Under the declaration filed in this cause, the court should have granted the motion made by the defendant that the plaintiff had not made out a case, as he had elected to stand on his common-law action, it appearing that the parties to the action were both subject to the Federal employers’ liability act.
For these reasons the judgment' must be reversed and a new trial granted.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
-6,
33,
7,
-14,
-8,
10,
-16,
-33,
25,
-1,
-23,
0,
8,
0,
4,
0,
-9,
-37,
-17,
-24,
19,
-59,
-4,
-25,
-41,
-20,
18,
-44,
-25,
-11,
23,
-26,
0,
33,
-32,
54,
12,
3,
33,
0,
-6,
-14,
-9,
3,
37,
14,
59,
-12,
31,
-29,
4,
42,
-22,
-5,
-29,
19,
21,
26,
-7,
-3,
2,
-31,
10,
-18,
39,
33,
39,
34,
0,
-9,
-41,
-2,
-12,
0,
-1,
17,
-40,
29,
-11,
19,
-32,
23,
43,
2,
-36,
55,
-21,
6,
-10,
-21,
5,
-22,
-26,
-4,
44,
34,
-37,
-24,
-37,
2,
-3,
41,
0,
3,
-26,
22,
25,
-14,
24,
-32,
-33,
2,
-21,
-36,
-10,
-28,
-6,
-33,
94,
69,
29,
-52,
45,
34,
0,
-1,
-51,
-6,
-52,
4,
33,
2,
7,
41,
62,
1,
-26,
-28,
-5,
15,
-7,
39,
-22,
14,
-31,
-3,
3,
9,
32,
-6,
-25,
-10,
19,
-27,
-26,
0,
-8,
3,
67,
21,
33,
19,
75,
-7,
-48,
-36,
-34,
25,
-7,
35,
-11,
0,
46,
-77,
57,
5,
-2,
0,
-60,
-21,
-11,
17,
17,
-20,
-55,
-51,
7,
-23,
-6,
-17,
69,
-17,
-46,
-31,
-67,
62,
41,
-30,
-2,
50,
26,
-51,
-54,
-20,
-10,
14,
-5,
12,
-1,
41,
56,
-15,
-46,
-7,
0,
-5,
-26,
-54,
31,
-43,
34,
27,
22,
4,
-33,
13,
-27,
-4,
19,
1,
35,
-26,
43,
-9,
-70,
-21,
35,
-17,
71,
-51,
52,
6,
-11,
-24,
-9,
-60,
-56,
-43,
-33,
21,
-24,
-25,
-30,
-42,
-15,
-7,
-32,
21,
-33,
-26,
56,
66,
-15,
80,
11,
-31,
-12,
49,
-19,
-68,
-13,
24,
56,
-4,
-63,
-40,
40,
22,
82,
69,
5,
-28,
-20,
23,
-5,
30,
5,
24,
-18,
-48,
10,
-4,
-6,
-6,
14,
17,
45,
2,
-53,
7,
3,
-37,
-19,
40,
16,
32,
-59,
12,
20,
51,
-20,
-17,
-7,
-24,
69,
49,
37,
32,
21,
-38,
2,
16,
-29,
6,
14,
32,
1,
0,
-16,
5,
11,
3,
-8,
25,
-13,
-79,
26,
16,
6,
0,
-15,
35,
7,
16,
-7,
-23,
35,
17,
36,
-45,
-38,
-56,
26,
-76,
0,
-6,
50,
-13,
-20,
50,
4,
38,
20,
11,
-6,
-79,
-31,
18,
-32,
50,
-48,
-6,
-21,
31,
16,
-86,
-17,
70,
-44,
67,
9,
-25,
26,
-15,
7,
-19,
-32,
-5,
-76,
10,
-17,
-22,
17,
28,
28,
-23,
-34,
19,
-52,
-34,
11,
53,
15,
-24,
14,
-29,
0,
37,
72,
-14,
-35,
-51,
93,
-36,
19,
-10,
46,
8,
0,
5,
66,
43,
-4,
-54,
36,
9,
-14,
1,
-12,
1,
18,
-10,
52,
-17,
7,
-20,
-18,
-15,
-24,
-51,
-57,
5,
-9,
5,
-14,
-14,
-44,
42,
40,
-66,
-8,
25,
48,
40,
-33,
13,
20,
14,
36,
24,
-50,
-18,
23,
-7,
4,
-8,
18,
6,
36,
43,
-23,
54,
-45,
57,
-12,
-65,
11,
-9,
-21,
26,
-97,
-22,
-5,
0,
-14,
-23,
46,
0,
20,
24,
35,
107,
-16,
5,
2,
-7,
-24,
68,
26,
-24,
-73,
-37,
-25,
0,
13,
9,
6,
-20,
-41,
-6,
29,
26,
35,
7,
10,
-10,
-78,
-1,
9,
-16,
-28,
7,
0,
28,
-32,
-9,
38,
-19,
-11,
-47,
31,
-50,
48,
-1,
32,
-37,
9,
6,
-54,
-4,
9,
-11,
17,
-45,
-11,
-19,
3,
-14,
13,
7,
-26,
-10,
27,
-36,
0,
-40,
-23,
-52,
-4,
-24,
23,
-9,
3,
-2,
34,
-3,
0,
12,
12,
-46,
-42,
70,
38,
-47,
-34,
18,
24,
-1,
-35,
-3,
-6,
-14,
9,
-19,
-39,
-3,
-1,
-28,
-16,
8,
21,
38,
-63,
12,
42,
41,
12,
38,
37,
-15,
41,
-44,
-28,
6,
-1,
-17,
-43,
12,
2,
32,
-1,
-31,
-1,
2,
-18,
18,
-5,
8,
63,
0,
-7,
-16,
19,
23,
-10,
8,
16,
-22,
-37,
-23,
-2,
46,
-99,
-4,
-16,
-1,
39,
62,
22,
9,
35,
2,
0,
-36,
-42,
-69,
-40,
40,
-77,
-4,
-33,
30,
44,
-4,
0,
8,
-9,
22,
-48,
-46,
-20,
-2,
10,
-2,
-108,
-16,
-7,
-85,
20,
6,
64,
0,
34,
-9,
-30,
-27,
-4,
36,
-9,
9,
23,
5,
45,
-18,
5,
19,
2,
26,
32,
-47,
-21,
9,
16,
16,
25,
23,
10,
-12,
0,
-41,
-56,
41,
15,
53,
-58,
6,
18,
-39,
12,
43,
52,
-14,
7,
-9,
8,
33,
20,
-29,
-18,
-8,
-12,
-35,
-6,
-73,
40,
-1,
-8,
-18,
-8,
8,
-14,
4,
-4,
-15,
-31,
-30,
0,
5,
-30,
-4,
16,
-10,
29,
-2,
-30,
-17,
29,
33,
-18,
-1,
-44,
37,
46,
-36,
50,
-57,
41,
54,
-73,
-26,
20,
-15,
46,
-14,
-23,
5,
11,
-17,
9,
-22,
-19,
40,
-30,
-36,
10,
46,
-11,
-23,
2,
0,
-21,
-20,
36,
-9,
-16,
25,
7,
25,
31,
-1,
-5,
-19,
15,
22,
-21,
6,
4,
0,
63,
-17,
-17,
3,
-60,
13,
-33,
-13,
-11,
8,
9,
0,
-11,
76,
-24,
-9,
34,
35,
-12,
15,
-57,
37,
-31,
6,
3,
-2,
-29,
-6,
-25,
-38,
41,
8,
9,
-10,
-22,
-14,
10,
18,
45,
-13,
-13,
1,
40,
-1,
-21,
-28,
11,
-11,
-25,
18,
12,
-5,
-46,
-39,
-7,
-11,
22,
40,
-2,
28,
-11,
33,
-3,
-9,
-91,
9,
-4,
-37,
-78,
-53,
-44,
10,
38,
-17,
-16,
28,
-8,
-25,
4,
13,
16,
-25,
-11,
-48,
40,
1,
-19,
-31,
12,
-6,
19,
26,
-7,
1,
0,
-5,
-71,
-15,
-16,
23,
17,
-1,
0,
72,
34,
15,
-18,
-12,
30,
-33,
-50,
2,
9,
22,
-30,
1,
0,
12,
-94,
30,
2,
13,
9,
26,
17,
14,
-34,
31,
-4,
37,
-33,
36,
9,
-15,
41,
-8,
72,
3,
46,
-20,
21,
7,
-13,
35,
-57,
39,
-14,
-37,
26,
-6,
-7,
66,
-18,
10,
-2,
52,
-15,
-38,
1,
20,
-8,
-61,
71,
28,
67,
13,
22,
-25,
12,
-25,
12,
-24,
-42,
66,
-48,
-2,
8,
-14,
-4,
37,
-26,
-29,
12,
-5,
15,
65,
28,
-57,
-26,
-15,
-8,
46,
-46,
-29,
-5,
-30,
15,
-2,
22,
17,
-13,
-33,
27,
-42,
-18,
23,
53,
8,
27,
25,
17,
43,
-50,
36,
18,
-14,
57,
62,
-49,
-18,
38,
-57,
22,
51,
47,
41
] |
Moore, J.
On the afternoon of March 24, 1914, plaintiff went on an automobile ride with two other ladies. They were driving south on Antoine street, which runs in a northerly and southerly direction and approached Columbia street which intersects Antoine street at right angles. The accident out of which this action arose occurred at the intersection of these two streets. Only two witnesses gave testimony as to the facts of the accident. The defendant was sworn. He was called under the statute by the plaintiff to show his ownership of the machine, but did not give his version of what occurred. The court directed a verdict for the defendant on the ground that the evidence showed that plaintiff’s driver was guilty of contributory negligence, and that it failed to show the defendant was guilty of any negligence. The case is brought here by writ of error and the question is, Should it have.been submitted to the jury?
It has long been the law in case of a directed verdict that the evidence on behalf of the appellant is to be treated in the light most favorable to appellant. Foley v. Railway Co., 179 Mich. 587; Spreng v. Railway, 197 Mich. 343.
The diagram on opposite page was offered in evidence.
It was stipulated in relation thereto as follows:
“The diagram hereto attached may be inserted in the record of the cause for the purpose of illustration to indicate to the court the approximate distances and locations and it is the intention of the parties hereto that the objects indicated on such diagram and the distances given thereon shall be conclusive as to such objects and distances only so far as corroborated by the testimony.”
We quote from the testimony of the plaintiff:
“I have ridden in automobiles ever since they have been, and know that we were driving at a moderate rate of speed and, as compared to the rate of speed which we were driving, the car which collided with us was going at a faster rate of speed. I saw the car before it collided with us. I know that the lady who was driving our car blew her horn for I heard it. * * * After the impact of the collision it had the effect to turn our car * * * it knocked the hind end of our car around and we came to a stop in front of * * * the store on the southeast corner. * * * I only saw Ms automobile at a glance. I saw it was coming toward us. Mrs. Hunt screamed just before we were struck. Our automobile was on the south side of the intersection of Antoine and Columbia streets at that time. Her automobile was in front of the automobile that was coming toward us, when she screamed but it struck her back wheel. I thought it was going to strike us quite square or broadside but our machine moved forward a sufficient distance so that it struck the back wheel and that shoved our automobile around. * * *
“Q. How far across the street did it knock you?
“A. We were nearly across the street when it struck. * * * I was not watching Mrs. Walters. I was watching the other automobile. She moved — turned out more, but I did not see her because I was watching the other machine. We had reached the corner of Antoine and Columbia when I saw it coming (pointing) about where the mark is. I looked up Columbia street and saw the car coming down Columbia street. I would say that at that time we were at the intersection of Antoine and Columbia street, a little to the north side just about opposite the north curb of Columbia street when I first saw it. The other automobile was coming down Columbia. I am sure it was his machine that struck us and that it was going faster than we were, quite a bit faster. We were not going fast. I saw the other car coming across the street up Columbia street a little way. I could not say how many feet, possibly 50 feet. I could not say how many feet back, but it was before they had reached Antoine street. It was before they had reached Antoine street that I saw it. We were then at the north curbstone of the intersection, the north curb of Columbia. I could not tell how many miles per hour we were traveling. I thought the other automobile was going to run directly into the side of our car, just before we struck. * * *
“Q. You say you don’t pretend to know about the number of feet or inches in making estimates?
“A. No, sir.
“Q. You do not know that had the doctor here been on the opposite side of the street, continuing in a straight line, would there have been room enough be tween that straight line, if he had continued, between then and the time you struck, to have gone by without your hitting him?
“A. Yes, sir.”
This testimony shows the substantial accuracy of the diagram.
The statutory enactments of this State in force at the time of this accident bearing on this point read:
“Whenever any persons shall meet each other on any bridge or road, traveling with carriages, wagons, carts, sleds, sleighs or other vehicles, each person shall seasonably drive his carriage or other vehicle to the right of the middle of the traveled part of such bridge or road, so that the respective carriages, or other vehicles aforesaid, may pass each other without interference.” Section 4291, 2 Comp. Laws 1897.
This statute is entitled “The Law of the Road.” Section 6, subdivision 4, of Act No. 318 of the Public Acts of 1909, provides:
“Whenever a person operating a motor vehicle shall meet on a highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, and there being no occasion to stop as above provided, the person operating such motor vehicle shall seasonably turn the same to the right of the center of the traveled portion of the highway; while the person approaching shall likewise turn from the center of the traveled portion of the highway so as to pass the motor vehicle on the opposite side of the center of the highway to which the motor vehicle has been turned. And any person so operating any motor vehicle shall, at the intersection of a public highway, keep to the right of the intersection of the centers of such highways when turning to the right and 'pass to the right of such intersection when turning to the left.”
In the instant case there is testimony that the automobile in which plaintiff was riding was going south on Antoine street and when it reached the north curb of Columbia street the automobile of defendant was proceeding west on Columbia street and when the driver of the automobile on Antoine street was at the north curb of Columbia street, she sounded the automobile horn and at that time the automobile of defendant was east of the east curb of Antoine street and continued west thereon, on the south side of the center of the street and instead of passing to the right of the center of the two streets, continued west on Columbia south of the center of the two streets and collided with the car of the plaintiff when that car was where it had a right to be, and the defendant’s car did not have a right to be.
We think the inferences fairly to be drawn from this situation and this testimony made a question for the jury both as to the contributory negligence of the plaintiff and the negligence of the defendant. See Amanta v. Railroad Co., 177 Mich. 280; Congdon v. Railway Co., 179 Mich. 175; Bouma v. Dubois, 169 Mich. 422; Brown v. Mitts, 167 Mich. 469; Weber v. Beeson, 197 Mich. 607.
Judgment is reversed and a new trial is ordered, with costs in favor of the plaintiff.
Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
-22,
30,
-8,
-19,
12,
14,
29,
-30,
30,
10,
-32,
13,
19,
-11,
-22,
8,
31,
-24,
-13,
-55,
-66,
-18,
-46,
-25,
-41,
-2,
35,
-24,
-18,
5,
59,
0,
-17,
-6,
13,
-19,
26,
18,
11,
20,
-4,
76,
-31,
-20,
20,
-30,
34,
-26,
60,
7,
24,
-19,
-32,
-41,
-25,
-24,
20,
56,
-40,
-32,
31,
-1,
26,
-20,
-28,
-23,
9,
-7,
-70,
18,
-70,
-18,
25,
-5,
-46,
13,
0,
18,
-62,
-31,
-6,
-15,
56,
15,
5,
25,
-28,
-29,
7,
-21,
-2,
-18,
-32,
34,
47,
5,
16,
-41,
43,
0,
-17,
10,
-21,
-6,
-14,
34,
-64,
-48,
34,
-37,
-36,
44,
33,
8,
-1,
-3,
10,
10,
70,
-11,
10,
-18,
-7,
24,
-3,
22,
-24,
7,
0,
35,
34,
-4,
-5,
16,
26,
-22,
-56,
-30,
12,
3,
21,
-1,
25,
41,
-43,
58,
-44,
72,
-5,
14,
-4,
-5,
1,
-39,
-6,
-33,
6,
-52,
45,
6,
-3,
29,
11,
-31,
-32,
26,
-42,
-1,
-7,
-29,
-7,
-6,
38,
-6,
39,
-23,
-19,
-27,
-51,
3,
-18,
18,
25,
-1,
-19,
-45,
-12,
38,
-25,
-16,
33,
-31,
-39,
-19,
-11,
27,
35,
-50,
48,
-27,
62,
-37,
-38,
-29,
-28,
4,
-12,
21,
20,
37,
26,
-2,
-2,
10,
43,
-2,
39,
-46,
-15,
-56,
-20,
13,
-3,
-25,
-50,
-27,
-65,
-22,
-7,
49,
-4,
-5,
-36,
23,
-30,
-42,
2,
-60,
13,
-18,
15,
-6,
20,
-22,
21,
37,
20,
-9,
-3,
21,
36,
38,
2,
-24,
-27,
-23,
15,
37,
-3,
12,
22,
70,
-27,
9,
5,
-20,
11,
4,
-12,
-11,
-34,
-3,
7,
13,
-30,
-70,
31,
57,
24,
16,
6,
-13,
-51,
20,
12,
-9,
15,
-36,
1,
5,
23,
-27,
-16,
35,
-24,
15,
55,
14,
-23,
-44,
51,
10,
-13,
4,
27,
-23,
-36,
0,
-17,
33,
-37,
11,
12,
14,
53,
43,
29,
-13,
42,
10,
-24,
38,
-38,
-23,
-13,
50,
41,
-57,
-29,
-10,
3,
84,
53,
-1,
16,
-21,
-8,
48,
-16,
7,
-31,
30,
-4,
17,
13,
9,
52,
28,
2,
11,
-71,
-32,
34,
-62,
-19,
-57,
41,
-50,
-24,
31,
-7,
-17,
57,
54,
18,
-22,
10,
-27,
-48,
44,
33,
-19,
-9,
7,
-32,
-58,
57,
24,
2,
69,
-38,
-10,
-4,
-41,
0,
-13,
-9,
-22,
-20,
21,
-14,
-15,
19,
10,
45,
-20,
0,
12,
-25,
-21,
-31,
19,
22,
-36,
-55,
18,
7,
14,
9,
32,
-41,
3,
56,
10,
19,
-7,
-5,
-5,
-35,
-28,
20,
34,
32,
-45,
-4,
-34,
5,
7,
-4,
-1,
-2,
-23,
30,
-12,
15,
-30,
-34,
-15,
24,
-24,
9,
16,
-61,
28,
-26,
-12,
25,
-24,
20,
22,
64,
20,
33,
39,
16,
5,
51,
47,
12,
-33,
9,
-25,
-11,
-7,
-17,
15,
9,
-16,
31,
-16,
-16,
43,
-34,
29,
2,
9,
-11,
-6,
-31,
-3,
-58,
21,
18,
-38,
-29,
-20,
-14,
-16,
-9,
15,
39,
27,
-41,
-16,
-34,
11,
-1,
27,
-69,
-33,
-32,
26,
-54,
-15,
17,
-11,
20,
-16,
-4,
-34,
-14,
37,
0,
26,
21,
24,
-47,
0,
16,
0,
5,
-18,
-13,
-34,
-38,
2,
22,
-33,
4,
-70,
52,
17,
-14,
33,
-3,
-35,
-3,
0,
-18,
19,
-3,
52,
28,
-20,
-6,
22,
4,
4,
37,
-5,
68,
13,
-3,
-50,
10,
-39,
27,
-10,
-24,
26,
7,
-10,
17,
0,
68,
-5,
-2,
-14,
40,
-54,
-69,
30,
5,
-33,
-62,
37,
-6,
30,
-55,
-9,
-19,
0,
-66,
43,
18,
-40,
-9,
16,
-14,
5,
-30,
12,
5,
28,
44,
8,
11,
20,
27,
-28,
19,
-26,
-37,
35,
14,
33,
-24,
-39,
11,
-38,
26,
8,
-1,
0,
8,
2,
-51,
20,
-5,
-12,
-36,
-5,
-2,
28,
13,
-16,
1,
31,
-23,
-43,
-27,
62,
-66,
10,
-50,
15,
14,
16,
-30,
-24,
17,
43,
32,
-41,
36,
-4,
-79,
18,
-50,
-59,
-50,
20,
6,
-38,
15,
11,
6,
-2,
-71,
42,
9,
18,
39,
-65,
-63,
-21,
-12,
-14,
12,
-4,
5,
-9,
70,
4,
24,
0,
-12,
62,
2,
27,
0,
-3,
0,
-13,
26,
-1,
1,
63,
47,
-30,
-63,
-5,
-20,
3,
-30,
-6,
33,
-16,
-6,
-43,
17,
-48,
20,
55,
-26,
-14,
9,
6,
3,
-1,
-15,
31,
4,
-16,
-28,
36,
19,
-7,
-43,
-5,
42,
-48,
53,
-17,
-51,
-2,
52,
-3,
4,
0,
57,
-13,
-12,
7,
33,
24,
28,
-40,
-23,
-26,
-23,
11,
3,
-22,
-13,
-43,
8,
-13,
21,
10,
-8,
19,
87,
-11,
62,
-4,
40,
19,
-17,
-78,
20,
-20,
31,
-42,
-34,
10,
23,
14,
-25,
-4,
-25,
-33,
11,
-47,
-39,
57,
14,
-40,
30,
-20,
-32,
-20,
-22,
14,
14,
-15,
-3,
6,
15,
14,
48,
50,
-12,
1,
-16,
-27,
-49,
-18,
7,
8,
-20,
-5,
-20,
5,
30,
-4,
20,
79,
61,
27,
32,
39,
-16,
-44,
-2,
10,
-7,
7,
-24,
0,
-1,
15,
-13,
1,
27,
-28,
8,
-8,
16,
-9,
37,
-38,
-23,
51,
0,
32,
66,
12,
3,
54,
23,
20,
-7,
39,
17,
-6,
-41,
61,
-4,
33,
-2,
18,
-2,
-16,
-36,
-6,
-9,
9,
17,
52,
-21,
-52,
-65,
-7,
20,
38,
2,
-32,
13,
-53,
5,
53,
-37,
13,
-13,
0,
0,
-15,
54,
38,
9,
-74,
35,
82,
-5,
-52,
0,
-61,
-42,
57,
-2,
-52,
70,
-36,
-60,
-9,
-14,
37,
16,
-20,
-48,
33,
27,
29,
27,
-21,
-8,
0,
-55,
-9,
51,
10,
-27,
-29,
8,
28,
-38,
-3,
40,
3,
34,
31,
13,
3,
-3,
12,
-34,
1,
0,
17,
-7,
6,
6,
-48,
26,
24,
-19,
-23,
-11,
-4,
40,
-19,
-22,
61,
-21,
-60,
-11,
29,
-35,
24,
29,
-38,
-10,
40,
-7,
6,
-54,
-22,
-14,
36,
8,
26,
21,
0,
24,
-36,
-19,
-9,
21,
33,
-17,
1,
10,
-13,
19,
4,
32,
-18,
-63,
14,
2,
10,
13,
32,
30,
-20,
-22,
-27,
-11,
-16,
-59,
-14,
-19,
2,
-33,
-52,
-46,
34,
38,
-23,
-36,
-3,
30,
42,
25,
-30,
22,
57,
0,
13,
-11,
12,
4,
-17,
17,
21,
-27,
-51,
-24,
-28,
1,
28,
26,
16
] |
Brooke, J.
Defendant was convicted under a complaint and warrant wherein it is charged that said defendant,—
“did then and there unlawfully possess within this State, to-wit, the State of Michigan, certain spirituous and intoxicating liquors, to-wit, one gallon of whiskey, said intoxicating liquors not being then and there so possessed for medicinal, chemical, mechanical, scientific or sacramental purposes.”
The evidence introduced makes it clear that the defendant was in possession of the liquor in question in his private house and that he had acquired such possession by purchase at a time prior to the first of May, 1918, when both purchase and possession were legal. At the conclusion of the trial a motion was made on behalf of the defendant for a directed verdict upon the ground that the information contains no allegation or fact constituting a crime under the laws of the State of Michigan and upon the further ground that Act No. 161 of the Pub. Acts of 1917, under which defendant was prosecuted, was repealed by Act No. 338, Pub. Acts 1917. That under the latter act possession by defendant of intoxicating liquors legally acquired prior to May 1, 1918, does not constitute a violation of any existing law. The motion was denied and defendant was convicted.
The question here involved is ruled by our decision in People v. Marxhausen, ante, 559, to which reference is made for a discussion of the applicable law.
The judgment is reversed and the defendant is discharged.
