text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Leave to appeal denied at 497 Mich 954. | [
30,
-6,
-42,
-4,
8,
54,
20,
47,
-44,
15,
-26,
11,
7,
-49,
25,
42,
85,
36,
-25,
12,
-51,
6,
1,
39,
-42,
-73,
43,
33,
-36,
-65,
-8,
-52,
-41,
-48,
-31,
-22,
-24,
-18,
-8,
0,
-41,
-42,
-8,
12,
-25,
-62,
6,
8,
-34,
15,
-70,
22,
-79,
14,
14,
24,
55,
-39,
-2,
44,
-40,
58,
49,
41,
29,
0,
-38,
-5,
25,
-19,
-12,
29,
14,
26,
9,
20,
37,
65,
35,
75,
19,
-5,
6,
-8,
31,
27,
8,
54,
-12,
3,
8,
-54,
-44,
36,
-44,
65,
-5,
-44,
43,
-51,
-20,
33,
12,
-66,
7,
-45,
13,
64,
-39,
5,
24,
-16,
-11,
-30,
8,
-15,
-22,
3,
47,
-13,
-26,
39,
11,
34,
44,
-16,
42,
-13,
0,
-69,
26,
48,
73,
51,
-6,
-18,
61,
-98,
-33,
-55,
-28,
111,
26,
-30,
-26,
-76,
26,
-38,
12,
-40,
-5,
7,
-10,
21,
-18,
39,
5,
-28,
42,
12,
29,
39,
-64,
32,
73,
-32,
24,
52,
30,
24,
24,
4,
7,
-48,
-32,
19,
-1,
46,
-18,
2,
-39,
10,
-7,
45,
-19,
-77,
2,
-30,
32,
-68,
-27,
-43,
80,
38,
23,
30,
20,
21,
-31,
19,
-19,
49,
-38,
27,
33,
-69,
-2,
-46,
32,
33,
-36,
-13,
-17,
-8,
37,
-17,
-45,
37,
33,
-13,
40,
27,
-25,
-7,
-3,
34,
-16,
30,
26,
-7,
16,
39,
-6,
-6,
35,
-39,
7,
15,
48,
-73,
-98,
-10,
-16,
64,
1,
-21,
-76,
-12,
66,
-40,
48,
0,
26,
-92,
-44,
-39,
-37,
23,
-8,
-14,
21,
9,
26,
10,
-29,
20,
-19,
21,
28,
-75,
29,
26,
-15,
-80,
33,
1,
14,
32,
58,
11,
-26,
12,
-2,
-9,
-62,
51,
25,
-14,
-25,
5,
2,
12,
19,
61,
7,
-42,
-35,
34,
-8,
29,
23,
44,
-43,
29,
33,
-31,
-54,
-55,
89,
25,
12,
-9,
-8,
31,
12,
-45,
-16,
-79,
-25,
0,
15,
0,
-3,
65,
-21,
71,
-17,
70,
29,
19,
-7,
26,
-54,
84,
-30,
55,
-6,
-73,
-42,
32,
9,
61,
5,
31,
-17,
-15,
-107,
4,
82,
41,
14,
54,
-1,
-48,
18,
72,
-24,
-28,
-44,
51,
8,
-52,
-20,
61,
-9,
-36,
-7,
28,
-1,
46,
-69,
-8,
51,
-2,
13,
52,
-30,
-43,
-21,
-16,
-25,
-31,
-12,
10,
39,
12,
32,
18,
17,
52,
-15,
-72,
-31,
-32,
51,
-10,
19,
65,
11,
20,
-63,
-39,
-92,
78,
-28,
1,
21,
12,
-28,
81,
0,
30,
25,
19,
-59,
6,
74,
-35,
-18,
0,
-18,
-64,
-44,
10,
-48,
-13,
-45,
9,
-11,
62,
0,
-44,
26,
-49,
-22,
30,
17,
-3,
-19,
20,
-54,
-26,
12,
-88,
9,
-70,
-36,
-27,
-98,
-55,
-8,
9,
1,
-36,
-46,
-57,
-58,
61,
24,
0,
-65,
-50,
-60,
45,
-7,
-2,
-55,
35,
21,
-37,
-18,
14,
-49,
-29,
36,
-24,
-10,
-45,
-27,
-4,
16,
-14,
-6,
2,
35,
13,
-2,
-6,
-36,
-9,
-21,
84,
43,
38,
-25,
65,
20,
-5,
16,
8,
-46,
12,
-7,
12,
-1,
-36,
12,
-20,
-4,
6,
8,
-15,
-13,
33,
-48,
75,
-36,
14,
11,
-30,
-22,
5,
11,
-7,
19,
3,
-60,
-37,
7,
102,
-28,
-17,
22,
32,
4,
-70,
56,
27,
-82,
55,
38,
-33,
-32,
-5,
26,
44,
-55,
-56,
-14,
15,
28,
-26,
-72,
9,
-1,
-33,
17,
-17,
24,
-29,
-12,
-17,
24,
29,
-40,
-38,
-20,
36,
21,
68,
64,
24,
0,
0,
60,
13,
34,
15,
-10,
-9,
-18,
-3,
32,
-44,
-14,
-60,
-62,
-23,
-4,
-11,
-32,
-16,
-8,
-76,
19,
18,
-2,
3,
-10,
80,
-58,
5,
10,
15,
-12,
41,
-18,
5,
22,
5,
-25,
49,
12,
-6,
-26,
-7,
-2,
15,
15,
5,
82,
30,
-12,
-40,
-53,
-19,
9,
1,
37,
3,
-2,
61,
31,
-20,
17,
22,
-4,
4,
-14,
58,
12,
-8,
-20,
15,
-4,
-20,
1,
-62,
-9,
-12,
-39,
31,
-35,
-33,
16,
21,
-4,
-54,
35,
-7,
-23,
66,
-30,
51,
-61,
-50,
0,
31,
87,
58,
-35,
46,
9,
0,
-3,
-42,
26,
2,
-6,
55,
-35,
-5,
-12,
24,
4,
-35,
6,
19,
32,
20,
43,
60,
50,
-10,
-39,
3,
-12,
56,
-27,
6,
6,
28,
11,
-18,
-8,
62,
0,
-53,
-21,
-3,
-33,
2,
46,
-4,
94,
35,
-24,
-46,
4,
-13,
11,
-25,
-76,
-14,
20,
42,
1,
-21,
53,
37,
-13,
4,
32,
-30,
-45,
14,
23,
23,
28,
10,
-19,
-35,
11,
-52,
-6,
-1,
52,
-36,
0,
-42,
14,
-26,
-16,
75,
-39,
-21,
-25,
30,
28,
32,
8,
-54,
-65,
28,
19,
-5,
14,
17,
69,
43,
11,
-34,
7,
-23,
1,
0,
-6,
12,
42,
-22,
29,
-24,
-63,
29,
52,
15,
-78,
-29,
-28,
-37,
23,
-62,
-7,
-13,
45,
32,
21,
-39,
30,
6,
2,
14,
2,
25,
13,
-14,
-51,
30,
-12,
-28,
52,
-8,
-74,
-4,
47,
-27,
71,
77,
-14,
-4,
45,
23,
-25,
3,
4,
-31,
5,
59,
19,
29,
-9,
29,
61,
7,
-47,
-75,
2,
-55,
68,
20,
-6,
-41,
-19,
-56,
-20,
-5,
11,
-28,
5,
-49,
-43,
-41,
0,
0,
1,
41,
-20,
23,
35,
14,
48,
33,
-16,
38,
-43,
8,
38,
-53,
31,
38,
-4,
-92,
9,
18,
-28,
49,
4,
-35,
-2,
35,
0,
-49,
41,
-52,
74,
0,
-1,
20,
-12,
25,
50,
2,
-42,
16,
40,
12,
-6,
38,
-45,
-25,
8,
-63,
-27,
-35,
40,
-19,
21,
-8,
2,
12,
-64,
23,
-3,
-48,
28,
-73,
-96,
33,
-42,
-10,
16,
4,
-22,
-9,
8,
-18,
-11,
-1,
-5,
-75,
46,
-31,
-32,
-19,
-21,
-16,
10,
-89,
4,
0,
19,
61,
-60,
-28,
-1,
13,
-68,
30,
24,
15,
15,
-47,
61,
-23,
-8,
8,
-26,
-16,
-49,
-6,
1,
11,
19,
44,
-34,
-7,
-6,
12,
5,
44,
-16,
20,
21,
-16,
-57,
16,
-70,
-1,
59,
-35,
-2,
-60,
58,
-47,
-14,
-54,
-11,
20,
-17,
-25,
-6,
15,
24,
-29,
33,
1,
-56,
24,
1,
93,
107,
44,
16,
-30,
10,
17,
11,
-40,
44,
19,
31,
28,
35,
43,
2,
-33,
-5,
24,
-38,
90,
17,
-21,
-12,
-35
] |
By order of September 29, 2014, the application for leave to appeal the October 8, 2013 judgment of the Court of Appeals was held in abeyance pending the decision in People v Feronda Smith (Docket No. 148305). On order of the Court, the case having been decided on July 30, 2015, 498 Mich 466 (2015), the application is again considered, and it is denied, because we are not persuaded that the questions presented should be reviewed by this Court. | [
-5,
-32,
-48,
7,
15,
47,
4,
2,
-25,
34,
-30,
-55,
33,
-49,
-39,
-30,
32,
-4,
3,
3,
-16,
43,
36,
28,
-12,
-22,
45,
31,
-2,
-11,
-30,
-36,
-30,
-38,
21,
11,
2,
26,
-6,
-25,
-36,
39,
-53,
10,
-66,
-65,
4,
30,
-17,
41,
-4,
-21,
-80,
21,
-23,
15,
7,
-47,
2,
41,
-17,
64,
-4,
76,
49,
8,
-12,
-1,
10,
-34,
-19,
-3,
-25,
21,
11,
31,
27,
7,
31,
11,
19,
8,
-18,
-48,
14,
24,
1,
1,
-11,
-15,
-59,
-38,
-69,
-56,
-49,
39,
-47,
-40,
23,
-17,
33,
56,
-17,
-3,
0,
-59,
-20,
42,
2,
-33,
-28,
-29,
-18,
-5,
-14,
14,
-13,
33,
79,
-29,
-35,
52,
23,
32,
53,
5,
35,
1,
11,
-10,
-15,
0,
26,
-21,
-46,
39,
99,
-75,
-22,
-73,
9,
44,
34,
-23,
55,
-20,
16,
-54,
0,
-10,
20,
20,
-14,
42,
-62,
32,
46,
-51,
39,
36,
-1,
56,
-30,
5,
17,
-63,
37,
19,
32,
3,
39,
4,
14,
28,
-20,
10,
-3,
-9,
-22,
22,
-25,
29,
-7,
5,
0,
-8,
-15,
-36,
17,
-61,
-47,
-47,
36,
36,
68,
25,
-22,
1,
28,
-44,
-42,
24,
23,
59,
22,
-35,
-43,
-57,
11,
-5,
-38,
51,
-9,
-12,
37,
-52,
3,
-6,
-18,
41,
49,
29,
25,
-47,
16,
45,
-1,
19,
43,
0,
23,
51,
-7,
21,
-17,
48,
-39,
16,
23,
-29,
-18,
-2,
-37,
44,
-42,
46,
-15,
-14,
35,
11,
47,
5,
11,
-37,
-28,
-38,
41,
3,
-28,
14,
-12,
16,
33,
-17,
10,
13,
4,
41,
-22,
5,
-22,
21,
27,
-46,
-27,
1,
4,
13,
61,
-26,
-33,
8,
-38,
-5,
9,
-7,
7,
-55,
32,
47,
-30,
18,
-52,
25,
19,
-5,
-39,
5,
-37,
-4,
30,
59,
-7,
43,
0,
14,
-1,
-12,
64,
-8,
-2,
19,
-23,
-13,
14,
-14,
23,
-28,
27,
3,
-75,
34,
-21,
10,
-30,
-7,
-12,
-18,
-21,
-3,
-42,
23,
-25,
13,
24,
24,
19,
48,
-9,
-17,
13,
6,
-11,
-9,
21,
-9,
-26,
-59,
19,
25,
0,
58,
-11,
7,
-56,
22,
-60,
-34,
-67,
45,
23,
-24,
-26,
-11,
-10,
5,
38,
18,
21,
10,
-72,
-36,
11,
-32,
18,
-7,
20,
17,
0,
7,
-20,
-7,
50,
27,
-13,
-15,
-20,
44,
6,
-6,
3,
-95,
-2,
-6,
42,
-11,
-19,
81,
43,
-29,
20,
-3,
-56,
72,
-25,
17,
-58,
-6,
17,
-6,
63,
11,
-8,
6,
-29,
-6,
19,
3,
20,
-22,
11,
4,
-46,
-17,
-50,
57,
48,
-30,
49,
70,
-62,
16,
8,
-42,
12,
32,
14,
-36,
-33,
-23,
-17,
19,
-29,
0,
-28,
-71,
-65,
25,
-28,
33,
8,
-30,
1,
-57,
-53,
-39,
18,
-23,
3,
-16,
-32,
-42,
-4,
19,
-23,
13,
-36,
1,
1,
6,
-31,
36,
-13,
9,
-5,
-26,
-2,
13,
4,
-32,
16,
48,
-25,
-18,
24,
35,
-38,
21,
13,
59,
-8,
-24,
6,
40,
-18,
19,
11,
-23,
-39,
2,
-27,
-15,
48,
5,
51,
-10,
-21,
-42,
58,
2,
-26,
-18,
-27,
17,
-65,
76,
15,
-2,
23,
19,
-36,
6,
6,
-25,
-11,
29,
-48,
-49,
57,
-15,
9,
23,
43,
27,
2,
0,
-9,
-22,
7,
46,
-26,
30,
-7,
7,
34,
13,
-16,
-60,
47,
-9,
40,
15,
-45,
-9,
-18,
-56,
30,
17,
11,
-10,
-23,
16,
14,
5,
-20,
-34,
-26,
-5,
29,
29,
44,
19,
-17,
59,
31,
25,
9,
15,
-1,
-4,
-50,
-10,
-8,
-20,
3,
-59,
-7,
-22,
-25,
-41,
-40,
-33,
13,
-2,
-14,
-3,
11,
43,
-20,
29,
4,
35,
-20,
2,
29,
17,
-11,
-15,
6,
-1,
21,
-1,
-60,
-26,
-41,
-28,
-11,
-7,
37,
25,
7,
2,
-22,
16,
-15,
-37,
36,
-3,
18,
-4,
-5,
47,
56,
-45,
24,
60,
50,
30,
3,
-43,
32,
9,
30,
-2,
34,
0,
-43,
3,
-38,
31,
-10,
61,
-52,
-30,
-7,
41,
-3,
32,
30,
38,
1,
12,
-67,
-50,
-55,
-34,
-27,
18,
47,
-4,
-41,
44,
12,
6,
4,
-50,
34,
-13,
-17,
21,
-87,
-44,
-40,
-28,
-6,
5,
-15,
57,
4,
-4,
12,
38,
52,
-40,
-14,
-35,
-5,
64,
33,
37,
2,
2,
58,
-2,
-12,
29,
-14,
0,
8,
-60,
-51,
52,
-6,
43,
40,
2,
-21,
-83,
12,
-42,
-43,
-34,
-9,
11,
8,
5,
-28,
-9,
47,
30,
-5,
38,
35,
-9,
-11,
-66,
-7,
42,
5,
61,
13,
-16,
-6,
-14,
2,
30,
27,
-3,
-30,
-37,
22,
-19,
-23,
36,
-46,
-32,
16,
19,
-4,
-19,
26,
-28,
0,
20,
31,
11,
-23,
16,
4,
68,
24,
-1,
28,
3,
-5,
35,
-27,
30,
70,
6,
-12,
-16,
-21,
26,
51,
-63,
-45,
-30,
-71,
-41,
-11,
-72,
-8,
50,
78,
32,
34,
-78,
9,
8,
33,
3,
-5,
29,
18,
31,
-49,
18,
14,
-16,
-3,
37,
-58,
0,
3,
-20,
43,
8,
38,
-37,
16,
-16,
16,
-15,
-8,
-58,
17,
-3,
32,
13,
-21,
-28,
-8,
51,
-1,
-50,
15,
-9,
49,
-23,
62,
-11,
0,
-70,
25,
3,
-27,
40,
-11,
0,
-42,
-64,
11,
-13,
-25,
24,
-1,
1,
2,
39,
39,
24,
16,
-20,
-12,
16,
18,
-49,
16,
16,
7,
-72,
10,
26,
-11,
25,
28,
-1,
-29,
-26,
-5,
-50,
53,
-39,
43,
-19,
6,
21,
-53,
-21,
26,
21,
14,
2,
-39,
-2,
-29,
-49,
-50,
-8,
9,
10,
26,
-26,
-16,
-30,
37,
18,
35,
7,
-29,
-6,
22,
-25,
44,
-29,
-32,
-69,
22,
-33,
-18,
3,
-5,
-29,
-20,
-47,
40,
33,
-21,
-31,
29,
11,
-12,
-46,
-4,
12,
19,
-31,
-17,
41,
-13,
-19,
-21,
-33,
12,
41,
-23,
18,
14,
-27,
46,
-57,
12,
29,
71,
15,
1,
-17,
-1,
54,
0,
17,
1,
47,
42,
43,
-22,
-4,
40,
9,
-44,
12,
47,
-36,
13,
-40,
5,
-24,
42,
-17,
16,
-69,
32,
-18,
-20,
6,
-44,
-62,
-53,
-38,
-47,
-44,
36,
-70,
41,
35,
-46,
24,
3,
65,
73,
76,
37,
-28,
-12,
-28,
4,
-15,
4,
51,
10,
-41,
-15,
47,
12,
-30,
16,
-17,
-38,
66,
28,
-5,
-56,
-13
] |
Leave to appeal denied at 498 Mich 851. | [
17,
-16,
-30,
-13,
12,
53,
19,
30,
-46,
35,
-29,
9,
17,
-57,
22,
46,
79,
29,
-15,
0,
-28,
-12,
-4,
42,
-40,
-83,
51,
7,
-49,
-56,
1,
-50,
-27,
-63,
-22,
-11,
-16,
-5,
-9,
18,
-48,
-32,
-5,
16,
-27,
-43,
22,
31,
-27,
16,
-66,
37,
-74,
34,
-15,
32,
54,
-41,
-15,
52,
-45,
43,
36,
44,
26,
-3,
-33,
0,
28,
-24,
-13,
31,
9,
31,
5,
24,
23,
72,
25,
68,
19,
21,
13,
5,
39,
43,
-9,
59,
-11,
6,
-2,
-50,
-31,
55,
-44,
67,
9,
-42,
46,
-67,
-12,
44,
8,
-55,
-12,
-18,
10,
69,
-38,
24,
25,
-32,
-27,
-34,
14,
-24,
-28,
-8,
47,
-6,
-21,
37,
27,
49,
39,
-6,
50,
-19,
-8,
-50,
8,
69,
97,
59,
0,
-18,
57,
-90,
-44,
-76,
-33,
105,
40,
-30,
-23,
-64,
25,
-25,
47,
-44,
-6,
12,
10,
18,
-23,
48,
27,
-13,
55,
15,
32,
20,
-66,
17,
59,
-14,
34,
30,
44,
27,
2,
2,
15,
-60,
-41,
25,
6,
50,
-30,
-7,
-43,
3,
-8,
27,
-12,
-69,
24,
-20,
7,
-69,
-46,
-42,
97,
34,
32,
20,
18,
22,
-25,
5,
-24,
46,
-34,
38,
40,
-74,
-12,
-45,
31,
25,
-43,
2,
-32,
-24,
36,
-39,
-41,
25,
40,
3,
42,
30,
-5,
-13,
-17,
59,
-9,
21,
11,
-5,
10,
31,
4,
3,
49,
-40,
12,
20,
55,
-63,
-88,
-12,
-4,
59,
-12,
-44,
-58,
-20,
64,
-44,
32,
18,
19,
-85,
-53,
-58,
-24,
0,
-2,
0,
30,
-2,
20,
21,
-27,
38,
-38,
15,
36,
-56,
26,
40,
-1,
-75,
24,
14,
3,
8,
71,
14,
-24,
12,
8,
-9,
-73,
58,
16,
-12,
-30,
20,
9,
-3,
26,
47,
6,
-38,
-27,
35,
-16,
10,
-3,
54,
-34,
43,
36,
-37,
-54,
-49,
85,
21,
10,
-13,
-16,
52,
25,
-60,
-3,
-93,
-38,
-19,
5,
-11,
-32,
52,
-11,
68,
-25,
61,
24,
17,
0,
28,
-55,
98,
-14,
53,
-10,
-77,
-41,
33,
12,
33,
-6,
32,
-19,
0,
-91,
-9,
94,
30,
28,
38,
-22,
-37,
9,
69,
-28,
-29,
-49,
42,
26,
-66,
-12,
62,
-10,
-22,
-2,
49,
-6,
28,
-57,
-5,
40,
-15,
23,
46,
-54,
-51,
-4,
-41,
-13,
-53,
-19,
9,
31,
18,
16,
32,
19,
63,
-17,
-60,
-25,
-39,
35,
0,
28,
65,
15,
33,
-59,
-47,
-79,
79,
-19,
-15,
17,
18,
-28,
56,
-1,
20,
35,
21,
-47,
-3,
76,
-15,
-19,
12,
-32,
-54,
-59,
7,
-32,
4,
-23,
14,
6,
44,
-6,
-37,
15,
-30,
-2,
22,
21,
-21,
-14,
36,
-59,
-18,
23,
-97,
0,
-71,
-20,
-5,
-89,
-52,
-27,
12,
12,
-59,
-48,
-51,
-52,
76,
7,
9,
-42,
-48,
-49,
75,
-21,
-15,
-57,
47,
25,
-28,
-8,
14,
-44,
-17,
28,
-38,
-20,
-45,
-7,
-14,
2,
-33,
-3,
23,
20,
17,
-8,
0,
-32,
-2,
-13,
70,
37,
29,
-23,
59,
19,
-19,
19,
5,
-34,
-6,
-10,
4,
8,
-26,
9,
-34,
12,
-11,
-6,
-19,
10,
29,
-44,
64,
-37,
14,
18,
-42,
-26,
3,
25,
-9,
25,
13,
-66,
-21,
12,
105,
-21,
-13,
13,
39,
-4,
-84,
50,
32,
-75,
63,
51,
-28,
-31,
5,
14,
29,
-52,
-70,
-20,
6,
26,
-11,
-81,
-19,
-11,
-25,
7,
-19,
15,
-24,
-10,
-13,
3,
20,
-33,
-38,
-33,
50,
15,
72,
72,
34,
9,
13,
53,
12,
35,
-17,
-5,
2,
-18,
1,
28,
-40,
-8,
-59,
-50,
-9,
-12,
-23,
-32,
-15,
-15,
-88,
9,
20,
1,
16,
-31,
98,
-59,
21,
-15,
33,
17,
31,
-13,
16,
16,
-1,
-19,
43,
14,
-15,
-36,
0,
23,
8,
23,
-6,
72,
44,
-11,
-29,
-60,
9,
6,
1,
45,
26,
0,
73,
30,
-29,
24,
25,
13,
18,
-12,
64,
19,
-2,
-18,
10,
18,
-29,
4,
-74,
-1,
-5,
-22,
30,
-26,
-34,
0,
28,
-16,
-44,
31,
-13,
-34,
57,
-14,
35,
-60,
-55,
-4,
17,
89,
49,
-34,
52,
7,
-16,
-18,
-9,
9,
-1,
-6,
57,
-41,
-28,
-14,
9,
-4,
-40,
6,
36,
21,
41,
48,
40,
39,
-13,
-50,
-12,
-1,
66,
-33,
2,
1,
43,
13,
-20,
-6,
39,
-14,
-46,
-6,
-11,
-38,
-1,
51,
4,
90,
26,
-45,
-46,
8,
0,
15,
-15,
-73,
-33,
26,
45,
12,
-19,
54,
41,
-4,
-14,
16,
-24,
-45,
8,
8,
21,
35,
4,
-19,
-19,
9,
-46,
-21,
-1,
36,
-52,
2,
-46,
5,
-12,
-22,
74,
-39,
-12,
-6,
35,
30,
31,
18,
-56,
-39,
14,
12,
1,
3,
21,
39,
51,
15,
-35,
32,
-20,
0,
-12,
-24,
13,
54,
-7,
28,
3,
-50,
19,
48,
10,
-76,
-36,
-22,
-29,
2,
-89,
-13,
-9,
34,
27,
22,
-47,
40,
8,
11,
16,
2,
20,
23,
-23,
-66,
29,
-26,
-32,
36,
-2,
-75,
-3,
60,
-27,
72,
83,
-9,
-2,
41,
35,
-23,
9,
17,
-37,
3,
49,
37,
33,
2,
23,
69,
5,
-52,
-70,
1,
-49,
58,
22,
-1,
-49,
-24,
-54,
-48,
-14,
9,
-11,
7,
-45,
-37,
-38,
-10,
23,
0,
31,
-26,
19,
23,
19,
46,
35,
-10,
43,
-37,
-7,
49,
-54,
30,
30,
-2,
-74,
11,
12,
-33,
36,
-16,
-66,
-8,
29,
6,
-45,
33,
-40,
74,
-8,
0,
34,
-13,
22,
43,
-2,
-69,
33,
17,
20,
17,
28,
-39,
-29,
11,
-71,
-32,
-35,
46,
-24,
28,
-3,
6,
4,
-65,
1,
-6,
-60,
45,
-81,
-92,
30,
-28,
-17,
7,
4,
-34,
-14,
-3,
-26,
-16,
-5,
-10,
-78,
46,
-43,
-22,
-20,
-9,
-21,
5,
-91,
-6,
-7,
17,
70,
-56,
-28,
-13,
14,
-66,
22,
15,
27,
23,
-50,
43,
-31,
-3,
21,
-44,
-14,
-79,
5,
10,
8,
22,
43,
-17,
-7,
1,
16,
-1,
45,
0,
27,
21,
-6,
-50,
15,
-63,
-3,
60,
-13,
-20,
-70,
64,
-29,
-13,
-41,
-16,
47,
-15,
-20,
-11,
15,
11,
-41,
37,
5,
-34,
29,
8,
80,
107,
38,
15,
-22,
-9,
38,
28,
-52,
23,
-6,
20,
34,
25,
18,
17,
-31,
2,
7,
-49,
81,
21,
-21,
-31,
-27
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals and we remand this case to that court. On remand, while retaining jurisdiction, the Court of Appeals shall remand this case to the Wayne Circuit Court to conduct an evidentiary hearing pursuant to People v Ginther, 390 Mich 436 (1973), to determine whether the defendant was deprived of his right to the effective assistance of counsel when his attorney failed to file a motion to suppress. At the conclusion of the hearing, the circuit court shall then forward the record and its findings to the Court of Appeals, which shall address the issues presented by the defendant. We do not retain jurisdiction. | [
-18,
-20,
-50,
-46,
-22,
0,
-20,
-6,
-41,
10,
11,
1,
-25,
-58,
-7,
-22,
35,
51,
-7,
-21,
10,
44,
61,
6,
-2,
-74,
8,
-27,
5,
-19,
-35,
7,
-27,
-12,
24,
-42,
34,
-30,
19,
-23,
-49,
8,
31,
3,
-26,
-7,
15,
42,
39,
3,
26,
58,
-57,
31,
-16,
-12,
19,
18,
24,
33,
4,
62,
-21,
13,
8,
45,
-6,
-23,
-37,
-26,
-17,
-22,
18,
31,
-4,
-3,
-23,
-19,
39,
31,
37,
13,
27,
-16,
21,
26,
48,
0,
-23,
39,
11,
10,
-61,
-28,
-20,
16,
38,
10,
30,
-19,
-43,
29,
-18,
5,
56,
13,
-6,
24,
-8,
0,
20,
-11,
-37,
1,
16,
12,
19,
-33,
57,
29,
39,
-34,
16,
22,
18,
-5,
15,
-15,
4,
-18,
-17,
8,
38,
-59,
61,
7,
47,
-26,
4,
-16,
18,
17,
30,
-13,
51,
32,
7,
-16,
27,
25,
27,
60,
-31,
45,
-12,
-29,
33,
-47,
3,
50,
11,
46,
-51,
-7,
-14,
-8,
-12,
-19,
-14,
17,
33,
13,
51,
10,
-62,
7,
-14,
77,
5,
12,
4,
1,
11,
-59,
47,
-30,
-11,
-7,
-59,
-56,
-18,
-3,
22,
-22,
18,
35,
36,
26,
-6,
-14,
-64,
13,
-37,
4,
18,
-10,
39,
2,
19,
-39,
-37,
-5,
10,
-70,
2,
-48,
44,
-43,
-31,
26,
-5,
18,
21,
-21,
-32,
-29,
0,
44,
25,
21,
4,
27,
-10,
56,
-27,
22,
3,
12,
40,
-39,
-49,
-3,
62,
-33,
-25,
16,
19,
47,
0,
-59,
16,
13,
0,
6,
-8,
0,
-4,
-18,
-36,
11,
38,
29,
-25,
14,
-12,
26,
13,
-2,
22,
-17,
21,
14,
34,
-46,
-6,
-41,
-16,
16,
25,
7,
-40,
-11,
-56,
20,
1,
46,
9,
-12,
65,
15,
-12,
-3,
-59,
37,
-32,
9,
11,
17,
-9,
6,
23,
45,
-22,
33,
-8,
-52,
-31,
-1,
-21,
8,
33,
61,
36,
-27,
0,
-6,
8,
-14,
-7,
-49,
1,
22,
25,
-25,
-13,
-2,
27,
-48,
9,
-12,
0,
10,
8,
-15,
-5,
43,
-1,
32,
-11,
-1,
-8,
-30,
-12,
37,
0,
7,
5,
-5,
24,
3,
18,
-26,
42,
-6,
31,
15,
-54,
-21,
-24,
42,
8,
-23,
4,
-1,
30,
30,
-4,
13,
-6,
-5,
13,
-8,
1,
-17,
-36,
-10,
-12,
-9,
11,
2,
-30,
-61,
5,
0,
14,
-30,
-47,
29,
43,
3,
-20,
-31,
0,
0,
-43,
-13,
33,
13,
47,
0,
11,
-5,
5,
39,
-18,
3,
11,
24,
0,
52,
-42,
47,
-29,
68,
28,
3,
14,
1,
22,
-34,
-43,
-13,
-20,
-50,
0,
0,
52,
-5,
32,
5,
26,
-48,
-3,
21,
1,
44,
-36,
-10,
-2,
48,
-34,
-51,
-57,
-27,
-36,
-48,
-50,
13,
-33,
-14,
2,
43,
51,
7,
-4,
-7,
-15,
33,
6,
-31,
3,
-40,
-22,
-25,
-22,
-55,
-1,
22,
3,
11,
-23,
-26,
-24,
3,
-38,
-30,
-69,
-18,
-36,
38,
50,
28,
-8,
-25,
-4,
4,
25,
-14,
25,
7,
-43,
0,
1,
23,
12,
-7,
-3,
4,
-35,
7,
16,
-27,
30,
-22,
39,
20,
-8,
-43,
34,
12,
-3,
-1,
-28,
62,
19,
2,
9,
-5,
8,
-35,
13,
-13,
5,
-43,
4,
12,
-72,
-33,
11,
25,
55,
-25,
16,
-72,
-13,
15,
-23,
-9,
-26,
26,
1,
-19,
-5,
7,
6,
-8,
4,
20,
26,
6,
-5,
-25,
1,
-19,
-10,
-21,
-42,
3,
62,
-66,
11,
-21,
35,
18,
-16,
3,
-28,
-50,
15,
24,
21,
3,
53,
20,
28,
16,
13,
-34,
5,
-69,
10,
-8,
38,
-43,
-7,
0,
-12,
-44,
6,
-13,
-12,
26,
21,
-29,
16,
-26,
-22,
-33,
19,
76,
1,
-4,
19,
4,
6,
3,
30,
33,
31,
-4,
48,
-4,
-17,
-52,
-26,
-23,
13,
63,
-7,
81,
-40,
11,
-12,
-14,
1,
-44,
0,
-6,
-12,
-25,
-4,
36,
-6,
2,
-48,
23,
-1,
0,
-7,
15,
-19,
19,
2,
-13,
-2,
-21,
67,
-52,
-4,
21,
3,
33,
-11,
10,
11,
-47,
13,
-43,
42,
8,
10,
-49,
-25,
10,
0,
-18,
-3,
14,
34,
11,
-13,
11,
-14,
28,
-18,
-24,
-16,
-2,
-45,
17,
-46,
-40,
-11,
-20,
-31,
-9,
-21,
-14,
-16,
36,
18,
50,
26,
-32,
-37,
-29,
1,
5,
38,
-19,
-17,
45,
22,
15,
-24,
-8,
16,
-10,
-6,
-49,
31,
74,
-19,
33,
-1,
-11,
-13,
-42,
32,
18,
3,
-23,
-28,
0,
17,
15,
13,
30,
73,
-26,
26,
-25,
1,
-35,
-36,
-15,
-9,
17,
-3,
54,
25,
16,
-1,
-26,
3,
61,
33,
-26,
-1,
-51,
3,
15,
-46,
29,
-9,
30,
36,
-40,
-38,
11,
32,
3,
19,
-29,
-2,
-13,
11,
22,
24,
10,
-59,
35,
41,
-28,
-4,
51,
-14,
12,
-28,
-21,
-5,
-8,
-4,
-23,
1,
-22,
-25,
-33,
-47,
-15,
41,
-55,
-39,
1,
35,
29,
49,
-11,
-1,
32,
46,
29,
11,
55,
-10,
4,
-3,
51,
41,
-20,
60,
46,
25,
23,
-19,
-23,
39,
13,
-11,
-40,
20,
7,
-7,
-13,
-9,
16,
-2,
-11,
0,
3,
-43,
-24,
21,
25,
-8,
-44,
27,
-25,
-51,
-30,
-37,
-43,
-41,
9,
5,
60,
-28,
7,
10,
19,
-2,
12,
-54,
-5,
-41,
-23,
5,
3,
-10,
2,
49,
94,
5,
-36,
11,
-22,
-30,
-26,
23,
-34,
19,
-75,
23,
41,
-25,
-2,
19,
-3,
-12,
25,
30,
-36,
22,
-67,
9,
-7,
-4,
-10,
-66,
-17,
11,
36,
-67,
27,
12,
19,
0,
-6,
15,
-39,
-12,
-70,
37,
-17,
46,
-20,
8,
0,
2,
-11,
-46,
13,
-44,
-2,
9,
-11,
-22,
-2,
39,
-20,
67,
6,
-26,
-32,
-38,
-43,
2,
-21,
11,
3,
15,
-31,
-38,
-13,
55,
-79,
-4,
-43,
-18,
1,
2,
-10,
-58,
15,
-13,
39,
-37,
-5,
-70,
14,
-19,
-82,
34,
-12,
-24,
2,
44,
-31,
-40,
-12,
-6,
-41,
-34,
22,
-14,
-6,
-64,
17,
-24,
13,
-31,
-1,
47,
-17,
11,
43,
-1,
28,
15,
27,
-30,
8,
14,
-7,
18,
13,
-30,
10,
-17,
-48,
57,
10,
-9,
-13,
-11,
92,
9,
-30,
-5,
11,
-10,
37,
-1,
0,
77,
9,
7,
-17,
-38,
62,
2,
41,
54,
6,
-26,
4,
4,
17,
-31,
14,
8,
-9,
-47,
11
] |
Leave to appeal denied at 498 Mich 863. | [
13,
-9,
-25,
-25,
22,
51,
27,
60,
-56,
39,
-23,
4,
12,
-62,
29,
48,
79,
27,
-5,
0,
-11,
6,
-7,
60,
-27,
-76,
50,
23,
-37,
-62,
0,
-49,
-46,
-58,
-15,
-19,
-32,
7,
-4,
17,
-45,
-27,
-20,
20,
-26,
-61,
9,
24,
-28,
9,
-55,
38,
-82,
15,
3,
53,
51,
-49,
-34,
53,
-48,
47,
43,
65,
22,
1,
-47,
15,
26,
-16,
-20,
9,
2,
33,
13,
29,
21,
83,
31,
63,
27,
26,
10,
30,
53,
44,
7,
53,
-5,
-8,
1,
-57,
-42,
52,
-44,
47,
-6,
-44,
44,
-92,
-7,
52,
9,
-45,
-17,
-24,
13,
55,
-37,
4,
35,
-33,
-19,
-22,
8,
-15,
-9,
15,
65,
8,
-21,
37,
19,
52,
52,
-5,
33,
-6,
0,
-43,
15,
58,
91,
37,
-15,
-17,
57,
-97,
-39,
-65,
-27,
95,
52,
-21,
-29,
-63,
41,
-22,
27,
-45,
-6,
2,
-4,
12,
-8,
55,
14,
-12,
45,
5,
37,
41,
-55,
14,
46,
-31,
32,
29,
37,
27,
15,
15,
17,
-56,
-37,
21,
0,
40,
-40,
0,
-45,
7,
-13,
33,
-1,
-62,
45,
-44,
-11,
-72,
-54,
-46,
78,
18,
23,
24,
22,
24,
-11,
19,
-16,
24,
-40,
20,
47,
-55,
0,
-39,
30,
18,
-48,
2,
-28,
-24,
41,
-32,
-43,
38,
42,
3,
32,
31,
-15,
-13,
-20,
43,
-26,
46,
12,
-4,
9,
23,
5,
-7,
43,
-53,
11,
16,
61,
-57,
-75,
-14,
-19,
63,
-5,
-27,
-77,
-27,
46,
-46,
43,
10,
12,
-91,
-51,
-60,
-35,
4,
3,
-9,
1,
-4,
40,
24,
-28,
39,
-42,
26,
23,
-46,
31,
42,
-6,
-50,
25,
7,
0,
24,
70,
-1,
-38,
-8,
2,
2,
-67,
55,
18,
-22,
-10,
10,
8,
4,
22,
67,
10,
-25,
-26,
24,
-19,
21,
-11,
61,
-42,
37,
57,
-48,
-63,
-57,
91,
20,
30,
-18,
0,
50,
13,
-57,
-8,
-103,
-42,
-17,
0,
-1,
-34,
64,
-24,
59,
-18,
61,
26,
30,
16,
14,
-68,
84,
-18,
45,
-15,
-55,
-38,
23,
-10,
59,
-6,
38,
-10,
-4,
-99,
-18,
99,
21,
23,
43,
-29,
-42,
-1,
80,
-24,
-35,
-58,
36,
20,
-69,
-11,
64,
-13,
-30,
13,
66,
15,
28,
-57,
-9,
49,
-13,
31,
44,
-39,
-40,
12,
-30,
0,
-45,
-19,
34,
35,
25,
3,
17,
29,
72,
-21,
-61,
-37,
-37,
30,
-11,
38,
48,
19,
29,
-46,
-51,
-93,
78,
-22,
-30,
14,
18,
-25,
62,
-8,
11,
32,
24,
-60,
-3,
54,
-10,
-22,
-4,
-40,
-46,
-52,
16,
-48,
3,
-30,
8,
10,
66,
6,
-33,
17,
-50,
-22,
18,
15,
-33,
3,
19,
-50,
-22,
36,
-91,
-16,
-53,
-31,
-10,
-86,
-63,
-6,
24,
3,
-46,
-48,
-62,
-51,
78,
4,
3,
-25,
-46,
-47,
45,
-17,
-2,
-58,
52,
18,
-39,
-19,
19,
-47,
-28,
30,
-31,
-25,
-47,
-14,
-3,
1,
-21,
-10,
13,
17,
2,
4,
5,
-32,
3,
-15,
78,
40,
25,
-24,
43,
26,
-13,
6,
12,
-48,
-11,
-2,
8,
8,
-32,
-5,
-22,
3,
-5,
13,
-21,
13,
32,
-33,
64,
-23,
0,
-4,
-25,
-23,
14,
29,
-3,
31,
5,
-59,
-20,
17,
92,
-9,
-2,
23,
54,
-4,
-70,
47,
37,
-90,
46,
29,
-33,
-21,
6,
-10,
40,
-63,
-54,
-7,
-11,
7,
-24,
-72,
-5,
-7,
-45,
11,
-12,
19,
-18,
-17,
-15,
4,
25,
-29,
-41,
-22,
30,
10,
60,
58,
40,
-2,
12,
57,
17,
40,
0,
1,
4,
-43,
5,
44,
-35,
-4,
-55,
-57,
-8,
-27,
-17,
-52,
-16,
-6,
-59,
21,
11,
-21,
1,
-3,
83,
-57,
26,
-8,
3,
7,
12,
-23,
7,
34,
16,
-11,
32,
-12,
-7,
-31,
9,
10,
11,
27,
-3,
77,
38,
-8,
-36,
-51,
4,
5,
11,
56,
23,
-15,
77,
0,
-41,
28,
19,
19,
19,
-8,
67,
24,
-3,
0,
2,
17,
-44,
21,
-84,
-11,
-26,
-44,
33,
-6,
-24,
3,
24,
-10,
-50,
34,
-12,
-31,
46,
-3,
25,
-51,
-59,
12,
25,
82,
66,
-44,
55,
3,
-3,
-14,
-16,
2,
-10,
-3,
37,
-30,
-26,
-22,
17,
-8,
-41,
18,
32,
22,
35,
49,
44,
49,
-22,
-34,
-15,
8,
65,
-27,
11,
11,
29,
10,
-36,
-14,
44,
-12,
-29,
-28,
9,
-52,
2,
45,
10,
108,
22,
-42,
-46,
9,
0,
10,
-8,
-87,
-42,
28,
59,
10,
-11,
51,
34,
7,
-13,
25,
-29,
-58,
-6,
9,
5,
23,
11,
-23,
-32,
-5,
-45,
-17,
-2,
53,
-58,
-1,
-64,
4,
-17,
-21,
81,
-54,
-37,
-5,
39,
17,
32,
22,
-46,
-47,
29,
24,
-9,
11,
-1,
54,
23,
38,
-34,
33,
-13,
-23,
-27,
-25,
15,
38,
-6,
28,
-12,
-53,
18,
48,
6,
-94,
-47,
-11,
-42,
14,
-67,
-14,
-18,
33,
29,
26,
-47,
22,
-4,
-12,
16,
6,
22,
12,
-18,
-55,
25,
-17,
-13,
43,
-11,
-57,
-7,
39,
-37,
64,
78,
-28,
-6,
26,
26,
-26,
8,
2,
-23,
10,
44,
35,
24,
6,
39,
84,
0,
-68,
-61,
-3,
-47,
50,
19,
13,
-44,
-24,
-45,
-32,
-11,
-7,
-20,
-6,
-44,
-36,
-55,
-4,
18,
-6,
5,
-31,
11,
26,
22,
48,
36,
0,
48,
-34,
-2,
47,
-39,
23,
19,
1,
-81,
28,
14,
-23,
46,
2,
-39,
8,
33,
18,
-39,
41,
-46,
87,
-21,
-5,
22,
19,
33,
39,
4,
-62,
23,
35,
34,
16,
28,
-29,
-22,
19,
-59,
-26,
-26,
24,
-23,
39,
-13,
-6,
-5,
-65,
12,
-29,
-61,
43,
-79,
-108,
26,
-47,
16,
-4,
-1,
-27,
-20,
-2,
-29,
-12,
-7,
17,
-70,
64,
-48,
-31,
-14,
1,
-26,
1,
-99,
1,
-11,
16,
78,
-40,
-35,
-12,
-8,
-51,
36,
23,
11,
30,
-45,
58,
-29,
-13,
20,
-33,
-21,
-54,
-3,
8,
26,
19,
51,
-23,
-1,
-4,
26,
-5,
34,
-8,
17,
19,
-4,
-55,
-6,
-43,
-14,
51,
-27,
0,
-61,
52,
-24,
-6,
-36,
13,
54,
-12,
-24,
-1,
21,
20,
-41,
45,
0,
-36,
27,
8,
75,
89,
30,
29,
-21,
-14,
51,
16,
-30,
44,
24,
25,
32,
32,
37,
9,
-38,
13,
16,
-37,
76,
27,
-34,
-50,
-36
] |
Bernstein, J.,
would grant leave to appeal. | [
-12,
-51,
-20,
-32,
-11,
46,
-31,
-4,
-13,
-24,
-35,
-9,
10,
-90,
-45,
14,
-41,
-61,
-14,
27,
5,
33,
15,
69,
51,
-53,
9,
12,
0,
-81,
-1,
-49,
-21,
-62,
15,
-18,
59,
-42,
24,
21,
10,
-28,
-31,
28,
-36,
-16,
6,
-21,
-14,
-4,
-14,
69,
2,
2,
-11,
36,
12,
56,
-18,
7,
-29,
57,
-17,
-30,
-12,
44,
17,
-17,
0,
-12,
-19,
16,
24,
5,
20,
27,
33,
23,
51,
40,
18,
1,
-65,
-46,
-15,
-19,
120,
37,
22,
66,
-18,
-36,
40,
-49,
-75,
26,
0,
-24,
45,
42,
-73,
9,
-25,
-7,
5,
0,
6,
58,
-12,
4,
48,
4,
-10,
-60,
4,
-7,
-32,
42,
-5,
0,
-25,
80,
-23,
-10,
51,
23,
16,
-42,
11,
-34,
-21,
6,
-19,
19,
31,
12,
-3,
-21,
19,
-50,
-23,
60,
9,
12,
8,
-45,
-24,
-36,
16,
89,
7,
-3,
-27,
33,
-3,
-6,
13,
-15,
55,
40,
16,
-13,
-57,
48,
74,
-28,
-10,
14,
43,
81,
-10,
87,
59,
-5,
2,
-21,
-28,
-19,
-8,
44,
-74,
69,
-8,
-33,
-42,
-42,
-23,
32,
-49,
-17,
-56,
4,
10,
-19,
-5,
-20,
62,
33,
4,
-30,
-41,
53,
22,
12,
34,
-42,
-27,
25,
0,
-29,
-38,
76,
6,
-32,
11,
-5,
69,
4,
22,
48,
55,
-5,
2,
0,
-28,
45,
-34,
69,
24,
-40,
-15,
21,
-27,
10,
19,
17,
37,
20,
9,
-61,
-50,
-58,
15,
3,
0,
52,
-4,
23,
-31,
-6,
28,
65,
49,
-39,
-34,
-20,
-31,
-10,
20,
-37,
38,
16,
40,
8,
-32,
27,
3,
7,
39,
-16,
47,
-41,
-7,
-55,
-10,
-28,
-48,
-37,
-6,
-29,
-14,
-40,
-71,
-20,
-7,
25,
24,
-16,
52,
36,
3,
-46,
0,
36,
46,
-40,
-47,
42,
-52,
-25,
-10,
49,
-7,
5,
41,
48,
-15,
-43,
72,
1,
64,
-35,
1,
-56,
23,
-12,
-31,
-28,
-38,
-8,
25,
-19,
-52,
29,
-52,
-7,
-1,
-2,
32,
26,
45,
60,
-7,
24,
16,
60,
-5,
21,
14,
68,
10,
-5,
15,
-21,
28,
-34,
-1,
-31,
37,
33,
-31,
27,
-20,
-19,
-1,
21,
-49,
-53,
-30,
17,
32,
-7,
43,
23,
38,
-41,
26,
7,
-53,
-88,
-31,
-62,
30,
-69,
-8,
58,
17,
-48,
14,
0,
-42,
-13,
-31,
-33,
-6,
-28,
11,
62,
0,
43,
-39,
-11,
-16,
-18,
-16,
76,
50,
-5,
3,
-1,
0,
-45,
0,
53,
34,
-57,
-17,
-20,
-3,
84,
-6,
34,
-14,
36,
28,
-22,
17,
44,
25,
-26,
-13,
-55,
35,
7,
17,
6,
-31,
-23,
31,
17,
-16,
-83,
-38,
-30,
-37,
37,
38,
-68,
-17,
15,
-47,
2,
-6,
35,
-31,
12,
-31,
27,
-54,
-16,
-46,
-24,
82,
0,
-65,
-80,
-74,
2,
-14,
-20,
0,
-30,
-37,
2,
12,
-26,
7,
44,
18,
54,
-14,
-36,
10,
10,
21,
-43,
-59,
-24,
-37,
-74,
60,
-53,
-72,
33,
0,
39,
8,
-12,
-25,
-23,
-13,
39,
21,
-30,
-23,
-4,
38,
-33,
-10,
44,
23,
-13,
31,
10,
13,
-36,
-30,
-62,
52,
-49,
45,
-70,
-14,
57,
22,
6,
-8,
-16,
-14,
-22,
-9,
-6,
66,
-13,
16,
-1,
-79,
-1,
30,
0,
1,
-46,
44,
0,
28,
-27,
-20,
-7,
-57,
-42,
10,
-25,
-26,
10,
18,
24,
19,
35,
55,
59,
20,
28,
-57,
-3,
25,
-51,
0,
-4,
116,
-50,
2,
1,
-12,
75,
-50,
26,
-30,
-9,
-1,
69,
46,
-57,
0,
39,
11,
37,
28,
12,
-34,
0,
-11,
-16,
19,
-8,
46,
-35,
-36,
-43,
57,
-32,
24,
-41,
12,
-53,
16,
-23,
6,
-1,
-39,
77,
-34,
22,
-39,
-42,
42,
59,
21,
-20,
33,
-15,
-32,
-23,
-77,
-4,
-64,
-9,
10,
51,
-13,
-11,
8,
-33,
-27,
-77,
-12,
39,
17,
13,
-33,
-49,
28,
14,
-12,
14,
-25,
32,
0,
-15,
45,
95,
29,
37,
-12,
18,
23,
-26,
36,
-52,
29,
36,
92,
17,
2,
-54,
13,
49,
7,
-12,
3,
22,
3,
-21,
-17,
3,
16,
6,
-52,
47,
-1,
12,
-34,
58,
38,
84,
21,
12,
-7,
21,
-56,
-13,
-22,
5,
-36,
69,
-10,
26,
-22,
-8,
-5,
36,
-18,
-5,
54,
-5,
-19,
27,
20,
57,
22,
-16,
0,
5,
-28,
-39,
1,
-26,
17,
15,
12,
-40,
29,
9,
-43,
27,
64,
-46,
-47,
-75,
46,
52,
47,
-16,
-28,
15,
9,
76,
21,
60,
28,
-19,
-10,
-100,
-33,
26,
-56,
59,
2,
-25,
17,
6,
-29,
56,
-16,
5,
-30,
48,
2,
12,
2,
-4,
3,
-2,
33,
28,
-40,
-17,
39,
-71,
-64,
22,
-7,
-14,
-26,
45,
17,
10,
69,
20,
21,
29,
-41,
-46,
15,
4,
-53,
1,
11,
49,
43,
-40,
-38,
-23,
-22,
-71,
80,
50,
-29,
-66,
12,
-34,
-48,
-58,
-40,
-4,
54,
3,
67,
-3,
41,
-24,
15,
-16,
3,
3,
33,
27,
-15,
13,
26,
-39,
26,
22,
1,
-21,
-38,
-74,
-7,
-24,
-14,
-22,
77,
-16,
-10,
15,
-1,
-39,
-12,
38,
52,
10,
-8,
-13,
5,
73,
-5,
-15,
0,
-34,
18,
5,
-3,
-14,
-19,
-34,
39,
-28,
-39,
12,
-48,
-18,
-24,
8,
-69,
51,
-7,
-13,
-61,
-58,
7,
-36,
-17,
92,
7,
34,
-25,
-23,
11,
4,
55,
-6,
0,
-52,
58,
35,
-31,
81,
-24,
-15,
-48,
4,
-32,
-38,
17,
-19,
48,
-26,
-20,
22,
9,
-18,
45,
-37,
-37,
21,
27,
43,
-14,
25,
-15,
37,
9,
-55,
81,
-30,
44,
-1,
-25,
3,
-3,
29,
-35,
39,
41,
-24,
53,
-14,
-34,
55,
17,
15,
-13,
0,
12,
34,
31,
-47,
10,
-101,
18,
-45,
27,
-17,
-62,
-77,
-14,
-64,
-14,
-64,
-3,
-17,
80,
-20,
0,
-11,
-48,
20,
-47,
-3,
-13,
24,
11,
16,
-17,
-32,
-10,
-18,
-19,
24,
-7,
-11,
-35,
-15,
46,
29,
-50,
-47,
-27,
-49,
-34,
16,
45,
-31,
-11,
-4,
-50,
-20,
15,
-68,
-4,
-24,
-24,
6,
-18,
-43,
-16,
15,
3,
33,
12,
-37,
42,
20,
-11,
-30,
21,
7,
2,
13,
64,
32,
7,
46,
17,
-38,
3,
58,
-29,
-29,
-4,
64,
56,
47,
53,
-31,
-17,
-71,
16,
20,
-34,
56,
-2,
-6,
-29,
8
] |
On the Court’s own motion, we vacate our order of July 28, 2015. On order of the Court, the application for leave to appeal the October 27, 2014 order of the Court of Appeals is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate in part the St. Joseph Circuit Court order of July 24, 2014 denying the defendant’s motion for relief from judgment. The issue of entrapment by estoppel was not addressed in the circuit court or by the Court of Appeals in the defendant’s appeal of right. Therefore, MCR 6.508(D)(2) does not apply. We remand this case to the trial court to hold a hearing on the defendant’s ineffective assistance of counsel arguments pertaining to the issue of entrapment by estoppel. We further order the St. Joseph Circuit Court, in accord with Administrative Order 2003-03, to determine whether the defendant is indigent and, if so, to appoint counsel to represent the defendant at the hearing. In all other respects, leave to appeal is denied, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
-28,
-1,
-65,
26,
-6,
10,
-42,
41,
-36,
2,
-2,
-12,
5,
-46,
-20,
-19,
-3,
40,
-5,
1,
2,
0,
31,
24,
-14,
-37,
53,
-36,
19,
-3,
23,
0,
-8,
-52,
16,
0,
19,
25,
21,
-1,
-18,
50,
10,
9,
-23,
-10,
7,
26,
-3,
40,
-8,
-46,
-45,
54,
25,
-9,
-26,
-30,
16,
0,
-2,
28,
-13,
30,
29,
76,
-23,
-10,
-44,
-48,
-29,
28,
-15,
20,
-40,
8,
-53,
-20,
61,
33,
16,
18,
34,
-25,
-23,
34,
11,
-15,
-39,
10,
-56,
16,
-49,
-21,
-66,
69,
0,
-12,
85,
-56,
-26,
2,
-48,
-8,
-5,
-10,
9,
13,
-13,
25,
10,
-7,
2,
-38,
-57,
-9,
-46,
-80,
20,
-8,
40,
-36,
51,
-9,
38,
-5,
37,
-19,
6,
25,
-41,
34,
2,
1,
-26,
-2,
20,
-58,
-22,
6,
-8,
51,
26,
1,
-9,
-1,
-8,
-8,
11,
18,
35,
5,
18,
53,
14,
26,
11,
-29,
-5,
22,
31,
36,
-75,
-7,
2,
-22,
-15,
7,
-7,
-23,
32,
-8,
0,
46,
-63,
40,
15,
37,
-50,
-30,
-15,
28,
-34,
27,
13,
-12,
24,
20,
-34,
14,
-14,
-15,
36,
21,
11,
80,
-20,
39,
-42,
0,
-38,
29,
-56,
42,
62,
-15,
20,
-26,
24,
-16,
-8,
37,
-39,
-40,
15,
-30,
21,
6,
-14,
-15,
6,
26,
-30,
6,
-45,
-10,
-3,
10,
39,
48,
29,
30,
29,
11,
-2,
39,
31,
-9,
78,
-25,
22,
45,
22,
-46,
-68,
-10,
-1,
16,
-24,
-43,
18,
-27,
-6,
-2,
-16,
-8,
-9,
29,
-52,
-6,
2,
2,
5,
-2,
18,
22,
-34,
-6,
-19,
-11,
-3,
0,
42,
-56,
18,
5,
-53,
59,
31,
-28,
-12,
-15,
-5,
35,
-42,
20,
27,
-18,
38,
3,
-67,
-11,
-16,
15,
10,
-39,
-34,
24,
26,
24,
-24,
-18,
-40,
8,
16,
-18,
8,
18,
60,
-35,
2,
52,
11,
-11,
21,
-62,
-27,
14,
-45,
-13,
-20,
12,
-20,
55,
4,
6,
41,
-23,
-25,
31,
5,
-28,
-24,
-47,
-1,
73,
-21,
64,
-32,
-32,
6,
-38,
-10,
-42,
-3,
-13,
11,
16,
32,
7,
-34,
-23,
-5,
-15,
5,
10,
-32,
-53,
-3,
46,
32,
-27,
14,
-43,
54,
4,
13,
67,
6,
-13,
-39,
-40,
-15,
-44,
-10,
-34,
-41,
7,
-31,
-7,
-33,
-73,
-7,
21,
8,
-12,
-53,
30,
1,
66,
-18,
-23,
84,
0,
50,
49,
-2,
17,
10,
-21,
6,
9,
-8,
53,
-68,
-6,
-25,
-41,
20,
53,
33,
43,
87,
63,
-18,
-4,
18,
29,
0,
11,
-1,
-17,
-6,
4,
1,
31,
2,
-77,
20,
31,
-2,
16,
25,
-37,
10,
42,
0,
-61,
-33,
24,
13,
5,
1,
24,
9,
-72,
-23,
-4,
-59,
68,
-38,
34,
18,
-3,
-2,
-34,
26,
18,
-49,
-45,
50,
-7,
-34,
38,
-53,
-51,
-51,
1,
33,
-1,
17,
15,
21,
-6,
-49,
10,
-19,
38,
-25,
18,
8,
40,
78,
1,
28,
32,
15,
33,
0,
34,
-42,
8,
10,
25,
37,
-31,
-57,
-13,
-1,
40,
5,
11,
32,
8,
41,
10,
-2,
16,
22,
-9,
1,
21,
18,
23,
-42,
35,
20,
-2,
-1,
-51,
-10,
-13,
35,
0,
20,
10,
-31,
5,
38,
8,
29,
-6,
17,
-3,
-73,
-8,
20,
-30,
-4,
21,
-23,
-26,
-61,
9,
40,
-15,
-4,
-21,
23,
11,
-7,
5,
10,
14,
-5,
-53,
-17,
13,
-1,
-34,
31,
17,
0,
-15,
-63,
12,
-27,
-36,
-14,
33,
17,
31,
26,
15,
17,
36,
18,
-21,
23,
-23,
21,
-34,
40,
-54,
6,
-44,
-17,
-24,
5,
-20,
-6,
-33,
44,
-30,
37,
1,
14,
-6,
14,
54,
-30,
3,
-11,
14,
34,
-6,
0,
11,
9,
2,
63,
-5,
-17,
-5,
-29,
8,
14,
40,
-7,
19,
-21,
16,
-10,
-12,
0,
-75,
15,
-13,
34,
-21,
65,
63,
62,
-15,
-3,
63,
13,
31,
43,
-2,
1,
44,
17,
13,
-31,
31,
18,
-55,
8,
15,
-16,
69,
21,
-28,
62,
-27,
-22,
0,
46,
-35,
14,
-13,
-44,
11,
8,
-22,
-71,
33,
18,
15,
23,
21,
-5,
29,
4,
-28,
-14,
-45,
-22,
13,
-40,
-22,
-9,
2,
-43,
13,
-2,
13,
-22,
-3,
11,
17,
27,
0,
23,
-23,
14,
31,
49,
-27,
-10,
13,
79,
-35,
-9,
-11,
-11,
-6,
-45,
31,
-26,
52,
-33,
15,
39,
25,
-42,
-15,
-13,
-30,
10,
-13,
-28,
-19,
76,
45,
26,
4,
23,
-44,
-29,
20,
40,
-60,
-25,
7,
-9,
-17,
-18,
7,
-13,
-19,
-4,
-17,
52,
34,
-12,
-8,
-12,
-18,
12,
-18,
2,
29,
-15,
-3,
3,
-11,
-6,
-3,
2,
3,
-23,
-20,
-11,
-10,
3,
11,
22,
39,
-12,
-4,
52,
-49,
27,
0,
34,
7,
-12,
28,
13,
7,
14,
-19,
52,
-31,
-31,
-69,
-31,
-12,
43,
-40,
-42,
6,
21,
-17,
-14,
-46,
-6,
-8,
33,
38,
-35,
48,
-17,
42,
-34,
62,
18,
5,
-36,
-27,
-6,
7,
6,
-24,
-14,
14,
0,
-49,
16,
37,
-48,
-1,
-19,
6,
52,
32,
0,
7,
-9,
-51,
-2,
15,
18,
-44,
-20,
6,
38,
-42,
4,
-40,
2,
-21,
20,
-14,
-6,
-37,
6,
-29,
34,
-13,
1,
17,
-46,
14,
-16,
-7,
49,
-11,
15,
55,
5,
6,
-3,
18,
-15,
8,
38,
-3,
26,
-29,
-23,
6,
20,
-2,
41,
-4,
77,
3,
-60,
-43,
-11,
-41,
-42,
-54,
-46,
10,
-31,
1,
30,
27,
17,
42,
4,
16,
-10,
-33,
-2,
-60,
32,
-11,
20,
-14,
-5,
-16,
4,
-9,
28,
1,
-21,
21,
11,
-21,
65,
29,
-63,
19,
39,
-44,
-17,
-12,
-6,
-55,
-20,
-42,
-27,
14,
1,
1,
34,
16,
-43,
-37,
15,
-5,
-25,
-25,
11,
27,
-36,
-3,
-35,
-2,
-11,
54,
-9,
-28,
20,
-7,
-21,
-74,
23,
-10,
22,
34,
-16,
-61,
-85,
28,
-30,
-6,
-11,
17,
11,
-13,
28,
-25,
19,
-38,
-1,
3,
18,
-35,
-20,
-25,
10,
-31,
7,
24,
25,
-85,
-36,
-43,
17,
-1,
-58,
9,
-42,
-54,
50,
-28,
19,
-40,
-6,
28,
-37,
-12,
26,
21,
35,
-7,
14,
-2,
23,
15,
35,
-9,
-47,
-4,
63,
-9,
54,
17,
26,
-34,
-1,
-12,
17,
-12,
2,
-38,
-49,
33
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration, as on leave granted, limited to whether the district court abused its discretion in awarding sanctions to the plaintiff and whether the circuit court erred in affirming that decision. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. | [
-7,
-41,
-91,
-13,
-6,
38,
-10,
31,
-75,
24,
-11,
-13,
30,
-33,
12,
-23,
27,
33,
15,
8,
11,
47,
45,
21,
-8,
-71,
5,
-8,
-6,
9,
5,
14,
-23,
-32,
0,
-13,
43,
-31,
15,
-9,
-34,
-17,
3,
-25,
-23,
-41,
1,
13,
2,
11,
14,
44,
-53,
30,
16,
41,
11,
-12,
-48,
-1,
-51,
42,
-6,
26,
49,
29,
-34,
-36,
-14,
-47,
-11,
31,
-9,
20,
6,
-28,
-28,
15,
46,
46,
32,
4,
5,
-33,
54,
29,
22,
23,
-44,
29,
2,
-11,
-35,
-53,
-38,
33,
11,
-37,
39,
6,
-11,
19,
-26,
13,
21,
-8,
7,
21,
16,
48,
57,
15,
-24,
-50,
-55,
3,
-11,
-20,
8,
-31,
16,
26,
19,
23,
58,
-7,
19,
-3,
-66,
-11,
-18,
12,
47,
0,
27,
-24,
18,
-19,
-17,
-8,
11,
11,
61,
0,
9,
21,
38,
-18,
-34,
-19,
30,
0,
-39,
58,
-10,
17,
45,
-17,
0,
20,
-3,
77,
-44,
14,
56,
-31,
-40,
17,
12,
-1,
48,
45,
32,
16,
-47,
13,
2,
11,
-13,
34,
-45,
29,
-2,
-25,
5,
0,
-23,
-9,
-64,
-58,
-29,
-21,
24,
2,
65,
28,
30,
18,
8,
-2,
-68,
28,
-4,
60,
26,
-40,
28,
3,
2,
-42,
-24,
48,
12,
-39,
10,
-28,
25,
9,
-38,
59,
-9,
23,
-6,
-5,
-54,
-35,
-7,
44,
20,
-24,
-21,
61,
19,
46,
-4,
25,
13,
6,
66,
-39,
-34,
18,
-5,
-41,
-7,
9,
-15,
17,
-2,
-45,
38,
9,
21,
-27,
-20,
-8,
-1,
12,
-36,
-17,
34,
45,
22,
0,
-24,
13,
-9,
22,
5,
-22,
-2,
37,
4,
-55,
24,
2,
14,
7,
29,
-9,
-34,
36,
-5,
16,
-49,
9,
9,
-7,
64,
28,
2,
-15,
10,
8,
26,
0,
-39,
28,
-25,
-22,
32,
-3,
17,
-12,
36,
-10,
1,
27,
6,
-29,
42,
35,
-7,
13,
6,
5,
-17,
-9,
12,
-58,
-35,
3,
7,
-53,
3,
-17,
28,
-51,
-4,
11,
26,
0,
-24,
39,
19,
45,
-2,
17,
-5,
18,
0,
20,
0,
30,
-6,
-3,
-55,
-10,
26,
49,
8,
12,
-15,
7,
-4,
0,
-22,
-51,
-58,
39,
4,
-46,
-7,
-49,
7,
-26,
37,
-3,
13,
3,
11,
-38,
32,
-9,
-43,
9,
-18,
21,
-6,
-34,
-52,
-45,
31,
10,
28,
-17,
-13,
32,
72,
2,
26,
-13,
17,
-33,
-1,
12,
9,
31,
79,
20,
-37,
-22,
-27,
14,
-46,
-20,
5,
-21,
-53,
39,
-23,
66,
35,
62,
-13,
-10,
12,
18,
22,
-13,
-11,
-55,
-3,
-15,
-29,
13,
22,
-13,
17,
-9,
-8,
-39,
-36,
-61,
-59,
33,
0,
-23,
-15,
25,
-74,
-8,
-22,
-10,
-37,
-74,
-22,
-19,
-13,
-27,
-15,
-11,
0,
-33,
-47,
-15,
-40,
23,
22,
-19,
13,
-39,
8,
69,
24,
-27,
-38,
40,
-14,
14,
-15,
25,
16,
52,
18,
5,
-51,
3,
29,
31,
-16,
-18,
-22,
3,
-3,
30,
0,
7,
38,
25,
-14,
31,
-8,
17,
3,
26,
32,
-27,
-20,
60,
-19,
-18,
11,
-31,
66,
-35,
-5,
-55,
41,
10,
-19,
17,
22,
4,
17,
23,
9,
-2,
1,
-15,
9,
-42,
-18,
-47,
-68,
-2,
-77,
-36,
16,
8,
17,
3,
21,
-50,
-14,
-29,
-19,
-10,
-4,
15,
-12,
-9,
-31,
17,
-10,
5,
-27,
11,
-2,
20,
-5,
6,
-10,
21,
-10,
-42,
-23,
-14,
3,
-13,
-7,
-12,
12,
5,
-21,
-18,
-7,
-7,
8,
49,
94,
-5,
6,
40,
29,
4,
38,
44,
2,
-25,
-2,
-22,
28,
-59,
16,
-49,
-4,
-2,
1,
-47,
-38,
-40,
4,
-33,
0,
-24,
16,
-31,
12,
81,
-2,
28,
-36,
-9,
28,
29,
28,
14,
-12,
1,
10,
-38,
0,
-50,
-47,
-13,
-9,
24,
-18,
34,
3,
-1,
-13,
-30,
-34,
-28,
1,
-17,
-9,
2,
12,
58,
52,
-27,
-27,
-5,
-45,
41,
-30,
-11,
44,
32,
3,
1,
-3,
-37,
49,
-28,
-39,
17,
25,
79,
16,
-27,
36,
-48,
-28,
-10,
28,
-18,
-27,
-29,
-10,
45,
-30,
-24,
-38,
33,
41,
20,
-27,
39,
12,
39,
6,
-14,
8,
-22,
-1,
-15,
-33,
-39,
-14,
-26,
4,
20,
11,
8,
-9,
7,
52,
16,
57,
20,
-16,
-34,
17,
37,
-8,
-3,
-26,
3,
14,
5,
4,
18,
-33,
-27,
35,
-2,
-17,
54,
-52,
5,
18,
-2,
-17,
-37,
-24,
-25,
27,
-57,
2,
0,
4,
50,
19,
14,
45,
-33,
27,
0,
29,
13,
-54,
-27,
-14,
-10,
22,
7,
-2,
1,
-11,
-8,
-4,
71,
32,
12,
-25,
7,
44,
-5,
-18,
2,
-46,
23,
30,
-37,
-14,
-10,
14,
0,
-2,
6,
1,
-44,
16,
-22,
10,
-7,
18,
5,
80,
-32,
-7,
8,
-17,
21,
-16,
-18,
-2,
7,
-21,
49,
5,
-50,
-47,
-60,
-38,
0,
32,
-61,
-22,
12,
51,
31,
-1,
0,
5,
-14,
11,
19,
-5,
32,
-1,
43,
-5,
1,
32,
-20,
80,
6,
-34,
65,
14,
-11,
20,
27,
-13,
-56,
48,
44,
-18,
-7,
-7,
-11,
42,
9,
43,
22,
-31,
-63,
57,
36,
-21,
-19,
17,
24,
16,
-14,
-1,
-29,
-5,
-29,
-6,
54,
-39,
20,
11,
13,
14,
-52,
-50,
5,
-13,
-32,
4,
-14,
53,
32,
32,
64,
6,
16,
10,
20,
-26,
-45,
45,
-19,
17,
-42,
20,
67,
-21,
16,
-4,
-23,
-9,
40,
15,
-77,
51,
-30,
25,
21,
-44,
-11,
-15,
5,
28,
27,
-6,
8,
10,
8,
-34,
14,
-32,
-10,
1,
-43,
14,
5,
56,
-30,
12,
-13,
-5,
30,
-34,
57,
-35,
-14,
54,
-8,
-62,
5,
18,
-36,
3,
35,
-26,
-20,
-14,
-53,
51,
-35,
6,
-22,
19,
-28,
-7,
-37,
56,
-21,
-10,
-11,
-36,
-1,
-16,
-13,
-36,
-18,
-30,
2,
-53,
36,
9,
-39,
-36,
-30,
-3,
5,
-23,
-4,
-29,
13,
-17,
3,
-48,
-11,
-17,
26,
13,
53,
-63,
28,
-66,
-46,
2,
-2,
8,
-33,
31,
18,
-30,
-32,
3,
59,
-22,
-49,
-9,
-37,
-52,
-7,
-25,
-31,
-47,
-62,
42,
-33,
61,
-6,
1,
65,
-53,
6,
71,
-4,
38,
23,
-7,
-35,
14,
7,
25,
13,
5,
43,
21,
16,
32,
11,
10,
21,
-27,
-21,
-76,
70,
0,
0,
-22,
-28
] |
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. | [
-5,
-41,
-94,
2,
-15,
52,
-21,
-20,
-22,
0,
-16,
14,
20,
-75,
-23,
12,
-48,
-1,
-5,
-5,
-23,
39,
58,
21,
16,
-26,
20,
-24,
54,
-40,
-16,
19,
-35,
-50,
47,
-49,
68,
-25,
24,
-11,
-7,
21,
2,
-19,
-71,
-44,
32,
34,
80,
42,
0,
53,
-62,
4,
-14,
42,
-12,
-25,
-24,
35,
-13,
58,
-8,
15,
68,
23,
-12,
-59,
-5,
-57,
22,
26,
-31,
72,
-8,
40,
15,
19,
47,
66,
45,
6,
-25,
-43,
-1,
60,
31,
22,
-32,
32,
-19,
1,
-17,
-33,
-68,
26,
-5,
-41,
36,
58,
-25,
-14,
-15,
-36,
38,
-1,
-48,
10,
-30,
40,
47,
21,
7,
-67,
-3,
22,
-55,
11,
12,
5,
0,
53,
-9,
17,
38,
-7,
-10,
-2,
-44,
-13,
-26,
15,
12,
-8,
17,
22,
42,
-6,
-35,
-53,
-21,
82,
34,
-5,
35,
12,
-2,
-21,
-13,
11,
59,
-2,
-67,
56,
-48,
-6,
16,
-6,
7,
43,
-18,
32,
-5,
-14,
65,
-44,
-53,
10,
-8,
2,
46,
8,
26,
9,
-58,
43,
-17,
37,
-15,
23,
-78,
26,
-18,
-48,
-22,
1,
-84,
35,
-46,
-17,
-35,
-45,
46,
27,
13,
14,
-5,
24,
-34,
-10,
-101,
22,
-8,
-18,
-3,
-86,
14,
0,
20,
-48,
-15,
65,
-22,
-29,
38,
14,
26,
47,
-14,
72,
-10,
7,
37,
-27,
8,
33,
11,
56,
46,
-2,
10,
18,
26,
24,
4,
30,
25,
16,
70,
-62,
4,
-44,
23,
-46,
22,
-16,
-8,
49,
-3,
-69,
45,
-19,
30,
-23,
6,
1,
-22,
32,
15,
-5,
43,
44,
52,
12,
-76,
45,
-12,
-9,
9,
5,
9,
75,
32,
-57,
-8,
16,
23,
20,
48,
-10,
-12,
-3,
-86,
42,
-7,
-26,
-51,
-33,
34,
-19,
-24,
23,
57,
-20,
-1,
-11,
-86,
41,
-6,
-15,
11,
16,
9,
-22,
21,
13,
-40,
17,
35,
-44,
34,
20,
10,
-8,
27,
-31,
-29,
16,
15,
-42,
-16,
-6,
16,
-43,
-4,
13,
10,
-60,
-7,
41,
16,
-46,
-15,
-3,
-49,
85,
-7,
48,
22,
49,
-11,
31,
1,
10,
-13,
20,
-31,
-62,
10,
17,
-4,
-3,
-18,
41,
12,
-9,
-49,
-23,
-49,
18,
30,
-9,
-1,
-34,
46,
-6,
23,
3,
-14,
-38,
-30,
-44,
-9,
-24,
-56,
15,
12,
7,
-29,
-34,
-77,
-30,
-2,
-5,
-4,
-67,
-13,
67,
29,
6,
42,
2,
-28,
-13,
-34,
5,
14,
19,
27,
-30,
-25,
-4,
8,
25,
-17,
-45,
11,
-11,
-11,
48,
-16,
62,
-47,
43,
33,
-20,
24,
33,
19,
-25,
3,
-52,
-34,
-7,
-6,
48,
46,
-45,
0,
-21,
-11,
-61,
-47,
-23,
-43,
25,
-48,
-43,
13,
32,
-42,
-56,
-24,
-14,
-68,
-73,
-47,
-19,
-29,
-49,
-8,
-13,
33,
-30,
-21,
-43,
-33,
30,
-17,
-33,
-10,
-42,
31,
34,
23,
-26,
-41,
47,
11,
45,
-35,
-8,
50,
64,
-35,
-28,
-29,
37,
12,
-18,
-3,
-76,
-57,
27,
9,
56,
29,
72,
47,
49,
-11,
21,
-8,
49,
-34,
10,
16,
-43,
-22,
54,
-21,
-66,
5,
-9,
73,
-28,
-20,
-32,
36,
-8,
-40,
-51,
-2,
60,
35,
16,
5,
-2,
-11,
-43,
-39,
-23,
20,
-55,
-57,
19,
-74,
-1,
17,
0,
-32,
-15,
-11,
-38,
-13,
-23,
-55,
-31,
-16,
-26,
-6,
-17,
-6,
2,
18,
37,
-1,
25,
16,
33,
2,
34,
-4,
55,
0,
-24,
-61,
-8,
32,
-9,
9,
-21,
3,
10,
-29,
-21,
-36,
-11,
-16,
45,
100,
-37,
58,
75,
31,
23,
14,
13,
-6,
-12,
40,
21,
21,
-23,
25,
-22,
-51,
-8,
-4,
-26,
-36,
6,
8,
6,
-6,
36,
55,
14,
-76,
55,
-7,
16,
-51,
0,
-25,
46,
33,
13,
7,
18,
-12,
-29,
16,
13,
-57,
-48,
37,
40,
-24,
63,
-4,
-9,
-68,
-6,
-43,
-42,
35,
-3,
19,
-15,
8,
104,
26,
-18,
-33,
-16,
-2,
28,
-24,
4,
-20,
36,
31,
30,
-14,
-48,
57,
-39,
-23,
34,
43,
94,
14,
19,
35,
-23,
-6,
4,
63,
-23,
-21,
-21,
6,
3,
-38,
-37,
-42,
14,
25,
27,
18,
53,
-5,
54,
9,
-29,
33,
1,
-34,
-21,
-50,
-6,
-56,
10,
-14,
11,
19,
5,
-39,
56,
6,
17,
10,
32,
-35,
-24,
-3,
25,
60,
13,
-11,
-1,
45,
-8,
-15,
-11,
-35,
-14,
36,
-35,
16,
50,
-44,
13,
23,
-13,
-32,
-61,
31,
-14,
58,
-7,
-38,
5,
-15,
87,
-41,
42,
31,
-33,
3,
-26,
4,
-25,
-32,
-93,
-21,
54,
15,
67,
-19,
-34,
-39,
15,
25,
126,
45,
40,
-7,
16,
2,
11,
11,
-16,
-47,
16,
19,
-20,
-34,
15,
42,
-40,
-5,
54,
0,
-55,
12,
26,
-19,
-8,
-5,
21,
110,
-2,
-15,
32,
-26,
34,
7,
-20,
-33,
-33,
-22,
27,
0,
-53,
-57,
-85,
-52,
-14,
34,
-39,
25,
18,
53,
6,
23,
-56,
-24,
6,
6,
17,
-40,
45,
20,
37,
-18,
38,
20,
-11,
54,
0,
-29,
63,
-30,
3,
18,
15,
7,
-41,
57,
23,
-27,
-24,
12,
-6,
21,
25,
39,
-11,
-35,
-7,
30,
-1,
-25,
-23,
41,
-18,
33,
-27,
-37,
-47,
35,
-30,
-4,
32,
-42,
38,
24,
11,
-6,
7,
-6,
25,
-11,
-4,
-23,
32,
62,
15,
-16,
35,
69,
41,
26,
45,
3,
15,
54,
-29,
24,
-86,
27,
82,
-8,
21,
-10,
-11,
19,
46,
25,
-65,
39,
-55,
55,
18,
-11,
27,
-53,
9,
27,
83,
6,
53,
0,
18,
-21,
14,
-60,
12,
-37,
-21,
9,
7,
78,
-35,
-55,
0,
12,
67,
4,
50,
-62,
8,
51,
-9,
-37,
-27,
14,
-4,
41,
15,
-11,
-2,
-4,
-46,
13,
-62,
26,
-30,
16,
-32,
-56,
-51,
89,
-36,
-33,
-5,
-70,
-25,
-21,
9,
-14,
-11,
-10,
6,
0,
1,
29,
-29,
-36,
-9,
-4,
-20,
-12,
27,
-12,
17,
-11,
-10,
-64,
-51,
19,
-15,
-4,
17,
-118,
13,
-42,
-42,
-5,
12,
12,
-12,
21,
4,
-16,
-44,
55,
62,
-31,
-42,
-19,
-72,
-45,
18,
-57,
-61,
-27,
-41,
36,
-32,
20,
4,
-24,
1,
-48,
-2,
32,
16,
42,
40,
16,
-70,
-10,
-4,
-17,
-4,
-12,
28,
34,
31,
44,
0,
18,
23,
15,
13,
-77,
50,
21,
-58,
-29,
-38
] |
Leave to appeal denied at 497 Mich 1027. | [
13,
-1,
-41,
6,
2,
59,
32,
36,
-24,
19,
-30,
32,
20,
-64,
26,
48,
98,
10,
-12,
-9,
-40,
-12,
-17,
51,
-39,
-75,
60,
35,
-41,
-56,
7,
-44,
-55,
-57,
-38,
-17,
-35,
-18,
-3,
4,
-33,
-47,
0,
20,
-39,
-76,
11,
15,
-31,
9,
-67,
20,
-70,
25,
12,
27,
49,
-35,
4,
59,
-44,
49,
39,
47,
20,
0,
-11,
-7,
14,
-15,
-19,
27,
-11,
43,
13,
17,
36,
88,
32,
76,
36,
13,
10,
8,
18,
15,
11,
57,
-15,
8,
7,
-49,
-53,
55,
-32,
56,
7,
-28,
43,
-68,
3,
35,
20,
-49,
2,
-48,
7,
65,
-32,
0,
47,
-20,
1,
-34,
8,
-7,
-29,
15,
38,
4,
-21,
53,
9,
34,
45,
-3,
26,
-12,
3,
-47,
15,
37,
41,
36,
-16,
-23,
53,
-98,
-16,
-33,
-20,
111,
41,
-26,
-20,
-61,
35,
-23,
23,
-63,
-6,
20,
-7,
23,
-9,
34,
14,
-19,
34,
5,
2,
33,
-50,
28,
76,
-32,
25,
44,
38,
16,
10,
19,
16,
-56,
-41,
18,
-24,
42,
-26,
19,
-38,
8,
-5,
21,
0,
-60,
3,
-49,
31,
-76,
-38,
-50,
103,
41,
13,
31,
31,
39,
-15,
6,
-4,
39,
-43,
17,
38,
-62,
11,
-42,
3,
6,
-48,
2,
0,
-24,
67,
-17,
-36,
34,
46,
3,
39,
11,
0,
-7,
-20,
20,
-20,
36,
7,
6,
20,
34,
11,
-17,
43,
-30,
6,
-8,
62,
-69,
-84,
-12,
-18,
77,
-3,
-31,
-78,
15,
51,
-46,
33,
-8,
25,
-85,
-35,
-64,
-32,
34,
-9,
-13,
20,
19,
30,
5,
-27,
15,
-19,
-2,
11,
-68,
35,
22,
-12,
-78,
38,
-9,
18,
43,
60,
6,
-39,
14,
-4,
-27,
-67,
50,
28,
-5,
-35,
7,
-8,
8,
43,
75,
-4,
-47,
-34,
38,
-3,
36,
26,
57,
-38,
3,
20,
-48,
-51,
-66,
77,
23,
41,
-18,
8,
45,
15,
-48,
-20,
-95,
-28,
-6,
-13,
2,
1,
86,
8,
52,
-20,
50,
44,
16,
-5,
22,
-60,
75,
-18,
52,
-17,
-55,
-39,
22,
4,
69,
19,
24,
-19,
-8,
-96,
-15,
82,
34,
24,
62,
-6,
-33,
18,
55,
-15,
-35,
-48,
36,
9,
-38,
-3,
49,
10,
-27,
-17,
40,
25,
43,
-61,
3,
45,
3,
15,
41,
-50,
-54,
-20,
-22,
-18,
-25,
-15,
26,
22,
10,
15,
12,
22,
59,
0,
-76,
-9,
-22,
40,
-6,
7,
69,
12,
24,
-56,
-48,
-100,
63,
-29,
-13,
21,
-2,
-32,
84,
-7,
36,
40,
26,
-50,
7,
61,
-6,
20,
1,
-14,
-61,
-48,
22,
-51,
5,
-54,
9,
-5,
59,
-9,
-49,
-3,
-46,
-42,
32,
24,
-22,
-2,
9,
-38,
-37,
21,
-89,
8,
-61,
-48,
-37,
-97,
-71,
-13,
-16,
12,
-41,
-43,
-38,
-66,
39,
-5,
1,
-33,
-35,
-55,
25,
-2,
15,
-65,
44,
10,
-49,
-21,
4,
-41,
-48,
46,
-8,
-6,
-20,
-3,
-12,
20,
-11,
-16,
7,
27,
-8,
11,
0,
-20,
6,
-22,
88,
43,
45,
-30,
54,
17,
-5,
-1,
30,
-41,
-2,
11,
37,
-12,
-36,
6,
-17,
0,
2,
0,
-27,
-10,
16,
-60,
57,
-25,
23,
8,
0,
1,
1,
22,
10,
21,
8,
-68,
-52,
19,
93,
-18,
-9,
33,
53,
11,
-66,
46,
38,
-68,
61,
23,
-30,
-32,
25,
22,
51,
-63,
-41,
-6,
-7,
20,
-10,
-62,
-1,
0,
-36,
5,
-15,
18,
-15,
-4,
-25,
33,
20,
-55,
-37,
-31,
41,
14,
94,
67,
41,
7,
11,
58,
9,
8,
6,
-22,
0,
-13,
23,
40,
-15,
-19,
-60,
-63,
-31,
-15,
-13,
-50,
-4,
5,
-69,
4,
23,
-9,
-9,
6,
75,
-72,
5,
-20,
19,
-33,
42,
-33,
-8,
39,
25,
-36,
43,
3,
-12,
-45,
-5,
1,
6,
25,
-7,
79,
20,
-15,
-45,
-58,
-35,
18,
4,
22,
16,
-21,
68,
0,
-44,
18,
19,
0,
-1,
1,
87,
2,
2,
3,
21,
-2,
-22,
7,
-92,
-14,
-11,
-28,
27,
-37,
-9,
10,
21,
-10,
-44,
37,
-11,
-9,
70,
-28,
55,
-72,
-57,
0,
45,
96,
57,
-27,
41,
0,
3,
5,
-63,
18,
-18,
0,
36,
-40,
-2,
-17,
17,
18,
-39,
17,
33,
9,
19,
48,
55,
42,
3,
-49,
-12,
-16,
51,
-20,
16,
1,
23,
-1,
-29,
12,
59,
-7,
-41,
-36,
0,
-49,
9,
51,
18,
96,
15,
-18,
-33,
6,
-16,
15,
-10,
-79,
-14,
3,
64,
0,
-18,
47,
47,
-12,
1,
35,
-9,
-43,
26,
21,
31,
24,
16,
-24,
-48,
-17,
-51,
-17,
-2,
54,
-43,
0,
-58,
26,
-40,
-9,
64,
-75,
-36,
-33,
9,
9,
22,
8,
-59,
-42,
32,
14,
-11,
16,
19,
59,
23,
24,
-4,
4,
-32,
-17,
-10,
-7,
6,
12,
-12,
42,
-15,
-57,
8,
47,
4,
-69,
-48,
-22,
-46,
36,
-65,
9,
-7,
10,
35,
17,
-38,
28,
0,
0,
17,
17,
19,
13,
-29,
-50,
23,
-27,
-24,
44,
17,
-57,
-15,
25,
-40,
71,
72,
-22,
-4,
45,
12,
-41,
8,
21,
-25,
-9,
47,
32,
10,
3,
35,
70,
6,
-63,
-67,
-19,
-70,
73,
10,
-9,
-33,
-24,
-37,
-25,
6,
28,
-29,
-21,
-47,
-55,
-56,
0,
-5,
-11,
47,
-10,
16,
18,
12,
53,
19,
0,
43,
-42,
0,
42,
-53,
38,
13,
3,
-64,
17,
17,
-12,
23,
-6,
-48,
10,
43,
18,
-52,
49,
-70,
75,
-29,
27,
9,
-9,
26,
46,
2,
-51,
22,
54,
28,
8,
27,
-38,
8,
0,
-48,
-15,
-31,
30,
-22,
36,
-6,
17,
10,
-70,
29,
-22,
-58,
24,
-58,
-97,
30,
-37,
17,
12,
-10,
-16,
-6,
17,
-31,
-21,
-4,
1,
-69,
56,
-48,
-28,
-35,
-7,
-18,
6,
-90,
-1,
-17,
11,
62,
-37,
-39,
1,
14,
-46,
15,
13,
12,
24,
-43,
43,
-43,
-7,
1,
-40,
-26,
-34,
-18,
9,
19,
17,
43,
-16,
-23,
-7,
3,
-7,
55,
-26,
19,
15,
-10,
-48,
20,
-72,
-11,
77,
-15,
-16,
-46,
59,
-50,
-27,
-43,
3,
17,
-17,
-16,
-11,
21,
7,
-19,
37,
-2,
-45,
14,
-1,
89,
105,
36,
26,
-33,
13,
35,
15,
-22,
56,
31,
25,
31,
48,
26,
19,
-37,
-3,
17,
-24,
87,
5,
-38,
-37,
-39
] |
Leave to appeal denied at 498 Mich 864. | [
13,
-18,
-36,
-14,
26,
54,
24,
46,
-57,
42,
-18,
7,
15,
-52,
19,
52,
75,
25,
-4,
14,
-13,
10,
4,
52,
-32,
-80,
51,
23,
-33,
-66,
5,
-52,
-43,
-61,
-25,
-20,
-19,
9,
-1,
11,
-39,
-32,
-19,
12,
-22,
-59,
4,
21,
-28,
12,
-58,
33,
-84,
20,
-2,
48,
60,
-41,
-36,
52,
-46,
54,
44,
60,
22,
0,
-43,
7,
25,
-18,
-20,
12,
4,
22,
15,
27,
32,
81,
29,
66,
19,
11,
6,
23,
51,
42,
6,
57,
-6,
-9,
-1,
-49,
-39,
37,
-51,
54,
-1,
-43,
39,
-87,
-24,
44,
16,
-56,
-11,
-24,
19,
62,
-43,
5,
32,
-27,
-25,
-25,
11,
-18,
-4,
11,
61,
3,
-21,
38,
17,
37,
53,
-15,
39,
-10,
-8,
-51,
10,
70,
87,
43,
-9,
-25,
64,
-96,
-48,
-65,
-31,
97,
41,
-26,
-26,
-57,
32,
-20,
24,
-46,
-4,
0,
-5,
11,
-9,
51,
9,
-18,
41,
3,
29,
32,
-60,
20,
62,
-30,
33,
35,
46,
25,
27,
4,
18,
-46,
-29,
20,
2,
42,
-38,
0,
-40,
17,
-15,
35,
-6,
-69,
37,
-44,
-12,
-78,
-52,
-46,
80,
24,
27,
18,
20,
21,
-21,
10,
-16,
29,
-35,
38,
43,
-56,
-14,
-36,
38,
19,
-58,
8,
-35,
-12,
35,
-21,
-30,
24,
41,
11,
32,
40,
-13,
-23,
-17,
50,
-16,
34,
13,
-5,
-1,
26,
3,
-17,
43,
-37,
10,
16,
55,
-56,
-75,
-14,
-19,
58,
-13,
-25,
-65,
-20,
39,
-42,
46,
15,
15,
-95,
-42,
-44,
-21,
3,
-7,
-9,
12,
-4,
44,
25,
-30,
31,
-38,
21,
31,
-54,
34,
36,
-15,
-57,
32,
9,
0,
23,
75,
1,
-29,
0,
1,
-14,
-63,
55,
20,
-18,
-20,
17,
14,
-2,
16,
53,
8,
-29,
-40,
23,
-19,
21,
3,
56,
-40,
31,
53,
-48,
-54,
-51,
86,
20,
22,
-12,
0,
45,
20,
-56,
-9,
-93,
-40,
-13,
3,
8,
-19,
61,
-34,
65,
-29,
57,
28,
31,
11,
17,
-70,
84,
-22,
48,
-21,
-55,
-34,
24,
-5,
60,
-16,
35,
-7,
-1,
-93,
-9,
94,
26,
27,
35,
-24,
-46,
6,
77,
-18,
-39,
-59,
50,
14,
-74,
-18,
55,
-6,
-31,
7,
64,
12,
28,
-67,
-8,
46,
-11,
28,
47,
-32,
-41,
6,
-31,
-8,
-43,
-24,
23,
42,
23,
17,
18,
23,
63,
-14,
-64,
-42,
-38,
33,
-17,
32,
48,
22,
23,
-51,
-53,
-93,
81,