Bird, C. J., and Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit. | [
-49,
1,
20,
22,
-50,
-11,
5,
56,
-20,
26,
4,
-35,
15,
13,
74,
-9,
-7,
-14,
-26,
-25,
57,
14,
-42,
-15,
9,
-37,
-34,
13,
7,
12,
-1,
2,
28,
-34,
32,
-21,
31,
24,
52,
-8,
31,
28,
21,
16,
-53,
-23,
-47,
-35,
6,
-18,
24,
-59,
-12,
-10,
-21,
-4,
-29,
-4,
4,
58,
-8,
38,
34,
-27,
-32,
-2,
-21,
4,
-50,
-24,
9,
-14,
-46,
7,
-12,
23,
-2,
19,
-7,
12,
-12,
9,
38,
21,
25,
-4,
7,
-34,
3,
-33,
32,
18,
-75,
-29,
-3,
-20,
-17,
51,
21,
-24,
-11,
1,
-20,
14,
53,
1,
-34,
7,
-51,
-29,
2,
-39,
15,
11,
27,
-18,
-27,
-7,
-64,
-4,
42,
5,
87,
-22,
13,
-40,
35,
-19,
2,
-19,
45,
1,
-20,
-47,
-14,
-9,
-7,
37,
-21,
-1,
-9,
23,
16,
-35,
41,
11,
28,
-5,
10,
-16,
-49,
42,
-15,
27,
-19,
9,
26,
-8,
-6,
-21,
-61,
-11,
15,
-45,
4,
-28,
-4,
25,
-21,
-16,
-24,
-10,
11,
17,
66,
10,
7,
0,
-31,
-5,
-7,
4,
27,
-30,
12,
-35,
-55,
-27,
-17,
-16,
-25,
23,
-41,
9,
-38,
33,
22,
21,
9,
-1,
-37,
-22,
-21,
-6,
17,
-16,
21,
23,
4,
5,
-33,
-5,
1,
-49,
-15,
-61,
-19,
3,
-7,
0,
-28,
-38,
48,
24,
2,
-35,
28,
-18,
33,
30,
-25,
17,
34,
20,
-16,
-51,
-16,
12,
48,
19,
-21,
-22,
-93,
-60,
42,
-10,
-43,
-16,
1,
-2,
11,
-42,
-12,
-15,
-33,
-16,
47,
-63,
10,
-8,
9,
34,
-12,
36,
-35,
-5,
48,
16,
-15,
59,
-32,
0,
22,
42,
-14,
-11,
-16,
21,
36,
81,
13,
0,
60,
11,
-8,
10,
-17,
35,
9,
7,
36,
4,
-53,
0,
20,
35,
-32,
14,
7,
25,
25,
45,
-6,
58,
-36,
0,
23,
48,
-15,
-70,
-7,
-18,
-9,
19,
35,
18,
38,
14,
1,
-12,
-55,
-35,
-23,
-25,
-38,
-45,
45,
-37,
0,
-27,
-22,
21,
-11,
26,
-47,
-2,
20,
-24,
0,
39,
32,
-2,
3,
20,
-26,
31,
-9,
-13,
2,
-38,
4,
-7,
19,
22,
-8,
2,
-47,
-29,
17,
27,
0,
-17,
9,
55,
-10,
-7,
-36,
-21,
-6,
22,
24,
10,
15,
9,
-50,
-12,
-18,
-24,
-44,
34,
9,
-23,
21,
12,
9,
5,
-49,
-37,
-34,
18,
-21,
31,
9,
-3,
-7,
-21,
31,
-16,
38,
-33,
-20,
44,
23,
-7,
-8,
-41,
21,
48,
51,
19,
-48,
4,
-39,
-15,
7,
17,
7,
-1,
15,
-26,
14,
8,
-13,
-21,
43,
-39,
-21,
17,
51,
44,
11,
12,
37,
11,
-26,
0,
16,
-25,
3,
-1,
-26,
-18,
-27,
31,
9,
9,
-31,
18,
26,
-8,
0,
0,
-40,
-41,
-31,
83,
30,
-42,
35,
7,
58,
-30,
27,
-38,
3,
-44,
-30,
-42,
17,
3,
0,
6,
10,
-28,
-39,
36,
29,
29,
-21,
14,
-32,
27,
10,
-2,
-16,
-22,
-30,
-66,
15,
27,
29,
-2,
19,
49,
-32,
-4,
-32,
-49,
-25,
26,
-31,
8,
-40,
-17,
40,
-7,
6,
15,
17,
17,
-27,
14,
-28,
2,
-32,
-66,
19,
-9,
-11,
0,
43,
37,
-23,
9,
-25,
15,
31,
-83,
21,
-15,
3,
-16,
17,
8,
19,
27,
50,
12,
9,
-2,
18,
-25,
21,
9,
15,
24,
-51,
-49,
-29,
-4,
-68,
0,
-39,
-4,
-34,
-12,
-23,
17,
-64,
-2,
-25,
-18,
28,
-33,
27,
-30,
-10,
17,
41,
9,
9,
45,
35,
-8,
-3,
27,
19,
-6,
-21,
5,
37,
23,
11,
-2,
-14,
21,
-18,
23,
-26,
-34,
-23,
23,
20,
-10,
-14,
-15,
-2,
-2,
-1,
22,
30,
-9,
37,
21,
13,
7,
11,
14,
-30,
8,
62,
28,
4,
-22,
-24,
53,
-15,
-18,
-14,
51,
-28,
-19,
-42,
9,
18,
11,
-10,
-19,
-32,
-3,
-23,
-4,
1,
5,
-22,
55,
-20,
24,
-14,
-64,
-11,
-31,
-41,
16,
3,
48,
-2,
18,
-10,
13,
-31,
41,
-23,
40,
-31,
-36,
11,
-45,
11,
-29,
4,
13,
-69,
40,
43,
1,
5,
-23,
-26,
1,
11,
-29,
-13,
-12,
4,
-22,
-11,
22,
27,
-4,
-30,
-11,
53,
-22,
2,
43,
-27,
-1,
26,
-4,
-11,
13,
-2,
19,
-29,
27,
-17,
10,
14,
-43,
0,
-1,
38,
11,
-4,
9,
14,
-36,
21,
-1,
5,
17,
17,
30,
2,
18,
20,
-5,
-15,
-5,
-36,
-49,
70,
-19,
14,
-22,
-47,
26,
20,
-59,
5,
-40,
40,
-1,
62,
23,
-25,
31,
-37,
39,
9,
12,
-11,
-22,
9,
-12,
29,
12,
5,
22,
11,
7,
52,
36,
27,
30,
23,
-20,
-51,
-3,
1,
19,
-63,
-2,
-28,
22,
0,
15,
-3,
24,
-27,
-35,
-34,
-46,
-41,
59,
-33,
0,
15,
-2,
1,
-17,
-12,
-31,
28,
-12,
11,
9,
45,
10,
-16,
-19,
-6,
-2,
12,
20,
35,
-13,
1,
-11,
-2,
-22,
65,
-13,
-8,
33,
15,
-37,
-17,
5,
36,
2,
40,
-48,
9,
4,
-35,
-27,
14,
-16,
22,
14,
4,
-5,
-20,
5,
0,
-33,
-33,
-21,
-1,
10,
33,
16,
32,
-38,
4,
-40,
8,
8,
-33,
-6,
5,
36,
5,
35,
20,
25,
-62,
2,
2,
-14,
-40,
15,
2,
18,
-20,
13,
31,
47,
48,
14,
-27,
-40,
7,
-19,
0,
21,
0,
60,
25,
-13,
16,
-26,
-11,
2,
15,
-29,
9,
16,
30,
-42,
31,
-2,
22,
25,
9,
-32,
5,
4,
16,
31,
8,
37,
-25,
-2,
48,
-8,
17,
-43,
-3,
-39,
17,
24,
12,
-50,
43,
-6,
-18,
0,
-25,
-24,
-21,
6,
-26,
1,
-36,
-44,
37,
-34,
44,
39,
-38,
18,
-35,
42,
9,
11,
-43,
10,
-43,
-42,
-8,
22,
-15,
6,
26,
-33,
58,
2,
-82,
-5,
-7,
48,
37,
47,
19,
11,
7,
37,
-37,
16,
6,
51,
-17,
-33,
-10,
-15,
-44,
-19,
-17,
32,
0,
26,
-2,
47,
-12,
32,
49,
-1,
-26,
16,
9,
-19,
5,
17,
13,
39,
35,
36,
-26,
-14,
-34,
3,
44,
-22,
10,
50,
-39,
-11,
-34,
-13,
31,
37,
-11,
15,
-23,
-1,
-30,
-1,
-3,
-46,
-27,
15,
88,
-31,
2,
12,
-67,
-17,
-61,
-19,
40,
1,
-26,
33,
-6,
2,
-59,
37,
10,
65,
-3,
33
] |
Moore, J.
November 3, 1916, plaintiff commenced this suit to recover for commissions to which he . claimed he was entitled on sales of the stock of defend ant company made by him for it. There is no question but what he made sales of stock. He was paid commissions to the amount of $470, and defendant claims he was paid in full. The plaintiff claims he was entitled to recover $1,870 more.
At the close of the plaintiffs case the following 'occurred:
“Mr. Potter: May it please the court: The defendant in the above entitled cause moves to direct a verdict for the defendant at this time for the following reasons:
“First. The plaintiff in this case is a broker, engaged in the business of a broker, and he admits that he never filed with the county clerk of any county in which he was doing business any certificate in writing signed by him or verified in any way, setting forth the fact that he was engaged in that business. I am reading from section 5271, 2 Compiled Laws of 1897; also 5274. (Reading.) It is conceded in this case by the testimony of the party that he did not file any certificate with the county clerk in pursuance of that statute, and if that statute is applicable to this case, he was doing business in violation of the penal provisions of the law.
“Second. For the reason that we have in this State in force Act No. 46 of the Public Acts 1915, which statute has been declared constitutional by the Supreme Court of the United States, and generally known as the ‘Blue Sky’ law. The parts of the statute I desire to call your honor’s attention particularly to are the following provisions: Section 2, section 3, section 10 and section 23. (Reading.)” Citing Buckley v. Humason, 16 L. R. A. 423 (50 Minn. 195, 52 N. W. 385); Niagara Falls Brewing Co. v. Wall, 98 Mich. 158; Cashin v. Pliter, 168 Mich. 391.
This motion was overruled.
The defendant then put in its testimony and the case was submitted to the jury which returned a verdict in favor of the plaintiff in the sum of $1,272. From a judgment on this verdict the case is brought here by writ of error.
The defendant proffered 57 requests, to charge. These were refused except as covered by the general charge of the court. This charge covers, the claims of the parties and the issues involved so fully that we quote from it freely as follows:
“This is an action of assumpsit brought by the plaintiff, Mr. Lovering, against the defendant, the Duplex Power Car Company, to recover for commissions claimed to be due him from defendant company. The plaintiff claims that he was employed by the defendant to solicit subscriptions for stock of the defendant company, and for all such subscriptions which he solicited and secured he was to receive a commission of ten per cent.
“About the amount of the commission, that is to say, ten per cent, for all stock sold, there seems., to be no dispute between the parties, and the only dispute is as to the amount of stock Mr. Lovering sold for which he should recover, his claim being that he sold, according to the agreement, a certain amount of the stock, and the defendant claiming he sold a much less amount and the question for you to determine is, How much stock did Lovering sell upon which he is entitled to his commission at the rate of ten per cent.?
“Now, gentlemen, I want you to read the certificate of authority and a paper which possibly may be called a contract, although I will not call it a contract, between the parties. Mr. Lovering went to work under this certificate of authority, dated the 22d day of August, 1916:
“ ‘To whom it may concern: This is to certify that Mr. J. L. Levering is taking orders for stock for the Duplex Power Car Company and that the purchaser can send his check covering the number of shares desired to the First National Bank, Charlotte, Michigan, or direct to the Company, and certificates will be forwarded by return mail.
“ ‘The Dotusx Power Car Co.,
“ ‘F. P. Towne, Pres.’
“Later this was entered into, this which possibly may be called a contract, although I am not calling it a contract:
“ ‘September 20, 1916.
“ ‘To whom It May Concern: This is to certify that the bearer Mr. J. L. Lovering whose signature is herewith’ — and he has written in his signature — ‘is duly authorized to receive and solicit application for a limited number of shares of stock of the Duplex Power Car Co. at the original par value of ten dollars ($10.00) per share, all checks to¡ be made payable to the said company.
“‘Very truly yours,
“ ‘The Duplex Power Cab Co.,
“ ‘Per P. P. Town, Pres.’
“Now by these papers that I have read to you, gentlemen, the dealings of these parties are governed, and in view of the situation of the company, as I suggested to you in the commencement of this charge, the parties ought by them to be governed.
“It is a general principle of the law that when the agent has fully completed his undertaking — the agdnt of any institution or company or person has fully completed his undertaking according to its terms, he is entitled to his compensation. And if you find in this case that Mr. Lovering did all he was bo'und to do under his authority to act, his right to his compensation is complete and he cannot be deprived of it, because the principal then fails to avail himself of the benefit of the acts, or refuses to do what he had agreed to do upon performance by the agent.
“I instruct you that Mr. Lovering was entitled to his commission when he procured a purchaser ready and willing and able to take and pay for the stock by check with the application or to be remitted at once, and his right to his commission does not depend upon the contingency of the principal’s acceptance of the subscription, but rather upon Mr. Lovering’s performance of his part of the contract, and the principal cannot deprive the agent of his commission by refusing to accept the subscription or refusing to issue and deliver thé stock which Mr. Lovering’s, efforts have resulted in securing.
“Now, gentlemen, this that I am giving you now is somewhat modified by a later instruction as to his authority, and as to a revocation, which you will easily apply, I am sure, when you get to your jury room.
“Upon the same principle, an agent has earned the commission when he has procured a purchaser who is ready, willing and able to take the stock upon the terms designated, to have check attached to his application or sent by the applicant at once, and the principal cannot defeat the agent’s claim for commission by refusing to sell or deliver the stock or by refusing to sell except upon other and different terms nor by ignoring the agent, nor by putting himself in a position where he cannot carry out his part of the agreement.
“I instruct you that Mr. Lovering is entitled to recover in this case his commissions on all stock subscriptions taken by him from financially responsible persons with check for same attached to the application or to be sent in by the applicant at once, which subscriptions were forwarded by him or delivered by him to the defendant company within the scope of an admitted authority of the company until his authority was revoked by defendant company.
“In determining when the authority of. Mr. Lovering 'to sell stock was revoked by defendant company, you have the right to take into consideration the dates when certificates of stock were issued by defendant company to persons whose subscriptions therefor were obtained by Mr. Lovering.
“And I instruct you that it is a principle of law that a revocation of the agent’s authority, and (in this case) the authority of Mr. Lovering, to solicit subscriptions for stock, cannot be revoked by the principal so as to affect acts already done, or commissions already earned.
“In other words, I instruct you that the plaintiff, Mr. Lovering, is entitled to recover his commission on all subscriptions for stock taken by him within the scope of his authority before receiving notice of revocation of his authority by the defendant company.
_ “I instruct you further that a revocation by a principal of an agent’s authority should be unequivocal, and leave no doubt as to the principal’s intentions. Any ambiguity or uncertainty in such a case should be construed most strongly against the principal, in whose power it lay to prevent such a result.
“I instruct you further that it was. in the power of defendant company to have revoked the authority of Mr. Lovering to act for it at any time the said company so wished, but it was incumbent on said defendant to have done so plainly, and in language that could not be charged with equivocation or uncertainty.
“I instruct you further, that Mr. Lovering is entitled to recover his commissions on all subscriptions of stock taken by him before his authority to act was revoked, and which said subscriptions had checks attached to the applications or in which the applicants had forwarded their checks direct to the company, as they had a right to do, or were forwarded or delivered to or received by defendant company, provided that said subscribers were ready, willing and able to pay for said stock.
“I instruct you further, that a signed subscription • or application for shares of stock made by responsible persons, accompanied by check payable to the corporation, drawn against sufficient funds in the hands of a banker, which check should be paid by banker on presentation, is a good payment for such stock..
_ “I instruct you further, that plaintiff has performed his part of the contract under the above arrangement when he obtains the subscriptions or applications for stock, and forwards or delivers the same to the defendant company with check for amount due attached to the application, or upon receipt of a check direct from persons who purchased the stock by the company.
“Now, gentlemen, the defendant claims that the arrangement made with the plaintiff was for the sale of ten thousand dollars par value of the stock of the defendant company, or substantially that amount, and that when he made an arrangement with the plaintiff and gave him a writing showing that he had authority to sell stock of the defendant company that said writing stated that the plaintiff was entitled to sell ‘a limited number of shares of stock’ is- not fixed. It is evident that the defendant did not give the plaintiff general authority to sell an unlimited amount of stock or to sell all of the stock which the defendant had on hand. But that the arrangement was for the sale of an amount of stock less than the whole amount which the defendant had on hand.
“You have a right to consider, gentlemen, the cir cumstances surrounding the parties and the verbal testimony in the case in order to determine what was meant by the parties in the use of the term ‘a limited number of shares of stock’ in the writing referred to. When you shall have determined what the parties meant and understood and intended by the use of the term, ‘a limited number of shares of stock,’ of the defendant company, then the plaintiff is not entitled to recover for commissions upon the sale of stock in excess of the amount which the parties understood and intended to designate by the use of the term, ‘a limited number of shares of stock’ for the reason that the plaintiff had no contract or agreement covering an amount of stock in excess, of that amount and the defendant was under no obligations to sell and had not agreed to sell an amount of stock in excess of that amount.
“If you shall find from the evidence that the time in which the plaintiff had authority to sell the stock of the defendant company expired before the plaintiff or the customers of the plaintiff tendered the money on the alleged sales sued for, then the plaintiff is not entitled to recover.
“Now, gentlemen, the written authorization given by defendant to plaintiff to sell stock provided — and I have- read it to you — that plaintiff should take subscriptions to be paid for by checks therefor or payable to the defendant company, and send the checks with the subscription or application for stock or to be sent by the applicant at once to the company, but I instruct you that the fact that in some particular instances defendant did issue the stock and send the stock to a bank with draft attached for collection, would not amount to a general authorization by defendant that plaintiff had authority to accept subscriptions generally and insist that defendant was bound to issue the stock and send the stock to a bank or any bank which plaintiff might designate with draft attached, but defendant had a right to require plaintiff to have the check or draft accompany the subscription or that it be sent to him as soon as the applicant could mail it to him, and if plaintiff failed to forward the check or draft at the time of the filing of the subscription and the applicant failed to send any check to the defend ant company then plaintiff would not be entitled to a commission where the check failed to accompany the subscription.
“Now, gentlemen, no time was fixed in writing in the agreement between the plaintiff and defendant during which said contract was to continue. Under the circumstances the time during which the plaintiff might sell stock for defendant rested in the option of the defendant, Duplex Power Car Company.
“When no time is agreed upon during which a broker is employed he is entitled to a reasonable time in which to gain results, but the principal or employer has a right to limit or revoke the authority of the broker in good faith at any time after his employment, where no time of employment is fixed, and if the authority of the plaintiff in this case was revoked, or if a time limit was fixed to his contract by the principal, the Duplex Power Car Company, in good faith, after the contract was originally made, the plaintiff cannot recover commissions on sales made thereafter.
“On Monday, October 9, 1916, the défendant company wrote a letter in which it said:
“ ‘We trust you will be able to dispose of all we have to dispose of this week, as we wish, to have the matter closed up, and we judge from the way you are disposing of it now, you will have no trouble in doing this. We thought last week would be the limit we could hold it open, but we are extending it on to this week, if you had not disposed of it before that time.’
“The defendant claims that this letter was written extending the time given to plaintiff verbally, and if you shall find that prior to this time a limit had been placed upon the contract, this letter would operate as an advance of the time to and including the week of October 9, 1916, and the plaintiff would be entitled to recover commissions on any sales actually made, consummated and carried out during this time.
“The mere fact that the defendant accepted business tendered by the plaintiff after the week of October 9, 1916, and accepted payment and paid plaintiff his commission thereon would not in and of itself operate to extend the time of the contract beyond that date.
“The defendant claims it employed plaintiff to sell stock. In order to entitle the plaintiff to recover, he must have made sales within the limits of his contract as to time, terms and amount.
“The plaintiff cannot recover a commission merely because he obtained offers in writing or because he obtained orders for the stock. ' The plaintiff is not entitled to a commission when he brings a mere paper offer; but in order to entitle the plaintiff to recover, it is necessary for him to show an actual sale of the stock, or that he produced a purchaser who tendered the money within the time limited by the contract for the sale of the stock.
“The plaintiff is not entitled to recover from the defendant commission for unsuccessful efforts to sell stock.
“Now there is a radical difference between a contract to sell or purchase and an actual sale or purchase. ’ As applied to this case the plaintiff is not entitled to recover unless he produced a purchaser ready, able and willing to pay the money for the stock and who tendered the money within the time fixed by the contract. In other words, the plaintiff must have done everything necessary tó be done on his part, and on the part of the purchaser, so that the only thing upon the part of the defendant that remained to be done was to transfer the stock and to receive- the price in cash.
“In this case plaintiff can recover only for commissions in any case in which applications were delivered to the defendant before the plaintiff’s authority was revoked.
“The plaintiff cannot recover against the defendant for the sale of stock in any case in which he was not the procuring, cause of the sale.”
There was much more of the charge but we have quoted sufficiently to indicate the scope of it.
Counsel for appellant argue very strenuously that the motion which we have quoted made at the close of the testimony for the plaintiff should have been granted for the reasons then stated. Many pages of the brief are devoted to this proposition and many authorities are cited. In the instant case the defendant corporation was regularly organized, its capitalization was duly approved, it was duly licensed to sell its stock. The plaintiff was not a “dealer” within the provisions of section 10 of Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, § 11954). He was an “agent” within the provisions of section 12 (§ 11956). Under this latter section the investment company, defendant here, was required to register him and pay the fee therein provided. If defendant failed to do this it cannot urge its violation of the law to defeat recovery by its employee and agent. There is no substantial dispute but what plaintiff was authorized to sell some stock and that upon the receipt of the order of the person desiring to buy the defendant corporation issued the stock to that person. If the plaintiff’s version of what happened is true, he did nothing for which he might not recover under the facts disclosed by this record in so far as he had earned his commission under the arrangement he made with defendant.
Fifty assignments of error relate to the omission or rejection of testimony. The case was tried by able counsel who manifested great zeal in the trial. Objection followed objection in quick succession, rulings were made and exceptions were duly taken. The trial judge was kept very busy, and he also kept his head. It would not be practicable to discuss these assignments of error in detail. They have each been examined with care and we shall content ourselves with saying of them that we discover no reversible error.
Thirty-four assignments of error relate to the refusal of the court to give the written requests as prepared. Nine assignments pf error relate to the charge as given. Each of these assignments has been examined; we do not think it necessary to discuss them in detail.
The important questions in the case were comparatively few, and they were not very complicated, and the pivotal questions were questions of fact. The jury allowed the plaintiff to recover only about two-thirds of what he claimed, indicating clearly that they paid special heed to the charge of the court. A reading of that portion of the charge which we have quoted will show that the jury were fully instructed in clear and unambiguous language upon every important phase of the case.
The judgment is affirmed.
Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
19,
23,
26,
-20,
-1,
35,
61,
9,
19,
58,
2,
25,
5,
20,
68,
-45,
19,
-15,
53,
-27,
-7,
-39,
-6,
-26,
2,
-18,
-25,
14,
-16,
-3,
-32,
12,
-56,
-23,
-6,
21,
-25,
-20,
16,
22,
0,
35,
37,
-1,
-24,
-30,
-15,
-15,
59,
-11,
27,
-34,
21,
-19,
3,
-31,
-29,
41,
0,
-31,
-29,
-17,
34,
-21,
18,
-62,
-17,
16,
-25,
35,
-45,
19,
-8,
12,
11,
-20,
-15,
-5,
-54,
-26,
9,
0,
17,
-33,
-49,
58,
2,
19,
52,
2,
-15,
8,
-54,
34,
18,
8,
-23,
33,
31,
33,
24,
24,
-47,
-29,
-24,
12,
-10,
-32,
-29,
35,
-44,
-5,
31,
0,
-1,
-9,
-30,
-4,
0,
-12,
19,
4,
23,
38,
33,
27,
-20,
2,
-20,
55,
21,
-5,
-44,
3,
-55,
-17,
-19,
-27,
16,
-24,
35,
-4,
-19,
-15,
-6,
23,
6,
34,
-12,
8,
-30,
18,
15,
25,
-27,
-37,
8,
-36,
22,
-40,
13,
11,
5,
5,
1,
7,
20,
-50,
-57,
-26,
-30,
-5,
-3,
-44,
0,
7,
27,
-45,
-26,
25,
-12,
-4,
4,
4,
-27,
5,
51,
-6,
26,
0,
57,
-15,
-24,
42,
-29,
19,
32,
1,
42,
2,
31,
-54,
0,
-23,
18,
-10,
76,
4,
-22,
11,
-46,
3,
11,
-59,
-12,
18,
-35,
-27,
41,
-71,
-41,
-15,
8,
71,
-18,
-67,
-2,
-25,
-34,
27,
-39,
3,
17,
36,
-32,
-75,
26,
6,
31,
42,
-43,
-6,
-10,
-8,
37,
-4,
-63,
-18,
-23,
54,
4,
12,
-42,
3,
-30,
-42,
-27,
0,
-11,
-8,
-17,
54,
-59,
-12,
-2,
-48,
23,
23,
-10,
27,
-13,
0,
51,
19,
-37,
-31,
10,
22,
34,
-62,
35,
-4,
11,
34,
-7,
25,
6,
8,
-15,
-19,
1,
15,
10,
-11,
36,
55,
1,
-12,
46,
15,
-43,
7,
-2,
-30,
12,
-37,
-30,
-56,
-37,
-18,
1,
-6,
-18,
-10,
45,
-1,
13,
-22,
15,
-32,
26,
40,
-15,
11,
12,
23,
57,
-40,
0,
-21,
2,
18,
31,
-3,
-40,
-5,
50,
-60,
-36,
10,
58,
20,
7,
36,
18,
15,
34,
-7,
-14,
-16,
-45,
-37,
24,
51,
29,
5,
24,
-9,
-37,
21,
22,
0,
25,
-7,
36,
17,
-42,
17,
-8,
37,
-8,
49,
0,
-24,
-45,
-33,
-25,
-10,
-64,
48,
12,
-34,
-24,
20,
18,
-10,
-7,
-38,
-41,
-3,
-42,
14,
5,
39,
-42,
-17,
-15,
-70,
-18,
27,
5,
26,
-3,
-2,
-55,
-32,
7,
54,
-11,
28,
-2,
-25,
29,
6,
-17,
-50,
31,
16,
58,
-1,
63,
-34,
-14,
-72,
31,
-29,
32,
23,
-22,
-20,
-23,
29,
23,
-27,
8,
-15,
-28,
-3,
14,
11,
-1,
52,
-13,
17,
12,
-35,
9,
25,
31,
-22,
-4,
11,
20,
38,
-2,
28,
11,
9,
16,
-36,
31,
22,
-12,
-22,
-25,
29,
29,
-4,
15,
17,
10,
28,
2,
-2,
-49,
37,
23,
12,
-15,
8,
-35,
71,
-13,
-70,
-64,
-44,
17,
24,
-44,
-33,
23,
15,
29,
-9,
-21,
23,
-41,
7,
-16,
-4,
13,
1,
-11,
-1,
-1,
10,
41,
-5,
-4,
19,
-52,
37,
-7,
13,
12,
-3,
2,
26,
-8,
0,
-20,
-29,
-47,
4,
-44,
32,
35,
19,
26,
-36,
-8,
10,
-22,
9,
-19,
28,
21,
9,
-17,
6,
19,
51,
48,
28,
20,
34,
-35,
25,
42,
-21,
34,
-25,
-29,
-9,
-31,
9,
21,
-11,
45,
-26,
-5,
-16,
6,
4,
23,
-20,
-10,
3,
-16,
46,
-32,
-21,
26,
-7,
-4,
8,
-8,
3,
-1,
-11,
-27,
-12,
-10,
-47,
-14,
-1,
-16,
15,
17,
-19,
-35,
-17,
9,
21,
35,
-27,
21,
0,
32,
8,
-7,
-10,
-62,
-63,
-15,
-17,
-9,
56,
7,
35,
8,
21,
12,
5,
71,
-13,
-5,
-36,
-1,
6,
28,
-19,
-18,
-14,
25,
11,
16,
-4,
-26,
18,
4,
-21,
-54,
0,
7,
18,
-37,
32,
-44,
27,
10,
7,
17,
-35,
31,
-30,
26,
20,
2,
-45,
-5,
-12,
17,
8,
-11,
-17,
5,
-5,
13,
-3,
21,
-15,
-2,
3,
20,
-11,
38,
-16,
-9,
-7,
12,
-46,
12,
-24,
29,
-9,
40,
47,
-9,
66,
-5,
27,
-3,
37,
38,
12,
5,
11,
-14,
-24,
-44,
13,
-44,
-15,
-55,
28,
-19,
6,
56,
-50,
-11,
-9,
-41,
19,
8,
-16,
-7,
-9,
7,
-11,
-14,
-6,
31,
20,
15,
23,
-17,
17,
-25,
-3,
-22,
-67,
64,
-2,
24,
33,
0,
52,
-34,
3,
27,
-3,
13,
45,
-15,
2,
8,
-75,
-36,
2,
38,
-30,
-41,
4,
-11,
14,
41,
1,
24,
19,
-6,
27,
47,
55,
62,
41,
-4,
5,
-28,
-12,
-35,
-9,
46,
-17,
-37,
39,
-1,
-46,
15,
-1,
-39,
4,
-8,
-18,
4,
19,
19,
-43,
10,
-15,
8,
-55,
-4,
-8,
-30,
-31,
38,
25,
44,
13,
4,
4,
-16,
-1,
-35,
-7,
38,
-10,
-22,
-40,
-42,
-29,
15,
10,
8,
-30,
46,
13,
18,
-2,
-13,
-32,
26,
-17,
-30,
-25,
-49,
8,
-23,
1,
-28,
21,
-6,
7,
28,
-80,
-6,
35,
-20,
9,
8,
-5,
-38,
0,
1,
14,
49,
-50,
-23,
6,
-9,
0,
-10,
38,
67,
-9,
-47,
14,
-55,
-11,
-12,
-12,
-11,
-27,
-31,
-7,
-4,
0,
35,
36,
16,
-46,
-32,
34,
47,
-23,
-22,
-1,
0,
0,
22,
45,
0,
-13,
-7,
15,
-5,
-13,
27,
-3,
3,
-36,
20,
-14,
-8,
39,
30,
-74,
-40,
48,
35,
-27,
-3,
10,
20,
-2,
-23,
-16,
-9,
-22,
9,
-10,
13,
13,
27,
-15,
6,
-38,
-8,
42,
18,
-6,
-1,
-38,
-41,
28,
30,
-24,
5,
8,
-1,
-1,
-57,
20,
-18,
27,
2,
17,
-10,
30,
-45,
-23,
-7,
29,
-29,
0,
-18,
-74,
-13,
20,
-5,
13,
9,
-23,
-38,
-45,
-39,
20,
-6,
-4,
-3,
-23,
5,
29,
-50,
-25,
-46,
9,
-7,
13,
28,
65,
-39,
-3,
16,
-17,
42,
19,
3,
-18,
36,
-20,
-3,
32,
-6,
43,
11,
-10,
4,
4,
14,
-20,
-24,
51,
38,
27,
4,
-17,
-15,
-16,
14,
34,
33,
26,
16,
-30,
-27,
16,
-32,
-24,
12,
6,
-8,
12,
36,
1,
8,
61,
8,
-16,
-25,
-58,
53,
6,
-67,
30,
-14,
0,
-7,
-30,
5,
38,
-13,
47
] |
Steere, J.
On the 25th day of March, 1911, plaintiff, then six years, ten months, and ten days old, was struck by the front right mudguard on defendant’s automobile while crossing Gratiot avenue in the city of Detroit at a point between Townsend and Sheridan avenues, a distance of about four miles from the city hall towards Mt. Clemens, from whence defendant was returning accompanied by some friends, with a chauffeur driving his automobile.
For a general understanding of the circumstances of the accident and the then claims of the parties reference is made to a review and reversal of a for mer judgment in this case reported in 188 Mich. 366. A retrial resulted in a judgment for defendant which is now here for review.
At the first trial plaintiff was not called as a witness owing, as her counsel states, to her physical condition and tender age. Aside from her testimony the evidence in this record is substantially the same as upon the first trial, that of some of the witnesses being introduced from the former record by consent. The new feature in the case is plaintiff’s testimony as to the exercise of vigilance on her part and absence of any conveyance to obstruct the vision. She testified upon this trial that she was attending school when injured, went from school to visit her aunt who lived above Michael’s grocery store and was making a dress for her; that her aunt accompanied her down stairs to the sidewalk, “looked up and down” and told her to go across the street, which she started to do and when about a foot away from the curb she also looked up and down the street, but did not see anything from either way except a street car between Field and Sheridan avenues some distance off, and “there was no horse and wagon or automobile or anything of that sort in front of Michael’s store”; that she then started across the street in a slanting direction towards Sheridan avenue and as she came out from the curb an automobile attracted her attention by “blowing their horn,” when she was “about the middle, between the street car track and the curb”; that she saw it was about 25 feet away and “kept walking on”; did not hear it any more but “somebody yelled” to her,, when she then looked to the east “and .saw it was right on top of me” and it struck her when she was “just in the first street car track,” injuring her head and left side from which she was in bed about two months, after which she was “up but did not walk around,” and first began to go to school again in September. On suggestive question by her counsel as. to her attending school in May and June she replied she thought that she went some days, saying, “my best judgment is six or seven days.” On cross-examination she testified that in going to school at that time she had to cross Gratiot avenue twice a day, going and coming, knew there were two street car tracks along it, was familiar with the danger of getting in front of an automobile and that she had to look out for those automobiles, and knew the necessity of watching for cars that went up and down the street. In Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271), it is said that intelligence, not age, controls the question of contributory negligence, citing Henderson v. Railway Co., 116 Mich. 368.
Sister Emalinda, a teacher in St. Anthony school which plaintiff was then attending, testified that plaintiff was a pupil in her grade during that school year,, from September, 1910, until school ended in June, 1911, except as absent on account of her accident; that witness heard of the accident and plaintiff returned to school about three weeks later, was absent more days in- April than in March, but she attended quite regularly in May and June, saying:
“I did not notice any change in her physical or mental condition in the month of May or June. I had learned of her accident and that she had an injury. I did not notice any change in her mental condition during May and June compared with what it had been before. She returned again in September, in the fall of 1911. * * * I can say nothing else but that she was just as normal after coming back to school as before. She returned the latter part of April and I recollect distinctly outside of the book, during the months of May and June, 1911, she was quite regular.”
Mrs. Helen Hopp, who was not a witness on the former trial, was sworn for plaintiff and testified that at the time of the accident she was employed in Michael’s grocery store; that she was in the store when it happened and did not see it but heard of it immediately after and went out, saying, “As soon as I saw the people running I went out immediately on the street, I ran out.” Asked if Mr. Michael had a grocery wagon with a top on it at that time, the question was objected to on the ground that no one had testified the wagon standing there, which it was claimed obstructed the chauffeur’s view of plaintiff, belonged to Michael. To this objection the court said, “I think that is so.” She, however, answered that Mr. Michael had no grocery wagon with a top on it and was then asked — “Q. When-you came out of the store was anybody’s wagon in front of the store?” Which was objected to and the objection sustained. She was then asked but not permitted to answer the following questions:
“Q. Whether or not when you got out there there was any grocery wagon or anything standing in front of Michael’s store with a horse hitched to it?
“Q. 'Was there any wagon of any sort, or automobile at the curb in front of Michael’s store, or in that neighborhood when you went out there?
“Q. How recently before the accident happened had you been out in front of the store to see whether or not there were any wagons there?”
Plaintiff’s counsel then said his further proof would be along the same line which in view of the ruling of the court he would not offer.
In sustaining the objections to these questions the court said, “there is no presumption that a wagon would stand there, or continue standing there.”
At the close of the testimony a request for directed verdict in behalf of defendant was denied and the case submitted to the jury under a clear and well-guarded charge as to negligence, contributory negligence, etc., resulting in a verdict of $1,500 for plaintiff.
Thereafter and before entry of judgment on this verdict defendant’s counsel served notice upon opposing counsel that by direction of the judge who presided at the trial argument would be had before him on November 10, 1917,—
—“upon defendant’s request for a directed verdict filed before submission of said cause to the jury and for the entry of judgment in the above entitled cause, in defendant’s favor in accordance with defendant’s said request, notwithstanding the verdict heretofore rendered in said cause.”
On the date for which notice was given counsel were heard and defendant’s application denied, the court saying:
“This comes before the court upon a motion to enter a judgment for defendant non obstante veredicto, and if this motion is to be refused, to grant a new trial on the ground that the verdict is against the weight of evidence. There can be but one answer to this last proposition. There is no difference in the testimony brought by the plaintiff to support her case, between this trial and the trial which has been- reviewed by. the Supreme Court of this State, save that she herself testified on the last trial and has never been heard beforé._ The very immaturity upon which the plaintiff relied to take the case to the jury would militate against credence being given to her testimony, and under these circumstances the court would have but one course, and that is to grant a new trial on its own motion. The other questions which are raised by the first motion are more difficult. It cannot be said as a matter of law that the examination of the plaintiff at the present trial can conclusively show that she had sufficient maturity at the time of the accident to allow the ordinary rules with reference to contributory negligence to control, and I am not disposed to say there is sufficient evidence before the court to enter a judgment for this reason. Now, when the plaintiff’s testimony is considered, can I say there is not a scintilla of testimony to go to the jury, although if the testimony were the same on the succeeding trial, I should feel compelled again to grant a new trial.
“Counsel, in further support of his motion, has urged that there has been a complete change in the theory of the plaintiff. It does not seem to me that the cases which counsel have cited here are apposite. The plaintiff has never testified before and while the testimony of the witnesses for the, defendant showed beyond question the presence of a wagon at the curb I cannot say that the plaintiff is bound by their testimony.
“For these reasons the motion to enter a judgment will be refused.”
Later, and next so far as the record discloses, the following order was made and a formal judgment entered for defendant:
“Upon the trial of this cause, at the close of the testimony, and before the case was submitted to the jury, defendant requested the court for a directed verdict in his favor. The case was submitted to the jury and a verdict was thereafter rendered for plaintiff. After the verdict was recorded and before the entry of judgment, defendant, with the approval of the court, gave plaintiff notice that arguments would be heard by the court for and against said request for a directed verdict, and the arguments were had on the 10th day of November, 1917.
“Thereafter, on November 26, 1917, the court entered an order granting a new trial in the case. By consent of counsel for the respective parties it is hereby ordered that the aforesaid order granting a new trial be set aside.
“It now appears to the satisfaction of the court, and the court decides, as a matter of law, that the defendant was entitled to a directed verdict on his motion for judgment notwithstanding the verdict, therefore,
“It is ordered that a judgment of ‘no cause of action’ be entered for the defendant.”
As the situation is presented by this record the question for review is the validity of this' judgment entered for defendant as on directed verdict, apparently on the ground that the decision of this court upon the former trial is conclusive. An issue is here raised by plaintiff upon a fact not then in dispute. There is now conflicting testimony in the case upon whether there was a grocery wagon in front of Michael’s store which concealed plaintiff from the chauffeur’s view until she passed into the street from beyond it. Ihis view was not so obstructed the questions of his negligence and her contributory negligence would clearly be questions for the jury. In the former case the presence of the grocery wagon there was not controverted. It was then shown by the undisputed testimony of several witnesses and assumed in the decision that a high-topped grocery wagon with horse attached stood on the side of the street in front of a grocery store between the automobile and plaintiff when she hurried out into the street. With the view from the automobile thus cut off it was held that under all the evidence in the case defendant was not shown guilty of actionable negligence in not sooner seeing plaintiff and stopping in time to avoid the accident.
It is said in defendant’s brief that on the former trial plaintiff’s counsel introduced testimony showing the presence of this obscuring high-topped grocery wagon, and that defendant’s testimony conclusively corroborated it; that “it was the contention of the attorneys for plaintiff at that time as well as the defendant, that by reason of the horse and wagon standing in front of Michael’s grocery store the view of plaintiff, also that of the chauffeur was cut off,” and it is urged that plaintiff’s attorneys cannot upon the second trial change their theory from that taken on the first trial, and show there was no horse and wagon standing in front of the grocery store. On the part of the plaintiff it is denied that any of her witnesses testified to this grocery wagon being there, or that any testimony was introduced in her behalf by her counsel to that effect, although defendant and his chauffeur, called for plaintiff under the statute for cross-examination, to prove ownership, agency, etc., volunteered such testimony; that the fact was not claimed to sustain plaintiff’s case, and this court in its former opinion entirely disregarded the testimony of defendant’s witness Mrs. Boss, tending to negative the fact.
An examination of .the record and briefs of the former trial does not fully sustain the contention of either counsel. During the trial plaintiff’s counsel were not seeking to prove or claiming as part of their proofs that the wagon was there. No witness of plaintiff’s was interrogated by them upon the subject or so testified, except as defendant and his chauffeur, called by them under the statute and by whose testimony plaintiff would not be bound, volunteered and adhered to the claimed excusing fact. Mrs. Boss was not examined on that subject by plaintiff’s counsel, but on cross-examination by defendant’s counsel as to whether she saw any teams or wagons along the north side of Gratiot avenue replied that she did not notice any, and when the subject was pressed answered she did not see any wagons or vehicles of any description along there between Townsend avenue and the place where the little girl was struck — adding, “I would not swear to it, I didn’t see any.” Of the probative value of such negative testimony against positive affirmative testimony of witnesses who have observed and testify to the fact, it may be noted that she also testified she did not hear the horn of defendant’s automobile blown or see any car down the street further away, to both of which facts plaintiff herself testifies in this case. On the former appeal defendant was appellant and his counsel’s brief was filed first, containing a statement of facts as required by the rule. On the first page of the brief of plaintiff’s counsel un der the heading “Additions and amendments to statement of facts,” the following appears in reference to the grocery wagon:
“Defendant’s chauffeur saw plaintiff passing out of the doorway, * * * saw her pass out of his view behind the grocery wagon and saw her come out in front of the horse into the street. At this time the chauffeur was just back of the wagon and the front of the automobile even with the rear of the wagon.”
This court in the former opinion not only accepted the statements in the briefs of counsel on both sides that the grocery wagon was where the undisputed testimony of several witnesses located it, but was and is of the opinion that counsel in their statements and the court in accepting them properly disregarded the testimony of Mrs. Boss, that she did not see or notice any wagon there, but “would not swear there wasn’t any,” as not of sufficient probative force, standing alone against the affirmative evidence, to raise a question of fact. But counsel’s accepting in the argument of a case as established a fact proven by opposing witnesses detrimental to their theory, which as the record stands they cannot successfully question, does not in itself work an estoppel to an issue upon that fact on a subsequent trial where their theory and claim as to the specific act of negligence remain unchanged.
A careful comparison of the briefs and records in both cases does not sustain defendant’s contention that plaintiff’s theory and claim of the basic fact to establish negligence on this trial, are changed or inconsistent with the former. In the former case and this, counsel’s theory and claimed ground of negligence are that at the rate of speed the automobile was going when the chauffeur saw or could and ought to have seen plaintiff, he could and should have stopped the automobile in time to avoid the accident. Manifestly the presence of the intervening grocery wagon was detrimental to that theory, but in the absence of testimony to the contrary and accepting its presence as shown, counsel contended that nevertheless the chauffeur-saw or could and ought to have seen plaintiff in time to avoid the accident had he acted with reasonable promptness. In this case, with testimony raising an issue of fact as to whether the grocery wagon was there, the same theory is urged and claim made. That it is narrowed by the former opinion to the contingency of that issue of fact does not create an inconsistency.
Plaintiff was present in court during the former trial but was not called as a witness. It is claimed for defendant that she was then eight years old and in normal condition, necessarily knew the facts as well at that time as when she testified upon the second trial several years later and her silence at the first trial when the material fact she now denies was proven against her estops her from testifying upon the second trial to supply fatal omissions in her proof pointed out in the former opinion. The force of this contention is largely contingent on disputed facts which this court cannot pass upon. Plaintiff’s counsel contend that her physical and mental condition resulting from the accident, in connection with her youth and immaturity, then precluded her being called as a witness, as the evidence of her physician Dr. Knaggs, who attended her at the time of her injury, shows. Without going into details, the record shows that Dr. Knaggs, who stated he had again examined her that day, testified to apparently permanent injuries resulting from the accident, both mental and physical, indicated by her senemie condition, exaggerated heart action, shattered nerves and unbalanced mentality; while ■ Dr. Shurly, who also examined her at the time of her accident and during the trial, called by defendant, tes tified that he had carefully examined plaintiff and while she was slightly eenemic, as many children are at the growing period of life, she had a fairly well nourished body and said that, aside from a scar over her eye, “there is absolutely no permanent injury to that child in any possible form or manner.”'
All that need, or can, be said here of this irreconcilable testimony of the two physicians is that from it this court cannot say as a legal conclusion based on undisputed facts that failure to call plaintiff as a witness on the first trial estops her from subsequently testifying in a trial de novo upon any issue authorized by the pleadings.
Of the cases cited to sustain defendant’s contention on this question it can be said without reviewing them at length that they relate to retrials where in support, of an inconsistent change of theory the testimony of plaintiffs, or their witnesses by whose testimony they are bound, is directly contradictory to that given by them on a previous trial. Such is not the situation here. It is further urged for defendant that this judgment should be sustained because as a matter of lav/ plaintiff is shown by her own testimony to have been guilty of contributory negligence. Not only is her age and degree of developed judgment at the time of the accident involved in that inquiry, but her testimony as now given with precision shows that the driver of the approaching automobile sounded his horn, indicating that he saw her when 25 feet away and, with room to safely pass behind her on the side of the street along which he was driving, struck her when she was at the street car track 16 feet from the curb.
The conclusion is unavoidable that the conflicting evidence on this trial carried the case to the jury. What weight should be given her testimony is primarily for the jury, and whether a verdict is against the great weight of evidence under all the circumstances of the case is primarily for the trial court.
Counsel for plaintiff request not only that the judgment be reversed but that this court direct the trial court to reinstate the verdict of the jury, with instruction to enter judgment thereon. That this court cannot do upon this record. The judgment brought here for review cannot be sustained for the reasons above given. It is therefore reversed, with costs to abide the final event of this action, and a new trial granted.
Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
-47,
40,
3,
-2,
-10,
-18,
17,
4,
-17,
-21,
-41,
-20,
43,
16,
8,
9,
-3,
4,
-27,
-46,
-11,
-35,
-26,
-25,
-18,
-1,
44,
-79,
-32,
-38,
42,
8,
-17,
11,
-28,
-24,
21,
1,
26,
-10,
14,
19,
-21,
10,
15,
-21,
14,
-18,
6,
-14,
9,
6,
-11,
-8,
-56,
-25,
5,
31,
-12,
12,
30,
1,
58,
-30,
-14,
17,
41,
0,
-23,
20,
-48,
11,
-14,
14,
-50,
-33,
0,
19,
-2,
-17,
-13,
-23,
37,
69,
8,
-20,
-52,
-18,
-69,
-50,
22,
-38,
-20,
34,
35,
-15,
-13,
-56,
21,
-2,
-36,
5,
0,
0,
14,
11,
-49,
-38,
18,
-4,
0,
26,
32,
20,
22,
-18,
35,
1,
5,
-5,
16,
-47,
-37,
22,
27,
-22,
-19,
-10,
39,
35,
-20,
26,
43,
42,
31,
-13,
-19,
-24,
-61,
-13,
38,
8,
5,
43,
-39,
45,
-50,
22,
8,
11,
-27,
-25,
3,
9,
46,
-12,
5,
-14,
37,
16,
-25,
2,
6,
31,
-52,
4,
-15,
11,
1,
-9,
3,
-2,
58,
-81,
13,
38,
-40,
-4,
-49,
22,
-17,
3,
-8,
-16,
-58,
-83,
24,
9,
13,
26,
-16,
-6,
-16,
-32,
4,
34,
16,
-17,
-11,
-17,
18,
12,
-6,
-11,
-14,
-18,
-11,
-29,
2,
-14,
0,
0,
-3,
-3,
33,
-8,
42,
-6,
-15,
33,
26,
-3,
6,
19,
-35,
-12,
-43,
-16,
1,
2,
25,
-12,
-29,
-12,
9,
-6,
3,
8,
15,
-22,
18,
-3,
54,
4,
0,
-6,
-30,
-40,
54,
26,
10,
38,
-36,
-32,
-35,
-21,
21,
-4,
18,
10,
59,
80,
-2,
16,
32,
13,
5,
62,
-17,
-91,
31,
-49,
-4,
4,
-25,
-60,
24,
2,
57,
16,
17,
-53,
-54,
-12,
8,
-19,
-8,
20,
-12,
-1,
35,
-33,
8,
7,
-25,
-16,
40,
36,
-53,
37,
36,
-3,
4,
7,
27,
15,
-9,
17,
-7,
30,
-51,
-12,
33,
-1,
43,
41,
14,
-17,
46,
0,
-31,
17,
-26,
-8,
-22,
14,
7,
-22,
-56,
7,
-5,
74,
27,
25,
1,
-35,
26,
24,
29,
-26,
-4,
29,
31,
9,
-27,
13,
2,
26,
16,
-4,
-20,
-29,
22,
-46,
-15,
-42,
80,
-49,
-12,
47,
-9,
-3,
10,
58,
4,
-38,
0,
-31,
-16,
48,
39,
-36,
18,
-24,
-14,
-88,
22,
-15,
1,
78,
4,
-40,
3,
-49,
-16,
-50,
21,
-46,
-54,
21,
-35,
-2,
45,
0,
3,
4,
-9,
13,
-60,
-48,
-60,
54,
27,
-10,
-18,
20,
-12,
32,
-12,
-20,
-6,
-8,
51,
-19,
41,
-6,
12,
-27,
-50,
-29,
-22,
31,
42,
18,
17,
-5,
49,
-35,
30,
-8,
16,
5,
19,
-19,
17,
-18,
-19,
-30,
-3,
-16,
5,
9,
-35,
15,
23,
-2,
17,
-13,
20,
-8,
56,
42,
44,
0,
-20,
-2,
28,
41,
-9,
3,
55,
-54,
-4,
42,
-11,
-4,
20,
-8,
-12,
12,
24,
-31,
-17,
-20,
49,
-3,
-10,
3,
-21,
11,
-46,
-34,
42,
16,
-16,
0,
-16,
-18,
30,
19,
19,
20,
-41,
21,
0,
-19,
-46,
25,
-1,
-57,
-52,
24,
-24,
-20,
14,
-31,
37,
-44,
-52,
-37,
16,
16,
-11,
-1,
44,
27,
13,
13,
28,
-6,
35,
32,
38,
-20,
-14,
30,
22,
-23,
-7,
-11,
14,
-9,
-19,
-18,
30,
-25,
-20,
11,
-8,
7,
-34,
20,
1,
-62,
-7,
-32,
0,
38,
35,
22,
33,
4,
4,
-43,
43,
-18,
28,
-20,
2,
37,
9,
30,
3,
3,
45,
15,
0,
-52,
43,
-50,
-42,
43,
20,
-31,
-53,
24,
-5,
19,
-70,
-21,
-9,
49,
-44,
-7,
-3,
14,
17,
-6,
-34,
31,
-36,
-13,
17,
23,
0,
6,
-3,
21,
-6,
11,
47,
-9,
-36,
77,
-36,
-18,
-32,
-3,
36,
9,
44,
-22,
-45,
17,
0,
7,
-8,
23,
19,
0,
-16,
-20,
-26,
28,
-2,
-38,
-8,
-7,
-60,
-37,
-39,
18,
-27,
50,
-54,
-16,
55,
13,
-20,
-20,
-8,
8,
54,
-39,
-6,
-46,
-42,
-11,
-47,
-31,
-49,
10,
-5,
-48,
8,
6,
32,
-6,
-27,
12,
-4,
26,
-53,
-7,
-37,
-28,
-20,
0,
-1,
19,
28,
-12,
45,
26,
3,
-8,
18,
53,
33,
-9,
16,
37,
-13,
0,
-2,
-5,
-4,
55,
36,
-29,
-11,
17,
-46,
6,
-46,
13,
46,
1,
-40,
-24,
-23,
-15,
-23,
51,
-55,
7,
30,
23,
56,
16,
25,
48,
18,
23,
3,
31,
56,
-1,
-24,
-27,
35,
32,
-5,
-6,
-17,
2,
45,
5,
-16,
38,
51,
40,
-18,
-5,
1,
31,
22,
-32,
-25,
-42,
-1,
0,
4,
5,
-58,
2,
41,
9,
6,
-13,
1,
27,
57,
-10,
23,
-17,
34,
56,
-37,
-43,
7,
-48,
54,
-10,
-39,
44,
21,
24,
-17,
-14,
-62,
2,
-4,
-25,
-14,
60,
-24,
5,
12,
-56,
-11,
-20,
-42,
42,
31,
-4,
-21,
29,
31,
34,
4,
-22,
-13,
6,
18,
18,
16,
-61,
11,
19,
-24,
15,
-2,
-2,
31,
-25,
6,
49,
31,
10,
15,
0,
-29,
-30,
1,
5,
22,
-4,
-29,
-18,
18,
14,
5,
-1,
-34,
53,
-52,
-54,
47,
12,
-9,
-7,
12,
33,
-74,
33,
60,
5,
-9,
19,
11,
41,
-58,
18,
0,
5,
-2,
47,
17,
21,
-25,
0,
5,
-9,
-15,
-8,
-40,
0,
-35,
40,
-1,
-28,
-91,
-40,
24,
15,
22,
-35,
18,
-17,
-2,
57,
-49,
21,
-17,
1,
22,
-37,
45,
39,
45,
-49,
7,
62,
-31,
7,
1,
-15,
18,
17,
3,
1,
21,
-63,
-65,
-22,
-22,
8,
52,
-29,
-32,
1,
3,
-12,
-14,
-55,
-30,
8,
-43,
13,
2,
0,
-24,
10,
18,
22,
-52,
-20,
38,
-21,
42,
9,
-10,
-1,
-14,
56,
-7,
-1,
-15,
65,
28,
-51,
-41,
-46,
13,
15,
8,
-50,
-20,
16,
23,
-7,
-77,
18,
0,
-42,
3,
39,
-17,
44,
12,
-17,
-13,
75,
-9,
9,
-19,
19,
29,
34,
50,
11,
50,
-50,
9,
-28,
-31,
-22,
14,
39,
-15,
-17,
19,
-20,
-4,
-29,
5,
-9,
-20,
-40,
-14,
1,
-12,
21,
-27,
-17,
-7,
2,
-60,
-12,
-54,
-60,
-27,
24,
1,
24,
-16,
-8,
28,
-13,
-55,
-8,
26,
35,
0,
-43,
8,
-6,
-25,
-17,
-6,
34,
-16,
44,
38,
43,
-11,
-41,
-19,
6,
19,
-1,
19,
14
] |
Fellows, J.