-33,
-26,
12,
21,
-29,
62,
0,
8,
34,
23,
-58,
1,
62,
-11,
-22,
-7,
-41,
-52,
-51,
19,
-44,
-1,
-37,
4,
12,
59,
4,
-37,
25,
-51,
-24,
22,
19,
-30,
-5,
27,
-40,
-26,
26,
-94,
-6,
-74,
-22,
-10,
-84,
-50,
-11,
27,
6,
-46,
-50,
-52,
-46,
82,
13,
15,
-39,
-52,
-56,
54,
-18,
-10,
-54,
41,
21,
-32,
-1,
20,
-47,
-31,
35,
-35,
-18,
-59,
-19,
-10,
0,
-22,
-1,
8,
27,
8,
1,
1,
-28,
-6,
-22,
76,
36,
31,
-17,
59,
22,
-2,
17,
5,
-54,
0,
-8,
10,
6,
-33,
-4,
-26,
8,
-4,
13,
-19,
0,
34,
-51,
71,
-22,
6,
0,
-31,
-34,
5,
31,
6,
31,
-3,
-55,
-24,
9,
95,
-20,
-5,
31,
54,
-4,
-70,
51,
31,
-86,
51,
30,
-43,
-29,
0,
-5,
40,
-66,
-59,
-19,
-6,
14,
-26,
-70,
7,
-9,
-40,
9,
-2,
27,
-27,
-11,
-11,
1,
30,
-30,
-48,
-20,
34,
11,
54,
58,
33,
2,
8,
65,
8,
37,
1,
12,
0,
-44,
4,
38,
-43,
-7,
-64,
-58,
-4,
-24,
-12,
-48,
-11,
-1,
-62,
30,
7,
-8,
6,
-12,
93,
-63,
18,
-4,
3,
11,
10,
-23,
10,
29,
16,
-11,
37,
0,
-10,
-24,
2,
9,
13,
29,
-9,
76,
40,
-15,
-37,
-48,
-2,
3,
8,
58,
24,
-8,
66,
6,
-34,
24,
26,
16,
21,
-12,
70,
20,
-4,
-5,
1,
15,
-42,
17,
-74,
-14,
-13,
-29,
35,
-12,
-24,
4,
31,
-17,
-49,
31,
-18,
-29,
57,
-1,
26,
-59,
-54,
13,
20,
91,
62,
-46,
59,
5,
5,
-15,
-24,
18,
-9,
-8,
50,
-27,
-31,
-13,
21,
-9,
-45,
12,
33,
20,
23,
43,
57,
54,
-20,
-36,
-8,
6,
64,
-24,
4,
7,
25,
24,
-26,
-16,
46,
-23,
-39,
-21,
2,
-59,
-5,
46,
10,
100,
25,
-35,
-47,
3,
-6,
14,
-17,
-80,
-27,
28,
46,
16,
-17,
56,
38,
16,
-16,
31,
-38,
-53,
6,
11,
12,
32,
10,
-20,
-32,
0,
-48,
-15,
1,
48,
-54,
-2,
-61,
4,
-12,
-31,
72,
-52,
-31,
-14,
43,
23,
30,
21,
-45,
-57,
26,
29,
-13,
13,
0,
50,
28,
25,
-34,
28,
-24,
-6,
-19,
-23,
7,
43,
-10,
34,
-10,
-57,
23,
49,
15,
-93,
-34,
-21,
-33,
19,
-62,
-14,
-14,
31,
30,
18,
-43,
32,
-6,
-11,
5,
4,
20,
19,
-9,
-56,
24,
-17,
-15,
39,
-15,
-62,
-5,
40,
-27,
64,
76,
-23,
-5,
31,
41,
-22,
7,
-11,
-23,
7,
46,
26,
24,
0,
32,
74,
16,
-63,
-71,
6,
-43,
58,
18,
14,
-37,
-20,
-54,
-39,
-11,
-7,
-14,
3,
-43,
-29,
-50,
-12,
15,
0,
19,
-21,
9,
26,
18,
48,
32,
0,
38,
-40,
10,
44,
-34,
31,
18,
-5,
-95,
24,
22,
-32,
37,
-16,
-39,
5,
31,
8,
-39,
30,
-42,
80,
-12,
9,
23,
4,
27,
39,
13,
-51,
20,
34,
19,
-3,
35,
-39,
-17,
24,
-60,
-25,
-34,
23,
-17,
28,
-14,
4,
-6,
-70,
10,
-13,
-55,
36,
-76,
-108,
29,
-52,
1,
0,
-3,
-25,
-18,
1,
-24,
-4,
-9,
3,
-76,
60,
-48,
-35,
-13,
-8,
-22,
-3,
-87,
1,
-5,
19,
66,
-40,
-26,
-9,
-1,
-63,
32,
29,
16,
26,
-39,
68,
-29,
1,
20,
-33,
-19,
-46,
0,
-1,
17,
17,
54,
-27,
0,
-12,
15,
-6,
37,
3,
17,
16,
-5,
-49,
3,
-47,
-3,
52,
-24,
-11,
-63,
51,
-30,
-12,
-43,
3,
52,
-19,
-18,
-6,
19,
19,
-33,
35,
4,
-44,
32,
5,
77,
99,
27,
27,
-16,
5,
44,
11,
-36,
37,
12,
32,
38,
23,
41,
9,
-37,
12,
12,
-48,
81,
29,
-32,
-37,
-36
] |
Leave to appeal denied at 497 Mich 984. | [
23,
-5,
-33,
-9,
5,
56,
16,
42,
-49,
9,
-19,
9,
13,
-33,
14,
47,
81,
41,
-19,
16,
-40,
-5,
3,
23,
-42,
-75,
27,
19,
-39,
-63,
-16,
-58,
-38,
-53,
-46,
-32,
-36,
-11,
13,
7,
-48,
-23,
-9,
-2,
-4,
-53,
12,
0,
-20,
9,
-69,
31,
-79,
23,
30,
28,
41,
-32,
0,
52,
-35,
51,
27,
44,
12,
6,
-46,
-10,
28,
-13,
-23,
23,
10,
27,
-1,
35,
47,
82,
31,
66,
28,
18,
8,
13,
25,
17,
7,
61,
-5,
2,
2,
-58,
-40,
39,
-50,
51,
-13,
-53,
26,
-63,
-15,
39,
6,
-55,
8,
-48,
26,
62,
-18,
4,
-9,
-9,
-14,
-40,
4,
-25,
-30,
-2,
42,
-16,
-13,
33,
26,
38,
47,
-19,
20,
-6,
-7,
-61,
13,
53,
71,
58,
-11,
-6,
50,
-99,
-29,
-65,
-41,
104,
25,
-41,
-26,
-74,
47,
-33,
11,
-44,
0,
12,
-2,
13,
-13,
33,
7,
-25,
47,
13,
14,
38,
-61,
12,
69,
-12,
12,
49,
24,
22,
36,
21,
9,
-54,
-32,
19,
-4,
40,
-24,
3,
-40,
9,
-21,
35,
-17,
-88,
3,
-36,
34,
-80,
-41,
-40,
69,
29,
20,
36,
17,
18,
-32,
27,
-21,
40,
-46,
26,
47,
-51,
-4,
-34,
21,
21,
-55,
-11,
-31,
-2,
23,
-21,
-42,
23,
31,
-13,
47,
29,
-20,
-8,
-15,
48,
-3,
28,
0,
-10,
13,
23,
7,
0,
32,
-59,
10,
14,
52,
-59,
-87,
-18,
-27,
65,
-1,
-10,
-61,
-1,
69,
-46,
68,
3,
25,
-93,
-44,
-53,
-48,
17,
-5,
-14,
12,
23,
24,
5,
-21,
27,
-27,
24,
20,
-80,
32,
28,
-3,
-92,
18,
9,
6,
20,
54,
15,
-37,
7,
5,
-16,
-56,
47,
13,
-11,
-17,
16,
-10,
15,
14,
61,
15,
-36,
-42,
30,
5,
22,
34,
28,
-49,
28,
35,
-31,
-57,
-54,
92,
42,
15,
11,
-4,
37,
6,
-50,
-6,
-91,
-26,
3,
9,
3,
-17,
84,
-28,
72,
-14,
61,
22,
16,
-6,
25,
-65,
73,
-43,
46,
-9,
-64,
-33,
30,
2,
60,
-6,
31,
1,
-32,
-96,
-2,
86,
34,
27,
71,
-15,
-51,
-3,
62,
-25,
-35,
-47,
55,
7,
-69,
1,
53,
-2,
-46,
1,
35,
-7,
33,
-75,
-13,
35,
12,
23,
53,
-42,
-36,
-5,
-14,
6,
-9,
-18,
13,
35,
27,
28,
22,
37,
62,
-13,
-61,
-40,
-20,
32,
-21,
21,
73,
17,
45,
-51,
-41,
-85,
70,
-12,
17,
7,
13,
-21,
76,
10,
20,
38,
26,
-72,
7,
78,
-34,
-28,
15,
-17,
-60,
-52,
1,
-41,
1,
-59,
26,
0,
79,
2,
-42,
19,
-48,
-29,
28,
12,
-10,
-15,
12,
-38,
-53,
7,
-76,
12,
-77,
-41,
-18,
-94,
-40,
6,
21,
7,
-34,
-56,
-56,
-58,
62,
15,
5,
-72,
-52,
-57,
51,
0,
-7,
-50,
33,
26,
-33,
-6,
39,
-53,
-24,
37,
-23,
-33,
-52,
-20,
5,
11,
-18,
-18,
-9,
39,
12,
-5,
-11,
-27,
-5,
-18,
87,
33,
36,
-18,
65,
15,
-7,
19,
-14,
-45,
0,
-14,
18,
15,
-52,
9,
-21,
-9,
7,
17,
-9,
-4,
43,
-47,
72,
-35,
4,
-14,
-31,
-25,
8,
18,
13,
37,
-19,
-67,
-31,
19,
87,
-29,
-21,
25,
55,
9,
-58,
52,
28,
-84,
59,
25,
-50,
-35,
-4,
19,
51,
-47,
-62,
-37,
2,
19,
-21,
-78,
1,
-11,
-42,
14,
-11,
15,
-17,
-5,
-35,
24,
20,
-36,
-47,
-19,
30,
20,
45,
75,
28,
14,
-5,
51,
0,
28,
14,
-10,
-5,
-31,
1,
43,
-32,
-19,
-62,
-73,
-17,
-17,
-1,
-28,
-10,
-6,
-80,
17,
13,
5,
14,
-13,
89,
-68,
15,
9,
14,
-11,
42,
-14,
27,
25,
8,
-28,
48,
20,
-24,
-21,
-9,
4,
7,
25,
-13,
80,
39,
-13,
-54,
-49,
-29,
15,
4,
50,
8,
3,
64,
20,
-30,
23,
33,
1,
8,
-22,
61,
10,
-2,
-15,
16,
7,
-28,
5,
-58,
-24,
-19,
-40,
28,
-36,
-23,
15,
17,
-8,
-46,
24,
-14,
-14,
55,
-11,
44,
-62,
-50,
-7,
31,
93,
67,
-42,
51,
30,
-11,
0,
-28,
19,
-6,
-2,
52,
-26,
-22,
-4,
30,
4,
-45,
0,
14,
22,
35,
34,
63,
57,
-17,
-24,
2,
-11,
52,
-14,
12,
8,
38,
4,
-25,
-17,
52,
-9,
-42,
-3,
-12,
-45,
-2,
38,
-7,
92,
15,
-26,
-45,
17,
-10,
10,
-29,
-69,
-16,
33,
50,
2,
-21,
61,
36,
-4,
-6,
25,
-35,
-61,
13,
16,
19,
41,
-3,
-21,
-33,
5,
-56,
-7,
-2,
61,
-36,
4,
-53,
19,
-15,
-15,
77,
-40,
-26,
-34,
31,
32,
35,
2,
-54,
-77,
24,
16,
-9,
10,
24,
60,
36,
5,
-22,
1,
-29,
10,
8,
0,
26,
24,
-20,
36,
-19,
-58,
23,
42,
10,
-71,
-52,
-20,
-37,
24,
-43,
-7,
-12,
37,
13,
14,
-41,
27,
-2,
-5,
8,
12,
26,
18,
-8,
-46,
29,
1,
-13,
49,
5,
-52,
-7,
40,
-44,
57,
70,
-4,
9,
37,
32,
-24,
1,
13,
-35,
15,
61,
4,
18,
-6,
30,
77,
13,
-54,
-80,
-1,
-51,
79,
18,
-8,
-40,
-23,
-42,
-36,
6,
6,
-26,
-13,
-55,
-29,
-41,
-11,
17,
3,
46,
-17,
16,
28,
2,
60,
30,
0,
36,
-38,
-1,
46,
-45,
33,
22,
6,
-79,
-8,
25,
-26,
37,
-11,
-20,
9,
22,
10,
-47,
32,
-46,
71,
-2,
6,
12,
-6,
6,
54,
-2,
-56,
21,
45,
11,
8,
46,
-58,
-5,
11,
-60,
-7,
-28,
31,
-15,
37,
9,
18,
3,
-72,
9,
-13,
-51,
35,
-72,
-104,
31,
-30,
12,
10,
-4,
-9,
-7,
4,
-24,
-15,
14,
8,
-75,
38,
-25,
-23,
-28,
-31,
-24,
17,
-96,
-1,
8,
16,
55,
-50,
-11,
-8,
21,
-58,
23,
11,
26,
25,
-55,
58,
-12,
-3,
12,
-27,
-15,
-50,
-6,
10,
7,
-3,
47,
-28,
-7,
-23,
15,
1,
49,
3,
24,
14,
-10,
-60,
-13,
-75,
-1,
54,
-32,
-10,
-60,
60,
-55,
-25,
-49,
-14,
17,
-5,
-23,
-17,
14,
19,
-16,
35,
4,
-52,
26,
15,
86,
126,
31,
16,
-15,
2,
20,
20,
-35,
35,
22,
36,
38,
39,
46,
10,
-26,
26,
29,
-36,
79,
29,
-6,
-18,
-40
] |
The parties shall address whether the second-offense habitual-offender enhancement set forth under MCL 769.10 may be applied to the sentence prescribed under MCL 28.729(l)(b). | [
36,
16,
-42,
-34,
-35,
14,
-54,
-9,
-40,
34,
-66,
17,
23,
-10,
41,
49,
-34,
-23,
-19,
13,
59,
52,
32,
51,
-30,
0,
15,
-32,
20,
21,
-9,
2,
-7,
-50,
-6,
-65,
74,
4,
31,
-3,
59,
-21,
-11,
-40,
-55,
7,
-30,
-5,
-12,
-32,
13,
4,
15,
22,
-10,
117,
0,
-6,
14,
56,
-43,
57,
-64,
10,
34,
-8,
33,
8,
10,
1,
33,
-30,
-53,
71,
39,
29,
-15,
-12,
42,
59,
-64,
13,
-19,
1,
17,
45,
2,
-84,
20,
-71,
-15,
-13,
9,
23,
-37,
-26,
35,
-16,
9,
-4,
-22,
-19,
2,
11,
-70,
8,
-13,
-2,
19,
-1,
47,
11,
25,
-55,
10,
-36,
2,
23,
-45,
11,
-1,
42,
4,
32,
13,
-28,
-21,
12,
-86,
-55,
-35,
10,
20,
14,
14,
49,
73,
78,
-17,
29,
-21,
-15,
16,
30,
-16,
-8,
-57,
-29,
18,
-11,
32,
-26,
-71,
4,
-25,
-53,
-18,
-51,
-30,
-57,
4,
33,
-11,
47,
-26,
-14,
-50,
38,
33,
44,
24,
20,
35,
39,
8,
6,
19,
35,
-6,
-7,
-31,
-15,
14,
3,
-44,
63,
-39,
1,
-57,
27,
-55,
-18,
-24,
13,
3,
-44,
61,
33,
-9,
2,
-51,
29,
45,
95,
35,
-48,
-33,
2,
-12,
-46,
-10,
29,
-52,
42,
22,
-17,
87,
10,
-13,
29,
-51,
-79,
53,
-37,
-8,
-25,
0,
59,
32,
-26,
-20,
-17,
38,
-34,
-74,
31,
-30,
0,
44,
30,
56,
-18,
-40,
-21,
59,
50,
0,
-10,
-27,
-55,
-10,
-12,
34,
-1,
-21,
20,
-39,
-36,
-16,
-5,
0,
5,
8,
-37,
-41,
5,
-1,
-14,
-46,
40,
54,
-9,
-19,
1,
-22,
4,
-3,
-37,
-49,
33,
29,
54,
0,
40,
-59,
-1,
-41,
-43,
2,
-18,
26,
6,
2,
-67,
48,
-20,
-74,
-9,
-58,
-17,
-15,
-20,
4,
-20,
71,
-46,
53,
-19,
-17,
-29,
-13,
5,
-37,
24,
-32,
-50,
15,
14,
79,
4,
-26,
14,
31,
-28,
-28,
-51,
54,
10,
20,
45,
1,
-60,
26,
33,
-13,
59,
43,
-33,
-83,
47,
-6,
13,
34,
23,
19,
4,
-25,
0,
-31,
-30,
26,
53,
2,
18,
30,
15,
-13,
-27,
27,
-26,
35,
43,
-4,
0,
20,
-9,
61,
18,
33,
-13,
19,
-91,
-27,
6,
-5,
-35,
65,
39,
29,
-13,
9,
-5,
27,
-6,
16,
-56,
-120,
-33,
-11,
12,
-4,
8,
-61,
-57,
23,
15,
-18,
-19,
32,
-79,
4,
20,
79,
-10,
-23,
-14,
7,
-40,
-13,
31,
-70,
71,
-25,
26,
9,
-38,
1,
1,
-61,
-38,
0,
1,
25,
-48,
27,
-5,
8,
14,
-34,
-32,
-47,
33,
-38,
13,
-24,
-3,
-16,
-60,
62,
29,
-43,
34,
-45,
32,
17,
32,
-18,
-24,
-2,
-4,
24,
1,
-68,
-10,
-28,
42,
25,
68,
-22,
20,
12,
-33,
1,
16,
69,
-55,
-63,
-46,
33,
-14,
14,
-12,
41,
61,
44,
-10,
6,
61,
-2,
-11,
34,
-54,
-55,
31,
-28,
-40,
1,
-14,
-26,
0,
7,
19,
17,
-6,
-36,
-9,
-26,
-50,
3,
56,
-50,
2,
18,
-2,
18,
-38,
-13,
-14,
46,
54,
-24,
7,
38,
-7,
40,
-49,
82,
-66,
-1,
24,
13,
-89,
54,
-10,
-35,
26,
-4,
-36,
8,
33,
4,
-38,
33,
-42,
41,
30,
-28,
19,
0,
-22,
45,
33,
9,
20,
22,
-5,
27,
-14,
58,
-28,
-80,
18,
26,
-22,
4,
16,
36,
50,
-60,
9,
-46,
-2,
0,
23,
-20,
44,
-35,
15,
20,
-18,
42,
-29,
36,
30,
49,
44,
44,
-33,
-12,
33,
62,
52,
4,
18,
36,
16,
4,
3,
17,
11,
-8,
25,
9,
60,
-45,
13,
18,
-22,
-22,
-17,
46,
93,
-55,
-38,
13,
-15,
38,
15,
38,
25,
18,
33,
-21,
-3,
-21,
-2,
59,
7,
-94,
12,
-27,
-17,
-13,
-14,
-32,
19,
-74,
-12,
65,
-2,
2,
10,
19,
-72,
-54,
-15,
-42,
-36,
-26,
-27,
20,
57,
14,
14,
51,
-26,
31,
59,
0,
-27,
31,
50,
-24,
-50,
33,
24,
-125,
52,
22,
7,
-1,
62,
10,
13,
-1,
-31,
-5,
19,
-37,
27,
-6,
33,
27,
26,
-44,
28,
-32,
42,
82,
-85,
-52,
-48,
-21,
-57,
0,
25,
-29,
23,
48,
2,
-9,
-57,
24,
-43,
29,
22,
-2,
41,
-50,
6,
15,
55,
25,
-12,
-12,
-21,
2,
13,
15,
-32,
42,
91,
-18,
40,
15,
6,
-3,
-8,
-15,
-6,
9,
10,
33,
-23,
-10,
70,
-8,
18,
11,
-35,
-21,
-37,
-5,
-29,
-3,
57,
-88,
7,
11,
18,
-36,
-41,
-27,
-42,
28,
15,
-37,
8,
0,
27,
9,
18,
32,
-45,
-23,
48,
42,
-11,
-32,
-3,
0,
11,
-45,
16,
1,
-77,
56,
-32,
9,
-67,
-26,
-45,
31,
46,
-11,
-16,
-43,
8,
10,
-19,
-28,
3,
-18,
-37,
-37,
-47,
-70,
-46,
-2,
-18,
-44,
17,
52,
46,
55,
-11,
-3,
17,
39,
-50,
67,
-26,
-18,
-2,
-52,
87,
45,
-50,
-2,
-14,
37,
-39,
-52,
47,
26,
52,
-43,
-11,
-12,
-50,
8,
62,
-65,
-31,
38,
43,
16,
-8,
-34,
-26,
-4,
51,
15,
50,
-34,
-2,
-1,
8,
-8,
43,
21,
-15,
64,
44,
-19,
0,
-35,
-16,
49,
-30,
52,
-51,
-83,
-25,
1,
33,
-17,
-3,
15,
19,
-31,
7,
-2,
-6,
-15,
8,
47,
33,
-2,
-26,
-69,
21,
21,
20,
78,
9,
-77,
-1,
-82,
63,
13,
-12,
109,
12,
36,
-18,
-58,
2,
63,
-35,
54,
17,
13,
5,
-23,
-51,
39,
46,
41,
-4,
-29,
24,
-16,
42,
3,
-14,
-65,
62,
-29,
23,
44,
51,
60,
72,
18,
-44,
-19,
10,
-4,
-38,
-15,
-5,
41,
71,
-20,
-45,
2,
-40,
32,
-6,
-44,
6,
-57,
-53,
10,
-51,
38,
17,
-14,
-54,
18,
-19,
7,
-4,
-49,
-4,
-23,
-16,
42,
-28,
38,
20,
-26,
-38,
-49,
-1,
52,
31,
-11,
-12,
-13,
7,
-29,
-38,
27,
-7,
-56,
-27,
-2,
9,
-11,
-103,
-8,
-18,
59,
8,
-11,
-51,
-16,
-11,
-47,
-22,
-11,
-42,
-29,
21,
7,
37,
13,
-17,
17,
-76,
-20,
22,
-44,
5,
7,
13,
23,
26,
9,
59,
-2,
-25,
-15,
18,
2,
-18,
-26,
-30,
13,
0,
-6,
-26,
-72,
40,
49,
-83,
-63,
32,
-20,
39,
-34,
29
] |
Leave to appeal denied at 497 Mich 1041. | [
23,
-8,
-15,
1,
-1,
56,
14,
26,
-31,
31,
-23,
24,
17,
-42,
31,
54,
83,
17,
-18,
-3,
-50,
-18,
-11,
42,
-47,
-73,
52,
11,
-33,
-62,
-10,
-63,
-29,
-62,
-35,
-22,
-24,
-10,
-2,
0,
-32,
-28,
-14,
24,
-27,
-67,
8,
17,
-39,
20,
-62,
31,
-77,
35,
4,
33,
38,
-43,
12,
53,
-46,
43,
20,
53,
4,
-2,
-43,
-7,
39,
-22,
-12,
48,
-6,
36,
12,
30,
38,
77,
18,
80,
24,
10,
5,
18,
25,
40,
7,
64,
-11,
6,
0,
-64,
-39,
50,
-47,
65,
-2,
-41,
24,
-78,
-9,
50,
17,
-60,
-5,
-37,
21,
77,
-21,
2,
4,
-21,
-18,
-51,
-1,
-21,
-44,
-5,
45,
-9,
-30,
54,
22,
34,
32,
-5,
28,
-6,
13,
-59,
11,
54,
56,
62,
-16,
-16,
48,
-99,
-44,
-76,
-30,
109,
30,
-41,
-26,
-57,
34,
-27,
44,
-60,
3,
12,
-1,
19,
-21,
46,
8,
-15,
45,
20,
10,
35,
-61,
15,
62,
-19,
27,
51,
36,
29,
27,
23,
0,
-68,
-39,
23,
-7,
54,
-40,
0,
-32,
16,
-14,
32,
-21,
-80,
12,
-49,
24,
-91,
-30,
-50,
84,
38,
31,
30,
33,
26,
-25,
5,
-25,
52,
-51,
14,
32,
-50,
10,
-51,
6,
5,
-47,
2,
-13,
-25,
16,
-42,
-35,
36,
31,
0,
47,
25,
3,
12,
-22,
42,
-9,
31,
-6,
-4,
3,
22,
13,
0,
45,
-44,
7,
16,
51,
-47,
-87,
-31,
-14,
78,
5,
-35,
-62,
-2,
73,
-63,
48,
9,
24,
-89,
-39,
-72,
-45,
14,
-8,
-12,
13,
26,
24,
10,
-31,
31,
-29,
27,
33,
-76,
37,
18,
-2,
-78,
47,
6,
5,
32,
55,
28,
-49,
0,
6,
1,
-69,
37,
16,
-8,
-40,
14,
-5,
1,
22,
62,
-6,
-8,
-26,
31,
-2,
28,
16,
50,
-43,
33,
16,
-43,
-67,
-63,
71,
38,
37,
-10,
-21,
48,
14,
-49,
-14,
-103,
-37,
-3,
3,
-17,
-18,
58,
-2,
67,
-10,
57,
15,
8,
-17,
22,
-48,
77,
-22,
42,
-16,
-49,
-47,
46,
10,
45,
3,
23,
-12,
-4,
-80,
-14,
87,
38,
29,
51,
-14,
-27,
9,
48,
-34,
-29,
-47,
31,
8,
-63,
-5,
47,
-3,
-18,
-12,
56,
16,
55,
-61,
-10,
45,
-5,
3,
53,
-48,
-44,
-5,
-24,
-2,
-42,
-12,
18,
19,
41,
19,
20,
26,
69,
18,
-70,
-7,
-32,
13,
-24,
14,
74,
8,
42,
-55,
-56,
-86,
68,
-3,
-17,
20,
-1,
-25,
78,
-2,
36,
35,
28,
-47,
1,
91,
-3,
6,
14,
-23,
-54,
-56,
3,
-50,
1,
-31,
18,
13,
64,
-3,
-36,
5,
-31,
-27,
18,
11,
-27,
4,
9,
-52,
-41,
20,
-89,
5,
-72,
-38,
-20,
-94,
-51,
-20,
8,
10,
-57,
-60,
-42,
-63,
68,
1,
0,
-34,
-34,
-54,
35,
-12,
16,
-62,
21,
24,
-41,
-22,
0,
-49,
-20,
20,
-18,
-31,
-43,
-8,
-4,
19,
-24,
-18,
15,
33,
-1,
18,
5,
-25,
-1,
-14,
76,
40,
44,
-23,
56,
9,
-6,
4,
0,
-34,
-16,
12,
17,
5,
-27,
11,
-25,
-17,
-6,
9,
-9,
8,
42,
-58,
66,
-29,
0,
0,
-18,
-19,
1,
19,
20,
31,
-7,
-75,
-28,
32,
114,
-23,
-7,
19,
52,
13,
-64,
38,
41,
-81,
58,
21,
-52,
-29,
7,
24,
47,
-65,
-55,
-14,
0,
16,
-2,
-78,
4,
-17,
-24,
17,
-3,
12,
-22,
-6,
-21,
23,
27,
-37,
-42,
-33,
48,
9,
79,
70,
21,
15,
7,
55,
-1,
23,
5,
-14,
-3,
-14,
32,
42,
-26,
-25,
-62,
-65,
-25,
-23,
-10,
-46,
-11,
2,
-82,
9,
34,
9,
3,
-7,
91,
-76,
-5,
-15,
25,
-2,
38,
-22,
3,
53,
4,
-24,
35,
19,
-13,
-48,
5,
11,
3,
17,
4,
69,
49,
5,
-34,
-46,
-11,
16,
2,
27,
19,
6,
68,
28,
-44,
10,
22,
14,
10,
-12,
79,
6,
11,
0,
22,
28,
-27,
9,
-81,
-11,
-18,
-25,
32,
-31,
-17,
12,
20,
-6,
-45,
26,
-30,
-21,
70,
-25,
51,
-79,
-57,
-5,
46,
93,
63,
-25,
44,
10,
4,
0,
-32,
12,
-16,
-1,
49,
-48,
-8,
-8,
32,
2,
-26,
3,
31,
-1,
28,
38,
46,
32,
-11,
-47,
-22,
-14,
54,
-12,
23,
6,
36,
0,
-15,
-14,
26,
-14,
-41,
0,
-21,
-39,
0,
50,
11,
99,
24,
-19,
-33,
19,
1,
11,
-19,
-73,
-30,
20,
61,
5,
-13,
50,
39,
-18,
-8,
21,
-15,
-59,
17,
22,
17,
44,
11,
-17,
-38,
-1,
-55,
-23,
-4,
58,
-38,
2,
-56,
16,
-29,
-14,
90,
-51,
-27,
-13,
27,
21,
18,
3,
-61,
-49,
23,
11,
-9,
20,
15,
56,
34,
15,
-19,
1,
-24,
2,
2,
6,
15,
9,
-11,
31,
-26,
-55,
21,
37,
16,
-55,
-52,
-24,
-35,
18,
-70,
14,
-5,
35,
38,
16,
-21,
30,
0,
10,
28,
16,
29,
31,
-25,
-54,
22,
-21,
-25,
68,
9,
-50,
-8,
41,
-36,
68,
72,
-21,
4,
51,
15,
-39,
5,
15,
-33,
10,
48,
24,
9,
9,
37,
87,
11,
-34,
-77,
-6,
-47,
81,
3,
-4,
-38,
-19,
-38,
-44,
-2,
3,
-20,
-5,
-52,
-49,
-62,
-9,
-6,
2,
49,
-11,
0,
31,
3,
56,
27,
-2,
47,
-45,
-16,
26,
-69,
33,
48,
8,
-57,
-5,
15,
-44,
36,
-12,
-57,
1,
34,
11,
-37,
26,
-42,
72,
-3,
12,
-1,
-21,
11,
63,
-18,
-72,
27,
26,
13,
28,
26,
-46,
-13,
3,
-62,
-21,
-37,
25,
-13,
50,
0,
1,
13,
-66,
13,
-46,
-43,
32,
-59,
-100,
17,
-14,
9,
17,
1,
-21,
-16,
3,
-34,
-29,
-11,
12,
-80,
50,
-40,
-30,
-23,
-18,
-34,
5,
-93,
1,
-10,
11,
55,
-40,
-30,
0,
21,
-60,
23,
17,
8,
28,
-46,
37,
-25,
7,
17,
-30,
-5,
-52,
-18,
27,
12,
18,
52,
-21,
-16,
-29,
27,
3,
49,
-3,
23,
18,
-11,
-47,
8,
-71,
-9,
58,
-7,
-21,
-51,
64,
-40,
-23,
-46,
4,
21,
-1,
-15,
-5,
31,
17,
-41,
32,
-1,
-37,
9,
5,
75,
105,
32,
17,
-26,
0,
38,
25,
-45,
39,
23,
18,
39,
51,
24,
10,
-31,
-10,
43,
-39,
74,
20,
-18,
-26,
-34
] |
Leave to appeal denied at 497 Mich 952. | [
26,
1,
-31,
-14,
0,
51,
21,
56,
-39,
27,
-31,
6,
2,
-50,
33,
53,
87,
36,
-16,
4,
-52,
6,
-2,
44,
-42,
-72,
41,
31,
-39,
-63,
-4,
-49,
-45,
-53,
-32,
-26,
-31,
-17,
-5,
-5,
-36,
-30,
-4,
10,
-15,
-66,
18,
6,
-41,
9,
-54,
20,
-74,
10,
15,
27,
44,
-40,
5,
46,
-45,
54,
43,
38,
23,
-10,
-29,
-5,
18,
-19,
-13,
25,
10,
31,
-2,
23,
25,
66,
34,
80,
25,
3,
11,
-2,
23,
32,
12,
51,
-4,
10,
9,
-51,
-47,
51,
-39,
65,
-1,
-41,
44,
-40,
-12,
37,
16,
-56,
-6,
-44,
20,
58,
-42,
0,
25,
-18,
-7,
-34,
4,
-11,
-22,
9,
44,
-19,
-22,
43,
7,
47,
47,
-1,
43,
-15,
2,
-65,
21,
50,
71,
44,
-6,
-11,
54,
-96,
-33,
-56,
-29,
112,
32,
-29,
-28,
-75,
33,
-34,
16,
-41,
4,
10,
-6,
21,
-25,
41,
25,
-29,
45,
11,
33,
42,
-58,
29,
70,
-26,
26,
43,
32,
27,
12,
8,
13,
-53,
-54,
16,
0,
40,
-19,
11,
-38,
2,
-6,
46,
-20,
-65,
9,
-32,
31,
-70,
-35,
-48,
84,
35,
21,
33,
26,
23,
-20,
15,
-22,
50,
-43,
26,
38,
-75,
5,
-42,
19,
32,
-38,
-21,
-14,
-3,
43,
-33,
-54,
37,
35,
-19,
40,
7,
-10,
-2,
-4,
34,
-18,
44,
34,
-14,
10,
53,
-13,
-1,
31,
-58,
19,
18,
45,
-71,
-98,
-6,
-7,
72,
0,
-40,
-88,
-32,
69,
-44,
43,
6,
31,
-87,
-52,
-43,
-40,
21,
-11,
-20,
24,
14,
13,
2,
-24,
26,
-37,
26,
28,
-73,
27,
32,
-8,
-96,
33,
3,
16,
38,
61,
16,
-26,
11,
2,
-13,
-64,
53,
24,
-10,
-32,
5,
0,
2,
22,
64,
1,
-49,
-14,
30,
-7,
33,
18,
44,
-44,
28,
35,
-27,
-56,
-62,
93,
22,
17,
-20,
-8,
28,
7,
-42,
-4,
-84,
-28,
3,
8,
-2,
-12,
65,
-22,
67,
-18,
70,
20,
21,
-6,
33,
-46,
89,
-25,
52,
1,
-66,
-51,
36,
0,
53,
5,
23,
-22,
-19,
-106,
-1,
85,
45,
18,
62,
-14,
-49,
13,
86,
-29,
-34,
-40,
47,
6,
-48,
-5,
54,
-7,
-28,
-6,
33,
-11,
29,
-71,
-1,
52,
1,
19,
41,
-35,
-40,
-26,
-20,
-21,
-30,
-13,
17,
33,
15,
15,
22,
18,
54,
-16,
-76,
-23,
-28,
59,
-2,
22,
59,
15,
23,
-60,
-42,
-95,
83,
-26,
-8,
22,
12,
-27,
68,
-2,
32,
31,
24,
-63,
-2,
78,
-29,
-14,
1,
-19,
-63,
-46,
21,
-38,
-14,
-40,
9,
-8,
60,
4,
-42,
11,
-39,
-23,
32,
9,
-9,
-20,
21,
-59,
-26,
18,
-81,
-1,
-62,
-41,
-28,
-102,
-50,
0,
10,
-3,
-32,
-51,
-58,
-59,
59,
21,
-8,
-40,
-45,
-55,
46,
-6,
5,
-56,
39,
14,
-50,
-15,
6,
-48,
-34,
42,
-13,
-14,
-36,
-16,
0,
21,
-22,
-4,
4,
23,
14,
4,
-3,
-38,
0,
-26,
78,
37,
24,
-25,
62,
20,
-15,
18,
1,
-36,
10,
7,
13,
2,
-36,
7,
-21,
-9,
2,
1,
-8,
-16,
35,
-45,
59,
-43,
4,
10,
-29,
-11,
-4,
16,
-11,
24,
13,
-53,
-30,
4,
107,
-29,
-25,
35,
32,
0,
-67,
45,
21,
-91,
56,
41,
-32,
-28,
-7,
28,
42,
-46,
-51,
-8,
11,
32,
-20,
-83,
-5,
5,
-45,
22,
-16,
26,
-18,
-14,
-24,
31,
28,
-36,
-32,
-22,
27,
21,
75,
76,
32,
-2,
0,
54,
15,
40,
0,
-14,
16,
-12,
-3,
36,
-43,
-16,
-57,
-53,
-26,
-5,
-8,
-36,
-13,
-10,
-78,
8,
24,
-16,
0,
-4,
84,
-53,
0,
-9,
14,
-21,
40,
-12,
-3,
26,
7,
-34,
53,
17,
-4,
-30,
7,
-6,
14,
11,
4,
71,
34,
-7,
-35,
-56,
-6,
16,
0,
36,
7,
13,
54,
26,
-31,
20,
23,
4,
0,
-8,
52,
17,
5,
-23,
12,
-10,
-20,
7,
-63,
-8,
-21,
-35,
35,
-21,
-27,
16,
25,
-2,
-54,
28,
-4,
-16,
50,
-31,
60,
-56,
-49,
-3,
29,
94,
57,
-43,
42,
2,
1,
-1,
-52,
27,
-3,
-1,
43,
-41,
-16,
-18,
11,
9,
-29,
16,
21,
22,
27,
43,
53,
45,
-1,
-37,
7,
-22,
58,
-32,
6,
10,
23,
-3,
-9,
-3,
61,
5,
-47,
-25,
-7,
-32,
4,
42,
8,
91,
35,
-19,
-38,
11,
-7,
13,
-20,
-78,
-21,
24,
44,
-1,
-13,
57,
37,
-17,
6,
19,
-30,
-32,
10,
21,
22,
25,
11,
-25,
-28,
1,
-55,
-7,
-4,
58,
-34,
8,
-46,
12,
-31,
-9,
76,
-37,
-22,
-24,
24,
22,
26,
17,
-51,
-55,
28,
15,
-4,
14,
10,
76,
39,
16,
-43,
1,
-20,
3,
3,
-11,
20,
33,
-25,
17,
-30,
-56,
21,
51,
12,
-70,
-42,
-17,
-57,
15,
-77,
-13,
-13,
39,
28,
22,
-39,
34,
9,
8,
10,
2,
30,
11,
-19,
-50,
31,
-7,
-34,
50,
-9,
-63,
2,
39,
-28,
65,
73,
-8,
2,
43,
11,
-37,
12,
12,
-26,
6,
61,
33,
24,
-11,
38,
65,
0,
-52,
-77,
-5,
-50,
72,
21,
-14,
-34,
-24,
-49,
-20,
-12,
12,
-25,
2,
-38,
-41,
-38,
1,
2,
-7,
26,
-12,
30,
33,
16,
57,
42,
-8,
45,
-34,
0,
40,
-52,
24,
35,
3,
-91,
11,
21,
-31,
39,
12,
-54,
-3,
34,
-8,
-50,
48,
-53,
73,
-7,
-7,
23,
-5,
28,
49,
-4,
-51,
18,
30,
20,
2,
35,
-41,
-26,
16,
-49,
-31,
-32,
43,
-16,
21,
-13,
-2,
27,
-58,
17,
-14,
-51,
32,
-68,
-96,
28,
-38,
-16,
11,
5,
-26,
-7,
9,
-11,
-21,
-4,
1,
-77,
42,
-21,
-20,
-27,
-12,
-23,
9,
-93,
4,
-11,
16,
57,
-60,
-30,
-15,
8,
-58,
30,
13,
19,
18,
-59,
41,
-21,
-14,
12,
-31,
-9,
-58,
0,
19,
7,
26,
54,
-26,
-3,
-5,
22,
8,
43,
-22,
24,
22,
-7,
-56,
24,
-73,
-14,
50,
-35,
-5,
-51,
55,
-41,
-6,
-50,
-18,
29,
-33,
-25,
-3,
11,
15,
-27,
30,
2,
-45,
12,
5,
95,
94,
51,
16,
-37,
3,
27,
17,
-44,
44,
21,
24,
34,
37,
39,
16,
-35,
-4,
14,
-39,
85,
17,
-19,
-28,
-41
] |
Markman, J.
(dissenting). I would grant leave to appeal for the reasons set forth by Justice Viviano, as well as to address whether, given that MCL 117.36 of the Home Rule City Act provides that “[n]o provision of any city charter shall conflict with or contravene the provisions of any general law of the state,” the November 2012 amendment of the Grand Rapids City Charter, by rendering certain marijuana offenses in Grand Rapids punishable by a $25 fine, can be reasonably said to “contravene,” although not necessarily “conflict with,” state laws that punish equivalent offenses “by imprisonment for not more than 1 year or a fine of not more than $2,000.00, or both.” MCL 333.7403(2)(d). | [
13,
-9,
-5,
-46,
-15,
31,
-21,
29,
8,
66,
37,
-5,
0,
-48,
29,
30,
-39,
12,
3,
53,
-10,
15,
32,
-10,
-2,
-22,
28,
4,
-5,
0,
38,
-68,
51,
1,
-2,
-16,
1,
0,
67,
-6,
29,
21,
3,
-8,
-7,
15,
9,
0,
17,
-28,
-39,
11,
-30,
24,
20,
38,
-13,
1,
-29,
55,
-15,
53,
-20,
-20,
-7,
-31,
19,
45,
41,
-19,
-24,
8,
2,
-44,
43,
57,
38,
1,
-25,
13,
-55,
27,
-30,
-47,
-7,
23,
-15,
-12,
18,
-36,
26,
-37,
-16,
-17,
12,
49,
-3,
-25,
0,
-47,
8,
2,
0,
43,
22,
-51,
-12,
19,
80,
-18,
-54,
-17,
13,
-56,
-3,
-8,
-45,
31,
-56,
-42,
26,
11,
15,
-18,
32,
3,
2,
-32,
-30,
-31,
32,
27,
39,
-46,
-7,
44,
0,
34,
16,
43,
21,
48,
60,
4,
-3,
-24,
52,
21,
8,
-15,
7,
-15,
-12,
28,
-34,
-34,
-18,
-10,
13,
-11,
-22,
35,
-28,
15,
-3,
-30,
-52,
71,
-35,
46,
35,
-16,
0,
7,
55,
-43,
-57,
5,
-18,
-17,
-1,
40,
-25,
-22,
19,
-14,
-6,
-57,
17,
-73,
-13,
-32,
14,
-89,
6,
52,
25,
33,
-19,
-46,
-37,
14,
-6,
83,
18,
-46,
-26,
34,
-44,
17,
-3,
-43,
6,
-32,
16,
-13,
-19,
8,
-1,
11,
-50,
-29,
26,
6,
-39,
-26,
0,
18,
-12,
-33,
0,
-16,
19,
11,
-2,
-20,
46,
32,
35,
36,
-42,
30,
-40,
-2,
13,
32,
-1,
11,
47,
23,
8,
-42,
52,
-16,
-28,
22,
-7,
-35,
-9,
26,
30,
13,
17,
-22,
-40,
13,
-28,
44,
-27,
13,
-53,
66,
-22,
-8,
-21,
30,
-6,
15,
28,
34,
-17,
-13,
33,
60,
1,
33,
-1,
27,
37,
-27,
21,
-25,
-18,
92,
17,
0,
-3,
22,
-1,
8,
43,
-8,
60,
33,
23,
-42,
22,
4,
37,
-29,
13,
-9,
-27,
32,
-2,
-16,
-15,
7,
48,
0,
-20,
37,
-15,
25,
-19,
5,
75,
-20,
-2,
-25,
51,
-7,
-20,
-35,
3,
13,
27,
-26,
-49,
-26,
-19,
-12,
-3,
9,
36,
45,
-31,
43,
5,
-13,
-21,
50,
-12,
10,
-28,
-52,
-19,
-6,
10,
-14,
30,
30,
23,
-9,
-9,
2,
-1,
-12,
-14,
36,
-42,
6,
-62,
29,
-38,
-4,
-13,
-37,
-43,
37,
10,
-56,
19,
-7,
72,
9,
-12,
25,
-20,
-37,
6,
-33,
-37,
-66,
23,
41,
-11,
-4,
1,
-52,
-35,
-25,
21,
35,
-4,
-13,
-18,
1,
18,
-6,
-17,
25,
1,
44,
34,
-23,
-24,
16,
76,
-28,
-6,
38,
-19,
-8,
23,
-13,
-32,
-18,
55,
52,
-52,
9,
6,
-46,
-41,
-8,
-9,
-74,
-1,
5,
-21,
19,
25,
23,
1,
-57,
-55,
-23,
4,
-17,
41,
15,
-44,
20,
-66,
1,
-13,
33,
55,
-26,
12,
-37,
-26,
25,
17,
-21,
-51,
-1,
42,
-25,
-46,
43,
27,
27,
-2,
0,
-23,
29,
-17,
6,
-12,
4,
-10,
-3,
1,
13,
-11,
32,
-56,
-11,
10,
30,
19,
4,
8,
34,
31,
-47,
-22,
29,
22,
-14,
-82,
4,
10,
-14,
-26,
14,
76,
17,
-3,
36,
20,
32,
-34,
-20,
8,
-56,
7,
-5,
8,
-29,
5,
-22,
47,
48,
-20,
-39,
21,
14,
10,
21,
39,
-6,
4,
-38,
-36,
20,
35,
40,
26,
-4,
-7,
0,
-7,
1,
-14,
-18,
21,
24,
-71,
37,
-78,
-80,
43,
-6,
-68,
17,
33,
-2,
-73,
41,
41,
18,
21,
18,
-19,
1,
-15,
8,
26,
34,
-33,
-13,
-16,
-26,
23,
-5,
-27,
-14,
-2,
8,
-72,
-19,
-17,
2,
-24,
9,
29,
-11,
-53,
48,
-20,
-13,
-40,
38,
-9,
-22,
-9,
20,
23,
22,
-28,
22,
-13,
-28,
-15,
-79,
29,
-26,
-9,
-22,
-15,
4,
-20,
40,
-12,
-23,
22,
-42,
-31,
-7,
-33,
-23,
-35,
-67,
-31,
-21,
-32,
23,
-45,
-44,
-4,
-43,
-15,
13,
18,
30,
-12,
-11,
0,
43,
5,
13,
38,
33,
30,
64,
-24,
49,
-26,
73,
-23,
-30,
42,
5,
-7,
37,
-12,
-46,
31,
6,
3,
61,
-11,
17,
16,
9,
-9,
4,
-9,
-28,
10,
1,
83,
4,
21,
66,
17,
-32,
-41,
-6,
-25,
-47,
14,
-44,
-37,
0,
32,
58,
62,
42,
10,
0,
-12,
23,
-4,
49,
-65,
-2,
-10,
18,
0,
-6,
-66,
1,
-24,
-1,
11,
7,
-1,
-20,
-28,
14,
28,
-42,
-11,
-3,
-21,
24,
-2,
-9,
-23,
3,
-14,
-30,
-54,
-5,
7,
0,
0,
-28,
5,
-42,
4,
36,
-13,
19,
11,
19,
-8,
15,
-13,
23,
-12,
38,
39,
-10,
-35,
13,
15,
37,
-5,
31,
-29,
19,
-19,
35,
-19,
2,
-24,
9,
17,
44,
16,
-70,
12,
44,
22,
-5,
34,
28,
5,
-10,
-10,
7,
-98,
-27,
16,
-23,
13,
3,
-15,
-35,
-20,
-9,
-38,
28,
-15,
-31,
13,
-65,
0,
14,
93,
33,
-22,
8,
68,
11,
36,
-34,
8,
-10,
-4,
-26,
-35,
25,
28,
-13,
11,
-30,
5,
-12,
43,
-3,
-15,
-4,
5,
-23,
41,
-14,
-15,
-15,
21,
21,
13,
-5,
-3,
-3,
36,
17,
35,
14,
-51,
-45,
-18,
4,
51,
-9,
22,
-10,
-7,
38,
-29,
57,
-6,
22,
-3,
-42,
-21,
-30,
-33,
-9,
25,
18,
-35,
16,
-3,
37,
53,
82,
-32,
47,
-5,
-33,
-14,
-12,
-5,
-6,
-39,
8,
49,
23,
0,
-20,
-19,
14,
-55,
-32,
29,
11,
38,
0,
18,
14,
-71,
36,
17,
8,
43,
-10,
5,
-2,
-14,
10,
-20,
-53,
17,
-7,
-55,
-70,
-32,
-23,
-38,
32,
-6,
-37,
-11,
-4,
-37,
33,
-1,
24,
11,
-30,
-103,
-39,
36,
-4,
-14,
95,
-3,
0,
-29,
-20,
-30,
11,
-17,
17,
-41,
-54,
-19,
10,
-45,
-66,
68,
49,
43,
-6,
-39,
-3,
14,
-3,
-12,
21,
-28,
36,
12,
-18,
-32,
1,
-29,
67,
6,
-20,
-23,
-15,
-19,
26,
-8,
8,
18,
-49,
-12,
-11,
-60,
-27,
42,
-1,
-25,
-41,
6,
31,
11,
-33,
28,
29,
24,
-9,
35,
23,
40,
21,
-12,
-2,
15,
13,
-43,
-3,
-21,
-15,
0,
-68,
-18,
5,
-71,
-31,
9,
-12,
32,
23,
-52,
-21,
15,
-30,
-36,
-45,
16,
-12,
2,
21,
66,
17,
-9,
58,
-1,
40,
-51,
-5,
74,
3,
-86,
12
] |
reported below: 306 Mich App 571. The parties shall file supplemental briefs within 42 days of the date of this order addressing whether the appellant’s challenge to the trial court’s order holding her in criminal contempt amounts to an impermissible collateral attack on the trial court’s January 14, 2011 order requiring her to submit to drug testing. See In re Hatcher, 443 Mich 426, 438 (1993). The parties should not submit mere restatements of their application papers. | [
30,
22,
-5,
18,
-2,
24,
19,
41,
-2,
25,
-9,
-21,
14,
-50,
57,
-2,
70,
-4,
21,
-11,
-63,
48,
13,
35,
-7,
28,
-20,
-21,
3,
-7,
-63,
1,
1,
-2,
30,
-40,
41,
4,
12,
37,
0,
-25,
14,
6,
-41,
-35,
0,
47,
-1,
5,
41,
8,
-55,
2,
-23,
3,
13,
-20,
14,
39,
-22,
20,
8,
-30,
13,
39,
18,
49,
9,
-20,
-1,
-19,
-28,
37,
27,
-2,
63,
23,
-31,
22,
27,
14,
-9,
-29,
-36,
10,
-41,
18,
26,
-13,
-37,
-17,
-61,
10,
-31,
-22,
-46,
-49,
12,
0,
-2,
2,
55,
-22,
-43,
10,
19,
-9,
7,
-23,
40,
-69,
0,
-2,
-44,
-45,
-8,
62,
-30,
-11,
25,
8,
43,
-13,
-18,
-23,
-20,
13,
50,
5,
7,
33,
58,
-1,
-14,
21,
52,
-9,
15,
-54,
15,
19,
31,
16,
71,
-42,
8,
-18,
2,
27,
-42,
-63,
-15,
49,
-27,
52,
36,
-30,
26,
14,
-13,
-6,
16,
-4,
-19,
9,
-15,
59,
-1,
-47,
36,
-37,
46,
-13,
-37,
-14,
-18,
82,
10,
24,
8,
8,
-41,
-10,
18,
42,
-20,
-64,
-4,
-39,
-23,
-53,
27,
21,
41,
12,
-2,
86,
-16,
-43,
-54,
1,
-2,
50,
-54,
-23,
-43,
-1,
3,
-22,
18,
40,
-30,
-70,
-32,
-99,
4,
35,
-3,
26,
7,
-67,
63,
9,
29,
0,
12,
-4,
-15,
-31,
2,
11,
41,
34,
15,
14,
4,
-36,
61,
6,
17,
0,
-46,
21,
-7,
4,
-7,
12,
30,
13,
23,
42,
-1,
8,
-12,
-13,
-34,
18,
-23,
41,
-4,
33,
-5,
21,
-11,
-15,
-2,
41,
-27,
32,
-18,
24,
-79,
-64,
0,
20,
-20,
0,
-4,
-8,
24,
0,
2,
5,
-50,
-7,
0,
55,
0,
-2,
-16,
-10,
-55,
-29,
5,
34,
5,
-4,
1,
15,
44,
-28,
10,
6,
12,
-33,
-9,
54,
-15,
-34,
11,
28,
-24,
11,
-31,
-8,
2,
-8,
12,
0,
14,
5,
6,
16,
-40,
-17,
46,
-18,
6,
-1,
2,
10,
-24,
-19,
-7,
6,
-36,
-19,
-27,
0,
-2,
-30,
16,
30,
32,
56,
21,
-27,
2,
-56,
33,
15,
11,
62,
-27,
-40,
-14,
-52,
-4,
8,
-9,
0,
16,
-23,
-38,
-17,
31,
-22,
16,
56,
2,
-24,
-38,
22,
-27,
-19,
17,
-23,
27,
13,
-5,
-75,
8,
45,
-10,
-33,
0,
-25,
30,
-51,
9,
-32,
2,
-37,
-58,
-26,
-25,
61,
18,
-8,
-11,
-30,
13,
18,
18,
-12,
-22,
21,
12,
54,
19,
26,
-10,
42,
11,
-32,
-15,
28,
28,
-23,
-8,
-31,
-40,
-22,
-20,
19,
40,
-5,
52,
-11,
-52,
24,
15,
34,
-6,
22,
-3,
-21,
-3,
28,
8,
-11,
-63,
-14,
9,
32,
-14,
2,
17,
-59,
5,
-28,
31,
-30,
-28,
-38,
52,
105,
-38,
-1,
0,
-76,
-35,
-30,
-35,
18,
-6,
-44,
24,
8,
-23,
-27,
31,
24,
-34,
9,
-41,
42,
2,
-5,
-13,
20,
-51,
-13,
-27,
12,
0,
-1,
4,
14,
-12,
-59,
-45,
58,
-18,
29,
-38,
-28,
-24,
80,
-4,
13,
0,
41,
0,
-16,
62,
-22,
-12,
27,
-24,
14,
0,
-17,
-8,
40,
22,
-20,
9,
3,
-17,
50,
19,
-7,
25,
59,
64,
-79,
-49,
78,
55,
-4,
29,
-48,
9,
33,
-27,
27,
-21,
-8,
6,
40,
0,
-7,
77,
-12,
-2,
38,
9,
24,
-31,
17,
-41,
11,
-27,
-19,
-1,
-7,
17,
-67,
-17,
20,
-11,
13,
28,
-12,
-50,
7,
-6,
31,
43,
31,
-11,
22,
68,
48,
18,
22,
-25,
-2,
6,
27,
-14,
-31,
-15,
-67,
50,
-42,
25,
27,
-27,
-55,
-3,
0,
21,
8,
17,
-28,
27,
-1,
10,
22,
-50,
-32,
-26,
13,
-11,
33,
46,
-27,
9,
-13,
-14,
-43,
-19,
0,
14,
-23,
-13,
55,
-20,
11,
36,
61,
-8,
-14,
-9,
-16,
-47,
-6,
0,
-30,
60,
8,
-2,
22,
34,
-19,
-2,
-65,
3,
45,
-17,
11,
65,
-57,
11,
-7,
3,
0,
24,
17,
-26,
-63,
10,
-19,
5,
22,
-1,
24,
-42,
14,
-35,
15,
-38,
-37,
12,
-44,
28,
-19,
18,
38,
-9,
25,
41,
16,
43,
-35,
36,
3,
-55,
-14,
-15,
20,
-18,
-2,
-7,
-7,
14,
-12,
-8,
28,
-48,
9,
-26,
-54,
5,
4,
-12,
-36,
-24,
21,
-57,
12,
-32,
39,
-34,
15,
48,
36,
-29,
41,
18,
22,
15,
-12,
-50,
-5,
-37,
-3,
3,
-7,
0,
41,
15,
28,
-57,
-29,
41,
-13,
16,
-5,
-24,
9,
17,
12,
43,
-2,
4,
12,
63,
-41,
8,
-23,
6,
-5,
41,
35,
1,
-16,
20,
1,
6,
28,
14,
40,
29,
-18,
-36,
15,
-29,
-39,
-1,
-31,
-24,
-37,
4,
32,
34,
-15,
-6,
-5,
39,
10,
-10,
40,
-65,
-34,
13,
-49,
57,
-7,
-43,
-35,
8,
-23,
15,
-35,
-23,
5,
-36,
-63,
3,
6,
43,
35,
26,
11,
50,
6,
42,
-4,
14,
-20,
28,
44,
-52,
-26,
12,
-15,
30,
34,
-19,
3,
-6,
43,
11,
2,
16,
-24,
22,
38,
19,
-5,
-11,
41,
-27,
-54,
34,
-32,
32,
5,
71,
-23,
-54,
-8,
57,
-32,
26,
33,
27,
-26,
-10,
-31,
4,
25,
21,
5,
44,
-25,
2,
-26,
12,
-19,
-4,
41,
-14,
-14,
-1,
40,
52,
0,
-35,
-18,
2,
-9,
-16,
-45,
26,
-13,
28,
-22,
-41,
41,
-46,
-8,
-40,
8,
-8,
-59,
13,
-2,
10,
-39,
1,
3,
12,
14,
-101,
-10,
57,
37,
-18,
5,
-20,
15,
78,
-15,
-32,
15,
-30,
5,
-18,
39,
18,
-4,
-76,
26,
-55,
-12,
17,
-10,
-3,
24,
1,
-8,
-7,
-2,
50,
-48,
-10,
24,
30,
-31,
-22,
-16,
16,
8,
-40,
0,
-7,
-79,
-82,
-3,
-6,
-36,
37,
-14,
36,
4,
-55,
-18,
-36,
14,
20,
13,
-63,
12,
24,
-12,
-8,
29,
-1,
37,
-7,
-23,
68,
61,
-3,
15,
2,
34,
-17,
-20,
14,
-17,
-32,
-5,
27,
33,
24,
4,
-47,
28,
1,
-11,
32,
-3,
-5,
17,
-31,
-56,
-25,
-77,
-24,
39,
-10,
8,
4,
-41,
8,
-29,
15,
4,
-32,
-10,
-57,
-48,
-4,
30,
13,
51,
11,
43,
10,
-54,
-16,
-26,
-59,
47,
9,
1,
19,
-54,
-1,
21,
-29,
-53,
-45,
-62,
10,
24,
36,
-8
] |
The parties shall file supplemental briefs within 42 days of the date of this order addressing whether the Court of Appeals erred in holding that, pursuant to People v Spanke, 254 Mich App 642 (2003), Offense Variable 8, MCL 777.38, should not have been scored in this case where the movement was “incidental” to the offense of operating while intoxicated (second offense) with a passenger -under 16. See also People v Hardy, 494 Mich 430, 442 (2013) (“[A]bsent an express prohibition, courts may consider conduct inherent in a crime when scoring offense variables.”). The parties should not submit mere restatements of their application papers.
The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issue presented in this case may move the Court for permission to file briefs amicus curiae. | [
10,
56,
43,
32,
-34,
17,
30,
-7,
-33,
32,
-55,
-16,
-12,
-42,
74,
-18,
54,
10,
-30,
-30,
-25,
21,
22,
1,
-26,
-20,
12,
35,
29,
-9,
1,
27,
-5,
11,
28,
-5,
51,
47,
32,
54,
32,
19,
9,
-21,
-60,
-68,
41,
16,
23,
-39,
7,
10,
-12,
-12,
-19,
-2,
16,
-31,
11,
59,
-19,
59,
14,
-21,
17,
-7,
-20,
23,
-33,
18,
0,
9,
-59,
64,
-23,
33,
18,
69,
3,
43,
-17,
6,
51,
27,
-6,
34,
4,
-18,
34,
-68,
-61,
-81,
-67,
-42,
18,
-15,
-24,
-52,
-2,
-42,
32,
14,
48,
4,
-43,
19,
3,
2,
13,
-27,
5,
3,
5,
11,
0,
-16,
0,
80,
-7,
8,
35,
-10,
28,
46,
-22,
-5,
10,
-19,
-5,
28,
16,
4,
30,
-10,
-41,
36,
24,
1,
5,
-7,
13,
32,
33,
23,
79,
-11,
6,
-17,
17,
29,
-1,
-45,
-55,
47,
-39,
10,
28,
-49,
61,
7,
-36,
-9,
27,
5,
-5,
-21,
15,
42,
20,
-28,
5,
-4,
51,
-13,
-1,
-28,
-7,
40,
13,
27,
-8,
42,
12,
-25,
-4,
7,
-15,
-12,
-1,
-49,
12,
-37,
21,
1,
18,
-14,
21,
85,
-5,
-14,
-12,
-21,
2,
63,
-40,
-6,
-44,
16,
18,
12,
16,
-15,
-17,
-35,
2,
-44,
32,
5,
17,
5,
-20,
-74,
17,
-40,
11,
-10,
-18,
1,
-41,
9,
41,
25,
39,
40,
-2,
-39,
-24,
-51,
41,
-34,
16,
-2,
-33,
2,
11,
62,
1,
-34,
-3,
-13,
22,
-4,
-11,
-42,
-23,
-18,
35,
-34,
-31,
43,
-17,
23,
13,
27,
-43,
21,
17,
5,
-41,
17,
-3,
20,
-59,
-1,
-66,
-10,
5,
8,
22,
11,
43,
1,
30,
49,
-38,
17,
0,
34,
9,
5,
-10,
-38,
-34,
-10,
19,
-13,
-5,
18,
-16,
13,
39,
24,
39,
23,
4,
-58,
-1,
21,
18,
-40,
-31,
-25,
-7,
-16,
15,
-8,
27,
-9,
7,
-39,
-20,
-3,
-26,
14,
-30,
-15,
47,
-38,
1,
-5,
8,
-11,
-10,
-9,
-1,
-28,
36,
-45,
-7,
15,
-23,
28,
26,
7,
11,
35,
0,
-25,
2,
-48,
-18,
-16,
37,
19,
-28,
-22,
0,
-57,
2,
16,
-7,
16,
18,
3,
9,
24,
-6,
2,
-2,
41,
6,
-61,
-31,
20,
-5,
-43,
15,
69,
-22,
45,
-47,
-5,
8,
28,
-2,
-12,
-24,
-25,
-15,
-30,
-10,
-22,
3,
-19,
-1,
-17,
-24,
32,
38,
-20,
12,
-12,
25,
-2,
51,
-16,
-12,
52,
-14,
9,
-10,
-4,
45,
33,
42,
14,
-44,
8,
-24,
-53,
-9,
4,
-12,
-97,
-16,
16,
23,
35,
9,
34,
-38,
56,
45,
-2,
5,
-3,
6,
5,
20,
10,
24,
-8,
-49,
7,
9,
-36,
-30,
48,
4,
-24,
51,
18,
10,
-8,
-35,
8,
25,
20,
-27,
-2,
-2,
-55,
-65,
-28,
3,
-4,
-36,
-12,
31,
-15,
-52,
-7,
-21,
23,
-36,
6,
-41,
32,
0,
11,
-64,
29,
-75,
-56,
-3,
-23,
-5,
5,
14,
43,
13,
-14,
-44,
44,
-65,
18,
-49,
15,
-29,
56,
-3,
13,
13,
55,
-8,
-40,
18,
-24,
25,
-28,
9,
35,
-32,
13,
-17,
33,
-14,
-20,
6,
-10,
-42,
9,
26,
-14,
0,
33,
29,
-92,
-49,
31,
47,
-59,
26,
-59,
7,
0,
-19,
10,
-42,
14,
40,
10,
-32,
-11,
66,
13,
2,
31,
52,
12,
7,
19,
-37,
-25,
0,
-45,
2,
-11,
9,
-84,
7,
10,
23,
-7,
7,
-12,
-52,
-19,
46,
-13,
31,
61,
-31,
-24,
-11,
81,
56,
-19,
-27,
10,
39,
71,
-24,
1,
-17,
-47,
7,
-8,
-2,
-20,
-6,
8,
-4,
23,
42,
12,
31,
-2,
-1,
-2,
11,
86,
-47,
8,
43,
-3,
-34,
25,
24,
-27,
30,
-2,
-35,
13,
-12,
10,
16,
-47,
-7,
-1,
-36,
-10,
2,
60,
15,
23,
-4,
25,
-13,
-21,
-31,
-27,
10,
-26,
17,
52,
2,
6,
7,
-68,
26,
8,
-3,
2,
84,
-2,
-12,
45,
0,
-14,
-13,
5,
-25,
-61,
54,
-6,
-29,
28,
-33,
-3,
-31,
44,
-49,
54,
-51,
2,
-16,
-66,
54,
8,
19,
19,
-24,
3,
46,
-8,
4,
-20,
53,
9,
-37,
-20,
-14,
-21,
-10,
-23,
-35,
-8,
28,
-5,
-25,
85,
-30,
-5,
-49,
-33,
2,
17,
-10,
-24,
-24,
31,
30,
4,
-49,
38,
-28,
-5,
5,
40,
-43,
89,
-14,
21,
-21,
3,
-44,
-13,
-64,
-31,
-31,
-5,
1,
-8,
38,
13,
-53,
-7,
42,
-25,
17,
9,
23,
-25,
16,
7,
51,
-19,
3,
14,
50,
-37,
-3,
-34,
6,
7,
31,
-16,
19,
-20,
-6,
13,
30,
57,
25,
31,
41,
-13,
-55,
-16,
0,
-23,
11,
-7,
-43,
-23,
-12,
41,
21,
-1,
-17,
-17,
30,
-32,
-23,
51,
-35,
-24,
-6,
-19,
44,
-6,
-34,
-53,
12,
9,
-23,
-43,
-22,
3,
22,
-10,
22,
16,
43,
10,
3,
-17,
41,
-3,
0,
-23,
19,
-10,
-44,
37,
-14,
-14,
60,
-23,
23,
47,
-45,
-14,
42,
3,
12,
-26,
8,
-34,
34,
38,
-37,
-19,
6,
-6,
-10,
-6,
46,
-42,
56,
6,
8,
0,
-47,
2,
28,
-28,
22,
24,
61,
-8,
-32,
16,
11,
24,
0,
-15,
42,
-18,
-28,
-31,
-12,
-46,
-20,
19,
-12,
5,
-25,
26,
15,
-25,
-29,
-2,
-25,
16,
-25,
-41,
-27,
17,
-20,
-9,
-24,
69,
-13,
-11,
-29,
-5,
-46,
-28,
38,
-16,
47,
-49,
-4,
-17,
-6,
-20,
-66,
12,
39,
45,
-50,
1,
-10,
7,
32,
19,
-28,
2,
1,
18,
-14,
29,
-37,
-10,
-27,
-22,
-72,
-23,
-5,
9,
9,
33,
-11,
-45,
-57,
4,
65,
-22,
24,
-2,
34,
-56,
4,
17,
21,
-3,
-33,
24,
-32,
-32,
-40,
-36,
-26,
-8,
51,
-10,
8,
-11,
-25,
22,
-32,
9,
16,
-33,
-55,
-1,
-12,
-11,
26,
11,
6,
33,
3,
-23,
25,
77,
1,
20,
-13,
23,
16,
14,
21,
-31,
-32,
-54,
48,
58,
3,
-7,
18,
24,
5,
64,
31,
17,
-25,
-15,
-9,
-4,
10,
-52,
-20,
20,
-31,
40,
0,
-18,
-50,
-34,
2,
-27,
-47,
-1,
-32,
3,
-30,
-15,
0,
57,
-15,
33,
-31,
-3,
-41,
19,
-43,
57,
-9,
54,
-34,
-47,
32,
8,
5,
-35,
-20,
-60,
6,
28,
-12,
-36
] |
Grant, J.
The bill of complaint in this case, which is on the information of the Attorney General, prays for an injunction to restrain the defendants, first, — ■
“From sales of any of the lands described in said Exhibit A, or from selling any timber upon said lands, or committing any waste, either directly or by their agents, and from asserting and claiming any title to said lands and premises; and that the title of the State of Michigan in and to said lands, under and by virtue of the land grant of the Congress of the United States, made September 28, 1850, may be decreed and declared to be full, complete, and absolute, which decree may stand and operate as a removal of all clouds to said title by reason of the claim or claims made by the said defendants, or any of them, or other parties interested' herein, by virtue of said railroad grant or trust-deed;: and that the said Flint & Pere Marquette Railroad Com.pany, and its trustees and land commissioner, aforesaid, defendants herein, be required by the decree and order of this court to account to and with the State of Michigan, complainant herein, for any and all timber cut upon said premises directly by said defendants, or by their agents or authority, and that said complainant may have decree for any amount due it upon such an accounting.”
The State of Michigan claims title to the land described in Exhibit A under and by virtue of the grant usually known as the “Swamp-Land Grant,” of September 28, 1850, by the Congress of the United States.
The defendants claim to have derived their title through an act of Congress passed on or about June 3, 1856, granting to the Flint & Pere Marquette Railway Company certain lands in the State of Michigan, to aid in the construction of a railroad in said State, and the act of the Legislature of the State of Michigan passed February 14, 1857, conferring the- lands upon said railway company, subject to the act of Congress and to the act. of the Legislature referred to.
The claims of the respective parties will appear in the abstracts of the bill and answer, taken from the brief of the counsel for the defendants and appellants, and found at the end of the opinion.
Decree was entered in the court below for complainant, declaring the title to be in the State; that the cloud upon the title to the lands, arising from the claim of the defendants, be removed; and referring the cause to a commissioner to take evidence of State taxes paid by the defendants upon the lands, and the value of the timber cut therefrom.
I deem it necessary to discuss and determine only the question of estoppel, raised in this case; for, if the coinplainant is estopped to now set up title in itself to the lands in controversy, the other questions become unimportant.
That the State, as well as individuals, may be estopped by its acts, conduct, silence, and acquiescence, is established by a line of well-adjudicated cases.
In Massachusetts, in the year 1825, the commonwealth was held estopped from setting up alienage in a grantee to whom it had conveyed land. Com. v. Heirs of Andre, 3 Pick. 224. In that case the state had conveyed ihe land by deed to Andre. The court held:
“ This deed must operate as a rebutter, as it would if an individual were the grantor; and with more reason, because the commonwealth is not liable to an action. The commonwealth, if the land were recovered, would feel itself bound to repay the consideration money, with interest. This would be a claim which could not be resisted without degrading the country.”
It has been held that the United States government was estopped from disputing certain boundary lines, and from denying that certain lands were within them. U. S. v. McLaughlin, 30 Fed. Rep. 147. The court in that case said:
“ A construction of the law and understanding of the facts, acted upon by all departments of the government, by the public, and even by the claimant himself, for nearly a quarter of a century, should not now be disturbed. The government should be now estopped from alleging that it [the boundary line] is or should be ' located elsewhere. The law of estoppel, in a proper case, applies to the government.”
In State v. Milk, 11 Fed. Rep. 389, it is said:
“Resolute good faith should characterize the conduct of states in their dealings with individuals, and there is no reason, in morals or law, that will exempt them from the doctrine of estoppel.” See, also, authorities there cited.
Where the state granted its land as a part of a’wagon-road grant, which had been conveyed to the state under the swamp-land act, it was held estopped to deny that the land was within the wagon-road grant. Cahn v. Barnes, 5 Fed. Rep. 326. In that case the state first granted the land to the plaintiff as wagon-road land, and subsequently conveyed it to the defendant as swamp land.
The case of Hough v. Buchanan, 27 Fed. Rep. 328, arose under the swamp-land act, and the act of Congress granting certain lands to the state of Iowa to aid in the construction of railroads. That case is the exact parallel of this, so far as the indemnity lands are concerned. The complainants obtained their title from the railroad act, and the defendant claimed title under the swamp-land act. After reciting the facts, the court said:
“If, under these circumstances, it should now be held that the state is not debarred from asserting a claim to these lands under the swamp-land act, it is clear that a fraud would thereby be perpetrated upon the company and its grantees. Should it, however, be held that it was open to the state, or its grantees, to contest the validity of the transfer to the railway company, such contest must certainly be made within a reasonable time. The county, upon its organization in 1859, caused these lands to be listed as swamp land's, and the list was forwarded through the proper channels to the department at Washington. The Commissioner refused to certify the lands under the swamp-land act, holding, as a matter of law, that the certification made thereof in 1858 to the railway company defeated the right to claim them under the swamp-land act. It does not appear that the county or its grantees have since taken any further action in the premises. They knew that the. lands had been certified to the railway company in 1858; that the Commissioner of the Land-Office had refused to certify the lands under the swamp-land act; that the railway company and its grantees were claiming the land, and asserting title thereto by paying taxes assessed thereon; and yet for 25 years the defendant and his grantors have done nothing to perfect the evidence of their title, or assert any right to the land. Certainly their- claim must be regarded as stale, and not entitled to favorable consideration at this late day.”
In Pengra v. Munz, 29 Fed. Rep. 830, the question raised was similar to that in Cahn v. Barnes, supra, and the same rule was enunciated.
In U. S. v. Railway Co., 37 Fed. Rep. 68, it is said:
“ Parties place faith, and should place faith, in the action of the government, and rely upon the title which its patent conveys; and when, as appears in this case, many parties have purchased in perfect reliance upon the title of the patent, and many years have passed with it unchallenged, common fairness requires that the title thus apparently conveyed should be sustained, unless it be very clear that there was a want of authority to issue it.”
In Attorney General v. Ruggles, 59 Mich. 124, the State asked for the cancellation of certain certificates for the purchase of agricultural college lands. There, as here, counsel for the State sought to make a distinction in the doctrine of estoppel as applied to the State'and individuals. But this Court, speaking through Mr. Justice Morse, said:
“ I see no reason to distinguish this case, although the State is a party, from like cases between individuals.”
This brings us to a statement of the facts applicable to this branch of the case. By the act of Congress of June 3, 1856, certain alternate sections of the public lands were granted to this State to aid in the construction of certain railroads. The State, through its Legislature, by Act No. 126, Laws of 1857, accepted the grant, and provided the ways and means to carry out the trust thereby reposed in the State. Certain citizens of this State, and, I presume, some from other states, organized the Flint & Pere Marquette Railway Company, and, under the authority conferred upon it by the State, immediately commenced and prosecuted its work to completion. The territory through which the road was constructed was practically a wilderness. It is evident that it could not then have been built without this grant of lands. As an additional inducement, the State agreed to exempt the lands from taxation for a certain number of years, and gave the railroad the right of way over its own lands. The company in all respects complied with the law, and as each 20 miles of its road was completed it was inspected by the proper State officials, and the fact certified to the United States government. It then became entitled to the odd-numbered sections, corresponding to each 20 miles so constructed. If the federal government had sold or conveyed any of the lands in these odd-numbered sections, so granted, the company was entitled to a corresponding amount from other lands within certain indemnity limits. These lands were to be selected and designated by an agent appointed by the State. The lands within the six-mile limits were to be' identified by the Secretary of the Interior. The grant was a “float.” No patents were necessary to convey the title, but the title passed as soon as the lands were identified and certified.
The lands in controversy in this suit, in all about 16,000 acres, were selected, identified, and certified, in the years 1859 and 1860, as having been granted to the State under the railroad act of June 3, 1856. These certificates were sent to the State by the Department of the Interior, and filed in its appropriate department. From that time to the time of filing the bill in this cause, in December, 1887, the State never called in question the right of the railroad company to these lands. Meanwhile three-fourths of the lands have been sold and conveyed by the company to innocent purchasers. The lands have been improved, buildings erected, and taxes paid, both State and municipal, for many years. The railroad’s claim of ownership was open and notorious. In 1871 the Legislature discussed the question of taxing them, and the company then entered its protest. In 1873 the Legislature enacted a law taxing them. The Auditor General, acting under the law, obtained from the General Land-Office at Washington, early in 1873, a list of these lands for the purpose of subjecting them to taxation. The State furnished to the various county treasurers lists of the lands within their respective counties, and they have been taxed continuously since for both State and municipal purposes. Aud. Gen. Rep. 1874. The company contested this in the United States courts, and carried the case to the court of last resort, where the right to tax them was affirmed. Tucker v. Ferguson, 22 Wall. 527. The company issued bonds to obtain money to construct the road, and executed a trust mortgage to secure their payment. The Auditor General, in his, report for 1873, included the opinion of the United States circuit court for the western district of Michigan in the above case; also his letter to the Commissioner of the General Land-Office at Washington, asking for lists of railroad lands subject to taxation by tbe act of the Legislature; stated the receipt of certain lists under date of October 13, 1873, and reported the number of acres of land belonging to the defendant company, and subject • to taxation, to be 512,506.12. See Keport, pp. xvi. — xxi. In his report for 1874 he includes the opinion of the Supreme Court of the United States in the same case, and says:
“Lists were received entitled as below, and giving descriptions of lands certified or patented to the several railroad companies named, and of the number of acres stated, as folio ws."
Among the lists so received are 11 of the lands of the defendant company, aggregating 446,814.11 acres. Pages clxx.-clxxvi.
In 1870 the company applied to the Commissioner of the State Land-Office for an examination and certification whether the State laid claim to any of these lands, at the same time presenting to him a plat-book, and requesting him to delineate thereon all swamp lands patented to the State, and all unpatented, and all claimed by the State, on the odd-numbered sections. The Commissioner made his examination and certificate showing that none of the lands were claimed by the State.