Plaintiff claims to be the bona fide holder of certain promissory notes executed by defendant. These notes were detachable and were detached from a contract for the putting on of a gift enterprise devised in Iowa City, Iowa, of similar purport to the ones before this court in Boston Piano & Music Co. v. Seckinger, 198 Mich. 312; Harrison v. Grier, 198 Mich. 672; Boston Piano & Music Co. v. Clothing Co., 199 Mich. 141; and Stevens v. Venema, 202 Mich. 232, and with the same company involved in Loveland v. Bump, 198 Mich. 564. A reference to these cases will disclose the detail.
The instant case was tried before any of the above cited cases was decided. Defendant’s notice under the plea of the general issue was broad enough to admit of the defense that the contract was against public policy, and the trial judge was inclined to dispose of the case on that ground, but was dissuaded and submitted to the jury the question of whether the contract was procured by fraud, and if so whether plaintiff was a bona fide holder of the note. The claimed fraudulent representations were of the same character as those involved in the Clothing Company Case, promissory in their nature, and under the holding in that case should not have been submitted to the jury. But under the authority of the cases above cited, the contract was contrary to public policy, and the court should have instructed the jury that it was void as between the original parties, and plaintiff must fail unless he established his bona fides. Such being the case, plaintiff was not prejudiced by the submission of a branch of the case to the jury which should have been disposed of adversely to him by a peremptory instruction.
The question of plaintiff’s bona fides being involved, considerable latitude of cross-examination into the relations of the parties and their business transactions should be indulged. We are not persuaded that the trial court permitted the cross-examination of plaintiff to extend too far.
The plaintiff asked for a directed verdict, which was refused. As we have already stated the only question involved was the bona fides of the plaintiff. We are not satisfied that such bona fides is established by the uncontradicted evidence in the case. We have frequently held that the evidence, together with its legitimate inferences most favorable to the other party, must be accepted on a motion to direct a verdict. The plaintiff claims to have taken these notes as collateral to a loan to the Brenard Manufacturing Company, which was a copartnership made up of Mr. Loveland and Mr. Records, who had formerly done business under the name of the Equitable Manufacturing Company. He knew the purport of these contracts, and had had at least one law suit growing out of one of them. He claims to have loaned the company considerable money. The manner of handling the money collected on the collateral is described by him substantially as follows: He was an officer of the Iowa City State Bank. The collateral was turned over to the bank for collection. When collected the proceeds were credited to an account called the “collateral account.” If not collected the collateral was turned over to an attorney, employed by the Brenard‘Manufacturing Company, for collection. Checks were drawn by plaintiff on this “collateral account” in favor of the Brenard Manufacturing Company as the collateral was paid (in only one instance has he drawn a check in favor of himself), and he claims new collateral was put up. We cannot say as matter of law that this manner of handling the business is not open to the inference that plaintiff was used as a collection agency to collect these notes given to the Brenard Manufacturing Company in this void transaction. Ordinarily, a creditor who collects collateral deposited with him applies it on the indebtedness instead of turning it over to his debtor. We do not hold as matter of law that plaintiff is not a bona fide holder of these notes. What we do say is that, considering the relation of the parties as disclosed by this record, plaintiff’s knowledge of the contract to which these notes were originally attached and made a part, the litigation over the contract, the manner of doing the business, and all the circumstances disclosed by this record, that the question was one for the jury and not for the court.
We are not satisfied that there .was prejudicial error in the conduct of defendant’s counsel, although some of it we do not commend.
Finding no reversible error on the record, the judgment is affirmed.
Bird, C. J., and Ostrander, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. | [
7,
-13,
57,
-6,
1,
32,
10,
-18,
15,
36,
-13,
-12,
46,
1,
20,
-4,
24,
3,
21,
-4,
-10,
-40,
-73,
-4,
28,
-9,
7,
58,
19,
31,
6,
44,
-18,
-11,
-70,
28,
18,
0,
34,
-17,
41,
3,
31,
-17,
18,
-45,
27,
-39,
4,
-74,
60,
-10,
-1,
-37,
-4,
7,
-11,
-8,
-18,
16,
-4,
-24,
40,
-19,
-68,
-19,
33,
-27,
-26,
-18,
-3,
-6,
7,
17,
-7,
-57,
-7,
39,
-11,
-18,
56,
-6,
25,
20,
-17,
9,
54,
-46,
31,
-4,
0,
14,
-10,
-20,
13,
15,
16,
11,
14,
31,
18,
-4,
-38,
39,
-24,
2,
-13,
-27,
-25,
-39,
-12,
25,
-4,
-6,
-39,
-36,
-14,
-39,
14,
-15,
5,
17,
-4,
-11,
13,
20,
-9,
3,
15,
-2,
23,
-9,
-25,
28,
-9,
15,
-22,
-38,
-5,
-12,
53,
41,
-25,
47,
-15,
29,
-11,
-7,
-21,
-14,
-19,
17,
0,
-1,
9,
-2,
-17,
-65,
41,
-70,
-4,
32,
12,
-22,
-11,
10,
-11,
48,
23,
-34,
-29,
21,
-17,
-2,
9,
7,
29,
-11,
-14,
-36,
6,
42,
43,
5,
0,
-3,
-71,
5,
27,
-3,
-5,
5,
-19,
6,
12,
19,
-40,
0,
4,
-35,
6,
-52,
-6,
-2,
-35,
25,
13,
-41,
-25,
29,
-16,
15,
8,
-62,
-30,
-27,
26,
-65,
7,
-7,
-24,
16,
-18,
0,
-39,
-29,
15,
5,
-26,
-2,
-22,
5,
-7,
7,
7,
-13,
0,
-9,
49,
25,
-24,
-25,
-15,
-3,
42,
11,
15,
18,
15,
0,
-14,
-4,
-39,
37,
-17,
-47,
-22,
48,
-49,
4,
8,
85,
-36,
42,
-18,
-15,
55,
28,
-9,
61,
-41,
-27,
38,
20,
3,
-6,
-16,
0,
-14,
2,
12,
-7,
1,
3,
-37,
-14,
-44,
14,
-40,
2,
-3,
26,
13,
-21,
46,
6,
-12,
11,
-9,
3,
-20,
-29,
41,
-16,
-41,
16,
-50,
32,
16,
-35,
-16,
21,
26,
-58,
11,
16,
0,
-20,
17,
6,
-19,
21,
24,
-19,
-6,
0,
40,
-39,
27,
-16,
17,
35,
33,
-9,
26,
-3,
54,
-13,
-6,
-6,
35,
-2,
-11,
-18,
-31,
5,
-10,
-10,
-32,
-12,
-20,
-24,
-32,
0,
27,
17,
-12,
-14,
-21,
33,
-24,
13,
-7,
13,
24,
-6,
-14,
11,
-42,
14,
1,
54,
-57,
15,
-47,
-10,
-50,
-35,
-60,
38,
-60,
-24,
36,
-17,
26,
-38,
-30,
-26,
-35,
-11,
-91,
7,
4,
41,
16,
11,
-16,
-24,
-12,
-6,
-7,
60,
7,
-14,
-35,
28,
-11,
-20,
-15,
26,
-1,
3,
-32,
3,
5,
-2,
16,
-31,
-3,
-10,
59,
-17,
-25,
16,
17,
-2,
-11,
59,
-50,
-28,
-27,
41,
34,
-54,
27,
6,
-45,
-16,
46,
-13,
6,
10,
-74,
0,
16,
13,
4,
34,
26,
-3,
33,
19,
-16,
47,
-10,
33,
50,
-5,
-14,
-20,
24,
-14,
3,
8,
18,
-10,
6,
-49,
-15,
39,
15,
-11,
28,
51,
-43,
12,
-26,
22,
-20,
29,
8,
54,
26,
-29,
-4,
-10,
-73,
-31,
-31,
-8,
-15,
-15,
52,
39,
-24,
-7,
-14,
1,
-46,
58,
24,
-5,
-25,
-6,
16,
15,
-11,
-19,
-21,
8,
0,
4,
57,
-7,
-8,
37,
9,
13,
-25,
43,
65,
-12,
-52,
27,
-46,
31,
16,
32,
22,
-17,
-10,
74,
29,
36,
57,
10,
18,
-22,
-31,
-31,
-50,
11,
-5,
34,
-20,
-1,
-21,
-20,
-26,
13,
-15,
-27,
42,
28,
-5,
14,
44,
12,
27,
18,
-56,
58,
-26,
-12,
43,
16,
12,
18,
32,
-17,
3,
-23,
-7,
41,
-40,
-44,
20,
28,
0,
-27,
-16,
2,
-19,
-59,
-45,
-9,
24,
6,
-6,
-14,
-1,
-17,
20,
-15,
2,
-25,
64,
-13,
58,
62,
12,
-20,
-66,
-34,
-6,
-27,
-8,
46,
26,
-30,
-2,
-16,
-35,
-11,
-8,
-25,
-34,
-13,
7,
15,
-2,
8,
24,
26,
36,
13,
-22,
14,
9,
15,
25,
-107,
-34,
-2,
-43,
24,
-5,
46,
-20,
-27,
18,
3,
41,
-38,
-2,
9,
-6,
78,
34,
-28,
4,
21,
41,
-18,
-28,
-12,
-16,
30,
11,
7,
-34,
-15,
-62,
13,
3,
1,
35,
-36,
-14,
9,
47,
13,
22,
3,
22,
21,
8,
-14,
47,
-26,
-12,
-40,
-2,
15,
3,
-22,
26,
-11,
-10,
-16,
-9,
29,
-28,
-43,
-14,
-10,
58,
1,
-13,
-18,
-8,
-1,
-20,
42,
-13,
-15,
-48,
17,
6,
-20,
0,
-13,
-45,
5,
-3,
41,
-34,
43,
-24,
7,
11,
-21,
39,
-45,
3,
0,
29,
13,
-15,
18,
19,
-39,
-37,
8,
33,
28,
81,
-51,
-37,
-10,
-23,
12,
6,
-11,
-26,
10,
-2,
-18,
-30,
-1,
41,
2,
22,
21,
9,
48,
-40,
-41,
-28,
-24,
2,
53,
-32,
-32,
11,
1,
-12,
-3,
24,
-5,
-7,
-45,
8,
19,
-21,
10,
84,
1,
4,
-3,
40,
-40,
9,
67,
17,
-7,
-29,
-1,
-34,
66,
0,
28,
-31,
29,
4,
-4,
4,
42,
16,
-21,
33,
12,
-28,
51,
8,
-14,
27,
9,
67,
-2,
13,
21,
-18,
-30,
-31,
11,
-11,
-24,
4,
-36,
13,
-59,
-16,
-3,
-42,
26,
-21,
-66,
-20,
-9,
14,
-56,
-50,
14,
33,
27,
-10,
-10,
-24,
-33,
9,
-6,
6,
23,
29,
19,
3,
18,
-3,
-74,
-10,
20,
-4,
7,
0,
3,
13,
-4,
50,
-15,
-8,
-26,
-17,
24,
56,
-63,
-33,
-35,
43,
-30,
3,
41,
-15,
20,
-12,
11,
13,
-12,
1,
20,
-15,
19,
-18,
12,
-28,
-2,
40,
-36,
-57,
3,
12,
-8,
-20,
11,
-14,
-27,
4,
-37,
54,
0,
-26,
-17,
-6,
4,
0,
24,
21,
47,
-18,
27,
78,
-30,
2,
17,
36,
17,
4,
20,
8,
-4,
0,
-36,
-4,
-17,
0,
3,
22,
-1,
0,
35,
-6,
-26,
50,
27,
2,
10,
-16,
-34,
-18,
0,
24,
-2,
3,
38,
-35,
29,
-32,
2,
-21,
1,
-56,
37,
-5,
51,
-82,
-25,
-3,
-27,
0,
-4,
31,
38,
-16,
-24,
-7,
59,
28,
-28,
16,
-38,
22,
10,
-36,
-50,
-36,
25,
27,
0,
-23,
-9,
10,
-18,
-31,
16,
11,
-12,
7,
13,
-23,
-49,
12,
16,
-2,
-21,
-23,
11,
15,
-13,
-3,
-37,
-18,
18,
-19,
-8,
14,
-24,
44,
15,
-26,
8,
-10,
-43,
80,
72,
-4,
8,
0,
-13,
40,
14,
3,
-7,
10,
37
] |
Per Curiam.
This is a consolidation of three separate appeals, all of which involve the claims of numerous Grand Rapids public school teachers, the claimants herein, for unemployment compensation benefits for the 1981 summer months. The Michigan Employment Security Commission Board of Review determined that all of the claimants were entitled to unemployment compensation for at least part of the claimed period because they had not been given reasonable assurances of employment for the next school year. The Kent Cir cuit Court reversed that determination, ruling that the assurances had been reasonable. As a result, sixteen of the claimants were denied all benefits and the remaining fourteen claimants were awarded benefits for a reduced period only. It is from that decision that the claimants bring their respective appeals as of right, which were consolidated for consideration by this Court. We reverse the decision of the circuit court and reinstate the decision of the MESC Board of Review.
On March 18, 1981, in anticipation of severely strained resources, Grand Rapids Public Schools sent layoff notices to approximately 625 members of its staff with the lowest seniority. Having worked only three years or less for the school district, claimants were among those who received the notices.
After the layoff notices were sent out, the economic situation worsened. During the summer of 1981, federal assistance was reduced by IV2 million dollars. The school system, fearing further financial deficits, cut its own budget by twelve to thirteen million dollars. The problem was exacerbated because of a steady, three-year decline in student enrollment. Due to the school system’s "belt tightening,” the school superintendent met with the various employee-bargaining units in an effort to negotiate wage concessions.
Notwithstanding the bleak economic conditions facing the school district, the school system was able to recall 180 of the teachers who were originally laid off before the end of the 1980-81 school year. Moreover, on June 19, 1981, letters of reasonable assurance were sent to 266 teachers, including all of the claimants herein, which stated that "it is anticipated that you will be offered a teacher position for the 1981-82 school year.” No explanation was ever given for this new-found optimism.
Subsequently, on August 14, 1981, fourteen of the claimants were sent a second letter, which rescinded the earlier assurances of fall employment. Although the other sixteen claimants did not receive similar letters, they claimed to have no greater hope for reemployment. All the information supplied by the school system to claimants’ collective bargaining representative, the Grand Rapids Education Association (grea), indicated that as many as two hundred teachers would remain laid off as the new school year began. Apparently, the grea was frustrated in its attempts to obtain more specific information on the matter because the school system declined to disclose how many teachers received the June assurance letter or any other information concerning terms and conditions of teacher employment.
Despite the gloomy employment predictions, all but five of the 180 teachers who received the June assurance letter (including the fourteen claimants who later received the rescission letter) had been rehired only days before the start of the 1981-82 school year on September 9, 1981. By October 8, 1981, the remaining five teachers had also been rehired. Each of the claimants was among those who were rehired.
Sometime thereafter, the claimants filed for unemployment compensation benefits with the mesc. In the Falkenstern case, a mesc referee found that "in spite of the serious financial difficulties experienced by the school district, the letters of assur anee were issued with such care and in such good faith that apprehensions about the district’s finances could not reasonably been [sic] regarded as a basis for failing to give effect to the employer’s statements of assurance.” The referee thus held that the claimants who received the rescission letter were entitled to unemployment compensation only from August 16, 1981, through the date of their ultimate reemployment. As to the other claimants, unemployment benefits were denied entirely. The referee made like rulings in both the McDonald and Hunsberger cases.
In all three cases, the decisions of the referee were appealed to the MESC Board of Review. In the Falkenstern case, a two-member majority held that the school system did not have "sufficiently certain budgetary data to offer such assurance” in the June, 1981, letter. Therefore, the thirteen claimants who received such were found to be entitled to unemployment compensation for the entire summer period. The others were granted compensation up to August 15, 1981, the date on which the board believed the school system "had the necessary information upon which to base reasonable assurance.” One member of the board dissented, stating:
I disagree with the Board majority and would allow benefits only to those 13 claimants who received the rescission of the reasonable assurance letter and would allow such benefits only for the period from August 16, 1981, through September 5, 1981. ,_
My review of the record discloses that the employer acted in good faith on the best information available when it sent the June 19, 1981, letters of reasonable assurance. Had it not been acting in good faith, it could have sent such letters to all of the teachers who had not received recall notices.
Section 27(i)(l) of the Act [MCL 421.27(i)(l); MSA 17.529(i)(l)] does not require a guarantee of employment. All that is required is a reasonable assurance. In my opinion, the employer has established such reasonable assurance.
In the McDonald case, the same two-member majority of the board found that the claimant had not been sent a rescission letter and, therefore, awarded her benefits from June 21 to August 15 only. In the Hunsberger case, an opposite conclusion was reached. Because this claimant had received the rescission letter, she was held to be eligible for benefits for the entire summer period. In both cases, one member of the panel disagreed with the majority’s decision for the same reasons expressed in the Falkenstern dissent.
Following the board of review’s decisions, the school system filed timely appeals in the Kent Circuit Court. The cases were consolidated for a single hearing and determination. In a written opinion issued in January of 1987, the court reversed the majority decisions of the board and adopted the reasoning of the dissents. The court held that the letter sent to each of the claimants in June constituted "reasonable assurance” of future employment, as required by MCL 421.27(i)(l); MSA 17.529(iXD, so as to deny eligibility for unemployment compensation. As a result, the fourteen claimants who received the August rescission letters were found eligible for benefits only from August 16 to September 5 (the date they were rehired). The remaining claimants were found in eligible for any benefits. On February 6, 1987, an order to that effect was entered by the circuit court.
It is from that order that the claimants bring their respective appeals as of right, which we consolidated for our review.
In Michigan, courts may review questions of law or fact on appeal from the MESC Board of Review. Const 1963, art 6, § 28; Paynes v Detroit Bd of Ed, 150 Mich App 358, 366; 388 NW2d 358 (1986). However, a circuit court can reverse an order or decision of the board only if it is contrary to law or is unsupported by competent, material, and substantial evidence on the whole record. MCL 421.38(1); MSA 17.540(1); Paynes, supra. Where there is no dispute as to the underlying facts, questions presented on appeal are to be treated as matters of law. Gormley v General Motors Corp, 125 Mich App 781, 785; 336 NW2d 873 (1983).
Resolution of the instant appeals is dependent upon the interpretation placed on § 27(i)(l) of the Michigan Employment Security Act, MCL 421.27(i)(l); MSA 17.529(i)(l). Generally, the purpose of the act (MCL 421.1 et seq.; MSA 17.501 et seq.) is to safeguard the general welfare through the dispensation of benefits intended to ameliorate the disastrous effects of involuntary unemployment. Paynes, supra, p 367. In light of that purpose, the act is entitled to liberal interpretation. Disqualification provisions should be narrowly construed in favor of those persons who, through no fault of their own, are involuntarily unemployed. Rogel v Taylor School Dist, 152 Mich App 418, 424; 394 NW2d 32 (1986). Section 27(i)(l), which is known as the school denial period provision, is one of those disqualification provisions.
Section 27(i)(l) provides that unemployment benefits will be denied to teachers performing services in an instructional, research, or principal administrative capacity in the first academic year if there exists a contract or reasonable assurance that the individual will perform any of the aforementioned services for the successive second academic year. MCL 421.27(i)(l); MSA 17.529(i)(l); Paynes; supra, p 367. Although under most circumstances teachers are protected from the hardships of unemployment to the same extent as other employees, § 27(i)(l) operates to bar recovery of unemployment benefits during those periods when teachers traditionally do not work. Rogel, supra, pp 423-424. We explained the reason for this exclusion in Paynes, supra, p 368:
By providing for the school denial period, the Legislature has uniformly excluded some seasonal employees from benefits for the purpose of protecting the fiscal integrity of the compensation program and may have held the opinion that teachers and other educational employees know of the seasonal layoff well in advance and are not faced with the same "economic crunch” as those who are unpredictably laid off ... . This section is designed to safeguard the stability of school district employment funds . . . and to provide economic protection to those teachers who will not be recalled at the start of the school year. [Citations omitted.]
With these principles in mind, we hold that the board of review’s decision (i.e., that the letter sent to claimants in June of 1981 did not constitute a reasonable assurance of future employment as required by statute) was not contrary to law or unsupported by competent, material, and substantial evidence.
In finding that the school system’s assurance of reemployment was not reasonable, the board of review took into consideration the information available to the school system and the circumstances which existed at the time. This was not contrary to law. Although the term "reasonable assurance” does not require a formal written or oral agreement to rehire, Riekse v Grand Rapids Public Schools, 144 Mich App 790, 792; 376 NW2d 194 (1985), § 27(i)(l) explicitly states that the assurance must be reasonable. To determine whether the assurance was reasonable, the mesc must necessarily consider the information upon which it was based. The mesc is not required to accept on blind faith any assurance given by a school district to one of its employees. If this were so, the school district could unilaterally render § 27(i)(l) meaningless and frustrate the underlying purpose of the Michigan Employment Security Act.
Having determined that the board’s decision was not contrary to law, the only thing left for this Court to decide is whether it was supported by competent, material, and substantial evidence. We are convinced that it was. As previously discussed, the financial crisis which precipitated the layoff notices did not subside during the summer of 1981. If anything, it worsened. The student population declined, federal funding was reduced, and the school district’s budget was slashed. There was little, if any, reason for optimism. Although the school system’s representative testified that the school district could save over three million dollars if the 164 teachers who did not receive the assurance letter were in fact laid off, the board of review did not err in finding that this did not make the assurances reasonable. After all, that sum was only about one-third of the total budget reductions projected in June. While there was evidence from which the mesc could have concluded that the assurances were reasonable, there was equally strong evidence supporting the contrary conclusion.
In closing, we cannot stress strongly enough that it is not the function of the courts to review mesc decisions de novo. Our sole function with regard to the board of review’s findings is to determine whether they are contrary to law or unsupported by competent, material, and substantial evidence. Having found that they were not, our inquiry is at an end.
Accordingly, the decision of the circuit court is reversed, and the order of the MESC Board of Review is reinstated.
Appeal number 98730, which was filed by Ann Falkenstern and twenty-seven other teachers, will hereinafter be referred to as the Falkenstern case. Appeal numbers 98731 and 98732 were filed by Gwendolyn McDonald and Nancy Hunsberger, respectively, and will be referred to by the surnames of those individual claimants.
One claimant, Susan LaPenna, claimed not to have received the assurance letter. Apparently she had moved without informing the district’s personnel department and the letter did not reach her.
The fourteen teachers receiving this rescission letter included thirteen claimants from the Falkenstern case and claimant Hunsberger.
In both these cases, the claimants filed for redeterminations by the referee after the board of review issued its decision in the Falkenstern case, discussed infra. On redetermination, the referee reversed his original holdings and found that claimant McDonald was eligible for benefits from June 21 through August 15 (presumably because she did not receive a rescission letter) and that claimant Hunsberger was eligible for benefits for the entire summer (presumably because she did receive the rescission letter).
We reject claimants’ argument that the reasonableness of an assurance must be determined from the perspective of the employee. The term "assurance,” as used in §27(i)(l), connotes some action taken on the part of the employer. To hold otherwise would, in effect, be saying that an employee has the ability to guarantee himself future employment without regard to the desires of the employer — an absurd and illogical result.