The identification of these lands, and their certification to the State, were a solemn declaration on the part of the United States that they came to the State under the railroad grant, and not under the swamp-land grant.. This declaration stood for 28 years without challenge from the State, and with the evidence thereof on file in its own department. It knew that the railroad company took these lands under the railroad act, and was selling and conveying them to hundreds of its citizens for farms and other purposes; and yet it slept upon its rights until it has reaped the benefits of the construction of the railroad, and the available public lands have in all probability been exhausted, so that the company cannot now receive the compensation it. was entitled to under the acts of Congress and the State, and until these lands have been enhanced many times in value, at the expense of the defendant company and its grantees.
No question is raised as to the good faith on the part of the railroad company and its officers, nor is it hinted that there was any collusion between the officers of the State and those of the railroad company..
Whatever may have been the effect of the arrangement made between the general government and the State in regard to identification of lands under the swamp-land act, it was certainly understood between the two governments that patents should be issued to the State as fast as the lands were identified; and the Commissioner of the State Land-Office, in his report of December 1, 1860, reported that 5,049,125.44 acres had been patented, leaving unpatented and unadjusted 808,336.61 acres. The lands now involved were not patented.
The swamp-land act did not identify the land granted. Assuming that the original surveys, which .in many cases were undoubtedly fraudulent, rather than the resurveys, should govern under the arrangement made between the two governments, the record in this case shows that the field-notes of these surveys were contained in several hundred small pass-books turned over to the State Land-Office by the Surveyor General. The complainant, therefore, had in its possession the evidences of its title. It is urged by counsel for the State that none of its officers or agents examined or knew of the contents of these field-notes, and that this constitutes a legal excuse for not applying to it the doctrine of estoppel. The State, therefore, seeks to apply the doctrine of estoppel to the railroad company and its grantees, but denies that it is applicable to itself. What reason can be found for such a position? Let us apply the case to individuals. Should A., assuming to own large tracts of land, convey certain of them to B., in trust to be conveyed to C., upon the payment of a valuable consideration, which, when paid, will inure to the benefit of B. as well as of C.; the consideration is paid; the lands conveyed; B., under the power he possesses, imposes annual burdens upon these lands for 15 years, which C. pays; B. sleeps for 28 years upon his rights, in ignorance that the title at the time of the conveyance to C. was in him; and C. has meanwhile openly and notoriously asserted his title, and dealt with the lands as his own, has mortgaged, sold, and conveyed them, and all this while the evidence of title is in the possession of B., — would not B. be estopped to assert his title? It is said in U. S. v. Military Road Co., 41 Fed. Rep. 493:
“ Whatever is inequitable as between man and man, in their dealings with each other, should also be deemed inequitable as between the United States and those with whom they condescend to deal under like circumstances.”
Applying the principles of the above cases, and others that might be cited, to the present case, I can find no escape from the conclusion that the claim of the complainant has become stale, and that it is now estopped to assert title in itself. The claim of the State has no foundation in equity, justice, or good conscience. The maxim that “ where one of two parties, neither of whom has acted dishonestly, must suffer, he shall suffer who, by his own act, has occasioned the confidence and consequent injury of the other,” applies to the present* case, in which Mr. Sleeper, the Deputy Commissioner of the State Land-Office, testifies that it required the labor of three years to examine the records in that office and collate the evidence upon which he now bases the claim of the State.
The decree of the court below must be reversed, and the bill dismissed, with costs of both courts.
The other Justices concurred.
Abstracts of bill and answer, referred to on page 487 ■of opinion.
BILL.
1. The bill avers the passage of the swamp-land law of September 28, 1850, which it is said—
“ Granted unto the'several states named in the act passed at said date, including the State of Michigan, the whole of the swamp and overflowed lands made unfit for cultivation, and remaining unsold on or after the 28th day of September, A. D. 1850, for the purpose of constructing the necessary levees and drains to reclaim the swamp and overflowed lands therein.”
The bill then avers that it was the duty of the Secretary of the Interior to make lists and plats of such lands, and, at the request of the governors of the said several states, to issue patents to the said states; and that, after making up the lists and plats, all legal subdivisions, the greater part whereof was wet and unfit for cultivation, were to be included in said lists and plats; and alleges that the effect of the grant was to vest title in the State to “all of the swamp and overflowed lands located therein, and of the kind and character designated in said act;” and states that the State after-wards asserted title to all such lands, and that such title was recognized by the United States.
2. The bill then shows that the method of listing, designating, and describing said land was a matter of correspondence between the Federal and State officers; that on or about November 21, 1850, certain instructions were prepared as to the method of identification by the Commissioner of the General Land-Office, of which a copy was sent to the Surveyor General, and another copy to the Governor (and the bill quotes from said instructions), by which the Surveyor was instructed to make out a list, and was authorized to look at the field-notes as a basis of the list, if the State would consent; alsd authorized him to act upon other satisfactory evidence, as to the character of the lands, which the State might furnish. The bill also quotes form the letter of November 21, 1850, to the Governor of Michigan from the Commissioner of the General Land-Office, suggesting inquiries as to the method of determining the character of the lands. The bill next quotes from a letter of the Surveyor General of the United States to the Governor of Michigan, and, referring to the instructions, the Surveyor General asks the Governor to inform him whether the State authorities are willing to adopt the field-notes, or whether the State authorities will have a survey made to identify the lands. The bill then sets out that Gov. Barry wrote suggesting delay; and that on January 3, 1851, the Surveyor General wrote to the Governor, giving his opinion that the field-notes would show a greater amount of swamplands than could be found from a resurvey, and that the net proceeds to the State would be greater, and adds: “ These lands are to be designated, all of them, from the notes of the surveyors in this office, unless the State authorities choose to survey.”
3. The bill further states, on belief, that the survey,- to which reference is made in the instructions and letters, had indicated the sections, or subdivisions of sections, of government lands “ which were of a swampy character, and come within the lands conveyed by said grant of September 38, A. D. 1850;” .that, pursuant to the propositions and suggestions aforesaid, the Legislature of the State of Michigan, in 1851, at the suggestion of the Governor, took the same into consideration; that by the act of June 38, 1851, the State adopted the notes of the surveyor on file in the Surveyor General’s office as a basis upon which the State should receive the lands; that such legislation was known at the land department at Washington, and understood to be the basis agreed upon for the adjustment of the lands granted by said grant.
The bill' then avers that this proposition and these acceptances by the State—
“Operated and had the legal effect to perfect in the State of Michigan full, complete, and absolute title to all the lands shown by the Surveyor General’s minutes to be swamp and overflowed lands, and all subdivisions of land, the greater part of which appeared by-said minutes to be of a swampy nature.”
That the Surveyor General thereupon proceeded to prepare plats, and designate upon said plats, by lines, the lands that were of a 'swampy nature and character, which came within the grant; and that these marks used to designate the several pieces are made in ink, and that within such lines is written the letter, “S,” to indicate that such lands are swamp lands; that pursuant to directions from Washington the Surveyor General did make maps and plats, which are now on file at Lansing—
“ And which were and are the identification of the swamp lands granted to the State of Michigan by said act, and which this informant submits are effective and binding, both upon the United States and all persons claiming from them, as well as the State of Michigan.”
Charges that from June 28, 1851, to the present time the State has always treated the Surveyor General’s minutes, maps, and plats of the swamp lands placed thereon as binding upon the State, and “ as fixing and determining the lands belonging to the State of Michigan” under said grant; and that the Federal Land Department—
“ Have at all times been fully advised as to the act of the Leg islature of the State of Michigan in 1851, and of the claims made by said State by reason thereof.”
That the act of Michigan, June 28, 1851, and the lists prepared by the Surveyor General, were reported to the General Land-Office, and that the proposal of the Commissioner of the General Land-Office as to the method of identification of said lands was approved by the Secretary of the Interior; that by such facts “the title of the State was and is, and has been at all times, full and complete” since the grant.
Shows that the claim of the State of Michigan as to the method of identifying these lands has never been repudiated by the Department of the Interior, but the preparation of the lists has been neglected by the government officials at Washington; that some of said lands have been patented to the State. As to others, lists have been prepared, and certified to the State. As to others, lists have been prepared, and not certified to the State. As to still other descriptions, no lists whatever have been prepared, although the Federal Land-Office has been frequently requested to certify and patent said lands to the State.
Charges that Exhibit A, annexed to the information, contains a list of a part of “the swamp and overflowed lands” which were granted to the State by said act, and—
“Which are shown to be swamp and overflowed lands, as this informant alleges, by the Surveyor General’s minutes, and the. plats and maps prepared by him, and filed in the office of the' Land Commissioner for the State of Michigan, and the title to which is now in the State of Michigan, by virtue of said grant and acceptance as aforesaid, and which said lands your informant, alleges are swamp and overflowed lands, within the true intent and meaning of said grant.”
4. Alleges that June 8, 1856, Congress granted lands to Michigan to aid in the construction of railroads therein, and that the Legislature of Michigan by the act of February 14, 1857, conferred upon the Flint & Pere Marquette Railway Company said lands, franchises, powers, and privileges to aid in the construction of its railroad; that thereafter the Flint & Pere Marquette Railway Company went into the hands of a receiver, and was subsequently reorganized as the Flint & Pere Marquette Railroad Company,—
“Which company took all the lands, rights, and interests therein held by the Flint & Pere Marquette Railway Company, and still holds, and claims to own, the said lands.” States that “ the Flint & Pere Marquette Railroad Company appointed an agent to select lands under said act of Congress, as well as that of the Legislature of the State of Michigan, above referred to, and induced the Commissioner of the General Land-Office to certify the same to the said Flint & Pere Marquette Railroad Company, including the lands set forth and described in Exhibit A, hereto attached, which lists are filed in the office of the State Land Commissioner at Lansing, and contain the following proviso: ‘Subject to all its conditions (that is, the conditions of said grant), .or to any valid interfering rights which may exist, or any of the terms imposed in the foregoing lists;’'referring to the lists of lands certified to the Flint & Pere Marquette Railroad Company.”
States that the lands in Exhibit A have been certified to the jriint & Pere Marquette Railroad Company, but the bill cannot state to what extent or what part of said lands have been patented to the Flint & Pere Marquette Railroad Company.
5. Shows that the Flint & Pere Marquette Railroad Company was a corporation under the laws of Michigan; that “ the said Flint & Pere Marquette Railroad Company conveyed all of its interests in said lands” to Prescott and Crapo, as trustees, to secure bonds; that the names of the bondholders are numerous, and cannot make them defendants; that the amount of the bonded indebtedness cannot be stated; that A. W. Newton had authority from the trustees to dispose of the lands, and is offering the same for sale; that the lands in Exhibit A are worth $50,000 and upwards, and have timber of value; that by virtue of the railroad grant, and authority thereunder, timber has been cut on said lands; that said lands are unoccupied, and are not used for right of way or depot buildings or grounds,—
“But still are the property of the State of Michigan, vested in it by the grant of 1850, and the acceptance of the same by the Legislature of the State of Michigan as aforesaid.”
That the timber being cut is valuable, and the timber uncut is of great value; that the only claim of said defendant to said land is under the railroad land grant of February 14, 1857, and the certification of such lands by the officers of the Interior Department of the United States; and that inasmuch as the grant of said lands described as aforesaid in Exhibit A, and the identification of the same, were made prior to the grant to the State of Michigan for the construction of a railroad from Pere Marquette to Flint, Mich., and thence to Port Huron, Mich., and the title of the State of Michigan was full and complete prior to the conferring, or any attempt to confer, the said lands upon the said Flint & Pere Marquette Railway Company or its successor, and its several trustees took and hold neither a legal nor equitable claim to said lands, and the claim of the defendants rests upon certain acts of the officials of the general government, which constitute a cloud upon the title of the State of Michigan, therefore the bill alleges that neither the defendant company, nor the predecessor company, nor the trustees, had any title to the land. Is advised that parcels of land.have been disposed of by contract or deed to persons whose names and residences are not known, and whom he asks—
“Leave to make parties to. these proceedings when he shall he able to discover that there are such parties who have claims to any part or portion of said lands.”
. States that the agent of the said Flint & Pere Marquette Railroad Company, and so, in effect, the company, had notice at the time these lands were listed that the—
“ Same were shown by the minutes of the survey made by the Surveyor General of the United States for the State of Michigan to be swamp lands of that kind and character granted to the State of Michigan by the act of 1850, and, notwithstanding such knowledge, he caused the same to be listed as railroad lands, and kept the knowledge of the true character of the lands from the State Board of Control of Railroads for the State of Michigan.”
States that application has been made to the Federal Land Department to have the claim of . the railroad company canceled, and that the Federal Department declined to take any action therein.
Charges that the action taken by the agents of the defendant and the predecessor company—
“ Are fraudulent, as against the State of Michigan, and operated to impair its title to said lands, and prevent the State from disposing of the same to actual settlers.”
Alleges that the State has no full and complete remedy except in a court of equity, and that, in order to protect the title of the State and free the same' from cloud, and prevent sales of said land, and further sales of' timber thereon, and irreparable injury to the State, it becomes and is necessary for the court of equity to interfere; and asks that the defendants answer the bill without oath, and that the defendants be enjoined from the sale of any of the lands described in said Exhibit A, or from selling any timber upon said lands, and that the title of the State may be confirmed, and that the defendants be required to account for all timber cut under their authority.
ANSWER.
1. Defendants’ answer sets out, first, that the defendant corporation does not and never has claimed ownership in any of the lands other than its station grounds and depot buildings, and has no power or authority over the same, except to call the trustees to an account for the proceeds. Denies that the State of Michigan has any power or control over the lands or any of them.
2. Defendant Newton states that he has no power or control over the land, except as conferred by the trustees.
3. Defendants Prescott and Crapo state that they, as trustees, are the owners of the land, except so far as they had been previously disposed of, and except one parcel, which was never claimed as within the railroad grant; that their title is derived under the act of Congress of June 3, 1856, and the act of the Legislature of the State of Michigan of February 14, 1857, and sundry subsequent conveyances.
4. The trustees say they admit the act of September 28, 1850 and that it became the duty of the Secretary of the Interior to identify the lands, but they deny that the effect of the grant was, as stated in the information, to vest title in the State prior to identification, and deny that the fee-simple title passed prior to patent, and deny the claim of the State.
5. Admits that methods for identifying particular descriptions to pass to the State under the swamp-land act were proposed, and that the State passed the act of June 28, 1851. Denies that if correspondence did take place between the Federal and State officers, as stated in the bill, it “could have effect to increase the rights of the State of Michigan beyond the terms of the act of Congress granting said lands.”
6. The trustees answer further concerning the survey of public lands, and the instructions and regulations, and refer to them as public documents; but deny that any arrangement between the Land Commissioner of the United States and the State could perfect in the State of Michigan complete title to the lands shown by the Surveyor General’s minutes to be swamp and overflowed prior to confirmation by the issue of patent.
7. The trustees further say that it was a matter of common knowledge that many of the surveys in Michigan were false and fraudulent, and the field-notes unreliable, the surveys never, in fact, having been made in accordance with the said field-notes, and the maps drawn from said field-notes were purely fictitious; that the false and fraudulent surveys were rejected, and new surveys were made; that since that time it has always been the practice to regard the field-notes of said resurvey as the proper and only field-notes having recognized authority; and that the same were adopted and accepted, both by the State of Michigan and the United States, to be in lieu of and as abrogating the previous false and fraudulent surveys, field-notes, maps, and plats.
Defendants deny that lands which were not in fact swamp and overflowed lands, and which were shown by said false and fraudulent surveys to be swamp and overflowed lands, passed to the State.
Aver that the resurveys made pursuant to the authority of Congress, and the field-notes of the resurveys, were the notes of the surveys to which the arrangement for identifying the lands referred, and that such have ever since been so regarded, both by the State and Federal government.
Defendants deny that it was competent for any of the officers of the Federal or State government to transfer the title from the United States to the State, unless the lands were in fact of the character described in said act; and they deny that the act itself operated to convey any present right to any of the lands, except such as were of the character specified in said act of Congress.
8. States that, being deceived by the false and fraudulent surveys, the Secretary of the Interior did approve, and patents were issued to the State of Michigan for, very many thousands of acres of land which were not in fact swamp and overflowed lands, unfit for cultivation. Defendants aver that more .than 50 per cent, of .said lands were not of the character contemplated by said act, and which the State has received without right.
9. As to the third clause of the'information, defendants say it is vague, uncertain, and insufficient in its averments.
Deny that the State of Michigan, for a period of 30 years since said grant, has claimed, or assumed to claim, any of the lands in •Schedule A described, with the exception of the fractional lot hereinbefore disclaimed; and deny that the lands in said Schedule A annexed to said information are in fact swamp and overflowed lands, and of the character specified in said grant.
10. The trustees admit that June 3, 1856, Congress passed the act granting lands to Michigan to aid in the construction of railroads, and that February 14, 1857, the Legislature of Michigan conferred upon the Flint & Pere Marquette Railway Company the lands to aid in the construction of the road.
States that thereafter the Flint & Pere Marquette Railway Company went into the hands of a receiver; that another corporation was organized under the General Laws of Michigan, known as the Flint & Pere Marquette Railroad Company. Denies that the latter took title in the lands formerly held by the former corporation. Denies that it still holds, or claims to hold, the same. Admits that an agent was to be appointed by the Governor of the State to select the indemnity lands. Admits that the lands in Exhibit A, excepting the lot disclaimed, have been certified by the Secretary of the Interior and the Commissioner of the General Land-Office to. the State as lands identified as being within the act of June 3, 1856, for the benefit of the Flint & Pere Marquette Railway Company.
States that no patents have been issued under the grant of June 3, 1856, but the title passed by statute; that the identification was made complete by the certification of the Federal Land-Office.
11. States that the Flint & Pere Marquette Railroad Company is a corporation, and that the Flint & Pere Marquette Railway Company, before the defendant railroad company had existence, had conveyed its lands to trustees. Admits the value of the lands. Admits that there is valuable timber upon the same and that some of the timber has been cut off.
States that the greater portion of the lands in Exhibit A have been offered for sale for more than SO years, and that less than one-fifth of the acreage described in said exhibit remains unsold; that many of the parcels have been sold and occupied for more than 15 years, and the title of the purchasers has never been questioned until the filing of this information.
Denies that the lands are all unoccupied.
Denies that the State had title to any of these lands under the swamp-land act, but states its effect to be that the State took title under the railroad grant, and that the title passed to the railway company.
12. Defendants claim that the certification of said lands under the railroad grant was of itself an adjudication that the lands were not of the character described in the swamp-land act of 1850, and was “ a conclusive adjudication that said lands were included within said railroad grant of 1856.”
13. States that there is no valuable timber upon the lands unsold. States that the lands are valuable mainly for agricultural purposes, and that the trustees desire to sell them.
14. Denies that the agent of the former corporation, the Flint & Pere Marquette Railway Company, and so the company, at any time had knowledge that the same were shown to be swamp land,, and that he kept that knowledge from the Board of Control of Railroads.
Denies that a court of equity is a proper tribunal to try this question. ,•
15. States that the letter “S” was not put by the Surveyor General iipon the maps so made from the field-notes to indicate that they were swamp lands, but states that it was put there without authority, and has no legal force or effect as indicating the character of the land upon,which it was placed.
16. That it was the policy of the Federal and State governments to promote settlement and development of the country; that, to 'the end that no conflict might arise, the State passed the act of February 14, 1853, to confirm titles to purchasers, and to the same end Congress passed the acts of March 2, 1855, and March 3, 1857; and that no such legislation ever took the lands, away from the State or from the Federal government, and that the question of adjusting these several questions belongs to and should be settled between themselves.
17. Avers that the claim now put forward by and in behalf of' the State was never authorized by the Legislature.
18. Avers that, if the State became the owner as specified in the bill, so much time has elapsed that the State is prohibited by law, by the statute of limitations, from bringing any suit for the recovery of the lands, and claims the benefit of the statute of limitations to quiet title.
19. States provisions of law for collection of taxes upon these lands as railroad lands.
20. States that these lands in 1859 and 1860 were certified to the State of Michigan under the railroad grant; so the State had notice that these were railroad lands.
21. The State of Michigan employed a trespass agent to look after the railroad lands, and collect sums of money for trespass thereon. 1
22. Defendants claim that the State was estopped because application was made in 1870 to the Commissioner of the State Land-Office to know if any of these lands were claimed, and no such were then claimed.
23. Refers to the pamphlet, “Michigan and its Resources” in which these lands were advertised to the world as lands which the railroad company owned and could sell and give good, title.
24. Submits that all matters in controversy could be determined at law, and claims the benefit of a demurrer. | [
-20,
22,
13,
-11,
3,
44,
44,
5,
14,
14,
-8,
-63,
19,
-24,
30,
-11,
-28,
3,
3,
19,
29,
19,
4,
-39,
-37,
3,
24,
31,
-20,
-18,
5,
-16,
-15,
57,
35,
-20,
40,
-21,
44,
-2,
-5,
-12,
2,
49,
29,
24,
16,
-19,
31,
-56,
-17,
32,
-31,
0,
-52,
-35,
-27,
-54,
-48,
-7,
0,
-21,
46,
14,
5,
-25,
44,
7,
-1,
-19,
15,
79,
9,
-3,
60,
13,
17,
-43,
-29,
37,
7,
23,
21,
-53,
-26,
9,
-15,
-28,
-47,
17,
-71,
-87,
-49,
-29,
43,
-5,
22,
20,
-20,
-4,
-40,
67,
-5,
-10,
44,
-45,
16,
-22,
17,
-18,
28,
7,
-21,
-53,
-20,
-21,
-39,
-12,
0,
3,
-29,
-89,
-28,
42,
-79,
22,
3,
-44,
-17,
39,
47,
-51,
-29,
17,
36,
0,
-34,
-32,
11,
11,
6,
3,
-12,
-28,
-40,
0,
21,
32,
40,
-33,
4,
5,
-9,
23,
12,
25,
26,
-13,
75,
-6,
40,
50,
11,
-36,
-38,
7,
25,
-27,
23,
43,
-33,
-18,
-28,
-26,
25,
-13,
4,
16,
-42,
1,
28,
13,
17,
-37,
-31,
-17,
15,
-18,
-9,
-37,
28,
-22,
17,
-50,
-51,
101,
-16,
-25,
3,
27,
-4,
-64,
-30,
14,
5,
-26,
2,
-32,
4,
16,
1,
41,
27,
2,
12,
21,
-8,
-20,
50,
-60,
76,
0,
30,
61,
7,
-22,
0,
18,
-27,
-2,
22,
-15,
18,
-9,
-14,
-4,
-10,
-31,
28,
-10,
-14,
-7,
-25,
-62,
19,
9,
-2,
-35,
-24,
42,
-31,
29,
-55,
-5,
8,
-12,
23,
-22,
-14,
-40,
-9,
2,
-32,
-26,
14,
-29,
-52,
24,
22,
-26,
15,
-29,
17,
26,
7,
3,
13,
-6,
-6,
17,
-4,
-11,
-58,
52,
13,
18,
-36,
-15,
-6,
13,
21,
-51,
4,
17,
43,
77,
-10,
23,
17,
24,
0,
31,
-36,
-2,
12,
20,
15,
20,
26,
0,
-24,
42,
-2,
-18,
9,
4,
28,
4,
48,
-34,
-19,
23,
-18,
-22,
26,
41,
10,
12,
-15,
62,
50,
-26,
19,
-36,
-36,
4,
-2,
-49,
7,
-10,
63,
37,
1,
33,
-13,
5,
9,
-53,
31,
18,
6,
-12,
-4,
-18,
-7,
-7,
44,
-28,
-4,
48,
21,
39,
24,
-19,
28,
-42,
-72,
-7,
42,
-18,
-3,
-8,
17,
25,
-2,
-9,
35,
-7,
-42,
7,
6,
41,
8,
15,
50,
25,
-61,
42,
-48,
42,
-22,
-29,
-2,
23,
39,
-24,
-11,
24,
-34,
5,
18,
4,
-2,
25,
-27,
15,
26,
60,
30,
13,
51,
-4,
44,
-46,
13,
-19,
35,
28,
34,
-11,
-4,
13,
-9,
-67,
-6,
-6,
59,
8,
1,
16,
-1,
-16,
84,
41,
5,
18,
-57,
-76,
-58,
9,
30,
43,
37,
64,
-38,
-56,
-42,
20,
-8,
5,
11,
21,
-60,
17,
-76,
53,
36,
-1,
37,
51,
-9,
3,
-48,
15,
-17,
56,
33,
-5,
24,
3,
-5,
27,
-3,
-24,
-22,
-13,
31,
-17,
-5,
12,
-5,
-6,
4,
-27,
-22,
-38,
11,
24,
-27,
16,
4,
4,
16,
36,
11,
-11,
-64,
-12,
18,
14,
43,
6,
5,
26,
7,
88,
-19,
9,
-3,
57,
-25,
-41,
-14,
-14,
-28,
41,
17,
-59,
6,
-32,
-1,
20,
-19,
2,
-4,
11,
26,
-4,
46,
16,
10,
-34,
27,
21,
-25,
-11,
22,
53,
19,
13,
18,
-39,
3,
20,
13,
-15,
-30,
-49,
60,
-14,
-36,
1,
-40,
-2,
-36,
70,
-43,
-21,
33,
-22,
5,
-58,
9,
-81,
-6,
24,
30,
-21,
5,
26,
11,
38,
37,
-44,
12,
43,
6,
0,
0,
40,
-51,
-89,
10,
-62,
40,
7,
-27,
6,
-55,
6,
-4,
-14,
-43,
1,
22,
29,
21,
49,
55,
38,
0,
-41,
-44,
9,
54,
17,
-24,
-11,
44,
18,
10,
-18,
50,
26,
52,
70,
-29,
-49,
6,
4,
11,
-60,
36,
-51,
41,
-16,
-23,
3,
0,
7,
-44,
30,
-55,
10,
-16,
74,
-16,
11,
43,
-6,
-30,
-5,
-59,
-18,
-4,
32,
-30,
56,
-11,
24,
5,
21,
10,
-13,
7,
0,
-4,
52,
7,
-7,
41,
-88,
-12,
-4,
-17,
-35,
-8,
-28,
18,
11,
39,
-15,
11,
25,
-2,
-65,
-20,
43,
20,
6,
-11,
35,
27,
17,
46,
18,
-17,
-12,
-41,
30,
60,
8,
-31,
36,
1,
-16,
-1,
-23,
15,
-21,
0,
17,
-4,
-4,
-27,
-21,
-13,
-18,
0,
-30,
48,
10,
27,
13,
1,
16,
-1,
-50,
-12,
-36,
0,
-11,
-46,
-10,
0,
-11,
-8,
-31,
-4,
-19,
-21,
7,
39,
1,
-21,
-9,
-2,
7,
-1,
-27,
7,
10,
-27,
-33,
-3,
-17,
-10,
22,
10,
37,
15,
-28,
13,
42,
5,
-52,
-55,
-17,
-6,
-31,
27,
8,
-20,
-16,
-8,
-17,
-8,
-6,
26,
12,
-33,
-35,
-47,
-30,
-11,
-78,
-7,
18,
52,
-24,
22,
-37,
-30,
4,
41,
4,
11,
-60,
9,
-37,
-41,
-44,
-22,
-8,
-9,
1,
-6,
-14,
-11,
-24,
-37,
-6,
0,
24,
-28,
44,
-33,
16,
-42,
-21,
-19,
-8,
-49,
-51,
4,
-11,
-36,
1,
8,
-44,
-3,
65,
2,
6,
18,
26,
23,
-19,
-46,
-9,
41,
-10,
-46,
-18,
46,
-24,
-10,
3,
18,
43,
10,
1,
-45,
-29,
15,
-5,
-43,
26,
-49,
20,
-45,
-23,
-63,
-1,
13,
-12,
30,
-25,
6,
30,
20,
27,
-28,
-52,
-10,
-32,
0,
-48,
-22,
-10,
-5,
0,
-23,
21,
-4,
-22,
30,
-50,
22,
22,
25,
-42,
40,
-9,
-11,
5,
28,
-22,
36,
11,
48,
-16,
-24,
40,
-12,
-9,
7,
-39,
-24,
43,
-17,
-4,
3,
9,
-22,
-17,
34,
7,
26,
29,
-29,
3,
-53,
-5,
-84,
-16,
-12,
7,
50,
33,
40,
16,
-11,
17,
-54,
-22,
0,
54,
-17,
42,
-30,
-19,
-42,
-46,
7,
-3,
25,
-25,
51,
-10,
24,
-27,
-32,
-14,
-5,
-13,
27,
-41,
-15,
4,
-13,
-22,
33,
35,
-19,
-28,
-28,
12,
6,
-53,
-16,
33,
9,
14,
-11,
-4,
13,
-3,
31,
1,
-17,
5,
-48,
9,
8,
28,
8,
0,
13,
-81,
21,
-37,
-28,
16,
39,
7,
32,
-46,
-24,
-3,
43,
45,
-16,
-4,
16,
-36,
-6,
48,
2,
-22,
46,
-54,
-29,
28,
4,
-10,
4,
49,
45,
-15,
-17,
-4,
54,
11,
17,
54,
-36,
-9,
0,
-31,
51,
15,
-5,
75
] |
Morse, J.
We held, when this case was first argued, that the decree of the court below was not such a final order as would authorize an appeal to this Court, .and the appeal of the complainant was thereupon dismissed. Webber v. Randall, 86 Mich. 58. Upon a rehearing of the case I am satisfied that we were in error in such holding. The defendant did not appeal, but it was said by Chief Justice Champlin in his opinion that the decree was final as against him, because it dispossessed him of the possession of the property, and he could, therefore, have appealed.
As regards the complainant, it seems to me to be also final, and in conclusion of his rights and claims in the premises. All there is left to be done is simply an accounting, to be taken in accordance with the decree of the court. This decree provides for the sale of the cattle and the bringing of the proceeds into court, and fixes the time of the breach of the contract by the defendant as the date at which the value of the cattle shall be computed and adjudged to complainant, and then determines that allowance shall be made to defendant for the keeping and care of the herd, “ proper allowance being made in the accounting for milk and butter that should have been realized from said herd had they been properly cared for.” And it was further ordered that such further proofs might be taken in open court, upon an adjourned day, ” as may be required to fix the measure of complainant’s recovery.” The basis of complainant’s recovery is fixed and final. The amount of it is nothing more than a matter of computation from further proofs to be taken upon such basis.
The previous decisions of this Court are not very satisfactory, when compared one with the other. The language in Caswell v. Comstock, 6 Mich, at page 395, would seem to imply that there could be no final appeal-able order or decree when any reference was made for the purpose of ascertaining or computing the amount of money or damages to be awarded thereafter under such order or decree. Manning, J., says:
“There appears to be some little confusion in the cases as to what is a final decree, which we are disposed to attribute to the fact that the Court in some few of the cases does not seem to distinguish between directions given for the execution of a final decree, — as in mortgage sales, — and references that are preparatory to a final decision upon the merits. A decree with such a reference can with no more propriety be called a final decree than a judgment at law with a reference to a clerk or jury to assess damages can be called a final judgment.” See, also, Enos v. Sutherland, 9 Mich. 148.
'These earlier cases have been practically overruled, or at least the language of them has been repudiated, as the following excerpts . from complainant’s brief on motion for rehearing, and verified by the reports, will show:
“The statute restricts the right of appeal to decrees and final orders, and the settled meaning of the term 'decree,’ in this sense, is determined to embrace only such decrees as are not interlocutory. * * * But
it is not necessary that a decree should dispose of all the merits. Whenever the court finally adjudicates any part of them, — although the practice of making separate decrees without necessity is very reprehensible, — yet the partial decree is neither void nor interlocutory. Nor can it make any difference at what stage of the cause such a decree is made.” Lewis v. Campau, 14 Mich. 460.
“It may be said, in brief, that the nature of any order, as a decree or final order, or as not final, depends entirely on the effect produced by the adjudication upon the rights and interests of parties, and that the usual distinction between interlocutory and other orders, depending on the stage of the cause in which they are made, is not the test for appellate purposes. An adjudication made at any stage of a cause may have such an effect as to render it appealable.” Barry v. Briggs, 22 Mich. 204, 205.
“This was a bill for partition, and the decree appealed from was one establishing the title to the lands described, and fixing the respective rights of the parties; but it also ordered a reference to take an accounting as to rents and profits, etc. * * * Held, that the order or decree was final, and appealable under our statute.” Damouth v. Klock, 28 Mich. 163.
“It is first objected that an appeal will not lie. This has already been decided in several cases. * * * In all appeals the matter is heard in the appellate court as if it had not been heard before, and the order made is such as should have been made below.” Haines v. Haines, 35 Mich. 143.
“Bat the first decree was undoubtedly a final decree, and was so regarded below. It settled the title of complainant, and the further^ proceedings were in furtherance, and partly in execution, of the original decree. * * * Although there is usually but one final decree in a single cause, yet it is possible, and in some cases necessary, to have more than one. * * * Inasmuch as an appeal would have been allowable from the first decree, and was not taken, it may be questionable how far it would be proper to disturb it on a subsequent hearing, where there has been no further light on the facts.” Brown v. Bronson, Id. 419.
“It seems to me very clear that the decree of June-13, 1868, was an absolute decree which settled the rights of the parties. * * * It related directly to the merits of the controversy, and was a decision made upon the proofs and issues in the cause. * * * That an appeal could have been taken from this decree there can be no possible doubt.” Shepherd v. Rice, 38 Mich. 557, 558.
“We have held in several cases that if an order finally disposed of any right it might be appealed from, notwithstanding the case was such that proceedings would afterwards' be taken in tbe case.” Maxfield v. Freeman, 39 Mich. 65, 66.
“ The first question is whether the order is appealable. Under the statute, an appeal can only be taken from a decree or final order. Comp. Laws, § 5179. In its terms this order is interlocutory; but it has been several times held by this Court that, if an order finally disposes of any portion of the subject-matter in controversy, it is quoad hoe a final decree or order, and therefore appealable. * * * It is not the stage of the case in which the order is made that determines its appeal-ability, but, aB was held in all the cases cited, its effect upon the rights of the parties; and that must be the test of the finality of this order.” Taylor v. Sweet, 40 Mich. 739, 740.
See, also, First National Bank v. Barnum Wire, etc., Works, 58 Mich. 315; Perrin v. Lepper, 72 Id. 460; Brown v. Ring, 77 Id. 159.
It has also been held that a decree in a suit for a partnership accounting, which settles the basis for accounting, is final and appealable, although such decree does not finally dispose of the case. Candler v. Stange, 53 Mich. 479. See, also, Morey v. Grant, 48 Mich. 326. It is the effect, and not the form, of the order or decree, or the particular classification of the same, which determines the right to appeal. Perrin v. Lepper, 72 Mich. 461.
In this case the rights of both parties are settled. Whatever further there . is to be done is in furtherance of the decree as made, and to determine under such decree what will be the amount due complainant upon an accounting made upon a basis fixed by such decree. The complainant claims that he is entitled to the value of the cattle at the price fixed in the contract. The court decrees that he is not, but is entitled to their value at the time the contract was broken by defendant. This decree finally settles this contention, which is one of the main issues in controversy. Under the decisions above quoted, complainant is entitled to appeal from such decree.
The only remaining question is the correctness of the court's holding in this respect. We are satisfied that the decree is wrong in part, and should be modified. Mr. Webber is entitled to the value of the cattle as fixed in the contract, unless it can be shown that the value of that kind of cattle has depreciated between the time of the making of the contract and the breaking of it by Randall. If the value of the cattle has been lessened by the want of due and proper care on the part of Randall, he, and not Mr. Webber, must lose it; but Mr. Webber is not entitled to the value of the cattle at the date of the contract if the depreciation of value has been from other causes than the fault or neglect of the defendant, as the contract distinctly provides that neither party guarantees any future market, nor prices at the end of five years.
The decree, with this exception, will be affirmed.
The case is remanded to the court below for further proceedings in accordance with this opinion.
The complainant will recover costs of this Court.
McGrath, Long, and Grant, JJ., concurred. Champian, O. J., did not sit. | [
-13,
-29,
19,
-32,
17,
-5,
18,
-7,
-17,
51,
-10,
-17,
-22,
31,
1,
-41,
-7,
-8,
-41,
30,
-27,
5,
-19,
11,
-13,
-45,
17,
-2,
11,
12,
-54,
-25,
-4,
23,
-13,
21,
10,
19,
31,
27,
41,
-20,
0,
-27,
-29,
-28,
16,
-9,
17,
-37,
-6,
-5,
-12,
-16,
28,
56,
51,
-5,
-33,
-30,
-11,
-4,
19,
61,
-18,
49,
-52,
-13,
-52,
-30,
-34,
-12,
-17,
-16,
30,
9,
15,
-20,
-9,
-11,
29,
-7,
36,
-6,
1,
20,
24,
-4,
29,
-41,
-52,
7,
-47,
26,
13,
20,
10,
2,
22,
11,
6,
29,
-7,
39,
-39,
8,
-44,
-14,
-24,
-10,
34,
-37,
14,
-25,
-43,
0,
-71,
6,
-3,
-51,
38,
34,
5,
4,
70,
-2,
9,
-4,
0,
4,
-8,
-5,
-16,
28,
12,
-1,
4,
-18,
-25,
-13,
72,
15,
15,
-43,
36,
-27,
1,
3,
-12,
10,
2,
27,
1,
3,
34,
22,
2,
-36,
-25,
-9,
17,
-11,
-23,
2,
-26,
-9,
-9,
43,
-13,
8,
32,
29,
-23,
-28,
41,
0,
-25,
3,
-37,
-21,
-1,
10,
3,
-14,
-18,
1,
14,
7,
-40,
-14,
-55,
-29,
28,
21,
-5,
-3,
45,
26,
-7,
33,
12,
11,
14,
59,
-31,
-29,
53,
-45,
-1,
74,
-74,
5,
-58,
1,
21,
-4,
-38,
6,
-8,
-18,
36,
58,
-24,
-7,
26,
-31,
-7,
29,
-9,
17,
-45,
38,
28,
-25,
-11,
0,
59,
4,
-5,
-4,
-15,
-19,
-16,
-25,
-18,
-4,
-39,
-38,
1,
-11,
-16,
3,
-5,
10,
-6,
-44,
-18,
-14,
-45,
8,
70,
8,
-11,
13,
8,
-12,
-29,
-1,
-13,
25,
11,
-2,
8,
-23,
-11,
4,
-32,
-13,
16,
-24,
-19,
4,
-8,
-28,
-8,
36,
26,
25,
10,
29,
36,
-71,
-23,
-26,
35,
-18,
31,
-12,
28,
-39,
-42,
-33,
3,
25,
60,
6,
-50,
-6,
-28,
-77,
-44,
-27,
-19,
27,
17,
-7,
-44,
-16,
-9,
-24,
2,
11,
19,
-79,
25,
18,
30,
-58,
36,
17,
7,
36,
-20,
45,
28,
57,
21,
35,
-16,
28,
24,
14,
-22,
-16,
-10,
0,
-20,
-31,
25,
22,
-41,
82,
18,
40,
0,
-42,
-18,
-39,
-40,
51,
44,
-50,
-52,
-12,
0,
29,
-1,
-18,
17,
19,
-14,
19,
17,
7,
-53,
-10,
11,
-16,
-25,
28,
-9,
-1,
0,
-11,
45,
-25,
0,
37,
-8,
-14,
29,
-43,
-13,
17,
-7,
29,
30,
-43,
-28,
-57,
-40,
-12,
-1,
-18,
-29,
26,
-9,
-44,
-12,
16,
22,
-8,
53,
-18,
-12,
20,
42,
14,
9,
-11,
-21,
5,
21,
31,
33,
-47,
21,
-30,
-57,
30,
7,
60,
15,
-33,
-12,
67,
-12,
-41,
-70,
23,
-35,
2,
-4,
17,
-35,
-27,
6,
16,
33,
-16,
-6,
-34,
2,
6,
11,
32,
24,
-52,
1,
-28,
43,
-5,
-24,
-11,
3,
-55,
20,
-24,
27,
-30,
-32,
-4,
34,
33,
15,
11,
12,
3,
-54,
-18,
4,
-19,
9,
-10,
3,
73,
-23,
9,
-25,
12,
6,
28,
16,
-52,
-18,
-22,
32,
5,
50,
47,
-24,
11,
46,
-21,
70,
-28,
2,
-35,
32,
18,
1,
7,
24,
7,
24,
44,
-28,
40,
16,
8,
4,
-7,
-42,
-33,
-52,
56,
9,
19,
43,
-25,
0,
16,
-2,
-41,
-20,
27,
19,
-19,
-22,
-39,
-82,
13,
9,
54,
9,
9,
13,
-72,
6,
-17,
35,
-25,
-10,
-15,
-8,
-57,
-18,
25,
13,
14,
11,
5,
-25,
-8,
38,
-9,
-2,
11,
-19,
3,
28,
20,
0,
-14,
56,
2,
-19,
0,
-15,
-26,
-28,
2,
-35,
-50,
42,
-3,
25,
-2,
25,
5,
-5,
26,
7,
-9,
-36,
-28,
-25,
-20,
6,
5,
-27,
35,
-16,
-20,
29,
4,
-9,
65,
-4,
41,
-16,
37,
26,
8,
-1,
0,
33,
-2,
-12,
19,
13,
-5,
-36,
-11,
-64,
-22,
56,
-43,
19,
-18,
-9,
23,
-2,
4,
-5,
15,
0,
-7,
-43,
-42,
23,
-18,
-25,
-36,
38,
-3,
-5,
-26,
36,
-10,
-17,
-19,
25,
-34,
64,
0,
7,
-62,
38,
-38,
17,
-2,
-12,
9,
-31,
-24,
-16,
14,
14,
35,
58,
-4,
7,
23,
32,
5,
9,
10,
6,
47,
7,
23,
35,
27,
7,
14,
-11,
39,
32,
15,
-22,
22,
14,
-15,
-30,
-16,
18,
68,
-10,
-14,
78,
-6,
-19,
1,
22,
12,
-41,
28,
42,
-24,
29,
23,
6,
-17,
-3,
12,
36,
-10,
-26,
-28,
7,
-40,
20,
-73,
33,
10,
-24,
-13,
0,
-7,
-16,
19,
11,
9,
-39,
54,
-4,
-17,
-20,
-20,
-46,
12,
45,
-20,
6,
-1,
47,
49,
-48,
20,
34,
-12,
-10,
23,
-1,
-8,
2,
-12,
-33,
-8,
44,
-44,
-83,
-2,
13,
12,
-30,
-43,
-29,
-43,
47,
-56,
-20,
34,
13,
-8,
43,
-24,
61,
-56,
-39,
-33,
-12,
28,
26,
-25,
18,
20,
-64,
32,
38,
-47,
-24,
-52,
24,
40,
30,
16,
-23,
-41,
31,
-18,
2,
9,
-12,
48,
-53,
12,
-13,
-22,
19,
-56,
-27,
-11,
19,
-42,
-26,
8,
-8,
-11,
0,
21,
3,
4,
-33,
-8,
-2,
0,
53,
36,
17,
-4,
19,
25,
1,
-15,
11,
20,
18,
-12,
-34,
-50,
23,
-43,
34,
3,
-37,
8,
-38,
-8,
-24,
-14,
29,
32,
-21,
5,
-43,
18,
-1,
37,
25,
5,
-11,
1,
-21,
6,
-34,
-12,
46,
6,
14,
-6,
-54,
32,
-17,
28,
14,
-45,
-13,
-25,
12,
-45,
-18,
17,
-40,
-7,
23,
-32,
-32,
41,
15,
-18,
-22,
20,
-5,
11,
29,
-53,
4,
-20,
-2,
-54,
14,
16,
41,
8,
-20,
40,
22,
43,
-19,
-19,
-26,
-86,
0,
27,
6,
-29,
19,
21,
21,
23,
-49,
27,
30,
12,
-7,
-12,
19,
15,
-19,
-11,
24,
36,
5,
-38,
3,
-3,
35,
54,
-9,
-24,
-28,
9,
-21,
5,
-14,
-11,
28,
-5,
9,
38,
11,
2,
37,
21,
-33,
-9,
-38,
-22,
-25,
36,
43,
3,
10,
43,
44,
27,
-56,
-1,
28,
-34,
-14,
-28,
16,
-16,
16,
9,
28,
25,
4,
-18,
-61,
25,
-11,
20,
-13,
7,
-65,
13,
12,
32,
39,
15,
-6,
-12,
-28,
52,
-39,
9,
-16,
-18,
23,
1,
-3,
-30,
17,
33,
-11,
-21,
-46,
-25,
-32,
51,
-18,
-15,
23,
20,
12,
16,
8,
27,
46,
54
] |
Grant, J.
Plaintiffs brought suit against defendants on the following order:
“Marquette, Mich., March 22, 1890. “Messrs. Underwood & Gardner,
“ City.
“Gentlemen: Please pay to Gooding & Ormsbee, or order, $413.31, with interest at eight per cent, per annum, and charge same to our account.
“Hetting & Bergh.”
This order was- presented by plaintiffs to defendant Underwood, who indorsed it as follows:
“Accepted on conditions that the amount is due H. & B. on final settlement for contract work on Dead Biver Bailroad.
“J. M. Underwood.
“March 26, 1890.”
The declaration contains a special count setting forth the substance of this order, and its acceptance by the defendants, and also the money counts. The plea was the general issue. The case waB tried before the court with a jury, and verdict and judgment rendered for plaintiffs.
Upon the trial, Mr. Gooding, one of the plaintiffs, testified to a conversation with Mr. Underwood, the substance of which was as follows:
“I simply asked Mr. Underwood how much he would give us for the order. He said 4he didn’t know that he could ever get anything'on it, but he would give us $200. I thanked him, and told him we didn’t care for it. I had conversation after that. He came in our store one evening with Mr. Charles Cummings, and bought something, I think. I couldn’t give the date, but I think it was along about May sometime. He came in and bought something, and went out with Mr. Cummings, and pretty soon he came back, and says: f That will be all right, Mr. Gooding; there is enough money coming to Hetting & Bergh to pay your claim, and your claim is first in;’ and I think he said — now, I won’t be positive about this — that the amount was credited to us and charged to Hetting & Bergh on his books; but he said, at any rate, there was money enough' coming to them, and we would have the preference. That was before the commencement of this suit.”
On cross-examination he testified that he did not know whether defendants had had a settlement with Hetting & Bergh; that Underwood did not tell him they had; that he did not know whether there was anything coming to Hetting & Bergh, nor whether this account was ever charged to them by defendants. This conversation was denied? by Underwood, but the jury, in reply to a special question, settled that point in favor of the plaintiffs. It is this testimony, and the charge of the court thereon, which raise the principal question in the case.
The charge of the court was as follows:
“If you should find that Mr. Underwood, acting for the defendants, said to the plaintiffs in the suit, 'There is enough coming to Hetting & Bergh to pay this order, and it will be all right, and you stand first in the matter/ or any words to that effect, thereby giving them to understand that the condition of the account was such that that amount would be payable to them, and indicating that they should so understand it, I think, gentlemen, that the defendants in this case are estopped from now setting up the contrary. To hold otherwise would be to allow parties to practice a fraud upon parties, induce them to believe that there was an amount due, and then, when action is brought upon it, permitting them to come in and dispute them.”
1. The plaintiffs* evidence did not show that the amount of the order was due Hetting & Bergh' upon a settlement. The testimony on the part of the defendants was that nothing was due. Admitting that Underwood had the power to bind the partnership of which he was a member, it is clear that no liability attached by reason of the acceptance, unless the amount was found to be due Hetting & Bergh upon final settlement. The contract was a conditional one, and upon its face plaintiffs could only recover by proof of a final settlement, and the amount found due thereon.
Undoubtedly, the jury based their verdict upon the ground of estoppel. The declaration is framed upon the basis of an absolute acceptance of the order. Plaintiffs will not be permitted to recover upon the ground of an estoppel which is not set up in the pleadings. The estoppel constitutes a distinct cause of action, and cannot be taken advantage of, either as a ground of recovery or a defense, unless pleaded. The object of the dbclaration is to give defendant fair notice of the case he is called into court to meet. A count charging him with the acceptance of a bill of exchange cannot be held to inform him that he will be called upon to meet a liability on the ground of estoppel. Cicotte v. Gagnier, 2 Mich. 381; Moran v. Palmer, 13 Id. 367; Connerton v. Millar, 41 Id. 608.
2. Defendants were copartners in a contract for the construction of a railroad. Hetting & Bergh took a subcontract from them. There is no evidence in this record to show that this draft was presented in the due course of business. On the contrary, it is apparent that defendant Underwood accepted it for the accommodation of plaintiffs. There is also no evidence that such acceptances were within the scope of the partnership business, nor that Gardner had any knowledge of the transaction; or ever ratified it, nor that he ever knew of the conversation between Mr. Gooding and Mr. Underwood. It must, therefore, follow that the estoppel, if any there be, does not apply to Gardner. Whether Underwood intended •to bind only himself or his firm is uncertain. It is certainly customary for one partner to sign- the partnership name in such transactions. But it is unnecessary to consider the intention of Underwood. Plaintiffs, in order to recover, were bound to show that Underwood was acting within the scope of his authority when he made the representations to Mr. Gooding. .
3. It is the well-settled rule in'regard to estoppels in pais that the conduct complained of must have induced another to act to his disadvantage, and that his situation in consequence thereof has changed. This rule is well stated in Maxwell v. Bay City Bridge Co., 46 Mich. 282. The transaction in the present case did not amount to a novation. Plaintiffs lost no opportunity for enforcing their claim against Hetting & Bergh, who, so far as this record shows, were responsible. It is urged by plaintiffs that this case falls within the rule of Meister v. Birney, 24 Mich. 435, wherein it was held that expenditures in litigation may as reasonably constitute the basis of an estoppel as any other expenditures. The reply to this is that the record does not disclose that plaintiffs brought this suit in reliance upon the statement of Mr. Underwood. As already shown, the declaration is framed upon a contrary theory, viz., the performance of the condition expressed in the acceptance. The proof is not sufficient in this regard to justify a recovery upon the ground of estoppel.
4. The statutes of this State (How. Stat. § 1583) provide that — .
“No person within this State shall be charged as an acceptor on a bill of exchange, unless his acceptance shall be in writing, signed by .himself or his lawful agent.”
It was incumbent upon the plaintiffs to prove, not only that Underwood, in signing his own name, did so for the firm, but also that he was the lawful agent of Mr. Gardner for that purpose. These things cannot be presumed from the mere fact of the existence of a partnership.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
-10,
-4,
-16,
-13,
0,
-34,
51,
1,
21,
8,
34,
-42,
16,
20,
6,
-6,
-16,
-19,
49,
-4,
-29,
-37,
-21,
-9,
-20,
54,
40,
-14,
17,
-6,
26,
21,
-18,
35,
-51,
-49,
33,
-20,
-4,
-14,
23,
-37,
40,
25,
3,
2,
6,
-59,
44,
-45,
34,
-8,
4,
26,
-38,
19,
-2,
-10,
-48,
-22,
4,
-55,
63,
1,
-23,
-44,
25,
10,
-7,
-8,
-36,
20,
38,
50,
20,
-62,
-30,
-42,
-16,
14,
0,
-9,
32,
5,
-16,
17,
-35,
-53,
30,
34,
17,
39,
5,
-4,
55,
5,
15,
45,
-25,
44,
14,
-1,
-35,
6,
9,
8,
26,
-34,
-41,
19,
-5,
50,
54,
-35,
-56,
0,
-29,
-7,
11,
15,
-18,
-1,
5,
14,
-30,
12,
-12,
-27,
-2,
2,
19,
20,
-18,
32,
10,
2,
-17,
-47,
-47,
6,
1,
-8,
-70,
-7,
-26,
14,
-9,
9,
-10,
-15,
-34,
0,
-26,
34,
-10,
34,
5,
-38,
63,
-27,
53,
0,
9,
-74,
-44,
-25,
22,
32,
24,
-9,
8,
-13,
-5,
-34,
36,
44,
26,
0,
16,
-23,
34,
5,
-1,
5,
-21,
-18,
-17,
13,
20,
-2,
27,
-32,
-24,
21,
-11,
54,
25,
-24,
22,
0,
18,
-44,
7,
3,
-20,
-21,
24,
-104,
2,
-19,
-13,
40,
2,
-21,
16,
18,
-15,
-29,
-9,
-67,
0,
6,
29,
34,
-38,
-34,
36,
-10,
2,
-11,
-12,
8,
7,
34,
-5,
-11,
27,
23,
-18,
-6,
-5,
-38,
-33,
-57,
-8,
-14,
-69,
-32,
-23,
-8,
-10,
32,
-15,
24,
7,
-17,
-3,
25,
-27,
-8,
-4,
38,
-22,
-10,
13,
-19,
-18,
19,
0,
-6,
4,
-19,
26,
66,
10,
-31,
-46,
20,
-42,
39,
-17,
-15,
-47,
-1,
15,
-31,
-35,
-14,
-34,
-3,
18,
2,
18,
-33,
63,
78,
-52,
43,
36,
-2,
-37,
-12,
26,
-26,
22,
33,
7,
-30,
-51,
-6,
-35,
32,
-18,
-68,
60,
43,
22,
28,
24,
-38,
-27,
-22,
-2,
-3,
23,
15,
14,
4,
9,
35,
-16,
-18,
-12,
-16,
-61,
-26,
11,
-18,
33,
-19,
9,
20,
-77,
16,
-15,
26,
22,
-75,
5,
0,
-21,
-7,
-45,
9,
-5,
36,
22,
-15,
-7,
19,
44,
-8,
0,
-17,
6,
-22,
-42,
-36,
20,
27,
20,
19,
-11,
-51,
-34,
1,
-14,
22,
-56,
29,
19,
0,
4,
11,
42,
0,
-24,
15,
-51,
-10,
-17,
7,
36,
9,
17,
-7,
-16,
-15,
-30,
28,
55,
-10,
26,
2,
-51,
-23,
7,
-8,
17,
26,
-4,
-19,
0,
-9,
0,
-29,
35,
15,
30,
6,
63,
-11,
0,
-15,
17,
-33,
77,
16,
-58,
-15,
2,
-1,
49,
-14,
5,
35,
-30,
-18,
-38,
-30,
41,
20,
0,
61,
-8,
-31,
-19,
26,
37,
1,
33,
-17,
-25,
60,
-48,
46,
29,
10,
64,
19,
45,
12,
-8,
25,
17,
40,
30,
-5,
-11,
21,
-26,
15,
27,
18,
-20,
3,
41,
-23,
-1,
-11,
-17,
18,
-2,
-25,
-48,
0,
25,
-11,
-23,
18,
29,
19,
-24,
-3,
17,
8,
-69,
0,
-14,
9,
-38,
-30,
20,
-3,
30,
29,
12,
-22,
-6,
16,
23,
6,
9,
-17,
9,
1,
2,
47,
-36,
28,
8,
22,
-66,
-17,
21,
56,
40,
16,
32,
-26,
23,
-6,
-25,
-14,
14,
-22,
13,
-14,
27,
-12,
-16,
30,
67,
4,
12,
12,
-25,
-15,
61,
-4,
-29,
-8,
27,
37,
-12,
62,
34,
-46,
15,
-24,
1,
13,
-25,
-20,
17,
-7,
32,
8,
13,
15,
-21,
46,
-2,
25,
-12,
-34,
-25,
-8,
5,
9,
-38,
-34,
-40,
-100,
4,
28,
15,
2,
-57,
43,
-14,
9,
-58,
13,
11,
29,
-6,
19,
47,
30,
49,
-7,
-25,
40,
-14,
-38,
-34,
31,
23,
-21,
0,
-22,
36,
3,
11,
-15,
8,
-32,
26,
21,
27,
10,
28,
-1,
8,
15,
0,
-17,
-32,
-1,
14,
-20,
-8,
38,
-10,
36,
5,
56,
0,
24,
-23,
17,
-6,
-24,
-42,
-24,
-39,
56,
-8,
2,
-15,
23,
17,
-13,
-8,
-6,
-3,
15,
-17,
-38,
-19,
-35,
-40,
-8,
4,
-9,
26,
-20,
40,
-13,
4,
-17,
-25,
32,
12,
-36,
-44,
75,
-10,
-1,
-27,
17,
36,
3,
-26,
16,
-20,
32,
-27,
0,
6,
-18,
-40,
-43,
15,
-34,
15,
31,
-23,
-65,
-3,
-23,
-11,
23,
27,
-6,
-18,
10,
23,
-17,
-5,
4,
21,
-18,
26,
11,
-10,
9,
11,
-39,
35,
-24,
38,
32,
-16,
-6,
-8,
-19,
0,
10,
-2,
21,
10,
10,
-9,
3,
-48,
-25,
-29,
-22,
-8,
-1,
4,
12,
-30,
11,
28,
41,
-21,
55,
34,
-9,
-25,
7,
27,
-16,
-56,
-4,
10,
4,
-6,
33,
-7,
-43,
-10,
18,
4,
-16,
-31,
-28,
-13,
15,
3,
2,
-4,
-31,
13,
17,
42,
-15,
28,
-30,
16,
20,
-2,
-14,
45,
-1,
5,
61,
-18,
-33,
5,
-14,
-52,
3,
18,
-43,
15,
-6,
-26,
13,
57,
17,
-38,
5,
-11,
12,
18,
-13,
-46,
-20,
7,
-35,
-3,
1,
-50,
-32,
-34,
-3,
-37,
53,
8,
7,
13,
0,
-44,
-28,
-45,
11,
34,
-23,
-32,
-7,
-21,
12,
21,
-10,
-21,
34,
-8,
0,
-77,
33,
8,
34,
-58,
8,
-23,
-9,
-20,
7,
-7,
-1,
-26,
-19,
-14,
-24,
10,
35,
23,
9,
-38,
18,
15,
-57,
-14,
-72,
-9,
-30,
18,
18,
-10,
-35,
-36,
30,
-6,
-25,
43,
-28,
-29,
-1,
43,
0,
-6,
-22,
24,
-3,
-12,
39,
-8,
-15,
15,
39,
11,
-31,
-31,
-37,
37,
55,
-40,
4,
-7,
13,
11,
9,
-22,
-2,
-9,
59,
47,
-47,
-5,
14,
-7,
28,
30,
-2,
7,
35,
52,
11,
-41,
-11,
16,
-31,
73,
26,
-4,
34,
-52,
-13,
31,
-4,
9,
5,
25,
-55,
-30,
19,
22,
-42,
-18,
7,
10,
-16,
-17,
3,
20,
47,
-12,
21,
19,
56,
-43,
-6,
-41,
-8,
-1,
0,
-11,
28,
17,
-27,
29,
17,
5,
7,
11,
-23,
-47,
19,
-7,
-60,
-18,
-27,
34,
-9,
-9,
-48,
48,
-30,
-32,
31,
23,
70,
-57,
-47,
-23,
38,
28,
17,
-14,
-6,
5,
5,
0,
18,
9,
-34,
-18,
-9,
24,
21,
-22,
-15,
49,
82,
9,
-39,
-27,
-12,
46,
29,
-9,
59,
-48,
-21,
16,
-51,
38,
-10,
-8,
31
] |
Ohamplin, O. J.
This is an appeal from an order of the circuit court fpr the county of Clinton, made under the supervisory authority given to the court over assign ees and receivers by How. Stat. § 8749. The order was made upon the petition of the receiver appointed by the circuit court upon a bill filed to carry into effect a common-law assignment executed by the Scofield Buggy Company.
This company had, previously to making the common-law assignment, executed real and personal estate mortgages, covering nearly all of the assets of the company,, to Hiram M. High, to secure the payment of certain enumerated creditors for the amounts stated in the mortgages, and, among others, to the Fifth National Bank of Grand Rapids, Mich., for $5,500 direct indebtedness, and a contingent liability upon commercial paper given, to the Scofield Buggy Company by its customers and indorsed by it and discounted at the bank, and avails received by the Scofield Buggy Company, for about $19,-000. No question is made as to the validity of these mortgages.
Before the trustee named in said mortgages proceeded to' foreclose, a receiver was appointed of all the property of the Scofield Buggy Company, who took possession and converted it into money, or is in the process of converting it into money. The mortgagees proved their claims before the assignee or receiver as secured debts, and it. seems to be conceded that they are to be paid pro rata out of the avails of the assets, or in full, if sufficient, before the unsecured creditors are to be paid. Mr. High accepted the trust under the mortgages, and represents: the interests of the mortgagees. The receiver has converted a sufficient amount of assets into money to warrant him in paying a dividend to Mr. High or to the mortgagees; but, as he was uncertain as to what pro rata amount he would be justified in paying over to each of the mortgagees, he filed his petition setting forth certain facts, and asked the advice of the court.
It will only be necessary to refer to that portion of the petition, and the answer thereto of the trustee, and the-order appealed from, which affect the rights of the Fifth National Bank of Grand Rapids as a cestui que trust under the trust mortgages, as the appeal is brought in its behalf. The receiver sets forth in his petition—
“ That the claim of the Fifth Nat;onal Bank of Grand Rapids, filed December 10, 1890, and being one of the creditors secured by said mortgages, was for the sum of $14,262.99. Of this sum about $4,076.58 seems to have been on the Scofield Buggy Company’s paper, and the residue was upon customers’ and other paper discounted by the said Scofield Buggy Company with said bank.
“Your petitioner further shows that he is informed and believes that since the filing of the proof of claim aforesaid a great portion o.f this claim has been paid and taken up, and therefore is no longer in existence.”
He therefore prays — •
“That the Fifth National Bank of Grand Rapids, Michigan, by and through their trustee, Hiram M. High,, be required by an order of this court to make additional proof of their claim, showing its true stahis at the present time — First, as to the actual amount of its direct claim against the Scofield Buggy Company; and, second,. as to- any and all claims it may hold against the saidScofield Buggy Company for paper indorsed by the saidScofield Buggy Company, and all other paper discounted by said Scofield Buggy Company with said bank; and-that they make proof showing any and all payments-received by them upon any of the indebtedness, either' direct or contingent, since the filing of their claim,, December 10, 1890.”
To this petition Hiram M. High, trustee, on behalf of the Fifth National Bank of Grand Rapids, protesting against the order of the court made therein of May 18, 1891, requiring further proofs, and objecting thereto, for the reason that the same is not warranted in the statutes governing assignments, and because the time in which. ■the petition upon which said order is based should or ■could be filed has long since elapsed, for answer thereto says that he admits,—
“As stated in said petition, that there was due to the Fifth National Bank of Grand Rapids, as appears by proof of debt filed by said bank on the 10th day of December, 1890, the sum of $14,262.99.
“This defendant denies, as stated in said petition, that $4,076.58 was loaned to said Scofield Buggy Company upon its paper, and also denies that the residue was upon customers" and other paper discounted by the said Scofield Buggy Company with said bank.”
He denies “that since the filing of the proof of claim aforesaid a great portion of the claim of said the Fifth National Bank of Grand Rapids has been paid and taken up.”
He says “ that no part of the claim proved by the said the Fifth National Bank of Grand Rapids, and filed herein December 10, 1890, has been paid by the said petitioner, the receiver of said Scofield Buggy Company, or by the said the Scofield Buggy Company, and that no part of the property, or the avails thereof, covered by ¡the mortgages to this defendant as trustee for said bank .and others, has been delivered to or paid to the said the Fifth National Bank of Grand Rapids, and that it has in no wise received any money or benefit, directly or indirectly, from the estate of 'the said the Scofield Buggy 'Company.
“ This defendant further says that, prior to the creation ■or existence of the indebtedness proved by said the Fifth National Bank of Grand Rapids against the Scofield •Buggy Company, the Scofield Buggy Company, by its officers duly authorized, applied to the said the Fifth National Bank for a loan; that the said the. Fifth Natioual Bank refused to extend credit to the said the Scofield Buggy Company upon its property and credit, but required security for any loans to said company; that thereupon, on the 17th of August, 1889, the said Scofield Buggy Company, together with F. A. Scofield, George Bayne, H, Anderson, J. V. Retan, and Samuel F. Pearl, entered into an agreement with the said Fifth National Bank of Grand Rapids, by which the aforesaid persons jointly and severally bound themselves to pay, and guaranteed the payment of, any and all checks, drafts, notes, or acceptances which the said bank might hereafter cash, credit, or discount for the Scofield Buggy Company, and thereby waived notice of demand and nonpayment of the same at maturity, and guaranteed the payment of the same at maturity or any time thereafter, with interest at 8 per cent, per annum until paid, and did then and there agree to pay all costs and expenses paid or incurred in collecting the same; that the said the Fifth National Bank of Grand Bapids, relying upon the undertaking made as aforesaid, thereafter loaned to the said the Scofield Buggy Company the sum of $22,558.19, taking for said loan, as collateral security to said agreement, the promissory notes and bills of exchange mentioned in the schedule ' attached to said proof of debt marked ‘Exhibit A;'’ that since the 1st day of October, 1890, and prior to the 10th day of December, 1890, the said bank received upon such indebtedness, and in part payment thereof, the sum of $8,295.20 from such collateral security; that on or about the 19th day of September, A. D. 1S90, the said the Scofield Buggy Company, being financially embarrassed, and unable to meet its paper held by the said the Fifth National Bank of Grand Bapids and others, for the purpose of adjusting and settling the account between it and said Fifth National Bauk of Grand Bapids, and to secure the said indebtedness, made and executed the chattel mortgage referred to in the bill of complaint herein, and thereby agreed to and with the said the Fifth National Bank of Grand Bapids to pay all of its said indebtedness on or before the 1st day of October, A. D. 1890, and thereby became indebted to the said the Fifth National Bank of Grand Bapids in the sum of $24,500, and thereby undertook and promised to pay the said the Fifth National Bank of Grand Bapids all of the indebtedness, without reference to any security held by said bank therefor, and thereby reduced the indebtedness of the said Scofield Buggy Company upon commercial paper discounted by the said the Fifth National Bank of Grand Bapids to a direct and primary obligation on the part of said Scofield Buggy Company; that the said Scofield Buggy Company did not pay the indebtedness to the said the Fifth National Bank of Grand Bapids, as agreed in said chattel mortgage, on or before October 1, 1890, and never has paid the same or any part thereof.
“Upon information and belief this defendant further-says that since the 10th day of December, 1890, the said Fifth National Bank of Grand Rapids has realized upon its collateral security to said contract of August 17, 1889, and applied in payment upon said indebtedness to said bank from said Scofield Buggy Company, the further-sum of $--; that this sum has been received upon commercial paper taken as collateral security to said agreement other than the paper made in the first instance-by the Scofield Buggy Company, and upon which theScofield Buggy Company was indorser, which indorsement, was further collateral security to the said agreement of' August 17, 1889; that no part of said last-mentioned sum. belonged to or comprised the estate, or any portion thereof, of the said Scofield Buggy Co., at the timé, of the beginning of this suit, or of the execution of said chattel mortgage to this defendant, as this defendant is-informed and believes; that no creditor of the said theScofield Buggy Company, other than the said the Fifth. National Bank of Grand Rapids, had any claim or lien, thereon, or any right to the said money so received by the said the Fifth National Bank of Grand Rapids.
“And this defendant therefore asks, on behalf of the-said the Fifth National Bank of Grand Rapids, that,, upon the said receiver's declaring and paying a dividend1 herein, he may be directed by the order of this court to-pay to the said the Fifth National Bank of Grand Rapids,, or to this defendant for their benefit, a dividend upon-the whole sum proved by the said the Fifth National1 Bank of Grand Rapids on the 10th day of December, 1890."
The mortgages given to High in trust to secure the.several creditors therein named the several debts due to-them, respectively, are valid securities in the trustee's-, hands. It- is a sound principle of equity that the-mortgagee is entitled to the whole mortgaged property as-security for his debt, and that he has a right to have the-whole avails of such security applied in payment thereof.. Jones, Mort. § 707; Spencer v. Waterman, 36 Conn. 342; Hague v. West Hoboken, 23 N. J. Eq. 354. It is not. claimed that the dividend which the receiver proposes to- pay is equal to the amount secured by the mortgages. No surplus will remain for the unsecured creditors out of the dividend now proposed to be paid. As the case ■stands at present, the trustee is entitled to be paid the whole dividend on the whole amount secured by the mortgages proved against the insolvent estate. How the .avails in the trustee's hands shall be apportioned among ■the secured creditors is a subject that does not concerrj the receiver or the court. No one of the secured creditors has asked the aid of the court in the disposition of the dividend among themselves. Had the payments realized from outside securities reduced the mortgage indebtedness so that the avails of the assets in the receiver's hands would, upon such application being made to the payment <of the mortgage debt, leave a surplus to be divided among unsecured creditors, if any such there are, then the question presented in Southern Mich. Nat’l Bank v. Byles, 67 Mich. 296, and Third Nat’l Bank v. Haug, 82 Id. 607, would arise and call for a decision. If the dividend is paid to the trustee of the mortgagees, the receiver will be safe, leaving the trustee and those interested in the trust to determine its ratable distribution among themselves.
The circuit judge had no authority, under the statute or general jurisdiction, to scale down the amount upon which the dividend should be paid to the Fifth National Bank, and his order to that effect must be reversed, with costs.
The other Justices concurred. | [
22,
-14,
-19,
2,
-30,
15,
11,
8,
13,
6,
48,
-4,
9,
0,
-16,
-16,
18,
-8,
2,
25,
-13,
-36,
-30,
4,
-32,
-13,
51,
-31,
15,
-6,
-6,
-53,
-15,
23,
-25,
3,
-10,
30,
34,
-30,
-17,
14,
25,
-8,
-26,
-43,
14,
-48,
-4,
-22,
14,
7,
-16,
12,
16,
7,
-25,
-50,
-9,
-14,
12,
-3,
44,
15,
-27,
-3,
-28,
-3,
19,
-32,
0,
-10,
0,
40,
29,
-5,
-18,
11,
-85,
6,
-8,
-64,
27,
-21,
-49,
26,
-18,
-3,
-17,
17,
-36,
23,
-2,
-19,
31,
-4,
31,
-9,
47,
33,
6,
-55,
58,
60,
-22,
-9,
39,
-40,
-12,
3,
-13,
-19,
43,
-41,
-54,
-3,
-17,
6,
41,
42,
-30,
-15,
18,
-54,
5,
-22,
-38,
-8,
-43,
38,
17,
6,
-30,
65,
-10,
-9,
-4,
5,
-24,
-10,
49,
-44,
10,
-30,
-29,
-31,
77,
-43,
43,
21,
-15,
16,
17,
56,
15,
29,
-8,
-2,
27,
-17,
28,
-29,
-2,
-21,
-35,
-15,
-34,
64,
-24,
39,
58,
61,
-29,
-25,
-15,
35,
17,
14,
12,
-22,
-8,
54,
22,
-4,
22,
-48,
-7,
-17,
66,
-47,
-14,
19,
38,
4,
-59,
32,
-13,
2,
8,
-4,
-24,
-4,
36,
0,
-7,
-57,
-3,
-19,
-13,
37,
-9,
-24,
-15,
-6,
-20,
25,
-18,
-23,
6,
-42,
47,
32,
20,
10,
-15,
-32,
6,
-18,
-29,
10,
-6,
-23,
-3,
34,
-28,
-26,
14,
-31,
-3,
-18,
4,
20,
-1,
-31,
-58,
-15,
-19,
-16,
31,
6,
-26,
0,
-17,
11,
37,
-2,
-19,
44,
-31,
13,
29,
8,
-55,
31,
9,
-2,
-28,
-8,
18,
20,
-7,
22,
7,
-13,
-21,
4,
-6,
68,
8,
0,
28,
-32,
-8,
1,
7,
4,
15,
16,
-18,
3,
6,
15,
17,
13,
-28,
-32,
-17,
-3,
42,
-4,
-46,
-24,
8,
3,
11,
23,
-7,
-43,
-32,
8,
38,
-8,
-1,
-21,
48,
-11,
-22,
-4,
-24,
12,
24,
21,
-46,
32,
74,
-2,
54,
1,
9,
12,
-24,
-35,
-5,
5,
5,
29,
31,
-41,
-8,
-4,
21,
11,
0,
5,
29,
31,
-5,
-27,
-4,
24,
-70,
40,
1,
9,
-28,
24,
5,
6,
-28,
54,
15,
-9,
-13,
-20,
27,
9,
11,
13,
8,
32,
4,
7,
0,
-10,
-20,
-26,
-120,
-17,
3,
4,
32,
4,
-15,
-1,
33,
-32,
-18,
-1,
-17,
39,
-36,
-42,
18,
31,
-48,
-37,
-18,
3,
-61,
29,
23,
16,
-75,
9,
-32,
36,
24,
-27,
-2,
19,
-6,
-1,
36,
25,
10,
12,
25,
-8,
42,
-3,
12,
-5,
-41,
-18,
30,
-5,
7,
33,
1,
42,
-32,
1,
-7,
0,
1,
25,
1,
-17,
-22,
5,
-6,
22,
-17,
-4,
8,
0,
-38,
-61,
34,
-7,
20,
19,
17,
1,
6,
9,
51,
-8,
-13,
-92,
63,
-69,
48,
-12,
-23,
-3,
15,
-24,
31,
-9,
-15,
17,
2,
-30,
-4,
-19,
1,
4,
-8,
-5,
-24,
19,
-29,
37,
-28,
-31,
-29,
-8,
-24,
7,
28,
24,
-13,
24,
47,
3,
-20,
2,
-11,
1,
32,
-30,
16,
23,
-26,
6,
-7,
9,
6,
7,
3,
19,
37,
52,
-19,
18,
8,
0,
34,
16,
31,
3,
-37,
-11,
2,
35,
24,
60,
18,
-17,
-8,
-9,
50,
-24,
-8,
-23,
-8,
27,
-23,
-22,
-33,
18,
-21,
6,
-16,
-9,
-31,
-19,
-19,
-37,
-23,
-40,
33,
-2,
7,
0,
-1,
-31,
-15,
2,
-19,
26,
4,
-14,
4,
-72,
19,
-8,
-38,
-17,
37,
-5,
-21,
-4,
-5,
-17,
-15,
-26,
-21,
-6,
-41,
-33,
21,
-51,
-30,
10,
-2,
19,
8,
34,
-11,
8,
30,
17,
-1,
-35,
-3,
13,
-16,
4,
-60,
-31,
-12,
23,
-8,
-4,
-21,
27,
6,
3,
-20,
0,
25,
46,
-38,
10,
-6,
-8,
33,
-6,
-8,
71,
27,
27,
-33,
-7,
4,
28,
1,
40,
0,
-16,
41,
5,
-30,
23,
-6,
6,
-33,
-2,
-25,
30,
-22,
-31,
-17,
-43,
-13,
-4,
50,
22,
-52,
43,
-12,
-10,
45,
-36,
21,
-18,
-4,
-24,
12,
-32,
-30,
47,
53,
2,
24,
-17,
78,
3,
48,
-14,
35,
3,
29,
37,
-25,
45,
-22,
6,
13,
-4,
-46,
37,
-12,
30,
46,
-6,
-19,
-14,
26,
9,
-18,
-26,
-52,
-47,
2,
53,
12,
-49,
43,
-2,
-41,
34,
-30,
46,
-20,
15,
-14,
33,
-63,
50,
39,
-32,
1,
-13,
30,
-28,
-23,
-21,
-23,
-36,
-22,
-14,
-18,
8,
-32,
-35,
-27,
-11,
-17,
-29,
21,
-5,
-42,
-26,
19,
1,
-15,
-11,
-5,
-35,
15,
7,
-27,
57,
17,
18,
-8,
37,
47,
9,
-24,
-24,
-2,
-5,
6,
3,
4,
-13,
-16,
-14,
2,
11,
17,
-7,
-14,
43,
-18,
-59,
9,
54,
-16,
-22,
4,
6,
49,
-21,
19,
-38,
10,
-52,
19,
0,
37,
-44,
16,
44,
10,
6,
22,
15,
27,
-50,
-57,
61,
65,
52,
63,
-26,
-9,
4,
-48,
-2,
44,
-15,
-1,
-27,
11,
-38,
-24,
-9,
17,
-38,
33,
19,
0,
60,
-48,
-11,
0,
38,
4,
-24,
-51,
15,
-17,
8,
-24,
48,
-13,
-33,
23,
-22,
-15,
-29,
55,
-35,
30,
-9,
-15,
-28,
-23,
8,
34,
31,
-3,
23,
1,
-14,
-38,
-1,
9,
-9,
-15,
30,
-22,
63,
-11,
-46,
16,
42,
10,
41,
10,
-60,
-12,
-30,
-31,
41,
-11,
-10,
-41,
67,
-18,
-35,
25,
-2,
4,
-2,
-13,
-9,
-15,
-10,
-12,
-6,
8,
0,
-3,
37,
-36,
17,
-54,
14,
10,
15,
-12,
-34,
70,
-21,
8,
8,
-50,
-31,
-6,
22,
7,
-3,
-16,
17,
6,
-2,
-14,
-51,
-32,
23,
23,
-38,
12,
-3,
3,
-39,
-68,
0,
13,
-38,
24,
-29,
15,
44,
15,
-13,
-11,
42,
41,
-59,
25,
33,
-24,
8,
41,
-30,
-12,
25,
-9,
-12,
33,
20,
53,
-23,
-4,
26,
43,
-1,
28,
33,
-49,
-30,
4,
25,
-42,
-29,
39,
-46,
7,
3,
27,
-11,
-17,
18,
-17,
-1,
-9,
-45,
-21,
-45,
66,
32,
26,
-30,
-28,
-32,
-8,
45,
-36,
-19,
-24,
-35,
-12,
31,
10,
-32,
41,
-22,
-28,
20,
23,
12,
37,
13,
61,
-13,
28,
-16,
39,
-30,
-1,
9,
1,
-37,
0,
16,
15,
42,
1,
-2,
1,
14,
30,
6,
4,
7,
-29,
10
] |
Champlin, C. J.
Bois. Blanc island is situated in Lake Huron, near the straits of Mackinac, and between the Upper and.Lower Peninsulas of Michigan. It is about 13 miles in length, and from 4 to 6 miles in width. The United States survey established a base line, running east and west, from which the survey of the island was made. About 40 families are said to reside upon the island. By the United States survey a number of sections were designated as swamp, and were granted to the State by act of Congress of September 28, 18o0.
By Act No. 277, Laws of 1887, approved June 28 of that year, so much of the swamp land upon this island as might be necessary, not exceeding 640 acres to each mile of road, was appropriated for the construction of a State road along or near the principal base line of Bois Blanc island, in the county of Mackinac, from the east-* ern to the western terminus of said line.
Another act was passed in 1889, entitled—
“An act to authorize the Board of Control of State Swamp Lands to make an appropriation of State swamp lands to aid in the construction of a State road from Bessemer, Gogebic county, to the mouth of Black river, in said county.”
Under this act, on or about October 30, 1889, John' H. D. Stevens was appointed a commissioner, who proceeded to lay out the road, and let the contract to the relator, who constructed the road, and it has been duly accepted. By the terms of this contract Mays was to receive—
“As compensation in full for said work and materials furnished the sum of $21,029, payable in State swamp lands, which shall be selected by the said principal [Mays], his heirs or assigns, from any vacant swamp lands which may be in the market, and subject to sale by the Commissioner of the State Land-Office, in the Upper Peninsula of the State of Michigan, and applicable to the construction of said road, at the minimum price established by law at the time of such selection.”
On the 20th of June, 1891, the relator filed with George T. Shaffer; Commissioner of the State Land-Office, a list of lands selected by him, which list embraced certain State swamp lands upon Bois Blanc island, and demanded that the Commissioner issue to him certificates therefor, and the Commissioner refused. This application is for a writ of mandamus to compel, the Commissioner to issue such certificates. The Commissioner has by his answer to our order to show cause set forth several reasons why he should not be compelled to issue such certificates. It is set up in the answer, and not denied, that there are sufficient State swamp lands in the Upper Peninsula of Michigan to pay for the work at the contract price, and it is conceded that the relator had, at the time he made his application, swamp-land scrip to the amount of $19,039. It is not necessary to examine or decide all the questions presented at the argument, as the relator admits—
“That by the terms of his contract he was required to select lands which were subject to sale by the Commissioner of the State Land-Office in the Upper Peninsula, and applicable to the construction of the road, at the minimum price established by law.'”
The State has treated the lands upon Bois Blanc island as distinctive from those in the Upper Peninsula, and so did the United States in making the government survey. The lands upon Bois Blanc island are not in the Upper Peninsula of Michigan, within the language and intent of the contract, and the relator shows no right to select lands upon said island.
The writ is denied.
The other Justices concurred.