We do not mean to intimate that an assurance of future employment can never be reasonable in times of financial hardship. If the employer can show that there has been a pattern of reemployment despite initial pessimism, assurances may be reasonable even though, at the time, the economic outlook was dim. See Riekse, supra; Hovey v Employment Security Div Director, 396 Mass 1012; 487 NE2d 510 (1986); Samuels v Employment Security Dep’t, 37 Wash App 409; 680 P2d 764 (1984); Calamusa v Bd of Review, 164 NJ Super 325; 396 A2d 351 (1978). Here, however, no such pattern of reemployment was shown. | [
44,
-51,
-43,
51,
44,
5,
20,
-23,
-25,
-1,
9,
-34,
52,
-19,
0,
26,
-39,
10,
-10,
3,
-70,
-4,
52,
2,
26,
-22,
44,
-11,
-55,
0,
-68,
-26,
8,
-53,
-29,
-32,
-25,
-19,
4,
-9,
-42,
-39,
-6,
-4,
13,
-7,
38,
23,
56,
-26,
-1,
59,
7,
-14,
52,
-6,
-30,
-8,
-24,
17,
-6,
49,
63,
6,
-45,
-19,
13,
61,
13,
6,
-11,
21,
33,
-30,
11,
-2,
-4,
40,
-28,
17,
40,
-57,
8,
3,
14,
22,
9,
-6,
-13,
1,
-76,
-21,
-32,
-6,
27,
16,
-25,
18,
13,
8,
1,
27,
4,
16,
36,
-81,
59,
19,
-37,
22,
-48,
19,
37,
-24,
-2,
36,
31,
14,
37,
23,
-41,
19,
-23,
64,
40,
43,
-41,
27,
-33,
4,
-35,
53,
-34,
38,
51,
33,
51,
9,
-44,
-48,
-41,
14,
3,
-45,
-23,
-10,
4,
-30,
52,
-29,
-27,
-47,
36,
32,
25,
-7,
23,
0,
19,
-33,
0,
-45,
29,
13,
-18,
-64,
52,
22,
65,
-13,
35,
-1,
44,
8,
0,
-3,
36,
40,
-1,
22,
-25,
-18,
-6,
-30,
0,
-23,
-15,
-15,
18,
48,
13,
-18,
20,
-39,
-20,
24,
43,
20,
-39,
-10,
28,
7,
-2,
49,
1,
24,
33,
-67,
-23,
36,
-23,
-18,
-1,
-47,
0,
-14,
-39,
13,
73,
-49,
26,
62,
-18,
8,
-26,
8,
-8,
53,
4,
-15,
30,
26,
85,
-27,
-14,
-7,
-10,
57,
57,
-9,
-11,
-76,
26,
2,
-26,
-32,
-40,
-43,
31,
31,
-29,
11,
-2,
-32,
-26,
-16,
-1,
45,
13,
-15,
4,
7,
27,
-15,
-23,
25,
-51,
63,
-49,
-22,
-8,
0,
24,
-1,
-24,
-2,
-4,
-50,
51,
-7,
-31,
11,
-54,
16,
-19,
0,
21,
-50,
-14,
-22,
21,
-5,
47,
65,
17,
-70,
-12,
15,
2,
22,
-32,
10,
7,
-42,
-19,
58,
-62,
-95,
69,
-28,
-10,
-45,
45,
-61,
48,
-62,
-21,
-30,
0,
-42,
-4,
15,
3,
64,
-5,
-10,
9,
48,
43,
-31,
5,
-59,
-89,
29,
38,
0,
-13,
25,
56,
-26,
14,
39,
5,
6,
-27,
-30,
21,
19,
75,
-4,
81,
12,
29,
31,
7,
41,
57,
0,
-30,
-8,
6,
-11,
24,
12,
-10,
34,
-17,
2,
40,
25,
18,
11,
24,
2,
-5,
-14,
-8,
21,
3,
-22,
-5,
8,
14,
-5,
-19,
42,
25,
60,
16,
-54,
-10,
-45,
-24,
-18,
33,
16,
41,
4,
20,
23,
1,
9,
39,
24,
37,
-46,
-17,
-87,
-26,
-24,
16,
43,
5,
-11,
-17,
-70,
40,
15,
52,
10,
21,
31,
-8,
5,
-30,
-5,
35,
13,
-9,
38,
-28,
19,
5,
-61,
-15,
-4,
-20,
-7,
-43,
-35,
4,
-15,
-60,
-20,
9,
0,
-17,
8,
13,
0,
-5,
42,
-11,
29,
-52,
-21,
-32,
-27,
30,
0,
-48,
-24,
42,
3,
8,
-58,
-2,
26,
-4,
-30,
-12,
-4,
-17,
34,
13,
-7,
-23,
-13,
25,
27,
19,
-12,
-14,
-75,
-59,
44,
31,
-6,
-41,
-13,
39,
-54,
-10,
40,
9,
17,
32,
-39,
20,
12,
-15,
-34,
3,
-61,
14,
1,
-60,
-28,
-31,
-19,
-13,
-17,
-14,
46,
68,
2,
-67,
-37,
-59,
22,
-49,
28,
-31,
-14,
36,
29,
-46,
10,
-22,
18,
-10,
38,
74,
-43,
45,
27,
5,
35,
-19,
-49,
-11,
3,
-11,
24,
53,
-17,
-77,
2,
51,
7,
24,
-20,
-39,
14,
-44,
57,
-7,
-21,
52,
-30,
-65,
23,
-6,
16,
-46,
21,
-56,
7,
-18,
26,
24,
-40,
45,
12,
-8,
26,
6,
-29,
-32,
15,
25,
53,
-60,
-9,
-8,
-31,
82,
24,
-10,
-5,
-10,
-41,
-39,
17,
11,
-26,
12,
14,
-27,
-3,
-2,
3,
-29,
27,
-9,
-11,
-16,
39,
3,
-61,
-7,
-4,
51,
-4,
-31,
-87,
11,
23,
72,
-6,
12,
22,
20,
-23,
-24,
62,
12,
-10,
-28,
-3,
19,
2,
-3,
-14,
-32,
-10,
40,
-13,
-11,
44,
-2,
10,
10,
64,
-30,
-28,
-64,
46,
-1,
-11,
11,
21,
30,
-34,
-10,
-44,
-15,
-15,
-19,
-75,
0,
-4,
25,
-6,
-25,
-5,
1,
-47,
52,
-29,
-38,
38,
26,
29,
12,
-19,
-5,
35,
-8,
6,
21,
36,
-38,
46,
0,
9,
-2,
29,
-40,
-12,
69,
55,
-51,
27,
-40,
-66,
-21,
19,
-34,
4,
-5,
44,
-23,
-28,
-62,
0,
-30,
31,
-1,
53,
-38,
-29,
18,
7,
-42,
-23,
-24,
-40,
12,
-20,
-36,
17,
-11,
-30,
-15,
4,
57,
-68,
-36,
-10,
11,
17,
-18,
-37,
-28,
7,
32,
39,
14,
9,
64,
31,
-12,
-10,
4,
72,
50,
44,
-27,
-44,
-16,
-58,
-20,
56,
23,
-14,
10,
-1,
-2,
52,
-3,
-78,
-17,
-8,
24,
-36,
-61,
-7,
-11,
-30,
10,
70,
-10,
-9,
11,
-50,
-3,
-35,
-38,
-21,
-53,
0,
39,
10,
-18,
-44,
-17,
-13,
39,
-40,
-8,
-11,
16,
-76,
16,
39,
-7,
-38,
-30,
-48,
-44,
19,
-20,
57,
32,
5,
-53,
25,
16,
15,
-40,
36,
-17,
15,
-16,
35,
-7,
18,
-44,
-3,
11,
2,
-50,
13,
48,
-10,
-10,
1,
34,
32,
11,
41,
34,
65,
1,
-2,
-30,
-42,
34,
5,
-20,
-43,
-31,
-46,
0,
-32,
4,
17,
25,
-70,
-10,
-9,
-11,
88,
82,
28,
-16,
-28,
16,
-17,
24,
16,
-37,
37,
20,
46,
-22,
-26,
4,
9,
-14,
-61,
-1,
-2,
-41,
4,
7,
-3,
11,
-67,
-13,
-6,
76,
-73,
42,
33,
-4,
-5,
36,
14,
45,
40,
-68,
-4,
41,
7,
40,
2,
-59,
-14,
27,
-19,
-55,
-27,
-13,
58,
34,
-19,
22,
6,
-34,
26,
18,
-38,
1,
-19,
46,
0,
20,
-19,
29,
-71,
-8,
-79,
43,
-7,
10,
33,
-41,
-1,
32,
-23,
-55,
-8,
30,
10,
42,
-16,
14,
-11,
22,
9,
12,
13,
-12,
-33,
-12,
17,
0,
-19,
36,
-16,
30,
8,
8,
-19,
-44,
21,
8,
6,
-50,
46,
61,
47,
38,
-71,
-13,
-9,
-43,
-17,
23,
-17,
-29,
8,
-9,
-36,
6,
20,
-2,
13,
32,
-21,
4,
12,
-27,
5,
-50,
-42,
-52,
-30,
-2,
46,
85,
-38,
0,
-24,
-29,
14,
36,
3,
48,
23,
12,
15,
6,
38,
15,
-22,
29,
42,
13,
1,
-37,
-17,
112,
2,
-21,
-16,
12,
-25,
71,
19,
-51,
-6
] |
M. J. Kelly, P.J.
Defendant appeals by leave granted the June 30, 1986, order denying defendant’s motion for summary disposition. We reverse.
Plaintiff is an employee of defendant. She began working at Fisher Body on May 18, 1972. Since she was hired she has been off work several times either because of layoffs or due to sickness or injury. She has also been discharged on two occasions. In April of 1982 she was charged with falsification of employment records because she applied for sickness and accident benefits for a period of time for which she had already collected unemployment benefits. This charge resulted in her termination on April 16, 1982. Subsequently, she was reinstated on August 25, 1982, without pay for lost time. On March 6, 1984, plaintiff was again discharged, this time for being absent without reasonable cause. After following the grievance procedure, plaintiff was reinstated on July 28, 1984.
The two discharges and the events that led to her discharge in March of 1984 are the basis for plaintiff’s tort claim of intentional infliction of emotional distress. On the day plaintiff was absent, March 2, 1984, she had been summoned to appear in court. Plaintiff had informed her supervisor of the summons the day after she received it. She was told to report to work at the regularly scheduled time, 6:30 a.m., and told that she would then be excused. Plaintiff overslept and did not report to work, but went straight to court. She phoned her supervisor sometime in the early afternoon. At that time, according to plaintiff’s deposition, she told the supervisor that she was going to her doctor’s in the afternoon and the supervisor then responded that he would see her on Monday.
Plaintiff stated in her deposition that the following conversation between her and her supervisor took place on the following Monday, when plaintiff returned to work and turned in her physician’s statement to her supervisor:
He came over to me and stood next to me, and he goes, You know, Jean, he says, I’m 40 years old and I’ve never screwed a white woman. He says, I think it would feel kind of good. And I looked at him and I said, oh, yeah, Eldridge? Well, I’m 30— and I didn’t say screwed, I said something else — a nigger and I don’t intend on it.
The following day, March 6, 1984, plaintiff was told by her committeeman that her supervisor had been instructed to discharge her.
On March 28, 1984, plaintiff filed a one-count complaint alleging intentional infliction of emotional distress. Because plaintiff, due to her employment, is a member of the United Auto Workers, which has a collective bargaining agreement with defendant, defendant moved for summary disposition on the basis that plaintiff’s claim was preempted by federal labor law. Defendant also argued that, as a matter of law, the conduct complained of was not so outrageous as to support plaintiff’s claim.
Defendant’s motion was brought pursuant to MCR 2.116(0(10), defendant contending that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law. The trial court denied defendant’s motion, finding both that plaintiff pled a claim for intentional infliction of emotional distress and that such a claim was not preempted by federal labor law.
In this appeal defendant raises the same issues. Defendant first claims that plaintiff’s claim is preempted by federal labor law. We agree with the trial court and hold that it is not.
The general rule on the doctrine of federal preemption with regard to labor law was set forth in San Diego Building Trades Council v Gorman, 359 US 236, 244; 79 S Ct 773; 3 L Ed 2d 775 (1959):
When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.
However, in Farmer v United Brotherhood of Carpenters & Joiners of America, 430 US 290, 302; 97 S Ct 1056; 51 L Ed 2d 338 (1977), where plaintiff brought a claim of intentional infliction of emotional distress against his union, the Supreme Court highlighted restrictions placed on rigid application of the Gorman rule:
Our cases indicate, however, that inflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State’s interest is one that does not threaten undue interference with the federal regulatory scheme.
In allowing petitioner’s claim, Farmer reasoned that, since "[n]o provision of the National Labor Relations Act protects the 'outrageous conduct’ complained of” and since "[t]he State, on the other hand, has a substantial interest in protecting its citizens from the kind of abuse” complained of, preemption did not apply to the circumstances presented. Id. at 302.
The Court in.Farmer concluded that any inter ference with the federal labor law scheme was counterbalanced by the state’s legitimate and substantial interest in protecting its citizens from the kind of conduct complained of. And, in any event the state tort claim could be decided without regard to the underlying merits of the labor dispute.
Plaintiffs claim, as pled here, comes within the principles of Farmer. Plaintiff does not allege that the activity of defendant was in violation of the National Labor Relations Act. Rather, the tortious conduct complained of falls outside of the collective bargaining agreement and does not require this Court to engage in analysis of the terms of the collective bargaining agreement. Also, the state has a legitimate and substantial interest in protecting its citizens from the tort complained of. For these reasons, we find that plaintiffs claim was not preempted by federal labor laws.
However, we disagree with the trial court in its conclusion that defendant’s conduct would support a claim for intentional infliction of emotional distress.
The Supreme Court in Roberts v Auto-Owners Ins Co, 422 Mich 594, 603; 374 NW2d 905 (1985), in judging a claim held that, for intentional infliction of emotional distress, the following language from the Restatement Torts, 2d, § 46, comment d, pp 72-73, should be used as a gauge for what constitutes the extreme and outrageous conduct which is necessary to support an actionable claim for intentional infliction of emotional distress:
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.
The basis for plaintiffs claim of extreme and outrageous conduct is the statement which she alleges her supervisor made to her and her subsequent discharge when she refused to accede to his suggestion. Plaintiff’s deposition reveals that the complained of statement was: "You know, Jean, . . . I’m 40 years old and I’ve never screwed a white woman. ... I think it would feel kind of good.”
Although by any standard such a rank overture is repulsive, we do not find that in an adult workplace such a statement is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” For this reason we reverse the decision of the trial court and dismiss plaintiff’s claim, finding that as a matter of law defendant is entitled to judgment.
Reversed. | [
-10,
-35,
-70,
63,
38,
-62,
-4,
-23,
-64,
25,
-30,
-37,
56,
2,
-34,
-24,
19,
-28,
-25,
-18,
47,
2,
14,
-2,
0,
3,
-31,
-6,
-23,
-32,
10,
-12,
-47,
-74,
21,
-41,
37,
16,
-33,
34,
-27,
-45,
-6,
-22,
-36,
-8,
-4,
27,
49,
2,
64,
-8,
6,
2,
4,
-45,
3,
-8,
-23,
-9,
-33,
55,
35,
-63,
-9,
56,
10,
26,
-74,
-25,
-15,
1,
-13,
-19,
-70,
-43,
-47,
28,
65,
-10,
2,
-38,
-9,
57,
0,
30,
25,
37,
9,
-8,
-21,
1,
-52,
-7,
-2,
7,
-54,
-20,
43,
-23,
-34,
29,
-31,
28,
24,
18,
14,
-24,
-89,
37,
3,
-4,
43,
21,
4,
-13,
73,
3,
-10,
-19,
47,
8,
2,
-21,
32,
9,
29,
31,
39,
87,
14,
-3,
46,
-16,
-36,
-6,
-24,
0,
13,
5,
-17,
50,
-17,
-2,
-28,
57,
-40,
-18,
24,
-4,
0,
-3,
5,
34,
49,
9,
37,
5,
14,
16,
6,
-26,
28,
14,
-10,
-61,
8,
-2,
24,
-42,
57,
3,
17,
10,
-22,
43,
-3,
-40,
-10,
4,
-73,
-2,
-50,
52,
-1,
-46,
19,
14,
1,
82,
-4,
-30,
47,
31,
35,
21,
6,
-3,
9,
-21,
15,
3,
-1,
-40,
31,
14,
5,
-3,
11,
-15,
-38,
7,
0,
-70,
-38,
-14,
47,
11,
-23,
32,
-25,
-40,
34,
-10,
-67,
-45,
-11,
-34,
75,
-21,
-15,
-28,
18,
50,
-27,
-41,
82,
-10,
79,
16,
-20,
11,
20,
-4,
-61,
38,
-66,
-33,
-9,
39,
34,
-2,
44,
34,
-63,
-65,
-55,
48,
-7,
19,
-30,
35,
17,
-6,
4,
-26,
-24,
92,
0,
-14,
-19,
-15,
78,
-39,
-13,
-55,
-54,
43,
46,
-1,
-22,
7,
-16,
-24,
-17,
-2,
57,
-11,
-6,
0,
14,
-6,
-21,
13,
-6,
-28,
-6,
27,
-61,
33,
-18,
-28,
4,
-37,
-45,
21,
-24,
2,
16,
-12,
-31,
-10,
18,
-17,
49,
-60,
-19,
20,
26,
-17,
10,
19,
-14,
42,
-17,
-65,
-40,
-15,
-19,
-13,
3,
12,
-31,
56,
53,
6,
17,
32,
3,
-4,
24,
30,
-29,
-3,
-82,
50,
55,
-12,
84,
-20,
-19,
-14,
54,
-18,
10,
12,
33,
-33,
-5,
-7,
-4,
-53,
4,
-51,
-18,
-14,
-13,
-17,
15,
19,
11,
-22,
0,
-59,
-12,
-33,
11,
-16,
30,
38,
14,
-36,
17,
-8,
5,
-48,
1,
-32,
-42,
-11,
-47,
-13,
7,
25,
-55,
-1,
-8,
9,
-15,
41,
-9,
32,
1,
13,
3,
-5,
21,
-44,
22,
37,
12,
3,
37,
48,
-15,
-45,
62,
-5,
50,
0,
69,
-1,
42,
-59,
12,
16,
3,
2,
28,
-38,
-40,
7,
7,
-42,
36,
30,
-30,
-45,
8,
-28,
-2,
-21,
-33,
-24,
40,
45,
-18,
-13,
12,
3,
-27,
50,
28,
4,
8,
-22,
0,
18,
-23,
-9,
-25,
-23,
17,
21,
37,
-5,
39,
-15,
-47,
63,
7,
-22,
1,
20,
14,
40,
6,
8,
23,
-55,
35,
-8,
31,
-50,
3,
37,
52,
-69,
2,
-32,
19,
-45,
-41,
55,
-29,
-21,
-4,
18,
-50,
29,
-50,
-20,
9,
11,
39,
-47,
33,
-47,
20,
-33,
-53,
-6,
5,
55,
37,
7,
-1,
36,
11,
16,
-32,
24,
17,
-3,
-57,
-10,
-36,
-22,
-27,
-2,
34,
33,
11,
-12,
39,
-2,
1,
-37,
-13,
-20,
19,
41,
2,
-2,
6,
-33,
12,
29,
47,
35,
6,
-1,
37,
3,
-6,
10,
19,
-7,
68,
15,
-31,
9,
21,
55,
-22,
-19,
-10,
-16,
28,
-9,
-25,
24,
18,
52,
10,
56,
23,
5,
-42,
-13,
-8,
-22,
10,
-12,
-50,
-36,
62,
25,
21,
-15,
-26,
-106,
-22,
-24,
75,
-14,
-5,
-47,
-6,
-16,
19,
-53,
-39,
-30,
-20,
42,
12,
2,
-5,
4,
10,
45,
-13,
-34,
-26,
-64,
-6,
0,
5,
72,
4,
22,
-5,
-6,
-4,
-4,
36,
14,
0,
-94,
33,
-16,
30,
5,
1,
-13,
-6,
14,
-14,
3,
7,
4,
44,
49,
-2,
0,
34,
-36,
-34,
-41,
-19,
41,
6,
39,
-15,
-30,
14,
25,
-34,
-30,
-47,
12,
24,
-52,
28,
4,
6,
-29,
-36,
-10,
27,
0,
29,
43,
31,
-19,
4,
-8,
-20,
3,
-30,
-27,
21,
35,
-45,
37,
17,
14,
-23,
-52,
-29,
13,
43,
2,
7,
47,
3,
-23,
38,
-12,
-48,
30,
0,
-5,
38,
14,
10,
-29,
22,
53,
-26,
19,
22,
-21,
34,
47,
-23,
-39,
-24,
15,
-39,
-26,
-35,
12,
15,
39,
27,
-17,
-2,
-9,
27,
39,
-39,
34,
-44,
3,
-24,
-21,
-69,
29,
60,
-20,
9,
-19,
-13,
1,
-14,
-12,
45,
8,
-46,
-13,
-9,
16,
-5,
18,
61,
-54,
-99,
0,
-2,
-26,
6,
-21,
-15,
33,
7,
-9,
-7,
-15,
-60,
27,
38,
-17,
-26,
10,
7,
22,
-73,
-19,
-10,
24,
5,
-19,
-7,
-30,
12,
-2,
43,
-5,
-48,
-15,
-35,
-47,
28,
4,
-7,
-19,
-66,
-18,
0,
14,
-23,
23,
32,
-17,
0,
-21,
8,
-31,
-17,
-49,
45,
18,
-56,
-8,
-25,
-4,
-24,
-2,
23,
36,
-14,
-19,
31,
-13,
-39,
-38,
33,
-29,
-59,
47,
38,
63,
-10,
23,
6,
-36,
4,
-5,
3,
-6,
-15,
-10,
19,
24,
36,
-3,
29,
10,
34,
4,
-7,
91,
-11,
1,
0,
-35,
-6,
-15,
-12,
-14,
-39,
-22,
13,
42,
-35,
-33,
68,
-50,
18,
-51,
-40,
32,
-42,
33,
-22,
-26,
34,
-13,
15,
6,
35,
0,
7,
-25,
27,
-35,
-32,
-2,
49,
60,
38,
-20,
-32,
-8,
20,
6,
-54,
-76,
33,
1,
22,
28,
-22,
-37,
7,
-37,
-23,
6,
-37,
13,
7,
27,
-6,
29,
-21,
46,
-16,
-39,
-26,
-12,
57,
-1,
53,
32,
36,
14,
1,
32,
2,
8,
-18,
14,
13,
27,
35,
-57,
6,
4,
-8,
-4,
20,
15,
-61,
0,
4,
10,
7,
25,
-7,
0,
27,
23,
-6,
-35,
17,
-19,
5,
37,
-13,
0,
-16,
52,
29,
35,
0,
-6,
-28,
-53,
26,
-16,
7,
-63,
-14,
8,
6,
-14,
21,
21,
14,
-19,
-45,
14,
2,
-47,
-13,
-30,
-35,
-41,
28,
32,
32,
63,
51,
-36,
-50,
-28,
53,
16,
0,
0,
16,
-34,
13,
40,
16,
1,
-13,
12,
53,
40,
19,
-12,
-18,
23,
-10,
18,
-18,
20,
-7,
-2,
42,
-4
] |
Per Curiam.
Plaintiff appeals as of right from an order of the circuit judge granting defendant road commission’s motion for summary disposition, presumably pursuant to MCR 2.116(0(10). On appeal, we are asked to decide whether the circuit judge erred in ruling that defendant road commission had no duty to trim or to seek to have the property owner trim an obstructing hedge row that was located on private property. We affirm the circuit judge’s ruling.
This case arises from a vehicle-bicycle collision that occurred at the "t” intersection of northbound Columbia Street, under the jurisdiction of defendant road commission, and a one-way eastbound service drive to Schoolcraft Road, a state trunk line under the jurisdiction of the Michigan Department of Transportation._
Plaintiff was injured when she was struck by a van as she crossed Columbia Street on her bicycle, proceeding in a westerly direction on the sidewalk adjacent to the service drive. The van had been traveling northbound on Columbia Street, preparing to turn east onto the service drive. Both plaintiff and the driver of the van were unable to see each other due to a six-foot hedge located at the southeast corner of the intersection, adjacent to the sidewalk. The hedge had been placed there by the owners of the corner lot. Despite her obstructed view, plaintiff had proceeded to cross Columbia Street because the traffic signal at the intersection showed green in her direction. As she came to the end of the hedge, she saw the van approaching her but nonetheless coasted onto Columbia Street, on the assumption that the van would stop. However, the van did not slow down, and it struck her. There is evidence that the traffic signal had been malfunctioning for some weeks prior to the accident, continually showing green along tiie Schoolcraft service drive and red to Columbia Street. However, the van driver insisted in his deposition that the traffic signal was showing him green as he drove through the intersection.
Plaintiff settled with both the driver of the van and the property owner who had allowed the hedge to obscure the vision at the intersection. She then filed an action in Wayne Circuit Court against defendant road commission and in the Michigan Court of Claims against the Department of Transportation. The actions were consolidated in Wayne County with the circuit judge acting as a Court of Claims judge by special assignment. After extensive briefing by both parties, the circuit judge granted defendant road commission’s motion for summary disposition, ruling that defendant had no duty to remove obstructions or to seek the removal of obstructions that were located on private property.
On appeal, plaintiff argues that defendant is responsible for any obstruction that renders a highway defective regardless of whether the obstruction is on the improved portion of the highway or on private property. Defendant, in turn, claims that its duty to maintain Columbia Street in a condition reasonably safe and fit for travel does not extend to removing visual obstructions lying beyond the actual right-of-way of the highway and growing on private property.
In general, all governmental agencies are immune from tort liability while engaged in the exercise or discharge of a governmental function, except as provided by statute. MCL 691.1407; MSA 3.996(107). In the present case, plaintiff based her claim on MCL 691.1402; MSA 3.996(102), which abrogates governmental immunity for injuries arising from defective highways. Tibor v Dep’t of State Highways, 126 Mich App 159; 337 NW2d 44 (1983). In pertinent part, MCL 691.1402; MSA 3.996(102) states:
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. [Emphasis supplied.]
According to the plain language of the statute, a road commission’s duty applies only to the "improved portion of the highway designed for vehicular travel.” There are a multitude of cases in which this language has been interpreted. Generally speaking, appellate decisions have allowed recovery for injuries that were incurred outside of the strict confines of the paved road provided the injuries occurred within the vicinity and were related to the safety of motor vehicle traffic. Thus, causes of actions have survived motions for summary disposition for injuries sustained while on the shoulders of roads, for injuries resulting from defective stop signs and defective traffic signals. See Tibor, supra, and cases cited there. See also Anderson v Macomb Co Rd Comm, 143 Mich App 735; 372 NW2d 651 (1985), and cases cited there.
Significantly, in each of the cases in which the liability of the state or of the county road commission was deemed to extend beyond the paved portion of the road, the defect was either alongside or above the roadway, always within the shoulders of the road. There are no cases in which the improved portion of the roadway was deemed to include privately owned property. Thus, for example, in Moerman v Kalamazoo Co Rd Comm, 129 Mich App 584, 593; 341 NW2d 829 (1983), this Court suggested that the defendant road commission’s duty did not include the obligation to remove a tree that was near the road but off of the shoulder. The trial judge had reached that conclusion as a matter of law. A majority of the panel stated:
In the present case, we need to determine whether the tree affected the safety of motorists using the shoulder of the road. We are uncertain as to whether decedent’s vehicle struck the tree while the vehicle was still completely on the shoulder or whether it collided with the tree only after one or more of its wheels had left the shoulder. If the tree was positioned such that the average vehicle would have struck the tree without any of the vehicle’s wheels leaving the shoulder, the tree would affect the safety of motorists using the shoulder. Under such circumstances, the defendant’s duty to keep the road reasonably safe would extend to the maintenance of the tree. The record, however, does not disclose whether those circumstances existed in this case. Consequently, we are unable to decide whether the defendant had a duty to maintain the tree. [129 Mich App 593.] | [
-44,
17,
-17,
4,
-25,
-29,
20,
41,
-11,
56,
-30,
-27,
46,
-19,
-3,
-53,
27,
12,
-38,
36,
-38,
-12,
26,
0,
-26,
18,
-12,
-15,
26,
60,
-11,
-48,
-11,
26,
11,
18,
6,
81,
30,
-6,
46,
-18,
-54,
2,
-13,
-58,
50,
7,
31,
-7,
-38,
61,
-44,
-31,
-26,
-13,
-3,
5,
3,
-14,
-11,
22,
0,
10,
29,
0,
4,
32,
16,
5,
-53,
22,
-19,
-15,
-3,
7,
-18,
37,
-40,
33,
-39,
-35,
28,
1,
41,
0,
-29,
-27,
-30,
-52,
-29,
-49,
-35,
-15,
16,
37,
10,
-92,
20,
-37,
-32,
66,
48,
20,
-16,
0,
-9,
-43,
-1,
-13,
25,
8,
4,
-1,
9,
33,
-2,
-12,
72,
17,
6,
-38,
14,
-23,
-8,
-18,
21,
-24,
-62,
5,
14,
3,
-2,
8,
31,
15,
-50,
-5,
12,
51,
18,
-41,
9,
7,
6,
22,
27,
-25,
5,
-51,
4,
-9,
-20,
-6,
-34,
-23,
28,
-20,
56,
-17,
41,
32,
20,
-23,
-52,
-3,
-4,
2,
-27,
16,
61,
-36,
52,
-53,
20,
3,
-35,
37,
-31,
-18,
-15,
29,
6,
3,
-63,
-41,
3,
-20,
-13,
5,
32,
-9,
-5,
-29,
8,
54,
24,
65,
-18,
-11,
-24,
10,
-14,
19,
-20,
-18,
8,
-29,
3,
-2,
-6,
-35,
-41,
-27,
74,
-14,
31,
-32,
10,
-8,
46,
3,
19,
-19,
-23,
-32,
-44,
-94,
47,
6,
38,
-18,
-21,
-8,
-35,
2,
7,
-2,
9,
15,
31,
18,
-24,
-12,
9,
25,
-41,
-18,
0,
-10,
13,
-49,
-28,
-38,
34,
-25,
7,
41,
-24,
34,
38,
54,
16,
26,
2,
20,
-4,
-9,
-21,
-49,
-40,
36,
-21,
0,
-56,
-27,
13,
53,
27,
17,
27,
-14,
-23,
-7,
-13,
31,
10,
22,
35,
13,
-6,
-32,
-36,
50,
-11,
-4,
23,
-20,
-40,
12,
31,
-22,
-5,
30,
25,
-22,
7,
-34,
5,
49,
-20,
-27,
21,
-16,
27,
34,
11,
0,
41,
-37,
-2,
36,
-23,
4,
-32,
19,
26,
-20,
-7,
-33,
-36,
34,
10,
-12,
32,
-16,
6,
-10,
-11,
-1,
19,
-14,
10,
-21,
23,
15,
45,
4,
3,
-17,
-49,
7,
10,
-24,
-59,
-33,
9,
-51,
-44,
54,
-4,
15,
24,
-26,
18,
-14,
13,
41,
-58,
79,
-43,
-32,
21,
-16,
-31,
-54,
11,
2,
-8,
34,
53,
-47,
1,
-48,
36,
-32,
-75,
-11,
-8,
-35,
-21,
-46,
17,
-21,
-40,
-8,
-4,
52,
-23,
27,
31,
1,
-9,
34,
-39,
-1,
2,
-24,
11,
24,
-47,
-5,
55,
30,
0,
49,
19,
12,
-9,
-38,
19,
44,
-23,
-66,
-13,
-16,
11,
3,
5,
70,
20,
-3,
31,
-52,
16,
16,
-25,
-59,
-37,
37,
-2,
-5,
-4,
-28,
-36,
-11,
-30,
3,
4,
0,
65,
32,
8,
-16,
-23,
15,
-1,
25,
-28,
-44,
34,
-50,
-36,
-3,
-3,
-23,
18,
14,
56,
-47,
-31,
43,
-86,
30,
23,
-13,
-51,
-10,
-41,
26,
-33,
-10,
-27,
36,
-22,
10,
5,
55,
-42,
6,
-7,
41,
-19,
-35,
23,
-2,
-4,
12,
1,
-20,
-8,
-6,
-57,
37,
14,
-25,
-9,
37,
-28,
-5,
-17,
13,
39,
9,
-11,
17,
-21,
-15,
52,
-1,
-37,
-57,
14,
-32,
5,
22,
-1,
-3,
-2,
19,
27,
-22,
22,
-34,
54,
9,
9,
13,
16,
-3,
0,
38,
-47,
-43,
20,
-42,
-45,
18,
55,
-23,
-1,
-7,
-22,
-24,
12,
-1,
-6,
-35,
2,
-20,
0,
-7,
1,
24,
53,
10,
38,
-23,
22,
-1,
-7,
-3,
5,
-90,
-29,
40,
-8,
18,
-32,
-30,
-22,
7,
-22,
-3,
-32,
-6,
53,
-4,
5,
-17,
-47,
6,
18,
28,
9,
-3,
7,
15,
9,
-8,
38,
-17,
-44,
34,
73,
-17,
9,
-10,
20,
-31,
29,
1,
-69,
63,
-10,
21,
-30,
-1,
68,
-17,
-5,
-14,
27,
35,
3,
-1,
-15,
42,
-34,
15,
-34,
37,
-6,
-10,
2,
17,
-6,
24,
-25,
-26,
-17,
43,
-2,
-15,
19,
-19,
4,
14,
-47,
16,
-17,
76,
-23,
-33,
25,
-8,
8,
-11,
-45,
7,
21,
-32,
-11,
-68,
-71,
-24,
-31,
6,
25,
0,
12,
12,
62,
27,
27,
-19,
-17,
37,
42,
26,
6,
-23,
-27,
-17,
0,
-61,
-15,
35,
72,
-6,
2,
25,
-7,
8,
-34,
-2,
5,
0,
-22,
2,
-16,
27,
-28,
26,
-54,
30,
-4,
-8,
-21,
46,
-21,
51,
-4,
-5,
-7,
40,
27,
-2,
-31,
-22,
2,
-2,
-34,
-71,
-14,
-19,
-28,
-64,
10,
29,
19,
55,
38,
-33,
-29,
-69,
47,
-16,
-10,
-40,
23,
11,
18,
27,
-10,
-27,
1,
33,
-7,
0,
-24,
41,
20,
-6,
-8,
-26,
64,
9,
11,
-25,
16,
-47,
7,
22,
-7,
-27,
-8,
-18,
-1,
0,
-48,
30,
2,
-54,
-38,
18,
-16,
-54,
23,
-49,
-33,
9,
11,
-5,
-21,
-2,
-8,
-45,
12,
26,
14,
4,
-9,
-17,
4,
-11,
-19,
-12,
54,
-6,
9,
47,
-1,
11,
14,
12,
-22,
36,
37,
14,
47,
22,
11,
-36,
30,
34,
0,
63,
-4,
-19,
17,
-5,
-9,
-24,
29,
-25,
35,
-21,
2,
27,
68,
-45,
-7,
25,
-43,
42,
49,
33,
22,
-6,
14,
-5,
-57,
15,
-1,
-5,
-2,
9,
21,
37,
-44,
-7,
0,
-20,
72,
21,
-13,
4,
17,
-7,
29,
2,
-50,
-5,
37,
20,
-47,
-25,
-24,
29,
-6,
31,
13,
21,
-12,
-25,
-8,
-10,
-21,
-16,
27,
-33,
36,
26,
-23,
-26,
-28,
12,
-33,
31,
32,
42,
-23,
-11,
-42,
10,
-27,
17,
47,
-31,
-19,
19,
8,
8,
-27,
6,
3,
26,
-18,
-25,
-32,
-9,
-11,
0,
-9,
-19,
-28,
-11,
9,
6,
-3,
64,
-35,
-34,
-33,
8,
-36,
-20,
-27,
28,
-3,
22,
5,
0,
27,
-28,
18,
-4,
-10,
-38,
8,
2,
-8,
43,
-13,
-56,
-7,
68,
-14,
-30,
-5,
0,
-3,
-6,
-11,
-7,
-47,
-2,
-12,
-20,
12,
40,
40,
-23,
36,
14,
39,
-28,
-36,
91,
-46,
16,
6,
-1,
12,
-48,
7,
32,
-5,
5,
11,
-52,
38,
43,
-21,
-5,
-17,
3,
-21,
-13,
-7,
-29,
38,
-3,
-38,
0,
-14,
50,
39,
10,
50,
5,
21,
19,
15,
-22,
42,
19,
11,
64,
-32,
28,
37,
2,
39,
37,
-18,
-9,
-8,
-3,
21,
22,
49,
26
] |
Moore, J.
This case has been here before upon a motion to dismiss. Raniak v. Pokorny, 198 Mich. 567. A reading of the opinion then handed down will make a long statement of facts unnecessary at this time. After the case was sent back it was tried in open court upon the merits. The trial judge filed a long written opinion in which he said:
“The nature of the charges made in the bill against officers of the court, caused the court to pay most careful attention to the testimony given at the hearing, because if these attorneys are guilty they are a disgrace to the bar and to the community in which they live.
“At the close of the hearing, the court announced that no fraud had been shown, but counsel for plaintiffs, desiring an opportunity, to submit a brief, time in which to do so was granted, and such brief has been given consideration, but leads me to no conclusion different from that announced at the close of the hearing.”
The decisive questions are purely questions of fact and it would profit no one to set them out in detail here. A careful examination of the voluminous record and of the briefs of counsel convinces us that the decree of the lower court should not be disturbed.
It is affirmed, with costs to defendants.
Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit. | [
24,
-10,
7,
26,
40,
-15,
29,
-36,
-19,
49,
47,
-3,
19,
6,
-11,
-25,
18,
11,
-8,
-41,
-9,
4,
4,
27,
-66,
8,
20,
49,
-17,
-15,
2,
19,
-16,
-20,
4,
-59,
37,
27,
15,
34,
-19,
7,
12,
-62,
-11,
21,
0,
-14,
28,
-19,
69,
-11,
-22,
1,
-41,
-15,
-8,
18,
12,
-20,
-20,
32,
29,
-37,
-10,
-52,
8,
10,
-18,
-16,
-77,
24,
-23,
-32,
0,
-37,
3,
3,
-35,
-8,
27,
-1,
31,
6,
0,
38,
2,
-5,
-18,
37,
-1,
23,
-20,
-34,
4,
-31,
54,
15,
21,
0,
-33,
-37,
-27,
-9,
9,
31,
-19,
-45,
-12,
-36,
9,
0,
-8,
-61,
14,
-36,
-28,
1,
16,
-52,
58,
43,
15,
23,
5,
13,
-2,
-7,
-44,
7,
13,
-23,
-30,
6,
-36,
-26,
-9,
-27,
0,
-33,
44,
11,
5,
-52,
-3,
12,
-27,
30,
28,
-2,
-65,
-36,
54,
-5,
-22,
-10,
-42,
-88,
35,
-12,
16,
-9,
-43,
-33,
15,
29,
8,
-54,
20,
-39,
-3,
38,
-17,
40,
-3,
7,
16,
17,
-25,
-15,
20,
34,
-25,
8,
-18,
-8,
-27,
8,
19,
-19,
19,
-16,
10,
9,
55,
-4,
-17,
31,
23,
-64,
-33,
-36,
-8,
7,
-25,
50,
28,
-26,
4,
0,
31,
60,
16,
-52,
-11,
-58,
-12,
-57,
7,
-38,
20,
-17,
-32,
-23,
-80,
-11,
35,
9,
16,
-10,
-34,
-10,
-49,
21,
38,
-52,
19,
-2,
34,
-4,
-26,
42,
33,
-47,
-21,
26,
-3,
1,
14,
32,
4,
49,
-13,
-9,
-21,
12,
29,
5,
-43,
-22,
-42,
26,
-29,
-10,
-18,
-39,
5,
17,
-10,
-15,
15,
-13,
24,
25,
-7,
-20,
-47,
5,
-8,
43,
16,
12,
-4,
13,
-15,
38,
-33,
32,
30,
-10,
13,
41,
-51,
35,
65,
-15,
-4,
25,
8,
27,
-34,
-27,
-15,
0,
-11,
-28,
-24,
-1,
-31,
-15,
1,
45,
44,
32,
40,
39,
-61,
-11,
45,
-3,
-3,
-16,
-19,
-47,
16,
-48,
29,
-20,
-15,
-31,
-14,
12,
34,
-4,
0,
-19,
13,
-10,
-22,
38,
-11,
-14,
-25,
-17,
35,
34,
-31,
7,
-12,
-49,
-25,
15,
26,
31,
33,
-75,
-23,
-50,
-5,
-17,
-17,
-5,
35,
1,
29,
2,
-32,
3,
7,
14,
-2,
5,
-34,
19,
-29,
2,
-6,
-4,
-3,
35,
-41,
-42,
-29,
22,
21,
-11,
29,
-41,
-5,
40,
3,
19,
-13,
17,
-23,
-5,
-53,
-42,
-43,
3,
-11,
-19,
43,
-1,
-43,
46,
-2,
-32,
-15,
15,
0,
11,
27,
36,
-59,
-13,
26,
39,
15,
-30,
38,
-4,
-2,
-31,
21,
0,
1,
21,
36,
-21,
-37,
-12,
29,
-21,
14,
32,
0,
-41,
1,
-5,
-20,
12,
-45,
-13,
-21,
9,
2,
-32,
14,
5,
10,
20,
3,
2,
-15,
16,
-22,
-16,
-10,
4,
65,
2,
-8,
-22,
15,
3,
-48,
8,
51,
0,
31,
4,
-2,
27,
-33,
-4,
17,
12,
6,
10,
20,
8,
11,
-12,
-78,
-29,
0,
-24,
-24,
-6,
13,
-22,
-3,
-22,
3,
-10,
-5,
-25,
-59,
-2,
-12,
48,
16,
-6,
0,
-31,
74,
-21,
1,
25,
12,
18,
10,
39,
-66,
42,
61,
16,
54,
32,
44,
-46,
1,
19,
-1,
4,
-24,
10,
4,
-8,
21,
11,
-7,
-60,
15,
31,
7,
-41,
-19,
-8,
-19,
8,
10,
19,
35,
-22,
-9,
-24,
79,
26,
15,
-49,
-20,
24,
-5,
23,
-19,
-11,
21,
-47,
-32,
-1,
-8,
-15,
30,
17,
-28,
-36,
-2,
-31,
-2,
2,
63,
16,
-35,
2,
10,
19,
3,
-3,
2,
10,
-21,
12,
-20,
-6,
44,
-13,
29,
-59,
-2,
-40,
68,
-11,
60,
-22,
28,
-46,
43,
52,
-17,
-25,
-47,
-16,
-4,
5,
-11,
25,
11,
-10,
76,
16,
-2,
-15,
-3,
13,
0,
24,
-30,
-1,
-28,
-5,
-6,
-1,
39,
-13,
-7,
-1,
-1,
0,
-7,
-47,
-39,
-8,
-2,
1,
-18,
-20,
-7,
10,
-17,
60,
30,
-32,
34,
16,
-25,
53,
-13,
-16,
-9,
41,
52,
-42,
-14,
-40,
15,
-12,
28,
-30,
37,
0,
12,
39,
-14,
11,
42,
3,
-15,
16,
-7,
-9,
34,
-6,
43,
-20,
26,
-19,
-40,
-30,
-8,
-30,
29,
-38,
-77,
35,
-6,
11,
0,
39,
-31,
36,
-11,
11,
-38,
-39,
20,
-39,
42,
-25,
6,
-56,
12,
-9,
15,
-5,
17,
13,
-61,
9,
-12,
28,
-22,
-11,
11,
4,
-5,
34,
-24,
13,
9,
2,
46,
41,
-1,
-4,
50,
37,
7,
-17,
-25,
34,
-20,
13,
-57,
68,
-30,
-65,
-36,
-8,
21,
24,
-16,
-40,
7,
7,
-3,
2,
42,
-4,
8,
0,
22,
-8,
-1,
84,
3,
-24,
-32,
9,
-4,
12,
14,
-28,
-2,
2,
28,
-16,
-21,
-16,
-58,
-19,
-9,
-2,
8,
39,
-16,
-8,
44,
-5,
-3,
-7,
-45,
30,
49,
-13,
0,
-19,
-5,
23,
9,
-39,
-45,
34,
21,
35,
30,
-11,
35,
-3,
9,
5,
20,
22,
-4,
49,
-21,
21,
85,
24,
6,
-7,
24,
-32,
-39,
-36,
9,
-17,
-28,
-39,
1,
31,
10,
9,
1,
-18,
-26,
-22,
13,
-18,
-13,
-42,
-3,
25,
9,
-13,
5,
-6,
8,
14,
0,
-33,
13,
52,
28,
9,
-43,
35,
-56,
0,
13,
43,
5,
-27,
-10,
-13,
-12,
23,
33,
-7,
20,
8,
27,
-16,
0,
6,
12,
10,
53,
-4,
5,
29,
2,
-14,
-21,
5,
-14,
-42,
-22,
8,
5,
13,
-13,
-2,
5,
-14,
47,
-70,
-2,
0,
47,
58,
19,
-23,
-1,
14,
0,
24,
0,
20,
49,
-16,
77,
6,
46,
-5,
-21,
6,
-18,
35,
0,
18,
41,
-9,
-3,
4,
-9,
23,
31,
-45,
-1,
58,
47,
15,
-9,
-34,
0,
-36,
-74,
58,
31,
-31,
19,
5,
-4,
-27,
-13,
-10,
23,
13,
-44,
-64,
-9,
17,
-1,
-5,
-59,
-6,
-20,
32,
19,
7,
0,
43,
-30,
-35,
-11,
-24,
-4,
-8,
-3,
1,
-21,
-2,
-15,
-53,
-3,
-6,
37,
46,
11,
-19,
-20,
-19,
11,
-32,
15,
-21,
-34,
17,
48,
0,
10,
34,
21,
23,
6,
0,
-13,
-14,
-22,
53,
-3,
-7,
-42,
9,
-50,
-98,
-13,
10,
19,
45,
34,
14,
23,
-32,
-12,
47,
-7,
-25,
9,
20,
58,
-2,
-82,
8,
30,
-64,
-38,
-20,
-27,
58,
-21,
58
] |
Kuhn, J.
This is an appeal from a decree of the circuit court for Kent county, in chancery. The plaintiffs. owned farms on section 14, Plainfield township, which lie north of the east and west highway and parallel to and adjoining each other. The defendant John P. Weller owned 40 acres immediately east of and adjoining the farm of the plaintiff Fred Suffrouw. The defendant Augusta H. Brewer owned land directly south of the John P. Weller farm. The dispute between the parties arises from the flow of a certain stream of water across their land. In its natural state this stream had its source in the western part of section 13, Plainfield township, and flowed southwesterly into the east half of the southeast quarter of section 14, now owned by the defendant Weller, where it overflowed into a swamp or pond, from which it flowed southerly and southwesterly across the wesx half of the west half of section 24 and emptied into the Grand River. Upwards of 50 years ago, the exact date not being shown by the evidence, the course of this stream was changed by the digging of artificial canals. A channel was dug carrying the stream in a westerly direction across the lands now owned by the defendant Weller and about 15 rods east of the Suffrouw land, and on the Weller farm there was a divide established in the creek, and it is the claim of the plaintiffs that one-half of the water was turned directly to the south and the other half of the water ran through the west branch of the creek, across the plaintiffs’ lands, on through to the river Rogue, and it is the claim of the plaintiffs that this condition existed for upwards of 50 years, the creek being fed and supplied by springs, the west branch running across the plaintiffs’ land continuously the year around, conveying and carrying large quantities of pure live spring water, amply sufficient to supply their live stock and for all other farm purposes.
On October 12, 1915, the defendant Joseph Brewer, acting for his wife, the defendant Augusta H. Brewer, with the consent of the defendant Weller, had constructed in this stream, at the point of the divide, a cement basin with a two-inch pipe leading into the west branch and so arranged that, unless obstructed, this pipe would empty its full capacity of water into the west branch. The basin was arranged with a concave apron leading into the south branch so that the balance of the water would flow through the south branch. It is the claim of the defendants that they are entitled to the full flow of the stream, but that they placed this pipe in the dam, not in any recognition of the rights of the plaintiffs, but as a courtesy to a neighbor. This bill is filed to enjoin the defendants from maintaining the cement basin or dam and from diverting more than one-half of the flow of the stream into the south branch..
After hearing all the testimony, the trial judge came to a conclusion as follows:
“From the testimony of 10, or perhaps 11 witnesses, there being about 13 witnesses sworn in the case, the court is satisfied that by a preponderance of the evidence it is established that the waters of this stream have, for a period of 40 years, or perhaps more, been divided upon the premises of the said Weller at the location where the divide now exists, about equally, the natural flow of the water going about one-half in a westerly direction and the other half south and across the premises of the said Augusta Brewer; and from the evidence it is clearly established by a preponderance of the evidence and more, by the great weight of the evidence, that this use of the water and the manner in which it has been so divided, has been so divided for 40 years or more.”
That a prescriptive right to the flow of water can be acquired by 20 years of user, is definitely estabalished in this State. Stock v. City of Hillsdale, 155 Mich. 375; Chapel v. Smith, 80 Mich. 112; Conklin v. Boyd, 46 Mich. 56; Gregory v. Bush, 64 Mich. 37 (8 Am. St. Rep. 797). A careful reading of this record has satisfied us that the circuit judge was fully justified in coming to the conclusion that he did, that by the clear preponderance of the evidence it was established that for a long period of years, more than 40, this water has befen divided at the point where the divide now occurs on the Weller farm, and that it did run, according to the great weight of the evidence, one-half through the west branch and the remainder through, the south branch. There is some testimony in the record which shows that before the construction of the cement dam which diverted a large part of the water which originally went through the west branch, into the south branch, there were certain old plank dams which had been placed in both branches of the stream, and it is contended that an actual examination of these plank dams showed, from the way in which they were placed and the notches cut in them, that a larger amount of water was diverted through the south channel than through the west channel, and it is urged that the court overlooked the positive physical evidence given by these old plank dams in making his determination as to how the water should be divided. It does not, however, satisfactorily appear how long the wooden planks were in the stream and for what purpose they were placed there, and the weight of evidence seems to conclusively show that from personal observation that the witnesses made of the water in question over this long period of years, it actually flowed one-half through the west branch and the other half through the south branch.
It would not be. profitable to here review the evidence in detail, and it is sufficient to say that upon the record as here made, we are satisfied that the trial judge reached a just and equitable conclusion in dividing the water one-half to each stream and granting the plaintiffs the relief they prayed for. See Hilliker v. Coleman, 73 Mich. 170; Rummell v. Lamb, 100 Mich. 424; Mastenbrook v. Alger, 110 Mich. 414.