Act No. 206, Laws of 1889. | [
7,
79,
62,
-68,
40,
20,
22,
23,
-19,
17,
-21,
-46,
-68,
-27,
12,
0,
-18,
-3,
-51,
24,
0,
-1,
-28,
-54,
-26,
40,
66,
58,
-30,
-27,
-10,
21,
-61,
-19,
42,
9,
57,
-62,
-8,
-10,
-36,
-91,
-72,
51,
19,
27,
-8,
15,
13,
-6,
-40,
51,
-3,
44,
-28,
17,
-56,
-10,
-2,
-9,
-67,
-9,
17,
-11,
-4,
23,
0,
24,
25,
47,
0,
-47,
11,
-8,
47,
51,
37,
-21,
-15,
2,
-14,
41,
-27,
-29,
-3,
-45,
-112,
-40,
-24,
51,
-30,
-83,
-13,
38,
-3,
-36,
4,
2,
-39,
-5,
34,
30,
-6,
-15,
39,
11,
-25,
73,
2,
11,
80,
-25,
-9,
-30,
44,
-1,
-18,
-2,
6,
-6,
-73,
-54,
-29,
42,
-79,
-50,
-42,
-38,
-22,
13,
75,
-73,
-23,
0,
21,
48,
-100,
-7,
-7,
-34,
26,
13,
-65,
14,
42,
2,
-56,
-54,
35,
-18,
-15,
-40,
12,
-63,
-25,
48,
19,
-9,
48,
-3,
-10,
-10,
79,
25,
-71,
15,
-6,
31,
5,
41,
-14,
-65,
5,
-79,
-32,
-18,
0,
-11,
11,
55,
44,
-22,
-10,
-70,
-33,
-39,
-25,
-42,
-33,
-20,
26,
40,
52,
-84,
-37,
99,
54,
40,
-44,
46,
37,
-36,
20,
1,
-36,
-41,
10,
7,
1,
42,
14,
-15,
-36,
34,
21,
38,
-39,
-40,
74,
-15,
103,
-32,
54,
36,
53,
-18,
-17,
11,
-15,
-29,
18,
-30,
-1,
-22,
-38,
12,
-67,
18,
-52,
7,
-7,
-5,
-47,
17,
38,
34,
15,
-48,
-40,
46,
-29,
35,
-59,
-85,
-6,
-1,
39,
-17,
11,
-15,
-67,
-52,
24,
-8,
-22,
7,
-13,
-41,
-7,
-54,
40,
28,
-18,
-15,
-66,
67,
-15,
42,
-32,
48,
-31,
-63,
-83,
-8,
64,
-33,
-10,
-84,
-29,
64,
-28,
10,
38,
4,
-18,
46,
63,
4,
43,
11,
-59,
99,
-69,
24,
36,
-15,
-36,
24,
29,
-20,
46,
-2,
-26,
19,
-19,
1,
47,
35,
3,
31,
-17,
37,
31,
47,
8,
66,
2,
18,
-10,
53,
55,
7,
1,
42,
-18,
23,
-18,
23,
-30,
-4,
16,
25,
57,
49,
-7,
1,
-99,
-19,
38,
-50,
-4,
-27,
22,
21,
-14,
-2,
-19,
81,
0,
5,
63,
-3,
46,
30,
18,
7,
-25,
26,
70,
6,
6,
22,
-9,
38,
12,
15,
18,
12,
-57,
40,
28,
52,
-6,
43,
10,
-16,
-23,
-36,
-70,
-71,
-11,
-38,
-61,
26,
53,
7,
38,
-46,
-19,
-48,
19,
51,
7,
28,
48,
80,
32,
-6,
67,
-8,
53,
-49,
12,
-20,
12,
-14,
25,
-16,
-2,
-72,
11,
26,
-25,
-31,
-24,
-26,
38,
21,
-6,
35,
4,
32,
28,
78,
14,
-13,
-57,
-79,
-1,
-11,
-2,
45,
76,
35,
4,
-104,
-16,
83,
23,
-19,
17,
61,
-66,
-9,
-33,
16,
-13,
-29,
-6,
1,
-76,
9,
0,
-3,
-56,
0,
-51,
18,
53,
40,
-69,
21,
-5,
-56,
-44,
-88,
41,
17,
12,
-7,
43,
-53,
-35,
6,
-6,
-26,
64,
35,
-17,
-23,
46,
-41,
-19,
30,
75,
-39,
4,
19,
71,
45,
47,
54,
3,
-23,
-94,
-11,
-14,
77,
11,
2,
26,
-110,
-36,
-1,
-6,
10,
-38,
-64,
68,
32,
-44,
62,
28,
9,
54,
91,
11,
-40,
19,
21,
5,
-21,
-29,
51,
-40,
-51,
47,
57,
-47,
-4,
69,
-76,
40,
-16,
4,
42,
-36,
5,
-62,
-40,
22,
21,
0,
-30,
-20,
14,
-8,
-17,
9,
-6,
-39,
-38,
-33,
-27,
13,
9,
18,
13,
-16,
-2,
-5,
26,
76,
39,
2,
73,
-67,
-29,
38,
53,
-20,
-36,
19,
-52,
21,
6,
26,
-44,
-32,
20,
-18,
-32,
-57,
60,
1,
51,
-23,
115,
-52,
-39,
33,
-25,
12,
15,
26,
-14,
-10,
-2,
118,
45,
-57,
-5,
36,
78,
38,
64,
5,
-26,
5,
-21,
44,
-57,
-22,
-39,
12,
26,
8,
36,
-33,
78,
-54,
42,
0,
42,
12,
-11,
59,
-27,
40,
-2,
7,
-31,
-74,
15,
-57,
18,
-17,
-24,
-8,
-33,
-12,
27,
12,
-11,
-47,
-16,
-4,
45,
61,
71,
31,
1,
26,
9,
-44,
-26,
-62,
9,
33,
8,
-15,
-64,
-65,
-31,
-12,
-12,
44,
62,
25,
82,
59,
16,
-66,
17,
78,
19,
-20,
20,
-26,
42,
-10,
45,
-8,
0,
49,
-45,
-2,
27,
23,
7,
-6,
39,
-25,
-30,
-31,
41,
5,
-52,
4,
-10,
-22,
32,
59,
49,
-15,
66,
-20,
-2,
-13,
23,
0,
-92,
-52,
30,
-50,
-51,
-57,
-84,
-83,
54,
-33,
50,
-8,
-29,
21,
34,
32,
51,
-15,
-11,
-5,
-35,
-61,
-21,
-25,
-9,
47,
-4,
4,
-11,
-44,
-24,
-1,
30,
21,
-116,
-20,
100,
-38,
50,
6,
10,
-27,
0,
-38,
29,
11,
25,
-35,
10,
-51,
-11,
-63,
-50,
36,
-58,
5,
22,
2,
-28,
-48,
-52,
-37,
-69,
46,
-21,
-4,
-43,
30,
-58,
-27,
-33,
-4,
29,
-62,
-41,
9,
-27,
24,
-14,
-39,
33,
-14,
30,
10,
33,
-26,
44,
-26,
35,
13,
-7,
25,
-42,
13,
2,
-36,
18,
-1,
-5,
-21,
17,
4,
18,
43,
35,
-43,
-30,
-68,
-59,
68,
52,
22,
-36,
-4,
-1,
7,
-6,
14,
29,
24,
-6,
30,
-87,
0,
37,
-31,
24,
-47,
-1,
-49,
-12,
-52,
-51,
0,
0,
7,
0,
11,
29,
18,
-39,
-23,
-20,
0,
13,
92,
-65,
-36,
17,
46,
4,
70,
-15,
18,
61,
-9,
-6,
-69,
5,
-26,
-29,
105,
-55,
-39,
-7,
22,
-14,
89,
47,
9,
-41,
-9,
6,
-52,
-14,
6,
59,
-56,
32,
-14,
-11,
1,
-35,
6,
-58,
3,
15,
79,
76,
-59,
16,
-5,
-26,
-62,
-48,
-61,
-11,
-51,
29,
52,
4,
-4,
13,
-42,
32,
-35,
35,
8,
22,
-2,
-19,
-57,
-34,
6,
38,
66,
-11,
74,
5,
61,
35,
-9,
-13,
37,
56,
48,
-2,
53,
38,
23,
-23,
-28,
34,
-34,
-40,
-15,
0,
14,
-21,
-23,
46,
83,
46,
-13,
23,
14,
-49,
6,
92,
-46,
-18,
-1,
1,
38,
-3,
-61,
-31,
19,
-87,
-28,
-31,
1,
67,
89,
-62,
26,
22,
28,
-67,
-18,
6,
37,
-28,
10,
-19,
-12,
-5,
-52,
16,
-1,
13,
-37,
57,
5,
-24,
-3,
-33,
-9,
-13,
-50,
18,
-17,
-16,
3,
42,
23,
12,
10,
-22,
47,
-7,
-49,
47
] |
Long, J.
This action was brought in the circuit court for the county of Kent for breach of the covenant of warranty in a deed. The covenant sued upon is “that the said lands and premises are free from all incumbrances whatsoever.”
The cause was tried before the court without a jury, and the court found the facts, and entered judgment in favor of the defendant. The incumbrance sought to be shown was an unpaid tax for the year 1885. This the court found to be an invalid tax, for the reasons set forth in the findings of fact. The testimony upon which these facts were found is not returned in the record, and we must take the findings of fact as true.
There are two assignments of error:
1. That the findings of fact did not sustain the conclusions of law.
2. That upon the facts found the judgment should have been for the plaintiff.
It appeared upon the trial:
1. That the tax existed and was unpaid at the time of the execution and delivery of the deed.
2. That the plaintiff paid the tax voluntarily, and before any proceedings were had to enforce the lien created by it.
3. That the defendant had no notice of the payment of the tax by the plaintiff, and was not called upon to pay it, or remove the cloud thereby created, until long after the payment of the tax by the plaintiff.
4. That no action had been taken against the plaintiff to oust him from his possession of the premises, but that he was in the enjoyment of his quiet and peaceable possession.
5. That plaintiff had conveyed his title to another party before' the bringing of this suit.
6. That the tax was illegal, and wholly void, at the time of its payment by the plaintiff.
Under these circumstances, the circuit court was not in error in directing judgment for the defendant.
At the time of the execution of the deed, it is undoubtedly true that the tax, though void, created a cloud upon plaintiff’s title. The plaintiff, however, having voluntarily paid ’ the tax without notice, his grantor would not, be estopped in the action on the covenant from showing that the tax was invalid, and not an incumbrance upon the premises. There had been no adjudication upon the validity of the tax at the time the plaintiff paid it. He had not been disturbed in his quiet and peaceable possession, and, so far as appears by the record, had made no demand upon the defendant to pay the tax or remove the incumbrance, if the tax amounted to an incumbrance. It turned out upon the trial that the tax was wholly void, and the court was not in error in concluding, as a matter of law, that plaintiff was not entitled to recover.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
-34,
12,
8,
-6,
-12,
14,
64,
-40,
34,
37,
12,
15,
43,
-11,
-4,
-36,
-15,
-2,
-23,
38,
3,
-15,
-22,
11,
17,
0,
9,
4,
13,
28,
27,
-10,
-29,
53,
-42,
3,
8,
-13,
39,
-18,
31,
33,
-48,
-31,
-32,
9,
-41,
-18,
31,
-8,
-7,
0,
10,
-51,
11,
-17,
-20,
45,
25,
-38,
-15,
-10,
-9,
-16,
-15,
2,
16,
-7,
22,
-37,
-58,
26,
10,
-26,
5,
10,
17,
35,
-48,
14,
13,
2,
28,
-16,
-13,
-63,
-5,
-3,
22,
10,
-24,
4,
9,
-9,
6,
2,
18,
34,
-21,
35,
-6,
30,
23,
49,
-17,
-17,
-42,
-61,
-21,
-51,
34,
-18,
44,
-1,
-4,
-9,
-22,
-1,
-36,
-55,
51,
-31,
39,
4,
-11,
1,
-2,
-37,
-15,
-20,
36,
-15,
-67,
-21,
-26,
-31,
12,
13,
38,
-2,
36,
5,
-3,
-56,
-11,
54,
17,
-13,
-6,
-29,
-52,
-3,
42,
4,
-9,
-6,
-16,
-43,
32,
-87,
47,
38,
-25,
-17,
8,
-21,
-42,
6,
25,
-11,
18,
20,
-35,
-11,
-8,
34,
3,
-67,
-2,
-26,
-3,
-13,
23,
0,
27,
-30,
-64,
13,
-20,
-43,
4,
1,
-31,
14,
-8,
24,
-22,
17,
9,
-53,
-11,
-48,
-21,
23,
-2,
62,
23,
45,
-18,
8,
-21,
10,
8,
-50,
-13,
-16,
15,
24,
-17,
36,
15,
60,
-6,
-42,
-24,
-63,
-23,
18,
-51,
24,
-55,
39,
-12,
-38,
-16,
-6,
-4,
25,
-18,
51,
-25,
25,
-29,
-2,
27,
-2,
-20,
19,
-43,
11,
1,
-5,
-39,
16,
-21,
-79,
17,
-5,
8,
0,
-23,
71,
-19,
-31,
28,
-34,
58,
16,
30,
41,
-59,
50,
4,
12,
2,
-12,
-37,
-13,
-30,
6,
-5,
-13,
60,
14,
-44,
58,
-26,
69,
4,
0,
9,
-65,
12,
18,
8,
45,
42,
35,
-10,
10,
40,
-7,
8,
46,
-22,
-27,
-10,
64,
17,
-4,
-45,
6,
17,
-19,
24,
0,
-5,
-55,
36,
-66,
-29,
67,
4,
-16,
8,
38,
48,
-78,
-49,
16,
-5,
-18,
31,
3,
60,
5,
5,
-47,
-40,
-19,
13,
33,
15,
-19,
25,
30,
-6,
-25,
1,
58,
-44,
31,
-13,
53,
-3,
23,
-6,
-47,
-29,
6,
27,
-2,
16,
-6,
-6,
34,
-25,
-22,
36,
11,
2,
-7,
-30,
22,
-30,
-30,
2,
-18,
-57,
22,
-3,
-22,
-11,
44,
16,
18,
-9,
-27,
11,
6,
-37,
10,
12,
17,
2,
-7,
24,
-25,
-58,
24,
-9,
30,
36,
-5,
-44,
16,
5,
3,
-37,
24,
6,
10,
-38,
-33,
-20,
-26,
41,
-40,
51,
2,
37,
11,
3,
-37,
6,
-45,
0,
40,
-2,
-9,
5,
-34,
-12,
-28,
24,
-11,
-27,
-6,
3,
10,
-12,
7,
-16,
5,
-8,
24,
17,
6,
24,
10,
5,
-27,
25,
17,
20,
41,
41,
-54,
32,
29,
69,
-6,
-13,
38,
8,
3,
-20,
-28,
10,
-13,
-37,
-2,
29,
14,
-40,
14,
-64,
0,
12,
9,
25,
-14,
-23,
0,
-12,
-4,
-54,
-9,
-25,
15,
42,
-15,
-22,
-6,
-3,
-18,
-34,
-22,
-16,
26,
6,
52,
15,
-11,
32,
-9,
-44,
12,
-13,
43,
-17,
-6,
41,
31,
-9,
14,
62,
-16,
17,
0,
25,
-17,
-57,
-20,
-7,
-16,
34,
48,
17,
8,
38,
17,
33,
4,
-18,
33,
39,
-23,
9,
11,
3,
58,
25,
63,
12,
34,
38,
-15,
-18,
10,
6,
3,
27,
37,
-45,
23,
24,
-23,
25,
14,
-22,
-12,
32,
-27,
25,
-20,
10,
-23,
-22,
-9,
19,
3,
-27,
-1,
-44,
2,
-55,
-26,
10,
-32,
-48,
-19,
21,
-78,
18,
42,
11,
29,
28,
-42,
-24,
20,
-4,
15,
8,
-62,
11,
13,
21,
10,
-26,
-17,
-19,
0,
18,
13,
46,
0,
-40,
-15,
25,
2,
27,
42,
43,
44,
-9,
-15,
-18,
50,
-10,
3,
-11,
-9,
18,
9,
18,
3,
-49,
-24,
-10,
-39,
-40,
2,
-36,
11,
33,
6,
-6,
-21,
-2,
-25,
-16,
8,
-34,
31,
-84,
3,
6,
-12,
-31,
59,
-1,
0,
-23,
12,
35,
8,
11,
-4,
36,
-26,
25,
44,
-1,
-14,
25,
5,
-3,
58,
-11,
-54,
-10,
4,
-10,
-1,
29,
21,
42,
-41,
22,
-2,
67,
13,
12,
-30,
-31,
-10,
38,
8,
5,
-30,
14,
11,
-1,
38,
13,
20,
55,
31,
25,
3,
0,
43,
-24,
9,
6,
9,
0,
-32,
43,
-8,
0,
-19,
2,
18,
0,
31,
-21,
-19,
-7,
-27,
3,
-40,
52,
0,
44,
-33,
9,
-19,
9,
31,
-51,
21,
-33,
33,
61,
1,
-43,
-39,
13,
-30,
-16,
-5,
-6,
-1,
41,
13,
7,
11,
4,
13,
-7,
-24,
-12,
26,
-34,
-17,
6,
4,
3,
38,
18,
-6,
-1,
-16,
-48,
-49,
15,
-38,
-19,
28,
19,
-31,
37,
29,
-10,
14,
15,
-23,
77,
25,
34,
53,
-30,
-49,
-13,
-41,
-17,
25,
10,
-47,
1,
-19,
-20,
9,
-26,
34,
-14,
-8,
-5,
39,
-18,
-9,
10,
45,
0,
46,
3,
22,
-3,
-32,
-31,
-72,
7,
-34,
-6,
55,
36,
-22,
5,
39,
9,
-38,
19,
22,
-19,
-2,
-38,
-14,
21,
-52,
-1,
13,
48,
-40,
-31,
1,
-9,
-37,
-10,
19,
-28,
-10,
-22,
20,
-17,
2,
-11,
-5,
-12,
0,
13,
-8,
-3,
-11,
23,
-18,
9,
7,
-21,
-13,
24,
23,
21,
-59,
-14,
33,
5,
-17,
2,
16,
-49,
9,
19,
-26,
-8,
-26,
10,
41,
-17,
14,
-30,
15,
7,
-39,
-17,
-32,
-4,
48,
5,
-40,
36,
17,
-5,
-5,
27,
-16,
-12,
-3,
-31,
3,
-51,
0,
-11,
19,
46,
20,
-13,
44,
-10,
-9,
-47,
-26,
-10,
29,
-28,
-29,
-1,
41,
35,
-5,
-38,
-39,
-41,
-10,
9,
12,
-6,
30,
-18,
26,
-14,
52,
53,
-52,
15,
-36,
8,
-40,
41,
-26,
-17,
-7,
-18,
-36,
5,
24,
-12,
8,
-26,
-25,
-27,
17,
-14,
-19,
-46,
-41,
-6,
-19,
-29,
39,
-9,
-45,
-3,
51,
43,
37,
-48,
11,
-23,
-57,
39,
15,
24,
-10,
-5,
4,
6,
41,
27,
-52,
-80,
-11,
-46,
-43,
22,
-41,
-54,
-30,
9,
16,
2,
-15,
-42,
6,
-18,
-45,
-2,
3,
31,
-35,
21,
-25,
39,
-48,
75,
24,
28,
-40,
-44,
-10,
67,
43,
-24,
39,
-29,
15,
14,
3,
40,
-8,
-3,
41
] |
Long, J.
The bill in this cause was filed for the purpose of declaring a certain bill of sale, given by A. Weed & Co. to Hoxie & Mellor, a chattel mortgage as security for certain accommodation paper made and indorsed by Hoxie & Mellor, and used by A. Weed & Co. in their business, and to decree the same to be a lien upon the logs described in said bill of sale, and the lumber and other material manufactured therefrom, and that the same be declared a trust fund for the payment of such accommodation paper; to declare the articles of agreement or sale by said A. Weed & Co. to the South Branch Lumber Company null and void as against said bill of sale given to Hoxie & Mellor; that the bill of sale be decreed to be a lien upon said property in the nature of a chattel mortgage prior to the purchase of the said South Branch Lumber Company; that a certain' chattel mortgage held by the First National Bank of Ashland, Wis., be declared to be a lien subsequent to-the lien of the complainants upon said property; and that the accommodation paper held by the complainants, be first paid out of the proceeds realized from the sale of the logs.
" The bill asked for an injunction against defendants restraining them from interferring with, removing, or disposing of the logs, lumber, lath, shingles, or timber, and for the appointment of a receiver. Upon the hearing in the court below, a decree was made from which complainants and several of the. defendants appeal.
On November 28, 1889, A. Weed & Co., composed of Alfred Weed and Paul Weed, who were engaged in the business of getting out logs, manufacturing them into lumber, and selling the lumber, made with Hoxie & Mellor the following contract:
“Antigo, Wis., Nov. 28, 1889.
“This agreement witnesseth that Hoxie & Mellor, in consideration of two promissory notes of A. Weed & Co., for $2,500 each, dated to-day, one due July 15 next, and one due October 15 next, without interest, hereby agree to advance to A. Weed & Co. their notes for such amounts and at such times as will be necessary to carry on A. Weed & Co/s business at Ramsay, and for the purpose of logging a certain four million tract at Ashland. Hoxie & Mellor also agree to indorse A. Weed & CoJs notes for $14,000, for payment of purchase price of above four million feet of timber. It is agreed between both parties that the amount of notes advanced for Ramsay business shall not exceed $70,000 in all at any one time, and that the amount advanced for Ashland business shall not exceed $30,000 in all at any one time, including the indorsement of $14,000 for purchase price of timber. A. Weed & Co. agree to use Hoxie & Mellor paper at such places as will not interfere with the conducting of their (Hoxie & Mellor’s) other business, and also agree that all notes shall be taken up by them before Dec. 31, 1890, out of the proceeds of sales of stock.
“Hoxie & Mellor.
“A. Weed & Co.”
Under this contract notes were advanced by Hoxie & Mellor to A. Weed & Co., and renewals of such notes were made by Hoxie & Mellor, up to April 5, 1890, amounting to $108,000.
On March 30, 1890, Paul Weed, who acted for A. Weed & Co., wrote to Mellor, who acted for Hoxie & Mellor,, the following letter:
“Ashland, Wis., March 30, 1890..
“Mr. E. W. Mellor,
“Antigo, Wis.
“Bear Sir:
“We inclose the last $3,500 note for signature and return, as per my letter of recent date. We finish the last of our logging operations on April 2, and they have been very satisfactory. As fast as we market our lumber we shall retire the notes out, but that will not begin until June or July. We have arrangements to take care of our renewals in the mean time. I did not see Bishop but a few minutes, owing to a mistake, and we having a lawsuit on our hands the following day. Did he take the logs?
“Yours truly,
“Paul Weed.”
To this letter Mellor replied by letter of April 5, as follows:
“Antigo, Wis., April 5, 1890.
“Paul Weed,
“‘Ashland, Wis.
“ Dear Sir:
“Your favor of the'30th ult. came while I was away; hence the delay in replying. I return the note herewith, as it is impossible for me to sign it under existing circumstances. Will explain more fully when I see you. Expected to see you ere this, and, if you are not coming down soon, let me know, and I will go np there, as I must see you ere long. I inclose you also your note which was renewed.
“ Yours truly,
“E. N. Mellor.”
After receiving this letter, Paul Weed went to see Mellor at Antigo, and there executed to Hoxie & Mellor the bill of sale which complainants, by their bill, claim was intended as security for certain notes indorsed, and thereafter to be indorsed, by Hoxie & Mellor. This bill of sale is as follows:
“Know all men by these presents, that A. Weed & Co., of Eamsay, Gogebic county,, Michigan, of the first part, for and in consideration of the sum of seventy thousand dollars, lawful money of the United States, to me in hand paid, at or before the ensealing and delivery of these presents, by Hoxie & Mellor, of the second part, the receipt whereof is hereby acknowledged, have bargained, iSold, granted, and 'conveyed, and by these presents do bargain, sell, grant, and convey, unto the said parties of the second part, their executors, administrators, and •assigns, twenty-eight thousand pine saw-logs, scaling seven million feet, more or less. Said logs are now lying and being in the Black river, near Eamsay, Gogebic county, Michigan.
“ To have and to hold the same unto the said parties •of the second part, their executors, administrators, and assigns, forever. And we do, for our heirs, executors, administrators, and assigns, covenant and agree, to and with the said parties of the second part, to warrant and defend the same described goods, hereby sold unto the said parties of the second part, their executors, administrators, and assigns, against all and every person and persons, whomsoever.
“In witness whereof we have hereunto set our hands .and seals the fifteenth day of April, A. D. 1890.
“A. Weed & Co. [Seal.]
“ Signed, sealed, and delivered in the presence of
“ George E. Fraser.”
When this bill of sale was made the logs were where they had been banked. The driving of them had mot commenced, and A. Weed & Co/s men were on the ground preparing for the drive. They continued the work, and drove the logs. The drive started about the 17th of April, and was finished about the 4th of May. A. Weed & Co. began sawing the logs about May 5, and •continued sawing them until some time in September, when all the logs in controversy had been sawed. The bill of sale before set out was not filed until the 10th day •of May, 1890. On the 11th of June following, A. Weed •& Co. made a contract of sale to the South Branch Lumber Company of all the merchantable white pine lumber which had then been sawed from the logs, and .all which they should saw from the logs, as follows:
“ Chicago, III., June 11, 1890.
“South Branch Lumber Company,
“Chicago, 111.:
“We will sell you all the merchantable white pine lumber now piled at our mill at Eamsay; also the lumber from logs now in Black river and tributaries, •and to be sawed at our mill in Eamsay, — the entire cut ■being about seven million feet, — for the sum of $14 per M ft., board measure, f. o. b. cars at our mill. The 10 ft. c. and better to go in at the same price, and the 6 and 8 ft. c. and better at $10 per M feet.. The mill culls, and 6, 8, and 10 ft. common and poorer, are not a parcel of this agreement. The lumber to be all cross-piled, and grades kept separate, as directed by you. We will also sell you our extra star shingles at §1.75, and the 6 dimension clear shingles at §2.20, per M, f. o. b. cars at Ramsay. Lumber to be settled for on the basis of §13 per M on McOlintock’s estimate, the first of each month, and you to give us your ninety-day paper for the same. The lumber to be manufactured from time to time as directed by you or your representative; and we shall take proper care in piling and covering same to prevent staining, and see that no lumber is piled nearer than 150 ft. of the mill, to protect you in insurance. When estimates are taken each pile to be marked, ‘The property of the South Branch Lumber Company.'’
“We also agree to make good to you any expense or loss that you may be put to by any claims or otherwise made against this lumber by other parties. Final settlement to be made as per the price of §14 on the completement of the shipment of all the lumber. Lumber to be inspected by C. M. E. McOlintock, each paying one-half of the same.
“We also agree to hold this lumber in piles until reduced in weight not to exceed 2,500 lbs. per M ft. You also have the privilege of letting this lumber remain here as long as you wish, providing that it does not interfere with the necessities of our mill for piling room.
“Very respectfully yours,
“A. Weed .& Co.
“We accept the above.
“The South Branch Lumber Co.
“B. F. Ferguson, Treas.”
After this contract had been made, and the parties, begun to act upon it, and to ship lumber under it to the South Branch Lumber Company, a further agreement was made that the South Branch Lumber Company should take the lower grade of lumber which should be-piled in the piles of lumber made under the contract of June 11, and this became a part of the contract.
On September 6 the lumber which had been thus sawed, and whicb is the lumber in controversy between the complainants and the South Branch Lumber Company, was. delivered into the possession of the defendant the South Branch Lumber Company, and continued in its possession until it was seized by attachment on September 16 and 17. The lumber at this time had been estimated by McOlintock. It appears that after the lumber had been estimated, and had been taken possession of by the South Branch Lumber Company, and on September 16, in a suit by the First National Bank of Bessemer against Hoxie & Mellor and A. Weed & Co., the lumber was seized by attachment, and on the 17th of September it was again attached in -a suit brought by the complainant the First National Bank of Marquette against Hoxie & Mellor and A. Weed & Co. On the 24th of September the South Branch Lumber Company replevied the lumber from the sheriff, who held it under these writs of attachment.
The defendant the South Branch Lumber Company, upon its contract of purchase of the lumber in controversy from A. Weed & Co., executed and delivered to A. Weed & Co. its negotiable promissory notes to the amount of $58,000. These notes were made and delivered to A. Weed & Co., as follows: About June 21, the sum of $25,000; August 1, $18,000; September 1, $15,000. The first payment was made upon the certificate of the inspector agreed upon in the contract. The last two payments were made without any such certificate or any inventory of Mr. McOlintock, that being waived by both parties. All these notes have been paid by the South Branch Lumber Company.
The complainants are the holders of a part of the notes made by A. Weed & Co. and Hoxie & Mellor under the contract of November 28, 1889. All such notes held by the complainants were made after the sale of June 11 by A. Weed & Co. to the South Branch Lumber Company. Some of these notes are renewals of notes made prior to that date. The complainants bought them in open market for a valuable consideration, and without knowledge of the existence of the bill of sale from A. Weed & Co. to Hoxie & Mellor, heretofore set out, given April 15, 1890. As the holders of these notes, the complainants claim by their bill to be subrogated to all the rights of Hoxie & Mellor under the bill of sale, with the right to foreclose the same as a chattel mortgage given to secure such notes. The issue between the complainants and the South Branch Lumber Company is whether, under the contract of June 11, the South Branch Lumber Company has acquired such rights in the lumber that it could hold the lumber as against the foreclosure by the complainants of the bill of sale of April 15.
Some considerable testimony was given to show what the agreement and understanding was between A. Weed & Co. and Hoxie & Mellor at the time the bill of sale was executed, which, taken with the bill of sale, would constitute a security, and what were the terms. The South Branch Lumber Company contends that when the bill of sale was executed it was the understanding and agreement between A. Weed & Co. and Hoxie & Mellor that A. Weed & Co. should continue in possession of the logs, drive them to their mill at Bamsay, manufacture them into lumber, sell the lumber, and, by means of the proceeds, pay the notes indorsed or signed, and to be indorsed or signed, by Hoxie & Mellor, and that Hoxie & Mellor would continue to indorse and renew notes for A. Weed & Co. to enable A. Weed & Co. to do that business; and that in doing that business A. Weed & Co. made sale of the lumber in question to the defendant by the contract of June 11. It appears that $40,-725 of the notes given by the South Branch Lumber Company was directly applied to the payment of the notes made or guaranteed by Hoxie & Mellor, and by them given to A. Weed & Co., nndér their contract of November 28, 1889.
The bill was filed in this cause October 1, 1890, setting up that the complainants were holders of the notes made or guaranteed by Hoxie & Mellor for the accommodation of A. Weed & Co., and that the bill of sale was given for the purpose of securing Hoxie & Mellor against any loss they might suffer by reason of the failure of A. Weed & Co. to pay the promissory notes in accordance with the understanding of the parties, or to secure the several parties and persons by whom the said notes were purchased, and designed that all the property described in and covered by the said bill of sale was to be and form a fund to secure the payment of such notes.
The South Branch Lumber Company filed its answer and cross-bill, denying that the bill of sale was given either to secure Hoxie & Mellor or the notes; setting up the contract of November 28, 1889; alleging that the bill of sale was not intended to interfere with the manufacture of the logs into lumber, and the sale thereof; setting up that the sale to the South Branch Lumber Company by A. Weed & Go. was made with the knowledge and consent of Hoxie & Mellor; that 840,725 of the 858,000 which it had paid under its contract had been applied by A. Weed & Co. to the payment of the notes made by Hoxie & Mellor for the accommodation of A. Weed & Co., and which were outstanding on the date of the making of the bill of sale or given to renew notes then outstanding; setting up that A. Weed & Co., and all the members thereof, were residents of Ashland, in the state of Wisconsin; that the larger part, if not all, of the logs which the parties intended to cover by the bill of sale were in the township of Ironwood, in the county of Gogebic, at the date of the execution and delivery of said bill of sale, to wit, the 15th of April, 1890; that the bill of sale was never filed in the township where the property was at the date of the execution and delivery thereof; and • that the logs out of which the lumber in controversy had been manufactured were not in Black river, near Bamsay, on the date of the execution and delivery of the bill of sale. By way of cross-bill, the South Branch Lumber Company claimed that, the parties being before the court, the rights of all parties should be determined in this cause, and asked to have the further prosecution of the attachment and replevin suits enjoined and the bonds discharged.
For' the purpose of showing that the bill of sale was in fact intended as a chattel mortgage, Mr. Mellor, of the firm of Hoxie & Mellor, was called as a witness, and testified that on April 15 there were outstanding notes made or indorsed by Hoxie & Mellor for A. Weed & Co. in the sum of $108,000; that up to that time no security had been given; that this was all accommodation paper, and made for the accommodation of A. Weed & Co. He testified that Paul Weed called upon him at that date, April 15, and wanted to renew this paper when it fell due. He was then asked:
“Q. What did you say to that?
“A. I said to him that if he wanted to renew any more of that paper we wanted security.
“Q. What security did you get?
“A. Security on logs at Bamsay.
“Q. State what occurred in regard to" the giving of the bill of sale, on or about the 15th of April, 1890.
“A. Paul Weed came down here to see me about renewing more of that paper, and I told him I was very sorry we had gone into that deal, and I did not want to renew any more without security. He asked me what security we wanted, and I told him we wanted a bill of sale of the logs there at Bamsay. He said, ‘All right, you can have it.’ I went out in the other room, and got a blank bill of sale, and filled it out, and he signed it, and signed the name of A. Weed & Co. * * * *
“Q. Did this bill of sale contemplate the security of all paper that was outstanding at the time it was given, and any renewals that might be issued of such original paper?
“A. That was what the bill of sale was given for. It was for the security of the notes that were outstanding ■at the time, and any renewals of those notes.
“Q. Did you have any conversation with Paul Weed on that point, — about the renewals or securing renewals., etc. ?
“A. I did have a conversation about that.
“Q. What did he say?
“A. He said that of course the’ bill of sale was given to secure any renewals that might be made.
“Q. Did you have any conversation with Paul Weed by which it was agreed between you that you were to renew any stated amounts of paper then outstanding?
“A. Yes, sir; we had.
“Q. State what that conversation was.
“A. He said he would probably want to renew most ■of the paper that was outstanding at that time.
“Q. Did you make any agreement with Paul Weed mot to file this bill of sale?
“A. No, sir.”
The witness further testified that he afterwards filed "the bill of sale in the town clerk’s office in the township of Bessemer, and that, at the time of filing, the logs covered by the bill of sale were in Black river, at Ramsay; that the head of the jam was at the mill at Ramsay, and that he understood the logs were in a solid .jam; that A. Weed & Co. were doing business at Ramsay, operating a saw-mill, manufacturing lumber, and were ■doing a logging business, and that their office was situate •at Ramsay, and that they were also doing business at Ashland, Wis.; that after the bill of sale was given they renewed other notes, and some new ones were given, but that they were for renewals, though given for different •amounts when they were renewed. The witness also testified to having received a letter from Paul Weed, dated May 24, 1890, in which Weed wrote him that he inclosed certain notes for renewal, and further stated:
“ Please sign or indorse, as the case may be, and send' them hack to me in inclosed envelope. We do not know yet whether we shall need to renew much in July or hot. We expect we sold our Kamsay stock to-day; shall know next week. If we did, it will run into money fast. We send one other note of $3,000, to renew note of same-amount due at bank of Antigo, July 21. I hope we shall not have to trouble you much more. Everything running well with us.
“Yours truly,
“Paul Weed.”
The witness further testified that he first learned of the sale made to the South Branch Lumber Company on July 3, which was by letter; that he never authorized the sale, and never had any talk with A. Weed & Go. about it. The witness stated that prior to this time he signed the bond in certain attachment proceedings for A. Weed & Co. to get the logs restored to those parties,, and that he expected them to proceed and manufacture the logs and sell the lumber; that they were to take care of the notes as fast as they could sell the lumber off; that, at the time he signed the bond to release the logs from the attachment, A. Weed & Co. had spoken of the-South Branch Lumber Company as a possible buyer; and that at that time he entered no protest against A. Weed & Co. making a sale to the South Branch Lumber Company.
The evidence shows that all the notes referred to were thus signed and indorsed by Hoxie & Mellor under the contract of November 28, 1889. Mr. Mellor, in making this contract, understood that the notes referred to therein were to be carried along by renewals of their indorsements until the fall of 1890, and that A. Weed & Co. by their contract agreed to take care of them by December 31, 1890, and that Hoxie & Mellor were to continue tbeir indorsements until that time. No other arrangements were ever made in regard to these notes. Mr. Mellor also understood that the original agreement provided that A. Weed & Co. were to saw the logs and .sell the lumber and take up the notes by that time.
It is evident from this testimony, and the interpretation which Mr. Mellor gavé the contract, and his understanding of the arrangement between himself and Paul Weed, acting for A. Weed & Co., that the bill of sale was given to secure the performance by A. Weed & Co. of the contract of November 28, 1889. By the terms of this contract, which was not changed, or understood between the parties to have been changed, in any respect, A. Weed & Co. were to manufacture the logs into lumber, sell the lumber, and out of the proceeds take up the notes before December 31, 1890, and the bill óf sale was given to secure Hoxie & Mellor for the faithful performance of this contract; and i|; is evident that it was the intention of the parties that, so long as A. Weed & Co. went forward and executed the contract, they would not be interferred with by Hoxie & Mellor, but that, should they fail to perform the contract according to these terms, then Hoxie & Mellor would have their remedy under the chattel mortgage to enforce performance. It is difficult to understand from the testimony of Mr. Mellor or of Mr. Paul Weed (which we have not set out here) how it can be claimed that Hoxie & Mellor had a right under this bill of sale — which, by the arrangement between the parties at the time of its execution, was intended and understood as a security — to interfere with A. Weed & Co. in driving these logs to the mill, manufacturing them into lumber, and selling and disposing of the lumber for the purpose of taking care of these notes or renewals, when it must be conceded that they were to have until December 31, 189*0, to ’pay and -take up such notes, and the renewals thereof by Hoxie & Mellor, who were to carry them along upon such renewals until that time. By the terms of the contract of November 28, 1889, A. Weed & Co. were to have until that time to pay and take up these notes. No change was made in that contract, and, by the testimony of Mr. Mellor himself, the chattel mortgage, into which the bill of sale was converted by parol agreement, was only intended to secure the performance of this contract. By the arrangement, then, between Hoxie & Mellor and A. Weed & Co., they were to have the right to manufacture and sell this lumber for the very purpose of meeting these notes. In this view of the case, A. Weed & Co. had the right to sell and convey on June 11, 1890, all of the lumber manufactured at their mill from these logs to the South Branch Lumber Company, and the claim of the South Branch Lumber Company would have priority over any claim which Hoxie & Mellor had under the bill of sale, or any claim which the complainants might have as the holders of these notes by way of subrogation. There is nothing upon the record to show that the South Branch Lumber Company had any notice or knowledge of the bill of sale held by Hoxie & Mellor. The only claim of notice to the South Branch Lumber Company is that the bill of sale was filed in the township of Bessemer, Gogebic county. It was executed on April 15 and filed May 10, 1890. A. Weed & Co. were non-residents of this State.
The question of the place of filing the mortgage does not become important in determining the rights of the South Branch Lumber Company. But in determining the rights of the defendant the First National Bank of Ashland, Wis., it does become important. About September 6, 1890, the firm of Hoxie & Mellor failed, and made an assignment for the benefit of creditors, Charles Y. Bardeen, one of the defendants herein, being assignee. About the same time A. Weed & Co. became insolvent. On September 15, 1890, A. Weed & ■ Co. assigned their contract with the South Branch Lumber Company to the First National Bank of Ashland, as security for notes to the amount of $56,130, held by said bank, including $41,130 of the said accommodation notes, the said bank to pay said indebtedness, and the surplus, if any, to A. Weed & Co., after paying expense of carrying out the contract. The First National Bank of Ashland held $41,130 of the said accommodation paper, $9,625 of which was discounted by said bank, May 3, 1890, and the remainder at sundry times from May 31 to August 13, 1890. On September 15, 1890, A. Weed & Co., also executed and delivered to the First National Bank of Ashland a chattel mortgage to secure said notes, amounting to $56,130, covering the logs and lumber in question, besides other property. At the same time other mortgages and securities were turned out to said bank, but not sufficient in value to cover the indebtedness.
The amount of the accommodation paper now outstanding and held by parties to this action is $86,232.50, some of which are renewal notes, the balance being notes discounted and the money used in whole or in part to pay up old notes. The First National Bank of Ashland paid out in the. sawing and taking care of the property and carrying out the contract with the South Branch Lumber Company, after it took possession under its assignment of contract and chattel mortgage, the sum of $11,804.11, and for taxes on the lumber $456.92.
The particular parts of the decree to which the First National Bank of Ashland excepts are those which find:
“That the lien of said bill of sale is prior to the lien of the said First National Bank of Ashland created by its said chattel mortgage, dated September 15, 1890. *
“That the said First National Bank of Ashland, the First National Bank of Bessemer, and the complainants, herein, excepting the First National Bank of Appleton, are entitled to share pro rata (provided, however, that the said First National Bank of Ashland shall first exhaust its other security obtained by it as security for the said notes and other demands) in the surplus that shall remain after satisfying the said sum so ascertained to be due to said bank as aforesaid, and for which it has a first lien; and that they shall so share to the amount and extent only of the notes, respectively, held by them, and secured by said bill of sale of April 15, 1890, namely, notes then outstanding, signed or indorsed by Hoxie & Mellor for the accommodation of said A, Weed & Co., and renewals of said notes.”
The court having found that the bill of sale from A. Weed & Co. to Hoxie & Mellor was never recorded in Ironwood township, where the logs therein intended to be described were situated, and that the contract of the South Branch Lumber Company is prior to the lien of said bill of sale, the First National Bank of Ashland contends that it was error in the court to hold that the lien of the bill of sale is prior to the lien of the First National Bank of Ashland.
It is urged on behalf of defendants that the bill of sale was void as to third parties, because the description did not cover the property intended to be conveyed, the bill of sale calling for logs “in the Black river, near Ramsay,” while a large portion of the logs in question were not in the river, but in roll-ways on the banks of the river, and six miles from Ramsay. It is also contended that the mortgage was void as to the First National Bank of Ashland, for the reason that it was not filed in the proper town clerk’s office. It is conceded that the mortgage was never filed in the town clerk’s office where the logs were situate at the time the bill of •sale was executed and delivered; that is, in the township of Ironwood. But counsel for complainants claim ■that the mortgage having been filed in the town clerk’s office of the town of Bessemer, and the logs having been floated into that township, and being in that town .at the time the mortgage was filed, such filing was proper.
Section 6193, How. Stat., provides:
“Except when the mortgagor is a non-resident of the State, when the mortgage, or a true copy thereof, shall be filed in the office of the township clerk of the township, or city clerk of the city, or city recorder of cities having no officer known as 'city clerk,’ where the property is.”
The same section requires chattel mortgages made by residents to be filed in the townships where the mortgagors reside. • Under this statute there is but one place for the filing of a chattel, mortgage when the mortgagor is a non-resident of the State, and that is the township or city where the property is, and the filing would not be constructive notice unless so filed. It is plain that it is the- intent of the statute that the filing should be in the township or city where the property is at the time of the execution and delivery of the mortgage, and not in some other township or city to which the property may be removed after such execution and ■delivery. It was the intent of the Legislature to fix a rule by which all mortgages should be filed, and by which all must be governed. This precise question has never, until the present occasion, been before this Court. In many of the states it is provided by statute that, in ■ case of non-resident mortgagors, the filing shall be in •the township of village “where the property may be at the time tbe mortgage is executed.” The statute of Massachusetts formerly provided that a chattel mortgage should, be recorded where the mortgagor resided “at the time of making the same.” By a revision of the statute, the words, “at the time of making the same,” were omitted. In Witham v. Butterfield, 6 Cush. 217, the court of Massachusetts, speaking of this omission in the revision, said:
“This latter clause has been stricken out in the revised statutes. Whether this was done for precision merely, or was intended to change the law in a material point, is left wholly in doubt, and has rendered thaiuncertain which was before certain.”
The point was not decided; but the court, even when the statute had been changed, was doubtful if it were not done simply for precision. Under our statute no-such doubt can arise. This statute has been carried upon the statute books for a great many years, and no one-has ever doubted that the time of the execution and delivery of the mortgage fixes and determines the place-where such mortgage must be filed.
We need not discuss the other questions raised by counsel, as this must be decisive of the rights of the complainants and the First National Bank of Ashland. The hank and its officers .had no actual knowledge of the execution of this bill of sale, which we have denominated the chattel mortgage, and the filing in the township of Bessemer cannot be construed as constructive notice.
The order and decree of the court below were substantially:
1. That the bill of sale was given to secure the payment of the notes, and all renewals thereof, but that it was not valid as against the South Branch Lumber Company, because not filed in Ironwood township, where the logs were at the date it was given, but not at the date it was filed.
2. That the contract between the South Branch Lumber Company and A. Weed & Go., of June 11, 1890, was an executory contract for the purchase of lumber, upon which the South Branch Lumber Company had advanced $58,000.
3. That the lien of the bill of sale is prior to the mortgage to the First National Bank of Ashland.
4. That the First National Bank of Ashland is entitled to be reimbursed to the amount of $11,000, for money expended in protecting and manufacturing the lumber, and a reference is ordered to ascertain whether it is entitled to more.
5. That the First National Bank of Ashland, the First National Bank of Bessemer, the Security Savings Bank of Ashland, and the complainants are entitled to share pro rata in the security, after the First National Bank of Ashland shall exhaust its other security, except that the First National Bank of Appleton is not entitled to participate.
6. That a receiver be appointed, that the lumber be sold, and that the contract with the South Branch Lumber Company be carried out, and that the receiver settle with the South Branch Lumber Company therefor.
7. That a reference be made to ascertain the damages to the South Branch Lumber Company on account of this injunction.
The South Branch Lumber Company is entitled to hold all that its contract called for with A. Weed & Go., and is in no manner affected -by the bill of sale of complainants, or any claim which the First National Bank may assert. The First National Bank of Ashland, after that, is entitled to have its claim allowed for moneys* advanced in carrying on the business of A. Weed & Co.; and its claim under its chattel mortgage is held prior to any claim which the complainants may assert under the bill of salé to Hoxie & Mellor. The appointment of a receiver is confirmed, and he shall settle with the parties from the proceeds of the sales in accordance with this opinion. The South Branch Lumber Company will recover its costs against complainants. The First National Bank of Ashland will also recover its costs against the complainants.
. The decree of the court below must be modified in accordance with this opinión.
Champlin, C. J., Morse and McG-rath, JJ., concurred. Grant, J., did not sit. | [
39,
25,
37,
38,
37,
40,
50,
-26,
32,
14,
-8,
5,
-42,
-1,
-23,
52,
3,
-30,
32,
48,
50,
-16,
-3,
-33,
-13,
-51,
-5,
-46,
-17,
9,
14,
-15,
-18,
8,
-55,
-13,
-50,
8,
6,
-22,
12,
17,
41,
0,
41,
35,
-4,
-29,
44,
29,
10,
-28,
-24,
-29,
-59,
-8,
-44,
-5,
-20,
74,
13,
-33,
-2,
-11,
23,
-25,
-32,
14,
54,
-13,
4,
21,
21,
13,
59,
5,
-53,
-9,
-51,
39,
-41,
-27,
23,
-65,
-6,
-19,
-38,
-9,
23,
52,
-55,
-30,
-12,
-17,
15,
9,
26,
99,
-40,
22,
27,
-2,
10,
2,
35,
-29,
5,
3,
-53,
-4,
-12,
-49,
19,
-13,
-7,
-4,
-34,
16,
-2,
6,
-9,
27,
11,
-10,
-44,
51,
-49,
-5,
-48,
-36,
22,
-26,
-41,
31,
0,
14,
43,
5,
-10,
-35,
-1,
12,
-29,
-6,
-14,
24,
-10,
-18,
-6,
-32,
-35,
23,
-12,
24,
-10,
-45,
32,
-16,
38,
-49,
25,
-1,
26,
-33,
-26,
-40,
2,
-23,
-2,
71,
23,
3,
-53,
-7,
9,
14,
72,
-28,
-30,
10,
40,
7,
-11,
39,
24,
-45,
7,
14,
-1,
-40,
57,
-13,
10,
-31,
-6,
-11,
-36,
-11,
-6,
28,
-27,
-71,
-43,
16,
22,
-14,
9,
0,
-11,
-8,
-21,
24,
-39,
-17,
12,
71,
-44,
-53,
38,
6,
65,
49,
36,
0,
-39,
-84,
50,
7,
62,
9,
-59,
-19,
-19,
-29,
-26,
-11,
-24,
-11,
23,
45,
-24,
-45,
-54,
-24,
-2,
-1,
-45,
21,
2,
-5,
-54,
15,
-27,
17,
36,
34,
-8,
-28,
-39,
-2,
12,
-15,
8,
-15,
34,
-18,
-4,
11,
6,
46,
6,
7,
10,
16,
-27,
-1,
-45,
-18,
-31,
-41,
24,
-48,
-17,
-8,
17,
3,
-20,
-12,
-47,
-34,
29,
-11,
-16,
-33,
-16,
96,
-52,
-2,
27,
39,
-33,
-22,
-46,
-43,
-27,
-42,
-10,
-40,
3,
4,
-31,
-33,
-13,
-44,
-16,
-20,
8,
47,
-25,
-26,
67,
17,
7,
38,
14,
-1,
59,
-9,
-43,
63,
0,
-115,
-1,
-48,
-19,
24,
21,
-22,
19,
-13,
-2,
52,
-16,
19,
-9,
29,
2,
-46,
11,
-5,
0,
-8,
-22,
27,
-20,
34,
-13,
5,
-15,
0,
20,
28,
29,
-12,
27,
-40,
-31,
-13,
53,
-7,
-44,
20,
0,
-9,
-9,
-6,
-83,
2,
-34,
-13,
72,
6,
49,
63,
32,
-10,
11,
-39,
25,
35,
-6,
39,
-27,
50,
-22,
-31,
-4,
-40,
-68,
0,
13,
18,
18,
-20,
-16,
-23,
-4,
5,
31,
24,
5,
-21,
-4,
1,
0,
19,
-32,
-17,
64,
33,
58,
25,
-38,
-8,
34,
-42,
16,
38,
11,
-16,
-47,
29,
24,
54,
35,
11,
-30,
-1,
0,
21,
29,
-11,
-12,
-22,
0,
-16,
-6,
-14,
51,
-11,
18,
-14,
-28,
-4,
16,
33,
17,
-8,
20,
4,
33,
-12,
-12,
16,
0,
29,
19,
-7,
2,
23,
-33,
-22,
23,
-26,
-30,
11,
27,
-52,
-20,
-24,
-5,
42,
29,
34,
-18,
-63,
0,
-20,
-20,
-16,
72,
-23,
-4,
17,
-6,
-18,
-17,
-54,
23,
44,
-5,
-44,
-3,
22,
14,
12,
6,
39,
30,
95,
1,
-81,
33,
16,
-40,
41,
-10,
6,
22,
-9,
40,
-19,
-23,
11,
-11,
-5,
52,
3,
-2,
10,
-20,
4,
-43,
-15,
15,
28,
-33,
19,
-4,
-27,
-25,
-7,
34,
2,
-13,
8,
16,
-58,
14,
-23,
-71,
-44,
25,
39,
-17,
105,
-6,
-23,
-3,
35,
-8,
-45,
18,
-52,
9,
-37,
19,
7,
-12,
44,
-25,
-17,
0,
43,
8,
-8,
-61,
-9,
31,
21,
-48,
-62,
20,
-63,
17,
-18,
-12,
15,
-36,
19,
17,
24,
-53,
12,
-20,
22,
16,
39,
0,
53,
-55,
4,
-18,
-22,
-11,
15,
-4,
22,
30,
35,
-14,
0,
35,
27,
-1,
11,
6,
-30,
10,
5,
40,
-5,
2,
-6,
-29,
24,
-17,
63,
9,
59,
-71,
-11,
-10,
10,
-32,
37,
5,
54,
-28,
-54,
-15,
-50,
-31,
-37,
-10,
64,
-2,
16,
29,
18,
-3,
-11,
64,
21,
-19,
24,
23,
20,
2,
-31,
45,
-60,
7,
62,
-68,
-34,
25,
-17,
12,
41,
30,
-38,
20,
-11,
26,
-26,
-29,
48,
46,
-11,
-6,
-10,
56,
9,
23,
-13,
-10,
24,
-28,
23,
13,
-17,
-29,
2,
-6,
17,
-31,
0,
70,
-30,
35,
51,
29,
22,
2,
22,
-51,
-19,
-37,
1,
64,
-24,
37,
-2,
-6,
28,
6,
-12,
-8,
-112,
-10,
-28,
10,
5,
-5,
8,
41,
-30,
-6,
0,
11,
23,
-31,
-21,
-15,
11,
-23,
60,
9,
-15,
-26,
-40,
-52,
41,
8,
10,
-47,
27,
21,
-33,
19,
30,
10,
8,
-7,
-22,
-39,
-16,
-30,
-52,
23,
21,
9,
12,
27,
24,
-11,
-17,
0,
-50,
9,
69,
-58,
-23,
40,
-55,
-40,
1,
55,
25,
43,
-36,
-9,
-41,
6,
-44,
20,
-14,
47,
-51,
-22,
-34,
39,
8,
-109,
-11,
-19,
41,
36,
-25,
-45,
6,
-28,
23,
-3,
36,
-21,
25,
-15,
17,
-12,
8,
0,
-49,
-16,
54,
-51,
-13,
18,
28,
-48,
50,
-19,
-30,
31,
0,
-40,
-14,
-33,
-19,
36,
-16,
17,
-68,
60,
-34,
12,
-36,
29,
-18,
-6,
10,
-17,
1,
19,
5,
7,
33,
-2,
-64,
-19,
-22,
-12,
1,
-65,
-37,
20,
19,
27,
16,
23,
-10,
-9,
8,
-1,
-49,
1,
18,
-35,
-5,
-26,
-45,
14,
11,
-9,
2,
2,
4,
-3,
8,
14,
29,
29,
0,
8,
41,
16,
-44,
53,
10,
-64,
25,
-23,
10,
24,
-12,
-12,
-52,
-14,
-9,
-73,
-1,
-12,
45,
-5,
-33,
12,
14,
31,
15,
30,
-11,
16,
-3,
-64,
61,
-17,
68,
-41,
-6,
47,
-28,
7,
73,
2,
4,
41,
36,
8,
30,
-27,
5,
27,
38,
-42,
-44,
-4,
-13,
63,
-25,
25,
15,
71,
-29,
30,
-44,
34,
-24,
16,
-10,
-13,
15,
17,
69,
-22,
-9,
-34,
25,
-4,
-6,
-45,
-47,
40,
-10,
-18,
36,
10,
53,
19,
-11,
-28,
-13,
-2,
-11,
-46,
35,
20,
6,
14,
-2,
17,
3,
-1,
61,
20,
17,
-25,
33,
31,
0,
-7,
20,
63,
1,
4,
-24,
-65,
7,
-12,
0,
32,
-15,
7,
1,
42,
-24,
6,
50,
4,
-33,
-61,
-24,
5,
27,
-25,
36,
13,
5,
32,
-32,
30,
-21,
-19,
36
] |
Grant, J.
Kespondent was convicted of breaking and entering the store of one Joseph Wolf, not adjoining to or occupied with a dwelling-house. The information was filed under How. Stat. § 9134. The form of the information was the same as in People v. Nolan, 22 Mich. 229.
Wolf’s store fronted on Michigan avenue, in the city of Detroit. It was a one story structure, divided near the back end by a permanent partition. In the partition was a door leading into the rear part of the building, fastened on the store side by a bolt, and on the opposite side by a lock and key. The rear part was occupied as a dwelling-house by two women. This fear part was divided into a bedroom and general living room. In the partition, and leading into the bedroom, was a hole about three feet square, but which was covered by boards fastened over-the hole, to the partition, by screws, and papered over. Wolf rented the whole building, and subrented the rear part to these women. They, on the night of the commission of the burglary, were absent from their apartments. The respondent and others effected an entrance into the part occupied by these women, tore off the boards and paper over the hole, entered the store, turned the bolt, and tore off the lock.
I find nothing in the record to distinguish this case from that o'f People v. Nolan, supra, except the testimony tending to show that two or three times the women had permitted Mr. Wolf to pass through their apartments to get some coal he kept in the rear; and also that he had permitted the women, when the weather, was wet, and during business hours, to pass through his store into their apartments, thus saving them a trip through the muddy alley in the rear, which was their customary way of ingress and egress. None of these privileges were granted in the lease given by Wolf to these women. Wolf did not sleep nor take his meals in the place, but boarded and lived in another part of the city. Respondent gave evidence tending to show more frequent passing from the store into this dwelling in the rear than the witnesses on behalf of the people had admitted.
The court left it to the jury to determine whether this store was adjoining to or occupied with a dwelling or not. It was urged in the court below, and is now urged here, that this was a question of law for the court, and not a question of fact for the jury, and that the court should have directed a verdict for the respondent. Were it a question of law, I think the court should have decided in favor of the people upon the authority of People v. Nolan, supra. In that ease, could it have made any difference that the door leading from the hallway to Murray's store had been used by consent of the parties a few times as a passage-way? I think not. The use, in such a case, of a passage-way, might become so frequent as to make the store one adjoining to or occupied as a dwelling. Under such circumstances, it becomes a question of fact, and not of law.
I find no error upon the record, and the conviction is affirmed.
The other Justices concurred. | [
-11,
39,
10,
-42,
-68,
-32,
-36,
51,
-64,
20,
-11,
-13,
23,
-1,
61,
-11,
22,
56,
-42,
-17,
24,
0,
-31,
2,
-33,
-31,
23,
-32,
-48,
45,
49,
-1,
38,
14,
11,
17,
35,
-2,
19,
-21,
31,
5,
-8,
0,
20,
-11,
7,
8,
55,
-28,
13,
0,
10,
7,
5,
-37,
-5,
28,
45,
41,
22,
-6,
6,
-5,
-1,
-27,
35,
7,
-22,
-18,
52,
-31,
-78,
-18,
-19,
8,
20,
35,
-6,
5,
27,
-44,
39,
17,
-37,
-13,
-27,
0,
-57,
3,
19,
-2,
7,
23,
52,
-17,
36,
-35,
-34,
-50,
-46,
19,
-38,
36,
28,
7,
-26,
18,
6,
-21,
-39,
-19,
30,
18,
-5,
-11,
26,
25,
33,
-18,
67,
-25,
-14,
15,
-59,
-14,
-44,
-32,
17,
-23,
2,
46,
-3,
30,
-26,
25,
-10,
32,
-11,
23,
17,
38,
-8,
23,
-35,
-12,
-35,
33,
-4,
-17,
-13,
28,
18,
1,
6,
39,
-29,
7,
-27,
2,
7,
-17,
-43,
-31,
-24,
-19,
-51,
6,
-25,
-24,
-7,
4,
-4,
-15,
41,
6,
-50,
1,
-10,
-32,
-12,
-24,
1,
-25,
27,
-25,
53,
-51,
-3,
-17,
13,
23,
-55,
-12,
-13,
68,
-46,
37,
33,
-44,
5,
-19,
-25,
-3,
58,
-34,
-21,
16,
0,
-38,
-17,
21,
-17,
-33,
62,
-5,
-10,
-18,
-27,
-48,
-17,
-34,
-36,
20,
-20,
-43,
19,
55,
29,
-14,
3,
-21,
29,
18,
-6,
-1,
-18,
-37,
38,
-12,
-2,
-20,
-22,
21,
0,
-2,
-44,
-13,
11,
-1,
26,
-1,
-45,
13,
-34,
2,
12,
-47,
28,
66,
2,
32,
6,
10,
33,
34,
32,
4,
-56,
10,
-28,
11,
14,
10,
3,
8,
-10,
25,
-3,
-42,
0,
-6,
-8,
-18,
28,
23,
-1,
1,
-17,
-6,
12,
2,
-63,
1,
36,
-9,
2,
-14,
-43,
7,
19,
30,
-27,
-42,
-25,
-19,
7,
32,
-13,
-7,
-25,
40,
-1,
23,
53,
-4,
40,
41,
33,
32,
3,
-24,
0,
0,
64,
-10,
-30,
-38,
-50,
-12,
-17,
25,
4,
30,
-35,
13,
17,
-33,
56,
-14,
-23,
-2,
18,
-31,
-27,
-27,
-6,
-12,
-24,
-51,
60,
-27,
-21,
12,
-17,
41,
-23,
32,
3,
10,
34,
14,
-44,
29,
-3,
-63,
-47,
-38,
22,
-25,
39,
-26,
38,
32,
20,
-31,
40,
-76,
-31,
47,
24,
-16,
4,
-24,
14,
40,
3,
-35,
34,
22,
-72,
13,
47,
-18,
48,
-56,
33,
-11,
-12,
-77,
-27,
1,
41,
11,
-67,
-7,
-5,
42,
47,
29,
-7,
18,
-17,
-14,
-54,
-22,
5,
-32,
7,
5,
-22,
25,
54,
13,
13,
-32,
5,
13,
-3,
0,
-16,
-24,
-21,
-7,
-2,
11,
-72,
11,
-49,
-51,
-14,
8,
-66,
44,
26,
34,
-35,
11,
39,
-19,
-17,
46,
-28,
-12,
28,
45,
31,
1,
39,
17,
40,
-7,
-23,
22,
0,
28,
-22,
-80,
-42,
7,
-30,
-3,
17,
-6,
20,
-19,
17,
30,
7,
4,
6,
-39,
84,
48,
-33,
0,
-21,
-68,
-37,
65,
28,
15,
48,
-13,
24,
17,
10,
14,
35,
40,
-14,
0,
-2,
-13,
14,
34,
-3,
-14,
24,
0,
-2,
33,
-26,
14,
-13,
15,
19,
-7,
31,
-5,
-7,
-6,
36,
26,
14,
74,
36,
-36,
-29,
22,
22,
13,
18,
15,
18,
-30,
42,
-2,
21,
4,
46,
-14,
50,
21,
12,
13,
23,
-15,
-23,
16,
-34,
5,
-57,
-32,
0,
-2,
-31,
12,
18,
33,
-80,
-38,
21,
-20,
0,
5,
-27,
5,
16,
-3,
-38,
61,
-49,
0,
-20,
14,
4,
-49,
-21,
49,
8,
17,
42,
-17,
21,
42,
-13,
6,
-28,
29,
21,
-38,
-11,
0,
21,
-5,
-45,
68,
37,
40,
65,
-30,
-20,
-23,
-3,
-63,
-14,
22,
-12,
20,
58,
-18,
13,
-35,
-2,
33,
5,
-47,
3,
25,
70,
3,
-57,
-11,
-23,
-36,
23,
-48,
-10,
-12,
-78,
19,
17,
20,
47,
6,
105,
0,
-6,
-15,
-8,
20,
10,
11,
35,
67,
-6,
-12,
0,
-27,
-49,
1,
43,
-6,
94,
-21,
-32,
15,
42,
-39,
0,
24,
-30,
29,
49,
-37,
-32,
-67,
27,
-36,
-12,
-1,
16,
15,
-32,
-35,
-10,
-31,
5,
-29,
10,
21,
19,
10,
68,
-15,
29,
-16,
-19,
-64,
35,
26,
1,
-51,
38,
12,
16,
-37,
-18,
-24,
-17,
-45,
-1,
40,
28,
-21,
17,
-19,
-7,
5,
22,
-12,
21,
32,
5,
-8,
-26,
-38,
-5,
35,
-37,
-26,
-16,
-6,
23,
-53,
7,
-32,
30,
35,
-28,
-50,
-2,
-7,
-9,
25,
-77,
29,
38,
3,
-20,
16,
-39,
-36,
-19,
-78,
32,
-33,
30,
15,
36,
44,
30,
33,
5,
5,
18,
-15,
-83,
-14,
-4,
-21,
-13,
-24,
-3,
-11,
-13,
-2,
60,
-28,
-18,
-48,
-42,
-4,
-57,
19,
27,
-31,
27,
-30,
-15,
-26,
-42,
-30,
21,
15,
18,
-39,
60,
-25,
6,
-35,
-35,
-36,
-29,
19,
36,
-8,
0,
32,
29,
19,
7,
-24,
9,
0,
-35,
4,
22,
-3,
-1,
-44,
-33,
-51,
27,
-5,
21,
-12,
-1,
-5,
7,
6,
-5,
-61,
-32,
0,
-14,
-42,
21,
-13,
9,
43,
-4,
3,
38,
-11,
-15,
57,
-36,
-23,
0,
2,
59,
38,
18,
-50,
15,
-4,
-22,
11,
-30,
-17,
14,
-35,
-21,
20,
21,
39,
46,
1,
34,
8,
-23,
-43,
5,
-21,
-14,
-28,
19,
22,
7,
14,
-5,
39,
4,
39,
-21,
6,
14,
-13,
-13,
-17,
43,
11,
36,
2,
13,
-23,
-18,
18,
10,
31,
-27,
43,
-18,
-31,
-6,
-54,
-25,
-49,
0,
-38,
-43,
56,
8,
8,
42,
10,
12,
-43,
-22,
-25,
-11,
0,
10,
-8,
-61,
-1,
28,
2,
-54,
12,
38,
27,
-9,
19,
-34,
11,
-23,
78,
6,
0,
-25,
-20,
9,
-31,
63,
-39,
43,
-52,
-4,
-11,
-53,
-14,
-34,
37,
55,
-51,
-11,
-39,
33,
61,
-1,
30,
5,
17,
-11,
-81,
-56,
29,
22,
60,
49,
-1,
25,
34,
53,
-30,
17,
-3,
3,
-22,
33,
34,
31,
-9,
-67,
45,
43,
-33,
7,
-44,
-21,
33,
6,
-13,
56,
22,
-67,
0,
-23,
-17,
-37,
24,
7,
3,
-3,
16,
-18,
-18,
-33,
-1,
17,
-9,
4,
10,
-10,
8,
14,
-10,
-31,
-51,
30,
13,
7,
-6,
-18,
40,
-17,
8,
37,
-29,
-29,
55
] |
McGrath, J.
Suit is brought to recover the premium upon a policy of insurance, issued and delivered to-defendant.'
The policy was for three years, was dated February 14, 1890, was sent by mail to defendant, and received by him February 18. The policy contained the following clause:
“This policy may also be canceled, at the request of' the assured, in case' of the sale, lease, transfer, or destruction of the boilers insured, or the buildings containing the same, or if the boiler or boilers shall cease to be used for a period of more than three months, provided the premium has been paid, in which case the company, after deducting the charges, for inspection and the customary short rates for the time the policy has; been in force, will return to the assured the remaining portion of the premium. But if this policy is delivered to or presented for cancellation through, by, or in the interest of any other boiler insurance company, no return premium will be paid.”
The paragraph of the policy that contains the cancellation clause is in fine print
The application was solicited by plaintiff’s agent, was made out in the presence of and delivered to the agent,, and is as follows:
“Application for Insurance to the Hartford Steam Boiler Inspection & Insurance Company, of Hartford,. Conn.
“Insurance is desired against loss or damage by ■explosion of steam-boilers on the property situated in Ludington, Mich., owned by A. E. Cartier, as a saw and .shingle mill, and against loss of life and injury to persons, to the amount of $20,000.
“Antoine E. Cartier,
“Ludington, Mich.”
The following appears on the back of the application:
“ N. B. To Agents: Indicate form of policy desired by its designating letter in the space provided below.
“ Policy form: Special.”
On the 4th day of March, 1890, defendant wrote to plaintiff, requesting it to cancel the policy, and plaintiff refused to comply. No reason was assigned for the request. The policy was sent to the company, but the ■ company refused to treat it as surrendered. It appeared .that this policy had been substituted for a policy which defendant held in another company, which is designated .•as the “American.” Plaintiff’s agent, one Brace, took the American policy, and allowed defendant $66.66 as its •surrender value, and defendant agreed to pay the balance of the premium on the new policy of $133.33 on May 1 following.
Defendant’s version of the transaction is as follows:
*‘Q. Could you state how many policies you have ¡taken out in this company?
“A. Three.
“Q. Now you may state what became of those policies.
“A. The first policy that I took out with Mr. Brace .here, the Hartford Insurance Company, he induced me to surrender the policy I had with the American company, which I did, because he gave me a better rate than I was getting with the American. Well, it wasn’t but a little while after the Hartford got this policy from me, the agent of the American come around, and offered me a better rate I had got from them. So I canceled with the Hartford, and got the American.
“Q. How did you cancel; by letter, or in what way?
“A. The American Company, Mr. Brace took the policy, and he wrote something on the face of it, stating that this policy was canceled, and the Hartford will take my risk, — something to that effect, — and then gave me credit. It was credited to pay on this policy, and it was. changed back and forth two or three different times.
“Q. Was that the course of business in each case?
“A. Yes, sir; it was with me. And this last policy that Mr. Brace got there he gpt me to take out, he says:. T will insure you for the same amount you carry on the five boilers, and will give you the same rate on eight boilers.’ I says: ‘If you get this policy out for me the American agent will come back and give me a better rate to cancel.’ He says: ‘They will not bother you, because we have got the best price; and, they will never see you again.’ I says: ‘If that is the case, I will take out a policy.’' I took out a policy, and let him have the other policy, and it wasn’t but a little while when the American agent came, and I insured with them, and wrote the company to cancel this policy, and they refused to do it on some ground they had in this policy, that I didn’t know anything about, which they never had before.
“Q. Had you read this policy?
“A. No, I never had. I merely read the face of it. Never read the by-laws.
“Q. Was there anything else said in regard to the policy, — any particular thing called to your attention in regard to the policy?
“A. At that time?
“Q. Yes, sir.
“A. Well, there was nothing more said then. There was previous to that, — that he would give me as good a policy, and in fact a better one, than I had before.
“Q. He said he would give you as good and in fact better than what you had before?
“A. Yes, sir; even what I had with the Hartford previous to that.
“Q. Better than the policies you had had with the-Hartford?
“A. Yes, sir.
“Q. Did he show you his form of policy with the fine print?
“A. No, sir; he didn’t. I don’t believe he had a form of the policy there. He had some form that was to paste on the face of the policy. I don’t remember seeing the-policy, — that is, the form of it.
CROSS-EXAMINATION.
“Q. Did you ask Mr. Brace for the form of policy ■with the fine print in?
“A. I did not. I supposed the policy was the same .as the old one all the time.
“Q. Mr. Brace showed you this form of policy, this .special form?
“A. He showed me that form.
“Q. He said this was even better than the old ones you had had before?
“A. He said the policy itself would be better than that what the policy I had from the company bel ore was.
“Q. This was what he had and was showing you at that time?
“A. That is certainly what he did.
“Q. This policy was in your safe, that was received from the Hartford Company, was it not?
“A. Yes, sir; I received it. I don’t know whether I ■can place the date. I know I received it after Mr. Brace was there.
“Q. Along about the 18th, wasn’t it, Warren said?
“A. I couldn’t say about the time; somewheres about the forepart of the month.
“Q. You had access to that safe?
“A. Yes, sir.
“Q. Could get at it whenever you liked?
“A. Yes, sir.
“Q. You had some talk with the agent of the American ■Company about insuring your property when he was there in March?
“A. Yes, sir.
“Q. And determined to take a risk with the American ?
“A. I had not come to any conclusion to take any risk with him, but he gave me a better figure, and I told him I would cancel the Hartford policy, and when he came back I would probably take out a policy with him.
“Q. That was your reason for ever canceling the policy?
“A. Yes, sir; that was my intention, — in dollars and cents. * • * * There was nothing said about the cancellation clause any more than I said to Mr. Brace: 'If you take up this policy to-day, the American agent will be here by and by and take up yours.’ He says: •'We have got down where they can’t get down any more.’ 'This is the reason he gave me for it.
“The Court: What did he say about making the policy better?
“A. He said it was better. He didn't say there was a clause there to prevent me from canceling it. If he had, I wouldn't have changed my policy.
“The Court: Didn't say anything about that canceling clause?
“A. No, sir.
“The Court: When did you first discover there was a ■difference?
“A. I never discovered it until this suit was brought on. I wrote to the company to cancel my policy. At first they said they would cancel it. I wrote to them again, and they said they would cancel my policy by paying $133. I wrote back to them, and said I wouldn't pay them anything, because I had overpaid them for what time they had had my risk. Finally they ■offered to cancel it if I paid them $50.
“The Court: How many policies had you had with this company before this?
“A. I think this was the third policy.
“The Court: Did you cancel those policies?
“A. Yes, sir; that is, through the agent of the American Company. They canceled them, wrote something about canceling the policy on the face of the policy, and I signed my name to it, and the agent took it and sent it to the company, — to the Hartford, — and they canceled the policy, and gave me credit on the policy they had given me, as a premium that is paid in .advance; and the Hartford has done the same thing three times.
“Q. You say you never read the fine print over in this policy?
“A. No, sir.
“Q. Did you ever read the fine print in any of your policies?
“A. Well, I have in some insurance companies, where we insure on property not on steam-boilers.''
The agent Brace was called for plaintiff, and admitted ■the former dealings; that 'the other policies were cancel-.able; that he did not inform defendant of this change in the policy; and when defendant said to him, “‘ Suppose the other company come along and want to cancel it,’ I says, CI don’t think they will. This is as Tow as it can be written, and save themselves.’” This was a suppression of the truth. This agent had with him, and exhibited to defendant, a special type-written clause which the old policy did not contain, and which was to be pasted as a rider upon the new policy. This clause contained no reference to the cancellation clause. The clause which is relied upon by the company was in fine print, and was new matter. When defendant suggested the probability that the agent of the American would offer a better rate to cancel, the agent did not say to-him that the new policy could not be surrendered and its surrender value recovered, but misled him, by giving' as a reason that the rates were so low that they could, not he cut.
Conditions and restrictions in insurance policies, to be-binding upon the insured, must be inserted without fraud, misrepresentation, or concealment. In order to charge the insured with the duty of an examination of' his policy with reference to new matter introduced into it, he must be left free to discharge that.duty unaffected by the company’s representations, and not be led to neglect it by the conduct of the company itself. The company cannot be allowed to evade his questions, mislead him, suppress the truth, and lull him to sleep regarding new restrictions which it has injected into the-policy, and thereafter charge him with constructive-knowledge of those restrictions. The company obtained this very policy by- inducing defendant to cancel a policy in the American; and, presumably to prevent the American from doing just what plaintiff was then doing, it introduces into the new policy a clause taking away a privilege which defendant had exercised under the old policies. Not only was defendant’s attention not called to this change, but, when asked with reference to an exercise of the right of cancellation, plaintiff’s agent neglects a plain duty, conceals the fact of change, and misleads and deceives the defendant. The question here is not as to the effect of a naked acceptance of a policy without examination, but as to whether, in the absence of actual notice, a party can be bound by a new restriction in a policy concerning the existence of which he, has been lulled to sleep, and actually misled and deceived. In Gristock v. Insurance Co., 87 Mich. 430, Justice Grant, speaking for this Court, said:
“Plaintiff had a right to rely upon the assumption that his policy would oe in accordance with the terms of his oral application. If the defendant desired to make it anything different it should, in order to make it binding’ upon plaintiff, under the authorities in this State, have called his attention to those clauses which differed from the oral application.”
The same principle is applicable to the present case. There was no occasion for a stipulation in the written application that the new policy should contain this privilege. This application contained no reference to the subject. The form of the policy was determined by the-agent by endorsement upon the back of the application. The agent’s knowledge was the company’s knowledge. The agent knew from the conversation had that defendant expected to get a policy similar in this respect to the policies which the company had already issued to him. Not only this, but the agent actually misled defendant when the subject of cancellat on was referred to. The policy in this case contained no restrictions upon the authority or powers of the agent. The defendant set up fraud, misrepresentation, and concealment, and the testimony objected to was admissible under that plea. The court very properly left the questions raised by this plea to the jury. The jury found for the defendant, and the judgment is affirmed.
Morse, Long, and Grant, JJ., concurred. Champlin, <C. J., did not sit. | [
-45,
-44,
12,
11,
16,
46,
33,
-26,
19,
-31,
58,
32,
17,
22,
-47,
15,
-11,
-32,
-1,
-1,
-15,
-21,
-8,
-43,
-28,
-34,
-3,
-60,
3,
23,
-35,
35,
-48,
-8,
-56,
-10,
-39,
-3,
-49,
0,
0,
-9,
32,
8,
18,
-30,
-59,
-14,
16,
6,
61,
3,
-15,
-23,
-24,
23,
-14,
36,
-32,
5,
-63,
-39,
50,
33,
12,
36,
-11,
43,
15,
47,
34,
-20,
16,
26,
11,
-1,
-14,
0,
-91,
-19,
1,
-34,
20,
-43,
22,
21,
15,
-15,
14,
37,
-49,
-29,
9,
-42,
-4,
19,
-33,
40,
11,
74,
33,
18,
-44,
-3,
-13,
25,
47,
-34,
-95,
29,
-13,
-12,
17,
-33,
15,
19,
-18,
-36,
33,
-21,
-19,
7,
-1,
4,
15,
13,
-27,
-21,
-11,
21,
-18,
42,
4,
39,
13,
-20,
55,
-19,
7,
-28,
9,
-21,
-25,
-7,
-43,
8,
27,
-41,
-65,
21,
-17,
-1,
-22,
-10,
-2,
24,
10,
-28,
38,
-31,
-7,
-13,
18,
33,
-46,
-11,
-24,
-22,
14,
24,
35,
-28,
32,
-3,
46,
27,
30,
-37,
-24,
36,
27,
-2,
10,
-6,
43,
-65,
18,
20,
-14,
31,
66,
-65,
-42,
32,
-48,
22,
16,
38,
20,
1,
5,
-31,
-24,
-27,
37,
-5,
23,
6,
-1,
13,
-36,
24,
-75,
-38,
1,
38,
-18,
-51,
-7,
-23,
-22,
5,
-2,
21,
-14,
-22,
-60,
32,
19,
5,
-36,
3,
36,
39,
-21,
-2,
15,
32,
54,
40,
14,
56,
22,
-15,
20,
-31,
-1,
6,
-26,
56,
27,
-29,
1,
25,
12,
-28,
-9,
2,
2,
-5,
-39,
1,
-38,
-20,
31,
-13,
22,
-6,
31,
12,
-1,
14,
29,
2,
-25,
-57,
-31,
3,
-8,
-50,
20,
7,
-29,
11,
-15,
-29,
15,
-44,
-21,
-38,
5,
-4,
50,
-35,
48,
-14,
25,
16,
-18,
-22,
19,
23,
2,
-11,
34,
15,
-19,
7,
25,
-30,
-60,
0,
-46,
2,
18,
-53,
-10,
-32,
-22,
-2,
-32,
4,
-44,
-5,
-19,
-57,
18,
-6,
-19,
-4,
-43,
-22,
20,
36,
14,
-30,
11,
-5,
36,
0,
5,
39,
-10,
-11,
-50,
60,
11,
-36,
23,
-4,
-13,
-7,
-23,
-9,
-18,
55,
27,
20,
-22,
53,
69,
57,
10,
9,
63,
-6,
-3,
4,
-10,
47,
4,
-16,
-15,
-39,
3,
-46,
-43,
51,
-59,
32,
47,
-65,
-33,
10,
41,
12,
5,
5,
-63,
-10,
-34,
-16,
43,
55,
-40,
1,
-43,
-32,
-25,
16,
29,
32,
-8,
-31,
-19,
21,
7,
-6,
-31,
8,
-25,
-11,
17,
-31,
38,
2,
37,
-9,
28,
-8,
3,
6,
-8,
47,
-8,
-6,
59,
-5,
-16,
3,
15,
5,
7,
-20,
-26,
19,
-18,
-20,
-8,
32,
-55,
20,
-39,
2,
-10,
6,
-29,
1,
15,
-30,
4,
9,
42,
16,
-20,
15,
-39,
-21,
42,
-11,
7,
-19,
4,
7,
-17,
0,
27,
8,
64,
-21,
20,
5,
-4,
-24,
-23,
2,
3,
-19,
-70,
62,
-38,
33,
2,
13,
-22,
-38,
-1,
-1,
18,
46,
14,
-11,
-21,
-27,
7,
26,
-20,
0,
1,
-28,
-15,
-51,
45,
-28,
48,
0,
-11,
-20,
41,
2,
-19,
-14,
22,
-63,
57,
10,
-41,
-11,
5,
26,
-48,
-18,
-69,
-30,
8,
-28,
-14,
-6,
22,
-30,
24,
-28,
2,
-50,
-23,
26,
-3,
19,
12,
10,
-30,
42,
31,
46,
-50,
-29,
-54,
34,
4,
-25,
-28,
-28,
41,
42,
-10,
4,
-6,
1,
25,
37,
-17,
10,
23,
0,
-29,
-1,
48,
32,
-3,
-33,
-39,
-24,
-4,
24,
-28,
50,
-9,
14,
-4,
23,
-20,
-1,
-22,
-56,
8,
11,
-43,
-6,
-13,
-1,
-33,
41,
10,
-11,
4,
5,
-8,
-49,
-5,
4,
-25,
15,
-40,
-12,
-17,
4,
-35,
37,
-10,
56,
24,
38,
-8,
-6,
40,
15,
37,
-16,
15,
-43,
-5,
7,
29,
19,
-36,
18,
2,
2,
-16,
68,
16,
0,
-1,
13,
-10,
-30,
12,
99,
-42,
-24,
-22,
-22,
-3,
-36,
-54,
43,
31,
-32,
2,
-62,
-22,
6,
32,
15,
-4,
-25,
-10,
29,
-13,
-7,
-29,
-30,
54,
18,
-7,
24,
49,
-14,
-22,
-8,
23,
-11,
19,
19,
12,
29,
-12,
56,
-18,
46,
-4,
-3,
10,
23,
10,
18,
-27,
29,
18,
-40,
-30,
-7,
-42,
-56,
31,
10,
27,
18,
55,
-21,
-5,
6,
15,
-11,
-9,
-18,
-23,
-42,
65,
48,
44,
5,
55,
-17,
4,
2,
13,
16,
-38,
-46,
35,
-72,
79,
-25,
-30,
23,
2,
21,
-24,
-1,
2,
-24,
-6,
-16,
-45,
-23,
42,
-51,
45,
17,
1,
-22,
39,
60,
-15,
23,
-11,
10,
35,
-9,
8,
-18,
-29,
-29,
54,
-9,
-18,
9,
-35,
-2,
12,
13,
48,
-11,
-5,
47,
41,
-23,
12,
-52,
20,
38,
0,
-34,
35,
11,
40,
-4,
-16,
-40,
10,
27,
54,
9,
-35,
-19,
14,
-49,
11,
-29,
-16,
15,
-6,
-16,
-50,
-10,
21,
-16,
3,
-26,
7,
-2,
-18,
2,
-40,
-7,
23,
-26,
-33,
-76,
-36,
-30,
-23,
-4,
-17,
26,
-59,
3,
-21,
45,
-43,
74,
-25,
50,
-30,
-43,
-5,
-36,
33,
-10,
-22,
-22,
29,
-24,
-32,
13,
-14,
-33,
-29,
10,
5,
-42,
-4,
49,
30,
-7,
-33,
0,
-22,
2,
-60,
-47,
1,
22,
15,
16,
-1,
-37,
51,
-13,
-28,
8,
-27,
5,
53,
-10,
-6,
26,
-38,
-22,
-15,
37,
-5,
-27,
-4,
41,
-7,
-16,
64,
-56,
-37,
-34,
0,
22,
-56,
-13,
-26,
-22,
-25,
51,
51,
-19,
36,
33,
29,
10,
-22,
24,
36,
33,
-1,
-37,
59,
14,
22,
27,
6,
-13,
-10,
41,
46,
-8,
-12,
-17,
34,
41,
39,
-10,
-19,
32,
3,
-33,
41,
-25,
-1,
33,
31,
9,
25,
36,
37,
-1,
-11,
74,
31,
-63,
-10,
-42,
-24,
82,
-30,
-15,
15,
-13,
-36,
-6,
60,
-7,
46,
17,
33,
5,
28,
57,
-42,
2,
10,
33,
-16,
-37,
1,
4,
-21,
-47,
0,
16,
37,
17,
-44,
-77,
22,
0,
4,
-59,
-72,
-40,
56,
-8,
-21,
-12,
8,
-12,
-22,
16,
-52,
36,
-47,
-33,
29,
3,
2,
11,
14,
0,
61,
-45,
-14,
51,
6,
-3,
-10,
19,
48,
15,
8,
31,
-7,
31,
36,
-22,
8,
34,
15,
13,
5,
-4,
-58,
-13,
14,
-67,
86,
23,
33,
-1
] |
Grant, J.
This is an action of trover- to recover the value of a horse.
In November, 1888, defendants purchased two horses, harness, buggy, robes, and whip of one Seaman. Seaman had hired one of the horses, harness, and the other property from plaintiff, at Traverse City, to drive to Frankfort. He drove them to Grand Eapids, and sold them to defendants. Defendants had known Seaman, and had no occasion to doubt his statement that he owned the property. No question is raised of the' good faith of the defendants. In the following March plaintiff traced his property into the possession of the defendants. They had sold the horse, but still had the other property.
The defendants pleaded the general issue, and gave notice of a settlement. The only question arises upon this settlement. The settlement was denied by the plaintiff, but, to present the question properly the testimony of the defendants alone is material. Plaintiff, who was a stranger to defendants, went to their stable, and, finding Frank E. Hodges there, informed him of the loss -of his property, and asked if they had bought such property of Mr. Seaman. Mr. Hodges informed him that they had bought two horses, harness, buggy, and robes of Mr. Seaman; that they had sold the horses; and that the other property was in his brother’s barn. Mr. Hodges went with plaintiff to see the property. Plaintiff recognized it as his. Plaintiff and Frank went back to defendants’ barn and found defendant Chester there. Frank introduced plaintiff to his brother, and told him of his claim. A conversation ensued between them, in which plaintiff stated how Mr. Seaman obtained the property, and Mr. Hodges stated how they came in possession of it, and what they had done with it. Mr. ■Hodges testified that plaintiff then said:
“If you will return me the buggy, robe, harness, and things, I will let the horse go, and we will call it square. You got him in good faith.”
To which Mr. Hodges replied, “All right,” and immediately telephoned to his employes at the other barn to let plaintiff have the property. He took the property away, and subsequently brought this suit.
It is urged on behalf of plaintiff that, even if this arrangement was made, it was void for want of consideration, because there was nothing in dispute, and no controversy had arisen. The learned circuit judge instructed the jury that, if this was so, and if the defendants conceded at the outset that the property belonged to the plaintiff, then there was no consideration for the settlement, and plaintiff must recover; but, if the defendants did not concede that the plaintiff was. the owner, and before any determination was reached upon this point, — viz., whether the property should be surrendered or not, — plaintiff made the offer above given, as a settlement of the matter, that would ■ be binding upon the parties. This instruction was oorrect if the facts were sufficient to warrant it. Under the defendants’ evidence plaintiff had made no demand for the. unconditional surrender of his property. The horse was not very valuable. He might well think it wise to gain possession of the remainder of his property without litigation or trouble. No misrepresentations were made to him by the defendants, nor any fact concealed from him. They had not offered to surrender the property prior to the offer made by him. They said nothing which can be construed into a recognition of plaintiff’s title. Their silence upon this point cannot, under the circumstances, be legally construed as a recognition by them of plaintiff’s title. The law favors settlements of this character. Bish. Cont. 57. I do not think it was the province of the court to decide that there was no valid agreement under these circumstances. The question was properly submitted to the jury.
Judgment should be affirmed.
Morse, J., 'concurred with ©rant, J.
Long, J.
1 think the court below was in error in his charge, as it appears that the defendants only, did that, in surrendering the property, which in law they were compelled to do, and therefore there was no consideration for the promise on the part of the plaintiff not to reclaim the horse.
Judgment must be reversed, with costs, and a new trial ordered.