The decree is affirmed, with costs to the plaintiffs.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
-3,
63,
22,
-8,
-2,
-9,
31,
49,
6,
43,
1,
-54,
41,
-4,
42,
-38,
-26,
-34,
-5,
17,
-8,
-53,
-22,
36,
-13,
27,
23,
-26,
-36,
22,
-7,
10,
-34,
2,
-11,
-15,
31,
-9,
12,
-22,
19,
-2,
8,
-19,
44,
10,
18,
-5,
15,
29,
23,
-12,
-4,
15,
-30,
-16,
-38,
-5,
-11,
-13,
-19,
0,
11,
0,
52,
62,
13,
-12,
-11,
-31,
-46,
5,
-15,
9,
59,
16,
18,
-29,
-5,
45,
-30,
57,
20,
3,
-42,
-31,
-56,
1,
65,
7,
27,
4,
-25,
-23,
6,
1,
-38,
17,
-37,
21,
2,
8,
41,
34,
11,
-26,
-28,
22,
-1,
-58,
-1,
9,
18,
-55,
11,
-51,
6,
-5,
-38,
8,
11,
-12,
91,
35,
-27,
-18,
-40,
-12,
-21,
15,
38,
-62,
6,
-31,
17,
31,
-26,
-22,
-27,
-22,
13,
4,
-44,
-49,
5,
35,
26,
-16,
18,
-1,
-53,
12,
-25,
5,
-21,
43,
31,
-40,
22,
16,
-8,
15,
-10,
-6,
-77,
51,
-46,
-18,
-15,
-12,
43,
28,
47,
-5,
19,
-24,
45,
-5,
10,
84,
28,
-3,
-3,
17,
-92,
-6,
-44,
-7,
29,
18,
4,
-81,
3,
-8,
-29,
67,
-13,
-12,
-37,
10,
36,
3,
25,
24,
25,
-37,
-3,
-7,
-28,
-26,
-6,
-7,
-6,
-25,
-54,
-24,
15,
20,
3,
-3,
64,
15,
30,
30,
-6,
-12,
21,
0,
17,
-50,
-3,
-65,
84,
40,
-43,
3,
7,
7,
-16,
27,
-28,
-6,
-23,
-33,
-4,
15,
-35,
7,
-18,
86,
-15,
-52,
-84,
17,
-3,
26,
-18,
5,
-25,
-15,
47,
25,
17,
35,
-34,
-8,
-32,
10,
-20,
-33,
-33,
11,
33,
-22,
-61,
-40,
12,
39,
-12,
48,
21,
9,
-22,
-6,
0,
0,
-3,
24,
-37,
39,
-15,
-8,
-42,
-23,
-1,
-2,
-19,
-17,
38,
-21,
14,
6,
8,
-25,
-15,
36,
-46,
17,
13,
-21,
7,
40,
-21,
-6,
-13,
23,
-2,
-10,
-29,
-12,
6,
-15,
-11,
43,
-80,
50,
29,
12,
22,
76,
-15,
-6,
-9,
7,
35,
-55,
25,
11,
-25,
14,
55,
17,
6,
34,
-5,
18,
-15,
15,
8,
-29,
-16,
4,
36,
34,
-37,
-17,
-5,
-7,
-20,
2,
6,
58,
-19,
5,
-2,
-16,
-9,
-34,
32,
7,
-20,
26,
-10,
20,
21,
-5,
-12,
20,
-56,
25,
26,
9,
5,
41,
57,
14,
-8,
20,
-29,
-27,
17,
-49,
14,
36,
-16,
-4,
19,
15,
-26,
-2,
25,
-11,
-6,
12,
-4,
49,
-15,
-32,
19,
-28,
22,
-63,
-8,
-18,
7,
10,
23,
28,
17,
7,
35,
11,
13,
-30,
31,
-41,
59,
-14,
-2,
43,
-8,
27,
-4,
46,
1,
35,
-35,
5,
-6,
-10,
-33,
29,
19,
-16,
-16,
30,
-36,
6,
24,
-21,
-2,
21,
-16,
22,
-19,
70,
15,
0,
18,
4,
-39,
28,
-8,
-54,
-30,
-11,
-14,
-12,
12,
2,
-14,
60,
36,
-3,
-11,
-20,
-7,
25,
-5,
38,
50,
-22,
-48,
-4,
-23,
-36,
-22,
29,
32,
3,
32,
24,
-26,
0,
49,
-44,
-13,
-31,
54,
12,
-12,
-26,
14,
-18,
2,
40,
-11,
45,
-12,
51,
11,
-39,
10,
-14,
-61,
23,
36,
-18,
-9,
39,
6,
-13,
-41,
0,
4,
19,
24,
-31,
33,
24,
28,
-23,
-63,
10,
-4,
-41,
4,
0,
-19,
-8,
-11,
-9,
61,
4,
-36,
50,
-39,
-74,
-15,
-49,
-7,
-5,
24,
12,
-8,
-7,
-47,
-68,
-22,
-40,
10,
-33,
-16,
-46,
45,
5,
31,
-26,
6,
10,
30,
24,
19,
2,
-2,
-15,
-27,
-18,
-2,
50,
-28,
-56,
18,
-49,
-21,
55,
10,
-2,
-20,
9,
-49,
7,
-9,
-23,
55,
-36,
59,
-6,
45,
34,
12,
-19,
-9,
-4,
12,
50,
-9,
25,
-48,
-2,
14,
15,
0,
44,
60,
2,
15,
-52,
11,
-3,
13,
0,
3,
4,
-33,
52,
-7,
43,
-22,
23,
-33,
-28,
-35,
-19,
29,
5,
12,
38,
-66,
48,
-6,
-37,
-44,
4,
-56,
-44,
0,
0,
-41,
-4,
-19,
33,
-8,
34,
4,
-33,
16,
-14,
26,
-28,
26,
-8,
28,
12,
-35,
6,
14,
10,
-9,
-20,
23,
-15,
13,
34,
5,
-73,
60,
81,
12,
33,
2,
9,
1,
33,
38,
22,
51,
49,
21,
-31,
12,
-12,
8,
17,
3,
-9,
-24,
50,
-31,
-43,
-9,
2,
21,
10,
-25,
-3,
25,
-78,
16,
-4,
12,
-12,
39,
20,
4,
-16,
3,
-27,
23,
35,
-18,
7,
-36,
-42,
0,
-20,
-49,
-37,
21,
57,
-19,
57,
52,
-23,
29,
42,
-2,
-14,
-65,
-73,
34,
-57,
-14,
4,
13,
19,
34,
-14,
-29,
7,
12,
-11,
36,
-28,
-1,
-5,
-2,
-4,
-36,
-10,
37,
-10,
-52,
-41,
-14,
-49,
4,
-41,
-19,
26,
-31,
13,
-11,
-44,
17,
-1,
-39,
-29,
33,
-17,
31,
-70,
-15,
-54,
-21,
-8,
37,
1,
0,
13,
-63,
-60,
-41,
-18,
-16,
22,
18,
0,
20,
-8,
-3,
47,
44,
67,
26,
-19,
-9,
0,
-31,
18,
-13,
39,
41,
-48,
9,
0,
-32,
39,
-4,
30,
-28,
-27,
23,
-8,
-18,
57,
25,
-3,
-20,
-9,
42,
-34,
-27,
20,
26,
-34,
11,
-2,
-63,
9,
-10,
-23,
-1,
-45,
-25,
-3,
14,
25,
-1,
12,
-11,
-20,
-21,
19,
27,
-11,
-25,
10,
-36,
51,
21,
-4,
-5,
-17,
8,
0,
0,
-28,
-34,
15,
-38,
-9,
-69,
-10,
-5,
23,
-69,
-5,
14,
-13,
-21,
0,
-1,
9,
-32,
25,
-1,
23,
17,
42,
45,
-6,
27,
17,
-10,
26,
1,
-18,
-26,
0,
-31,
-29,
26,
-17,
-46,
-24,
-14,
5,
49,
42,
-22,
6,
-65,
-1,
-27,
0,
-1,
-37,
-6,
36,
27,
-6,
-4,
-23,
-52,
-6,
-22,
-3,
-19,
26,
-11,
-50,
17,
-19,
2,
28,
46,
-50,
35,
-40,
25,
-6,
-38,
50,
38,
48,
32,
-1,
26,
41,
-18,
25,
16,
27,
21,
-27,
-6,
8,
-28,
-25,
-6,
30,
10,
5,
-10,
-40,
-7,
42,
2,
55,
-63,
-45,
0,
-26,
38,
-14,
7,
73,
19,
-71,
-7,
-69,
-56,
31,
-13,
25,
-64,
-27,
-37,
17,
-7,
44,
48,
24,
45,
27,
-54,
-6,
-54,
-38,
9,
-1,
-30,
74,
59,
0,
5,
17,
-22,
-26,
-39,
7,
50,
12,
2,
12,
13,
-5,
16,
14,
18,
10,
-33,
32
] |
Moore, J.
Plaintiff filed her bill for divorce in this cause on September 80, 1916, alleging extreme cruelty and fraud on the part of defendant in the procuring of a property settlement from her, and praying for appropriate relief. Defendant answered and filed a cross-bill alleging that the parties never were husband and wife, and praying that the trust fund of more than $30,000 mentioned in the property settlement be restored to him, or if the court should find the parties to be husband and wife, that a divorce be granted him on the ground of extreme cruelty. Both parties sought the custody of the minor child. The court made a decree dismissing the bill for divorce, adjudging plaintiff never to have been the wife of defendant, cancel-ling the settlement which had been agreed upon after their separation,' giving to defendant the custody of the minor child, restraining plaintiff from the use of the Goodspeed name, and refusing an allowance of attorneys’ fees. The case is brought here by appeal.
The printed record of more than 1,900 pages presents an unsavory story which it is neither possible or desirable to relate in detail. In the fall of 1905 the parties became acquainted with each other in Grand Rapids. Mr. Goodspeed was a widower 46 years old with two children. The plaintiff was an undivorced woman 25 years old, the mother of two children. The acquaintance ripened into intimate friendship with amazing rapidity. During the win ter of 1905 and 1906 the parties agreed to be married as soon as the husband of the plaintiff obtained his divorce in Chicago. The plaintiff claims that defendant agreed to pay the expenses of the Lawshe divorce case, and assumed the whole responsibility therefor; that on April 5, 1906, after an interview with an attorney of Chicago (now a municipal judge) to ascertain the status of the divorce case, that the defendant told plaintiff they could get married anywhere outside of Illinois; the defendant denies this and says he got all his knowledge about the divorce from the plaintiff. The testimony of the Chicago attorney was taken, and, while it is not very conclusive, so far as it has probative value, it tends to support the claim of the plaintiff. April 6, 1906, the parties went before a clergyman at Laporte, Indiana, and a marriage ceremony in due form was performed. The record shows such relations existed between them at this time that it was high time they were married. They returned to Grand Rapids and went to keeping house in a home owned by the defendant. It turned out later that the Chicago divorce was not granted until May 4, 1906, and it is conceded the ceremony performed at Laporte did not result in a legal marriage.
The first question presented is, Did what was done subsequently create the relationship- of husband and wife? There is a great mass of testimony to the effect that they regarded themselves and were generally regarded as husband and wife. We quote the following from the testimony of defendant:
“I was always a great home man; I loved my home. Very shortly, almost immediately upon our return to Grand Rapids after the marriage, we attended a ladies’ aid society at St. Mark’s church at North Park and met a great many of my friends and acquaintances from St. Mark’s. I introduced her to quite a good many people as my new wife. We lived in the relation of husband and wife during the entire seven years except the last year. The year prior to our separation we lived apart. We agreed to disagree.”
It was at about this time that a property settlement was agreed upon from which we quote:
“Whereas because of certain irreconcilable differences between John W. Goodspeed, of Grand Rapids, Michigan, party of the first part, and Maude I. Good-speed, his wife, of the same place, party of the second part, the said Maude I. Goodspeed has recently left the home of said John W. Goodspeed, * * *
“Now therefore this agreement made and entered into this 18th day of June, in the year one thousand nine hundred and thirteen, between said John W. Goodspeed and Maude I. Goodspeed, witnesseth as follows:
“The parties to this agreement are husband and wife and were married in 1906, Mrs. Goodspeed, at the time she married had one daughter living by her previous husband; the daughter’s name is Loraine Lawshe. For the past three years Loraine, who is now fourteen- years of age has resided and made her home with Mr. and Mrs. Goodspeed and has gone by the name of Loraine Goodspeed, and has been supported entirely by Mr. Goodspeed.
“The parties have one child as the issue of their marriage, a son named John W. Goodspeed, Jr., now six years old.
_ “The parties since their marriage have lived in the city of Grand Rapids, where the husband lived for many years before their marriage. The husband is now fifty-three years of age and the wife is now thirty-two years of age. * * *
“Now, therefore, it is mutually agreed by and between the said John W. Goodspeed and Maude I. Good-speed, that they having separated and ceased all marital relations with each other, that the said John W. Goodspeed party of the first part, will make and execute under his hand, his certain promissory note in writing bearing date the eighteenth day of June, A. D. 1913, for the sum of thirty thousand dollars payable to the said party of the second part. * * *
“That the said John W. Goodspeed, party of the first part, shall also pay to the second party the sum of six thousand dollars for the purchase of a home and furnishings therefor in the city of Grand Rapids, the title of said property to be in the name of said Maude I. Goodspeed alone, within five years from this date.
“It is further understood and agreed that Maude I. Goodspeed shall have the right to remove from the former home of the parties and retain as her own, the following articles; * * *
“Said Maude I. Goodspeed agrees that she shall and will not at any time hereafter claim, demand or require any support or maintenance from him, the said John W. Goodspeed, other than the amounts herein-before provided. * * *
“And the said Maude I. Goodspeed by these presents and in consideration of the premises, forever releases to the said John W. Goodspeed all and all manner of claims and demands upon interest in the property and estate of the said John W. Goodspeed, of every name and nature which she now has or hereafter may have as the wife of him, the said John W. Goodspeed, or under the intestate laws of Michigan or any other State, or otherwise or on any other account whatsoever. * * *
“The provisions of these presents shall continue whether or not either party hereto shall procure or attempt to procure a divorce from the other, and no decree of divorce shall change the property rights from the manner herein provided; and in case a divorce is hereafter obtained by either party, this settlement shall be in full of alimony, permanent or temporary.”
The divorce was granted May 4, 1906. One year and eighteen days thereafter a boy was bom that was afterwards named John W. Goodspeed. On the 11th of April, 1917, the defendant, though he wants the marriage relation discredited, acknowledged before a notary public in writing—
“that the male child, John W. Goodspeed, Junior, to whom my reputed wife Maude I. Goodspeed heretofore gave birth on the 22d day of May, 1907, is my child, and that I am the father thereof.”
This acknowledgment was filed with the register of probate for Kent county. It is said it was done under 4 How. Stat. (2d Ed.) § 10962 (3 Comp. Laws 1915, § 11798).
There were many letters introduced in evidence addressed, My Dear Wife, and containing expressions of endearment such as sometimes characterize the correspondence of married people when they are temporarily absent from each other. Deeds and other papers were signed and acknowledged by the plaintiff as the wife of the defendant.
The question presented is not a new one in this State. It was considered in Barker v. Valentine, 125 Mich. 336 (51 L. R. A. 787), where there is a considerable collation of the authorities to be found. It is also considered in the case of Medland v. Houle Bros., 202 Mich. 532, in which an opinion was handed down July 18, 1918. These cases are controlling of the instant case, and it should have been decreed that the parties were husband and wife, and it will be so decreed in this court.
It was stated on the oral argument by one of the counsel for the defendant that if we found the parties were husband and wife that the settlement should stand. On the other hand it is claimed that when the settlement was procured defendant was a much wealthier man than he represented, that instead of being worth but $100,000 as he stated, that he was worth two or three times that amount, and that the settlement was procured by fraud and should be very materially increased. A reading of defendant’s testimony satisfies us that he was and is worth much in excess of $100,000. Plaintiff was represented by able counsel who made some investigation of Mr. Good-speed’s financial standing, and the conferences in relation to a settlement were postponed from time to time to enable him to do so. While he was not aided in these investigations by the defendant or his counsel he conducted them until he was satisfied he was worth $250,000 or $300,000. We now quote some of counsel’s testimony:
“Q. Did you have any talk with either Mr. Good-speed or Mr. Bradfield who represented him, as to starting a suit?
“A. I think I talked to Mr. Bradfield about that, yes, at various times.
“Q. What talk did you have with him?
“A. My recollection is the substance of it was, that I was not anxious to begin a lawsuit in this matter on account of the nature of the testimony and the allegations that would have to be made, and that I was anxious to get it settled out of court for that reason.
“Q. Is that about all that there was to the conversation?
“A. No, I wouldn’t say it was all; I think there was some talk — this particularly was in my mind; we had a lot of interviews.”
It is fair to assume that Mrs. Goodspeed and her counsel considered all phases of the case before entering upon the written agreement. The financial settlement contemplated that divorce proceedings might be brought and if brought it did not justify an attempt to repudiate the contract.
The record shows the plaintiff brought nothing to Mr. Goodspeed and it does not appear that she was instrumental in helping to acquire the property. It is apparent that the desire to avoid litigation was an important factor in bringing about the settlement; that has not been done, not only has the defendant repudiated the relationship' of husband to the mother of his boy, but he sought an opportunity through litigation to repudiate a solemn written agreement entered into by him. If Mrs. Goodspeed is required to pay the expenses of this unfortunate litigation it will make a great inroad upon the amount of the settlement. We think an allowance ought to be made large enough to enable her to pay all the costs ’of her litigation and keep the funds agreed upon in the settlement. We fix this amount at three thousand dollars which shall be in lieu of all other costs and the settlement shall in all other respects stand.
We now approach the most difficult question in the case. Does a cause for divorce exist, and, if so, in whose favor. The plaintiff says she cannot live with the defendant because of his conduct, she was so miserable and unhappy; we quote from her testimony:
“Then we had had a quarrel over some little thing and I was just all worn out and I said I wanted to die. So there was two different times that I took an overdose of headache powder; one time I nearly died when I took it; he worked over me I guess for a long time; —he said he did — because when I came to, when he got me to, it had been such a shock to him that he fainted. I took this overdose intentionally; I wanted to die. I took it for that purpose, to get out of my troubles. There was another occasion when I .was tempted to commit suicide. I turned on the gas that time. I just felt as though there was nothing to live for. That was in the nighttime. I turned on the gas and I locked my door and I started to get drowsy and I started to dream. It seemed I got to dreaming about the baby and I kind of got myself to realize that I couldn’t leave him and I got up then and opened the window and turned off the gas. It was the thoughts of the baby and my starting to dream about him that brought me back. It was my ill health and the treatment I received from my husband that caused me to attempt suicide. My husband knew about it. When I took the overdose of headache powder, I don’t know how he found it out, but I know when I came to he was working over me and making me drink mustard water. I threatened something of this kind lots of times. Mr. Goodspeed did not take it seriously. I told him I wanted to die and I told him I would kill myself some time. One time in reply to my statement of that nature he said if I wanted to die I better go and die. He made that remark to me. That was before I tried to do it. The turning on of the gas was not the first time. I had taken an overdose of headache medicine twice before that. I don’t remember just when this gas episode was with respect to the time I separated from Mr. Goodspeed, but I know it was during the time when I was so unhappy.
“Q. On those occasions when you were threatening Mr. Goodspeed. that you would put yourself out of the way did you make any threats against John, Jr.?
“A. Yes.
“Q. Just tell us about that?
“A. The first time that I — I said that if I died I would take the baby with me, I wouldn’t leave the baby to him; that I knew what it was, I was brought into the world and thrown on the world without a mother, and I wouldn’t leave my baby in the world without me.
“Q. But you never did make any attempt to take the child with you?
“A. No.”
The defendant testified he had rather go to jail than live with plaintiff. The thing that troubles us is not, Is a cause for divorce shown? but, Is the other party so free from fault that the divorce should be granted? We will first consider the question, Has plaintiff made a case which entitles her to a decree of divorce? She charges brutality on his part in his physical relations with her. The plaintiff testified in great detail as to this alleged brutality. Defendant in the most unequivocal language denied her statements. If the charges made by the plaintiff are true it is difficult to account for her willingness as testified by her to renew her relations of sexual intercourse with defendant after her separation from him and after the property settlement. She says this occurred upon country roads when automobile riding, at her house, at a leading hotel in Grand Rapids and at two prominent hotels in Chicago. The trial judge had the advantage of seeing the witnesses. We agree with him that the plaintiff has failed to sustain her averments of cruelty.
Has the defendant shown a cause for divorce? He produced a number of witnesses whose testimony if believed showed a degree of moral laxity utterly incompatible with the marriage relation. If any testimony was lacking in this regard it is supplied by the testimony of the plaintiff herself. Her testimony in relation to the kissing of men, to making them presents, to entertaining some of them for days at a time at her house, or in her apartments at Chicago, shows such a disregard for the proprieties and conventionalities observed by respectable people that when taken in connection with her testimony of her relations with the defendant before marriage, and after she separated from him as to establish a cause for divorce.
We come to the question of the custody of the boy. He is now more than 11 years old. He should be given into the custody of the father. The mother undoubtedly loves him and some arrangement must be made allowing her to have him with her at proper times and occasions. If counsel cannot agree upon this detail it will be decided when the decree is settled.
The decree of the court below is reversed and one will be entered here in accordance with this opinion.
Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. | [
-1,
17,
-12,
23,
-38,
12,
31,
-46,
63,
-13,
-26,
-16,
-5,
3,
5,
-4,
-28,
-31,
35,
-39,
-43,
18,
2,
-14,
4,
17,
31,
-63,
-16,
26,
9,
33,
-28,
15,
4,
-39,
13,
-15,
7,
0,
-45,
-44,
6,
45,
1,
26,
17,
10,
-16,
-29,
-33,
-105,
12,
-3,
-12,
-22,
-35,
5,
-37,
-35,
11,
-9,
52,
-26,
1,
-44,
33,
19,
-28,
-22,
19,
-26,
12,
-38,
-41,
-18,
14,
-21,
-50,
-5,
31,
-29,
-1,
-3,
-48,
12,
-17,
5,
7,
31,
-1,
79,
-42,
18,
25,
-5,
-25,
11,
30,
57,
-43,
-18,
-59,
-2,
20,
34,
7,
-3,
-20,
-1,
10,
-15,
43,
4,
43,
-30,
-16,
-51,
48,
-62,
-4,
12,
-9,
-1,
23,
17,
-57,
8,
20,
19,
-8,
7,
-2,
-6,
-27,
-49,
18,
-16,
-4,
-31,
-24,
-18,
18,
18,
1,
69,
-61,
-1,
-22,
-35,
-24,
0,
46,
18,
53,
-6,
-4,
-26,
32,
-13,
2,
0,
-8,
-35,
-27,
-11,
3,
-6,
2,
-8,
-62,
10,
-50,
-2,
19,
-7,
-35,
19,
-30,
4,
67,
61,
8,
-23,
-23,
-14,
18,
-13,
-47,
6,
31,
-47,
-24,
-3,
10,
21,
18,
-39,
-7,
-24,
25,
-44,
-5,
14,
5,
-17,
48,
23,
-14,
13,
36,
17,
7,
-17,
-30,
48,
11,
-53,
-40,
-38,
5,
-24,
15,
42,
-27,
-55,
-7,
-35,
10,
-23,
-48,
18,
-29,
-26,
-26,
-24,
-5,
9,
1,
24,
-43,
2,
-9,
-18,
48,
-14,
-39,
-1,
-4,
53,
-23,
40,
-46,
30,
-7,
3,
14,
-11,
30,
14,
-26,
36,
-15,
-37,
36,
-5,
18,
-9,
10,
-22,
22,
1,
28,
-28,
15,
-45,
-36,
54,
-39,
35,
18,
4,
-2,
15,
11,
-62,
26,
-24,
26,
-10,
-20,
-17,
-8,
-34,
19,
42,
5,
0,
-1,
33,
-22,
-64,
9,
-85,
-12,
-33,
7,
-45,
14,
-20,
13,
6,
11,
-23,
52,
42,
-26,
-8,
-20,
25,
32,
13,
-51,
-45,
1,
10,
42,
-8,
-12,
52,
-51,
47,
47,
-52,
13,
-29,
22,
37,
11,
-48,
0,
28,
1,
29,
-21,
1,
28,
-8,
51,
2,
-74,
-33,
-16,
28,
-19,
10,
36,
-36,
4,
12,
-23,
22,
2,
-32,
38,
38,
0,
-49,
21,
41,
21,
28,
-32,
28,
9,
0,
-4,
27,
8,
13,
-10,
-26,
21,
57,
40,
-13,
8,
-31,
6,
-1,
-43,
27,
7,
5,
43,
-16,
-18,
-7,
-73,
-14,
31,
22,
12,
-5,
-22,
-18,
-12,
6,
-8,
16,
18,
-36,
0,
-10,
63,
-13,
-16,
-68,
51,
21,
17,
45,
9,
7,
-1,
9,
23,
-13,
45,
-18,
2,
36,
32,
10,
65,
-13,
-42,
23,
-16,
-5,
20,
71,
-14,
19,
-21,
12,
-38,
0,
43,
13,
37,
-14,
29,
43,
-19,
-23,
8,
29,
40,
-17,
22,
-15,
5,
-1,
0,
14,
-20,
-4,
-24,
15,
-7,
3,
-25,
15,
15,
29,
12,
-2,
-5,
-55,
-48,
34,
30,
8,
-37,
15,
-31,
-12,
-36,
-27,
20,
-32,
-5,
35,
6,
-12,
0,
-13,
-19,
4,
-16,
11,
48,
12,
18,
13,
-2,
62,
-16,
52,
6,
-37,
4,
13,
-31,
3,
24,
26,
10,
-23,
21,
32,
14,
-21,
24,
18,
96,
-34,
-13,
-4,
-10,
30,
-52,
-13,
34,
15,
2,
36,
1,
-9,
14,
43,
47,
20,
30,
45,
18,
-44,
-8,
7,
68,
-11,
-37,
-27,
-14,
-1,
-14,
-2,
-29,
-3,
-6,
-63,
-11,
-59,
47,
6,
44,
-33,
1,
-4,
-59,
34,
40,
-43,
-23,
8,
9,
-17,
-23,
52,
-3,
-18,
-54,
-26,
13,
-17,
-20,
83,
9,
18,
-6,
-36,
24,
-5,
51,
-34,
-3,
6,
14,
1,
9,
-55,
-23,
-30,
-17,
17,
-39,
14,
24,
-38,
0,
36,
-26,
22,
36,
8,
-3,
-15,
-50,
-13,
2,
62,
2,
0,
13,
5,
23,
36,
-8,
19,
18,
2,
-17,
39,
9,
-12,
-24,
16,
5,
-3,
-4,
51,
-21,
16,
10,
32,
-56,
7,
-35,
5,
-6,
-1,
-16,
28,
-11,
-14,
51,
0,
-9,
6,
-9,
-41,
5,
87,
26,
5,
51,
1,
-14,
-22,
-30,
-19,
69,
-14,
44,
-43,
-31,
23,
34,
14,
26,
15,
-19,
40,
12,
-9,
28,
60,
-17,
22,
-13,
-23,
-54,
50,
-42,
-26,
7,
-33,
22,
2,
-8,
8,
-32,
11,
-11,
15,
-6,
0,
-48,
-15,
-32,
8,
29,
-34,
-42,
25,
54,
-21,
9,
-41,
-40,
21,
50,
21,
-29,
2,
3,
35,
-16,
-42,
18,
1,
-35,
-15,
13,
58,
25,
-28,
-52,
-17,
8,
-15,
-51,
26,
11,
-10,
-7,
11,
-5,
50,
3,
0,
-13,
5,
73,
17,
8,
-13,
-14,
-27,
-7,
15,
18,
-44,
-15,
11,
19,
-34,
20,
-12,
-21,
13,
-39,
2,
8,
27,
-6,
2,
34,
-29,
4,
0,
-25,
8,
5,
-26,
54,
-1,
53,
-23,
-37,
-16,
15,
-6,
-24,
54,
-23,
-49,
7,
-23,
2,
23,
-11,
-40,
-8,
13,
-5,
8,
3,
32,
-11,
16,
-3,
-26,
-60,
31,
-42,
-12,
-9,
-33,
28,
-4,
-38,
29,
35,
-57,
-35,
22,
-26,
-29,
16,
-28,
5,
-4,
27,
16,
28,
-5,
-48,
53,
-2,
-8,
-11,
-10,
44,
24,
21,
14,
5,
-8,
7,
-27,
-38,
21,
-13,
-10,
-36,
19,
-1,
-55,
-20,
-87,
-57,
-41,
-19,
0,
-1,
-4,
51,
-30,
-40,
24,
-75,
9,
12,
4,
27,
-21,
3,
0,
-23,
-24,
-15,
55,
-2,
32,
76,
8,
-24,
0,
-43,
5,
75,
-19,
-19,
29,
-13,
0,
16,
-19,
-22,
17,
-1,
-4,
13,
-25,
-27,
16,
8,
-20,
22,
-34,
-34,
-11,
-32,
8,
-20,
33,
-33,
-34,
22,
-22,
-11,
40,
12,
-1,
33,
27,
-45,
69,
34,
-9,
-4,
-13,
-7,
13,
-10,
19,
40,
14,
-1,
-36,
-15,
-24,
5,
-10,
12,
-37,
-38,
48,
-19,
-2,
18,
51,
-68,
28,
-19,
3,
-20,
26,
48,
23,
-21,
-16,
1,
-42,
37,
51,
9,
8,
-27,
-41,
-56,
-22,
-7,
17,
24,
20,
16,
-1,
-6,
21,
-25,
32,
11,
23,
-14,
-12,
-51,
38,
38,
10,
-21,
23,
9,
-58,
-30,
-15,
-6,
-30,
-43,
-16,
18,
25,
11,
-23,
1,
59,
-18,
-1,
-9,
-1,
76,
8,
-22,
35,
-47,
-34,
-27,
-43,
6,
17,
29,
46
] |
Kuhn, J.
The families of John Ommen and of his neighbor, George Suntken, who lived on their farms near Colfax, in Illinois, left their homes on the morning of September 8,1917, in two automobiles, an Overland and a Ford, for the purpose of motoring to Sun-field, Michigan, to pay a visit to the family of Jill Ommen, a brother of John Ommen. The course of their travels led them through the village of School-craft, in Kalamazoo county, in this State, which village they approached from the south along Grand or Main street, so called, shortly before 4 o’clock in the afternoon of Sunday, September 9th. Grand street in Schoolcraft, which is a village of 800 inhabitants, is crossed by the tracks of the defendant railway company within the corporate limits, but at the very southerly portion thereof. Two main tracks run in a southwesterly and northeasterly direction, the southerly track carrying eastbound traffic and the next northerly track, westbound. These main tracks are crossed by a single main track of what was formerly a division of the Lake Shore & Michigan Southern Railway, now the New York Central Lines, and the intersection is at the southeasterly limit of the village, the crossing being at right angles. Situated in the northeast angle formed by this intersection is the signal or interlocking tower, from which are operated the derailing and signal devices with reference to safety at this railroad crossing or diamond. Defendant’s depot and freight house combined is situated just north of the westbound main line and just west of the right of way of the Lake Shore. Four tracks cross Grand street, the two southerly being the main line above referred, to, the third a “Y” used as an interchange track between the defendant company and the Lake Shore railway, and the northerly track is a stub switch which serves an elevator and a coal shed, which are located to the north of the tracks. South of the crossing, the land is used for farming purposes, with the exception of two or three lots south of the tracks and east of the crossing, upon which there are dwellings. There are houses some distance north of the crossing. As the automobiles approached the Grand street crossing, and when some 50 or 80 rods south thereof, the occupants observed a freight train moving slowly over the crossing in a westerly direction. As the machines came to the crossing, it was blocked by this freight switching on the so-called interchange track. .The Overland car was driven by John Ommen, who was sitting on the left side of the forward seat. John Suntken sat at his right. Theda Ommen sat at the right of the rear seat, and next to her was Marie Suntken, then Edward Suntken, and on the left side of the rear seat, Ludwig Ommen. The remainder of their party was in the Ford car, which was following them. The Overland car stopped some 12 to 20 feet south of the eastbound main track, and the motor was shut off. Witnesses for the plaintiff, who were members of the party, testified that in their judgment the stop at the crossing was four or five minutes, and the crossing was then cut, and thereupon John Ommen started the engine of his car, which was equipped with a self-starter, and attempted to pass over the crossing and was struck by the pilot of defendant’s eastbound passenger train No. 8 just as the front part of the hood of the machine reached the southerly rail. The driver was instantly killed, Theda Ommen, the mother, was injured, and Ludwig so severely injured that he died the same evening at 9 o’clock. This action is brought by the administrator of the estate of Ludwig Ommen, deceased, seeking to recover damages under the survival act, so-called, for the personal injuries sustained by the decedent in the collision above detailed. The issues involved were submitted to the jury and resulted in a verdict for the plaintiff in the sum of $6,504.70.
The errors relied upon by counsel for defendant are thus stated in their brief:
“1. Refusal of the trial judge to charge the jury that decedent was guilty of contributory negligence.
“2. Refusal to charge the jury that there was no negligence in the speed of No. 8 as it approached Grand street.
“3. Refusal of the trial judge to give defendant’s 4th and 5th requests to charge, and in instructing the jury that it was for them to say whether or not the bell and whistle were sounded in a reasonably prudent manner, if they should find that it was sounded not less than 40 rods from the crossing.
“4. In refusing to charge the jury that defendant was not guilty of any negligence and in refusing to grant a new trial on the ground that the verdict was against the great weight of the evidence.”
Decedent at the time of the accident was a minor just past 18 years of age, so that the negligence, if any, of John Ommen, the driver of the car, is not under the law of this State to be imputed to the decedent. Hampel v. Railroad Co., 138 Mich. 1 (110 Am. St. Rep. 275); Donlin v. Railway, 198 Mich. 327. But the court submitted to the jury, and we think properly so, the question whether or not the decedent, Lud wig Ominen, was guilty of contributory negligence himself, having arrived at the age of discretion; that is, whether or not, under all the circumstances of the case, considering his position in the car, his age,’ and the situation in which he found himself, he exercised that care and prudence which a reasonably prudent person under the circumstances should have exercised, the law placing upon him the duty to exercise ordinary care to avoid injury under the circumstances. The trial judge charged the jury as follows:
“Every person is supposed to use his senses, both of sight and hearing, in self protection whenever there may be reasonable cause to apprehend danger. He must do all that an ordinarily prudent man ought to do or might be expected to do in any given circumstances. Thus, a railroad track is, in itself, a warning of danger, and every person should stop, look and listen before attempting to cross. Failure to do this is held to be negligence in and of itself, as a matter of law. So strongly has this rule been enforced, that even where there is a view of the track only for a short distance, and the approach of the train could have been seen by stopping, looking, and listening before actually reaching the track, the traveler in the highway has been held guilty of contributory negligence, as a matter of law, when injured in such a case, unless he is misled by flagman, trainmen, or trains, or otherwise. As I have just said to you, a person approaching a railroad track, a railroad crossing, must stop, look, and listen,, and must use his senses of sight and hearing. If, however, his vision, his view, is obscured by smoke or steam, or both, after stopping and after endeavoring to use his sense of sight, and being unable to do so, he has a right, I say, to rely upon his sense of hearing, but his duty to use his sense of hearing is greater than if he had the full use 'of his sense of sight. In other words, a man is not absolutely barred from crossing a railroad track because he cannot see, because his vision may be obscured by steam or smoke or both, but, if his vision is obscured so he is unable to see, then his duty to use his other senses is greater, he must exercise more care and more caution in the use of the sense, the use of which is available to him.”
It seems to be undisputed that in the position that the car occupied when it was stopped and where it remained for four or five minutes, the view of the occupants of the car to the west and along the tracks of the defendant railway was unobstructed, under ordinary conditions, for a considerable distance and that they could have easily seen an approaching train at a sufficient distance to have readily avoided any accident. It is, however, plaintiff’s claim that on the day in question, during all of the four or five minutes that the cars were standing waiting for the freight train to open the crossing, the view of the occupants of the car was continually obstructed by smoke from the freight engine and from a fire in a dump heap three rods west and a rod north of the crossing; that the atmosphere was dreary and foggy and that the smoke was carried by the wind in a southwesterly direction down and across the tracks. It is strenuously urged .by counsel for the appellant that all this testimony with reference to the smoke is simply an afterthought, and that in view of the fact that at the inquest which was held the morning after the accident, where no mention was made by any of the witnesses called as to smoke obscuring their vision, it was strange that the matter was first called out upon the trial of this case. Eight witnesses were sworn sustaining the claim of the plaintiff to the effect that the smoke obstruction was there and continued for the period of four or five minutes at least, and among these witnesses were Emil Decker and Charles Decker, both of whom, as far as the record discloses, are disinterested witnesses, being strangers to the deceased and his family. They were walking down the track approaching the crossing from the west and were some distance west of the crossing when the passenger train passed them. They both testified to the presence of the smudge and the smoke coming from the freight engine and from the bonfire, which created a smudge smoke, and that the smoke came down and spread out close to the ground. It was the further contention of the plaintiff that after the freight train had opened the crossing, a brakeman on the cars made a motion toward them, as if inviting them to cross. The credibility of all of these witnesses and the value to be placed upon their testimony was for the jury to determine. In view of all these circumstances and the situation in which the occupants of the car found themselves at the time of the accident, we cannot say that, as a matter of law, plaintiff’s decedent can be held to be guilty of contributory negligence, but we think it was clearly a question for the jury to determine. We think that the charge of the court to the jury submitted this question with instructions as favorable to the defendant as it was entitled to. See McDuffie v. Railway Co., 98 Mich. 356; Wilbur v. Railroad Co., 145 Mich. 350; Welch v. Railroad Co., 147 Mich. 220; Amanta v. Railroad Co., 177 Mich. 280.
2. The learned trial judge charged, with reference to the speed of the train, as follows:
“It is the theory and claim of the defendant, that the defendant’s employees upon the passenger train were not guilty of any negligence; that they operated the train at a proper and reasonable speed under the particular circumstances; that the commerce of the country demands rapid transit, and that the speed of the passenger train was such as careful and prudent men, engaged in railroading, would maintain under just such circumstances. Right here I want to say to you, there does not seem to be any question about the rule with reference to speed in the country, upon purely country crossings. There is practically no limit to it, and the courts recognize it. It is not negligence for a railroad to operate through the open country, over ordinary country crossings at. a rate of forty, fifty, or sixty miles an hour. All train schedules are planned and framed upon practically that basis, and the business and commerce of the country demands that sort of speed, the public recognizes it, and the courts hold in view of that the public must also recognize, when they approach a railroad crossing in the country at any point, that they may expect and should expect, at any time, a passenger train, or a freight, for that matter, to-be coming along at the rate of forty or fifty or sixty miles an hour, and they are all charged with notice of that.
“The same rule I do not understand to obtain in cities or villages or congested communities. When trains leave the open country and approach settled districts, then it becomes a question of what care and caution ordinarily prudent men would exercise under such circumstances. * * *
“Now it is for , you to say what the character of this particular crossing was; if it was, to all intents and purposes an open country crossing, then you would not be at liberty to consider the question of the high rate of speed as an element of negligence. It is for you to say what its character was, what the surroundings were, what the conditions presented there were on the occasion in question; how much of a settlement there was there; how much traffic there was there; what.do the facts show as to what the conditions were? You have heard the testimony; you must say what it is.
“Even at that crossing, or at any crossing, it would not follow that a speed of thirty-five or forty, or forty-five miles per hour would, in and of itself, be negligence, or be negligent. It would not, as a matter of law, standing by itself, constitute negligence. It is a question to be determined in view of the facts and circumstances surrounding it, and the conditions presented. It must be found in the light of those surrounding circumstances and conditions, and you must say whether or not, in the light of those circumstances and conditions, this train was operated not only with reference to speed, but with reference to signals, in a prudent manner, and in a manner that ordinarily prudent men would have operated it under the same circumstances, or in an imprudént manner, or a careless, reckless manner. * * *
“A high rate of speed is not, in itself, negligence. The question for your determination is whether or not those in charge of the passenger train on approaching the crossing, operated the train with reasonable and ordinary care. In determining this, you are at liberty to consider all the testimony as to the speed of the train and warning by bell and whistle, or lack thereof, and in fact, all other facts and circumstances that have any bearing upon it.
“In determining what would amount to reasonable and ordinary care in the operation of a passenger train on approaching a crossing, you may and should consider the conditions as they existed at the crossing so far as they were apparent to those operating the engine of the passenger train, or in so far as those conditions should have been apparent to those operating that engine had they been in the exercise of reasonable and ordinary care.”
It is the contention of counsel for the appellant that the submission of the question of speed was error, because it is their claim that the crossing in question was, in effect, nothing more than an ordinary country railway crossing and that there were no special circumstances and conditions existing at this crossing that would bring it from without the rule that upon an ordinary country crossing there is no legal limitation upon the rate of speed at which a train might be operated. With this contention we cannot agree. We think that the situation here presented was vastly different from those which surround the ordinary open country crossing. The crossing was virtually in a railroad yard. There was a freight train engaged in switching operations. There were four sets of tracks across the street at the point of crossing. The depot was about 1,800 feet east and was in plain sight of the crossing, and the crossing was upon one of the main traveled streets of the village of Schoolcraft, about 20 rods south of the business section of the village and within the village limits. It is true that there was no village ordinance with reference to the speed of trains operating across this crossing, but we do believe that the situation presented brings it within the rule which says that where there are special circumstances and conditions which should, and ordinarily would, induce an ordinarily prudent person to exercise greater caution, the question as to whether or not the train was operated with ordinary care and prudence with reference to speed is one for the jury. See Guggenheim v. Railway Co., 66 Mich. 150; Thayer v. Railroad Co., 93 Mich. 150; Haines v. Railway Co., 129 Mich. 475; Gorton v. Harmon, 152 Mich. 473 (15 Ann. Cas. 461); Folkmire v. Railways Co., 157 Mich. 159 (17 Ann. Cas. 979); Littlewood v. Railway, 189 Mich. 388; Halloran v. Railway Co., 197 Mich. 308; Coston v. Railroad Co., 201 Mich. 232; Block v. Railroad Co., 202 Mich. 341. We think that the charge as given by the court was justified under the circumstances of the case.
3. Section 8302, 2 Comp. Laws 1915, reads as follows:
“A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and said whistle shall be twice sharply sounded at least forty rods before the crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed, under a penalty of one hundred dollars for every neglect: Provided, That at street crossings within the limits of incorporated cities or villages, the sounding of the whistle may be omitted, unless required by the common council or board of trustees of such city or village; and the company shall also be liable for all damages which shall be sustained by any person by reason of such neglect.”
These statutory requirements were first brought into the case by defendant’s requests Nos. 4 and 5, and the court read a portion of the statute to the jury and explained its effect. In the certificate of the judge annexed to the bill of exceptions is found the following:
“At the close of. the charge and immediately after the jury had retired, counsel for the plaintiff called to the attention of the court, in the presence of counsel for the defendant, the fact that the plaintiff had at no time, throughout the trial or in argument insisted upon any rights under the statute to which the court referred in the charge and the further fact that this statute was first brought into the case by reference thereto made by counsel for the defendant in argument to the jury and in their request to charge. To this, counsel for the defendant agreed. It was then in open court stated by Mr. Geer, representing the defendant, that no advantage would be taken by the defendant, on appeal, of such reference to the statute as was made by the court in the charge to the jury, thereby avoiding as it appeared to the court, the necessity of recalling the jury for the purpose of further instructions in regard to the statute.”
It was the contention of the plaintiff that because of the proviso in the statute, and it being conceded that the accident occurred within the limits of an incorporated village, the statute was inapplicable insofar as the failure to blow the whistle was concerned. There was testimony from witnesses that the bell was not ringing when it went over the crossing. In view of the concession made by counsel, according to the certificate of the judge, and in view of the positive testimony of witnesses that there was no bell ringing, we think that the question of the negligence of the defendant was properly submitted to the jury, and the inadvertent reference of the court in his charge to the statute should not at this time be taken advantage of.
4. A careful reading of this record has satisfied us that there was abundant evidence to warrant the submission of the question of the defendant’s negligence to the jury and that the verdict was not so contrary to the great weight of the evidence as to warrant our holding that the court erred in refusing to set the verdict aside on that ground.
We are of the opinion that the questions involved presented issues for the jury which were submitted to them with proper instructions as to the law applicable thereto.
Finding no error, we’ are constrained to affirm the judgment.
Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. | [
26,
55,
33,
-23,
-35,
-9,
-22,
-12,
21,
-4,
-10,
-11,
-2,
-9,
-17,
7,
3,
-28,
3,
-5,
-8,
-47,
-16,
-49,
-52,
-36,
44,
-9,
-64,
39,
47,
13,
19,
-24,
41,
23,
64,
5,
51,
-32,
19,
-44,
13,
-37,
39,
48,
62,
-22,
17,
3,
40,
4,
29,
20,
5,
-6,
-39,
48,
12,
-21,
7,
-49,
-7,
-29,
-16,
-19,
66,
-10,
-14,
-15,
-33,
-38,
-34,
-2,
21,
65,
-15,
23,
-38,
6,
-7,
20,
49,
-24,
-31,
-4,
-19,
-15,
-1,
-8,
11,
3,
-34,
12,
36,
-3,
-40,
6,
-41,
-12,
-25,
50,
-48,
-19,
14,
19,
-38,
25,
36,
-27,
-66,
1,
5,
-26,
-23,
-33,
-31,
-45,
22,
33,
4,
-50,
47,
31,
-4,
2,
-92,
40,
-2,
-26,
16,
-10,
25,
21,
29,
-10,
18,
-59,
9,
-28,
-45,
61,
-19,
22,
-16,
8,
-6,
10,
7,
-20,
-46,
-9,
-4,
-31,
6,
15,
-14,
-4,
-1,
30,
-2,
5,
51,
-3,
-80,
-7,
-20,
-4,
-22,
12,
-34,
30,
44,
-58,
18,
46,
2,
45,
-41,
18,
6,
44,
1,
3,
-53,
-39,
-12,
-13,
19,
-14,
64,
-1,
-6,
-62,
-36,
35,
-18,
-49,
-18,
55,
44,
-29,
-23,
1,
-37,
-5,
19,
8,
-19,
17,
26,
-40,
-4,
10,
-31,
-8,
-57,
0,
0,
-62,
10,
-3,
-13,
-4,
-20,
-4,
9,
19,
5,
-12,
20,
-45,
35,
-18,
-69,
-23,
-13,
-25,
15,
-4,
23,
-41,
26,
-28,
-7,
11,
-27,
-49,
-5,
62,
-56,
11,
-18,
-44,
-3,
28,
31,
38,
-21,
-35,
39,
19,
10,
60,
-21,
22,
-6,
9,
-37,
5,
-25,
-47,
51,
17,
-61,
-10,
72,
36,
40,
46,
59,
-15,
-2,
51,
28,
-8,
-13,
15,
-39,
-31,
-8,
-20,
-31,
-12,
12,
-1,
34,
-10,
-1,
-20,
0,
2,
-71,
-27,
62,
10,
-14,
-25,
16,
31,
31,
20,
18,
-51,
24,
14,
55,
-7,
7,
10,
-62,
-7,
-30,
56,
51,
81,
-18,
0,
1,
35,
10,
37,
7,
29,
-33,
-53,
-29,
20,
47,
-15,
-26,
39,
8,
6,
-12,
-10,
35,
27,
18,
-56,
3,
-24,
42,
-27,
-45,
-4,
14,
-18,
-38,
21,
2,
27,
-13,
0,
10,
-32,
-20,
-12,
-28,
-5,
-13,
-7,
4,
24,
33,
-35,
-15,
29,
-20,
76,
-17,
19,
10,
8,
50,
-4,
-6,
-16,
-45,
4,
-8,
-10,
10,
12,
-9,
-24,
-6,
20,
-48,
-104,
-36,
15,
14,
-2,
9,
25,
-31,
20,
45,
14,
-16,
-56,
39,
-61,
82,
-15,
18,
-1,
14,
0,
76,
62,
26,
-25,
9,
30,
-10,
-9,
24,
14,
5,
-45,
10,
14,
-16,
-35,
-23,
-9,
0,
-16,
-37,
15,
44,
20,
1,
-32,
-85,
15,
21,
-58,
3,
55,
-3,
5,
-42,
26,
-14,
12,
14,
-5,
-40,
9,
22,
-5,
20,
28,
2,
-17,
13,
35,
8,
44,
-27,
-9,
-4,
-29,
42,
22,
0,
0,
-44,
-15,
-18,
-33,
5,
-26,
-4,
4,
27,
21,
32,
52,
-41,
13,
40,
-14,
-21,
23,
35,
57,
-67,
-46,
-5,
-37,
56,
52,
31,
2,
17,
-35,
44,
-21,
-8,
20,
28,
-3,
-24,
11,
8,
30,
-15,
22,
-3,
-21,
5,
51,
46,
-7,
-13,
-54,
1,
-20,
14,
40,
17,
-37,
13,
6,
-36,
-37,
20,
-50,
55,
-31,
0,
-29,
-6,
-48,
-22,
-41,
-12,
-20,
-21,
-72,
-2,
-35,
-26,
-14,
-50,
-12,
-9,
-44,
48,
-39,
40,
-6,
-28,
-15,
0,
-104,
-18,
32,
41,
-17,
-41,
29,
7,
-18,
-34,
30,
12,
-11,
-3,
6,
-36,
-20,
-32,
44,
-23,
27,
-18,
1,
-59,
6,
16,
27,
-17,
65,
61,
-19,
-5,
-25,
-9,
12,
28,
2,
-66,
55,
-40,
0,
6,
1,
15,
36,
18,
16,
0,
12,
11,
1,
-24,
-39,
-18,
42,
-18,
33,
22,
43,
-16,
-24,
6,
24,
-56,
21,
9,
-40,
4,
32,
-18,
-7,
17,
24,
-25,
-26,
-59,
-54,
-51,
7,
-75,
50,
-68,
25,
16,
-1,
13,
-9,
3,
-13,
-49,
-9,
28,
-14,
17,
9,
-66,
-11,
12,
-29,
26,
-24,
13,
-46,
-21,
-2,
-46,
0,
25,
64,
37,
15,
48,
10,
42,
-22,
65,
-10,
27,
49,
-32,
-11,
-5,
0,
25,
19,
-17,
-6,
-37,
7,
17,
-42,
-35,
81,
3,
16,
-13,
34,
21,
-47,
38,
17,
11,
18,
52,
-15,
-7,
-9,
41,
8,
29,
20,
24,
-17,
-41,
-64,
48,
-30,
12,
-48,
-4,
-3,
-18,
22,
14,
-57,
-14,
21,
10,
20,
-54,
-20,
-6,
-62,
-39,
31,
-16,
35,
4,
-1,
-15,
-3,
-5,
57,
57,
-8,
33,
-25,
42,
30,
-27,
-25,
19,
-19,
-25,
-2,
-40,
11,
4,
-14,
-16,
8,
-1,
4,
-66,
-3,
11,
39,
12,
-29,
27,
12,
-4,
-8,
0,
-20,
9,
21,
27,
55,
34,
-4,
-30,
27,
17,
30,
-45,
-9,
-1,
-5,
3,
-13,
4,
-9,
-48,
62,
0,
-36,
-23,
52,
-27,
45,
6,
86,
-19,
-73,
-5,
38,
19,
-4,
-7,
67,
24,
-15,
20,
-32,
-3,
14,
21,
-20,
24,
-15,
35,
16,
-7,
20,
-7,
-14,
18,
18,
0,
23,
20,
5,
10,
-34,
3,
26,
5,
46,
22,
-24,
-31,
-31,
-40,
-21,
0,
-30,
8,
15,
13,
28,
-17,
-55,
-64,
1,
-19,
-1,
-19,
-85,
-50,
-12,
-15,
-71,
30,
0,
24,
-25,
-38,
-50,
12,
29,
-30,
-64,
67,
-2,
-29,
-7,
25,
30,
43,
-14,
-29,
6,
16,
0,
-14,
-18,
0,
-23,
14,
0,
0,
82,
8,
0,
-22,
-19,
-17,
22,
-45,
-13,
7,
8,
-3,
-16,
-79,
1,
-77,
36,
0,
24,
11,
-54,
24,
32,
-20,
27,
-30,
3,
-38,
74,
47,
-36,
35,
-27,
73,
21,
30,
-58,
35,
28,
37,
23,
-58,
21,
49,
12,
33,
-53,
-5,
19,
2,
21,
-5,
37,
0,
-6,
-26,
-24,
21,
-25,
44,
11,
60,
24,
9,
-57,
-37,
11,
31,
-44,
-38,
45,
-27,
-10,
72,
6,
12,
51,
29,
-13,
34,
15,
26,
73,
26,
11,
-36,
-42,
-4,
46,
-32,
-27,
10,
26,
34,
-23,
-40,
0,
-38,
-15,
26,
-71,
34,
33,
27,
-24,
2,
22,
-24,
32,
-45,
-8,
37,
-19,
39,
49,
-1,
-37,
27,
-5,
2,
25,
-59,
71
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.