Champlin, C. J., and McGrath, J., concurred with Long, J. | [
28,
30,
29,
-21,
-13,
20,
42,
22,
16,
-4,
-1,
5,
-16,
61,
32,
-12,
15,
-19,
0,
3,
-63,
-44,
-41,
18,
5,
-50,
34,
-35,
-55,
1,
8,
38,
-6,
39,
0,
17,
-14,
16,
8,
-30,
-40,
39,
28,
-22,
9,
12,
1,
-49,
2,
-47,
41,
-34,
3,
-16,
12,
-15,
0,
27,
-68,
-1,
37,
-14,
22,
-20,
-13,
11,
-8,
-25,
-45,
-3,
5,
19,
10,
-1,
19,
-45,
4,
18,
-6,
-7,
34,
4,
35,
23,
-1,
19,
22,
-21,
10,
-62,
-49,
5,
-15,
-18,
2,
-12,
40,
-18,
0,
-34,
-19,
-35,
-22,
35,
11,
24,
-24,
10,
-7,
-22,
7,
20,
58,
-12,
36,
-6,
-48,
-64,
2,
2,
-22,
-36,
10,
-7,
-8,
-31,
-16,
17,
9,
55,
6,
-54,
-3,
9,
6,
-26,
-52,
-1,
-44,
-44,
70,
37,
-18,
-54,
21,
26,
0,
-7,
-24,
-2,
-21,
24,
-33,
18,
31,
-43,
10,
14,
37,
-18,
38,
42,
-1,
-38,
3,
-13,
20,
-70,
-22,
27,
20,
31,
-11,
-25,
36,
16,
-7,
18,
-41,
36,
14,
-9,
6,
23,
-52,
-61,
39,
56,
-38,
38,
12,
-18,
-33,
-7,
-16,
-4,
14,
-36,
-12,
-10,
-34,
-18,
-12,
26,
23,
-4,
12,
-47,
16,
9,
-20,
3,
-14,
-30,
8,
25,
16,
-34,
-21,
-57,
38,
44,
26,
48,
-33,
-41,
-25,
26,
31,
32,
-40,
44,
-9,
0,
6,
-73,
-16,
0,
0,
25,
23,
-25,
-40,
-56,
2,
-33,
-21,
-58,
42,
71,
-16,
-18,
-62,
13,
-2,
4,
64,
3,
-15,
-11,
-27,
25,
-10,
30,
-1,
-24,
-7,
-8,
-34,
29,
-20,
-9,
1,
-10,
1,
-53,
-17,
34,
-9,
-11,
50,
-30,
16,
8,
-34,
-6,
2,
-6,
-46,
-6,
-7,
3,
-16,
-36,
-9,
10,
-7,
23,
28,
2,
-29,
24,
24,
-12,
39,
-29,
-1,
-13,
-39,
-3,
-53,
-13,
47,
-19,
13,
-1,
17,
-2,
24,
-35,
-35,
8,
-24,
0,
-22,
-14,
37,
-4,
-14,
44,
-26,
3,
-13,
10,
-19,
-35,
23,
-53,
14,
-4,
24,
8,
41,
-32,
15,
5,
-17,
-95,
7,
15,
-25,
-1,
-8,
-17,
9,
3,
28,
-13,
0,
17,
24,
7,
23,
-3,
28,
-4,
-21,
-11,
7,
6,
34,
26,
16,
10,
20,
-20,
-16,
8,
-60,
0,
3,
-7,
-11,
10,
25,
-67,
-41,
-14,
-45,
10,
-25,
21,
27,
48,
29,
27,
-4,
-64,
-32,
-32,
6,
16,
1,
-46,
-62,
-27,
32,
14,
20,
-37,
15,
-37,
39,
-5,
77,
14,
-5,
5,
-7,
24,
86,
22,
16,
-28,
50,
-3,
75,
-24,
-61,
10,
0,
20,
23,
5,
19,
-25,
-24,
42,
-40,
-15,
-24,
6,
11,
46,
-30,
-15,
21,
57,
62,
22,
21,
-13,
1,
32,
-11,
53,
66,
-16,
20,
1,
47,
-29,
35,
0,
31,
-30,
1,
-29,
47,
17,
9,
13,
8,
-16,
8,
-28,
18,
-33,
-12,
8,
-19,
63,
-12,
24,
-42,
32,
-58,
-7,
50,
62,
-4,
14,
-27,
-5,
2,
34,
-26,
18,
39,
5,
-28,
-47,
27,
-7,
24,
19,
17,
-63,
5,
7,
-3,
-13,
-18,
-9,
-25,
4,
31,
-23,
-8,
27,
20,
-20,
-5,
-26,
26,
56,
38,
-22,
33,
-29,
-22,
-19,
10,
-76,
31,
-7,
26,
28,
-12,
0,
-17,
-20,
16,
-14,
-44,
-12,
38,
-16,
-11,
-2,
-17,
-20,
6,
12,
-17,
27,
-54,
-34,
31,
-12,
2,
-5,
-20,
-17,
21,
-17,
14,
-9,
19,
50,
24,
-50,
10,
16,
-5,
-36,
0,
8,
-11,
43,
-39,
-16,
-5,
-7,
12,
13,
-4,
60,
-27,
-5,
-32,
64,
-3,
18,
-8,
-6,
-11,
28,
-33,
52,
-27,
-31,
-42,
19,
18,
-2,
-6,
28,
-3,
20,
-29,
6,
27,
-9,
-15,
-3,
-15,
-16,
60,
9,
-27,
-36,
2,
-21,
-42,
-43,
11,
27,
22,
-30,
-9,
-46,
-2,
50,
-20,
63,
-14,
80,
-40,
12,
-18,
-4,
-18,
-40,
-6,
-34,
-33,
-25,
-4,
-47,
-67,
-15,
-9,
-17,
2,
8,
-15,
0,
-34,
-6,
43,
-13,
-38,
18,
27,
-9,
9,
-17,
-17,
7,
40,
-45,
17,
7,
26,
-26,
21,
71,
-16,
18,
20,
25,
56,
-25,
2,
15,
-50,
20,
-2,
24,
-5,
-16,
4,
55,
-1,
-5,
-19,
-7,
5,
-14,
23,
-18,
-37,
30,
26,
-9,
-4,
-13,
-15,
-10,
31,
4,
3,
9,
-6,
-24,
10,
31,
-15,
-30,
18,
12,
21,
-7,
6,
41,
1,
-13,
27,
-24,
24,
-3,
-30,
-10,
-42,
20,
-2,
27,
-28,
-53,
-56,
17,
24,
29,
-13,
0,
44,
2,
12,
-5,
30,
29,
13,
-10,
23,
-33,
-31,
-16,
-28,
-70,
33,
22,
-22,
22,
-27,
11,
-27,
-43,
23,
-13,
5,
-1,
-6,
-35,
24,
-28,
59,
57,
15,
-4,
-1,
-11,
-23,
63,
-39,
8,
-16,
-65,
4,
15,
26,
-17,
-6,
3,
-29,
-32,
58,
43,
-20,
-42,
-14,
6,
-12,
34,
-13,
-36,
64,
4,
-14,
-6,
-8,
-19,
-15,
-52,
28,
-10,
7,
11,
-17,
-16,
-9,
23,
-16,
10,
-11,
-8,
19,
-41,
-2,
10,
-10,
-71,
-52,
18,
14,
-15,
10,
-86,
-8,
26,
-13,
-9,
-30,
42,
81,
-7,
-9,
13,
-53,
-19,
-31,
-9,
-40,
30,
-47,
-10,
-23,
-21,
45,
10,
-2,
-41,
-38,
-5,
38,
-41,
52,
-7,
-34,
-16,
28,
6,
-51,
43,
39,
18,
27,
34,
15,
17,
-40,
-48,
-58,
20,
-14,
60,
68,
-46,
23,
11,
1,
1,
6,
34,
50,
1,
3,
-23,
94,
-12,
-4,
13,
4,
28,
15,
-43,
-13,
-38,
17,
39,
25,
-31,
-33,
-48,
-5,
-20,
-14,
-7,
5,
8,
44,
-33,
0,
-14,
-15,
25,
21,
33,
-36,
56,
-88,
29,
-27,
-50,
3,
21,
-2,
-31,
-15,
59,
31,
23,
-63,
18,
-5,
-30,
-7,
13,
-19,
48,
18,
45,
38,
47,
-16,
7,
-64,
10,
-23,
-3,
48,
-17,
10,
17,
18,
52,
13,
7,
-17,
-2,
-25,
-3,
6,
-5,
-7,
0,
10,
-1,
24,
13,
-7,
-1,
-37,
38,
47,
21,
-18,
34,
-20,
7,
-9,
-29,
-30,
25,
7,
0,
-24,
70,
-32,
-65,
-17,
-38,
-4,
29,
37,
-17,
72,
50,
35,
-44,
-35,
4,
-2,
39,
-5,
41,
20,
-25,
42,
7,
55,
52,
27,
12
] |
Morse, J.
In this cause, which is brought here upon writs of error, three parties appeal from the decision and judgment of the court below.
The controversy between the plaintiff and defendants has been, in different shapes, in this Court a number of times, in which the history of the causes of the litigation has been given to some extent. See Busch v. Nester, 62 Mich. 381; Fisher v. Busch, 64 Id. 180; Busch v. Nester, 70 Id. 525; Busch v. Fisher, 73 Id. 370. A brief •statement of the facts as to the origin of this suit is, however, considered necessary to give a clear understanding of the issues involved in it.
September 16, 1885, the plaintiff, Busch, commenced an action of replevin in the circuit court for the county of Marquette against the defendants Nester and Fisher and one George L. Burtis for certain logs. Busch, claiming to hold under certain tax sales, cut logs from several parcels of land on Huron river, in Baraga county, in the fall and winter of 1884 and 1885. These logs were brought down to Marquette in rafts, which also contained logs belonging to Nester. At Marquette, Nester held on to all the logs which this action was brought to replevy, claiming that the same were cut on his lands. After Busch had obtained possession of these logs by his writ, the defendants Fisher, Crane, and Cole ■sued out a writ of replevin for the same logs against Busch, Arthur Hill, Eben N. Briggs, and Edward E. McCarty. Judgment was given against Fisher in this case in the court below on the ground that it was a cross-replevin, and could not be maintained. The judg ment was affirmed in this Court, January 13, 1887. Fisher v. Busch, 64 Mich. 180. In the mean time Busch had prevailed in his replevin suit in the court below. This judgment was reversed by this Court, and a new trial granted, July 8, 1886. Busch v. Nester, 62 Mich. 381.
While these two replevin cases were pending in the Marquette circuit court, and after judgment in both cases in that court, but before either had been decided by this Court, and on the 27th day of May, 1886, a bond was given by Timothy Nester, claiming to act as the agent of Fisher, Crane, and Cole, which was signed by Nester and Henry C. Thurber as sureties. The bond ran to Busch in the sum of $25,000, and the condition of the obligation is as follows:
“ Whereas, an action of replevin was brought in the circuit court for the county of Marquette, Michigan, wherein William 0. Busch was plaintiff, and Timothy Nester, Spencer O. Fisher, and George L. Burtis were defendants; and—
“ Whereas, in said action of replevin judgment was obtained by said plaintiff against said defendants Nester and Fisher; and
“ Whereas, said cause was removed to the Supreme Court of the State by writ of error, and is now pending there for review; and—
“ Whereas, during the pendency of said first action of replevin, a second action of replevin was brought by Spencer O. Fisher, Albert A. Crane, and Frederick Cole against the said William C. Busch, Arthur Hill, Eben N. Briggs, and Edward R. McCarty, in the said circuit court for the county of Marquette; and—
“ Whereas, said second action of replevin was tried in the said circuit court on a plea in abatement, filed by the said defendants in the said second action of replevin, and a judgment rendered in favor of the defendants in said action, quashing said second writ of replevin, and directing a return of the property to said defendants, which last-mentioned action of replevin has also been removed to the said Supreme Court by writ of error; and—
“ Whereas, the property replevied in each of the two actions of replevin mentioned is the same, and consists of 1,200,000 feet of pine saw-logs and the lumber cut therefrom, and described in the writs of replevin of said actions; and—
“Whereas, the plaintiffs in said last action of replevin desire to remove the lumber cut from said logs from the jurisdiction of the said court, which they have been restrained from doing by the injunction of the said circuit court in chancery; and—
“Whereas, it is agreed between said parties litigant in said action of replevin that a bond may be given by the said plaintiffs in said last action of replevin to the said William C. Busch, one of the defendants in the said last action of replevin, to take the place of the lumber, and to be considered the 'same as though it were the property replevied by the respective parties:
“ The conditions of this obligation are such that, if the Supreme Court shall affirm the decision of the said circuit court in the said second action of replevin, then said Spencer O. Fisher, Albert A. Crane, and Frederick Cole shall forthwith, on said decision of said Supx-eme Court, pay to said William C. Busch, his heirs or assigns, the value of said property, less any equitable defense which the said Fishei-, Cx-ane, and Cole, or their vendor-, may have; or, if the said Supreme Court shall affirm the decision of said circuit court in both said actions of replevin, said Spencer O. Fisher, Albert A. Crane, and Frederick Cole, shall forthwith, after such confirmation, pay to said Busch., his heirs or assigns, the value of said lumber, — then this obligation to be void; otherwise to remain in full force and virtue.”
Upon this bond the present suit is bi-ought.
The first replevin suit, after being remanded by this Court, was tried again in the court below, and Busch again had judgment. It was again reversed by this Court, June 8, 1888. Busch v. Wester, 70 Mich. 525. No further trial has been had, except that the case was before the circuit court for trial in August, 1889, and, after a partial trial, the court suspended further action until suit should be brought and judgment rendered on the bond above given and sued upon in this case.
After the affirmance of the judgment in this Court in the second or cross-replevin suit, Busch and the other defendants in that case brought suit on the replevin bond given by Fisher, Crane, and Cole in said cross-replevin suit. This suit was defended by Fisher, Crane, and Cole ■on the ground that the new bond — the one sued upon in the case now here — took the place of the first bond given by them, and satisfied it. The court below gave Busch judgment for the sum of $19,176. On error to this Court, we held that the contention of Fisher, Crane, and Cole was good, and reversed the judgment. No new trial was granted. Busch v. Fisher, 73 Mich. 370.
In the case now before us, Thurber pleads the general issue. Nester pleads the general issue, with notice that the logs were his property; that 1,200,000 feet of pine saw-logs were taken by Busch during the winter of 1884 and 1885, and by him unlawfully mingled with other logs belonging to said Busch, so that they could not be identified, and that the logs mentioned in said bond were logs that were taken by Nester from the mass so mingled, of the same average quality as those so taken from Nester by said Busch, and that Nester lawfully so took them; that at the time of the issue of both writs of replevin the logs were the property of Fisher, Crane, and Cole; that the lumber mentioned in said bond was the property of Fisher, Crane, and Cole, and they had a right to remove it; that, if any of said logs or lumber appear to belong to Busch, Nester has a claim against them for towage at $2 per thousand, and for sawing, piling, storage, and inspection at $5 per thousand, which is an equitable defense contemplated by said bond.
Fisher, Crane, and Cole deny the execution of the bond.
In the court below Busch received judgment for $6,753.29.
1. The first error assigned by the defendant Nester is the admission of the verdict and judgment in the suit upon the bond given by Fisher, Crane, and Cole in the crossreplevin suit. It is contended justly that the judgment on'that bond should be practically the same as on this; and it is further contended that the fact that the jury in that case gave Busch a judgment of $19,176 must have had a tendency to increase the verdict in this case. This is not apparent, considering the amount of the verdict. It was competent for the plaintiff to meet the claim of defendants Fisher, Crane, and Cole, that they never authorized the execution of the bond in suit by Nester in their names, to show that, upon the trial of the suit upon the bond given in the cross-replevin, they made the defense that the present bond was given in satisfaction of it, and that they prevailed upon that issue. To this end all the records and proceedings in that case were properly admitted, and we can see no prejudice resulting to Nester therefrom.
2. It appears from the record that at the time this bond was given some of the logs had been manufactured into lumber by the defendants or some of them, and therefore both logs and lumber are mentioned in the bond. Witnesses in the early part of the trial were permitted, against objection, to testify to the value of the lumber, as cut, as it was piled on the dock at the Burtis mill. The logs were shown to be worth $15 per thousand feet, and the lumber from $18 to $20. The admission of this testimony as to the value of the lumber is assigned as error, as tending to influence the jury in arriving at their estimate of the value of the logs. There does not seem to have been any serious dispute as to the value of the logs, and as the circuit judge correctly instructed the jury that they should not consider the value of the lumber, and could only give to Mr. Busch the value of the logs, found to be his, in the boom at Marquette, we are satisfied that the jury were not prejudiced by the admis. sion of this testimony.
3. It is contended that the defendant Nester was entitled to be allowed the cost of storing the logs and taking care of them while in his possession at Marquette. The court instructed the jury that he could be allowed his ratable portion of the expense in towing the logs found to belong to Busch from the month of the Huron river to the boom at Marquette, but as Nester appropriated the whole of the logs, and stored them in his boom, he could not recover for such care and storage. It seems that Busch claimed the whole of these logs, and Nester also claimed the whole of them. The jury found that both were wrong; that part of the logs belonged to each. In such case, Nester could not be allowed to charge storage for logs that belonged to Busch, and which he would not deliver up on demand. But the counsel forNester contend that Busch is entirely to blame for theses logs being mixed together so that they could not be; identified; that the only way that remained for Nesterwas to take charge of the whole of the logs, and have' the .separation made. It is claimed that he did this, and delivered to Busch all but 1,195,000 feet, the amount in controversy; and that after this was done, and after they had broken away and been gathered up by Nester, Busch replevied the whole of them; that this expense of storage, etc.,'was an “equitable defense,” under the bond, and should have been allowed to Nester. , It appears that the logs cut by Busch from the lands, the title of which was in dispute, but which since have been adjudicated to-belong to Nester, were marked the.same as the logs cut. from lands that belonged to Busch. Therefore Nester, in selecting the logs that belonged to him, had the right to and did select his logs from the whole mass, taking logs of like kind and quality of timber with the . logs cut from his land. But this mingling of the logs would not authorize Nester, as it was not done wantonly or maliciously, to take any more logs than belonged to him, or to keep the possession of them away from Busch beyond a reasonable time, in which Nester could make his selection and separation. He made such selection and separation, and refused to give Busch any more logs. He could not charge Busch with storage and expense thereafter. The court committed no error in his charge in this respect.
The counsel for the appellants Fisher, Crane, and Cole presents no brief, and, under the rule, their assignments of error will not be considered.
The plaintiff also alleges error. The errors assigned in ¡his behalf are submitted by the counsel in two general propositions, to wit: That the court erred—
1. In not permitting the question of the good faith of Busch in cutting the timber upon the Nester lands to go to the jury.
2. In directing the jury that the value of the logs, and not of the lumber, was the value to be placed on the property for the purpose of this suit.
It is contended under the first proposition that the timber on the Nester lands was cut in good faith by {¡usch under tax titles from the State; that he had expended large sums of money in cutting such timber under an honest idea that it belonged to him; and that, under the, “ equitable defense” permitted Nester by the terms of the bond, he was not entitled to take the full value of the logs, but that his equities would simply be the value of the logs, less the money that Busch had honestly expended upon them. This contention is settled against the plaintiff by the case of Gates v. Boom Co., 70 Mich. 309, 315. It is there held that a trespasser, however innocent, acquires no property in logs cut on the land of another, nor lien thereon for the value of the labor and expense of cutting, nor can he recover such value in an action of trover or assumpsit; and that the owner of the timber so cut has the right to reclaim the logs, if he can, and, if he does, the trespasser, though cutting the lumber in good faith,, has no claim upon the owner, either in a legal or equitable sense; and that there-is no injustice in holding that such trespasser/ must lose the labor he has expended in' converting1 another’s trees into logs.
As to the second proposition, the court very properly held, in view of our opinion in Busch v. Fisher, 73 Mich. 370, that the bond upon which the- present suit was planted took the place of the property in dispute, and that this suit embraced substantially all the issues in the -other replevin suits. The final judgment in this case must, as a matter of law; conclude and dispose of the first replevin suit instituted by Busch. It is for the same property, and the claim as to the ownership of the property.is the same in both cases. The court was also clearly right in limiting the recovery to the value of the logs in the boom at Marquette, without reference to the value of the lumber manufactured from a portion of them since the first replevin suit was commenced. The property replevied was logs, and by the taking of the bond in suit Busch waived the return of the. property, and the bond took its place. Full justice is done to Mr. Busch by the ruling of the court in this regard, and we think that such was the plain intent of the bond.
The judgment is affirmed, and, as all the errors assigned are overruled, no costs will be awarded in this Court to either party.
Ohamplin, C. J., McGrath and Long, JJ., concurred. Grant, J., did not sit. | [
-4,
34,
33,
-47,
25,
21,
16,
-3,
-3,
64,
-18,
-32,
37,
0,
36,
-21,
54,
-30,
9,
15,
-21,
-19,
-21,
6,
-10,
1,
38,
15,
-24,
-2,
16,
-51,
-10,
3,
-18,
-21,
-9,
14,
-7,
-7,
-24,
-41,
25,
-58,
1,
20,
38,
2,
39,
28,
70,
-25,
-13,
-14,
-24,
-12,
30,
-19,
-18,
1,
-16,
-20,
53,
21,
39,
-20,
-3,
27,
19,
-15,
-4,
9,
-21,
-12,
8,
-6,
9,
-27,
-55,
54,
-5,
19,
42,
-13,
-19,
2,
-29,
10,
22,
31,
4,
-1,
-72,
3,
45,
6,
-70,
6,
-54,
5,
46,
29,
31,
19,
-35,
7,
-3,
11,
-27,
14,
52,
35,
22,
-46,
18,
-22,
-3,
-19,
-1,
-3,
1,
8,
7,
27,
-24,
44,
-8,
21,
14,
46,
2,
0,
51,
0,
18,
9,
-9,
-27,
-3,
-7,
46,
43,
-47,
-21,
-22,
-29,
13,
-32,
20,
-19,
-32,
15,
4,
25,
-17,
38,
66,
8,
66,
-16,
27,
25,
-18,
-21,
-67,
-12,
34,
-26,
-30,
-4,
24,
39,
5,
13,
38,
-2,
5,
1,
-28,
63,
31,
2,
26,
-2,
-23,
-38,
-15,
-20,
-68,
14,
8,
-53,
26,
17,
-3,
41,
5,
13,
-4,
42,
5,
-23,
-1,
-5,
-44,
-23,
49,
-26,
-37,
41,
13,
46,
-38,
-27,
-10,
-23,
-39,
-28,
10,
-32,
-29,
-10,
71,
10,
-31,
-40,
49,
27,
32,
3,
-13,
-28,
60,
14,
-24,
-19,
45,
14,
31,
19,
17,
-6,
-28,
7,
-16,
12,
-35,
-22,
-12,
24,
-11,
-27,
-6,
4,
12,
17,
-7,
7,
-32,
36,
-7,
9,
10,
-22,
-30,
-26,
0,
44,
-5,
0,
-27,
5,
45,
-22,
-54,
6,
-8,
-10,
7,
-3,
10,
36,
-31,
-13,
-15,
23,
-46,
-6,
-24,
1,
1,
40,
-35,
-53,
-5,
63,
-19,
-21,
21,
-45,
-19,
8,
12,
-29,
-36,
-6,
-30,
23,
-16,
16,
-52,
15,
-63,
7,
20,
-8,
-6,
43,
11,
-38,
-17,
-9,
-20,
-15,
-36,
28,
18,
19,
12,
10,
-40,
-5,
19,
55,
23,
-26,
28,
-6,
-28,
-2,
28,
17,
-20,
-5,
-62,
-4,
21,
3,
44,
-5,
47,
11,
-15,
16,
-100,
-14,
9,
-28,
-19,
14,
6,
14,
0,
16,
0,
-15,
-48,
-12,
10,
27,
-26,
35,
12,
-3,
14,
-10,
-19,
46,
-49,
21,
-20,
31,
17,
-2,
49,
-17,
-11,
-15,
-80,
-30,
-2,
-44,
10,
23,
-8,
-1,
-12,
-39,
-27,
10,
49,
38,
40,
-23,
0,
13,
-22,
-25,
-4,
-10,
-16,
-39,
53,
-9,
35,
-28,
25,
39,
15,
-12,
35,
10,
23,
-31,
55,
-41,
93,
3,
2,
-8,
-15,
2,
15,
-16,
44,
0,
-3,
29,
-38,
4,
-29,
41,
0,
-15,
-15,
3,
10,
52,
50,
-68,
-16,
24,
-45,
-21,
-17,
9,
41,
-53,
18,
-57,
-34,
21,
-7,
-37,
-28,
-19,
-11,
-12,
39,
40,
-3,
1,
-5,
-9,
-68,
15,
51,
-2,
-24,
31,
42,
-1,
-21,
-1,
-21,
-8,
9,
31,
-15,
-14,
13,
29,
-28,
-12,
-38,
-10,
-23,
17,
44,
83,
-15,
12,
-31,
-35,
81,
37,
27,
-17,
42,
60,
2,
-19,
12,
-19,
-42,
22,
4,
-23,
-11,
16,
-20,
-11,
-57,
-13,
-23,
24,
29,
-17,
-12,
22,
-8,
-24,
-14,
23,
-22,
-12,
31,
-4,
-44,
-16,
0,
5,
126,
-40,
5,
17,
-21,
-2,
47,
-32,
-69,
-15,
10,
12,
-51,
25,
-44,
-37,
-18,
-31,
10,
-12,
1,
-9,
0,
-10,
0,
17,
8,
2,
4,
29,
50,
-2,
34,
57,
-13,
-31,
4,
7,
-25,
-51,
-22,
-58,
21,
19,
28,
5,
-7,
-25,
10,
0,
-50,
-2,
-34,
11,
45,
30,
67,
19,
14,
-27,
-6,
4,
40,
32,
-37,
29,
-28,
45,
23,
24,
10,
17,
44,
10,
14,
-19,
24,
33,
20,
-52,
0,
23,
-17,
-19,
-11,
-32,
-17,
-11,
1,
-2,
-38,
15,
9,
10,
17,
39,
-27,
40,
7,
-26,
-46,
12,
-8,
-33,
-17,
59,
-59,
-31,
-12,
2,
8,
61,
-31,
-43,
-9,
-18,
5,
-21,
-23,
15,
17,
8,
-50,
-9,
7,
-18,
19,
-9,
75,
-37,
9,
30,
-45,
-78,
-3,
85,
-1,
46,
20,
-16,
22,
-14,
-13,
-25,
-7,
62,
19,
-24,
37,
8,
3,
-23,
-10,
27,
-31,
-7,
14,
-51,
-26,
65,
-33,
-4,
-4,
-3,
16,
-41,
36,
-20,
0,
-3,
69,
-15,
-17,
11,
-25,
-47,
-23,
-20,
-2,
-27,
12,
-30,
20,
-22,
3,
-13,
-38,
-12,
-21,
27,
6,
-7,
35,
40,
23,
-5,
-67,
-10,
-3,
-55,
-15,
45,
-17,
7,
7,
6,
20,
-24,
4,
13,
1,
29,
36,
-19,
3,
12,
-28,
-6,
68,
-26,
-14,
-11,
-35,
0,
4,
-64,
32,
-21,
-17,
20,
-11,
-24,
15,
-7,
4,
17,
61,
8,
-23,
-50,
-13,
-12,
-28,
-28,
30,
-7,
18,
-1,
1,
-73,
7,
-12,
-13,
-8,
-3,
-27,
-13,
21,
-20,
6,
-30,
44,
-32,
18,
-39,
-18,
3,
2,
-29,
-15,
30,
-27,
10,
28,
-1,
21,
-25,
27,
-35,
4,
19,
31,
21,
-11,
9,
-4,
12,
-25,
22,
-20,
-15,
5,
42,
-43,
-16,
-34,
-32,
-1,
6,
-35,
1,
-35,
-14,
9,
21,
17,
-10,
-22,
-39,
4,
-5,
28,
-24,
3,
-79,
-7,
-12,
67,
12,
-10,
-29,
-29,
33,
-46,
4,
-71,
-21,
5,
-4,
-27,
-36,
0,
8,
-3,
-12,
-30,
17,
-38,
27,
-1,
21,
-7,
-35,
-21,
10,
-19,
-15,
47,
33,
11,
51,
42,
-15,
-8,
-24,
-22,
9,
-1,
-7,
-9,
28,
21,
-25,
-39,
-42,
-51,
-25,
28,
7,
-48,
-16,
-2,
-34,
-17,
-13,
30,
-10,
6,
37,
27,
19,
0,
-46,
4,
-25,
37,
-28,
59,
-19,
45,
0,
-8,
11,
0,
32,
-25,
17,
-10,
35,
-42,
11,
10,
-11,
-5,
47,
0,
-12,
37,
3,
26,
8,
57,
-8,
-5,
26,
4,
-46,
-33,
14,
44,
17,
46,
-17,
-26,
-16,
52,
24,
21,
-76,
11,
-42,
-13,
-5,
16,
-3,
-1,
-10,
13,
-15,
-60,
-68,
15,
0,
11,
-61,
-34,
-5,
48,
-2,
67,
58,
26,
30,
-5,
0,
-35,
-16,
-21,
-12,
-11,
48,
8,
34,
35,
-36,
18,
-13,
-2,
-42,
5,
9,
21,
1,
23,
-52,
28,
39,
-40,
13,
48,
33,
-2
] |
Butzel, J.
This is a companion case to Linski v. City of Detroit, and is controlled by the decision in that case reported ante, 385.
The decree is affirmed, with costs to the plaintiff.
Clark, C. J., and McDonald, Potter, Sharpe, North, Fead, and Wiest, JJ., concurred. | [
-71,
26,
11,
-19,
-30,
11,
23,
-3,
-28,
33,
-14,
17,
30,
-53,
-19,
3,
18,
56,
12,
-1,
-19,
25,
-24,
7,
-26,
26,
22,
11,
9,
0,
-17,
-57,
18,
6,
-63,
31,
-1,
-9,
39,
-37,
2,
-33,
-16,
-42,
0,
-22,
-11,
-23,
24,
-57,
-59,
36,
-14,
-27,
5,
-35,
-7,
-3,
-15,
13,
-22,
-33,
20,
44,
2,
-25,
1,
-30,
52,
-5,
-29,
20,
-16,
-22,
49,
22,
1,
4,
-84,
-32,
-2,
-28,
11,
33,
2,
7,
-8,
-39,
-37,
-2,
-4,
41,
-12,
1,
-2,
37,
22,
-70,
-59,
-14,
-43,
-2,
14,
72,
-3,
-42,
-43,
-12,
12,
-25,
7,
-6,
29,
-22,
-22,
17,
3,
16,
81,
-1,
9,
20,
-25,
0,
-29,
34,
14,
-40,
-33,
-36,
-8,
0,
51,
-14,
36,
63,
6,
6,
4,
66,
58,
44,
15,
45,
9,
17,
-19,
21,
-8,
-13,
-41,
37,
18,
29,
4,
-19,
-48,
-7,
48,
10,
5,
33,
-1,
-51,
-1,
-11,
-54,
66,
-20,
33,
70,
-3,
26,
-22,
51,
19,
-25,
-7,
-10,
-28,
-11,
7,
33,
-79,
6,
-16,
12,
11,
-54,
-17,
-9,
2,
-19,
-3,
-5,
38,
32,
56,
-6,
-35,
-38,
9,
-32,
-42,
-41,
-1,
53,
0,
4,
22,
8,
-6,
39,
-49,
35,
50,
16,
-17,
-41,
-31,
61,
11,
-5,
-19,
-29,
-28,
-22,
5,
26,
-4,
-20,
17,
19,
34,
-10,
26,
56,
2,
11,
-24,
0,
0,
-67,
32,
39,
37,
5,
33,
34,
-10,
26,
15,
-20,
-15,
-27,
2,
-4,
-27,
36,
67,
12,
51,
-24,
16,
18,
31,
29,
12,
12,
-58,
-46,
32,
-11,
-34,
1,
-32,
-22,
-36,
-30,
61,
-44,
-20,
-12,
21,
46,
57,
10,
-15,
0,
-31,
14,
10,
31,
-27,
53,
32,
-30,
-29,
-38,
-13,
-3,
14,
-4,
66,
32,
-32,
-53,
5,
12,
-9,
-17,
-38,
-11,
-7,
2,
11,
-8,
-14,
49,
-27,
-25,
104,
-36,
-25,
-35,
-3,
12,
-1,
-12,
-37,
-29,
20,
22,
54,
2,
56,
35,
13,
-37,
-7,
5,
-22,
6,
17,
4,
-32,
5,
-2,
5,
-23,
1,
-9,
-16,
9,
-6,
8,
21,
1,
-46,
15,
74,
-31,
9,
28,
-54,
-28,
23,
-3,
-17,
29,
7,
49,
-66,
71,
-4,
14,
53,
-34,
8,
35,
-29,
-10,
-7,
-4,
54,
-31,
0,
5,
-21,
-5,
-19,
-6,
-37,
34,
-29,
10,
-26,
-1,
18,
-54,
-19,
8,
-6,
6,
-26,
13,
65,
27,
53,
18,
-26,
-17,
2,
-1,
-24,
20,
3,
-41,
-32,
-16,
-55,
0,
-12,
5,
33,
5,
38,
36,
-30,
-39,
13,
20,
-23,
-16,
0,
-6,
-48,
-54,
1,
25,
-8,
-9,
-3,
0,
-2,
-46,
-21,
36,
-12,
-8,
60,
1,
9,
3,
35,
10,
-31,
-33,
-19,
11,
-47,
-18,
-15,
-31,
-28,
0,
-7,
15,
14,
-16,
-16,
34,
12,
26,
8,
-44,
-23,
-19,
0,
72,
13,
6,
-26,
-22,
-67,
4,
4,
-21,
-18,
39,
11,
26,
5,
7,
-17,
-50,
-35,
34,
-64,
-32,
12,
13,
1,
-12,
16,
-11,
15,
3,
17,
-5,
6,
-14,
9,
-10,
-20,
0,
-26,
31,
8,
3,
-6,
43,
-22,
-18,
8,
31,
2,
-30,
-17,
-20,
30,
27,
4,
-27,
-13,
5,
0,
-39,
43,
-9,
2,
-38,
-19,
-25,
24,
-20,
-18,
13,
34,
18,
-39,
-17,
-12,
-22,
17,
-6,
24,
43,
12,
4,
-13,
9,
-1,
4,
29,
37,
-12,
1,
25,
-22,
-14,
-10,
22,
-36,
39,
-18,
12,
-3,
-48,
-55,
2,
17,
4,
5,
15,
13,
29,
-9,
-12,
-4,
-46,
23,
-23,
-7,
-6,
28,
59,
22,
22,
21,
53,
31,
3,
-49,
-4,
-51,
-62,
-13,
0,
-49,
22,
14,
5,
8,
4,
23,
-22,
36,
17,
21,
-34,
-2,
34,
34,
7,
9,
5,
-23,
-35,
20,
-33,
6,
-56,
-19,
-3,
5,
32,
52,
-10,
6,
-22,
1,
-3,
13,
-8,
-22,
-37,
67,
-45,
45,
27,
-8,
21,
-33,
38,
-31,
-8,
-98,
7,
-28,
34,
14,
-61,
-12,
13,
-43,
9,
-12,
35,
-19,
-17,
75,
18,
46,
2,
9,
-3,
47,
-31,
2,
8,
25,
-23,
-23,
62,
-1,
19,
-5,
25,
-4,
-43,
53,
-24,
-56,
-30,
20,
32,
23,
-5,
0,
32,
5,
28,
12,
-16,
3,
-17,
44,
-2,
3,
29,
-10,
-26,
25,
-47,
57,
-31,
24,
-21,
-31,
23,
-27,
-14,
-74,
27,
-48,
-84,
-35,
-37,
7,
7,
-5,
28,
-13,
-37,
21,
-87,
-61,
0,
-40,
19,
69,
11,
-32,
-18,
-15,
39,
41,
-58,
0,
-11,
-27,
22,
17,
21,
38,
38,
-5,
-24,
24,
-50,
-11,
-36,
51,
21,
-21,
14,
3,
0,
-28,
10,
27,
-27,
0,
-67,
-26,
-36,
-3,
24,
-36,
-34,
-29,
41,
33,
1,
30,
17,
-6,
-21,
24,
27,
-52,
75,
3,
47,
26,
-6,
10,
23,
-12,
21,
61,
28,
-2,
-66,
26,
-49,
0,
36,
-18,
47,
22,
0,
-1,
15,
-12,
32,
-14,
-31,
-24,
38,
46,
1,
47,
34,
16,
-17,
-21,
-21,
-2,
37,
-2,
-1,
58,
-32,
8,
21,
46,
-23,
-27,
-11,
-10,
18,
23,
22,
42,
-10,
32,
32,
-25,
-12,
-11,
18,
16,
36,
33,
-32,
3,
-12,
-2,
29,
17,
-64,
-51,
11,
-21,
-12,
-3,
31,
31,
13,
24,
17,
-33,
-19,
26,
-29,
23,
-7,
-21,
21,
-11,
15,
-20,
-12,
27,
-20,
8,
-39,
-7,
-14,
4,
-12,
-34,
0,
35,
-77,
19,
88,
-40,
-14,
25,
-22,
34,
43,
50,
-15,
68,
-39,
-15,
-19,
11,
-18,
40,
-26,
-39,
-77,
21,
7,
-10,
5,
33,
-45,
-6,
-53,
-9,
-11,
18,
-20,
21,
-29,
-23,
-42,
10,
-65,
-67,
36,
-31,
-16,
-56,
9,
-22,
33,
34,
21,
-25,
-14,
0,
-34,
28,
22,
17,
-36,
-21,
-50,
-55,
-47,
34,
-26,
-28,
-18,
-38,
16,
-31,
0,
-34,
13,
-9,
7,
-19,
-40,
11,
12,
-4,
-7,
-27,
-25,
26,
-11,
-27,
19,
28,
14,
0,
-18,
9,
10,
-10,
-49,
-9,
2,
-52,
-26,
-45,
-17,
-44,
6,
21,
-30,
27,
20,
32,
-1,
39,
-20,
28,
26,
-23,
28,
39,
-2,
41,
-20,
-3,
31,
23,
1,
38,
38,
19,
4,
59,
20,
40
] |
Hooker, J.
A former opinion in this cause has disposed of many questions that might otherwise require consideration upon this record. It will be found in 135 Mich. 353. As will be seen from that case, the plaintiff had recovered a verdict and j udgment against the defendant railroad company for the loss of stock killed by defendant’s train. According to the brief of the defendant, the negligence relied on was (1) that the cattle guard was allowed to remain dented and flattened so that cattle could cross it; (3) that the “ glance fence ” did not extend up to the cattle guard, but left a strip of ground shown to be nine inches wide, thus affording opportunity for the cattle to pass. The glance fence was a fence built parallel with the railroad. Theoretically, it should be built close to the cattle guard; and in this case it was inclined so as to accommodate the wider portions of the cars, above the running gear. In this case the inclination from the track was about 45 degrees. The defendants urged that the glance fence was set as close to the cattle guard as the passage of trains would permit, and that was all that the law required, that this pattern of guard was made of a certain standard width, and that the approval of such pattern by the railroad commissioner precluded the claim that it should have been wider, so that it could extend far enough to make it practicable to build the glance fence up close to it. It would be unreasonable to suppose that the installation of a cattle guard, with nothing to prevent cattle passing by the side of it, would be a compliance with the statute. It was the manifest intention that the gap should be closed, except a sufficient space for the passage of trains, and that the portion thus left open should be protected by a cattle guard of approved pattern. If there was a strip broad enough for cattle to walk upon, the law was not complied with. There was no error in submitting to the jury the question whether this glance fence and cattle guard were negligently constructed.
Counsel complains that the court instructed the jury that it was defendant’s duty to put in such a cattle guard as would prevent cattle from passing, which made defendant an insurer. An examination of the portions of the charge complained of does not establish this claim.
Error is assigned upon the alleged charge that the opinions of experts in relation to the safe condition of the guard “were not binding upon the jury.” This is not a full quotation of the language of the judge. When read with other comments accompanying it, no fault can be found with it. The same language was approved on the former hearing.
There are a few other assignments of error, but our examination convinces us that they are baseless, and that no useful purpose would be subserved by discussing them.
The judgment is affirmed.
Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred. | [
12,
7,
43,
-20,
-35,
28,
22,
28,
0,
72,
-31,
0,
4,
95,
-10,
-14,
19,
-15,
-36,
35,
-8,
-4,
-35,
37,
-24,
2,
14,
-30,
-60,
19,
-3,
51,
-15,
16,
-11,
-5,
31,
26,
4,
49,
48,
31,
-16,
-75,
51,
-5,
35,
-5,
-29,
-47,
34,
15,
4,
-59,
-65,
28,
6,
14,
-28,
4,
33,
-32,
-13,
31,
20,
23,
0,
-2,
-15,
0,
-7,
31,
-54,
-52,
29,
-18,
40,
0,
25,
16,
10,
2,
34,
-5,
18,
28,
0,
-29,
-39,
-6,
-22,
-19,
-36,
-36,
-8,
32,
-18,
17,
-10,
-3,
-11,
37,
-54,
-10,
-10,
7,
-87,
-35,
-10,
-38,
-20,
-1,
-56,
5,
-18,
0,
-79,
12,
-41,
-19,
3,
20,
12,
34,
-20,
-1,
27,
9,
-6,
14,
-12,
-26,
-9,
39,
18,
9,
-26,
-61,
31,
23,
-8,
57,
15,
1,
-1,
-32,
-11,
7,
-37,
13,
19,
38,
-18,
-67,
19,
-22,
-24,
-22,
20,
-14,
7,
36,
21,
39,
-58,
20,
-17,
-44,
-22,
21,
-13,
13,
27,
-13,
58,
-1,
-6,
15,
-76,
-39,
-5,
-26,
-39,
37,
-25,
4,
4,
26,
-40,
12,
12,
-34,
6,
-62,
-1,
9,
-3,
-7,
79,
24,
2,
6,
-12,
10,
-43,
16,
-59,
-51,
-22,
-48,
-19,
44,
-51,
-3,
1,
-36,
-31,
-31,
16,
-35,
-12,
11,
-1,
-1,
0,
-4,
-47,
-2,
3,
0,
17,
-13,
46,
9,
17,
-9,
-1,
-65,
35,
-17,
24,
-1,
-17,
-31,
15,
-43,
6,
-33,
2,
-3,
4,
9,
-41,
-16,
6,
-31,
-16,
-11,
-56,
-37,
37,
38,
-6,
35,
50,
7,
-34,
15,
-32,
-10,
14,
14,
16,
32,
3,
-67,
30,
19,
7,
-24,
25,
8,
-48,
16,
-73,
6,
-5,
6,
4,
-18,
45,
-73,
-23,
-1,
13,
32,
35,
45,
23,
-52,
12,
-22,
13,
-23,
33,
44,
-38,
-13,
-8,
-14,
-46,
-24,
2,
22,
-3,
5,
46,
-13,
3,
-57,
-25,
22,
34,
-20,
36,
-13,
33,
-26,
19,
55,
46,
17,
-23,
48,
24,
-10,
9,
0,
-23,
-21,
32,
4,
26,
-11,
-27,
7,
19,
17,
20,
-19,
-20,
52,
8,
-47,
-2,
-49,
8,
-40,
-27,
22,
21,
-18,
-9,
64,
12,
-86,
-32,
-53,
-34,
22,
12,
-17,
54,
-11,
15,
1,
16,
75,
13,
36,
-43,
-2,
12,
-17,
8,
-53,
-30,
12,
-49,
83,
-15,
-35,
39,
74,
35,
36,
-46,
33,
8,
-36,
-37,
-5,
22,
-1,
-12,
-4,
6,
-31,
-44,
3,
-24,
43,
63,
7,
-17,
35,
15,
-20,
-22,
-20,
29,
-10,
54,
-3,
2,
-10,
12,
-44,
-56,
-32,
8,
-37,
41,
-16,
-19,
36,
8,
-31,
-40,
-29,
-50,
2,
0,
20,
-39,
9,
18,
40,
7,
-20,
39,
14,
-27,
6,
-57,
-12,
57,
-22,
3,
6,
7,
4,
9,
-31,
6,
-42,
14,
-24,
69,
-20,
20,
5,
37,
28,
4,
-14,
13,
68,
-43,
-20,
-12,
-34,
40,
-35,
12,
-35,
-6,
-7,
50,
38,
20,
77,
16,
-11,
-24,
30,
24,
5,
28,
31,
-69,
24,
22,
-47,
60,
-6,
-5,
-33,
2,
45,
33,
0,
50,
-22,
8,
63,
-23,
23,
22,
-49,
-2,
-64,
-54,
-34,
-20,
3,
-9,
11,
25,
-5,
11,
23,
13,
5,
20,
41,
0,
-10,
23,
-52,
-62,
0,
29,
6,
57,
-59,
16,
-40,
-12,
-19,
31,
5,
39,
-17,
9,
-31,
-58,
-3,
-40,
24,
-16,
4,
25,
5,
45,
15,
17,
25,
25,
2,
12,
37,
16,
-12,
29,
16,
-12,
42,
-32,
15,
7,
19,
-58,
3,
18,
21,
19,
-10,
-37,
19,
10,
-24,
-21,
11,
-11,
0,
-20,
30,
5,
34,
3,
11,
-64,
31,
36,
-10,
-33,
23,
21,
75,
6,
-11,
-19,
4,
14,
8,
20,
-75,
13,
-21,
-29,
-43,
-30,
-11,
-57,
-27,
46,
46,
54,
-3,
-25,
9,
17,
29,
0,
6,
5,
6,
-13,
-30,
-2,
4,
12,
-49,
-5,
-39,
-63,
24,
15,
-10,
-31,
27,
23,
-22,
-6,
19,
11,
-14,
-23,
-12,
31,
-7,
-2,
12,
-49,
-3,
-27,
-22,
-8,
8,
62,
-42,
3,
41,
35,
-13,
44,
7,
40,
30,
-10,
-25,
20,
-32,
33,
14,
-31,
44,
53,
-5,
-43,
5,
39,
38,
10,
-43,
33,
-36,
-47,
-46,
19,
12,
9,
6,
30,
-1,
-20,
-48,
-3,
20,
62,
33,
-11,
16,
-17,
-25,
-9,
-18,
-17,
-36,
43,
-12,
15,
-13,
18,
-1,
44,
-12,
-18,
15,
6,
30,
5,
7,
-10,
82,
1,
-33,
-11,
-80,
0,
-39,
52,
22,
-55,
19,
22,
13,
-33,
-5,
25,
-12,
15,
-13,
-6,
-22,
-13,
2,
-19,
-80,
17,
-61,
-37,
0,
-22,
29,
-16,
-55,
-10,
-30,
-20,
-23,
-39,
-4,
42,
83,
23,
-100,
39,
-16,
-23,
15,
42,
-2,
16,
19,
-10,
-3,
7,
8,
35,
36,
12,
-26,
11,
23,
-24,
0,
-39,
-1,
3,
-42,
-40,
10,
-17,
-29,
14,
15,
-4,
22,
42,
-31,
-67,
-11,
13,
-45,
-19,
15,
-32,
-12,
-15,
101,
0,
-47,
-14,
24,
32,
-44,
81,
1,
19,
4,
-46,
10,
9,
-4,
-9,
51,
-18,
-2,
40,
38,
-15,
-30,
49,
3,
-53,
-24,
-34,
34,
-27,
11,
18,
11,
20,
-29,
10,
-3,
-87,
57,
-16,
-13,
-21,
-8,
-22,
-6,
2,
-29,
-48,
1,
-28,
31,
-5,
12,
-12,
12,
-18,
-53,
24,
8,
0,
-41,
25,
35,
-10,
-92,
3,
-1,
3,
52,
30,
1,
-26,
58,
30,
-35,
-23,
15,
42,
8,
-17,
45,
5,
33,
10,
-40,
9,
18,
-21,
9,
-10,
-28,
5,
2,
17,
39,
-51,
0,
-51,
5,
-12,
22,
22,
16,
-36,
57,
15,
29,
47,
43,
-4,
-39,
31,
-47,
-53,
2,
-53,
-33,
2,
-11,
4,
-17,
-38,
41,
-38,
-31,
-26,
15,
-46,
-36,
54,
7,
12,
41,
66,
-30,
-35,
-22,
-33,
22,
36,
43,
13,
-6,
-3,
-4,
50,
-1,
-73,
-12,
69,
-23,
22,
-35,
52,
-4,
-23,
-2,
-33,
-44,
57,
-18,
9,
32,
4,
-21,
-8,
-13,
-25,
23,
-20,
43,
-8,
7,
-68,
17,
-18,
39,
8,
9,
6,
-35,
-27,
6,
30,
35,
29,
35,
-39,
-35,
-37,
-28,
40,
69,
40,
15,
-4,
11,
-39,
-36,
38,
44,
16,
26
] |
Moore, C. J.
This case was brought in justice’s court to recover damages for the nondelivery of a telegram. The case was appealed to the circuit court, where it was tried by a jury, which returned a verdict in favor of the defendant. The case is brought here by writ of error. There are upwards of 20 assignments of error, many-of which it will not be necessary to discuss.
The record discloses that plaintiffs, who live at Dowagiac, are attorneys who were acting for Lucy Jarvis in a claim she had against the estate of Burton Jarvis. It was expected this claim and others would be heard before the commissioners on claims at Buchanan, and on the 24th of September, 1902, Mr. Ketcham went to Buchanan to look after it. He obtained information early in the day which led him to believe that because of the hearing of other claims the hearing of this claim would not be heard that day, and, after arranging with his client what to do in case the claim was reached, he went on before noon to Benton Harbor. It became evident to Miss Jarvis later that the case would be reached on the 25th, and she communicated that fact by telephone to Mr. Sweet, who sent the following:
“Dowagiac, September24, 1902.
“To Clyde W. Ketcham,
“ Care John Doelle,
“Benton Harbor, Mich.,
“ Principal of High School.
‘ ‘Attend Buchanan case tomorrow without fail; I can’t.
“C. E. Sweet.”
Mr. Sweet heard nothing further from the telegram that day, and at 6 o’clock went to Grand Rapids. The telegram was forwarded to Benton Harbor, given to the messenger, and taken to Mr. Doelle. What then occurred is the subject of conflicting testimony. Mr. Doelle’s version is as follows:
“ After dinner we [Mr. Ketcham and Mr. Doelle] went direct to the schoolhouse. He remained until the last bell began to ring; that was about 1:30. I knew where he was going when he left. He was going to Grand Rapids on the next train. I knew from what depot that train would go. The messenger of the Western Union came to me at the high school. I know I looked at my watch when he came, to see whether he had time to go to the train and get Mr. Ketcham before the train should leave. It was either 2 o’clock or ten minutes to 2. It was between those two. I told the messenger boy that Mr. Ketcham was going to Grand Rapids on the next train, and that I thought he would have time to reach him at the depot before the train should leave. There is but one depot at Benton Harbor from which you can go, by direct route, to Grand Rapids. The boy came back between 3 o’clock and 10 minutes to 4. Said he had not found Mr. Ketcham, and I told him to forward the message to Grand Rapids, care of the State convention. I paid him 25 cents to forward the message. I ascertained from the Western Union office that the telegram had arrived at 12.53.”
On cross-examination he testified:
“ Q. So the message was delivered to you at the schoolhouse ?
“A. Yes, sir.
“ Q. And I believe you receipted for it ?
“A. I did not receipt for it.
“ Q. You are positive of that ?
“A. Yes, I am as positive as I can be.
“ Q. But it was delivered to you ?
“A. It was delivered to me; yes, sir.
“ Q. About 2 o’clock or ten minutes to 2 ?
“A. About ten minutes to 2 or 2 o’clock; yes, sir.
“ Q. I wish you would look at this delivery sheet, and answer me if this is your signature, ‘ J. Doelle ? ’
“A. Why, that looks something like it. I don’t write like that very often. u
‘ ‘ Q. That is the way you would write in pencil, isn’t it ?
11 A. Perhaps it would be; yes, sir.
“ Q. Is that your signature ?
“A. It looks like it.
“ Q. Would you say that it is not ?
“A. I won’t say that it is not.
“ Q. What do you say whether or not that is your signature or not ?
“A. I may have receipted for it the second time when he came back and I paid him the quarter to forward it. As to that I am not clear.
“Mr. Gore: We offer the delivery sheet in evidence. (Paper referred to marked £ Exhibit B’).”
Redirect examination by Mr. Kinnane:
“When I say ‘delivered it’ I mean that they brought that message to the schoolhouse thinking I was the man who knew where Mr. Keteham was. I believe I didn’t have it in my hands. I may have taken it in my hands and looked at the address. I don’t know whether I did or not. I didn’t open it, nor see it opened in my presence, and did not retain it. I told the delivery boy that Mr. Keteham was going to Grand Rapids on the next train, and I thought he would have time to get there. That was the first time. ”
The messenger testified:
“I went to dinner that day at 12:30; returned at 1:30. There were three messages waiting for me. I left the office with them about 1:35.
“ Q. I hand you delivery sheet marked ‘Exhibit B,’ dated September 24, 1902, and ask you if you had that sheet in your possession that day ?
“ A. Yes, sir. I delivered the message to Squier at 1:40. I delivered a message to Mr. Squier and one to Mr. Walton before delivering the one to Mr. Doelle. I went straight to the schoolhouse, and found Mr. Doelle, and presented the message. I think he had it in his hands, but I think I took it back to the office. I am pretty sure he had it in his hands. I saw Mr. Doelle write his signature there, ‘ J. Doelle,’ under message No. 22. I am sure. I think he made the figures ‘ 2:06.’ I think I remember his taking out his watch and putting down the time. He said Mr. Keteham had left for Grand Rapids; to forward the message there. Mr. Doelle did not say anything tó me about Mr. Keteham being at any railway station. When I reported at the office they wanted an address at Grand Rapids. I went back to the high school for an address. I went back immediately. I saw Mr. Doelle on this second occasion, and asked him for an address. And he said he didn’t know where Mr. Keteham would be that day, but the next day he would be at the State convention there; a republican convention. I went back to the office, and told them what he said, and they wanted a guaranty before they could forward the message. They told me to go back to the high school for the guaranty. I did that. That was the third time. He said he would guarantee it, and I went back to the office, and they wanted a deposit. I went back, and he said he had no money, but to come up to his house at 5 o’clock, but to forward the message as soon I got back. I went to Mr. Doelle’s that evening, and got the money at 5 o’clock at his house. 'I returned the money to Mr. Doelle some time within the t next three days. Nothing was said during any of my interviews with Mr. Doelle about going to the railway station.
“ Q. Do I understand you to say that when you first went to Mr. Doelle with this message he told you that Mr. Eetcham had left for Grand Rapids ?
“A. Yes.
“ Q. "Was that the reason you didn’t go to the station ?
“A. Yes, sir.”
On cross-examination:
“Q. You are quite positive, are you, that Mr. Doelle took out his watch and looked at it, and then wrote these figures ?
“A. Yes, sir.
“Q. ‘3:06 ’ down there ?
“A. Yes, sir; I remember. * * * When I delivered this message to Mr. Doelle, he was at the schoolhouse, in the assembly hall. He looked at his watch. I think he said it was 3:06.
“Q. And then he said to you that Mr. Eetcham had gone to Grand Rapids ?
“A. Yes.
“Q. Had gone on the train ?
“A- He said he had left for Grand Rapids. I kept the message. I didn’t go to the depot. It would have been two blocks down there to the depot and two blocks back.”
The message was not forwarded to Grand Rapids, but was returned to Dowagiac after Mr. Sweet had taken a train to Grand Rapids. It was not until the morning of the 35th, when Mr. Sweet and Mr. Eetcham met in Grand Rapids, that the latter learned a telegram had been sent, and the former that Mr. Eetcham had not received it.
What occurred at Buchanan is shown by the testimony of Miss Jarvis, which will throw light upon several important features of the case. It is as follows:
“I live in Dowagiac, and have lived there all my life. Am one of the legatees of Burton Jarvis estate. I had a claim against this estate for $391. I placed it with Sweet & Ketcham for adjustment., On September 24, 1902, I went before the commissioners on a hearing on that claim. Mr. Ketcham went with me. He went to Buchanan, and found that my case would not be heard that day. Mr. Ketcham said he would go to Benton Harbor, as he had business there, and that, in case my case would be heard the next day, he would return. He told me for any information I wished to telephone Mr. Sweet. I telephoned Mr. Sweet, and told him that my case would not be heard that day, but perhaps it would be the next day. I heard, after Mr. Ketcham had left, that I was to have my witness there the next day, and I telephoned Mr. Sweet to see this witness, and have her come, which he did. I told him Mr. Ketcham had gone to Benton Harbor, and Mr. Sweet said he would recall him, and that he would be there the next day. Afterward I talked with Mr. Sweet again over the phone. He informed me that my attorney would be on hand the next day. My attorney was not there the next day. My witness came, and I asked Mr. Roe to represent me that day; to hear Miss Allen, my witness. The hearing was not finished, and it was adjourned until the 7th of October for hearing the witness that was to appear on the other side against me. It was adjourned on motion of the other side. I left, thinking that I would come back the 7th. Then I heard that my cousin had settled, and I was nervous. Well, I settled it also.
“ Q. If your attorneys had been there, I will ask you if you had entertained any such proposition ?
“A. No.
“ Mr. Gore: We object to it, your honor, as speculating. She cannot tell. (Objection sustained; to which ruling plaintiffs, by their counsel, duly excepted.)”
On cross-examination:
“ I settled for $68. I paid Sweet & Ketcham $8. This made a total of $132 that I received — $64 of Mr. Jarvis in his lifetime and $68 from his estate. I had an arrangement with Sweet & Ketcham. Was to pay them one-half of the claim if it was allowed. If it went to circuit court, they were to have whatever the fees were.
“ Q. So that their interest in this matter was dependent upon their success ?
“A. Yes, sir. I made my settlement with Mr. Worthington, the executor of the estate, and went before the commissioners and they O. K.’d the settlement.”
On redirect examination:
“If the claim was appealed, the pay of my attorneys would not depend upon whether they won the case or not. They were then to be paid for whatever they did.”
There was other testimony offered, some of which was received and some rejected, relating to other branches, to which we deem it unnecessary to refer.
The trial judge charged the jury, among other things, as follows:
“ This is an action by plaintiffs for damages they claim they suffered by the nondelivery of a telegram by the defendant. Coming right to the points in issue, it is the duty of the telegraph company to promptly deliver any message which is given to them for transmission and delivery, and a failure to deliver promptly makes them liable in damages, and it is a question for you to find, from the facts in this case, whether there was prompt delivery of the message in question. People send messages by telegram instead of by mail because they are in need of haste, and when a message is so sent and received it must be delivered with reasonable dispatch in all cases, and, if not, the company must pay damages for failure to so deliver. And it is for you to say whether, under all the circumstances of this case, there was such prompt delivery of the message as will relieve the defendant company from liability. The telegram in question demonstrated upon its face that it was an urgent message, and must be delivered with haste, and in such case a greater degree of diligence must be exercised than if no such urgency was expressed, and you will take this into consideration in considering the facts and making up your verdict. The telegraph is resorted to by the public to secure the speediest mode of communication, and the prompt delivery is of the very essence of the undertaking by the company. Hence a failure to make such prompt delivery, if shown in this case, requires a verdict at your hands- for the plaintiffs, as hereafter indicated. If you find from the evidence that the defendant sent the message in question with reasonable promptness, and delivered the same to Mr. Doelle with reasonable diligence, your verdict must be for the defendant. On the question of prompt delivery, you are to take into account the distance of the place of delivery from the defendant’s office, the distance from the office to the schoolhouse, and the necessary time it would take to get there. The burden is on the plaintiffs to show by the preponderance of the evidence that the allegations in the declaration are true, and, if the evidence on behalf of the plaintiffs fails to do this, or such evidence is fully met by evidence on behalf of the defendant, then I instruct you that the plaintiffs cannot recover. The plaintiffs cannot recover unless by the neglect of some duty the company owed them; and, if the message was delivered to Mr. Doelle with reasonable diligence, your verdict must be for the defendant. * * *
“ If you find that the company did not deliver this telegram, as I have indicated, with such promptness as was required under the circumstances, and are liable for a failure to so deliver, then you will find for the plaintiffs such an amount as will be reasonable under all the facts in the case. In other words, if you find for plaintiffs, your verdict will be for what the services of Mr. Ketcham would reasonably be worth before the commissioners, on trying the client’s case, at the rate per day as shown by. the evidence in this case.”
The plaintiffs preferred the following request, which was refused:
“ I charge you that if you find that the messenger boy did not give the message to Doelle the first time .he (the messenger boy) came to the schoolhouse; that the messenger boy kept the message in his hand, and that Doelle did not sign the delivery sheet the first time the messenger boy came, and that Doelle only directed the messenger boy to go on to the Pere Marquette station — then. I charge you that there was no delivery of the message at this time.”
Complaint is made of the failure to give this request. It might have been well to give it, but, when taken in connection with what was given, a failure to give it was not, we think, reversible error. There was no claim there was any delivery of the message, unless the proofs disclosed there was a delivery to Mr. Doelle. In relation to that there was a conflict of testimony. The jury were told if the defendant did not deliver the message with such promptness as was required under the circumstances, they should find for the plaintiff. This was stated in several ways, so that we do not think the jury misunderstood.
The conflicting testimony presented a question of fact as to whether there had been a delivery to Mr. Doelle, which was decided by the jury in favor of the contention of defendant.
In section 414, Croswell on Electricity, it is said:
“ Although the duty of the telegraph company is to deliver to a certain person, it may not always be bound to deliver to the person for whom the telegram is intended, for, if the telegram is addressed to X., ‘in care of’ Y., the telegraph company may deliver the telegram to Y. without being guilty of any negligence even if it fails to reach X.”
In section 748, Joyce on Electric Law, it is said:
“The same rule of diligence, the same requirement of prompt delivery, and the same obligation to find the person in whose care a message is addressed, undoubtedly applies as that which governs in the delivery of messages to the addressee himself.”
Section 750 reads:
“If a person in whose care a message is sent refuses to receive or accept it, the telegraph company has fulfilled its duty in tendering it to such person.”
Section 751 reads:
“ Whefe a telegram is sent to one person m care of another, delivery to the latter is, as a rule, sufficient.”
In Western Union Tel. Co. v. Young, 77 Tex. 245, the message was directed to “Mrs. N. Young, care W. R. Henry & Co., Fort Scott, Kansas.” The court say:
“ There was evidence to show that on the morning of the day it was received for transmission, it was delivered to W. R. Henry of the firm of W. R. Henry & Co. and that he declined to forward it and handed it back to the messenger. The court instructed the jury, in effect, that if the defendant’s agent at Fort Scott tendered the message to W. R. Henry, and he declined to receive it, and gave the messenger such directions as would have enabled him to find plaintiff’s wife by the exercise of reasonable diligence, then it was the duty of the agent to use such diligence to find and deliver the message to her. We think the court erred in giving this instruction. The liability of the company must be determined by the terms of its contract. Its obligation was not' to deliver to W. R. Henry & Co. and to Mrs. Young, but to deliver to them as her agents, properly addressed to her, to be dealt with by them as they deemed best. The direction to ‘ Mrs. N. Young, care of W. R. Henry & Co.,’ has the same meaning and legal effect as it would have had if the direction had been to ‘ W. R. Henry & Co., for Mrs. Young.’ The company contracted to deliver to W. R. Henry & Co. for the benefit of the plaintiff’s wife; and when they delivered to a member of that firm their liability was at an end. The court should have so charged the jury. ”
In Western Union Tel. Co. v. Elliott, 7 Tex. Civ. App. 482, the court said:
“It is equally well settled that a delivery of the message to the person in whose care the same is addressed is a full performance of the contract by the company, so far as delivery is concerned.”
In Lefler v. Telegraph Co., 131 N. C. 355 (59 L. R. A. 477), the court say:
“The message was delivered to Johnson [the agent of the party in whose care the message was sent] in proper time, and eliminates the discussion of any negligence there may have been in sending the message, as no negligence can avail the plaintiffs that did not cause the injury.”
The court further say:
“The court properly instructed the jury that Johnson was a proper agent of the Southern Railway Company, to whom a delivery of the message might be made, and a delivery to him was a delivery to the Southern Railway Company, and, as the message was directed to Price Lefler in care of the Southern Railway Company, the said company was made his agent, and a delivery to the agent discharged the defendant from further liability on account of the message. Western Union Tel. Co. v. Houghton, 82 Tex. 561 (15 L. R. A. 129); Western Union Tel. Co. v. Young, 77 Tex. 245. These cases were cited by the plaintiffs for the purpose of showing that, although the telegram was sent in care of the Southern Railway Company, it was still the duty of the defendant to make diligent inquiry for Price Lefler, which the plaintiffs allege was not done. But upon examination of the cases it will be seen that this is only necessary when the party in whose care the message is sent cannot be found. When he is found, and delivery made to him, the defendant has nothing further to do with the telegram.”
See, also, Western Union Tel. Co. v. Barefoot, 97 Tex. 159 (64 L. R. A. 491); Western Union Tel. Co. v. Mitchell, 91 Tex. 454 (40 L. R. A. 209).
We have not overlooked the cases cited on this point by plaintiffs. In Western Union Tel. Co. v. Cooper, 71 Tex. 507 (1 L. R. A. 728), the distinction from the case at bar may be noted. In that case the message was not sent in care of a third person, and was not delivered. The messenger went twice to the office of the physician, and, failing to find him, did not look further. The messenger personally knew the physician well, and it is held in this case that diligence required that the messenger should look for the physician upon the streets. In the case at bar the message, according to the finding of the jury, was delivered to the person in whose care it was sent. An examination of the other cases cited will show they are easily distinguishable.
There is another reason why the case should be affirmed. There is no dispute as to what the contract was between Miss Jarvis and the plaintiffs. Their compensation was to depend upon a contingency. No one can say she had a claim which could certainly be enforced. It is purely conjecture whether plaintiffs, had the litigation proceeded, would have been in a position to assert a claim against her. The damages claimed are too remote, uncertain, and speculative to entitle them to recover in this action. The plaintiffs, by their declaration, seek to recover in this action only for damages to business and reputation. No evidence of loss growing out of injury to repu tation was given. The loss in the way of business which they seek to recover was their interest in the claim of Miss Jarvis against the estate of Burton Jarvis. What was that interest ? At this point we enter the realm of speculation. Miss Jarvis, though her case was adjourned at the request of the estate to October 7th, which would have given her ample opportunity to consult plaintiffs, * deemed it wise to settle the claim for $68. Suppose it had been litigated, instead of settled, who can say what the result would have been ? Upon this branch of the case we think the judge might very properly have directed a verdict in favor of defendant. 25 Am. & Eng. Enc. Law (1st Ed.), pp. 836-839, cases cited; Bodkin v. Telegraph Co., 31 Fed. 134; Baldwin w. Telegraph Co., 45 N..Y. 744; Chapman v. Telegraph Co., 90 Ky. 265; First National Bank of Barnesville v. Telegraph Co., 30 Ohio St. 555; Western Union Tel. Co. v. Graham, 1 Colo. 230; Hibbard v. Telegraph Co., 33 Wis. 558; Cahn v. Telegraph Co., 46 Fed. 40.
Judgment is affirmed.
Carpenter, McAlvay, Grant, and Hooker, JJ., concurred. | [
11,
-7,
23,
37,
3,
1,
30,
-42,
9,
7,
-17,
1,
11,
16,
-20,
-55,
-12,
-14,
42,
-75,
-4,
-41,
-23,
-38,
-19,
-65,
15,
-71,
-37,
-29,
16,
42,
-31,
7,
14,
-19,
44,
-51,
9,
-27,
-23,
1,
18,
18,
4,
6,
-6,
52,
61,
-39,
38,
-29,
-8,
3,
14,
-44,
11,
15,
21,
-28,
-29,
-30,
70,
-34,
-19,
-63,
-6,
-24,
-45,
-2,
-19,
2,
13,
1,
-8,
-5,
-34,
-27,
-80,
30,
-4,
8,
27,
-4,
16,
-22,
3,
-18,
9,
8,
-25,
13,
-79,
18,
40,
-57,
25,
18,
20,
-7,
-8,
-20,
-53,
11,
0,
8,
-37,
-25,
-47,
29,
-53,
12,
31,
-25,
-40,
-24,
28,
-8,
48,
-23,
25,
-37,
-22,
9,
2,
50,
-5,
54,
6,
-24,
-20,
32,
8,
1,
-16,
-5,
-23,
-55,
-24,
-48,
52,
-18,
-6,
-17,
-22,
6,
5,
28,
-11,
15,
-25,
24,
-22,
2,
-3,
0,
18,
-20,
4,
12,
33,
3,
-8,
-33,
-61,
-34,
-18,
-35,
26,
-4,
-35,
15,
-42,
28,
-21,
38,
-5,
-7,
-32,
-14,
1,
12,
32,
-20,
-33,
-20,
42,
26,
-29,
38,
19,
-12,
-14,
-4,
-44,
14,
8,
-43,
17,
2,
-13,
-3,
-29,
17,
-13,
-26,
97,
-22,
43,
-5,
14,
-3,
-50,
-12,
60,
13,
-26,
-47,
11,
-27,
-48,
34,
-2,
10,
-38,
-39,
-31,
11,
-24,
0,
9,
11,
-35,
5,
31,
33,
23,
-8,
20,
-17,
-36,
17,
1,
-29,
47,
-17,
-25,
-24,
-39,
45,
-34,
-6,
12,
0,
6,
0,
29,
25,
-25,
8,
8,
32,
-34,
24,
7,
0,
-17,
-18,
11,
31,
14,
-15,
6,
17,
-40,
2,
19,
24,
35,
2,
35,
-6,
-21,
40,
10,
-55,
-18,
2,
8,
-3,
-5,
14,
15,
28,
22,
2,
64,
7,
-17,
0,
-1,
23,
14,
-30,
49,
0,
-17,
-47,
0,
-11,
10,
47,
-55,
1,
28,
23,
30,
13,
-4,
-15,
-38,
14,
-35,
-19,
4,
35,
35,
5,
-54,
6,
-6,
42,
-7,
9,
-23,
6,
19,
35,
24,
-18,
9,
62,
-18,
4,
-8,
9,
-10,
-25,
16,
4,
2,
-15,
59,
-31,
5,
21,
16,
-9,
6,
33,
-14,
-30,
17,
40,
46,
21,
-25,
20,
5,
-6,
-6,
-11,
49,
-22,
-26,
-5,
18,
-3,
-29,
26,
34,
-43,
-34,
10,
44,
-63,
-10,
16,
26,
39,
-44,
-33,
-8,
34,
-14,
-24,
8,
31,
1,
-40,
37,
44,
0,
-19,
-36,
13,
-50,
-14,
-3,
29,
28,
-14,
48,
8,
4,
-22,
-4,
28,
20,
16,
-3,
83,
1,
-75,
4,
21,
65,
3,
34,
-19,
25,
-16,
25,
-18,
-10,
1,
-22,
-30,
-19,
-20,
23,
62,
-30,
14,
-7,
-8,
34,
-31,
18,
22,
0,
71,
-17,
-24,
-44,
12,
29,
7,
-13,
-22,
52,
-5,
36,
53,
11,
54,
38,
-4,
-45,
25,
-40,
12,
-30,
-23,
-18,
66,
42,
-36,
-17,
-5,
-41,
-7,
18,
-17,
-22,
-23,
41,
7,
-3,
-16,
8,
40,
-41,
1,
-29,
67,
3,
27,
-27,
20,
-21,
-17,
25,
-32,
34,
24,
10,
-38,
-3,
-14,
-30,
-18,
2,
-7,
31,
20,
4,
1,
-16,
8,
66,
-37,
-5,
-10,
-53,
59,
35,
-12,
21,
-28,
2,
-39,
-40,
-22,
16,
-6,
5,
40,
-23,
21,
26,
15,
57,
5,
-10,
6,
-29,
39,
36,
-45,
41,
20,
-35,
-80,
-1,
58,
0,
-34,
15,
0,
4,
-31,
8,
-43,
49,
-11,
-62,
52,
1,
-53,
-42,
2,
20,
0,
-49,
-1,
-42,
-3,
5,
53,
-4,
-6,
-51,
-36,
-2,
-14,
-3,
52,
-74,
15,
-10,
32,
-35,
-32,
-7,
26,
2,
4,
21,
-5,
-4,
-33,
-2,
52,
14,
27,
-31,
27,
-81,
-5,
25,
20,
43,
28,
-4,
-19,
-60,
15,
-16,
-20,
-46,
0,
-24,
62,
15,
-20,
1,
-45,
0,
-35,
40,
23,
-32,
30,
-3,
-55,
-7,
25,
-19,
7,
0,
49,
41,
-54,
-4,
22,
9,
-7,
-19,
-38,
-31,
-3,
19,
-1,
-30,
-43,
-2,
28,
1,
-1,
12,
-21,
10,
18,
-42,
-14,
19,
7,
21,
-7,
6,
-55,
-12,
-19,
21,
-25,
7,
13,
20,
31,
20,
78,
46,
-32,
20,
-22,
-26,
14,
-55,
25,
-15,
-60,
15,
24,
13,
-9,
8,
10,
0,
-14,
-29,
-61,
22,
46,
-2,
-31,
10,
13,
28,
23,
9,
43,
30,
-30,
-21,
-17,
34,
11,
-13,
-3,
32,
1,
28,
-2,
0,
0,
59,
-12,
-17,
-30,
51,
5,
-38,
15,
14,
-12,
6,
-10,
-7,
24,
-45,
-27,
-47,
-5,
-17,
35,
53,
25,
12,
5,
3,
-11,
34,
26,
27,
-37,
30,
36,
-1,
-30,
36,
-47,
46,
-113,
-27,
40,
37,
3,
-9,
31,
23,
-62,
-6,
1,
-52,
26,
26,
-2,
54,
-13,
-12,
45,
-63,
18,
44,
-49,
36,
-14,
0,
25,
32,
-39,
0,
19,
-32,
-2,
9,
-12,
-43,
5,
-29,
-86,
10,
35,
-5,
-22,
56,
71,
15,
36,
-25,
-13,
-16,
-20,
-3,
-9,
8,
3,
-48,
35,
13,
-33,
32,
-17,
4,
32,
-11,
25,
-2,
-41,
0,
-4,
35,
-69,
30,
29,
-1,
-51,
23,
43,
-31,
-12,
-1,
-4,
8,
-43,
-12,
9,
-42,
-13,
-1,
-28,
-52,
-13,
-21,
-58,
-13,
-11,
28,
-9,
-58,
-39,
-45,
26,
-26,
-20,
66,
-51,
24,
-3,
-3,
-2,
-32,
21,
-18,
12,
71,
-45,
59,
8,
-31,
-18,
13,
47,
-35,
-16,
-12,
-18,
15,
4,
17,
-23,
14,
8,
19,
-15,
19,
-29,
-9,
1,
-2,
-12,
-12,
17,
0,
-35,
8,
2,
35,
1,
31,
-28,
-82,
-75,
-13,
21,
-22,
22,
33,
6,
2,
-5,
-20,
62,
37,
6,
40,
23,
-36,
62,
12,
19,
-8,
5,
14,
23,
12,
-12,
24,
38,
-36,
16,
-55,
-11,
-10,
14,
40,
-26,
15,
25,
33,
-47,
17,
73,
-43,
38,
-17,
0,
-40,
-15,
5,
13,
31,
25,
13,
-7,
-8,
3,
-25,
-41,
-11,
-29,
19,
-18,
5,
3,
-7,
19,
75,
49,
10,
2,
-37,
71,
3,
15,
-42,
4,
-89,
-7,
9,
9,
2,
-1,
29,
-10,
-38,
2,
-16,
19,
4,
-71,
51,
53,
26,
-72,
41,
51,
-14,
-9,
-25,
14,
6,
-5,
44,
31,
40,
-30,
9,
-26,
18,
33,
-32,
41
] |
Hooker, J.
On February 81, 1884=, one Hibbard Baker platted certain land including a public street called “Custer Avenue,” which was upon the extreme north side of the plat. It was only one-half of the width of the. street at other points. Subsequently, and upon March 87, 1885, Hamlin & Brown, owners of land north of and bordering upon this portion of Custer avenue, made a plat of such land. The diagram includes so much of both plats as is necessary to show the situation:
The dedication of the Hamlin & Brown plat was shown by the following language upon the plat:
“ And we do hereby dedicate to the perpetual use of the public the streets and alleys as shown thereon, reserving to ourselves, our heirs and assigns, the reversion or reversions thereof whenever discontinued by law, excepting the north 30 feet of Custer avenue, which we reserve as a private right of way. Witness,” etc.
Sales were made by Hamlin & Brown of many of the lots in their plat before 1890, and most of the others after-wards. The plat shows a strip of ground 30 feet wide adjoining Custer avenue on the north, marked “Private Way.” The three most westerly lots front Woodward avenue and the southerly one is owned by the defendant, while the complainant owns the first lot east of an alley, by which it is separated from defendant’s parcel. The defendant has fenced in that portion of the land marked “ Private Way ” which lies south of his lot, and complainant’s bill is filed to compel him. to remove this fence. Complainant prevailed in the circuit court, and defendant has appealed.
The. defendant claims to own the parcel inclosed in fee. It was assessed for city taxes for the year 1890, and duly sold and bid in by defendant for delinquent taxes for that year, and defendant obtained a city tax lease thereof for 99 years. Again, on the 13th of March, 1894, Brown conveyed to Hamlin this parcel, and he in turn deeded it to the defendant on the same day. Immediately thereafter defendant fenced the land.
Complainant’s parcel was deeded to him as lot 300, according to the plat, by a grantee of Hamlin & Brown, who bought of them in 1899. The complainant claims that the effect of the plat was the dedication of this private right of way, throughout its entire length, as an appurtenance of the several lots in the addition. Defend^ ant, on the other hand, contends that the private way was reserved in fee to the persons who made the plat, and that he has acquired their title through the tax deed and other deeds referred to. At the time the Hamlin & Brown plat was made, the land proposed to be platted was bounded upon the south by a street (Custer avenue) of half width, dedicated the year before by the Hibbard Baker plat. To make it a Street of the usual width, it was necessary to take land belonging to Hamlin & Brown. Apparently they were unwilling to dedicate this land, perhaps for the reason that it would have been without compensation. The plat shows what they did, and we must determine its effect upon the title.
It is a reasonable supposition that there was an intention to keep this strip of land with a view to its ultimate condemnation for widening Custer avenue. If this is so, it is reasonable to say that they undertook to reserve this title to themselves, so that they would receive the compensation when it should be condemned. If it was intended to convey the fee to the prospective purchasers of the lots, the proprietors might as well have dedicated the street to the public, for it is improbable that they reserved a right of way for themselves merely, when a public street would do as well, or that they intended to convey a fee to subsequent purchasers as a gratuity. We are therefore of the opinion that this plat indicates a reservation of the title in fee to the makers of the plat, and that it was the intention of the owners to give the lot owners access to Custer avenue over this land. It may be that its effect was to give all purchasers of lots a right of way over the entire strip. That, however, is not an important question here, for it cannot affect the result. The strip being reserved in fee by the owners of the land, it was subject to taxation like other land. The plat shows that it was not a part of the respective lots. At the most it was an easement appurtenant to them. If it be said that such appurtenance was included in the assessment of a lot, it still left the fee to be assessed to the true owner and this was presumably done. Being sold for taxes to the defendant, he acquired all of the estate that was assessed, if the proceedings were regular. They are not before us, and we do not pass upon the effect of this tax deed, it being unnecessary to a disposition of. the cause.
It clearly appears that in 1894, while Hamlin & Brown still owned the premises now claimed by the complainant, they sold to the defendant’s grantor their interest in the parcel involved here. This must have deprived the lots then owned by them of an appurtenant easement. If not, it is not apparent how it could be done. We conclude, therefore, that, although purchasers of lots from Hamlin might, under the terms of their deeds, have an easement over this entire strip (which we do not decide) by reason of the sale with reference to the plat, such right would depend upon the grantors’ ability to convey such easement, which they could not do in this case, because they had already parted with all interest in the land.
We are therefore constrained to reverse the decree and dismiss complainant’s bill, with costs of both courts.
Moore, C. J., and Carpenter, McAlvay, and Grant, JJ., concurred. | [
23,
70,
29,
-13,
6,
-2,
36,
-15,
52,
11,
-13,
-34,
7,
40,
65,
50,
-43,
-14,
-12,
34,
-12,
-12,
-67,
-16,
33,
13,
24,
-15,
-36,
20,
49,
-27,
-2,
32,
6,
68,
14,
19,
20,
7,
12,
2,
-41,
-34,
47,
40,
-4,
-48,
19,
-34,
-40,
14,
20,
-25,
-23,
-9,
-57,
31,
4,
20,
-42,
13,
-20,
0,
1,
8,
16,
6,
2,
-61,
-34,
-26,
10,
-8,
13,
1,
-2,
25,
0,
-19,
-22,
21,
-13,
-21,
17,
-10,
5,
-34,
63,
-6,
5,
-5,
34,
69,
1,
79,
-9,
36,
-12,
-2,
-9,
6,
-47,
-2,
0,
-27,
-37,
-38,
44,
25,
8,
-21,
1,
-24,
20,
-14,
7,
-31,
38,
-4,
5,
-51,
4,
10,
-17,
52,
-81,
22,
-14,
-31,
-4,
-21,
-23,
-40,
55,
49,
-15,
1,
27,
57,
20,
4,
-77,
11,
24,
-29,
-11,
30,
-9,
-21,
-1,
21,
0,
-31,
22,
-21,
50,
28,
-1,
19,
-38,
-57,
32,
-25,
-33,
46,
-35,
1,
-32,
22,
28,
0,
27,
-39,
33,
-34,
36,
16,
-49,
-11,
-1,
-42,
-1,
-11,
-8,
-49,
-17,
-28,
-19,
-26,
9,
-21,
-12,
-3,
24,
7,
-8,
-34,
-40,
2,
4,
0,
20,
18,
-25,
-51,
30,
39,
-30,
3,
-33,
21,
4,
8,
20,
0,
1,
-2,
48,
0,
25,
0,
7,
-13,
-4,
20,
5,
-47,
30,
3,
-15,
-20,
-21,
-41,
-45,
12,
-18,
-6,
-39,
10,
32,
39,
-30,
-32,
-43,
68,
-7,
9,
-19,
48,
1,
-19,
-76,
26,
-2,
-4,
-27,
-17,
12,
12,
18,
26,
6,
-10,
46,
-8,
10,
-26,
-41,
18,
-52,
74,
19,
30,
-83,
-35,
-31,
-60,
-17,
3,
41,
-33,
28,
35,
4,
12,
18,
24,
20,
-16,
-18,
-30,
-32,
7,
-15,
-34,
6,
-17,
49,
-40,
-47,
39,
7,
-15,
45,
-8,
41,
-17,
68,
69,
55,
0,
-21,
-32,
-21,
0,
53,
7,
-19,
-4,
-1,
30,
-10,
-10,
2,
22,
12,
13,
-23,
-1,
51,
-15,
-5,
67,
-1,
7,
57,
22,
-29,
-18,
-7,
16,
42,
29,
35,
5,
-36,
52,
4,
-7,
4,
-35,
-38,
0,
-63,
-27,
-47,
12,
0,
35,
24,
-9,
25,
-34,
-45,
-23,
-75,
1,
39,
-19,
3,
11,
-44,
30,
32,
-14,
19,
-24,
-10,
47,
24,
-67,
22,
37,
22,
-24,
-3,
-47,
-32,
-43,
-31,
2,
13,
31,
6,
-23,
10,
-23,
-42,
-22,
8,
31,
19,
44,
-31,
-13,
13,
44,
21,
14,
10,
-32,
23,
-28,
-11,
23,
-25,
-16,
-8,
18,
34,
38,
11,
-8,
-16,
-7,
55,
18,
-48,
51,
-18,
7,
52,
-5,
44,
4,
-18,
-32,
-7,
-44,
-22,
21,
14,
30,
-20,
-17,
-34,
18,
11,
30,
17,
27,
-17,
1,
-67,
-2,
79,
-22,
32,
32,
34,
20,
37,
0,
-20,
-30,
-36,
0,
-40,
44,
-9,
39,
-14,
-32,
-23,
-22,
22,
-18,
17,
-1,
-7,
-42,
26,
54,
-8,
-36,
-6,
34,
-1,
11,
27,
7,
-11,
-77,
86,
16,
5,
-2,
38,
25,
-1,
37,
-17,
-43,
-12,
-7,
3,
-17,
-20,
13,
-22,
-44,
-5,
11,
34,
45,
-5,
-31,
2,
-42,
29,
-36,
-18,
-15,
0,
3,
48,
1,
-7,
-15,
-18,
5,
-56,
-20,
-72,
-9,
-19,
13,
3,
-21,
-30,
0,
24,
19,
-34,
33,
50,
16,
7,
-48,
-11,
-25,
18,
9,
-52,
35,
-33,
-59,
14,
45,
-46,
-2,
31,
-33,
20,
-3,
3,
-48,
0,
54,
-57,
-11,
36,
-23,
-23,
-17,
-31,
16,
-12,
40,
-20,
-18,
-12,
-64,
16,
39,
62,
22,
16,
33,
-34,
-37,
-43,
-2,
-6,
13,
5,
78,
-3,
1,
40,
-44,
-31,
-33,
-8,
-65,
-26,
0,
25,
-16,
3,
10,
-37,
62,
26,
26,
-9,
-23,
40,
-6,
-32,
-33,
-46,
-38,
32,
-29,
-16,
3,
-30,
10,
38,
-23,
-7,
32,
23,
-27,
50,
1,
10,
4,
8,
-2,
-64,
-19,
-38,
41,
-57,
16,
1,
8,
-2,
21,
70,
-13,
-2,
4,
-13,
3,
36,
-27,
22,
27,
17,
10,
-23,
-29,
2,
-25,
0,
6,
-24,
8,
21,
21,
2,
-4,
0,
42,
44,
-17,
24,
-9,
16,
-6,
5,
-8,
-8,
28,
7,
0,
13,
2,
6,
-28,
-5,
7,
5,
-26,
14,
-5,
-32,
1,
11,
33,
19,
-13,
15,
-7,
-30,
-27,
30,
-1,
-11,
30,
12,
13,
-12,
37,
38,
-8,
71,
-13,
-52,
-52,
27,
-13,
-9,
-6,
-39,
29,
35,
12,
12,
-19,
-50,
59,
-11,
10,
27,
-33,
-29,
-26,
-32,
51,
-79,
-22,
27,
6,
-73,
51,
-9,
11,
-2,
41,
33,
-59,
-49,
8,
-17,
-17,
-31,
4,
-76,
13,
11,
37,
4,
-21,
9,
-12,
-33,
8,
-56,
16,
-13,
-16,
-18,
14,
40,
-42,
-14,
-52,
2,
-7,
9,
23,
33,
25,
38,
1,
-3,
-20,
-39,
-31,
-62,
33,
0,
-53,
25,
-8,
-24,
4,
-39,
-2,
-26,
-11,
-11,
73,
14,
8,
-11,
-16,
-17,
-59,
-19,
32,
9,
43,
13,
0,
-16,
-25,
0,
10,
-40,
0,
2,
-7,
45,
5,
21,
3,
9,
2,
-16,
-4,
-8,
4,
-10,
5,
-52,
-2,
-29,
-26,
18,
13,
3,
17,
38,
-41,
-47,
25,
-5,
8,
-33,
-33,
0,
7,
-19,
-1,
62,
-23,
-29,
3,
-24,
-16,
5,
4,
25,
6,
-34,
36,
33,
32,
31,
-25,
29,
-37,
-42,
-38,
-15,
1,
-20,
3,
-40,
-12,
38,
-11,
8,
4,
11,
22,
-26,
60,
-15,
-29,
-9,
24,
41,
-19,
-71,
6,
39,
-2,
-28,
-9,
-5,
31,
13,
-21,
53,
-53,
-20,
-44,
-40,
-20,
-27,
-21,
-29,
9,
27,
26,
-67,
31,
-22,
-3,
13,
0,
-17,
77,
10,
39,
0,
10,
17,
-12,
49,
-51,
-19,
4,
35,
38,
23,
18,
-42,
-27,
2,
-6,
7,
-42,
-12,
-9,
2,
47,
-8,
-20,
-86,
12,
-26,
-48,
36,
33,
-20,
-67,
21,
-4,
27,
15,
-1,
7,
-15,
-25,
-5,
-15,
35,
-11,
-36,
20,
2,
10,
49,
-16,
21,
73,
-13,
42,
60,
-2,
1,
18,
22,
-7,
-24,
6,
30,
5,
-5,
47,
-22,
-30,
28,
54,
1,
26,
-14,
-6,
55,
-36,
16,
-7,
-68,
24,
15,
18,
-7,
53,
-9,
29,
48,
-30,
-7,
23,
-20,
24
] |
Christiancy J.:
Was the bond properly admitted in evidence? This is the first and most important question in the case.
The declaration is upon a bond described as the bond of all the defendants below — Charles R. Fox (master of the steamer Empire), Thomas D. Gilbert and Francis B. Gilbert, sealed with their respective seals — and the obligation to pay is described as the joint obligation of all.
The bond offered in evidence describes the obligors as Charles R. Fox (present master of the steamer Empire), and Gilbert & Co., and is conditioned that the said Charles R. Fox, and Gilbert & Co. shall pay, &c., and signed
“Charles R Fox, [SEAL."]
“ Gilbert & Co. [SEAL."]
The individual names of the Gilberts do not appear upon the bond. It was however proved that Thomas D. Gilbert and Francis B. Gilbert were, at the date of the bond, partners composing the firm of Gilbert & Co., and that the said Thomas D. Gilbert executed the bond in the name of the firm. But no evidence was; given or offered, showing or tending to show that the bond was executed by the single partner in the presence of the other partner, nor that the other partner ¡had previously assented to its execution, nor that he subsequently recognized or ratified it as the act or obligation of the firm.
We understand the general rule of law to be well settled, that (with the exception of the release of a debt, which stands upon peculiar grounds , one partner can not execute a specialty binding, as such, upon the firm, without express authority for that purpose under seal. The English decisions recognize but a single exception to this rule, and that is when the single partner executes the instrument in the presence, and with the assent of^the other member or members of the firm.
But, by the general current of American authorities, the instrument may also be sustained against the firm by proof of prior • parol assent, or subsequent parol ratification by the other member.
We are aware of no case which goes further. See the authorities collected in Story on Cont. §§218, 220; Story on Part. § 117 et seq.; Collyer on Part. (Perkins ed.) §§462 to 467.
The bond in this case was not admissible under the g’eneral rule, and no evidence was given tending to bring it within any of the recognized exceptions to the rule. It was therefore improperly admitted. The bond not being in evidence, and all the other questions raised in the case being dependent upon the bond, such dependent questions have no bearing upon the case before us, and we do not deem it necessary to notice them here.
The judgment must be reversed with costs, and a new trial ordered.
Manning and Campbell JJ., concurred.
Martin Ch. J. was absent. | [
58,
-30,
18,
-47,
-12,
15,
6,
0,
64,
-3,
-1,
17,
-18,
4,
21,
48,
10,
8,
20,
-35,
9,
-20,
-46,
-47,
-22,
-9,
36,
44,
38,
-1,
36,
0,
-49,
43,
-33,
26,
23,
-17,
16,
-58,
36,
-4,
34,
-51,
-29,
31,
-9,
-72,
-10,
-71,
30,
-5,
57,
18,
-16,
13,
-5,
34,
-6,
7,
43,
-73,
3,
-4,
-128,
-23,
6,
28,
23,
-13,
-2,
28,
52,
70,
-44,
-30,
18,
-16,
3,
-11,
-24,
-21,
-6,
-51,
-9,
-25,
-13,
1,
64,
25,
10,
-19,
-28,
-32,
-73,
19,
12,
-33,
-30,
44,
17,
-23,
-93,
-2,
14,
30,
-17,
-36,
-26,
16,
37,
39,
55,
-35,
-54,
-2,
-26,
-52,
8,
-38,
11,
-23,
7,
-40,
-39,
-12,
4,
-93,
6,
-11,
24,
14,
-43,
16,
14,
6,
-22,
-7,
21,
-9,
32,
59,
-16,
-15,
-8,
5,
16,
16,
7,
4,
-22,
68,
22,
-6,
-39,
21,
26,
-38,
44,
-42,
40,
19,
-37,
-11,
-12,
-17,
11,
-10,
-1,
32,
14,
70,
-38,
4,
22,
9,
-12,
-49,
-22,
26,
-30,
6,
-40,
7,
48,
-14,
35,
53,
-45,
9,
12,
-7,
-42,
47,
-5,
47,
-4,
-13,
0,
43,
4,
-10,
-24,
12,
-20,
0,
75,
23,
21,
7,
-5,
23,
15,
-1,
-30,
3,
-4,
15,
39,
7,
35,
20,
-21,
38,
-3,
-87,
13,
46,
33,
6,
-71,
62,
-14,
10,
5,
-24,
-28,
-18,
14,
-4,
-9,
-1,
-22,
-11,
20,
-61,
9,
-1,
5,
-13,
-30,
30,
26,
26,
-33,
20,
-23,
4,
-12,
-5,
2,
5,
-80,
0,
-37,
-41,
6,
-16,
28,
19,
7,
-27,
3,
4,
54,
-9,
-28,
17,
-39,
-8,
3,
26,
-29,
60,
-21,
-31,
3,
-19,
-26,
-36,
43,
-13,
18,
-20,
68,
39,
-8,
3,
-14,
-4,
72,
24,
8,
46,
6,
15,
-10,
69,
-42,
-18,
-41,
10,
24,
-27,
64,
48,
16,
-5,
12,
-13,
-66,
62,
10,
-64,
55,
30,
4,
-18,
-13,
3,
1,
21,
28,
-2,
-60,
43,
20,
-19,
18,
6,
-3,
1,
-1,
-60,
-47,
-37,
1,
-77,
-22,
2,
-7,
13,
-55,
-10,
-13,
60,
-36,
-13,
10,
63,
18,
-19,
11,
28,
-19,
-46,
-34,
-5,
10,
43,
32,
23,
-41,
-17,
-51,
-4,
22,
24,
-71,
41,
-45,
33,
0,
31,
22,
-4,
-23,
-9,
-37,
7,
-34,
14,
2,
18,
-15,
20,
25,
-39,
-44,
-10,
9,
38,
8,
-35,
-43,
36,
17,
-10,
-21,
15,
13,
44,
12,
-45,
-8,
-65,
27,
-18,
9,
-12,
-7,
-37,
49,
27,
-4,
-67,
-7,
43,
-56,
-23,
-14,
4,
30,
3,
-24,
-30,
-68,
1,
-37,
32,
0,
5,
18,
28,
0,
-1,
8,
10,
16,
2,
-1,
19,
0,
49,
10,
51,
-36,
4,
56,
10,
15,
-2,
56,
53,
-5,
-15,
23,
-43,
8,
-23,
-10,
-27,
56,
27,
-100,
-60,
25,
13,
6,
26,
-9,
47,
40,
10,
-34,
-7,
-30,
-38,
4,
36,
-24,
13,
0,
-39,
-45,
39,
-37,
-43,
-18,
4,
8,
23,
-63,
11,
-19,
37,
4,
-17,
24,
9,
11,
-26,
-4,
27,
-15,
-9,
-11,
-1,
-47,
36,
21,
-7,
-39,
46,
-20,
-1,
-24,
-12,
-16,
3,
4,
35,
17,
31,
7,
-8,
11,
25,
30,
-26,
-14,
36,
-12,
65,
-39,
13,
29,
-21,
3,
3,
-41,
13,
51,
27,
-24,
-11,
59,
18,
-33,
-4,
-20,
-34,
-9,
6,
13,
-32,
35,
-11,
33,
-73,
-18,
31,
-27,
38,
-22,
-31,
-19,
23,
25,
-31,
-42,
-26,
-13,
-51,
-1,
24,
-50,
19,
-16,
-27,
-28,
42,
-28,
-6,
-45,
-3,
-5,
9,
7,
73,
35,
-22,
-19,
-33,
10,
-18,
-5,
20,
26,
16,
32,
-7,
37,
11,
-8,
-6,
-4,
-11,
-26,
24,
-13,
10,
-31,
-28,
28,
-2,
-30,
-54,
50,
26,
-8,
-15,
-65,
89,
-33,
28,
-15,
70,
69,
17,
16,
11,
31,
-19,
-11,
54,
-35,
0,
49,
-30,
-6,
-23,
36,
-5,
18,
22,
-33,
-8,
-37,
-13,
6,
-26,
9,
11,
10,
39,
-18,
34,
-4,
-29,
65,
-70,
-2,
-12,
17,
32,
-9,
27,
-36,
3,
16,
-36,
12,
-17,
-13,
23,
-61,
0,
-31,
9,
-8,
29,
-15,
-15,
19,
28,
64,
-31,
-39,
15,
37,
-65,
-30,
55,
-2,
-49,
25,
32,
2,
8,
63,
-2,
-4,
34,
9,
-25,
-31,
18,
2,
-35,
22,
-38,
26,
27,
-59,
37,
-22,
13,
-63,
11,
16,
-87,
-14,
-15,
-11,
38,
8,
-46,
-21,
-23,
-37,
-13,
23,
26,
-18,
0,
-29,
-5,
30,
37,
46,
39,
13,
18,
3,
29,
-70,
3,
12,
26,
-18,
48,
-22,
-24,
-40,
57,
-17,
10,
2,
-7,
-3,
-58,
40,
10,
7,
43,
49,
8,
6,
13,
15,
-42,
-26,
21,
-25,
-21,
-15,
-29,
-15,
7,
1,
-25,
-17,
46,
-11,
-21,
-2,
-4,
3,
14,
-34,
-17,
-29,
28,
4,
-3,
21,
38,
44,
7,
-30,
-45,
-25,
-42,
-14,
-4,
-3,
-39,
14,
-10,
-78,
66,
45,
43,
-16,
18,
10,
-24,
-8,
-27,
29,
-7,
-34,
21,
33,
24,
14,
-4,
-4,
-32,
15,
-7,
28,
-6,
-10,
-11,
-53,
15,
-9,
-33,
20,
47,
25,
2,
-60,
-23,
25,
-11,
16,
-18,
0,
3,
-27,
-4,
22,
-50,
-6,
14,
8,
-16,
1,
-4,
-18,
29,
9,
30,
5,
-41,
-4,
54,
8,
12,
8,
-15,
-13,
-61,
37,
-54,
8,
2,
5,
-67,
35,
11,
27,
-30,
33,
-31,
24,
54,
-33,
-18,
36,
30,
33,
4,
35,
-5,
3,
28,
56,
-9,
36,
-29,
-25,
57,
21,
39,
11,
34,
38,
-19,
-7,
5,
-36,
-13,
0,
41,
-26,
20,
-32,
15,
7,
-2,
15,
-40,
10,
-19,
-23,
23,
79,
-32,
-77,
-7,
-28,
18,
-7,
-11,
31,
19,
-37,
28,
34,
15,
-34,
-67,
0,
-21,
-59,
1,
-5,
83,
-6,
10,
-22,
36,
-16,
-12,
10,
-2,
21,
-5,
17,
-16,
-52,
-42,
29,
-58,
-16,
13,
16,
26,
-43,
24,
22,
-37,
49,
11,
-5,
-19,
0,
-23,
-56,
-5,
-11,
-69,
34,
5,
-65,
-81,
-28,
-13,
50,
26,
15,
-35,
16,
102,
18,
-25,
-42,
4,
46,
22,
7,
25,
-67,
25,
40,
-35,
13,
26,
-1,
46
] |
Manning J.:
It would be useless to attempt to reconcile the numerous conflicting cases cited and commented on by counsel on the argument. In such circumstances, the court must be governed in the conclusion it may |come to more by legal principles than by reported cases, which frequently are but evidence of the application of such principles to a particular state of facts. It sometimes happens that evidence which is admissible for one purpose is wholly inadmissible for another and different purpose. In such cases to reject the evidence entirely, might work as great injury to the party offering it, as its admission could possibly do to the opposite party. To obviate this difficulty as far as practicable, the evidence is admitted with instructions to the jury to use it for a particular purpose, and that only, and not for all the purposes of the suit. Once before the jury, it may, notwithstanding the instructions oi the court, have more or less weight with them on other parts of the case. Of the two evils, the rejection of the evidence entirely, or its admission for a particular purpose, with instructions to the jury to disregard it for any and all other purposes, the latter is supposed to be least objectionable, and therefore has been adopted by courts as the rule in all such cases. Now we can not but think the great contrariety of decisions on the question before us has arisen, in part, from overlooking this rule; and in part from inadvertence to the two distinct elements that enter into and form the basis for damages in this class of cases. The fair reputation of the person slandered, and the quo animo of the slanderer, are, we believe, admitted by all of the cases to be taken into consideration by the jury is assessing the damages. But in some of the reported cases where the defendant, to-disprove a malicious intent, has offered to show what he said was public rumor, and was spoken of by him as such, or had been told to him by another whose name he mentioned at the time, the evidence has been rejected on one or both of the following grounds, viz: 1st. That it did not prove the truth of the words uttered; or, 2d. That to ad mit it would be allowing the slander to be given in evidence to asperse the plaintiff’s reputation, and to the extent of the injury it had done his reputation, to lessen his claim for damages. Both reasons are fallacious, as tlm evidence is not offered for either of those purposes, but tojshow the quo animo of the defendant — 'Whether in uttering the words spoken by him he was prompted by feelings of hostility to the plaintiff, or by a gossiping tongue, or by nothing more than the common inclination prevalent among friends and associates when together to speak of the news of the day. Not to admit the evidence would be placing one who should read a slanderous article from a newspaper, in the presence and hearing of others, on a level with the author of .the slander. The law is too discriminating in meting out justice'to lay itself open to the charge of so gross a blunder. It is said the slanderer may secretly rejoice within himself at the slanderous rumor, or at the defamatory tale that has been told him, and use it as a cloak to conceal the stiletto with which he stabs the reputation of another ; or that he may have been the author of the rumor he asks the law to interpose as a shield between him and his adversary, when called on to account for his conduct. This is one extreme; the other may be found in the case already mentioned of reading from a newspaper. Shall both be mulcted in the same amount of damages ? Is the quo animo the same? Does the law make no distinction between them? And between these extremes every variety of cases may be found, filling up the intervening space. To enable the jury to do justice in each, the facts attending and surrounding each must be permitted to go before them, with instructions from the court to take them into consideration in assessing plaintiff’s damages, but for no other purpose. The judgment must be reversed.
Christianoy and Campbell JJ. concurred. Martin Ch. J. was absent. | [
-4,
-7,
37,
-15,
3,
-38,
-1,
7,
-26,
62,
31,
-29,
44,
0,
-27,
-17,
-34,
-32,
-17,
-95,
13,
29,
-2,
5,
27,
-5,
14,
-8,
21,
-35,
-10,
43,
-34,
-2,
-40,
-56,
41,
8,
4,
5,
7,
-22,
26,
-64,
1,
8,
-26,
-17,
-18,
6,
31,
12,
24,
-33,
-9,
-6,
2,
95,
26,
2,
-3,
11,
-29,
-66,
1,
-9,
12,
-24,
-37,
-41,
-73,
55,
12,
-70,
4,
-102,
27,
5,
8,
12,
0,
29,
23,
2,
21,
-7,
52,
10,
-17,
18,
3,
-37,
-11,
-47,
-46,
-3,
84,
29,
3,
22,
12,
12,
-8,
-52,
-14,
36,
-24,
-3,
-5,
7,
22,
0,
22,
-39,
11,
-14,
25,
12,
0,
-43,
8,
8,
10,
43,
2,
51,
48,
-32,
-23,
-21,
18,
36,
22,
49,
-4,
-26,
-8,
-19,
11,
-11,
-19,
6,
27,
2,
-17,
45,
-16,
-6,
-8,
34,
7,
-1,
-9,
-43,
-49,
-53,
8,
-76,
62,
-1,
18,
74,
-53,
-4,
17,
-3,
-60,
-25,
39,
-12,
-41,
23,
38,
73,
3,
12,
-24,
-43,
-31,
28,
-8,
20,
38,
7,
-19,
-16,
-44,
0,
-38,
9,
25,
-3,
6,
35,
96,
-21,
-21,
4,
59,
-59,
-24,
-30,
-39,
2,
-19,
47,
-21,
-13,
-4,
38,
-13,
63,
-12,
-25,
36,
-43,
-2,
-29,
-14,
29,
-15,
-4,
-1,
-52,
-4,
-14,
-34,
13,
28,
-2,
-15,
58,
-54,
-14,
30,
-26,
23,
48,
30,
-6,
-13,
43,
17,
-12,
0,
-9,
27,
42,
31,
-27,
10,
5,
61,
25,
-35,
-45,
-5,
11,
-35,
-52,
-41,
76,
20,
13,
-23,
-2,
39,
21,
5,
29,
11,
-7,
21,
15,
-6,
-26,
-72,
-3,
-8,
0,
-4,
52,
17,
-33,
-39,
-31,
-59,
35,
9,
23,
83,
-15,
-17,
5,
30,
54,
17,
7,
10,
11,
43,
-55,
21,
15,
-17,
-18,
-18,
-14,
9,
-7,
-8,
50,
-20,
44,
39,
43,
-7,
-12,
42,
-59,
5,
-32,
1,
-70,
-16,
-65,
23,
-73,
-66,
1,
-28,
19,
-4,
-3,
29,
-28,
12,
-22,
-9,
0,
2,
-48,
-31,
-38,
14,
33,
-15,
-29,
-9,
-39,
27,
19,
-55,
11,
-17,
-20,
-32,
-6,
27,
-19,
-23,
-1,
-16,
16,
9,
-9,
-13,
-22,
32,
21,
-31,
-65,
-29,
-14,
-19,
-57,
30,
-1,
-40,
16,
-66,
18,
50,
-24,
12,
10,
-39,
-4,
-4,
-1,
-45,
-20,
12,
4,
-19,
13,
-28,
14,
8,
9,
-34,
35,
-23,
-81,
-13,
4,
-2,
-59,
-18,
36,
6,
46,
-22,
41,
-6,
-11,
37,
-31,
41,
-2,
48,
-15,
37,
28,
28,
-23,
-28,
-9,
-31,
-65,
-5,
49,
-4,
-39,
-36,
22,
29,
-24,
56,
-48,
-43,
-2,
-27,
7,
-21,
12,
24,
34,
-10,
-2,
-16,
9,
10,
-70,
28,
3,
-17,
-26,
38,
52,
43,
-27,
12,
-62,
5,
-22,
-50,
-42,
37,
0,
86,
-5,
-2,
38,
7,
10,
-4,
53,
-3,
-23,
44,
48,
27,
10,
-11,
37,
16,
-2,
42,
-39,
-26,
3,
-62,
-10,
-70,
-5,
63,
-37,
-51,
3,
8,
62,
-17,
-48,
17,
7,
59,
-37,
67,
24,
23,
22,
12,
21,
-19,
31,
6,
-7,
-43,
-25,
27,
-25,
-29,
-74,
-7,
-58,
20,
-37,
-7,
-51,
43,
18,
39,
22,
71,
31,
12,
-49,
26,
21,
-64,
28,
50,
-4,
25,
-2,
16,
1,
36,
22,
-15,
17,
62,
17,
14,
5,
-7,
-26,
10,
5,
-23,
-10,
16,
-10,
33,
-3,
-20,
-3,
27,
-15,
21,
-41,
-1,
70,
-52,
5,
69,
21,
-15,
-13,
-43,
-14,
-30,
9,
-17,
-31,
1,
-20,
25,
-19,
-34,
-35,
17,
-56,
-29,
-62,
0,
-20,
8,
64,
26,
-8,
-12,
-37,
-31,
4,
-6,
-29,
-55,
11,
51,
-34,
-26,
16,
-2,
-17,
-29,
30,
-6,
75,
-2,
6,
1,
-24,
8,
-4,
35,
7,
-19,
-40,
-39,
-3,
-23,
32,
-3,
-28,
30,
-5,
-41,
-4,
41,
55,
-5,
4,
49,
-1,
-23,
39,
-8,
-31,
18,
2,
-1,
-40,
6,
19,
2,
0,
-17,
1,
-38,
-41,
8,
7,
-25,
27,
46,
22,
13,
-74,
23,
-3,
8,
38,
14,
1,
40,
-5,
-21,
10,
12,
-39,
-6,
-37,
-35,
77,
-3,
25,
-25,
28,
30,
-52,
1,
6,
68,
-21,
23,
-2,
19,
-25,
-24,
-73,
11,
-32,
26,
-34,
12,
-4,
33,
36,
47,
-9,
-33,
-20,
-15,
-8,
2,
55,
-12,
-22,
15,
-8,
54,
0,
19,
0,
77,
50,
48,
4,
31,
-44,
-21,
16,
-27,
55,
56,
-29,
-8,
6,
-27,
31,
38,
-21,
11,
10,
47,
-6,
-6,
26,
35,
-9,
34,
-16,
-23,
26,
-10,
-8,
-58,
-1,
19,
3,
-36,
-35,
-27,
2,
8,
1,
-12,
-33,
-35,
-56,
101,
39,
-54,
29,
-28,
1,
25,
64,
19,
-23,
-53,
32,
-1,
-39,
1,
-13,
-27,
18,
13,
0,
-24,
49,
26,
-17,
-10,
-92,
-50,
-17,
19,
10,
-10,
-6,
-88,
7,
-44,
22,
7,
-37,
3,
12,
-32,
-25,
-32,
-37,
8,
-19,
-4,
-8,
12,
-2,
-28,
9,
-8,
19,
-9,
-66,
-5,
-38,
71,
-7,
-13,
16,
34,
7,
-12,
4,
-28,
-24,
-1,
-6,
-14,
62,
11,
3,
-29,
22,
23,
7,
-14,
28,
27,
25,
17,
-65,
14,
-17,
20,
35,
-14,
14,
12,
-37,
29,
68,
36,
4,
56,
-28,
0,
31,
52,
-32,
-2,
22,
-9,
-27,
-59,
35,
32,
-29,
-60,
25,
-3,
-28,
16,
-39,
4,
2,
75,
15,
74,
53,
-8,
-22,
1,
-12,
22,
21,
-2,
-33,
20,
83,
15,
-57,
37,
13,
-14,
41,
14,
-18,
21,
-14,
59,
42,
35,
19,
46,
2,
46,
38,
37,
-12,
-14,
2,
-7,
36,
-31,
34,
-20,
-16,
6,
-34,
45,
37,
-72,
-39,
9,
50,
-34,
-62,
-25,
9,
-8,
20,
-73,
22,
2,
-23,
28,
19,
-30,
13,
16,
-50,
23,
-9,
-25,
25,
18,
58,
-33,
2,
7,
39,
-4,
11,
-17,
13,
8,
-8,
-12,
-55,
-10,
-29,
25,
-49,
-75,
-2,
-27,
-7,
-31,
-4,
-40,
10,
33,
-1,
-6,
-18,
-53,
20,
-30,
-14,
-74,
27,
-11,
13,
-9,
-58,
-42,
52,
-5,
10,
12,
20,
24,
70,
14,
-33,
1,
-36,
-18,
46,
-46,
-8,
12,
1,
-3,
-21,
-11,
79,
-17,
-2
] |
The Court
held that it had no power to grant the motion. Notwithstanding the exceptions, the cause still remains in the Court below; and as the statute does not confer upon this Court the power to take bail, it does not possess it. The authority over that subject remains in the Circuit Court. | [
-35,
5,
-50,
-15,
6,
11,
70,
17,
16,
-5,
7,
23,
5,
-47,
26,
-12,
34,
34,
-5,
6,
-8,
18,
44,
-27,
-1,
-25,
39,
-27,
-64,
37,
40,
-22,
-47,
46,
-22,
67,
-39,
9,
31,
7,
4,
9,
3,
27,
3,
-46,
32,
15,
-18,
-21,
-22,
32,
-38,
19,
7,
12,
-17,
-57,
-6,
36,
-17,
31,
19,
59,
-53,
11,
-64,
-31,
-17,
-30,
-31,
20,
-60,
29,
48,
19,
-46,
18,
19,
-11,
70,
-3,
-10,
35,
64,
-67,
-24,
-48,
0,
-44,
-57,
-1,
-97,
-29,
-21,
47,
-3,
-39,
12,
-7,
-7,
19,
-51,
-1,
30,
24,
-8,
-16,
-47,
-18,
-50,
19,
-39,
14,
54,
-9,
-16,
-25,
0,
-26,
-19,
14,
40,
27,
-14,
46,
-40,
-7,
33,
-4,
-6,
17,
18,
-8,
-32,
-39,
6,
5,
-19,
-5,
-32,
22,
5,
-55,
6,
-40,
44,
-28,
-31,
2,
28,
36,
-11,
-9,
-70,
33,
43,
-1,
9,
10,
49,
19,
-41,
-9,
0,
0,
-1,
-14,
25,
51,
-22,
71,
27,
17,
5,
0,
-57,
-2,
25,
2,
19,
17,
-34,
37,
-4,
16,
15,
17,
42,
-34,
-61,
58,
-33,
41,
6,
5,
7,
-18,
7,
24,
-33,
41,
-14,
12,
18,
-17,
9,
31,
41,
0,
-64,
10,
37,
-32,
3,
-14,
28,
-48,
15,
-23,
25,
55,
34,
-20,
-14,
-12,
23,
5,
-33,
11,
-22,
20,
-66,
29,
2,
41,
-64,
-30,
30,
-13,
-20,
78,
-25,
-2,
76,
-19,
12,
-10,
-5,
-22,
30,
10,
38,
28,
47,
-2,
28,
-11,
-5,
-55,
30,
24,
-23,
-30,
-10,
16,
-18,
-8,
-22,
-33,
-17,
-17,
-9,
-87,
11,
-49,
21,
25,
87,
20,
-43,
42,
48,
9,
-70,
22,
33,
-4,
65,
45,
-5,
-18,
17,
65,
-19,
11,
34,
58,
-17,
-3,
27,
46,
-39,
84,
12,
6,
-5,
-4,
0,
-21,
-23,
51,
-7,
52,
44,
27,
-9,
-59,
-22,
-33,
-34,
21,
-25,
-11,
21,
33,
51,
-22,
-5,
16,
52,
-18,
11,
-18,
-1,
19,
23,
28,
23,
44,
-43,
14,
-6,
-21,
4,
4,
-73,
-31,
7,
19,
-32,
-9,
-18,
-13,
1,
-20,
-61,
-55,
-36,
36,
-21,
-38,
-1,
32,
40,
-33,
25,
31,
14,
-11,
86,
-49,
6,
-58,
-44,
-22,
6,
9,
-64,
-18,
-4,
-53,
25,
-47,
73,
67,
-11,
-22,
33,
39,
21,
-70,
7,
-9,
23,
36,
-9,
30,
50,
29,
25,
-7,
-93,
19,
-87,
-33,
11,
23,
-33,
-3,
-47,
13,
25,
4,
-35,
25,
54,
-14,
-38,
-27,
-61,
-61,
1,
-54,
-75,
10,
-10,
10,
-17,
-50,
5,
35,
-5,
-6,
-12,
24,
15,
-17,
-33,
-6,
-35,
-44,
40,
-14,
-45,
-31,
-23,
-28,
-92,
14,
26,
0,
35,
-6,
16,
-28,
-38,
19,
-16,
-2,
-9,
-27,
-23,
60,
44,
-7,
-89,
7,
36,
-42,
9,
-4,
-7,
-29,
-19,
11,
-48,
59,
-19,
33,
10,
62,
24,
29,
-19,
13,
-6,
-45,
81,
17,
9,
55,
48,
-25,
4,
1,
17,
18,
-31,
-22,
26,
18,
-50,
-35,
14,
8,
13,
-44,
-9,
-18,
42,
16,
15,
-2,
2,
7,
29,
37,
-24,
2,
4,
6,
-21,
-9,
-6,
1,
-31,
-37,
6,
-43,
-24,
-37,
-19,
15,
-41,
53,
-70,
-58,
48,
0,
37,
-38,
-58,
16,
8,
17,
-17,
-38,
-24,
18,
0,
0,
-11,
-37,
-18,
-73,
-36,
-12,
17,
-11,
-9,
23,
48,
-9,
2,
28,
-19,
-62,
9,
80,
68,
44,
-62,
2,
-42,
-61,
16,
25,
27,
-53,
5,
-23,
-7,
-40,
-1,
-37,
21,
-36,
3,
-53,
17,
-7,
43,
-101,
-44,
-14,
27,
-51,
-19,
60,
-30,
67,
9,
22,
9,
19,
77,
-4,
0,
14,
23,
14,
10,
35,
0,
14,
8,
52,
-22,
-67,
-48,
1,
-34,
-3,
22,
-74,
12,
-25,
33,
-43,
-72,
42,
57,
-3,
-49,
0,
-29,
35,
-13,
0,
18,
-15,
0,
-10,
30,
60,
-12,
-46,
-5,
-30,
-72,
21,
3,
2,
41,
85,
13,
0,
25,
-18,
19,
-23,
-24,
51,
-2,
-23,
-23,
21,
5,
11,
15,
-16,
29,
19,
9,
-13,
36,
-30,
-11,
19,
12,
1,
2,
-26,
29,
-3,
0,
26,
11,
2,
3,
19,
27,
29,
58,
11,
44,
60,
31,
12,
39,
20,
19,
-1,
-42,
-46,
-12,
-22,
17,
12,
-31,
-4,
-15,
23,
-1,
-35,
9,
-44,
16,
25,
23,
-24,
18,
13,
-39,
26,
34,
-1,
43,
-5,
1,
-39,
19,
-46,
-67,
60,
-6,
2,
47,
65,
-1,
3,
11,
21,
-6,
46,
7,
-3,
21,
4,
84,
-34,
12,
-12,
-25,
-3,
14,
24,
-44,
-72,
5,
-13,
3,
-11,
17,
0,
-55,
34,
20,
14,
22,
-24,
-7,
-33,
15,
2,
38,
-8,
4,
-15,
-34,
-32,
36,
43,
55,
-3,
-25,
24,
-60,
13,
109,
-19,
-3,
12,
-6,
52,
44,
5,
4,
-5,
4,
39,
29,
3,
-5,
26,
0,
79,
44,
-44,
57,
-70,
-12,
10,
11,
54,
-12,
0,
16,
-25,
38,
-14,
27,
-40,
26,
28,
24,
-17,
-19,
-5,
-6,
37,
-4,
-6,
-21,
-53,
4,
-81,
44,
1,
-62,
-15,
23,
14,
22,
-12,
8,
-1,
-33,
74,
-9,
-6,
-16,
3,
-48,
-25,
-2,
20,
-4,
-24,
1,
67,
7,
-79,
40,
-13,
17,
-22,
-17,
-4,
8,
5,
62,
33,
-3,
-50,
4,
-72,
-40,
13,
-19,
-27,
32,
1,
-10,
-14,
-44,
-72,
-39,
48,
-23,
-38,
-1,
37,
9,
45,
-18,
-39,
68,
-65,
-12,
-20,
22,
-29,
54,
-31,
98,
-27,
62,
-5,
-29,
21,
33,
0,
-5,
20,
-65,
-28,
30,
-55,
10,
43,
39,
-37,
-24,
24,
-44,
-15,
0,
-45,
-79,
-28,
-8,
-20,
48,
-49,
-1,
-6,
-46,
0,
6,
-27,
-35,
-3,
-6,
31,
8,
38,
-16,
-37,
-30,
-35,
30,
-45,
3,
-15,
-40,
30,
-12,
17,
-104,
-49,
-4,
-8,
4,
4,
11,
-34,
-39,
46,
18,
50,
26,
-31,
22,
32,
-28,
-9,
6,
-10,
6,
-30,
20,
-12,
-28,
43,
-6,
32,
-59,
15,
-11,
29,
-10,
12,
-26,
25,
32,
55,
-7,
19,
21,
23,
0,
48,
-16,
4,
-38,
36,
-15,
2,
-47,
3,
54,
14,
-7,
20,
-85,
16,
-20,
37,
41,
34,
26,
-12
] |
Carr, J.
Plaintiffs herein brought suit in equity to quiet title to a small parcel of land located in Farmington township, Oakland county.. They alleged in their bill of complaint that they and their immediate grantor had occupied and controlled the premises for a period of over 15 years immediately preceding the starting of the suit, and that they had been “in actual, continued, visible, notorious, distinct, and hostile possession of the same under a claim of ownership, during said period.” It was further averred that the defendant claimed an interest in the property. A decree was sought adjudging plaintiffs to be the owners of said premises in fee.
Defendant filed an answer to the bill of complaint, asserting that plaintiffs’ cause of action was not well founded and that the'matter in dispute should be adjudged in an action in ejectment on the law side of the court. She asked that the suit be dismissed on the ground indicated. Such motion was subsequently submitted to the trial court and was denied. The trial on the merits resulted in a decree in favor of the defendant, and plaintiffs have appealed.
Plaintiffs rely on adverse possession of the property in dispute by their immediate grantor, Ralph Schulz, from whom they purchased in April, 1947. In August, 1930, Schulz bought from the administrator of an estate land described as follows:
“All that certain piece or parcel of land, situate and being in Farmington township, Oakland county, Michigan, and described as follows, to wit: Commencing on the west line of section 4 at the north corner of lands leased by Geo. W. Button to the Spring Brook Cheese Factory Co., thence east on the north boundary of said Spring Brook Cheese Factory Co. lands 10 rods; thence north parallel with the west section line 12 rods; thence west at right angles 10 rods to the west section line; thence south on said west section 12 rods to the place of beginning.”
Schulz was a witness for plaintiffs on the trial in circuit court, testifying in substance that the property acquired by him was located on the east side of Drake road about a quarter of a mile south of 14-Mile road. He further claimed that he went into possession of the property that he believed was covered by the description in his deed, and that there Avere fences on the north, east, and south sides. The description in the deed given by Schulz to plaintiffs in April, 1947, was identical in substance with that contained in the conveyance taken by him in 1930. After they received their deed plaintiffs caused a survey to be made, and discovered that their .property as described did not include the east 14 feet of the parcel enclosed by the fences above referred to and Drake road on the west. Thereafter Schulz executed a second deed for the purpose of conveying the land that he claimed to have owned. It does not appear to be questioned that the description in the later conveyance covers the land embraced Avithin the fences and the highway on which it fronts. The specific question at issue is the oAvnership of the 14-foot strip adjacent to the east fence. It is undisputed that defendant is the present holder of the record title to said strip and that she is the owner of property adjoining the land of plaintiffs on the north and east.
At the trial of the case the burden of proof was on the plaintiffs to establish that Schulz occupied the disputed parcel adversely within the requirements of the rule recognized by the bill of complaint. The trial judge concluded, after listening to the testimony and- the arguments of counsel, that the proofs did not establish occupancy for more than the statu tory period under a claim of right, or that the possession of plaintiffs’ grantor was hostile in character. Appellants insist that such conclusions are not in accord with the evidence. On behalf of defendant it is insisted, in substance, that the proofs on the trial did not show that Schulz intended to claim ownership beyond the actual lines of the property described in the conveyance to him and that, in consequence, title to the disputed strip was not acquired by adverse possession.
The record indicates that it was also defendant’s claim in circuit court that Schulz moved the fence on the east side of the land in an easterly direction. Her testimony, and that of her witnesses, relating to the matter is uncertain as to when such action took place, and also as to the distance to which the fence was moved to the east. In his testimony Schulz denied that he moved the fence on the east side, and also denied any change in the line of the north fence, stating that the latter became in such condition that it had to he replaced but that the new fence was on the line occupied by the fence that was there at the time he took possession of the property. He also denied making any statements to the defendant or to anyone in interest in the property to the effect, as claimed by defendant, that if he had taken more land than he was entitled to he would return it or pay for it. With reference to the nature and extent of his possession, the following excerpts from his testimony indicate his claims :
“Q. I will ask you whether or not when you got your deed, you took possession up to and including everything enclosed in those fences that you saw there ?
“A. That is right. * * *
“Q. Now, what improvements in the way of buildings were on the parcel back in 1930 at the time you got the deed ?
“A. Well, I built, immediately after I bought the property, I placed a chicken coop in the same place where the barn is today, that was in 1930.
“Q. You say barn?
“A. It was a chicken house at the time, I built a chicken house at first. * * *
“Q. There is a barn there now up here somewhere in the northeast area?
“A. There is.
“Q. But the chicken coop which you say you built covered exactly the same area on the ground as the barn that is now there ?
“A. I put the barn right on the same foundation.
"Q'. Well, how close to the easterly fence was that chicken coop you built ?
“A. About 3 or 4 feet, somewhere around 3 or 4 feet, it was over 3 feet because I know in Detroit you got to keep away 3 feet from a line.
“Q. Can you state definitely whether or not the chicken coop occupied at least part of the property within 14 feet of the easterly fence ?
“A. Yes, it does.
“Q. And the barn you subsequently built also occupied part of the premises and within 14 feet of the easterly fence?
“A. That is right.
“Q. You know roughly about how far it sticks over across the imaginary line we have drawn 14 feet west of the easterly fence ?
“A. Well, I would say the barn is around 3 feet or a little over from the east line, and the barn was approximately around 25 feet long, going west.
“Q. Have you ever changed or moved or done anything with the easterly fence since you got that property in 1930?
“A. Ño, I haven’t.
“Q. Did you ever do anything with the northerly fence ?
“A. I did.
“Q. What did you do with respect to the northerly fence?
“A. I replaced it with a new fence in the same place where the old fence was.
“Q. We have been talking about the old fence here on this property, you told us about the easterly fence, we mentioned building a chicken coop there, you say that you subsequently built a barn there, you know about when you built the barn on the spot where you originally built this chicken coop?
“A. It was the same year but it was warm.
“Q. Can you tell us approximately what year you built the new barn ?
“A. That I built the barn or chicken coop?
“Q. The new barn.
“A. That would be around in 1932 or 1933.
“Q. You don’t remember the exact year?
“A. No, I don’t.
“Q. Is that new barn still there on the property?
“A. It is.
“Q. The barn is on the same foundation?
“A. That is right.”
The witness further testified that when he sold to plaintiffs he agreed to convey the parcel of land as then fenced, and which he claimed to have occupied since 1930. Plaintiff Robert E. Walker corroborated the testimony of Schulz with reference to the understanding and agreement at the time of the conveyance to plaintiffs, stating that the property at the time was fenced on the north, east, and south, that the fences were represented to him as the boundary lines, and that he understood that he was purchasing the property incorporated within the 3 fences and Drake road. Testimony of Schulz as to the maintenance of the fence on the east, and the fence line on the north, was corroborated by that of his sister; Mrs. Erma S. Johnson, who was called as a witness for plaintiffs.
This being an equity case it is onr duty to hear and determine it de novo. While the proofs offered by the plaintiffs are in certain respects contradicted by defendant and her witnesses, onr examination of the entire record brings ns to the conclusion that the material facts are as claimed by Schulz in his testimony. The question presented is, therefore, whether such facts are sufficient to support plaintiffs’ case.
Schulz was in actual possession of the property for more than the statutory period, and it does not appear that any attempt was made by owners of adjoining premises to interfere with such possession. Had he attempted to move the fences on the east and north, as claimed by defendant, it is fair to assume that his action would have been challenged at once by appropriate proceedings. The suggestion that he did not intend to occupy beyond the line that might he shown by a survey as the east boundary of his property is inconsistent with his testimony and with the factual situation. Neither he nor any adjoining property owner undertook to have a survey made. It is a fair inference that when Schulz received his deed, in 1930, all parties concerned regarded the fences as being on the boundary lines of the parcel described in the conveyance. It is apparent that he occupied the property under a claim of right, and with the intention of holding it as his own. '
Similar situations have been involved in numerous prior decisions of this Court. In Smith v. Feneley, 240 Mich 439, it was said:
“The belief or knowledge of the adverse claimant is not as important as his intentions. The intention is the controlling consideration, and it is not the knowledge or belief that another has a superior title,
but the recognition of that title that destroys the adverse character of possession. Claim of title or claim of right is essential to adverse possession, but it is not necessary that an adverse claimant should believe in his title, or that he should have any title. He may have no shadow of title and be fully aware of that fact, but he must claim title. He may go into possession without any claim of title, but his possession does not become adverse until he asserts one; and he may assert it by openly exercising acts of ownership, with the intention of holding the property as his own to the exclusion of all others.
“ ‘ “Claim of title” is where one enters and occupies land, with the intent to hold it as his own, against the world, irrespective of any shadow or color or right or title.’ 2 CJ, p 168, § 324.
“ ‘It is not necessary, however, that the party in possession should have expressly declared his intention to hold the property as his own, nor need his claim thereto be a rightful one. That his acts and conduct clearly indicate a claim of ownership is enough.’ 1 RCL, p 706, § 18.”
Likewise in Foster v. Wagenaar (syllabus), 251 Mich 370, it was held:
“Title by adverse possession was acquired where possession and occupation of city lot continued for more than statutory period, although boundary thus established is not true line according to plat.”
In Gould v. Fiero, 262 Mich 467, plaintiffs brought an action of ejectment to recover possession of a narrow strip of land lying between their property and that of defendants. In holding that the latter were entitled to a directed verdict on the basis of adverse possession of the property for more than the statutory period, it was said:
“Although defendants may have been mistaken as to the true line, they took the disputed strip, believing it to be their own, and they have claimed and held- it adversely for more than the statutory period, and hence have title to it by adverse possession. 2 CJ, p 141; Call v. O’Harrow, 51 Mich 98; Vanden Berg v. DeVries, 220 Mich 484; Pugh v. Schindler, 127 Mich 191.”
In Dubois v. Karazin, 315 Mich 598, the Court quoted with approval from Greene v. Anglemire, 77 Mich 168, as follows:
“ ‘When the possession is by actual occupation of the possessor, or by his tenants, under claim of title, his possession is visible, open, notorious, distinct, and will be presumed to be hostile. In such case the conditions are all sufficiently complied with to make the possession adverse, and sufficiently notified to other claimants, or parties interested.’ ”
In accordance with the rule set forth in the language quoted, and with other prior decisions cited by the Court, it was. held that the defendant’s claim of title by adverse possession was well founded.
In the recent case of Smith v. Crandell, 332 Mich 44, the factual situation was very similar to that in the case at bar. It was held that plaintiffs had established that their predecessor in title had acquired ownership of the strip of land in dispute by adverse possession, and that the trial court properly decreed, in a suit to quiet title, that the facts justified the granting of the relief sought. See, also, Gardner v. Gardner, 257 Mich 172; Fractional School District No. 4 of Golden Township, Oceana County v. Hedlund, 330 Mich 73; Monroe v. Rawlings, 331 Mich 49.
Under applicable principles of law we find that plaintiffs established with the requisite degree of certainty that title to the strip of land in question in the instant case was acquired by their grantor, and that such title was conveyed to them. The construction of buildings located partially on the 14-foot strip must be regarded as an unequivocal as sertion of a claim of right, and of an intention to take and hold possession of the land. The hostile character of such possession under a claim of right follows from the conduct of Schulz, of which defendant and her predecessors in title were charged with notice. We are unable to agree with the conclusion of the trial judge that plaintiffs failed to show all the essential elements of adverse possession. Based on the record before us, it is our conclusion that they established their right to the relief sought.
Counsel for defendant argues here, as he did in the trial court, that plaintiffs were not entitled to maintain a suit to quiet title but should have instituted an action in ejectment. In support of this claim Warner v. Noble, 286 Mich 654, is cited. That decision may, however, be distinguished from the case at bar on the basis of the facts .and issues involved. The trial judge determined the matter of the jurisdiction of equity in the instant case adversely to defendant’s claim, and properly so.
A decree will enter in this Court vacating the decree of the trial court, and granting to plaintiffs the relief sought. Plaintiffs may have costs.
North, C. J., and Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See CL 1948, § 609.1 (Stat Aim § 27.593). | [
-35,
71,
2,
-37,
15,
-17,
34,
-23,
-11,
21,
19,
-25,
30,
55,
14,
-21,
11,
2,
-9,
3,
5,
-27,
-60,
12,
-6,
11,
28,
-26,
-2,
-25,
-49,
-32,
-11,
13,
-3,
-4,
35,
-11,
0,
8,
-24,
13,
25,
-23,
37,
13,
24,
-10,
37,
-13,
37,
33,
-1,
5,
-11,
-40,
-24,
-4,
-6,
-15,
11,
0,
21,
7,
43,
32,
26,
-22,
14,
-70,
-17,
-1,
-22,
-9,
24,
-47,
3,
15,
-39,
-21,
3,
-7,
73,
-16,
-39,
-5,
-11,
-4,
-11,
1,
-42,
42,
-58,
4,
45,
22,
1,
38,
-13,
-2,
-14,
32,
-10,
2,
-23,
34,
5,
18,
-32,
-21,
7,
3,
30,
-12,
24,
22,
19,
23,
11,
3,
0,
-21,
40,
4,
-13,
52,
-20,
34,
6,
39,
46,
-15,
12,
5,
-37,
-7,
-3,
-33,
-18,
6,
-5,
12,
-49,
-44,
-2,
-13,
-37,
-14,
25,
-19,
-61,
-17,
17,
36,
-16,
25,
58,
-19,
45,
-7,
24,
-1,
-4,
6,
12,
2,
22,
4,
-6,
-24,
18,
10,
11,
-13,
-44,
-40,
30,
35,
-11,
22,
20,
-21,
13,
-45,
-43,
-25,
18,
-21,
-41,
-19,
29,
-11,
40,
-2,
-15,
28,
-7,
27,
-45,
-2,
-18,
-34,
25,
-27,
10,
-39,
27,
-35,
-7,
15,
-35,
-1,
12,
-27,
4,
-43,
-4,
-32,
38,
0,
49,
-23,
-21,
49,
-12,
8,
18,
-61,
45,
-60,
2,
-18,
17,
35,
-43,
0,
20,
21,
8,
10,
-30,
0,
-12,
-27,
-18,
15,
26,
15,
21,
22,
-8,
-52,
-58,
3,
20,
-5,
-56,
36,
25,
-5,
-14,
27,
-32,
9,
-16,
-9,
-15,
-2,
-33,
11,
-9,
33,
22,
7,
-66,
-15,
-34,
-11,
25,
25,
33,
-22,
-4,
4,
17,
50,
10,
-16,
-67,
-9,
-18,
13,
-46,
-23,
33,
6,
-1,
-78,
36,
28,
-40,
47,
-31,
-5,
0,
-36,
-59,
-17,
31,
5,
18,
6,
7,
-58,
9,
8,
2,
6,
34,
-28,
-3,
27,
-25,
18,
-6,
41,
45,
-49,
-25,
36,
10,
-48,
27,
38,
-3,
0,
0,
-43,
-14,
5,
60,
4,
15,
29,
54,
40,
-30,
7,
-11,
-8,
4,
-3,
4,
-13,
18,
1,
6,
2,
-47,
29,
34,
2,
-3,
-2,
-25,
4,
-30,
-89,
11,
51,
-27,
47,
-39,
45,
-6,
-15,
-18,
-16,
0,
26,
53,
-25,
-3,
31,
50,
-7,
1,
18,
0,
-35,
-26,
-40,
20,
51,
44,
-41,
24,
30,
-50,
35,
31,
9,
-23,
38,
-12,
2,
12,
10,
44,
9,
-2,
7,
-4,
-32,
1,
28,
43,
-32,
47,
6,
17,
17,
-29,
-52,
32,
-27,
16,
-14,
-3,
55,
-1,
51,
9,
27,
65,
3,
-56,
-8,
-49,
59,
4,
8,
-2,
-11,
-16,
-30,
-56,
13,
19,
-34,
18,
33,
-50,
-42,
-49,
29,
62,
-21,
40,
-49,
-1,
-63,
-54,
-15,
-21,
-30,
-4,
-5,
45,
33,
-9,
54,
28,
-8,
-12,
-1,
-10,
30,
-18,
22,
2,
-6,
-47,
-40,
-23,
-2,
-25,
23,
-33,
54,
21,
9,
8,
88,
30,
-13,
-19,
18,
36,
11,
30,
-1,
10,
-8,
20,
48,
-1,
-21,
-22,
0,
-5,
-33,
-21,
19,
-46,
43,
39,
12,
28,
14,
17,
7,
-1,
-14,
6,
-8,
75,
1,
56,
-1,
17,
-32,
-15,
0,
11,
-34,
27,
-9,
9,
8,
10,
1,
16,
15,
-27,
9,
-13,
-61,
25,
16,
14,
-55,
-15,
13,
15,
3,
-17,
-28,
35,
10,
-10,
-22,
-12,
-9,
77,
-42,
13,
-49,
7,
4,
-15,
2,
36,
-55,
-2,
0,
-1,
-47,
-29,
34,
-38,
-33,
0,
-40,
-8,
50,
14,
21,
12,
-12,
-42,
-33,
-29,
-35,
53,
-20,
-19,
17,
45,
-22,
33,
-15,
-34,
-20,
-17,
-17,
-13,
-6,
-18,
-42,
-12,
-2,
-6,
17,
15,
36,
-7,
-6,
22,
8,
29,
-4,
37,
7,
16,
-7,
-2,
-11,
-2,
25,
-2,
-38,
-3,
6,
3,
26,
7,
-5,
-27,
-50,
-52,
-46,
-34,
40,
20,
-33,
-17,
-16,
-74,
-30,
-35,
56,
-26,
22,
-36,
-11,
15,
-59,
33,
-28,
34,
-38,
-24,
9,
-30,
-56,
38,
-27,
23,
25,
-17,
0,
4,
49,
-6,
-9,
12,
29,
27,
44,
1,
3,
11,
10,
10,
3,
31,
-18,
-2,
25,
8,
-50,
18,
-2,
-14,
-21,
4,
7,
12,
-17,
-2,
6,
18,
0,
-15,
56,
15,
-40,
-27,
-15,
-24,
-3,
27,
-11,
-20,
47,
32,
-10,
49,
41,
-31,
-38,
-16,
-65,
23,
-58,
8,
8,
21,
39,
31,
38,
15,
-15,
-44,
38,
55,
-21,
-45,
-40,
22,
-23,
-30,
-9,
25,
7,
30,
19,
-26,
1,
-29,
12,
-2,
68,
4,
-27,
-16,
10,
-31,
20,
31,
33,
-21,
-51,
-31,
-41,
-10,
-67,
3,
-4,
-65,
27,
-47,
-16,
15,
-25,
6,
-26,
34,
-14,
-15,
-8,
16,
-63,
-4,
19,
37,
-16,
12,
0,
-35,
-18,
-14,
-41,
-33,
14,
71,
-2,
34,
-38,
-28,
-4,
43,
7,
14,
-9,
-60,
-1,
16,
18,
-9,
-22,
-18,
-34,
-6,
23,
-43,
66,
5,
13,
-5,
-27,
11,
-2,
-1,
-7,
25,
-6,
-29,
-13,
37,
-7,
20,
30,
-11,
-58,
45,
12,
-11,
5,
23,
-28,
-56,
13,
11,
-14,
-22,
-28,
22,
-19,
-48,
-1,
-2,
-5,
19,
-12,
-3,
11,
-17,
31,
18,
-5,
-39,
8,
9,
-3,
27,
-54,
15,
34,
3,
6,
0,
31,
3,
-35,
-18,
-41,
1,
-3,
6,
23,
4,
0,
-37,
-4,
22,
-3,
-29,
1,
20,
35,
36,
20,
-23,
3,
0,
-27,
19,
-37,
-1,
29,
3,
-18,
-20,
-10,
15,
3,
28,
-9,
-30,
-75,
-34,
-12,
-67,
4,
-29,
-13,
17,
6,
11,
2,
-41,
-9,
-42,
-38,
-15,
22,
2,
39,
-4,
14,
-8,
-20,
4,
6,
39,
-58,
21,
5,
14,
-3,
0,
24,
5,
27,
10,
13,
-5,
46,
-21,
-11,
28,
31,
-15,
-20,
-9,
-39,
-48,
-15,
1,
51,
-25,
19,
10,
-39,
9,
24,
5,
20,
-54,
-6,
-32,
31,
-3,
-1,
20,
53,
14,
2,
26,
-29,
-25,
60,
35,
5,
14,
-15,
-32,
-9,
23,
87,
28,
1,
1,
31,
-23,
-7,
-24,
-12,
29,
-10,
27,
20,
64,
-9,
47,
0,
11,
27,
-33,
31,
32,
-3,
-14,
23,
-29,
-8,
-36,
-6,
-15,
27,
-23,
37
] |
Sharpe, J.
This is a will contest in which issues of fact were presented to a jury. The following facts are not in dispute. In 1932 or 1933 Gus .Chambers, who had been living on a farm in Macomb county, came to Detroit. He operated a confectionery on Woodward avenue south of Jefferson avenue. He was a single man, had 1 brother, Bill Chambers, and 1 sister, Marie Hadjigeorgion, who lived in Greece. About the' time Gus Chambers came to Detroit he lived with Mr. and Mrs. Harry George at 8523 Mont-lieu avenue in Detroit. Stella George was his cousin. In November, 1947, Gus Chambers bought a farm in Romeo, Macomb county. He remained there about 2 weeks, when he came back to live with his cousin, Stella George, Detroit. In March, 1948, Gus Chambers went back to the farm, and stayed there all summer. He returned to the George home either in October or November, 1948.
On November 29, 1948, Gus Chambers went to Woman’s Hospital, where it was discovered that he had carcinoma of the esophagus, and on December ■ 10, 1948, it was discovered that he had cancer of the stomach. He was discharged from the hospital on December 23, 1948, and returned to the home of Stella George, where he remained until his death February 6, 1949.
A few days before he was operated on he requested Stella George to send George Patru to see him. George Patru was a countryman of his, spoke both English and Greek, active in church affairs, and a real estate man with 30 years’ experience. George Patru went to see Gus Chambers on the morning of ' December 8,1948, at about 9:30 a.m. Gus Chambers told him that he was to be operated on, and that he wanted a will made (so as to) leave everything to his cousin, Stella George.
George Patru took the information to Attorney Henry W. Harmon, who drew the will in question. On the afternoon of the same day George Patru and his brother, James Patru, returned to the hospital where Gus Chambers executed the will. On February 11, 1949, Stella George filed a petition in the probate court of Wayne county, asking for the probate of the will. In her petition she alleged that Gus Chambers was,a resident of Detroit, Michigan, and left real estate of the value of $15,000, and personal property of the value of $5,500.
On May 2, 1949, Bill Chambers filed objections to the admission of the purported last will and testament of deceased Cus Chambers. The objections listed are as follows:
“1. That the testator was not of sound and disposing mind and memory and was not possessed with sufficient testamentary capacity to make his will, and that the testator was mentally incompetent at the time he. made said will.
“2. That the testator was afflicted with a serious disease at the time of the execution of said purported will and was physically incapacitated as well as mentally incapable of knowing and understanding what he was doing; that the testator was also at the time of making said purported will suffering with certain mental disorders and delusions.
. “3. That said testator was- unduly influenced and coerced into making said will and that the samé was coupled with fraud.
“4. That said purported last will and testament of the testator was not executed and/or witnessed in conformity with the statutes of the State of Michigan made and provided.”
On May 16,1949, Bill Chambers made and filed an application for the certification of the will contest to the circuit court. On the same day the probate court of Wayne county certified the will contest to the circuit court of Wayne county. On March 2, 1949, Bill Chambers filed a petition for special administration of the estate of Cus Chambers, in which he alleged that Cus Chambers was an inhabitant of the city of Detroit at the time of his death. The cause came on for trial, testimony was taken, the cause submitted to a jury, who found for the proponent of the will.
On February 24, 1950, contestant, Bill Chambers, for himself and his sister, Marie Hadjig'eorgion, filed a motion for a judgment non obstante veredicto, and in the alternative that the verdict be set aside and a new trial granted. Some of the reasons stated are that the verdict of the jury is against the great weight of the evidence; because the verdict was not rendered in accordance with the court’s instructions, nor based upon evidence produced at the trial of the cause. On April 4, 1950, contestant, Bill Chambers, filed a motion to vacate the verdict of the jury and dismiss all proceedings in the cause. The reasons given are' as follows:
“1. Because it is the undisputed testimony in this will contest that the deceased, G-us Chambers, was at the time of his death, a resident of the county of Macomb, State of Michigan,' — and that therefore, neither the probate court or the circuit court of Wayne county had, or presently has jurisdiction in said cause.
“2. Because the statute made and provided for, being CL 1948, § 701.19 (Stat Ann 1943 Rev § 27.3178[19]), specifically confines jurisdiction to the judge of probate of the particular county where the deceased was an inhabitant of, or resident of, at the time óf his death.
“3. That the law in this State is clear and authoritative to the effect that jurisdiction of the subject matter of a suit cannot be conferred upon a court by conduct of litigants or by stipulation — nor can the court assume or take jurisdiction of a matter where the deceased is a resident of another county at the time of Ms demise.
“4. That on the record in this will contest matter, the circuit court for the county of Wayne as well as the probate court for the county of Wayne is lacking jurisdiction.”
On April 4,1950, proponent, Stella George, filed a petition to quash contestant’s motion. The reasons given are as follows:
“1. Because said motion is not seasonably filed in accordance with Court Rule No 47 (1945), governing and regulating the practice and procedure in filing such motions, which requires that same be filed and a copy served on the opposite party within 20 days after the entry of judgment or 20 days after the rendition of a verdict in the trial by jury as the case may be.
“2. Because the verdict of the jury was rendered on the 15th day of February, 1950, and contestant’s motion was filed on March 30,1950, or approximately a month and a half after the rendition of said verdict.
“3. Because the sole question raised by contestant’s motion was not raised on the trial of said cause and cannot be raised for the first time on the motion as now submitted.
“4. Because one who enters his appearance in an action and makes contest on the merits, submits himself to the jurisdiction of the court and waives all objections to process and pleadings not expressly waived.
“5. Because the right to contest a will is purely statutory and under the statute (CL 1915, § 14145) one who appeals from an order of the probate court to circuit court must assign his reasons for the appeal and the issue in the circuit court is confined to such reasons.
“6. Because the appeal as filed in this cause makes no claim or reference to the jurisdiction or the lack of it as to either the deceased or the subject matter, and the sole scope of review in circuit court under appeal depends on the reasons stated in the appeal from probate court.”
On May 17, 1950, the trial court entered an order, a part of which reads as follows:
“Therefore, it is ordered and adjudged, notwithstanding the verdict of the jury—the decedent was at the time of his death a resident of Romeo in the county of Macomb, State of Michigan, and that the instrument purporting to be the last will and testament of said deceased is not in fact and does hot constitute the last will and testament .of said deceased, and said will is therefore disallowed.”
Plaintiff appeals and urges that the circuit court of Wayne county had jurisdiction to hear and determine the will contest. In the case at bar Gus Chambers lived in Detroit from 1932 until the time of his death, with the exception of 2 or 3 weeks during the summer of 1947, and all of the summer of 1948; that when he went to the hospital he gave his home address as Detroit, Michigan; that when Stella George filed her petition for probate of the will she gave his address as Detroit, Michigan, and that when Bill Chambers filed a petition in the probate court of Wayne county for the appointment of a special administrator, he gave deceased’s address as Detroit, Michigan. It also appears that when the will contest was certified from the probate court to the circuit court no mention was made of the lack of jurisdiction. The first time that this issue appears in •the case was on April 4,1950, when contestant filed a motion to vacate the verdict and dismiss the proceedings. Citation of authority is unnecessary to establish the fact that the probate court and circuit court have jurisdiction to hear and determine issues involving the validity of wills. In Joy v. Two-Bit Corporation, 287 Mich 244, 253, we quoted with approval from Richardson v. Ruddy, 15 Idaho 488 (98 P 842), as follows:
“Jurisdiction over the subject matter is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or charac.ter of the one pending; and not whether the particular case is one that presents a cause of action, or un der the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during- the trial.”
The statutes of the State of Michigan provide:
“Sec. 21. Jurisdiction assumed in any case by a judge of probate, so far as it depends on the place of residence -of any person, or the location of his estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the same record.” CL 1948, § 701.21 (Stat Ann 1943 Rev § 27.3178 [21]).
In the case at bar the record affirmatively shows jurisdiction, not only of the subject matter, but also of the parties, moreover the issue of jurisdiction was not raised on certification. In Re McLouth’s Estate, 290 Mich 311, 320, we said:
“When litigation instituted in the probate court is taken by appeal or certification to the circuit court, the latter court exercises appellate jurisdiction only and is restricted to the issues presented by reasons assigned in support of the appeal. CL 1929, § 15958 (Stat Ann § 27.3158) ."
In view of the fact that the question of jurisdiction was not raised in the reasons assigned in the certifications from the probate court to the circuit court, it follows that it is now too late to inject that issue into the proceedings.
Proponent urges that the verdict of the jury finding that the paper writing purporting to be the last will and testament of Gus Chambers, deceased, was in fact his last will and testament, is supported by competent evidence, and the trial court was in error in finding otherwise. Under the circumstances of this case the testimony in support of the verdict of the jury must be considered in the light most favorable to sustaining the verdict. See In re Hallitt’s Estate, 324 Mich 654. It is also the rule that if the evidencé presented issues of fact for the consideration of the jury, such verdict should be sustained. See In re Cummins’ Estate, 271 Mich 215.
At the trial proponent produced George Patru, who testified as follows:
“I live in the city of Detroit, at 14239 Saratoga avenue. I am married. I am in the real estate business. My office is in the David Stott Building. I knew Gus Chambers in his lifetime.
“Q. I will show you proponent’s exhibit No 1 (will), and ask you whether or not your name appears on that instrument.
“A. It does.
“Q. Which one is your signature?
“A. The first one.
“Q. Did you sign that as a witness to this purported will?
“A. Yes, sir.
“Q. At whose request?
“A. Gus Chambers. * * *
“Q. What is the other signature on that purported will, Mr. Patru?
“A. As a witness is my brother, James N. Patru.
“Q. He also signed that as a witness?
“A. Yes, sir.
“Q. Did he sign that as a witness in your presence?
“A. Yes, sir.
“Q. Were you all present at the same time before Mr. Chambers?
“A. Yes, sir.
“Q. Who else was present, if anyone?
“A. Just the 3 of us. * * *
“The Court: Mr. Chambers asked you to witness that instrument, did he ?
“A. Yes, sir.
“The Court: And did you see him write his name there?
“A. Yes, sir.
“The Court: In your presence ?
“A. Yes, sir.
“The Court: And in the presence of your brother?
“A. Yes, sir.
“The Court: And your brother witnessed it ?
“A. Yes, sir.
“The Court: And it was all done in the presence of each other, is that right?
“A. Yes, sir.
“The Court: Was Mr. Chambers of full age?
“A. Yes, sir.
“Q. (By Mr. Harmon): And to the best of your knowledge or your observation what was his mental condition?
“A. I would say perfect.
“Q. This was his free act and deed?
“A. Definitely, free act and deed. * * *
“Mr. Harmon drew the will. I got the information in the morning. I took the information to Mr. Harmon. The will was drawn and the same afternoon I went back again.
“My brother was working across the street from the hospital. I called him in advance, whether or not he could spare 15 or 20 minutes to go with me and witness — I didn’t think of getting one of the nurses. * * *
“The Court: What information did you bring back after you discussed it, to the lawyer?
“A. His name, address, and that he wanted to leave with his cousin, whatever he would have, he wanted to leave with his cousin, whatever he would have at the time of death, cash, bonds, insurance, real or personal property. * * *.
“The Court: Did Gus read it?
“A. Yes, sir.
“The Court: I see there is no mention of Gus’ sister in this will?
“A. Oh, no; that information he gave me, that he wanted to leave everything with his cousin, and if the sister in Greece would need any help, that he had confidence in Mrs. George that Mrs. George would do the right thing by her. * * *
“The Court: What did you do with it? .
“A. I left it with him.
“The Court: You left it right there?
“A. Yes.
“The Court: You never saw it again?
“A- Until now.
“Mrs. Géorge was not there at any time when I tallied to him. I don’t know whether Mrs. George went to the hospital that day or not. I did not talk with Mrs. George on December 8th. I don’t remember exactly when I talked with Mrs. George; perhaps 3 or 4 days later. I don’t remember where the conversation took place. It was, possible, likely, on the telephone. I am not sure. It was not at her home. I was not at her home. I could have been at my office, because around the 15th of the month she comes to my office and makes a payment or sends it with someone ; perhaps she came in that particular month. I don’t remember.. * * #
“Q. Within that 15 or 20 minutes, just what questions did you ask him, if any?
“A. I don’t believe I asked any questions. He simply told me what he wanted. He wanted to prepare a will and, of course, I believe I asked him — I think I had to ascertain the proper spelling of his name, permanent address, and to whom he wanted to leave his estate, if there was any other people that he wanted to leave parts to, or any other thing that he wanted to put in the will, and the conclusion was, as stated yesterday.”
James Patru was sworn as a witness for proponent and testified:
“I live at 4189 Dickerson street, Detroit. I am married and have a family. I used to be in the bar business, but I’m not doing anything now.
“Q. (By Mr. TIarmon): Now, Mr. Patru, I will show you proponent’s exhibit No 1, which purports to be the last will .and testament of Gus Chambers, and ask you whether or not your name appears on that instrument?
“A. Yes, sir.
“Q. And will you point it out to us? Is your signature the first one or the last one ?
“A. Between the 2.
“Q. Your signature is the last one?
“A. That is true.
“Q. Did you sign that?
“A. Yes, sir.
“Q. Did you sign that in the presence of Mr. Chambers ?
“A. Mr. Chambers and Mr. Patru.
“Q. And did Mr. Chambers tell you what it was?
“A. Mr. Chambers read this will and he signed it.
“Q. Pie signed it in your presence?
“A. -Yes, sir.
“Q. And you were there and Mr. Chambers was there, and your brother was there?
“A. That is right. * * *
“Q. What did you observe as regarding his mental condition at that time ?
“A. Very fine shape.
“Q. Was he mentally alert? Did he know what he was talking about?
“A. That is right.
“Q. You didn’t see anything irregular or irrational about his conversation?
“A. What?
“Q. Did you observe anything irrational about his talk or about his conduct while you were there?
“A. His talk was fine, yes.
“Q. What about his conduct, otherwise?
“A. Yerygood.
“The Court: How long were you there?
“A. Approximately 15 minutes.
“The Court: You talked about some other things beside the will ? * * *
“The Court: Did you see Hus Chambers sign this paper ? (Indicating.)
“A. Yes, sir.
“The Court: In your presence?
“A. Yes.
“The Court: And in the presence of your brother ?
“A. Yes, sir. * * *
“I am not related to Mrs. George. I know her. I saw her recently a couple of days ago. I also saw hex 2 days after the will. She came in for a cup of ■ coffee. She didn’t ask me anything about it. I don’t think she knew anything about it.
“A. He read the will and he signed his name and turned it over to my brother, my brother signed it, and I signed it, and my brother took the envelope and put the will in it, and gave it to him and left it there.
“Q. What, if anything, did he say?
“A. He didn’t have very much to say.
“Q. What did he say?
“A. Well, he was not feeling so well and he was going to be operated in a couple of days, and that is all.
“Q. How long did it take for him to say that?
“A. Well, we was in the room approximately 10 to 15 minutes. * * *
“In the hospital Gus was in bed. He had a pillow on the back and he was half down in bed and he was reading the magazine. I heard the will read by my brother.”
Contestant urges that there was no evidence to refute the presumption that undue influence amounting to fraud was practiced in obtaining the signature of deceased to an instrument purporting to be his last will and testament. Contestant offered evidence to the effect that deceased stated to several witnesses that he took care of everything and that his brother Bill would get his property. There is also evidence offered by proponent that 2 or 3 days before his operation deceased requested Stella George to get in touch with George Patru and have him come to see him; that Stella George did notify George Patru of the request of Gus Chambers, and George Patru came to the hospital to see Gus Chambers, who informed him that he wanted to make a will; that George Patru took down the information given, went to a lawyer to have the will drafted and returned to the hospital with his brother; that Gus Chambers read the will and George Patru read it out loud to Gus Chambers, who signed it in the presence of 2 witnesses, and that the witnesses signed it in the presence of Gus Chambers.
In our opinion the mental capacity of Gus Chambers to make a will and its proper execution presented questions of fact that were properly submitted to the jury. It follows that the motion for a judgment non obstante veredicto should have been denied. The judgment is reversed and the cause remanded for certification to the probate court, with costs to proponent.
North, C. J., and Dethmers, Butzel, Carr, Bushnell, Boyles, and Reid, JJ., concurred.
See CL 1948, § 701.36 (Stat Ana 1943 Rev § 27.3178[36]).— Reporter.
See CL 1948, § 701.36 (Stat'Ann 1943 Rev § 27.3178[36]).—Re-porter. | [
71,
41,
34,
-48,
-7,
-29,
18,
37,
6,
-32,
-14,
-10,
2,
20,
-43,
-4,
47,
11,
4,
-20,
46,
26,
-2,
-25,
0,
14,
-4,
42,
-18,
-52,
24,
39,
-9,
46,
7,
32,
56,
-47,
-17,
-34,
-39,
-44,
-23,
54,
24,
1,
24,
-15,
9,
29,
-43,
-35,
31,
29,
20,
-62,
-20,
25,
-35,
51,
20,
-46,
33,
23,
7,
16,
43,
30,
-30,
30,
22,
-46,
0,
9,
-17,
-40,
26,
-16,
28,
-20,
13,
3,
59,
-50,
-66,
-45,
-3,
-4,
7,
-35,
-24,
-25,
-43,
59,
20,
34,
43,
32,
14,
3,
-25,
41,
-6,
-7,
31,
-16,
20,
14,
15,
50,
-9,
2,
72,
52,
6,
12,
-5,
-2,
4,
17,
-68,
3,
-6,
-31,
27,
40,
-55,
-29,
31,
-14,
40,
-3,
39,
-59,
-55,
23,
-1,
-4,
-1,
49,
72,
15,
-6,
-21,
-8,
-7,
-21,
7,
42,
-50,
-18,
-15,
-22,
18,
3,
6,
7,
-2,
-14,
63,
-25,
-27,
37,
-1,
9,
-12,
8,
20,
-2,
-15,
-33,
-22,
30,
-23,
7,
87,
-28,
-58,
-111,
37,
-6,
27,
-19,
-32,
35,
-55,
18,
-1,
28,
-13,
30,
5,
-15,
51,
-11,
42,
-1,
3,
-37,
41,
3,
19,
27,
-13,
27,
-19,
-32,
8,
28,
21,
-6,
-43,
11,
6,
18,
-48,
-49,
-33,
12,
-6,
-16,
0,
-4,
54,
8,
5,
36,
-21,
-19,
3,
46,
-4,
-6,
15,
-15,
4,
22,
-17,
-37,
34,
-29,
-30,
40,
18,
16,
58,
-12,
15,
38,
26,
25,
11,
-9,
1,
-9,
-3,
-15,
-9,
0,
-9,
-20,
27,
-19,
8,
45,
10,
20,
-68,
33,
-18,
8,
-40,
35,
-50,
-28,
-2,
23,
-10,
32,
-50,
-18,
-32,
-70,
-7,
-20,
16,
-41,
-35,
-83,
-45,
3,
13,
-20,
-25,
3,
-2,
5,
-26,
29,
-11,
-42,
33,
31,
-17,
25,
-24,
7,
-45,
-23,
-3,
-3,
-20,
6,
62,
14,
-20,
4,
-22,
-13,
32,
7,
28,
19,
22,
-49,
14,
-60,
6,
23,
52,
-26,
38,
-5,
3,
-49,
-14,
3,
16,
6,
-39,
27,
-23,
1,
10,
1,
-12,
34,
33,
-95,
-31,
-13,
15,
17,
9,
-53,
-18,
62,
70,
-22,
71,
-26,
-26,
33,
95,
-65,
-40,
-44,
-11,
-5,
38,
15,
6,
-27,
7,
2,
92,
11,
-53,
17,
35,
-27,
8,
-17,
10,
13,
-1,
24,
-26,
4,
11,
-47,
-46,
-62,
-24,
29,
27,
33,
-4,
-34,
12,
-2,
18,
-27,
45,
-35,
49,
-26,
-38,
23,
-25,
-15,
-27,
63,
-31,
13,
-17,
-47,
0,
3,
52,
-11,
22,
-8,
-38,
-24,
-40,
-24,
-23,
-13,
-1,
-10,
6,
29,
-19,
21,
3,
-30,
70,
-10,
1,
13,
-3,
45,
52,
29,
34,
-14,
13,
12,
-24,
25,
44,
-23,
8,
-12,
20,
-13,
49,
7,
42,
-53,
-34,
4,
-53,
-27,
-5,
-14,
21,
29,
-12,
-15,
16,
-49,
-83,
-24,
1,
58,
-16,
51,
-46,
27,
14,
-15,
-10,
-54,
-22,
-60,
2,
-9,
-7,
11,
-39,
-22,
18,
-17,
17,
22,
49,
17,
3,
-37,
46,
-29,
11,
24,
-53,
61,
-73,
-8,
-45,
5,
0,
-9,
20,
8,
14,
93,
15,
3,
-9,
7,
-40,
22,
38,
30,
-15,
0,
19,
13,
-106,
23,
-39,
-2,
0,
-82,
-57,
-15,
11,
5,
-44,
-57,
22,
36,
-19,
-9,
-33,
-22,
4,
2,
22,
-23,
-51,
-57,
-67,
41,
19,
30,
-41,
-12,
-23,
1,
-7,
12,
-7,
-22,
-33,
-3,
-2,
28,
16,
-12,
-15,
51,
-46,
-14,
5,
31,
-7,
-30,
28,
-28,
-31,
-32,
43,
-50,
29,
5,
-8,
-29,
37,
8,
-41,
-8,
29,
10,
30,
13,
11,
20,
-55,
47,
-36,
35,
-16,
-19,
35,
-35,
-1,
-48,
-30,
-24,
28,
0,
-51,
-27,
69,
-39,
-16,
40,
51,
27,
28,
-10,
-8,
-2,
-27,
8,
-3,
10,
8,
-1,
-4,
39,
9,
-21,
0,
8,
2,
7,
-8,
-54,
-2,
18,
-17,
-42,
-26,
-22,
-37,
-27,
-2,
-46,
-30,
-22,
56,
-15,
-22,
61,
-28,
54,
2,
24,
49,
-31,
7,
11,
30,
84,
3,
17,
20,
11,
-11,
-12,
-5,
-10,
2,
-19,
44,
67,
24,
11,
31,
-6,
43,
56,
-26,
13,
-33,
3,
27,
17,
-12,
-12,
-25,
-29,
34,
14,
-17,
27,
-27,
-11,
14,
-51,
1,
-48,
19,
-22,
12,
0,
-60,
-15,
38,
1,
-39,
-10,
28,
3,
12,
26,
-33,
-39,
-44,
-41,
-32,
5,
27,
-29,
39,
-17,
10,
43,
-23,
-1,
-33,
28,
38,
-21,
17,
-68,
-38,
-52,
-43,
0,
13,
-58,
-47,
-16,
-13,
-24,
-31,
27,
90,
32,
3,
8,
-15,
24,
25,
-12,
-30,
5,
17,
-21,
-26,
-10,
8,
27,
16,
-16,
4,
-12,
41,
-36,
39,
-67,
-5,
47,
-39,
31,
-35,
-10,
-5,
36,
-2,
53,
-44,
44,
8,
30,
13,
2,
-44,
21,
-17,
14,
-3,
32,
-24,
37,
-18,
72,
1,
27,
39,
37,
-55,
7,
7,
1,
50,
-32,
75,
32,
-41,
-34,
-36,
-7,
20,
15,
37,
5,
-76,
75,
-63,
-36,
-18,
-42,
15,
-17,
-15,
8,
5,
16,
39,
-20,
5,
47,
51,
-73,
10,
44,
-3,
1,
44,
-29,
-9,
31,
14,
-43,
9,
6,
-59,
21,
6,
0,
5,
-6,
-64,
27,
17,
-10,
-22,
0,
-14,
-25,
-38,
2,
-22,
-29,
-28,
2,
-29,
-31,
-3,
6,
-21,
31,
-21,
-22,
-14,
-14,
-27,
-32,
13,
-19,
39,
20,
-45,
-54,
22,
-14,
53,
-4,
-72,
5,
11,
13,
-50,
22,
-25,
-19,
-1,
-30,
-29,
-46,
-24,
-18,
-27,
40,
37,
5,
-13,
31,
0,
-16,
0,
2,
-3,
-30,
-6,
-25,
-2,
4,
26,
33,
-11,
4,
-39,
-53,
62,
30,
12,
-84,
-43,
-51,
-7,
33,
-2,
0,
37,
90,
25,
-38,
-5,
21,
-7,
43,
8,
6,
-21,
6,
-44,
-2,
21,
31,
-1,
-35,
-5,
-30,
21,
23,
26,
0,
6,
43,
-47,
-30,
-7,
17,
19,
-16,
9,
-29,
1,
49,
-52,
60,
30,
36,
-19,
-7,
-14,
-21,
47,
34,
-26,
-17,
-70,
-42,
-34,
7,
48,
-48,
63,
19,
50,
17,
10,
-24,
9,
7,
30,
26,
38,
21,
0,
-12,
-1,
47,
0,
-36,
4,
13,
-16,
-26,
59,
22,
6,
15,
31,
-16,
-39,
10,
14
] |
Reid, J.
Plaintiff brought action against the defendants for negligent acts of an instructor employed by defendants in giving plaintiff a lesson in dancing the dance known as “jitterbug.” The jury rendered a verdict for plaintiff. On motion of defendants, the court rendered judgment for defendants notwithstanding the verdict. Plaintiff appeals.
The business of defendants was to give instruction at their studio in 6 dances known as rumba, samba, fox trot, waltz, jitterbug and tango. On November .24, 1948, plaintiff contracted with defendants to take certain dancing lessons. She had seen and known something of the dance called jitterbug and expressed to defendants’ instructor, Mr. ITartshorne (called however, Mr. Hart), her fear of the jitterbug dance as being too violent and that she could not “take it.” Plaintiff was then 52 years of age. She testified that after an argument of several minutes she was persuaded by Mr. Hart to practice jitterbugging. Plaintiff had had several lessons in dancing, but did not begin her instruction in the jitterbug dance as part of her earlier lessons. Plaintiff testified that Mr. Plart told plaintiff respecting the jitterbug dance, “There is nothing to it,” and that Mr. Hart promised her that he would hang onto her hand, and that Mr. Hart did hang onto her hand for once and on the second occasion, when they came to the critical part of the dance called the spin-turn, he let loose of her hand and that she staggered back, lost her balance and fell against the wall, that her feet went out from under her and she received an injury to her wrist fracturing some bones in her wrist. Plaintiff also testified that after she had started on the second occasion, and while Mr. Hart was still holding her hand and about to release his hold, he gave her a push. It is the claim of the plaintiff that the push into the spin-turn was too hard a push and the release, contrary to his promise, by Hart of his hold on her hand at the inception or in the midst of the spin-turn, was negligence. Plaintiff claims that the release of hold of her hand and the excessive push both contributed to cause her injury, and that her injury was due to the. negligence of Hart in giving the lesson.
Plaintiff testified that after she was injured, she heard Mr. Hart say to a Mr. Edward Smegalski that he, Hart, pushed her “a little too hard.”
Defendants deny that the evidence discloses any negligence or negligent acts by the defendants and particularly, by their instructor, their employee, Mr. Hart.
"While some of the statements of plaintiff in her testimony could have been considered by the jury as inconsistent, still there is substantial showing in the testimony within the ruling of this Court in Werker v. McGrain, 315 Mich 287, so that the claim of plaintiff as to the negligent act of Hart is to be considered as sufficiently supported by testimony to warrant the jury in making the finding that it did make, that Hart was negligent.
Defendants claim that plaintiff assumed the risk of receiving injuries and that therefore she is not to be permitted to recover for the injuries received. Plaintiff assumed the foreseeable risk ordinarily incident to the giving and receiving of instructions in the jitterbug dance, but did not assume the risk of injury received through the negligent act of the instructor in giving the lesson, which risk could not be foreseen. Defendants owed to plaintiff the duty to exercise the care and skill commensurate with the risk involved.
The jury by its verdict evidently found that Hart had violated his duty and had negligently given the lesson, and that as a consequence of such negligence, plaintiff was injured. The risk of such injury was not assumed by plaintiff. The trial court was in error in ruling that the plaintiff assumed the risk of injuries caused by the negligent acts of the instructor.
The reasonableness of the amount of the verdict is not in controversy.
The judgment notwithstanding the verdict is reversed. The case is remanded to the trial court with instruction to reinstate the verdict and enter a judgment on the verdict. Costs to plaintiff.
North, C. J., and Dethmers, Btjtzel, Carr, Btjshnell, Sharpe, and Boyles, JJ., concurred. | [
-59,
39,
-27,
27,
-8,
-64,
-24,
17,
-24,
25,
-42,
-5,
51,
-25,
24,
-8,
-7,
-19,
-46,
-19,
22,
-34,
-42,
-15,
38,
31,
8,
-47,
-20,
-8,
49,
-17,
-3,
-17,
-9,
44,
-33,
65,
-21,
-72,
-26,
38,
-11,
19,
-33,
-12,
22,
-7,
21,
8,
33,
22,
33,
37,
-29,
28,
1,
-2,
-27,
-7,
-6,
-4,
-19,
-73,
-25,
-28,
22,
-20,
-44,
-15,
-23,
-9,
1,
-12,
-76,
33,
-64,
17,
-13,
-5,
-36,
-29,
38,
56,
-13,
-14,
20,
-14,
-41,
-15,
-6,
57,
-70,
0,
-20,
51,
-26,
11,
-24,
-1,
4,
-19,
-7,
51,
-10,
-3,
-13,
-20,
-35,
-1,
-24,
39,
18,
16,
10,
-60,
66,
19,
18,
-14,
-19,
21,
64,
-44,
37,
23,
-25,
-24,
29,
30,
-24,
57,
-10,
-13,
-31,
-2,
-35,
45,
46,
-16,
4,
49,
-9,
27,
32,
-43,
-27,
-21,
-40,
-38,
-28,
-25,
37,
29,
54,
-36,
15,
24,
9,
-22,
41,
2,
-8,
-48,
-15,
-44,
47,
-7,
95,
5,
54,
35,
20,
-48,
18,
26,
11,
-24,
-46,
-10,
-7,
41,
51,
-1,
17,
-102,
-30,
-64,
-1,
112,
-14,
-15,
-40,
12,
32,
0,
10,
-10,
9,
-28,
4,
18,
-23,
13,
39,
9,
-22,
-29,
0,
-12,
-27,
-27,
29,
-45,
-30,
-35,
-39,
-44,
2,
19,
-17,
15,
12,
15,
-57,
-76,
-19,
-14,
52,
30,
20,
30,
-21,
4,
-1,
-40,
-47,
3,
97,
-44,
-30,
16,
-4,
25,
-22,
-10,
-4,
9,
-28,
-21,
-53,
7,
11,
45,
12,
26,
65,
-6,
-25,
-15,
-4,
36,
-8,
52,
48,
31,
-7,
18,
2,
-34,
-7,
-7,
22,
5,
-27,
-68,
-53,
1,
95,
6,
-31,
24,
-22,
35,
-11,
23,
-8,
6,
-45,
-32,
71,
-15,
16,
-18,
107,
0,
12,
32,
-11,
59,
17,
2,
36,
38,
-19,
19,
0,
-32,
1,
-31,
-31,
-36,
-14,
-15,
5,
-1,
18,
-15,
-11,
10,
-45,
-18,
-53,
-5,
-81,
-27,
-10,
-33,
-29,
21,
2,
14,
-5,
3,
35,
-28,
-7,
56,
-6,
40,
-30,
25,
39,
-13,
-18,
21,
-10,
-19,
28,
6,
-32,
-31,
42,
-51,
-27,
-10,
-9,
21,
22,
75,
-1,
-36,
40,
-53,
-9,
-37,
55,
31,
-35,
50,
-13,
-14,
17,
-26,
-11,
-17,
29,
38,
-2,
80,
10,
-38,
21,
-19,
-11,
-35,
3,
-45,
38,
7,
-97,
27,
33,
-10,
30,
15,
1,
-9,
14,
-7,
14,
17,
36,
-53,
-35,
-47,
-27,
-104,
41,
10,
-29,
10,
3,
-16,
23,
10,
33,
-5,
-26,
1,
26,
-5,
7,
-2,
50,
-4,
-8,
-75,
-8,
-41,
-39,
69,
31,
-2,
-5,
-72,
2,
68,
12,
31,
37,
-63,
3,
24,
14,
-16,
-6,
41,
18,
-27,
27,
9,
-5,
-26,
12,
-26,
12,
20,
-20,
73,
0,
-6,
36,
53,
93,
-60,
-19,
31,
15,
-19,
9,
-26,
7,
-2,
27,
15,
-27,
11,
-39,
-29,
-17,
18,
20,
-30,
-30,
1,
13,
-62,
-1,
22,
5,
-17,
-1,
-12,
-64,
40,
-16,
56,
-19,
13,
-30,
-60,
9,
-7,
39,
17,
23,
-26,
-12,
-44,
-39,
19,
-5,
25,
16,
-33,
27,
19,
-38,
-1,
-8,
12,
33,
56,
-26,
-45,
-16,
-16,
-16,
5,
42,
-36,
28,
-12,
-8,
47,
-13,
-80,
19,
-53,
-43,
27,
-10,
9,
64,
-9,
0,
-5,
-10,
97,
59,
6,
-11,
7,
-26,
-16,
34,
-15,
-21,
-39,
7,
24,
-11,
29,
91,
-23,
7,
28,
50,
-2,
-12,
24,
-4,
-26,
-18,
-11,
23,
29,
-50,
-20,
50,
-7,
37,
15,
-36,
5,
74,
6,
-16,
26,
30,
-11,
41,
-17,
-15,
-45,
50,
8,
-13,
-48,
-28,
-9,
-16,
-44,
24,
-22,
25,
-36,
42,
-64,
7,
7,
-38,
5,
-60,
13,
-18,
37,
38,
-4,
-44,
0,
-20,
44,
-4,
-10,
-72,
13,
-1,
-51,
-20,
-30,
24,
10,
-33,
48,
-41,
66,
-9,
-57,
22,
-14,
-29,
8,
9,
22,
-21,
0,
26,
-35,
36,
-21,
10,
-28,
28,
-16,
-12,
3,
-50,
-28,
-40,
12,
-34,
-23,
-12,
17,
-13,
-4,
-40,
-73,
-19,
62,
90,
0,
39,
-5,
-67,
8,
-8,
8,
-15,
-22,
75,
-60,
24,
9,
-2,
6,
-24,
0,
-37,
-14,
52,
2,
12,
24,
79,
-12,
-5,
39,
-2,
0,
-2,
12,
37,
-58,
-20,
23,
29,
-6,
-7,
22,
0,
-10,
-7,
52,
-13,
-23,
-25,
-16,
-11,
-28,
53,
-15,
-7,
-2,
36,
12,
42,
-25,
29,
1,
-29,
-19,
12,
-9,
37,
20,
-4,
10,
23,
-15,
-39,
52,
-20,
-15,
18,
-41,
9,
-7,
-1,
-13,
-15,
10,
-9,
-15,
23,
-41,
-32,
-1,
-9,
12,
-46,
-46,
-10,
37,
-9,
-51,
28,
28,
1,
53,
10,
-42,
-46,
0,
72,
-23,
-37,
21,
6,
13,
44,
-6,
-16,
-14,
46,
-63,
14,
29,
10,
-29,
10,
-11,
12,
34,
18,
30,
14,
-21,
-27,
35,
5,
25,
5,
-16,
15,
-45,
5,
-2,
-5,
8,
43,
7,
-26,
2,
2,
-15,
-33,
18,
12,
30,
31,
25,
-3,
-24,
-18,
-21,
-40,
-34,
2,
-34,
34,
24,
5,
5,
8,
-12,
-5,
-12,
13,
40,
30,
64,
60,
-53,
14,
-13,
-31,
-18,
-5,
30,
-2,
-48,
-28,
8,
-71,
-59,
-4,
-12,
-13,
-11,
-57,
-55,
-25,
47,
-39,
11,
60,
-27,
12,
-5,
15,
88,
-25,
14,
6,
-34,
-18,
-10,
0,
-5,
-24,
50,
-91,
7,
8,
-10,
-36,
-11,
23,
47,
14,
-69,
-26,
40,
10,
23,
-6,
-28,
16,
55,
-34,
9,
-20,
-35,
16,
-32,
-38,
-9,
9,
21,
56,
7,
29,
33,
-8,
0,
-17,
0,
2,
-27,
6,
-11,
-13,
28,
-20,
1,
-8,
31,
17,
29,
0,
3,
-49,
29,
-3,
-38,
-10,
-15,
6,
67,
-36,
37,
-13,
5,
-37,
-9,
-33,
-14,
-2,
8,
-9,
14,
-38,
-22,
-32,
57,
0,
-22,
50,
-4,
0,
40,
30,
-17,
56,
-3,
-24,
-10,
62,
-16,
3,
-34,
-22,
12,
-23,
-3,
3,
-40,
41,
-2,
0,
-8,
-35,
26,
-9,
9,
-23,
-47,
-14,
-11,
-33,
8,
-8,
6,
4,
-11,
42,
-15,
-5,
-19,
63,
48,
35,
-27,
62,
12,
1,
30,
-32,
18,
15,
22,
15,
73,
-3,
-23,
19,
19,
25,
83,
33,
0
] |
Mackenzie, J.
This is an unemployment compensation case in which we must decide whether an employee who is terminated for failure to meet state licensing requirements is entitled to receive benefits.
Appellant, the Michigan Employment Security Commission, appeals as of right from an order of the Wayne County Circuit Court reversing the decision of the Michigan Employment Security Board of Review. The board of review had affirmed a MESC referee’s determination that Patricia A. Ponder was eligible for unemployment benefits.
After her graduation from a registered nursing program, claimant obtained a temporary license pursuant to MCL 333.16181; MSA 14.15(16181) and began working for appellee Children’s Hospital of Michigan as a graduate nurse on July 17, 1978. Thereafter claimant twice took the state licensing examination which, if passed, would qualify her as a registered nurse. She failed both times. As a result, claimant necessarily lost both her temporary license and, on May 24, 1979, her employment with the hospital.
The claimant thereafter applied for unemployment benefits, which were approved on June 13, 1979. Redeterminations upholding the award of benefits to claimant were subsequently issued by the MESC, and the hospital timely requested a referee hearing. In an opinion dated May 2, 1980, the referee affirmed the MESC; this ruling was in turn affirmed by the board of review on January 21, 1982. The Wayne County Circuit Court reversed the board’s decision on appeal, holding that, under MCL 421.29(l)(a); MSA 17.531(l)(a), the claimant’s failure to "maintain a prerequisite for hire and for continued employment * * * must be deemed to be a 'voluntary leaving without good cause attributable to the employer’ ”.
On appeal from decisions of the board of review, this Court may review questions of law or fact. Const 1963, art 6, § 28; MCL 421.38; MSA 17.540; Chrysler Corp v Sellers, 105 Mich App 715, 720; 307 NW2d 708 (1981). However, the decision of the board of review may be reversed only if it is contrary to law or is unsupported by competent, material, and substantial evidence on the record. Sellers, p 720.
The sole issue presented here is whether a claimant whose failure to pass a licensing examination necessitates the termination of her job can be said to have "voluntarily” left her employment under MCL 421.29(l)(a); MSA 17.531(l)(a), which provides:
"(1) Grounds. An individual shall be disqualified for benefits in all cases in which he:
"(a) Has left work voluntarily without good cause attributable to the employer or employing unit.”
Our inquiry begins with a brief review of the public policy behind the passage of the Michigan Employment Security Act, for its provisions "must be read in the light of the purpose of the Legislature in enacting it”. I M Dach Underwear Co v Employment Security Comm, 347 Mich 465, 471; 80 NW2d 193 (1956). The "Declaration of Policy” as found in § 2 of the act, MCL 421.2; MSA 17.502, says:
"Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is a subject of general interest and concern which requires action by the legislature to prevent its spread and to lighten its burden which so often falls with crushing force upon the unemployed worker and his family, to the detriment of the welfare of the people of this state. Social security requires protection against this hazard of our economic life. Employers should be encouraged to provide stable employment. The systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment by the setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, thus maintaining purchasing power and limiting the serious social consequences of relief assistance, is for the public good, and the general welfare of the people of this state.” (Emphasis added.)
The act, therefore, was intended primarily for the benefit of those who are involuntarily unemployed, i.e., those who "are unemployed because of conditions [in the labor market] over which they have no control”. Dwyer v Unemployment Compensation Comm, 321 Mich 178, 188; 32 NW2d 434 (1948). (Emphasis added.)
Appellant MESC relies primarily on Thomas v Employment Security Comm, 356 Mich 665; 97 NW2d 784 (1959), for its position that in order to be disqualified under § 29(1)(a) an employee must intend to leave his job, or otherwise deliberately or negligently set in motion conditions which inevitably lead to his dismissal. In Thomas, an employee was arrested en route to work for driving his automobile without an operator’s license. Because of his subsequent conviction and incarceration, he was unable to report for work and his employment was terminated by his employer shortly thereafter. Addressing whether this sequence of events constituted leaving work voluntarily, the Court stated:
"The voluntary assumption of a risk which an employee knows may, but he trusts and assumes will not, keep him from work is not the voluntary leaving of his work. Doing an act, even though voluntarily, which results, contrary to the doer’s hopes, wishes and intent, in his being kept forcibly from his work is not the same as voluntarily leaving his work. The statute mentions the latter, but not the former, as an act disqualifying for benefits.” Thomas, supra, p 669.
Numerous other Michigan cases have since followed the Thomas rationale in holding that a voluntary act by an employee which results in his or her termination is not necessarily a voluntary leaving. See, e.g., Sullivan v Employment Security Comm, 358 Mich 338; 100 NW2d 713 (1960); Wickey v Unemployment Security Comm, 369 Mich 487; 120 NW2d 181 (1963); Larson v Employment Security Comm, 2 Mich App 540; 140 NW2d 777 (1966), and Laya v Cebar Construction Co, 101 Mich App 26; 300 NW2d 439 (1980).
Appellee hospital cites Echols v Employment Security Comm, 380 Mich 87; 155 NW2d 824 (1968), in support of its position that an employee who fails to maintain his statutorily required license has voluntarily left his employment. Echols involved a taxicab driver whose operator’s license was suspended for 90 days because of an accumulation of traffic violations. As a valid license was a prerequisite for employment, claimant no longer reported for work, but instead filed an application for unemployment benefits. The Michigan Supreme Court upheld the decision of the board of review by ruling that claimant had voluntarily left his job and was therefore disqualified from receiving unemployment benefits. In so holding, the majority rejected Justice Souris’ argument that such an interpretation would require the application of the doctrine of "constructive voluntary leaving”, a doctrine the use of which has been repeatedly rejected by the Michigan Supreme Court. See, e.g., Copper Range Co v Unemployment Compensation Comm, 320 Mich 460, 469; 31 NW2d 692 (1948); Thomas, supra, p 669, and Jenkins v Employment Security Comm, 364 Mich 379, 384; 110 NW2d 899 (1961).
Similarly, the Court in Phillips v Employment Security Comm, 373 Mich 210, 212; 128 NW2d 527 (1964), held that the claimant, a taxicab driver whose license was revoked due to his failure to pay traffic tickets, had by his own actions deliberately committed the acts that resulted in the loss of his license.
While the above cases and others interpreting § 29(a)(1) of the act are difficult to reconcile, both Echols and Phillips, supra, can be distinguished from those cases allowing benefits. First, in each case the claimant failed to maintain prerequisites for hire and continued employment; and, second, the employer in each case would have been in violation of state law had he allowed the claimant to continue working without a license. Both of these conditions are met in the present case.
Although the referee and the board of review found that the claimant was not licensed at the time of her hire, and further that a license was not a condition of hire, we agree with the circuit court in holding that such findings are not supported by the record. MCL 333.17211; MSA 14.15(17211) provides that no one may engage in the practice of nursing in the State of Michigan unless licensed to do so. By definition this section applies to graduate nurses as well as practical and registered nurses. See MCL 333.17201(l)(a); MSA 14.15(17201)(l)(a). It is undisputed that claimant met all the requirements for, and was granted, a temporary license in accordance with applicable state law. MCL 333.16181; MSA 14.15(16181) provides that such a license is valid for one year until the results of the next scheduled examination are available.
It is clear, then, that claimant’s temporary license was a condition for hire. It is also clear that claimant could not continue in her status as a graduate nurse if her temporary license should expire, nor could she be continued in the hospital’s employ as a registered nurse if she failed to pass the state licensing examination prior to the expiration of her temporary license. Had the hospital either hired or allowed claimant to continue on in her capacity as a graduate nurse without the benefit of a license, it would have been guilty of a misdemeanor. See MCL 333.21513; MSA 14.15(21513) and MCL 333.1299; MSA 14.15(1299).
In view of the above, we conclude that a claimant who fails to maintain prerequisites for hire and continued employment so that the employer is required by law to terminate the employment relationship has voluntarily left work without good cause attributable to the employer.
The legislative intent as found in the act’s declaration of policy provides additional support for our holding. While claimant’s failure to pass her licensing examination may or may not have been her own "fault”, the means of obtaining a passing score were exclusively within her knowledge and control. Allowing benefits under these circumstances would not serve the express legislative policy of encouraging stable employment since the hospital merely complied with state law and did nothing to violate that principle. On the contrary, employers would be discouraged from hiring applicants who had not yet taken their licensing examinations.
We affirm. No costs.
R. Robinson, J., concurred.
MCL 421.29(1); MSA 17.531(1) has been amended by the Legislature numerous times since the present action arose. See 1980 PA 358, § 1; 1982 PA 535, § 1; and 1983 PA 164, § 1. These changes would in no way affect our analysis here, however.
The results reached in both Sullivan and Thomas, supra, have been abrogated by legislative enactment. See Alexander v Employment Security Comm, 4 Mich App 378, 381; 144 NW2d 850 (1966), lv den 379 Mich 751 (1967).
Although not mentioned by either the Echols or Phillips Courts, MCL 257.327; MSA 9.2027 provides that "[n]o person shall knowingly employ any chauffeur to operate a motor vehicle who is not licensed as provided in [the] chapter”. An employer convicted of violating this section is guilty of a misdemeanor. MCL 257.901; MSA 9.2601. | [
3,
-50,
-60,
-14,
11,
-3,
5,
-14,
-55,
53,
-9,
3,
79,
-38,
40,
11,
26,
27,
-97,
-9,
-23,
-3,
44,
67,
-3,
-36,
38,
-24,
-5,
2,
-86,
-4,
-32,
5,
-17,
-69,
-12,
-2,
20,
20,
-32,
1,
-28,
18,
-16,
-45,
37,
16,
26,
27,
-38,
8,
-39,
-29,
33,
14,
65,
-26,
-8,
39,
-11,
51,
2,
34,
-5,
-6,
-20,
30,
6,
-2,
16,
10,
-59,
-27,
-20,
-1,
8,
23,
7,
40,
25,
-26,
35,
0,
45,
39,
8,
30,
-10,
12,
-24,
-10,
-12,
-33,
-21,
45,
-36,
-77,
40,
-15,
-49,
29,
23,
27,
-31,
-4,
6,
-16,
-29,
-39,
-30,
-36,
48,
-8,
-4,
-3,
14,
19,
24,
19,
43,
30,
-26,
-27,
40,
-9,
-32,
53,
-22,
18,
4,
-1,
-2,
21,
-21,
10,
40,
-27,
-7,
29,
-19,
61,
28,
-28,
8,
14,
-22,
-56,
27,
-47,
-12,
-4,
27,
10,
-19,
-24,
36,
1,
27,
-1,
1,
-19,
36,
11,
6,
-72,
42,
7,
67,
-53,
31,
-7,
23,
-12,
27,
-21,
69,
14,
-52,
-16,
-64,
-47,
-3,
2,
36,
-5,
9,
-46,
8,
14,
6,
-27,
17,
17,
-9,
21,
-1,
66,
6,
-10,
-65,
-11,
-1,
-6,
55,
50,
-13,
-71,
35,
-44,
-16,
1,
-24,
-45,
19,
-3,
51,
18,
32,
-37,
-21,
25,
-10,
-22,
-32,
-12,
-15,
-16,
-2,
-17,
9,
29,
87,
18,
-38,
40,
31,
-19,
61,
13,
-29,
4,
15,
31,
-35,
-40,
-46,
-43,
19,
1,
36,
41,
-21,
7,
-48,
-19,
9,
42,
-26,
11,
-11,
21,
9,
-10,
-31,
28,
-15,
38,
15,
-42,
46,
23,
43,
-61,
-26,
-30,
4,
-3,
31,
-34,
-4,
39,
-62,
53,
-14,
9,
-40,
-31,
-14,
-21,
26,
-46,
-43,
-8,
-8,
-66,
9,
-9,
-25,
49,
13,
-7,
21,
-5,
-5,
-20,
-76,
3,
56,
-29,
-3,
-37,
-6,
-5,
44,
-40,
-1,
-92,
21,
21,
36,
5,
2,
30,
-7,
-47,
-18,
-57,
-8,
-33,
30,
0,
-30,
13,
44,
12,
-18,
53,
26,
-4,
40,
-23,
-33,
-1,
5,
-9,
51,
4,
19,
-35,
25,
40,
25,
-1,
6,
-29,
26,
-49,
-74,
34,
-73,
0,
-9,
52,
-5,
-23,
-12,
-39,
68,
-19,
-23,
-36,
51,
-15,
-43,
-7,
0,
-1,
-11,
6,
-15,
-51,
30,
9,
-55,
-14,
25,
-1,
1,
-45,
1,
-40,
-28,
-16,
-5,
9,
32,
7,
-10,
6,
4,
19,
-15,
19,
-2,
-29,
3,
-55,
-19,
33,
-48,
65,
29,
-9,
-35,
16,
35,
-17,
10,
-6,
-32,
-15,
-43,
-21,
-5,
-24,
-7,
57,
0,
26,
-15,
13,
2,
-13,
-16,
-13,
-33,
-31,
-25,
22,
-4,
-22,
-70,
-34,
10,
4,
12,
-42,
-16,
-6,
10,
63,
-1,
27,
-40,
-5,
-16,
28,
-26,
-37,
-40,
-19,
10,
8,
16,
-47,
17,
46,
0,
6,
-15,
3,
-24,
0,
33,
37,
-2,
-31,
-35,
26,
24,
21,
12,
-48,
-33,
-31,
-9,
-35,
-58,
-2,
21,
-33,
-37,
54,
-24,
-7,
29,
-45,
-33,
-17,
-25,
-18,
28,
-16,
11,
-72,
-22,
-3,
-4,
-18,
-65,
27,
44,
54,
-4,
32,
-55,
-4,
8,
-14,
-47,
6,
-19,
-22,
-42,
21,
-106,
-29,
12,
65,
23,
19,
68,
31,
37,
8,
-19,
77,
-30,
-32,
-11,
13,
-5,
19,
9,
-18,
2,
0,
49,
8,
8,
0,
1,
-18,
-20,
30,
22,
-1,
22,
27,
-65,
-6,
-31,
30,
-41,
28,
-34,
35,
0,
-14,
19,
4,
25,
-3,
11,
26,
8,
-15,
-38,
3,
79,
55,
24,
-12,
-26,
-40,
16,
-2,
-7,
-39,
5,
-68,
32,
13,
28,
1,
31,
3,
7,
-12,
-22,
33,
-40,
60,
-26,
18,
16,
50,
6,
-9,
-17,
-42,
14,
-42,
-49,
-47,
48,
4,
23,
20,
-31,
81,
12,
11,
-80,
18,
44,
-17,
35,
0,
38,
16,
4,
-52,
-57,
-43,
-14,
13,
-9,
-25,
-12,
21,
19,
50,
-7,
-12,
27,
-10,
-23,
-16,
-15,
67,
0,
-9,
-36,
-17,
-29,
-21,
-19,
-1,
-11,
25,
0,
26,
6,
-3,
41,
-46,
-15,
3,
-5,
64,
4,
20,
41,
-15,
35,
19,
41,
47,
-27,
-32,
23,
22,
-15,
-18,
-28,
25,
33,
-45,
-7,
85,
9,
-33,
-49,
-66,
5,
44,
50,
-30,
-18,
48,
-21,
-6,
-16,
54,
-34,
-34,
9,
18,
21,
11,
13,
25,
6,
8,
-19,
-13,
12,
5,
-59,
-19,
-21,
-16,
10,
28,
42,
-38,
25,
-29,
0,
36,
-24,
9,
12,
-29,
5,
23,
-39,
-22,
98,
67,
-38,
22,
-41,
-11,
13,
12,
-6,
-82,
-37,
-33,
-22,
8,
-25,
19,
51,
-30,
-45,
1,
-2,
-5,
32,
48,
26,
-24,
-10,
-13,
5,
15,
-29,
33,
-5,
-10,
-13,
32,
12,
-52,
-39,
-16,
22,
-25,
37,
-6,
-44,
-30,
-44,
12,
-26,
-31,
-39,
28,
-24,
19,
12,
14,
19,
-5,
-9,
-27,
3,
12,
-8,
43,
66,
35,
-29,
-39,
12,
23,
32,
12,
-6,
34,
4,
3,
-19,
7,
-23,
-69,
1,
-1,
-59,
2,
-1,
2,
-12,
-28,
9,
15,
-46,
45,
30,
10,
38,
0,
15,
-4,
69,
-19,
-5,
-35,
-5,
-1,
-38,
-4,
28,
2,
18,
21,
-12,
-47,
-8,
61,
43,
5,
-2,
-13,
6,
49,
41,
11,
-12,
18,
4,
65,
-48,
-54,
0,
-22,
-32,
-61,
10,
-34,
-67,
39,
-2,
14,
48,
7,
-5,
-8,
62,
-24,
40,
-69,
34,
-7,
9,
34,
46,
69,
-24,
-13,
3,
-27,
7,
5,
-25,
-74,
30,
-19,
-35,
-19,
-10,
4,
2,
-3,
0,
31,
-54,
38,
11,
23,
37,
-20,
-33,
23,
15,
-71,
-66,
-9,
53,
-6,
-7,
-19,
3,
44,
-7,
8,
0,
-26,
-29,
48,
-6,
0,
17,
53,
15,
-37,
16,
-31,
-5,
13,
-58,
-17,
7,
13,
-23,
8,
36,
-16,
34,
16,
16,
65,
-23,
1,
34,
-31,
-3,
12,
16,
65,
39,
12,
39,
-31,
-29,
29,
21,
34,
13,
-17,
22,
10,
-16,
37,
25,
-21,
-15,
16,
-15,
42,
22,
-22,
11,
-23,
-60,
-11,
9,
37,
32,
3,
20,
1,
-21,
4,
25,
21,
88,
7,
-63,
55,
47,
33,
-22,
-68,
-19,
82,
36,
-16,
24,
-9,
-11,
35,
-25,
3,
-25,
0,
57,
-7,
-23,
-15
] |
Per Curiam.
Plaintiff appeals as of right from the trial court’s order of no cause of action after submission of the case on briefs and oral argument by stipulation of the parties. We affirm.
Plaintiff is a physician whose staff privileges were suspended by defendant Peoples Community Hospital Authority, through its Annapolis Hospital Executive Committee, for refusal to pay a $100 assessment against medical staff members to furnish a medical library. Plaintiff admits that he refused payment, but challenges defendant’s power to make such an assessment and to impose sanctions for noncompliance.
The Annapolis Hospital Executive Committee passed Resolution No. 75-81, which reads:
"According to the By-Laws, an assessment of $100.00 be made to contribute to the creation of a medical library at Annapolis Hospital, in order to fulfill the criteria for continuing the medical education program of the Michigan State Medical Society.”
Assessments are authorized by Art VII of the Medical Staff Rules, Regulations and Policies of the Peoples Community Hospital Authority, passed by the Board of Directors of the Authority. Art VII, entitled Duties & Assessments, provides:
"Members of the medical staff shall pay such dues as are determined by the action of the Executive Committee of each hospital staff. Funds accumulated from dues will be used as will be determined by the Executive Committee of the medical staff. Assessments in addition to the regular dues may be levied on all members of the medical staff by action of the Executive Committee, or by action of the majority of the medical staff. Members whose dues or assessments have not been paid after two written notiñcations, shall be recommended by the Secretary of the staff to the Executive Committee of the medical staff for suspension.” (Emphasis added.)
The resolution’s reference to the By-Laws ("according to the By-Laws”) would appear to be to Art XII, Sec. 12.11 of the Peoples Community Hospital Authority By-Laws passed by its Board of Directors:
"Library Committee. The Library Committee will be composed of not less than three members. It shall meet periodically and make recommendations to its Administrator for the purchase of medical and dental books and periodicals; advise in the disposition of obsolete material and assist in the acquisition of monies for the Library Book Fund.” (Emphasis added.)
The passage of the By-Laws and the Rules, Regulations and Policies, as well as suspension for. violations of these provisions, is authorized by MCL 331.6; MSA 5.2456(6):
"The board shall adopt bylaws, rules, and policies governing the operation and professional work of the hospital and the eligibility and qualifications of its medical staff. Physicians, nurses, attendants, employees, patients, and persons approaching or on the premises of the hospital and furniture, equipment and other articles used or brought on the premises shall be subject to the bylaws, rules, and policies as the hospital board may adopt or authorize to be adopted. The board may deny or revoke staff membership, or suspend or reduce hospital privileges to a physician who violates a provision of the medical staff bylaws, rules, and policies. The medical advisory committee, with the approval of the hospital board, shall adopt rules and policies governing the professional work of the hospitals and the eligibility and qualifications of their medical staffs. The rules and policies shall conform, as nearly as practicable, to the applicable standards recommended by the joint commission on accreditation of hospitals.” (Emphasis added.)
In addition, the guidelines of the Joint Commission on Accreditation of Hospitals provide:
"Principle
"Principle. The hospital shall provide library services appropriate to the professional and technical needs of the medical and hospital staff.
"Standard. Library services shall be made available to the medical and hospital staff. There shall be books, periodicals, and other materials appropriate to meet their needs.”
Plaintiff first attacks MCL 331.6; MSA 5.2456(6), which authorizes the Medical Advisory Board to adopt rules and policies conforming to the stan dards of the Joint Commission on Accreditation of Hospitals, as an attempt to delegate legislative power in violation of Const 1963, arts 3 and 4. He relies entirely on OAG, 1951-1952, No 1,306, p 164 (January 17, 1951), which examined the statute’s predecessor, 1915 PA 47, and found that the final sentence of the statute improperly delegated legislative power in violation of Const 1908, arts 4 and 5 (now see Const 1963, arts 3 and 4).
"It may well be doubted, therefore, whether the incorporation of the standards of the American college of surgeons [amended in 1972 to the Standards of the Joint Commission on Accreditation of Hospitals] into a statute by reference only lies within the power of the legislature, but this question is passed because of the uncertainty of the court decisions thereon. Assuming, therefor [sic], that the legislature may incorporate into our statutes by reference only the provisions of private documents and the recommendations of private corporations, the question is has it validly done so in this case? [sic] In my judgment the answer is 'no.’
"In the first place, as already mentioned, the act under consideration contains no standards by which it can be determined which of the standards recommended by the American college of surgeons are 'applicable,’ or how far it is 'practicable’ to adopt those standards thought to be 'applicable.’ The net result of the whole matter is that the loose language used in the grant of power to the medical advisory committee and hospital board of a joint hospital authority amounts to a grant of legislative power. There is nothing contained in the act by which it can be determined whether a particular rule, regulation, policy or standard is within or without the terms of the act. Each joint hospital authority might, with the best of intention, arrive at any set of standards for its operation that it deemed best or most expedient. I am therefore compelled to hold the last sentence of § 6 of P.A. 1945, No. 47, invalid as an attempted delegation of legislative power in violation of articles 4 and 5 of the constitution.” OAG, supra, pp 169-170.
We first note that the opinions of the Attorney General are not precedentially binding. David Walcott Kendall Memorial School v Grand Rapids, 11 Mich App 231, 237; 160 NW2d 778 (1968), lv den 381 Mich 765 (1968). Secondly, the Attorney General’s opinion found the allegedly invalid sentence severable from the remainder of the statute:
"When originally passed the 1945 act contained, in § 10 thereof, a severability clause. This clause was repealed by P.A. 1947, No. 129, § 4, which declared the general severability clause, C. L. 1948, § 8.5, to be applicable. Under familiar rules of statutory construction the invalidity of the mentioned sentence will not affect the validity of the remainder of the act.” OAG, supra, p 171 (citations omitted).
The remainder of the statute provides for the adoption of bylaws, rules, and policies governing the operation and professional work of the hospital and the eligibility and qualifications of its medical staff, as well as suspension for the violation of provisions adopted. Plaintiff has not challenged the remainder of the statute.
Third, the Michigan Supreme Court has set out three principles for determining whether a statute contains sufficiently defining limits and standards to avoid improper delegation of legislative powers. Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976):
"First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Argo Oil Corp v Atwood [274 Mich 47; 264 NW 285 (1935)].
"Second, the standard should be 'as reasonably precise as the subject matter requires or permits’. Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25; 58 ALR2d 1079 (1956).
"The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. * * *
"Third, if possible the statute must be construed in such a way as to 'render it valid, not invalid’, as conferring 'administrative, not legislative’ power and as vesting 'discretionary, not arbitrary, authority’. Argo Oil Corp v Atwood, supra, 53.”
Plaintiff has failed to address these considerations. In light of plaintiffs failure to challenge the remainder of the statute and address the considerations involved in a determination of sufficiency of standards incorporated in the statute, we deem this issue abandoned.
Plaintiff further argues that Art VII of the Rules, Regulations and Policies, which permits assessments and suspension for failure to pay the assessments, violates due process. Plaintiff cites Milford v Peoples Community Hospital Authority, 380 Mich 49; 155 NW2d 835 (1968). Milford, however, is easily distinguishable. In Milford, the Court considered a bylaw which provided that a physician could have his privileges reduced or revoked after notice and hearing, when such a reduction or revocation would appear to be "to the best interests] of the hospital and its patients”. Milford, supra, p 56. The Court reasoned that this language "attempt[ed] to confer upon the executive committee the arbitrary power to reduce privileges according to their whim or caprice, subject only to appeal to the staff and ultimately to the board, whose powers of review are equally arbitrary”. Milford, supra, p 62.
In contrast, Art VII of the Rules, Regulations and Policies in the instant case provided for suspension after two written notifications for specific conduct — failure to pay dues or assessments. Plaintiff admits he was advised of the assessment and pursued appeals to the Medical Advisory Committee and Appellate Review Committee. Plaintiff has alleged no lack of notice or opportunity to be heard. We therefore find that plaintiff has not been denied due process of law.
Plaintiff next argues that the provision providing for assessment and suspension for failure to pay is invalid because it is inconsistent with the Medical Staff By-Laws as required by Art XV, Sec. 15.1 of the By-Laws:
"The Staff of each hospital shall adopt rules, regulations and policies governing the professional work in each hospital not inconsistent with these By-Laws, which may from time to time be amended.” (Emphasis added.)
He contends that the By-Laws permit removal of the physician solely for professional incompetence, and that suspension under the Rules, Regulations and Policies for failure to pay an assessment thus violates this consistency provision. We disagree. Art VI, Sec. 6.7, of the By-Laws authorizes suspension for "violation of any of these By-Laws or the rules and regulations of the Staff”. By not paying the assessment, plaintiff has violated Art VII of the Rules, Regulations and Policies.
Plaintiff additionally argues that, according to Art XV, Sec. 15.1 of the By-Laws (see above), all rules, regulations and policies must deal solely with professional work which he defines as patient care and physician conduct. In the first place, the assessment in this case can be viewed as related to the professional work of the hospital and the physicians. Access to an updated medical library may be crucial at times to the performance of a physician. Secondly, we do not read this article as limiting rules, regulations and policies to profes sional conduct and patient care. Although under Art XV, Sec. 15.1, rules, regulations and policies governing professional work should Sbe consistent with the By-Laws, there is nothing in this provision which prohibits the passage of additional rules, regulations and policies dealing with hospital matters not directly related to professional conduct and patient care, but necessary to the functioning of the hospital.
Plaintiff next contends that MCL 331.6; MSA 5.2456(6) authorizes suspension of staff privileges only for unprofessional work by a physician. He argues that, although privileges can be suspended for the violation of bylaws, rules and policies, the bylaws, rules and policies must "[govern] the operation and professional work of the hospital and the eligibility and qualifications of its medical staff”. He apparently argues that the assessment and suspension was outside the scope of the operation and professional work of the hospital and the eligibility and qualifications of the physicians. As noted above, the acquisition of a medical library relates sufficiently to the professional work of the hospital and the physicians to fall within the subject matter of the bylaws, rules and policies.
Plaintiff finally argues that the resolution itself is invalid because (1) it refers to the bylaws and the bylaws do not authorize assessments, (2) the resolution did not fulfill its announced purpose of meeting the criteria of the continuing medical education program, and (3) the guidelines of the Joint Commission on Accreditation of Hospitals requires that the hospital itself provide library services. We do not find plaintiff’s argument persuasive. The By-Laws, Art 12, Sec. 12.11, do provide for the acquisition of monies for a medical library. One of the purposes of the resolution was "to contribute to the creation of a medical library in Annapolis Hospital”. The furnishing of the library would comply with the standard of the Joint Commission on Accreditation of Hospitals that "library services shall be made available to the medical and hospital staff’. The additional purpose, the medical education program, was apparently an attempt to add fluff to the resolution. When the assessment is viewed with respect to its primary purpose of the creation of a medical library, the assessment is valid.
Plaintiffs additional argument that one of the principles in the guidelines of the Joint Commission on Accreditation of Hospitals prohibits the assessment by requiring that "the hospital shall provide library services” is also not persuasive. The Commission’s standard states that "library services shall be made available to the medical and hospital staff”. Nothing in either the principle or standard restricts the funding of the library program to the hospital’s budget. The guidelines merely mandate that library services be provided.
Affirmed. Costs to defendant. | [
-17,
-17,
-54,
16,
1,
53,
33,
6,
-24,
14,
2,
-14,
81,
-18,
30,
-48,
-7,
-4,
-20,
-4,
-17,
0,
-19,
49,
-23,
7,
39,
47,
-5,
-28,
-2,
12,
-18,
17,
5,
0,
64,
-23,
7,
-21,
-3,
42,
-10,
-1,
-27,
-43,
21,
24,
29,
-44,
-18,
36,
-33,
17,
-12,
31,
34,
-62,
-28,
-17,
-50,
-3,
43,
-25,
27,
16,
2,
-23,
-23,
-25,
-9,
40,
-9,
-26,
4,
-19,
14,
-43,
0,
28,
-17,
17,
-18,
20,
-11,
-20,
-8,
0,
14,
-19,
2,
-22,
-18,
-27,
6,
34,
-12,
-44,
63,
-6,
-49,
9,
3,
9,
-3,
21,
13,
-48,
-3,
-47,
-24,
13,
-23,
-18,
-19,
1,
-2,
10,
-35,
10,
3,
13,
33,
-44,
-13,
15,
68,
20,
-8,
-8,
32,
11,
0,
-12,
-18,
35,
-1,
-37,
86,
-6,
-10,
48,
2,
4,
16,
11,
-8,
-21,
-34,
-48,
-15,
7,
24,
15,
9,
41,
8,
24,
1,
56,
37,
7,
-22,
-27,
11,
-13,
26,
26,
45,
-6,
57,
2,
25,
-4,
-55,
17,
17,
62,
-28,
-6,
-26,
-26,
7,
5,
-19,
29,
-15,
-28,
-18,
-45,
0,
-22,
-20,
-3,
41,
24,
-2,
27,
5,
-23,
-38,
24,
-16,
10,
14,
-16,
26,
-26,
-15,
-26,
16,
49,
-26,
8,
16,
3,
-16,
-20,
-40,
13,
-33,
-33,
9,
4,
13,
0,
46,
-10,
4,
-52,
-2,
-13,
-58,
42,
23,
14,
10,
16,
50,
6,
-106,
14,
-19,
4,
-34,
10,
4,
-14,
-37,
2,
47,
23,
53,
0,
-38,
-51,
-18,
12,
-46,
-6,
-2,
39,
0,
53,
-34,
12,
-24,
31,
14,
-12,
-58,
55,
-16,
-21,
6,
-8,
-16,
-30,
2,
27,
-27,
-20,
43,
10,
-79,
-15,
-8,
-4,
1,
13,
-6,
8,
-3,
-21,
52,
-4,
7,
25,
-54,
-15,
-7,
9,
52,
83,
8,
33,
2,
-13,
36,
-34,
-11,
-11,
-17,
-1,
26,
-38,
-30,
-1,
-7,
-37,
-36,
-33,
-3,
4,
-15,
-34,
58,
-92,
7,
-57,
-6,
4,
1,
-7,
37,
3,
-12,
30,
14,
12,
53,
26,
15,
2,
-6,
13,
-72,
8,
-53,
-27,
-13,
24,
22,
51,
-4,
-9,
-21,
-35,
-50,
30,
1,
15,
20,
-55,
14,
-6,
-10,
3,
-1,
13,
63,
-8,
28,
-16,
-42,
-13,
42,
-35,
-9,
58,
8,
6,
45,
-27,
18,
-44,
-27,
14,
45,
0,
-14,
-42,
24,
30,
-56,
14,
-52,
15,
47,
13,
15,
-7,
6,
41,
19,
7,
15,
22,
45,
18,
-46,
29,
-3,
16,
-8,
29,
49,
-38,
13,
-73,
24,
-14,
-9,
-6,
27,
-30,
-47,
-7,
-39,
47,
-40,
-89,
31,
-19,
3,
-49,
-44,
-4,
-13,
-21,
-1,
17,
27,
15,
-22,
-45,
18,
-11,
-8,
-11,
1,
-31,
-18,
44,
-38,
14,
-13,
0,
2,
-13,
-23,
-13,
-7,
9,
57,
29,
-24,
16,
-7,
-23,
-37,
0,
-30,
25,
-12,
-18,
-29,
15,
-15,
28,
26,
32,
-38,
10,
-45,
45,
-27,
1,
-40,
22,
12,
-38,
-32,
5,
52,
27,
-7,
8,
-46,
0,
-27,
-16,
-19,
-12,
24,
-90,
-18,
-54,
51,
-39,
-42,
-13,
7,
45,
-14,
-43,
34,
-16,
8,
45,
33,
30,
-22,
-7,
-4,
13,
-19,
-11,
10,
-11,
-13,
-15,
18,
23,
0,
1,
15,
-6,
15,
7,
-1,
6,
18,
5,
76,
-1,
-27,
41,
23,
44,
-32,
13,
-7,
-3,
-5,
38,
-7,
21,
51,
19,
-42,
24,
-22,
-3,
1,
26,
4,
-10,
33,
31,
41,
30,
-32,
20,
-13,
-15,
-12,
-3,
9,
-20,
30,
-15,
2,
-3,
-6,
-34,
58,
-36,
-39,
-38,
-44,
-16,
-15,
11,
79,
3,
18,
-9,
16,
-2,
-17,
8,
-25,
6,
-68,
-18,
40,
11,
29,
-30,
26,
4,
8,
-10,
-31,
-12,
-38,
0,
17,
23,
-26,
15,
39,
1,
13,
3,
3,
-37,
-8,
-38,
31,
-1,
24,
-42,
-32,
18,
-42,
37,
-20,
-12,
-26,
38,
-11,
26,
7,
15,
49,
-18,
1,
-14,
0,
48,
-15,
42,
-23,
-6,
-10,
-4,
-7,
-23,
7,
-9,
-28,
63,
37,
30,
56,
18,
11,
-13,
20,
40,
20,
13,
29,
-45,
-37,
-9,
22,
-36,
-87,
-7,
2,
17,
-54,
2,
-3,
0,
13,
-4,
16,
19,
23,
-26,
23,
-10,
27,
54,
17,
49,
-36,
-18,
-48,
46,
40,
-6,
-43,
8,
-4,
-58,
-7,
-26,
-71,
6,
23,
-3,
-4,
41,
21,
0,
-18,
-46,
-12,
-20,
47,
-8,
12,
-6,
24,
-51,
-49,
-5,
16,
14,
-44,
-46,
16,
-8,
7,
-5,
61,
48,
3,
2,
-22,
-14,
-38,
-12,
-32,
59,
-49,
27,
-70,
-1,
-38,
-4,
-3,
0,
9,
30,
-53,
23,
37,
26,
-32,
8,
3,
57,
29,
7,
-23,
-3,
47,
-91,
-44,
-24,
12,
-31,
-55,
2,
29,
-12,
19,
26,
-37,
-15,
-7,
-12,
-71,
12,
21,
-24,
13,
-3,
48,
40,
1,
16,
17,
-33,
39,
14,
18,
2,
18,
2,
-5,
-13,
-20,
-10,
-25,
-37,
8,
-25,
7,
-14,
-18,
-24,
-36,
-20,
5,
15,
-3,
22,
27,
2,
44,
8,
31,
0,
11,
21,
-49,
-6,
-2,
-50,
-14,
-2,
11,
-26,
-17,
-25,
-12,
49,
-15,
22,
-32,
19,
-5,
13,
24,
-10,
-35,
51,
71,
-20,
7,
-41,
45,
-4,
44,
14,
-11,
6,
-1,
60,
-13,
-30,
0,
-12,
-2,
9,
0,
-19,
-24,
-6,
41,
-24,
1,
-37,
-52,
26,
16,
-27,
68,
4,
-5,
-2,
-102,
26,
45,
3,
-13,
23,
-48,
-19,
-42,
-7,
-14,
26,
18,
33,
68,
1,
10,
-1,
42,
-2,
-7,
21,
-38,
12,
-28,
52,
-11,
-3,
-21,
33,
21,
-25,
-7,
67,
21,
-50,
-23,
24,
14,
-8,
-48,
-19,
4,
-10,
26,
10,
48,
5,
34,
-43,
-52,
22,
-23,
-5,
25,
19,
1,
29,
-39,
38,
8,
1,
-57,
-36,
21,
28,
-23,
3,
-15,
12,
-36,
22,
-10,
-26,
-2,
18,
-1,
3,
-15,
-25,
2,
-11,
-18,
27,
22,
-66,
33,
19,
-9,
-4,
47,
35,
-14,
-77,
35,
12,
-88,
-7,
-40,
-16,
-15,
-30,
26,
-22,
-3,
-7,
44,
28,
-4,
-5,
44,
15,
48,
-7,
13,
16,
-2,
-19,
40,
18,
44,
16,
22,
61,
50,
4,
23,
0,
-5,
-26,
-41,
26,
-10,
13,
-35,
1
] |
Shepherd, P.J.
Plaintiff appeals as of right from a grant of summary judgment for failure to state a claim, GCR 1963, 117.2(1). We reverse.
By her complaint, plaintiff alleged that she injured her thumb when she fell on a shopping center parking lot. She was returning from one of the stores in the shopping center to her automobile when she fell. Defendant owns the parking lot. Plaintiff claimed that defendant breached a duty owed to invitees of the shopping center to remove ice and snow from the parking lot. According to plaintiff, this breach of duty resulted in an unsafe condition and caused her fall.
The circuit judge held that the rule of "natural accumulation” applied to the situation described in the complaint and, therefore, the defendant city lacked responsibility for plaintiffs injury.
Summary judgment was proper only if plaintiffs claim is so clearly unenforceable as a matter of law that no factual development could possibly furnish a basis for recovery. Abel v Eli Lilly & Co, 418 Mich 311, 323; 343 NW2d 164 (1984); Denning v Farm Bureau Ins Group, 130 Mich App 777, 788; 344 NW2d 368 (1983).
It is beyond peradventure that the owners of a shopping center have a duty to their business invitees "to exercise reasonable care to diminish the hazards of ice and snow accumulation”. Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 (1975). As owner of the parking lot, the defendant city assumed the same duty. Id., pp 266-270. Defendant had the requisite "control and possession” of the parking lot to give rise to a duty to make the area safe. Id., p 267; see also, Siegel v Detroit City Ice & Fuel Co, 324 Mich 205, 214-215; 36 NW2d 719 (1949).
Defendant relies on decisions in which Michigan courts have applied the so-called "natural accumulation” rule:
"A municipality in Michigan is not negligent if it omits to protect pedestrians from dangers to life and health which are caused by the accumulations of ice and snow on sidewalks from natural causes.” Hampton v Master Products, Inc, 84 Mich App 767, 770; 270 NW2d 514 (1978). (Citations omitted.)
In Quinlivan, supra, p 256, the Supreme Court declined to address the "duty owed the user of public streets and sidewalks”. Rather, the Court did away with the "natural accumulation” rule as it related to private land. Nevertheless, what remains of the rule does not prevent assignment of liability to the city in this case. The situs of plaintiffs alleged injury was not a public street or sidewalk, but a commercial parking lot. Plaintiffs claim does not call for consideration of the city’s statutory duty with respect to public highways or sidewalks. Id.; MCL 691.1401 et seq.; MSA 3.996(101) et seq. Rather, defendant’s duty arises from its ownership of a commercial premises and the consequent assumption of responsibility to the invitees of the establishments served by that premises. Hence, the natural accumulation doctrine, which limits only defendant’s statutory duty, has no application to the instant matter.
Defendant raises no defense on governmental immunity. In any event, we do not view ownership of a shopping center parking lot as a "governmental function”. MCL 691.1407; MSA 3.996(107). We hold that the city, as the owner of a commercial parking lot, owed plaintiff a duty of reasonable care. This duty "require[d] that reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee”. Quinlivan, supra, p 261. Accordingly, plaintiff stated a viable claim.
Reversed and remanded for proceedings consistent with this opinion.
No costs, a public question being involved. | [
-76,
28,
-14,
1,
-8,
20,
57,
24,
5,
46,
46,
-6,
24,
25,
6,
-15,
-6,
-6,
-18,
2,
-34,
-29,
-17,
-7,
-41,
-36,
36,
-13,
58,
21,
17,
-29,
-43,
2,
-34,
23,
-8,
24,
9,
35,
33,
18,
51,
-37,
19,
-16,
9,
0,
53,
-22,
46,
23,
-17,
-40,
-2,
-25,
32,
64,
-10,
0,
-19,
23,
46,
33,
42,
46,
-39,
3,
-26,
16,
-42,
35,
-21,
-31,
-12,
14,
-3,
35,
-31,
-11,
-15,
32,
32,
43,
-16,
17,
-48,
23,
-25,
-66,
-36,
-28,
-22,
13,
-6,
64,
-31,
-30,
-10,
-15,
20,
26,
37,
11,
-26,
4,
-8,
-72,
-4,
-11,
-26,
30,
-20,
-36,
-18,
4,
48,
27,
4,
4,
11,
-10,
2,
-4,
27,
-16,
20,
-42,
-17,
21,
16,
22,
-35,
9,
-5,
-17,
-11,
5,
-8,
11,
10,
3,
20,
-17,
-12,
13,
-13,
12,
-22,
-8,
-16,
9,
17,
-27,
-21,
-8,
1,
-7,
27,
-17,
36,
3,
-18,
16,
-20,
-43,
16,
51,
-32,
0,
62,
-31,
3,
-76,
8,
-3,
-2,
-13,
-15,
14,
16,
-15,
57,
17,
-37,
-24,
-52,
-19,
-13,
-17,
31,
-33,
-8,
23,
-27,
81,
25,
66,
33,
-72,
14,
-52,
-12,
-69,
-12,
25,
-3,
-45,
6,
20,
0,
-6,
-24,
-52,
-2,
-36,
24,
-64,
3,
-17,
0,
2,
9,
-7,
4,
-37,
-26,
-24,
-57,
-21,
11,
-2,
58,
30,
17,
14,
35,
12,
55,
-18,
31,
52,
-49,
-42,
-55,
29,
-60,
17,
-17,
26,
22,
-11,
-20,
-17,
-41,
-21,
13,
-19,
-16,
-16,
12,
57,
13,
22,
-29,
13,
-40,
39,
-64,
-53,
-12,
49,
-9,
1,
-19,
-58,
-1,
15,
50,
17,
-10,
3,
10,
-64,
-22,
37,
-16,
18,
4,
5,
37,
-6,
-12,
29,
35,
34,
0,
-62,
-35,
-3,
19,
1,
38,
40,
29,
25,
-14,
30,
-15,
-17,
6,
9,
-17,
-8,
9,
-9,
3,
-12,
55,
6,
15,
20,
1,
17,
-31,
-20,
13,
-50,
15,
-23,
1,
6,
-11,
22,
23,
0,
22,
-9,
-75,
0,
54,
38,
10,
-36,
13,
44,
8,
1,
-11,
19,
-57,
11,
-1,
-8,
56,
6,
76,
-35,
-48,
43,
23,
5,
21,
-43,
-32,
-20,
-20,
-18,
-19,
77,
-53,
-20,
-14,
3,
-27,
-64,
14,
-7,
-29,
31,
46,
-64,
13,
4,
-9,
-23,
-27,
-25,
-5,
-13,
-16,
-27,
35,
15,
-18,
-20,
-10,
-23,
-31,
-7,
4,
9,
28,
1,
-25,
-74,
27,
-28,
21,
16,
-4,
-7,
8,
-1,
-58,
4,
71,
5,
37,
-13,
21,
18,
24,
-64,
1,
-71,
8,
-29,
-20,
10,
12,
0,
-17,
-24,
24,
5,
-45,
-97,
-25,
-22,
-15,
-20,
-3,
-10,
-14,
-12,
6,
7,
36,
-25,
40,
14,
36,
-27,
-13,
11,
22,
-4,
46,
-75,
58,
-2,
-32,
-16,
57,
-21,
-3,
-27,
12,
0,
-12,
24,
4,
43,
56,
32,
20,
18,
-28,
-10,
-18,
28,
28,
-50,
-37,
-60,
34,
29,
-38,
18,
42,
17,
6,
-36,
-5,
-22,
-27,
0,
-64,
-32,
0,
0,
-29,
34,
60,
-15,
-3,
-36,
13,
47,
-53,
-23,
10,
42,
19,
0,
22,
-21,
2,
15,
-35,
-11,
-45,
18,
-12,
0,
3,
8,
4,
15,
36,
4,
-32,
0,
31,
14,
-5,
-11,
4,
-10,
12,
43,
17,
8,
13,
4,
3,
41,
41,
0,
-10,
-12,
-25,
28,
26,
-29,
-21,
-33,
43,
20,
-3,
89,
-3,
18,
67,
29,
45,
-39,
30,
-21,
-56,
-1,
13,
-42,
-30,
-9,
12,
10,
-4,
-29,
-21,
12,
-32,
-58,
-16,
24,
15,
17,
31,
-30,
-32,
-36,
5,
10,
26,
7,
-34,
-29,
29,
-5,
-23,
9,
-29,
-17,
15,
4,
-3,
-51,
20,
-26,
25,
25,
-12,
-11,
-33,
0,
30,
8,
24,
40,
18,
-24,
23,
34,
11,
-32,
-8,
-17,
-57,
-65,
-9,
12,
5,
-12,
-8,
-7,
1,
8,
-28,
-5,
-3,
-3,
-11,
-12,
1,
20,
15,
53,
-13,
-24,
-6,
70,
0,
-28,
7,
-16,
-23,
12,
-62,
-35,
-17,
-12,
-22,
-14,
-19,
20,
19,
-1,
8,
-4,
39,
20,
4,
21,
20,
32,
13,
34,
-11,
21,
-29,
-49,
59,
10,
-1,
-41,
-10,
29,
58,
-44,
-39,
11,
32,
13,
-11,
10,
33,
50,
0,
13,
-2,
-5,
25,
-12,
-32,
-13,
-6,
6,
-49,
26,
4,
47,
-9,
1,
14,
51,
-9,
0,
-23,
23,
-23,
-30,
8,
-19,
37,
-19,
34,
13,
12,
33,
-14,
12,
5,
14,
-33,
-19,
25,
-10,
27,
-25,
34,
58,
12,
-5,
-49,
4,
15,
-14,
7,
12,
-9,
29,
10,
-2,
-19,
-46,
-4,
6,
-38,
-29,
-3,
-58,
23,
7,
-20,
-3,
20,
-31,
0,
-1,
-38,
20,
14,
-45,
-17,
26,
-4,
-48,
18,
-2,
-45,
-53,
19,
31,
-54,
21,
30,
-25,
-5,
12,
1,
7,
0,
-65,
11,
32,
-10,
-11,
-12,
-32,
-9,
-14,
-18,
-4,
2,
16,
-47,
65,
8,
10,
45,
-64,
-1,
-30,
6,
36,
18,
43,
-1,
-12,
1,
28,
-63,
-3,
18,
3,
8,
-41,
38,
2,
11,
-33,
-42,
64,
-20,
11,
9,
-5,
30,
-15,
-4,
-24,
-27,
26,
34,
-28,
-14,
9,
-11,
44,
-16,
-24,
64,
31,
30,
-2,
-23,
7,
13,
24,
5,
-19,
-47,
20,
56,
40,
-13,
-6,
24,
0,
8,
90,
-35,
18,
-14,
44,
-21,
-54,
11,
-27,
37,
32,
25,
49,
-29,
16,
-25,
7,
-40,
31,
35,
44,
22,
-1,
-47,
-10,
-44,
17,
8,
-42,
-17,
24,
12,
0,
-48,
63,
-9,
-8,
-26,
-4,
-50,
-52,
9,
22,
2,
52,
-34,
-7,
1,
2,
13,
20,
17,
2,
-22,
6,
-3,
33,
-17,
21,
-74,
-9,
-7,
62,
44,
0,
-18,
-47,
-12,
-38,
7,
5,
21,
-3,
-66,
-68,
-6,
5,
-12,
0,
24,
23,
-13,
10,
-8,
-34,
2,
6,
-47,
1,
12,
35,
1,
-9,
45,
56,
46,
-41,
-14,
20,
-25,
-57,
16,
-5,
15,
0,
-20,
4,
-48,
40,
34,
-16,
-45,
9,
-26,
-27,
-37,
-30,
-64,
-29,
-38,
-5,
99,
16,
-16,
7,
-42,
22,
34,
-19,
18,
-7,
27,
-4,
36,
-9,
32,
22,
23,
-11,
-32,
14,
32,
3,
-16,
43,
-9,
17,
-19,
-29,
-9,
5,
32,
11
] |
J. W. Fitzgerald, J.
This case concerns enforcement of "anti-stacking” clauses in automobile insurance contracts in light of a Supreme Court order in this case.
This case was already once before this Court, and we take our facts from that opinion, which was an unpublished per curiam opinion (Docket No. 49132, decided February 23, 1981):
"On October 25, 1973, defendant was injured while driving his employer’s truck when it collided with a vehicle driven by an uninsured motorist. Aetna Casualty and Surety Company, not a party to this appeal, was the insurer of the employer’s truck. Defendant and defendant’s mother had separate policies of insurance issued by plaintiff, Detroit Automobile Inter-Insurance Exchange. All three policies provided uninsured motorist coverage.
"Pursuant to clauses contained in each policy, defendant demanded arbitration. One issue to be resolved was whether the policies’ uninsured motorist coverage could be 'stacked’. The claim was submitted to a three-member arbitration panel. On June 16, 1978, the arbitrators rendered an award in favor of defendant in an amount of $60,000 — $20,000 to be paid by Aetna and $40,000 to be paid by DAIIE.
"On July 5, 1978, both insurers filed actions in the Wayne County Circuit Court to vacate the awards. The trial court remanded the matter to the arbitration panel to hear closing arguments. Following arguments, the arbitrators affirmed the original award. Plaintiff DAIIE again moved to vacate the award on the theory that the arbitrators had made a clear error of law. Following a hearing on December 7, 1979, the trial court noted the conflicting case law on 'stacking’ in this Court and held that the arbitrators had not made a clear error of law.”
Plaintiff appealed the trial court’s ruling to this Court. This Court held that, although the Supreme Court had ruled in Bradley v Mid-Century Ins Co, 409 Mich 1; 294 NW2d 141 (1980), that uninsured motorist’s coverage could not be "stacked”, that decision was issued subsequent to the arbitrators’ award. Since the law on the subject prior to that decision was conflicting, the arbitration award constituted a "mere legal error”, as opposed to a "manifest disregard of the law”, and thus there was no basis for reversing the award.
Plaintiff’s application for leave to appeal to the Supreme Court was held in abeyance pending its decision in DAIIE v Gavin, 416 Mich 407; 331 NW2d 418 (1982). After Gavin was released, the Supreme Court issued an order in this case stating in part:
"* * * in lieu of granting leave to appeal, the judgment of the Court of Appeals is reversed and the case is remanded on April 19, 1983, to the Wayne Circuit Court for entry of a judgment conforming with DAIIE v Gavin and DAIIE v Standfest.” 417 Mich 944 (1983).
On remand, the circuit court judge granted the plaintiffs motion for entry of judgment based on the Supreme Court’s order. Defendant appeals as of right from that order. Plaintiffs motion to affirm the trial court’s decision was denied by this Court on July 30, 1984.
We affirm the trial court’s order for entry of judgment in favor of plaintiff because the express wording of the Supreme Court’s order yields no ground to do otherwise. The order explicitly directs the circuit court to enter a judgment "conforming with” Gavin and Standfest.
In both Gavin and Standfest, which are factually similar to the instant case, this Court had affirmed arbitration awards which had ignored "anti-stacking” provisions. The Supreme Court reversed both cases: In Bradley, supra, the Court had held that such provisions in policies effective on or after October 1, 1973, were valid, so that the arbitration panel in both Gavin and Standfest had erred as a matter of law. The Court announced a new standard for reviewing arbitration decisions based on legal error. The Court then explained that it was altering the awards in both cases:
"not because the rule ultimately announced in Bradley was obvious, inevitable, or 'clear’, but because it is evident from the face of the awards that the arbitrators in those cases erred in not enforcing the anti-stacking provisions of the insurance contract, the terms of which primarily governed the controversy, and that but for such error the awards would have been substantially different.” Gavin, supra, p 444.
The Court reduced the defendants’ awards to $20,-000 (the liability limit for uninsured motorists coverage under the policy) "and remand[ed] to the circuit court to enter judgment accordingly”. Gavin, supra, p 446.
Defendant suggests that the trial court in this case should have considered whether the arbitrators’ award was "substantially wrong” under the new standard of review announced in Gavin. However, since this case was in all material respects identical to Gavin and Standfest, there was no more point in remanding in this case than in those cases. As in those cases, the arbitrators’ error in this case was in not enforcing the anti-stacking provisions of the insurance contract.
The fact that several orders issued by the Supreme Court in similar cases contain language remanding "for reconsideration” in light of Gavin and Standfest does not alter our conclusion. Those cases may have involved facts which did not bring them clearly within the results required under the facts of Gavin. To order the trial court in this case to reconsider in light of the new standard of review announced in Gavin would distort the wording of the Supreme Court’s order, and would also be redundant, since the Court already ruled in the cases before it that such a step was unnecessary.
Defendant’s attempt to escape the effect of Bradley’s validation of anti-stacking clauses is disingenuous. The Bradley holding applied, not to insurance policies which "became effective” on or after October 1, 1973, but rather to policies which were "in effect” on or after that date. Bradley, supra, p 48. It is not disputed that the policy in this case became effective prior to October 1, 1973, and remained effective after that date. Moreover, it would be inconsistent with the Bradley reasoning for courts to continue to ignore anti-stacking clauses in insurance contracts which were signed before October 1, 1973. As the Bradley Court noted, the advent of the no-fault system removed the judicial concern for protecting the Motor Vehi ele Accident Claims Fund which had prompted holdings that anti-stacking clauses should not be given effect. Bradley, supra, pp 52-53.
Defendant’s argument that our decision to affirm the trial court’s entry of judgment for plaintiff would be an unconstitutional impairment of contract must fail of its own weight. Defendant is in effect arguing that this Court should continue to close its eyes to the clear terms of the contract. Our holding today does not impair any contractual right defendant had, but rather restores to plaintiff the effect of a contractual right previously denied it. See Guardian Depositors Corp v Brown, 290 Mich 433, 443-444; 287 NW 798 (1939).
Affirmed.
The opinion involved two separate appeals which were consolidated for decision, DAIIE v Gavin, Docket No. 62043, and DAIIE v Standfest, Docket No. 64862. | [
-43,
1,
52,
37,
-3,
-7,
0,
-15,
-9,
16,
-32,
17,
8,
-4,
-30,
1,
-13,
27,
-35,
22,
-62,
-4,
-45,
46,
9,
-17,
25,
-17,
21,
58,
-3,
-3,
5,
0,
-81,
-67,
-27,
46,
-3,
2,
12,
-29,
-27,
-27,
0,
-64,
35,
-28,
82,
10,
0,
20,
-1,
21,
-8,
-5,
28,
47,
33,
-4,
-19,
-3,
40,
61,
-46,
0,
27,
32,
5,
84,
-43,
0,
8,
19,
-13,
6,
-15,
9,
-16,
-34,
14,
9,
3,
24,
-25,
71,
-14,
-11,
17,
-31,
-54,
-88,
-10,
-19,
-1,
28,
-28,
-10,
-4,
34,
51,
-34,
2,
12,
16,
29,
-9,
-52,
-8,
50,
-24,
17,
13,
18,
30,
-21,
-28,
68,
2,
20,
2,
-14,
-35,
39,
-30,
27,
-31,
-9,
-20,
0,
-9,
33,
15,
37,
9,
1,
11,
-15,
-34,
20,
10,
-7,
13,
5,
2,
50,
-34,
-37,
-18,
-49,
20,
24,
18,
-16,
-54,
0,
-50,
-24,
45,
-61,
3,
-43,
9,
26,
-67,
-49,
-5,
52,
-7,
36,
25,
-33,
1,
2,
26,
26,
23,
-56,
-28,
44,
4,
-5,
1,
-5,
40,
-66,
-13,
27,
6,
-26,
63,
-65,
-33,
32,
-8,
0,
11,
62,
-7,
74,
34,
-48,
-22,
-36,
-23,
10,
-42,
-30,
-67,
0,
7,
-29,
-22,
-27,
-6,
71,
25,
-21,
-2,
-31,
-1,
10,
-17,
-16,
-28,
-50,
-66,
-60,
-20,
-13,
31,
33,
-7,
70,
-5,
-41,
-25,
-2,
25,
33,
52,
-15,
-47,
-18,
27,
-12,
0,
24,
10,
6,
36,
-12,
35,
-17,
-16,
-43,
7,
-6,
3,
-17,
-2,
35,
-17,
9,
38,
48,
10,
-27,
11,
-44,
2,
-6,
10,
-5,
-8,
-69,
35,
7,
22,
-2,
1,
47,
-75,
-26,
-30,
-9,
-8,
26,
-12,
11,
46,
-46,
-2,
22,
-15,
-7,
19,
-29,
-4,
-45,
28,
-3,
25,
-7,
19,
3,
-54,
-13,
-14,
16,
-80,
-19,
2,
-16,
48,
-74,
7,
-30,
28,
-21,
7,
104,
11,
42,
1,
-39,
-4,
0,
22,
-23,
-37,
59,
0,
33,
-6,
-58,
26,
42,
40,
23,
-26,
13,
3,
-15,
-29,
-17,
74,
-7,
44,
-17,
-42,
15,
-48,
-12,
-34,
39,
79,
19,
-32,
-5,
-40,
12,
-47,
23,
-1,
0,
8,
42,
-14,
34,
5,
8,
8,
-17,
17,
-42,
-19,
14,
-32,
34,
-11,
-22,
-6,
0,
-15,
38,
-55,
-19,
-37,
37,
-128,
3,
1,
19,
11,
4,
30,
3,
-9,
11,
46,
23,
-5,
-7,
-1,
4,
13,
-63,
-43,
-83,
30,
-41,
-64,
-20,
10,
57,
19,
1,
-94,
-68,
13,
45,
-4,
-79,
0,
-36,
50,
12,
18,
-22,
-25,
-15,
-8,
-70,
23,
14,
-11,
-29,
39,
-26,
-41,
17,
-30,
-10,
-14,
-32,
-16,
1,
57,
3,
60,
21,
29,
27,
-60,
20,
-43,
-21,
-11,
-49,
-43,
-33,
12,
-21,
6,
-43,
13,
30,
20,
-49,
-27,
4,
22,
17,
19,
-17,
-28,
-59,
-39,
1,
-42,
36,
18,
-29,
-7,
-42,
71,
1,
-32,
20,
24,
-38,
-9,
-41,
-48,
-32,
23,
5,
-39,
-23,
-32,
19,
40,
-22,
65,
-25,
-58,
-24,
-6,
9,
0,
26,
48,
56,
27,
18,
-23,
14,
30,
10,
-7,
16,
-37,
11,
14,
-8,
-33,
-45,
9,
15,
38,
46,
48,
-4,
0,
62,
33,
-2,
-36,
-7,
23,
-1,
-8,
-55,
34,
-57,
-15,
-25,
25,
-38,
43,
-6,
23,
-20,
-3,
8,
33,
-10,
-69,
36,
-28,
11,
4,
17,
-10,
39,
14,
-28,
60,
-7,
-60,
2,
19,
19,
-2,
-26,
-26,
23,
-57,
3,
-19,
13,
-45,
16,
-66,
-4,
36,
-13,
-62,
-33,
50,
-55,
-6,
9,
7,
19,
24,
4,
-24,
9,
-1,
-38,
-47,
-1,
-14,
1,
12,
48,
34,
-31,
0,
-12,
-55,
-20,
-12,
4,
-5,
7,
13,
-20,
-30,
49,
8,
27,
-18,
28,
46,
10,
10,
13,
30,
-22,
7,
-18,
20,
-33,
21,
82,
-20,
38,
-50,
14,
32,
-21,
-2,
-4,
-2,
31,
-33,
-4,
-65,
55,
-23,
-32,
-31,
15,
16,
-29,
-61,
9,
-44,
2,
-10,
14,
-16,
15,
53,
-22,
46,
2,
36,
-9,
46,
-12,
56,
48,
30,
69,
4,
64,
-34,
34,
-15,
6,
12,
11,
-9,
24,
37,
32,
-50,
65,
-51,
-40,
6,
-12,
19,
42,
-74,
-5,
-5,
40,
31,
5,
-69,
4,
-18,
3,
12,
14,
-12,
-38,
3,
-28,
5,
89,
-18,
32,
-44,
-58,
17,
-78,
71,
-27,
-11,
42,
58,
-22,
8,
33,
39,
-44,
-28,
-4,
36,
17,
20,
-29,
25,
8,
8,
0,
42,
34,
-36,
-11,
-54,
42,
-13,
-9,
-21,
-5,
-21,
2,
29,
-11,
-12,
-14,
19,
-23,
-40,
-46,
-10,
33,
-33,
-7,
7,
7,
13,
-39,
4,
14,
28,
-11,
-1,
-1,
-12,
-42,
-76,
6,
26,
12,
30,
7,
-7,
-25,
-2,
-11,
20,
15,
13,
23,
65,
-50,
34,
48,
-33,
14,
-27,
1,
32,
64,
23,
17,
3,
-42,
35,
34,
36,
-21,
22,
8,
-1,
-39,
13,
-15,
-13,
6,
-47,
31,
0,
50,
-68,
-49,
-25,
-13,
3,
-25,
30,
9,
29,
-21,
-29,
-1,
23,
74,
36,
-11,
-54,
-25,
56,
15,
-66,
13,
20,
-20,
5,
37,
24,
18,
6,
-68,
-5,
-8,
27,
-41,
-10,
-13,
-22,
30,
8,
-45,
-35,
3,
44,
-3,
-4,
28,
-4,
21,
-16,
1,
5,
-33,
-24,
15,
-9,
-18,
27,
-54,
-29,
9,
-9,
82,
-22,
-1,
23,
-11,
-56,
34,
58,
-27,
-19,
-13,
-50,
-31,
-10,
32,
35,
-29,
14,
42,
-25,
14,
-21,
86,
6,
37,
-75,
12,
52,
-10,
12,
24,
-3,
74,
3,
-20,
-56,
52,
31,
0,
4,
-46,
0,
38,
52,
32,
50,
28,
24,
-21,
6,
14,
-31,
-23,
-18,
23,
-25,
-5,
-11,
22,
9,
46,
-31,
-24,
55,
-21,
3,
-4,
31,
-3,
-5,
53,
-35,
39,
-17,
-52,
5,
0,
-9,
-29,
16,
-21,
47,
-36,
-15,
-7,
-28,
-26,
-24,
0,
12,
-22,
8,
30,
19,
-14,
-35,
-64,
4,
19,
-20,
50,
-11,
-11,
-9,
13,
-32,
42,
-43,
-24,
-5,
15,
4,
11,
46,
54,
54,
30,
6,
6,
66,
16,
-23,
51,
13,
-27,
27,
4,
-26,
40,
-47,
29,
57,
46,
-2,
-33,
-16,
-77,
3,
71,
15,
-68
] |
Per Curiam.
Defendants appeal by leave granted from the Workers’ Compensation Appeal Board’s (WCAB) decision to affirm with modifications a hearing referee’s finding of disability and award of benefits.
Plaintiff began working for Allied Supermarkets in 1970 as a truck driver. He worked in that capacity until January, 1977, when Allied was forced to reduce its number of truckdrivers. Instead, Allied offered, and plaintiff accepted, work in its warehouse moving crates of grocery goods. On March 12, 1977, plaintiff injured his back while moving a heavy crate of melons. Plaintiff was off work from March 13, 1977, until April 4, 1977, treating his back injury. During that period, Allied paid voluntary compensation benefits. When plaintiff returned to work, he did so in his former capacity as a truck driver. In October, 1977, another worker reduction caused plaintiff to return to warehouse work. Because plaintiffs back injury caused him to be unable to keep up with younger workers, Allied dismissed him on January 12, 1978. Plaintiff’s average weekly wage computed at the time of his March, 1977, injury was $379.03. At the time of his discharge, plaintiff’s average weekly wage was $400.
On April 19, 1978, plaintiff secured employment as a truck driver with the W. R. Grace Company. He was laid off by W. R. Grace twice, first from December 7, 1978, until April 30, 1979, and again for three weeks in the summer of 1979. On November 14, 1979, plaintiff was injured while working for W. R. Grace when he attempted to unhook a trailer from a tractor. That injury required surgery on plaintiffs right hip and leg for rehabilitation. W. R. Grace voluntarily paid plaintiff compensation benefits and was continuing to do so at the time of plaintiff’s hearing.
Prior to beginning his employment with the W. R. Grace Company, plaintiff filed a petition for hearing with the Bureau of Workers’ Disability Compensation. He alleged a specific injury date with Allied of March 12, 1977, at which time he injured his left hip and certain back muscles. One month later, again before plaintiff began working for W. R. Grace, he amended his petition to allege a disablement from an occupational disease as well as a specific injury disablement. He gave his last day of work, January 12, 1978, as the injury date for his occupational disease disablement. He alleged that frequent stooping, bending, and lifting exacerbated his back injury. Neither Allied nor its insurance carriers on the risk ever joined W. R. Grace as a party in that action.
On the basis of evidence presented at an April 28, 1980, hearing and medical depositions submitted after the hearing, the referee rendered a decision on June 18, 1980. The referee found that plaintiff did receive a personal injury arising out of the course of his employment with Allied on January 12, 1978, and that plaintiff was engaged in unskilled labor at that time with an average weekly wage of $400. The referee ordered Allied and its insurer on the risk at that time, National Union Insurance Company, to pay plaintiff $153 weekly from January 12, 1978, to April 19, 1978, inclusive, and $153 per week from December 7, 1978, to April 30, 1979, inclusive for total disability, and for three weeks in the summer of 1979. The referee also ordered Allied and National to pay plaintiff $153 weekly for a partial disability from November 14, 1979, to the date of hearing and thereafter until further order of the bureau.
The referee further ordered that:
"Employee is still totally disabled from occupational disease date of January 12, 1978 to present time. Defendants Allied Supermarkets, Inc. & National Union Ins. to be given credit for compensation now being paid to employee for broken hip and leg injury suffered November 14, 1979, while employed at another separate distinct employer, to wit: W. R. Grace. Proportion based on formula of Thumser v Lakey Foundry, 84 Mich App 319, [269 NW2d 583 (1978), rev’d in part 406 Mich 891 (1979)].”
Allied and National Union filed a timely application for a review of plaintiffs claim with the WCAB. Soon thereafter they also filed a motion to be excused from Allied’s obligation to pay 70% of the awarded benefits pending the appeal to the WCAB, MCL 418.862; MSA 17.237(862). Allied argued that plaintiff was already receiving voluntary compensation from W. R. Grace and so would not suffer without the 70% payments. The WCAB granted the motion in a September 30, 1980, order.
On March 30, 1983, the WCAB issued a split decision which affirmed the award of benefits to plaintiff but which modified the referee’s decision. The WCAB ordered Allied to pay compensation in accordance with § 361 of the Worker’s Disability Compensation Act (WDCA), MCL 418,361; MSA 17.237(361), at a weekly rate of $132, from March 13, 1977, to April 28, 1980, inclusive, and thereafter until further order of the bureau. Allied received credit for compensation it had already paid plaintiff. The WCAB also ordered that the referee’s finding of a January 12, 1978, injury date and the further order quoted above be deleted.
The WCAB controlling panel submitted a 12-page opinion with its order. In that opinion the WCAB found that bending, lifting, and reaching in Allied’s warehouse did not do any further lasting damage to plaintiff’s back. Therefore, the WCAB found only a specific date injury, not an occupational disease. Medical testimony showed that by September, 1979, plaintiff suffered only one residual effect of his 1977 injury, lower back pain. A medical doctor also testified that, although he did not consider plaintiff disabled because he could work, he would advise plaintiff not to do warehouse work if he could avoid it. The WCAB found this evidence to be sufficient for a finding of disability within the meaning of the WDCA.
The WCAB dismissed Allied’s argument that any disability plaintiff suffered was attributable to the injury he sustained while working for W. R. Grace. The WCAB found that W. R. Grace was not a party to the claim and that the WCAB did not have the authority to determine W. R. Grace’s obligation to plaintiff. The WCAB found plaintiff to be entitled to full compensation by defendants without regard to benefits from any other source, including W. R. Grace. Furthermore, the WCAB found that "[p]laintiff has shown a clear trail of work-related partial disability from March 12, 1977, to date of hearing, independent of disability resulting from his November 14, 1979, injury”. The WCAB then implied that plaintiff had established a new wage-earning capacity after his 1977 injury. The WCAB also repudiated the apportionment formula found in Thumser, supra, relied upon by the referee, because Thumser was subsequently reversed by the Supreme Court.
In their application for leave to appeal, defendants’ arguments were (1) that the WCAB erred by awarding a total benefit to plaintiff for his disability while he was receiving concurrent total benefits from the W. R. Grace Company, and (2) that the WCAB erred in failing to grant defendants an offset against the voluntary benefits W. R. Grace was paying plaintiff. In their brief on appeal, defendants argue that plaintiff is not entitled to compensation for two total disabilities because he did not have two concurrent wage-earning capacities at the time of his injuries, Hairston v Firestone Tire & Rubber Co, 404 Mich 104; 273 NW2d 400 (1978), or, alternatively, that the evidence was not sufficient for the WCAB to find that plaintiff had established a new wage-earning capacity at W. R. Grace.
Plaintiff argues in reply that the WCAB correctly found compensation due by defendants to plaintiff without regard to the compensation being paid to plaintiff by W. R. Grace. Plaintiff relies on Hairston, supra, as did the WCAB. Plaintiff also raises the argument in his appellate brief that the WCAB did not have the authority to suspend defendants’ obligation to pay 70% of his benefits pending appeal. Plaintiff did not cross-appeal on this issue.
The WCAB’s findings of fact are conclusive on appeal and may not be altered if there is any competent evidence in the record to support the findings. Const 1963, art 6, §28, MCL 418.861; MSA 17.237(861). There is competent evidence on this record to support the WCAB’s finding that plaintiff suffered a specific injury on March 12, 1977, that left him permanently partially disabled in the field of common unskilled labor.
We cannot conclude, as the parties do, that the WCAB conclusively found that plaintiff established a new wage-earning capacity after the 1977 injury. Thus, we must remand to the WCAB for clarification on this point. Moreover, we are convinced that the WCAB failed to do an adequate job of analyzing plaintiff’s right to compensation from defendants even if the WCAB does find that plaintiff established a new post-injury wage-earning capacity. Therefore, we find it necessary to address the law on this point.
The objective of the WDCA is to compensate employees for the loss of earning capacity that is the result of a work-related injury. MCL 418.371(1); MSA 17.237(371X1), Lahay v Hastings Lodge No 1965 BPOE, 398 Mich 467, 479; 247 NW2d 817 (1976). Compensation awards cannot be made for particular physical injuries as such, but for disability produced by such injury. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 251-252; 262 NW2d 629 (1978), citing 2 Larson, Workmen’s Compensation Law, § 57.10.
The test for determining whether a claimant has not only a work-related injury but also a lost wage-earning capacity due to that injury is multifaceted. A major factor to consider, of course, is the actual wage the claimant is able to earn post-injury. Other factors include the nature of the work performed, the continuing availability of work of the kind in which the claimant was engaged at the time of the injury, and the nature and extent of the injury. Benavides v Edward C Levy Co, 117 Mich App 722, 727; 324 NW2d 149 (1982). Furthermore, even if a disability is established, a claimant may be barred from receiving further compensation if the claimant reestablishes a wage-earning capacity in regular employment. Powell v Casco Nelmor Corp, 406 Mich 332, 352; 279 NW2d 769 (1979); Pulley v Detroit Engineering & Machine Co, 378 Mich 418; 145 NW2d 40 (1966). A post-injury wage-earning capacity is established when a claimant accepts regular employment with ordinary conditions of permanency. Powell, supra; MacDonald v Great Lakes Steel Corp, 274 Mich 701; 265 NW 776 (1936). Once a post-injury wage-earning capacity is established and the claimant is earning wages equal to or greater than the wages he or she was earning at the time of the injury, the claimant is not entitled to further compensation, Pulley, supra, and the WCAB can presume that the reestablished or new wage-earning capacity continues. Powell, supra, pp 349, 351; Pulley, supra. In the event the post-injury wages should cease and the claimant seeks compensation for the disabling injury, the claimant then has the burden of showing that he or she is unable to obtain employment as a result of that injury. The claimant is not foreclosed from further benefits. However, the test is not whether the claimant could again work in precisely the same work he or she engaged in at the time of the injury. Rather, the test is whether the injury affected the claimant’s "wage-earning capacity after the injury in the same or another employment” MCL 418.371; MSA 17.237(371) (emphasis added). See Pulley, supra.
Thus, in this case the WCAB must determine if plaintiff established, or reestablished, a wage-earning capacity after his March 12, 1977, injury. If so, the WCAB must determine when. If plaintiff did establish or reestablish a post-injury wage-earning capacity, he is not entitled to benefits for those periods during which he received wages equal to or greater than his pre-injury wages. Moreover, if plaintiff did reestablish a post-injury wage-earning capacity and later lost that capacity, plaintiff had the burden of showing that the loss of that wage-earning capacity was attributable to his 1977 injury. Thus, if the WCAB determines that plaintiff reestablished a wage-earning capacity at the same or greater wages and plaintiff cannot show that it was his 1977 injury that caused his subsequent loss of wage-earning capacity, he is not entitled to compensation from defendants.
We agree with plaintiff that it is possible for a claimant to receive two concurrent disability awards where the claimant establishes that two distinct earning capacities have been destroyed by distinct disabilities, Hairston, supra, Thumser, supra; Hughes v Lakey Foundry Corp, 91 Mich App 170; 284 NW2d 135 (1979). However, we find it necessary to address the limits of that rule. In Thumser and Hughes, supra, the claimants were first disabled in their wage-earning capacities as skilled workers. They reestablished wage-earning capacities as unskilled workers at reduced wages. They each suffered separate and distinct disabilities with regard to their newly established wage-earning capacities. In both cases, claimants rightly received compensation for both disabilities. How ever, their compensation for their first disability was based upon the difference between their initial higher wages and later lower wages. This was added to the compensation due them based on their second disability in the lower wage-earning capacity. The same result is unlikely to occur in this case since plaintiff made higher post-injury wages both at Allied and at W. R. Grace.
Furthermore, this is not a case where the claimant suffers injuries in two concurrent jobs with different wage-earning capacities. See Hairston, supra, and Leizerman v First Flight Freight Service, 135 Mich App 385; 354 NW2d 351 (1984). Rather, the employment taken by plaintiff after his 1977 injury appears to be substitute work for the work performed by plaintiff prior to his injury. Compare Hughes, supra, and Bowles v James Lumber Co, 345 Mich 292; 75 NW2d 822 (1956). See also Leizerman, supra, p 389. Thus, plaintiff’s and the WCAB’s reliance on Hairston is misplaced. That case is factually distinguishable.
Because we decide to remand this case for clarification of facts and for the application of the proper legal analysis of wage-earning capacity to the facts, and because the WCAB must then reconsider plaintiff’s entitlement to compensation for his 1977 disablement, we do not address the other issues raised in this appeal.
It is therefore ordered that this case be remanded to the WCAB for reconsideration of defendants’ application for review of the claim within 60 days. We retain jurisdiction. | [
5,
-5,
-56,
48,
6,
30,
13,
0,
5,
6,
-24,
0,
31,
-12,
22,
-33,
19,
-5,
-26,
9,
16,
-11,
1,
27,
-22,
-48,
-17,
-42,
-47,
54,
-11,
0,
16,
-51,
-55,
-4,
32,
2,
37,
-1,
-3,
11,
-47,
20,
-23,
-25,
30,
26,
37,
4,
36,
17,
-13,
-17,
55,
35,
23,
4,
10,
16,
9,
-7,
65,
-48,
54,
-15,
-1,
14,
8,
26,
-5,
12,
-10,
-39,
13,
-86,
-18,
44,
20,
3,
4,
-47,
9,
7,
-61,
87,
-16,
53,
28,
-17,
-29,
-62,
-12,
12,
-56,
52,
-24,
15,
30,
-13,
-26,
-7,
19,
23,
23,
-9,
-5,
-5,
-26,
75,
1,
26,
41,
44,
-19,
24,
54,
5,
0,
53,
31,
-18,
-12,
-7,
17,
-15,
5,
-21,
-33,
33,
48,
12,
-24,
-10,
7,
53,
16,
-47,
-22,
-44,
2,
49,
-76,
-28,
-28,
27,
-19,
-9,
-20,
-29,
28,
15,
1,
-29,
19,
21,
43,
13,
-4,
-19,
-7,
-25,
-2,
21,
-13,
-1,
15,
17,
8,
-7,
27,
-35,
28,
-44,
-13,
53,
64,
18,
-21,
9,
-82,
-75,
-27,
-15,
-37,
-23,
-39,
-10,
32,
4,
13,
-18,
-2,
5,
17,
-16,
57,
-25,
-9,
39,
2,
-8,
-3,
22,
-2,
33,
25,
0,
27,
-11,
45,
-12,
17,
-80,
-14,
33,
-24,
10,
-12,
-20,
-11,
11,
9,
-17,
-42,
-14,
0,
-4,
58,
-13,
-8,
-34,
32,
33,
21,
-7,
20,
-15,
89,
-2,
-10,
-21,
-16,
-13,
-27,
7,
-21,
-9,
31,
0,
-32,
30,
-24,
15,
-54,
-62,
-27,
41,
-66,
-40,
2,
60,
16,
52,
10,
-34,
-23,
66,
18,
-44,
-38,
1,
44,
-40,
-12,
-20,
-32,
5,
90,
-10,
-13,
-18,
0,
-26,
-71,
-27,
47,
-24,
-7,
27,
61,
-53,
11,
-6,
13,
-16,
-57,
43,
-32,
-2,
2,
-28,
-40,
-17,
-27,
63,
-31,
-17,
2,
-2,
-36,
-67,
58,
-54,
24,
-13,
14,
13,
-19,
-84,
-25,
25,
38,
20,
10,
-48,
-12,
-23,
12,
-27,
-9,
15,
-26,
41,
20,
-28,
6,
52,
12,
35,
46,
57,
15,
28,
-38,
2,
26,
18,
56,
43,
0,
-32,
54,
22,
43,
1,
25,
-10,
-36,
66,
53,
-44,
-34,
5,
-10,
25,
22,
10,
-40,
43,
-2,
-20,
44,
-43,
-55,
-29,
-7,
7,
13,
6,
46,
-11,
59,
-52,
-56,
-10,
-1,
-4,
0,
21,
-65,
-28,
53,
47,
-1,
33,
-14,
-32,
6,
27,
-33,
19,
10,
35,
45,
-20,
30,
-40,
-31,
-18,
12,
24,
-38,
14,
19,
-32,
65,
-9,
-56,
-12,
62,
-18,
3,
-39,
25,
-13,
-4,
8,
-53,
-23,
-45,
-45,
-10,
-38,
-4,
-26,
-15,
3,
-12,
-10,
-26,
-16,
-21,
-30,
-1,
11,
-19,
16,
67,
-27,
21,
2,
14,
30,
35,
-27,
-18,
12,
11,
1,
-4,
11,
-5,
-16,
73,
-27,
-1,
-27,
38,
12,
-18,
12,
34,
39,
3,
-45,
-40,
1,
13,
-4,
-8,
8,
-23,
5,
-15,
-3,
7,
3,
2,
52,
34,
7,
-12,
-18,
8,
8,
-38,
8,
-48,
-50,
-60,
-35,
24,
-20,
42,
-87,
3,
-72,
52,
-15,
-53,
13,
-20,
30,
4,
-6,
-23,
22,
-6,
39,
32,
17,
-39,
6,
-4,
-46,
-23,
38,
-16,
-31,
10,
-52,
38,
-3,
0,
-9,
11,
-13,
-40,
-29,
-25,
41,
-1,
-11,
29,
-59,
2,
25,
28,
21,
28,
-16,
25,
3,
6,
-7,
22,
4,
44,
-24,
10,
3,
11,
33,
6,
31,
22,
-1,
62,
46,
-51,
24,
3,
1,
16,
20,
-57,
10,
-22,
-27,
14,
-14,
0,
-28,
-61,
-59,
47,
-35,
7,
-46,
-8,
-23,
1,
-10,
70,
-23,
19,
-10,
38,
14,
-2,
-58,
-62,
-22,
-17,
19,
-5,
36,
35,
-32,
-20,
52,
12,
-56,
-43,
-38,
-16,
4,
-3,
38,
-3,
46,
-15,
1,
-24,
-7,
11,
-13,
-30,
20,
21,
5,
-12,
-48,
-9,
22,
18,
45,
-9,
7,
8,
36,
23,
30,
-53,
-78,
59,
8,
-42,
-15,
-24,
68,
-44,
18,
-13,
2,
84,
4,
-59,
-45,
-38,
31,
-10,
16,
25,
-19,
-17,
-9,
10,
-9,
7,
28,
19,
42,
76,
-3,
-26,
-11,
-5,
5,
-17,
-5,
39,
50,
-36,
49,
47,
-29,
-11,
-25,
-24,
28,
7,
-3,
31,
12,
42,
-11,
-28,
12,
-28,
53,
-19,
53,
27,
38,
-2,
-20,
19,
20,
-25,
-40,
-12,
-10,
68,
39,
9,
-22,
-30,
-48,
12,
-10,
-23,
-4,
-5,
37,
9,
-29,
-36,
-25,
-8,
27,
-11,
21,
-29,
-11,
-11,
6,
-22,
19,
61,
4,
35,
41,
-12,
5,
-6,
13,
-18,
30,
-70,
-29,
-42,
0,
20,
2,
-21,
-45,
-26,
6,
-28,
-37,
1,
46,
-10,
-1,
-24,
-17,
10,
-10,
-31,
69,
48,
-24,
-14,
-4,
23,
-38,
-17,
-3,
-18,
-42,
43,
7,
-38,
-47,
-24,
-34,
1,
-22,
-12,
-55,
53,
-40,
32,
19,
28,
-28,
-48,
-68,
-28,
47,
-18,
55,
23,
-26,
51,
5,
0,
-25,
-25,
-35,
0,
30,
20,
-26,
38,
19,
-38,
61,
29,
30,
-31,
-66,
8,
-5,
-35,
5,
41,
9,
-14,
-8,
-36,
49,
-10,
69,
57,
-29,
-32,
-35,
29,
27,
-14,
-13,
35,
11,
-48,
28,
28,
-40,
28,
-76,
-17,
19,
19,
14,
20,
-13,
-39,
-34,
8,
-8,
-34,
2,
-37,
36,
-84,
-26,
38,
-3,
-10,
18,
-6,
0,
-48,
-10,
-32,
-11,
23,
-21,
21,
-5,
6,
54,
53,
2,
0,
39,
-27,
15,
-3,
13,
-33,
-23,
-25,
-18,
-10,
24,
-8,
-10,
6,
57,
45,
21,
-25,
-17,
0,
-10,
-44,
-32,
-44,
3,
16,
23,
14,
6,
16,
46,
-4,
3,
-12,
-8,
-4,
3,
12,
16,
48,
35,
-9,
-7,
39,
-25,
66,
-12,
-1,
36,
3,
-89,
8,
8,
0,
57,
-34,
30,
-56,
-48,
-19,
40,
-17,
-9,
-12,
12,
13,
7,
3,
-40,
14,
28,
23,
65,
-7,
-7,
16,
27,
28,
3,
18,
-22,
-66,
-8,
3,
-72,
-31,
-75,
37,
6,
3,
-5,
14,
36,
59,
-20,
-30,
42,
-40,
-31,
-22,
-29,
-9,
-34,
32,
21,
66,
34,
11,
-13,
-10,
8,
36,
0,
-22,
-8,
2,
-3,
-47,
41,
44,
-20,
7,
-7,
-2,
16,
-6,
-16,
71,
35,
-45,
-40,
-20,
13,
-5,
-33,
14,
4
] |
J. R. Kirwan, J.
Defendant appeals as of right from the granting of plaintiff’s motion for summary judgment, GCR 1963, 117.2(3), and the denial of defendant’s motion for summary judgment. Plaintiff has filed a cross-appeal claiming that the court failed to grant the relief to which plaintiff was entitled.
Plaintiff and defendant entered into a commission contract in which plaintiff agreed to provide a lessee for defendant’s property and defendant agreed to pay $150 per month commission to the plaintiff for the original term of the lease. Plaintiff found a lessee for the property and was paid $150 per month for a period of five years. At that time, the lessee exercised its option under the lease to purchase the property. Defendant thereupon ceased making further commission payments, claiming there existed no obligation to pay after the lease had terminated. Plaintiff then commenced this litigation, alleging that defendant was legally obligated to pay $150 per month for 21 years, which he claimed was the original term of the lease.
The trial court, in granting plaintiffs motion for summary judgment and denying defendant’s motion, ruled that the intent of the parties was sufficiently clear from the written instrument evidencing the agreement and that plaintiff was entitled to collect the $150 monthly commission for 21 years. The trial court further ruled that, in the absence of an acceleration provision in the commission contract, plaintiff was not entitled to an acceleration of the payments. Two issues are presented to this Court for resolution.
I
Does there exist ambiguity within the framework of the written instrument that would require testimony to establish the intent of the parties?
The commission agreement in question provides as follows:
November 7, 1973
AGREEMENT
Re: McDonald’s 21 year
Ground Lease
Ecorse Rd. & Center St.
Ypsilanti, Michigan
We, the undersigned, agree to pay Joseph Petovello and Associates a commission of One Hundred Fifty and 00/100 ($150.00) per month for the original term of the above subject Ground Lease. Said monthly commission becomes due and payable when rent is first paid to lessor by Golden Arch Realty Corporation under the terms and conditions of said lease.
Signed:
Herbert F. Murray
Ruth Murray
It is a fundamental principle of law that, if the language of a written contract is subject to two or more reasonable interpretations or is inconsistent on its face, the contract is ambiguous, and a factual development is necessary to determine the intent of the parties. Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195; 220 NW2d 664 (1974). It is also fundamental law that the language of a contract is to be construed against the drafter of the contract, United Coin Meter Co v Gibson, 109 Mich App 652, 657; 311 NW2d 442 (1981), which in this case was the plaintiff. Guided by these principles of law, it is this Court’s view that, in construing the language of the documents in question, ambiguity exists for the following reasons.
First, while there is no question that plaintiff is correct in his argument that a real estate broker earns his commission when he produces a ready, able and willing buyer or lessee, Weitting v McFeeters, 104 Mich App 188; 304 NW2d 525 (1981); Brittson & Smith v Kroll, 217 Mich 180; 185 NW 689 (1921), this rule of law does not resolve the underlying issue of this appeal which relates to the length of time the plaintiff is entitled to collect his commission. While the plaintiff argues that the contract entitled him to collect a monthly commission for 21 years, defendant claims that the obligation to pay the commission ended in five years when the lease terminated upon the purchase of the property.
The commission agreement provides that the commission was owing for the original term of the lease. It is, therefore, necessary to examine the lease to determine if the meaning of the words "original term” is clearly revealed. For if from a review of the lease the intent of the parties cannot be determined, an ambiguity exists and the parties must be left to their proofs to establish their intent.
In reviewing the lease it is first noted that the paragraph entitled "Term” is crossed out. Under the paragraph entitled "Construction Improvements” is the following language:
"Lessee at its own * * * to have and to hold the same for and during the term commencing the date upon which Lessee has obtained all necessary permits, licenses and approvals for the construction of its improvements and Lessor has satisfactorily provided evidence of title to the demised premises as herein provided, and expiring twenty-one (21) years thereafter. A Supplement to this Lease is hereto attached and made a part hereof containing blanks for the commencement and expiration dates of said term. The parties hereto agree that when said dates become certain, as provided herein, they will complete and execute said Supplement to reñect said dates. ” (Emphasis supplied.)
It appears from this language that the parties at the time the lease was signed had not agreed on a commencement or expiration date. Further, there is no appendage to the lease entitled "Supplement”, nor is there any addendum that provides a date for commencement and termination of the lease. While there is appended to the lease a document designated "Amendment” in which a date for commencement is provided, there is nothing in that document that sets forth a date for termination of the lease. As these are the only references to the term of the lease, and as there is no reference to the words "original term” within the lease or its appendages, we view the commission agreement as ambiguous because it is unclear from the written documents what the parties intended when they used the words "original term”.
Second, the plaintiff claims that the obligation to pay the commission existed for the specific time period of 21 years. Yet, in drafting the language imposing this obligation, he did not use the specific words "21 years”. Rather, he used words that were indefinite in meaning and that referred to another document for their meaning. By deliberately avoiding the alternative of simply stating that the obligation was due for 21 years, arguably the parties intended that the obligation was for a length of time other than 21 years, especially when construed against the plaintiff, the drawer of the instrument.
Third, within the lease there existed in favor of the lessee an option to purchase the property. There is no question that the commission agreement is silent and, therefore, unclear as to the effect a sale would have upon the brokerage commission. Moreover, it is uncontroverted that the drawer of the contract, the plaintiff, did not provide in the agreement a provision that would determine what effect a sale of the property would have upon the brokerage commission, although he certainly could and should have. Hanley v Porter, 238 Mich 617, 622; 214 NW 179 (1927). In addition, while the first sentence of the agreement supports plaintiff’s contention that the commission was owed for 21 years, the second sentence of the contract, when construed against the plaintiff, the drafter of the instrument, supports defendant’s position that the payment of rent each month was a condition precedent to the entitlement to the monthly commission. This latter sentence can be interpreted to mean that the monthly commission becomes due when and if the monthly rent is first paid; and, as the lessee no longer paid rent after the lessee exercised its option to buy, a possibility that both parties must have contemplated because the option was contained in the lease, the $150 monthy commission was no longer due. Therefore, ambiguity exists and, if there is evidence outside the written agreement indicating that the parties intended or did not intend that the sale of the property terminated the obligation to pay the brokerage commission, such evidence should not be precluded from consideration by the trier of the facts. New Amsterdam Casualty Co v Sokolowski, 374 Mich 340; 132 NW2d 66 (1965).
For all these reasons, we believe the written commission agreement is subject to more than one reasonable interpretation and is, therefore, ambiguous on its face. As a factual question remains as to the intent of the parties concerning the commission contract, summary judgment should not have been granted to either party.
II
As this matter is to be remanded to the trial court for trial and as plaintiff may prevail at the time of trial, it is necessary to address the issue presented in plaintiffs cross-appeal as to whether plaintiff would be entitled to a present recovery for an anticipatory breach of the unilateral obligation to pay money in the future.
The claims on an installment contract do not ordinarily accrue until the installment becomes due in the absence of an acceleration clause in the contract. MCL 600.5836; MSA 27A.5836. In this instance there existed no acceleration clause in the agreement. Further, as the contract should be construed against the plaintiff, the drafter of this instrument, United Coin Meter Co v Gibson, supra, an acceleration clause should not be read into the agreement. The court did not err in this regard.
Reversed in part and remanded to the trial court for proceedings consistent with this opinion. | [
30,
10,
-72,
1,
-4,
-14,
31,
11,
-10,
80,
50,
6,
23,
-7,
31,
15,
-30,
40,
6,
-17,
-16,
-40,
-4,
37,
12,
25,
8,
-60,
31,
48,
6,
21,
-69,
-21,
-38,
0,
27,
-19,
15,
-6,
62,
32,
-1,
18,
7,
-33,
-13,
-49,
36,
10,
18,
17,
6,
5,
-27,
-40,
-32,
6,
2,
20,
-57,
-17,
-1,
-37,
-2,
-2,
42,
1,
21,
-4,
-35,
29,
-5,
1,
-18,
21,
-7,
-5,
-10,
-11,
45,
-22,
2,
-11,
-26,
50,
34,
-50,
45,
-15,
-17,
-7,
-16,
51,
-21,
17,
29,
19,
0,
0,
4,
14,
-38,
11,
4,
18,
-37,
-18,
-4,
18,
-14,
-20,
2,
-40,
-55,
10,
-24,
34,
27,
-72,
-13,
-5,
14,
27,
-1,
36,
14,
-70,
-22,
13,
50,
17,
-41,
3,
16,
-2,
0,
41,
12,
79,
-22,
-15,
3,
-19,
-27,
8,
-71,
-37,
-15,
0,
19,
-1,
20,
56,
2,
-41,
-6,
-6,
-6,
-23,
52,
7,
-11,
-28,
-9,
-9,
-53,
28,
-23,
6,
43,
4,
21,
-53,
-5,
-12,
-1,
-26,
-39,
-28,
-30,
16,
0,
-44,
57,
-15,
-10,
-11,
19,
-29,
-16,
-14,
-11,
45,
-20,
21,
-11,
9,
-13,
27,
-14,
-23,
11,
11,
-23,
-26,
-1,
31,
7,
36,
-51,
-38,
-38,
-44,
5,
-22,
14,
1,
18,
0,
27,
-55,
-32,
17,
-7,
-33,
10,
-9,
-17,
8,
-35,
48,
-16,
36,
-22,
-3,
14,
26,
39,
17,
27,
1,
-23,
-12,
-19,
24,
-47,
0,
-15,
-16,
-35,
2,
-1,
8,
-29,
-24,
-26,
15,
12,
-35,
1,
26,
-10,
12,
-28,
-23,
-37,
-34,
-8,
30,
-12,
18,
-36,
7,
-11,
-29,
-67,
14,
5,
3,
23,
0,
-32,
14,
-31,
31,
22,
68,
-72,
15,
47,
-22,
-24,
-5,
70,
-19,
15,
-37,
18,
9,
7,
-72,
43,
38,
17,
2,
9,
30,
20,
-28,
-9,
3,
18,
-6,
-9,
1,
-4,
-25,
116,
-59,
46,
32,
27,
-5,
83,
-21,
70,
-30,
-17,
-29,
-4,
0,
10,
-10,
25,
-2,
11,
-23,
-20,
25,
49,
29,
-11,
-42,
5,
49,
23,
-44,
-46,
21,
-14,
-15,
-51,
14,
17,
-15,
8,
-11,
-50,
13,
18,
-22,
-5,
-70,
-18,
25,
-5,
-5,
-37,
79,
-15,
61,
-55,
-40,
-59,
-60,
44,
15,
-88,
60,
-5,
-1,
-41,
-2,
70,
-18,
-35,
-23,
30,
-33,
-74,
-22,
-6,
7,
18,
6,
-11,
25,
-38,
-23,
19,
-20,
-20,
-22,
-1,
13,
64,
16,
-19,
38,
17,
-22,
-18,
-16,
-36,
-1,
71,
-38,
60,
-14,
43,
8,
27,
22,
4,
-17,
20,
-29,
-1,
12,
-28,
35,
12,
-75,
52,
5,
-50,
-22,
-36,
20,
-1,
30,
-30,
23,
15,
-24,
-51,
19,
-17,
28,
0,
1,
25,
3,
-8,
36,
29,
-20,
17,
21,
37,
-38,
3,
-60,
33,
-47,
-5,
17,
3,
21,
-7,
5,
36,
22,
-21,
-26,
-44,
-4,
-25,
60,
-21,
13,
51,
18,
-30,
-8,
0,
-3,
-6,
-34,
15,
-24,
-31,
7,
-30,
-41,
15,
49,
13,
-5,
0,
-32,
-3,
74,
-6,
-31,
-19,
-48,
14,
-5,
-30,
17,
35,
29,
18,
-5,
61,
-11,
31,
27,
21,
10,
13,
-40,
4,
-21,
17,
20,
14,
30,
10,
9,
39,
-34,
3,
-7,
-1,
-13,
24,
-5,
4,
47,
-41,
63,
30,
47,
-12,
5,
-13,
17,
-3,
-48,
38,
62,
9,
-28,
17,
9,
-10,
2,
17,
40,
45,
13,
26,
4,
-3,
-26,
34,
49,
-32,
35,
14,
-3,
-24,
-52,
-13,
22,
8,
11,
-51,
26,
21,
-35,
-18,
5,
36,
65,
-7,
34,
-68,
-9,
36,
-68,
23,
-7,
-11,
-37,
33,
13,
25,
7,
-70,
-55,
-29,
-11,
7,
-24,
44,
-18,
1,
3,
-28,
-2,
19,
-10,
23,
-12,
8,
40,
13,
35,
-21,
-11,
-53,
23,
27,
-12,
-42,
30,
-13,
-36,
-9,
-24,
11,
30,
32,
-23,
-7,
-69,
-10,
-11,
15,
7,
18,
12,
3,
31,
-18,
-16,
-33,
22,
43,
-16,
44,
30,
-27,
8,
24,
-7,
45,
-32,
-18,
-19,
11,
-56,
26,
22,
35,
21,
-35,
36,
42,
21,
14,
33,
2,
26,
32,
27,
25,
0,
57,
-15,
34,
-27,
22,
-51,
13,
5,
-15,
-41,
-25,
-20,
-9,
14,
22,
45,
5,
-4,
3,
-49,
-52,
2,
-50,
21,
-19,
24,
18,
-9,
19,
2,
12,
-14,
-4,
81,
-32,
31,
-18,
-15,
-10,
-10,
21,
-57,
-5,
14,
19,
-2,
-11,
-33,
-19,
15,
26,
0,
-7,
1,
26,
-32,
-63,
-43,
15,
-4,
-18,
7,
2,
0,
32,
42,
-70,
5,
20,
5,
-15,
17,
9,
9,
-14,
26,
-20,
10,
-5,
2,
-44,
30,
25,
1,
8,
-12,
42,
-22,
-51,
5,
3,
-1,
-12,
-10,
60,
3,
16,
-55,
-12,
-20,
16,
-2,
-48,
-13,
31,
-31,
5,
19,
4,
-37,
-13,
-35,
-25,
-12,
25,
29,
-3,
-36,
37,
12,
-24,
29,
5,
-27,
-15,
6,
17,
-7,
-18,
-21,
-2,
5,
-16,
8,
-18,
9,
43,
11,
3,
-13,
-24,
25,
15,
-22,
22,
-1,
-78,
51,
9,
-55,
-24,
18,
-24,
21,
-23,
13,
-21,
-42,
7,
-43,
-12,
2,
20,
-24,
-42,
8,
-73,
-46,
-7,
-31,
21,
-27,
12,
32,
-28,
33,
11,
40,
-7,
16,
-10,
29,
47,
20,
-26,
10,
23,
-34,
72,
15,
-29,
20,
42,
5,
32,
-63,
15,
7,
12,
2,
-54,
32,
-16,
-23,
4,
-1,
-69,
87,
45,
-3,
-17,
-43,
-24,
-17,
35,
-3,
0,
-23,
-9,
24,
-21,
19,
-26,
53,
20,
-1,
14,
17,
19,
5,
16,
-38,
-18,
42,
10,
-57,
55,
43,
-16,
2,
-71,
-33,
36,
-11,
-15,
17,
-13,
7,
9,
7,
1,
60,
19,
0,
-7,
-11,
-35,
23,
-25,
-39,
5,
23,
-27,
5,
-11,
-29,
12,
22,
-20,
43,
-8,
-22,
26,
21,
-11,
0,
-28,
-69,
-6,
9,
37,
-49,
77,
-21,
23,
-1,
-35,
-19,
-1,
-14,
-27,
-14,
-20,
-20,
2,
16,
-18,
-37,
22,
-35,
-49,
6,
28,
66,
7,
-9,
-62,
-23,
54,
-86,
1,
23,
10,
-11,
8,
16,
35,
-13,
-8,
15,
-6,
-21,
29,
-31,
15,
1,
11,
-17,
16,
1,
57,
-19,
-5,
45,
-28,
-23,
-27,
6,
43,
-12,
-12,
19
] |
Per Curiam.
This is an appeal from a decision of the Oakland Circuit Court affirming the Natural Resources Commission’s decision to deny petitioner a permit to fill the wetland portion of his property pursuant to the Wetland Protection Act (wpa), MCL 281.701 et seq.; MSA 18.595(51) et seq.
The relevant facts are as follows. Petitioner’s residence is situated on a lakefront parcel of land on Woodhull Lake. On March 17, 1987, petitioner sought a permit from the Department of Natural Resources to fill the wetland portion of his property. Following a site evaluation, the dnr denied the application. Petitioner then filed a petition for a contested case hearing before the Natural Resources Commission (nrc). Petitioner then moved for summary disposition pursuant to MCR 2.116(C) (10), claiming that he was entitled to the permit as a matter of law. The motion was denied.
During the pendency of petitioner’s hearing before the nrc, a modified permit was issued to him by the dnr. The modified permit enabled him to create a ten-foot-wide access path through the wetland for access to the lake and a small sanded beach at the shoreline. Despite having been issued the modified permit, he continued to pursue his appeal before the nrc.
During the course of the administrative proceeding, dnr personnel testified that the complete filling of the wetland along the shore of Woodhull Lake was not required for appellant to accomplish his proposed activity (lake access). Instead, it was stated that the ten-foot-wide path called for in the modified permit would be sufficient for this purpose. Moreover, the testimony revealed that although the environmental impact of petitioner’s contemplated wetland filling would be minimal, the cumulative environmental impact resulting from the issuance of similar pending permits to other landowners along Woodhull Lake would be so great that the resultant effect to the public trust outweighed the private interest in filling and developing the area. A hearing referee supported the dnr’s original decision to deny petitioner a permit. The referee’s "Proposal for Decision” was adopted by the nrc as its own. This decision was subsequently affirmed by the Oakland Circuit Court.
First, petitioner argues that the requirement under the wpa that an applicant show either that the proposed activity is dependent upon being located in a wetland or that no reasonable and prudent alternative exists is unconstitutional and, thus, the hearing referee’s decision must be overturned. Petitioner failed to raise this constitutional argument before the lower court. Accordingly, we will not review this portion of his argument because the trial court must be given an opportunity to pass upon the constitutionality of the rule involved. Hernandez v Consumers Power Co, 51 Mich App 288, 291; 214 NW2d 846 (1974). Additionally, petitioner claims that as either a nuisance statute or a zoning regulation, the wpa is unconstitutional. Again, because this argument was not addressed below, we will not review it. Id.
Moreover, we decline petitioner’s invitation to overturn the dnr’s decision to deny his permit, because the agency’s decision was not arbitrary or capricious. MCL 24.306(l)(e); MSA 3.560(206)(l)(e). The primary purpose of the wpa is to ensure that wetland habitats are preserved and protected. Citizens Disposal, Inc v Dep’t of Natural Resources, 172 Mich App 541, 551; 432 NW2d 315 (1988). Section 5 of the wpa provides that in order to fill certain wetlands a property owner must receive a permit from the dnr. MCL 281.705(a); MSA 18.595(55)(a). The dnr may not issue a permit to fill wetlands unless certain criteria are satisfied. A permit will not be issued unless (1) the proposed activity will not unacceptably disrupt the aquatic resources, and (2) either (a) the proposed activity is primarily dependent upon being located in the wetland, or (b) a feasible and prudent alternative does not exist. MCL 281.709(4); MSA 18.595(59)(4).
Petitioner’s initial permit application listed lake access as the project’s purpose. Below, the dnr stated that petitioner could have access to the water by alternative means — namely, a public-access route. Additionally, a modified permit was issued whereby petitioner was allowed to construct a ten-foot-wide path through the wetland in order to gain access to the lake from his property. Because a feasible and prudent alternative existed to accomplish petitioner’s purpose of gaining access to the lake, it is clear that the hearing referee’s decision was not arbitrary or capricious. Id.
Additionally, petitioner argues that he is entitled to the original permit as a matter of law because the dnr failed to act on his application within the statutorily designated ninety-day period. MCL 281.708(2); MSA 18.595(58)(2) provides that where the dnr does not hold a hearing on a wetland fill permit application, "the [dnr] shall approve or disapprove the permit application within 90 days after the completed permit applica tion is filed .... If the [dnr] does not approve or disapprove the permit application within the time provided . . . [it] shall be considered approved, and the [dnr] shall be considered to have made the determinations required by section 9.” Petitioner’s argument here is unavailing.
Petitioner’s initial permit application was filed on March 19, 1987. On March 30, 1987, the dnr requested additional information from him, and received the information on April 7, 1987. The dnr denied the permit application through a letter dated June 16, 1987. However, the envelope was postmarked on June 22, 1987. Petitioner argues that the ninety-day period commenced when the dnr received his initial permit application on March 19, 1987. Hence, according to petitioner, the dnr failed to respond to the permit application within ninety days because the denial letter was postmarked June 22, 1987. We disagree.
The dnr was not in a position to act on petitioner’s original application because it did not contain sufficient information. Hence, the request for additional information was made. Given the dnr’s obligation to effectuate the purposes of the wpa, we agree with the dnr that requests for additional and more specific information from applicants are not unreasonable. Therefore, if an application is such that it cannot be acted upon because of a lack of information, we cannot fairly characterize the application as "complete.” Instead, an application is to be considered "complete” when it contains sufficient information to be acted upon. In this case, the application was not "complete” until the dnr received the additional information from petitioner on April 7, 1987. Accordingly, the dnr had until at least July 7, 1987, to make a decision. Therefore, even if we were to use the postmark date (June 22, 1987) as urged by petitioner, it is clear that the dnr did not violate the ninety-day statutory requirement.
Moreover, the statute does not require that the applicant be given notice of the action within ninety days; it only requires that the dnr either approve or disapprove the application within ninety days. People v Keeth, 193 Mich App 555, 558-559; 484 NW2d 761 (1992). Therefore, even if we were to agree with petitioner that his application was "complete” on March 19, 1987, we would still hold that the dnr did not violate the statute because the letter denying petitioner’s application was dated June 16, 1987. Put another way, it does not matter if petitioner received notice of this after the expiration of the ninety-day period as long as the dnr’s decision was made prior thereto. Id.
Petitioner next argues that the application of the wpa to his property violates the Fourteenth Amendment of the United States Constitution because the subject property was conveyed to a private citizen through a federal patent before Michigan’s statehood. This issue was not raised or addressed below. Moreover, petitioner has attempted to expand the record by supplying exhibits that were not a part of the record below. Because reference to these exhibits is necessary to resolve the instant issue, and because this Court’s review is limited to the record developed by the trial court, we decline to address the issue. MCR 7.210(A)(1); Wiand v Wiand, 178 Mich App 137, 143; 443 NW2d 464 (1989).
Finally, petitioner argues that the denial of his application for a permit to fill the wetland area of his property amounts to an unconstitutional taking of his land. Again, we disagree. Petitioner claims that the value of his property would double if he were allowed to fill the entire wetland area as originally requested. We note that an owner who is deprived from making the most profitable use of his property is not necessarily entitled to compensation. Penn Central Transportation Co v New York City, 438 US 104, 124; 98 S Ct 2646; 57 L Ed 2d 631 (1978). Moreover, petitioner has not argued that application of the wpa to his parcel as a whole has deprived him of all economically beneficial use thereof. Id. To the contrary, the record establishes that petitioner will not be denied all economically viable use of his land. Accordingly, because the wpa unquestionably advances a legitimate state interest, we conclude that no compensable "taking” has occurred.
For these reasons, we affirm the circuit court’s affirmance of the dnr’s decision to deny petitioner’s application for a permit to fill the entire wetland portion of his property.
Affirmed. | [
48,
23,
-19,
0,
17,
62,
-4,
87,
-19,
44,
23,
-42,
52,
25,
20,
-1,
17,
20,
-7,
33,
-29,
6,
30,
4,
-41,
34,
2,
17,
10,
-11,
-11,
-3,
-27,
-9,
-9,
-34,
-7,
90,
9,
25,
-81,
-49,
-24,
8,
18,
-10,
2,
31,
3,
35,
17,
40,
18,
-6,
-57,
-30,
-28,
-38,
-7,
24,
-83,
-7,
35,
49,
69,
55,
-62,
11,
53,
9,
-31,
-4,
-34,
-1,
70,
20,
23,
-7,
-15,
13,
-51,
97,
0,
-10,
16,
-18,
-36,
-18,
127,
-9,
-50,
-58,
-37,
8,
-24,
31,
2,
9,
1,
34,
-9,
61,
44,
-39,
-37,
-36,
1,
41,
33,
-57,
39,
3,
-29,
-71,
0,
14,
27,
46,
29,
-13,
-49,
-24,
5,
5,
-37,
-19,
-38,
-20,
-20,
22,
34,
-11,
13,
-14,
58,
14,
-49,
-38,
0,
6,
28,
46,
14,
0,
-36,
19,
9,
29,
6,
2,
-31,
-26,
-33,
-7,
4,
37,
63,
-37,
18,
30,
-23,
43,
-16,
-43,
-66,
0,
60,
-22,
-7,
-56,
55,
3,
-25,
-33,
29,
-35,
23,
60,
-25,
34,
-15,
-19,
43,
9,
-64,
19,
-27,
-28,
-87,
26,
-3,
-26,
56,
-9,
14,
65,
10,
26,
-74,
19,
-8,
5,
-5,
-1,
-7,
-3,
-3,
13,
47,
38,
-2,
23,
-21,
-57,
55,
9,
-5,
32,
15,
20,
19,
4,
75,
29,
-19,
0,
7,
5,
52,
-43,
25,
-19,
0,
28,
-30,
41,
-29,
54,
-5,
-15,
3,
22,
-53,
-5,
25,
-29,
23,
-21,
25,
0,
-56,
-57,
-38,
49,
11,
-34,
-33,
-11,
15,
-34,
-16,
27,
29,
-20,
-39,
-8,
-58,
-4,
-17,
8,
-9,
30,
-3,
34,
-29,
-29,
-45,
-26,
7,
27,
-4,
0,
11,
-18,
-28,
3,
-25,
-8,
37,
12,
1,
34,
-18,
-18,
23,
-20,
-24,
-71,
-9,
-12,
-5,
5,
10,
-38,
43,
29,
-16,
-19,
27,
-5,
4,
63,
33,
-16,
-33,
-27,
21,
-50,
7,
-46,
5,
-32,
11,
36,
-36,
48,
70,
19,
-22,
29,
-8,
22,
-18,
50,
51,
20,
26,
-71,
-79,
46,
10,
-37,
2,
63,
27,
-19,
-29,
7,
-10,
-21,
8,
52,
-52,
9,
-23,
-32,
-32,
-31,
-44,
28,
3,
49,
-6,
-12,
12,
-17,
24,
22,
26,
7,
-14,
0,
-12,
39,
35,
-14,
0,
29,
-48,
-52,
-17,
-14,
80,
64,
-11,
5,
-16,
-5,
10,
-10,
22,
-71,
-47,
20,
-16,
35,
43,
3,
9,
59,
14,
0,
-1,
29,
-9,
-23,
-11,
-13,
-9,
-3,
-35,
10,
16,
14,
-35,
8,
13,
-2,
34,
-1,
-13,
-19,
-29,
-24,
-3,
-65,
-10,
-17,
0,
41,
-75,
12,
5,
-13,
-33,
20,
-17,
-41,
-49,
9,
5,
-59,
-27,
-30,
-54,
-18,
-14,
-11,
-33,
-13,
32,
121,
-95,
-11,
17,
25,
3,
35,
52,
10,
-58,
37,
17,
-16,
7,
-16,
-63,
37,
48,
13,
32,
80,
11,
29,
-30,
-9,
-1,
35,
-9,
-4,
14,
-22,
-29,
-25,
-18,
-23,
-20,
21,
11,
-6,
0,
38,
39,
-33,
39,
18,
14,
-40,
-1,
-3,
49,
5,
-3,
23,
-35,
-52,
-22,
20,
44,
16,
-7,
-75,
0,
-11,
-74,
13,
8,
-73,
21,
15,
11,
1,
29,
0,
14,
34,
0,
-6,
32,
28,
38,
-19,
-56,
-20,
-50,
-42,
-44,
55,
13,
49,
7,
21,
-1,
24,
6,
7,
-25,
-42,
-10,
-46,
-35,
-32,
0,
34,
-4,
44,
-36,
2,
11,
-6,
-9,
18,
-9,
-29,
5,
29,
14,
32,
26,
48,
21,
11,
11,
-44,
1,
59,
9,
-9,
23,
102,
-20,
-66,
-25,
-42,
-29,
-33,
23,
22,
-23,
-25,
-30,
-47,
31,
-48,
-29,
8,
35,
-13,
14,
-47,
36,
1,
-8,
22,
-2,
16,
13,
16,
-13,
3,
-28,
-8,
9,
52,
11,
15,
33,
4,
60,
-8,
-27,
-26,
-23,
-26,
-59,
-28,
-31,
32,
30,
36,
-30,
-25,
-26,
-19,
61,
-47,
-23,
9,
9,
26,
10,
23,
-49,
-28,
23,
-17,
14,
0,
-31,
-15,
32,
67,
25,
-12,
21,
-47,
2,
0,
71,
10,
12,
-11,
-12,
-36,
-13,
-6,
-13,
35,
10,
26,
-5,
4,
-6,
-16,
-12,
-55,
27,
41,
2,
66,
18,
-5,
-16,
-68,
12,
74,
-12,
60,
16,
42,
32,
-31,
74,
14,
42,
-36,
1,
40,
-14,
28,
26,
28,
-50,
-3,
3,
6,
-7,
-48,
-27,
-30,
-55,
-11,
46,
-21,
-6,
47,
-22,
-6,
-12,
-3,
29,
2,
-64,
-10,
-43,
28,
-10,
3,
2,
-7,
-41,
81,
27,
-37,
16,
15,
24,
1,
-5,
-79,
39,
-45,
-29,
2,
-15,
-50,
29,
-57,
0,
9,
-50,
-78,
-38,
43,
-49,
-13,
-34,
23,
-34,
6,
-10,
-64,
9,
-6,
-5,
-34,
-6,
-37,
46,
34,
36,
-26,
33,
-8,
9,
-91,
4,
19,
46,
69,
-75,
-57,
2,
-23,
0,
-50,
-57,
-37,
-38,
23,
-28,
-31,
-1,
12,
77,
4,
53,
16,
15,
-10,
-36,
22,
-5,
14,
-25,
-9,
-70,
-11,
-33,
-16,
-6,
13,
11,
-28,
27,
-20,
21,
39,
-16,
8,
5,
42,
-9,
-36,
68,
4,
54,
-46,
-23,
-3,
37,
6,
21,
39,
-5,
-45,
27,
11,
17,
1,
-57,
-22,
14,
-59,
-22,
-15,
-52,
6,
8,
34,
-26,
5,
-7,
6,
19,
33,
-9,
-4,
45,
-27,
23,
23,
30,
5,
30,
17,
-11,
7,
36,
0,
36,
-22,
-2,
-11,
30,
26,
-75,
16,
-42,
-14,
-6,
0,
33,
29,
23,
-15,
-20,
3,
41,
33,
91,
15,
8,
4,
-35,
22,
17,
19,
-4,
-29,
-7,
8,
26,
0,
-37,
8,
24,
11,
-25,
4,
-55,
-15,
21,
-2,
-5,
-65,
-6,
16,
-10,
52,
20,
-9,
-54,
-6,
-25,
-26,
-46,
16,
-21,
-21,
-12,
-35,
-7,
-24,
-12,
19,
18,
-18,
17,
-19,
-19,
-44,
-11,
29,
-8,
-28,
-46,
-4,
-4,
32,
5,
-3,
18,
-14,
7,
-3,
-32,
57,
-33,
-66,
-35,
54,
23,
64,
4,
-2,
38,
20,
-35,
35,
4,
-12,
-11,
-36,
3,
7,
-1,
26,
-35,
19,
29,
-2,
22,
-25,
-1,
21,
6,
0,
12,
-12,
-6,
7,
55,
27,
31,
-1,
-61,
-12,
-77,
-15,
42,
59,
14,
41,
70,
42,
3,
-11,
20,
-49,
-25,
-4,
19,
-43,
0,
-3,
-38,
-27,
-47,
14,
13,
-15,
-36,
-8
] |
Shepherd, J.
Plaintiff, Otis Elevator Company, appeals as of right from an April 2, 1992, order of the trial court in favor of defendant Firemen’s Insurance Company of Newark, New Jersey, on the parties’ cross motions for summary disposition. We affirm.
On November 1, 1986, Mid-America Realty Investors entered into a mortgage and security agreement with Firemen’s whereby Firemen’s agreed to loan monies to Mid-America, retaining a security interest in the David Whitney Building in Detroit, with additional security provided by an assignment of rents and leases in the event of default. On October 13, 1989, Firemen’s made a demand for Mid-America to cure a default or face foreclosure. In February 1990, a statutory notice of default in the terms and conditions of mortgage was recorded with the Wayne County Register of Deeds.
On November 12, 1991, Otis obtained a consent judgment against Mid-America in the amount of $6,030. On January 7, 1992, Otis obtained a judgment against Mid-America in the amount of $100,000. In February 1992, Otis sought to garnish the rental payments of the tenants of the building in an effort to collect on the judgments. Shortly thereafter, Firemen’s informed Otis that it had a prior perfected interest in the rental proceeds and demanded a retraction of the garnishment proceeding.
On March 4, 1992, Firemen’s served the tenants of the building with a notice of default and a copy of the mortgage agreement. On March 6, 1992, the trial court entered a preliminary injunction restraining Otis’ garnishment efforts until the validity of the garnishments could be determined. On April 2, 1992, the trial court determined that Firemen’s interest in the rent proceeds was superior to that of Otis, dissolved Otis’ writs of garnishment, and granted summary disposition in favor of Firemen’s. Plaintiff appeals from the April 2, 1992, order of the trial court.
The sole issue on appeal concerns the order of priority between Otis and Firemen’s to the rent proceeds. Simply stated, this case concerns the priority between a judgment creditor (Otis) and a prior perfected secured creditor (Firemen’s) for the assets of a common debtor (Mid-America) where the assets were specifically designated as additional security in the security agreement.
Plaintiff argues that in order to avail itself of the rent assignment provision in the mortgage, Firemen’s was required to serve the building tenants with notice of default in the mortgage as required by MCL 554.231; MSA 25.1137(1). In response, Firemen’s argues that once it recorded the mortgage and the mortgagor’s default, the assignment of rents was valid and enforceable as between the mortgagor (Mid-America) and mortgagee (Firemen’s). Thus, Firemen’s contends that Otis could not garnish the rents because Mid-America no longer had an interest in the rents. We agree with the position of Firemen’s Insurance Company.
MCL 554.231; MSA 25.1137(1) provides as follows:
Hereafter, in or in connection with any mortgage on commercial or industrial property other than an apartment building with less than 6 apartments or any family residence to secure notes, bonds or other fixed obligations, it shall be lawful to assign the rents, or any portion thereof, under any oral or written leases upon the mortgaged property to the mortgagee, as security in addition to the property described in such mortgage. Such assignment of rents shall be binding upon such assignor only in the event of default in the terms and conditions of said mortgage, and shall operate against and be binding upon the occupiers of the premises from the date of filing by the mortgagee in the office of the register of deeds for the county in which the property is located of a notice of default in the terms and conditions of the mortgage and service of a copy of such notice upon the occupiers of the mortgaged premises.
Notably, the statutory language states that such an "assignment of rents shall be binding upon such assignor only in the event of default. . . .” Thus, the mortgagor’s default is sufficient to finalize the mortgagee’s interest in the rents as against the mortgagor. The additional language requiring service of notice of default upon the "occupiers” or tenants concerns the operation of the assignment as against the tenants, not as against the assignor.
A similar interpretation of MCL 554.231; MSA 25.1137(1) was adopted recently by the bankruptcy courts. In the case of In re Mount Pleasant Limited Partnership, 144 Bankr 727, 733-734 (WD Mich, 1992), the bankruptcy court stated as follows:
Under section 1 of Michigan’s statute, giving "binding effect” to the assignment is conditioned only upon default. Therefore, at the point of default the mortgagor becomes obligated as contractually provided in the assignment.
. . . Once default occurs, . . . the assignment becomes binding, and the mortgagee has a "choate” or present vested right in the rents. . . . [Tjhe service requirement only determines which party has the initial right to collect the rents, and is intended as a protection for the tenants. It does not affect the rights between mortgagor and mortgagee.
Similarly, the decision of the bankruptcy court in the case of In re Coventry Commons Associates, 143 Bankr 837, 838 (ED Mich, 1992) also provides support for our opinion, as follows:
In Michigan, the assignment of rents is governed by statute — M.C.L.A. §§ 554.231 and 554.232 (West 1988) ("§ 231” and "§ 232”). These provisions, this Court concludes, permit a mortgagor to grant to a mortgagee an assignment of rents as additional security and that the assignee/mortgagee’s rights are perfected and binding against the assignor/ mortgagor when such assignment is recorded and a default occurs in the terms and conditions of the mortgage.
Accordingly, we agree with the opinion of the trial court that Otis could not garnish Mid-America’s interest in rents because Mid-America no longer had a valid property interest in the rents after its default on its mortgage with Firemen’s.
Affirmed. | [
10,
11,
-22,
28,
27,
18,
-2,
-22,
37,
10,
-13,
-9,
11,
-2,
-26,
-30,
12,
-10,
-28,
2,
-7,
-64,
-4,
22,
2,
-3,
40,
10,
20,
41,
10,
-12,
-17,
-9,
-64,
5,
-17,
10,
-16,
-46,
19,
24,
29,
-17,
-11,
4,
11,
5,
43,
-20,
-8,
-6,
52,
14,
-18,
15,
-18,
1,
-11,
-1,
-5,
-17,
-18,
30,
-8,
32,
0,
28,
-34,
-20,
16,
16,
20,
-6,
-4,
10,
-8,
6,
-39,
-35,
-10,
-9,
17,
13,
-23,
2,
-32,
2,
-3,
40,
-62,
15,
-15,
19,
-10,
21,
-14,
-10,
15,
48,
-21,
26,
17,
9,
-48,
11,
2,
-53,
0,
-17,
-7,
19,
15,
9,
-12,
23,
-53,
26,
-38,
25,
9,
-33,
26,
-34,
35,
-16,
3,
2,
-82,
57,
0,
34,
-76,
13,
-39,
-54,
39,
7,
8,
22,
31,
9,
-17,
-46,
-18,
-3,
-20,
-30,
-32,
0,
-14,
102,
1,
15,
-8,
-1,
-32,
-25,
31,
-35,
18,
-39,
-34,
21,
-39,
-13,
-63,
24,
2,
-1,
-22,
-21,
-21,
-36,
14,
16,
2,
7,
-31,
1,
2,
-3,
16,
-27,
-24,
-40,
23,
-44,
14,
-35,
15,
-16,
-26,
68,
-33,
12,
25,
37,
-14,
14,
12,
-54,
41,
-37,
12,
-31,
23,
-10,
-8,
19,
14,
13,
-63,
-27,
-11,
26,
21,
1,
-3,
0,
-30,
33,
-66,
-40,
-32,
1,
2,
-15,
-32,
-23,
-18,
-34,
36,
30,
24,
13,
34,
51,
22,
-1,
9,
47,
7,
-16,
-32,
-8,
-26,
-23,
-21,
-16,
-26,
-38,
-33,
9,
0,
-27,
-47,
-7,
1,
4,
38,
-7,
-41,
-16,
14,
17,
6,
0,
-26,
32,
-14,
31,
56,
-16,
-31,
-17,
-33,
15,
-24,
17,
36,
-29,
-46,
-1,
-14,
-2,
1,
-9,
-76,
0,
-12,
-23,
-8,
-7,
40,
-17,
-39,
-27,
-10,
-46,
-40,
-13,
3,
-11,
16,
40,
-9,
-7,
-49,
6,
-9,
-10,
23,
-12,
-8,
-8,
-41,
11,
-44,
-13,
92,
9,
0,
3,
-7,
2,
32,
-24,
31,
22,
-71,
4,
-11,
2,
10,
49,
41,
-25,
-23,
-7,
14,
64,
14,
-1,
-1,
19,
-3,
5,
-23,
40,
-42,
-1,
-25,
-5,
12,
6,
42,
48,
-50,
105,
38,
11,
-77,
-20,
14,
35,
-27,
0,
13,
-19,
24,
14,
-18,
-2,
-6,
35,
-57,
28,
-21,
52,
16,
-69,
40,
-15,
66,
-23,
-28,
57,
-29,
-38,
-64,
-3,
11,
38,
1,
-33,
-16,
-6,
-21,
28,
52,
-14,
-24,
-37,
-23,
-13,
0,
-59,
-5,
-9,
-9,
-31,
-24,
7,
-46,
4,
6,
-34,
3,
39,
56,
-34,
2,
-40,
39,
-38,
36,
0,
-40,
57,
-38,
-13,
-3,
-43,
-6,
36,
-42,
-19,
-52,
14,
15,
11,
7,
-2,
12,
-62,
-26,
-11,
23,
18,
3,
-8,
39,
19,
-16,
32,
-11,
-27,
28,
-24,
51,
-41,
-5,
15,
24,
-4,
22,
-10,
40,
-49,
-20,
-19,
-41,
12,
-48,
4,
-10,
-20,
-42,
35,
-2,
50,
0,
10,
-46,
20,
0,
-13,
-15,
17,
-11,
47,
56,
-10,
-12,
3,
-5,
9,
19,
-37,
-5,
-44,
-2,
63,
55,
-11,
-44,
-20,
-12,
10,
-8,
-9,
31,
48,
8,
61,
-2,
5,
39,
39,
3,
-12,
-25,
18,
-39,
21,
8,
49,
22,
-12,
42,
-30,
28,
-34,
11,
42,
16,
23,
-2,
0,
1,
34,
-11,
45,
-23,
35,
-1,
7,
-19,
-4,
3,
-15,
0,
0,
-2,
5,
29,
27,
-39,
8,
2,
0,
20,
-4,
35,
-17,
18,
0,
8,
-36,
-37,
38,
0,
16,
-30,
-21,
-20,
-9,
-33,
17,
-34,
1,
-2,
-56,
-23,
9,
12,
12,
-30,
-4,
-10,
-13,
13,
-8,
48,
1,
-45,
18,
-16,
25,
-22,
-15,
-42,
-28,
-5,
-10,
24,
51,
14,
-22,
-4,
3,
-30,
31,
-43,
-8,
20,
31,
54,
-28,
34,
39,
-17,
7,
-15,
-5,
29,
8,
31,
75,
7,
3,
11,
-43,
50,
22,
28,
19,
-16,
-31,
-3,
27,
-29,
-16,
-8,
0,
-12,
-2,
14,
-17,
-36,
3,
9,
19,
41,
-30,
24,
11,
14,
-72,
-6,
3,
-9,
44,
16,
-17,
45,
-45,
1,
3,
30,
14,
4,
41,
53,
27,
-29,
32,
25,
20,
-43,
-52,
-39,
0,
25,
-53,
59,
24,
23,
1,
-32,
-5,
-18,
-17,
37,
8,
7,
37,
1,
7,
14,
31,
-8,
40,
-15,
25,
7,
-1,
-13,
-28,
-31,
-17,
49,
6,
12,
21,
-2,
-7,
-30,
-40,
-17,
-50,
11,
-21,
39,
-19,
-24,
-30,
-30,
7,
-67,
-26,
-8,
2,
8,
-1,
-32,
-24,
-50,
14,
13,
6,
64,
0,
-35,
8,
-17,
26,
15,
16,
10,
14,
-52,
9,
29,
-1,
-23,
-24,
-12,
22,
24,
-7,
38,
-5,
-1,
-5,
33,
-43,
26,
-50,
1,
51,
29,
-30,
1,
-2,
37,
13,
32,
3,
-20,
-18,
15,
22,
-18,
-19,
35,
20,
52,
8,
0,
14,
-6,
-43,
0,
20,
43,
19,
14,
-16,
47,
0,
8,
5,
10,
-37,
-8,
5,
26,
-35,
-25,
-23,
27,
15,
26,
42,
-38,
-2,
-5,
19,
-35,
48,
-38,
-3,
-8,
-53,
4,
51,
24,
25,
24,
-58,
-30,
1,
-20,
-10,
14,
31,
-6,
15,
27,
-49,
-29,
31,
20,
-16,
-38,
14,
-2,
11,
-4,
-23,
27,
24,
32,
12,
10,
21,
8,
-34,
44,
9,
-26,
-1,
-1,
-2,
-74,
3,
-19,
3,
-11,
44,
-74,
10,
8,
5,
-12,
19,
45,
-51,
5,
-13,
6,
54,
-2,
36,
-9,
50,
-35,
39,
-30,
16,
-18,
8,
6,
-27,
-18,
-46,
0,
-24,
-17,
-24,
4,
24,
0,
9,
3,
2,
8,
22,
23,
9,
23,
-8,
-38,
31,
4,
-18,
12,
60,
-58,
34,
-22,
-37,
3,
-5,
50,
17,
15,
-3,
-8,
-3,
61,
51,
62,
-15,
37,
-18,
-49,
52,
-1,
-29,
47,
5,
-36,
-13,
43,
-20,
-14,
-24,
-11,
-2,
-29,
28,
15,
51,
-23,
-6,
-62,
-33,
-30,
-11,
0,
-18,
55,
13,
49,
-59,
-2,
-43,
21,
-39,
-14,
-29,
-21,
-36,
18,
-14,
-50,
32,
44,
-18,
-16,
25,
-6,
24,
21,
8,
-48,
-2,
46,
-27,
24,
9,
1,
25,
-54,
74,
22,
30,
1,
-18,
72,
-29,
37,
34,
24,
19,
-5,
-14,
2,
21,
26,
-7,
-4,
-35,
-42,
-3,
13,
7,
27,
-31,
-25,
34
] |
ON REHEARING
Before: Weaver, P.J., and Murphy and Jansen, JJ.
Jansen, J.
This case is before us on rehearing. We originally reversed the circuit court’s order granting defendants’ motion for summary disposition. Stehlik v Johnson, 204 Mich App 53; 514 NW2d 508 (1994) (Weaver, P.J., dissenting). Defendants argue in their motion for rehearing that our original opinion, in considering the circumstances of this case, applied the fireman’s rule too narrowly. Upon further review, we affirm the trial court’s grant of summary disposition.
Plaintiff Earl Stehlik, a Detroit police officer, was injured in a traffic accident on August 2, 1990, when the police department motorcycle he was riding collided with a van owned by defendant Papoos Electric, Inc., and driven by defendant Andrew Johnson. The accident occurred at approximately 3:00 p.m. on westbound Holbrook near the intersection of Delmar in the City of Detroit. On the day of the accident, plaintiff appeared in the 36th District Court at 9:00 a.m., as part of his police duties, and remained there until the afternoon. Plaintiff stated that his normal shift hours were from 11:00 a.m. to 7:00 p.m., but contends that he was "en route” to his patrol area and was not on patrol at the time of the accident. Upon further review, we now find that plaintiff’s contention in this regard is not supported by the facts and that the fireman’s rule precludes his claim.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that the fireman’s rule barred plaintiffs’ claims of negligence and loss of consortium. The trial court agreed and granted the motion for summary disposition. We now affirm.
Summary disposition is reviewed de novo, because this Court must review the record to determine whether the moving party was entitled to judgment as a matter of law. Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 86; 514 NW2d 185 (1994). MCR 2.116(C)(8) permits summary disposition when the opposing party has failed to state a claim upon which relief can be granted. A motion under this subsection determines whether the opposing party’s pleadings allege a prima facie case. The court must accept as true all well-pleaded facts. Only if the allegations fail to state a legal claim is summary disposition pursuant to MCR 2.116(C)(8) valid. Radtke v Everett, 442 Mich 368, 373-374; 501 NW2d 155 (1993). A motion pursuant to MCR 2.116(0(10) tests the factual basis underlying a plaintiff’s claim. MCR 2.116(0(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to damages as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. Radtke, p 374.
The fireman’s rule is a common-law doctrine that prohibits police officers and fire fighters from recovering damages from a private party for negligence in the creation of the reason for the safety officer’s presence. Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347, 358; 415 NW2d 178 (1987). The Supreme Court adopted the rule on the basis of public policy considerations. Id., p 370. In so doing, the Supreme Court stated that the foundational policy rationale is that the purpose of the public safety profession is to confront danger and the public should not be liable for damages for injuries occurring in the performance of the function that police officers and fire fighters are intended to fulfill. Id., p 368. Therefore, as a matter of public policy, police officers or fire fighters may not recover for injuries created by the negligence that caused their presence on the premises in their professional capacities. The scope of this rule includes those risks inherent in fulfilling the police or fire-fighting duties. Id., p 372.
In Woods v City of Warren, 439 Mich 186, 190; 482 NW2d 696 (1992), the Supreme Court held that the fireman’s rule prevents police officers and fire fighters from recovering for injuries sustained in the course of duty. The Court went on to state that the analytical focus must be on whether the injury stems directly from an officer’s police functions. If the circumstances indicate that it does, then the fireman’s rule applies. If the circumstances indicate otherwise, then it likely does not apply. Id., p 193. The Court in Woods summarized the fireman’s rule as barring recovery for two types of injury: those deriving from the negligence causing the safety officer’s presence and those stemming from the normal risks of the safety officer’s profession. Id., p 196.
In this case, we believe that the second prong of the fireman’s rule bars plaintiffs claim. Plaintiff was assigned to traffic enforcement in the Thirteenth Precinct. His duties were to patrol the entire Thirteenth Precinct area for traffic violations. His duties also included appearing in the 36th District Court on alternate Thursdays regarding citations he issued. He rode the only police motorcycle in his precinct. At the time of the accident, he had left the 36th District Court, and he stated at his deposition that it was not necessary for him to check into the police station. Plaintiff was in the Thirteenth Precinct, the area that he patrolled, at the time of the accident. Thus, the totality of the circumstances suggest, contrary to plaintiff’s claim, that he was on duty and in his patrol area at the time of the accident. Plaintiff could not have been en route to his patrol area when he was in the very precinct to which he was assigned.
We find that the risk of a traffic accident is inherent in fulfilling the duties of a police officer, such as plaintiff, assigned to traffic enforcement. Therefore, the circumstances of this case indicate that plaintiff’s injury stemmed directly from his duty as a traffic enforcement officer. Id., pp 193-194. Plaintiff’s claim is barred by the fireman’s rule.
We recognize that the scope of the rule does not include all risks encountered by a safety officer, nor is the rule a license to act without regard for the well-being of the safety officer. Kreski, supra, p 372. The circumstances of this case, however, are that plaintiff was a traffic enforcement officer assigned to patrol the area in which he was hit and the accident occurred during his normal job hours. While it is true that this case does not involve injury during a high-speed chase (a classic police function), thereby invoking application of the fireman’s rule, Woods, supra, p 192; McGhee v Dep’t of State Police, 184 Mich App 484, 486-487; 459 NW2d 67 (1990), the starting point is to consider the kind of duty involved, and it was plaintiff’s duty to patrol the Thirteenth Precinct on his police motorcycle for traffic violations. Therefore, although a safety officer may be able to recover for injuries suffered while merely on patrol under other circumstances, see Woods, supra, p 192, the circumstances of this case indicate that the injury stemmed directly from this officer’s police functions. Id., p 193.
Accordingly, the fireman’s rule applies to the circumstances of this case where plaintiff, a traffic enforcement officer while on his police motorcycle during his normal work hours, was involved in an automobile accident in the precinct in which he patrolled. The risk of being involved in a traffic accident is a risk inherent in the duties of a traffic enforcement police officer. The trial court did not err in granting defendants’ motion for summary disposition.
Affirmed.
Weaver, P.J., concurred. | [
2,
25,
-4,
46,
-12,
-17,
-14,
-49,
-22,
57,
-4,
-24,
3,
41,
20,
-3,
-23,
-1,
-1,
-30,
-13,
-35,
0,
12,
-48,
10,
56,
19,
72,
1,
-10,
-33,
0,
-47,
14,
-2,
-25,
67,
-4,
-9,
20,
-2,
1,
-75,
-5,
-17,
45,
21,
28,
-55,
-3,
4,
-15,
-4,
-24,
2,
0,
25,
9,
3,
-23,
34,
-77,
-4,
0,
-14,
-21,
58,
-15,
-48,
-51,
44,
-29,
-21,
-42,
26,
-35,
23,
-23,
4,
28,
42,
21,
-9,
-6,
28,
-23,
-50,
-8,
-13,
5,
-2,
-36,
-14,
-1,
1,
76,
-54,
-3,
7,
9,
28,
17,
19,
-6,
-1,
6,
-48,
0,
-15,
0,
26,
0,
-35,
9,
-48,
24,
-3,
54,
61,
41,
5,
33,
-8,
11,
-1,
-13,
-2,
18,
32,
-7,
8,
25,
-12,
65,
-20,
12,
31,
-26,
28,
-37,
-22,
27,
-28,
-5,
60,
-9,
-13,
18,
6,
-7,
54,
40,
22,
-17,
-76,
15,
-31,
33,
34,
-3,
-23,
-34,
5,
-24,
60,
0,
-61,
-31,
-26,
0,
-15,
53,
-11,
37,
0,
0,
41,
-32,
-10,
19,
53,
4,
-29,
-53,
-50,
-32,
5,
5,
51,
17,
-30,
-42,
36,
-29,
11,
6,
66,
20,
2,
-6,
-43,
-34,
-51,
-56,
6,
58,
-16,
49,
9,
-17,
-35,
-25,
-34,
31,
-21,
38,
-47,
-22,
-60,
-10,
31,
35,
-79,
-48,
-12,
0,
-3,
27,
23,
66,
-19,
-61,
-10,
-46,
-48,
27,
16,
60,
-30,
52,
-21,
-27,
-14,
8,
3,
-96,
-65,
1,
26,
11,
-19,
6,
-52,
4,
-31,
-12,
30,
3,
61,
36,
85,
-21,
-4,
-26,
34,
-9,
-3,
1,
-34,
-18,
-2,
27,
-7,
-46,
-32,
-20,
1,
14,
92,
-52,
4,
-31,
-12,
-39,
-6,
5,
31,
12,
-14,
47,
-7,
-29,
17,
27,
-22,
23,
2,
-29,
-26,
14,
-22,
-1,
2,
-26,
-20,
-5,
-26,
7,
9,
-21,
-17,
49,
-40,
-18,
18,
-38,
25,
10,
-10,
-19,
30,
-28,
-39,
-33,
25,
14,
23,
15,
-28,
-23,
59,
12,
31,
-24,
18,
-32,
-15,
2,
48,
-16,
-5,
10,
-31,
14,
17,
36,
35,
-22,
-18,
-18,
-27,
46,
-4,
-9,
12,
20,
-11,
-3,
56,
10,
-32,
-17,
14,
-16,
-36,
-20,
2,
-23,
13,
-8,
-3,
8,
30,
-20,
-1,
-3,
-13,
3,
58,
-41,
-30,
-25,
-35,
6,
-51,
-42,
15,
-31,
-9,
-21,
-23,
-16,
-4,
12,
34,
-6,
-16,
-9,
11,
25,
4,
58,
28,
-15,
8,
4,
-13,
8,
35,
28,
13,
29,
-30,
8,
10,
-3,
4,
-30,
-57,
32,
-45,
-16,
-21,
27,
-6,
-11,
41,
0,
-24,
7,
-6,
32,
-43,
-16,
15,
-63,
-77,
-49,
13,
-72,
-37,
-31,
23,
11,
2,
-42,
-13,
30,
16,
33,
60,
24,
6,
-58,
41,
18,
18,
-45,
-8,
-14,
-50,
-45,
29,
-31,
-35,
0,
41,
41,
-7,
27,
-41,
-47,
16,
-23,
-10,
-30,
-36,
-27,
-4,
-21,
5,
-5,
-44,
-24,
-12,
-31,
-12,
9,
6,
7,
-5,
14,
-15,
-32,
-23,
-44,
23,
-35,
0,
28,
2,
-12,
19,
65,
5,
35,
-20,
-27,
-17,
24,
68,
0,
-4,
47,
-23,
-22,
3,
57,
-12,
3,
-24,
1,
-9,
-64,
-2,
-30,
3,
-45,
-34,
37,
-36,
69,
-68,
51,
18,
-17,
-18,
-20,
-4,
11,
-8,
-3,
-18,
4,
12,
11,
-1,
27,
-16,
-17,
-37,
20,
-11,
4,
-9,
62,
9,
-2,
8,
29,
-1,
-13,
67,
-14,
12,
7,
-3,
34,
-13,
-13,
42,
27,
25,
-15,
41,
49,
28,
-23,
-16,
1,
68,
38,
1,
40,
-71,
31,
-28,
15,
6,
-33,
-17,
-21,
27,
9,
47,
20,
8,
1,
-8,
20,
7,
-44,
7,
33,
12,
12,
-6,
-2,
0,
12,
15,
-23,
26,
-74,
12,
-11,
40,
26,
-1,
-48,
-22,
0,
22,
-31,
-35,
-27,
15,
-22,
-10,
33,
-7,
-39,
-32,
-6,
14,
11,
-22,
-11,
15,
-16,
41,
50,
7,
5,
-51,
-41,
64,
-51,
8,
-49,
39,
0,
5,
24,
-34,
-15,
-33,
-4,
-22,
-14,
9,
-38,
-11,
-52,
3,
30,
-105,
10,
25,
81,
22,
24,
46,
3,
20,
4,
26,
-15,
58,
-17,
-47,
6,
-10,
40,
-6,
7,
9,
36,
14,
-39,
79,
-5,
32,
-30,
-15,
8,
8,
6,
-51,
-2,
-13,
-17,
-21,
-42,
-31,
3,
5,
11,
12,
-28,
48,
-26,
-5,
0,
47,
-21,
11,
10,
-17,
33,
-11,
-1,
-31,
34,
33,
4,
1,
-32,
-94,
-5,
35,
5,
-13,
21,
-1,
-4,
21,
-17,
-41,
32,
14,
9,
-26,
-44,
-6,
1,
34,
42,
5,
2,
23,
3,
-3,
-20,
44,
61,
-38,
-53,
20,
63,
-21,
0,
13,
-17,
-47,
5,
-38,
4,
-22,
-37,
-10,
0,
-24,
10,
24,
-5,
-7,
3,
-5,
-23,
-17,
5,
35,
-11,
-27,
15,
-53,
-23,
-31,
-4,
-20,
-16,
-20,
41,
-9,
51,
-54,
30,
-21,
19,
-11,
13,
0,
0,
-5,
-31,
52,
41,
-2,
36,
9,
-27,
-5,
23,
12,
21,
15,
20,
-42,
11,
32,
23,
-26,
-3,
21,
25,
-33,
10,
45,
-12,
-49,
-8,
34,
-1,
-15,
71,
-15,
0,
42,
57,
-21,
-50,
69,
10,
-2,
-35,
11,
-7,
37,
-31,
35,
20,
16,
8,
51,
-35,
-3,
17,
2,
-1,
20,
-17,
-43,
17,
11,
-33,
4,
46,
66,
25,
0,
-22,
19,
-10,
22,
-29,
16,
33,
-9,
24,
-25,
30,
-1,
-15,
-5,
-29,
-43,
-18,
2,
2,
39,
10,
6,
-31,
12,
1,
31,
31,
-81,
18,
11,
29,
57,
37,
-20,
-32,
12,
-57,
16,
5,
-30,
69,
-19,
-11,
-34,
-58,
9,
27,
21,
-8,
19,
19,
-12,
9,
-12,
4,
0,
-1,
29,
-37,
21,
-4,
-12,
41,
-35,
34,
-34,
-75,
-5,
-19,
-5,
-35,
20,
-9,
-43,
28,
-7,
-27,
18,
10,
-50,
18,
31,
-39,
-5,
31,
5,
-30,
-10,
28,
27,
-11,
-10,
-24,
-15,
16,
-51,
-20,
-14,
28,
14,
-38,
-41,
20,
8,
28,
-6,
-61,
-17,
15,
-40,
29,
-1,
1,
-27,
0,
0,
-8,
4,
-21,
3,
11,
3,
-35,
13,
-18,
-3,
43,
49,
14,
0,
55,
21,
45,
4,
50,
34,
-24,
27,
17,
48,
1,
-36,
-20,
41,
-21,
24,
-23,
12,
66,
29,
-12,
62
] |
Per Curiam.
Plaintiffs appeal as of right from the circuit court’s order granting partial summary disposition in favor of defendant, the Department of Transportation (dot), and dismissing count one of their complaint. We affirm.
On the morning of October 12, 1988, a dot repair crew was working on a stretch of U.S. Highway 2 (US-2) in Mackinac County, just east of the Gould City overpass. When the crew arrived at 7:00 a.m., the temperature was below freezing and the road surface was dry. Two crew members, Ronald Clark and Roger Shoemaker, drove over the bridge to set up safety cones on the west side of the overpass. During their return to the work site, the vehicle in which they were traveling began to slide, but did not go out of control. Clark informed the foreman that the bridge deck was icy. The foreman declined Clark’s suggestion to request salting of the bridge deck. The foreman did not recall this conversation with Clark.
At approximately 8:15 a.m., plaintiff Pamela Williams was traveling west on US-2 in a vehicle driven by Sally Schroeder. As the vehicle crossed the overpass, Schroeder lost control, and the vehicle slid and rolled over. Pamela Williams sustained a closed head injury, despite the fact she was wearing a seatbelt. After the accident, the foreman ordered one of the crew members to obtain salt from the maintenance garage.
On September 27, 1990, plaintiffs filed suit against Schroeder in the circuit court and against the dot in the Court of Claims. Plaintiffs’ cause of action against the dot was based upon the highway exception to governmental immunity, MCL 691.1402; MSA 3.996(102). Plaintiffs claimed that the dot failed to maintain the highway in a condition that was reasonably safe and fit for public travel. On April 2, 1991, Court of Claims Judge James R. Giddings ordered consolidation of the cases in the circuit court.
On May 7, 1992, the dot filed a motion for partial summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), arguing, in part, that it had no duty to remove the natural accumulation of ice and snow from the roadway. Plaintiffs responded that the natural accumulation doctrine did not apply because the dot had actual knowledge of the icy condition and failed to remedy it. The trial court held that the ice resulted from natural accumulation and that the dot was immune from liability for failing to remove the accumulation. Afterward, the parties stipulated dismissal of plaintiffs’ remaining counts.
A governmental agency’s failure to remove the natural accumulation of ice and snow on a public highway does not signal negligence of that public authority. Reese v Wayne Co, 193 Mich App 215, 217; 483 NW2d 671 (1992); Stord v Dep’t of Transportation, 186 Mich App 693, 694; 465 NW2d 54 (1991); Sweetman v State Hwy Dep’t, 137 Mich App 14, 22; 357 NW2d 783 (1984). However, if the ice on the roadway was the result of unnatural accumulation, the agency may be liable. Id.
We decline to modify the natural accumulation doctrine where it appears that the governmental agency has actual knowledge of an isolated dangerous icy condition and allegedly had the ability to remedy it. The doctrine applies regardless of whether the governmental agency has actual or constructive notice of ice and snow. Because there was no dispute that the ice naturally accumulated on the road, the trial court did not err in summarily dismissing count one of plaintiffs’ complaint.
Affirmed. | [
-44,
69,
-26,
9,
-6,
15,
2,
6,
4,
44,
-23,
-31,
55,
-7,
13,
-14,
-42,
-4,
-12,
7,
-87,
7,
-1,
-43,
-55,
-32,
33,
-10,
19,
67,
-11,
-6,
-17,
-10,
13,
-20,
36,
88,
18,
28,
13,
-4,
-9,
-32,
3,
-15,
30,
20,
31,
0,
4,
61,
-45,
-35,
36,
37,
7,
4,
-63,
7,
-29,
9,
44,
35,
15,
22,
-27,
51,
-13,
17,
-31,
63,
-24,
-32,
5,
-18,
-12,
38,
-17,
14,
-17,
5,
21,
23,
48,
36,
-42,
-4,
26,
-18,
-52,
-16,
-31,
-10,
-25,
41,
-35,
-34,
41,
-28,
-5,
25,
51,
41,
11,
-35,
14,
-23,
-23,
24,
10,
60,
17,
7,
-8,
-7,
73,
15,
-1,
19,
-19,
-28,
-4,
-2,
-26,
-33,
0,
-19,
-16,
5,
0,
-9,
8,
92,
22,
17,
-16,
-40,
20,
7,
-41,
5,
24,
-27,
25,
67,
8,
-6,
3,
-13,
-9,
33,
30,
-38,
-38,
11,
22,
-4,
32,
-12,
46,
21,
13,
-5,
-20,
-8,
25,
20,
-9,
-5,
96,
-48,
20,
-57,
11,
6,
12,
16,
-19,
3,
-25,
10,
60,
16,
-43,
-56,
-36,
2,
-24,
-46,
3,
-18,
15,
3,
-28,
24,
4,
51,
8,
-6,
-2,
-15,
-31,
-24,
-51,
20,
35,
-26,
7,
23,
38,
-32,
-14,
-40,
16,
11,
5,
-45,
-7,
-65,
0,
-3,
23,
-9,
0,
-8,
-41,
-25,
23,
1,
43,
24,
-15,
0,
-1,
-1,
44,
-20,
36,
-24,
38,
21,
-34,
-65,
24,
15,
-85,
-46,
-26,
27,
18,
-9,
-11,
-28,
-19,
-44,
23,
41,
-50,
-7,
33,
37,
7,
-15,
-19,
16,
-14,
31,
-23,
-73,
-24,
37,
8,
-36,
-61,
-56,
-1,
44,
36,
46,
-6,
-16,
-44,
-68,
-7,
17,
-7,
-13,
27,
0,
52,
-36,
-15,
37,
-37,
7,
6,
-17,
-66,
36,
1,
-37,
-8,
34,
-6,
-23,
-40,
1,
12,
26,
20,
-19,
-21,
-10,
21,
39,
41,
-3,
54,
-35,
10,
73,
0,
-50,
-29,
25,
-5,
-12,
1,
-2,
-37,
30,
-47,
46,
20,
-11,
27,
6,
-18,
38,
-3,
-7,
34,
-52,
-23,
25,
59,
4,
11,
28,
-39,
25,
61,
-23,
48,
-17,
33,
-21,
-22,
50,
-18,
-50,
11,
14,
-11,
10,
19,
18,
-25,
26,
-57,
-23,
53,
-7,
-21,
-29,
-20,
16,
10,
13,
55,
-36,
37,
-41,
-19,
-22,
-43,
-16,
-34,
-7,
17,
-77,
-15,
-2,
-13,
-11,
-3,
28,
-16,
25,
26,
-1,
22,
32,
7,
-32,
27,
-9,
-42,
1,
-44,
-10,
39,
9,
-26,
-7,
43,
35,
-14,
13,
0,
21,
-15,
-61,
12,
-22,
18,
22,
-31,
1,
22,
-7,
10,
15,
-42,
1,
-24,
-66,
-10,
-40,
-19,
2,
21,
-43,
-19,
-6,
23,
21,
16,
7,
42,
55,
9,
18,
-46,
17,
27,
-24,
17,
-33,
-31,
-24,
6,
12,
17,
-17,
-34,
-12,
24,
15,
5,
25,
-48,
68,
25,
-17,
39,
-7,
-1,
-8,
-31,
39,
17,
-30,
-21,
-16,
32,
66,
1,
-13,
37,
16,
-37,
-17,
-25,
4,
-24,
28,
-34,
-32,
-5,
-5,
-72,
0,
63,
-18,
-15,
3,
-39,
4,
-51,
-33,
23,
8,
-6,
14,
2,
1,
12,
-4,
-37,
-9,
-18,
-3,
-44,
-7,
3,
-27,
9,
11,
49,
-22,
32,
-17,
47,
21,
29,
20,
-13,
6,
7,
21,
-8,
8,
43,
-60,
-14,
67,
38,
-22,
15,
-4,
-23,
-5,
-35,
-35,
13,
-24,
12,
-6,
-35,
-1,
2,
4,
27,
29,
27,
-8,
28,
-73,
-15,
8,
14,
-37,
-14,
59,
-36,
-8,
-74,
14,
-9,
19,
-81,
-12,
-45,
-31,
50,
18,
-9,
-13,
-15,
-4,
-26,
9,
44,
55,
-11,
-21,
-26,
7,
65,
-20,
-26,
32,
22,
21,
-23,
-14,
53,
-4,
25,
-19,
1,
-18,
-37,
20,
-12,
-7,
48,
15,
-11,
-1,
41,
18,
-42,
33,
-16,
31,
-37,
-57,
-7,
57,
-32,
-20,
-4,
-37,
-23,
26,
-11,
-17,
-15,
14,
28,
-5,
-20,
-50,
8,
47,
-37,
4,
-26,
71,
-15,
-8,
5,
21,
6,
-4,
-69,
-26,
-1,
-14,
-40,
-22,
-24,
-3,
-9,
-17,
24,
3,
11,
-19,
-5,
23,
44,
-38,
-4,
27,
-18,
40,
28,
11,
43,
-44,
-1,
-41,
-10,
8,
25,
-29,
-22,
31,
2,
31,
-8,
4,
-30,
10,
-6,
-20,
-5,
0,
-8,
21,
-32,
-7,
-39,
-22,
7,
69,
-29,
26,
6,
-19,
21,
50,
-12,
32,
-60,
-32,
26,
-28,
-14,
8,
-38,
0,
14,
-67,
-23,
17,
7,
94,
12,
1,
0,
-9,
30,
6,
18,
-26,
28,
3,
34,
-31,
-43,
4,
3,
60,
6,
-21,
-32,
20,
6,
-4,
-21,
-67,
19,
-20,
-21,
-25,
48,
-45,
26,
22,
13,
-37,
1,
-3,
8,
-8,
-42,
45,
37,
-48,
-14,
9,
-19,
3,
-2,
-44,
-18,
-15,
-10,
12,
-14,
-24,
23,
-91,
12,
5,
9,
27,
33,
7,
-19,
-9,
31,
31,
-7,
-20,
4,
-12,
15,
10,
-1,
15,
-30,
16,
28,
2,
31,
-18,
7,
6,
43,
4,
0,
20,
-6,
-5,
23,
-6,
-39,
-9,
17,
20,
19,
-36,
31,
-14,
35,
-39,
-15,
46,
-34,
44,
33,
14,
34,
-17,
39,
28,
-35,
-4,
-1,
0,
0,
24,
9,
5,
-45,
-19,
6,
39,
42,
48,
-22,
-7,
41,
-8,
-3,
-19,
-81,
-5,
-4,
11,
0,
-10,
-11,
14,
9,
13,
11,
96,
-18,
-23,
12,
-47,
8,
-22,
51,
-58,
22,
48,
4,
-22,
-25,
-3,
-5,
41,
6,
19,
-21,
-45,
-59,
15,
-17,
29,
55,
-9,
-40,
47,
-20,
32,
-5,
4,
0,
-13,
-27,
6,
-2,
-27,
-26,
-25,
3,
5,
-57,
53,
0,
46,
35,
51,
0,
-23,
-83,
29,
5,
32,
-19,
0,
-43,
-22,
5,
-23,
7,
-10,
0,
-45,
-53,
-8,
30,
-36,
-26,
21,
-19,
-70,
-12,
-4,
-28,
40,
46,
-37,
2,
4,
-30,
7,
-32,
5,
0,
-23,
11,
19,
39,
26,
-9,
-6,
21,
-35,
-29,
52,
-11,
18,
-35,
7,
-6,
18,
25,
-2,
-24,
17,
-8,
3,
20,
1,
2,
-26,
-46,
-11,
-63,
26,
8,
16,
31,
23,
-7,
9,
-36,
33,
-1,
30,
13,
-27,
32,
-1,
5,
21,
46,
19,
58,
58,
-29,
-35,
-21,
-31,
27,
68,
-46,
-12,
-10,
-1,
0,
-23,
39,
19
] |
Michael J. Kelly, P.J.
Defendant pleaded guilty of delivery of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. The trial court sentenced defendant to a prison term of five to thirty years. Defendant appeals as of right.
Defendant argues that the sentencing court improperly considered a 1977 conviction without counsel for possession of marijuana. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); People v Moore, 391 Mich 426, 440; 216 NW2d 770 (1974). Although defendant did not raise this issue at sentencing, he filed a timely motion to remand for a Tucker-Moore hearing and supplemented the motion with proof that he had unsuccessfully sought access to court records of the prior conviction. This Court denied the motion on November 19, 1993, without prejudice to refiling if "accompanied by some evidence that . . . the conviction was obtained in violation of his right to counsel.”
Because defendant’s motion presented a prima facie case for remand under Moore, supra, and because preservation is an issue in this appeal, we revisit our previous ruling on the motion to remand. We must decide whether a defendant who has belatedly established a prima facie case for a Tucker-Moore hearing is automatically entitled to a remand even though no Tucker-Moore objection was raised before the trial court. We believe the automatic remand interpretation of Moore has been modified and conclude that denial of defendant’s motion to remand was appropriate. We hold the issue has not been properly preserved.
Our conclusion is based on the recent Supreme Court decision in People v Hernandez, 443 Mich 1; 503 NW2d 629 (1993). There, the Supreme Court held that a defendant-appellant is not entitled to a remand so that he may file a motion for resentencing and thereby preserve a challenge to an alleged error in the scoring of the sentencing guidelines. "The remand procedure is necessary only for those issues that are preserved, but still requires [sic] additional proceedings in the trial court before being resolved.” Id. at 20-21. "The remand procedure should not be utilized for presentence issues that can be raised contemporaneously with the event giving rise to the challenge.” Id. at 18-19. Here, as in Hernandez, the presentence investigation report (psir) included the allegedly unreliable information, and there is no indication that the trial court failed to provide defendant a reasonable period to review the psir, as required under MCR 6.425(B). See Hernandez, supra at 13, n 16. In addition, even if defendant was not given sufficient time, he could have preserved his objection by filing a postjudgment motion for resentencing under MCR 7.208. See Hernandez, supra at 19-20.
Our conclusion is further supported by the language of the psir statute, which provides in perti nent part: "At the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report.” MCL 771.14(5); MSA 28.1144(5) (emphasis added). See also MCR 6.425(D)(2)(b). On the basis of this language, this Court has declined to entertain psir challenges that are not presented at sentencing. See, e.g., People v Sharp, 192 Mich App 501, 504; 481 NW2d 773 (1992). Defendant’s argument that his 1977 conviction was infirm for lack of counsel, and was therefore improperly considered by the trial court, is essentially a challenge to the information contained in the psir concerning the prior conviction. Because defendant expressly approved the contents of the psir at sentencing, he has not preserved the issue for appellate review.
Finally, the sentencing transcript does not suggest that the trial court sentenced defendant under the misconception that it was required to impose the maximum sentence for the habitual offender charge.
Affirmed.
Fitzgerald, J., concurred.
Though our holding is based on preservation grounds, we note the recent case of Nichols v United States, 511 US —; 114 S Ct 1921; 128 L Ed 2d 745 (1994), in which the United States Supreme Court held that a sentencing court may consider a defendant’s previous uncounseled misdemeanor conviction as long as it did not result in a sentence of imprisonment. According to defendant’s psir, no term of imprisonment was imposed for his 1977 conviction. However, because Nichols has not been briefed by the parties, we decline to rule on its applicability in this case. | [
47,
12,
-35,
70,
-46,
-13,
-14,
-13,
-47,
7,
51,
-12,
-39,
28,
-5,
0,
-10,
23,
16,
-39,
-10,
47,
17,
9,
48,
17,
1,
12,
22,
13,
42,
-6,
-14,
-44,
-10,
-36,
27,
53,
22,
6,
-15,
14,
-7,
41,
-95,
-45,
-6,
57,
30,
-4,
42,
10,
38,
19,
-18,
12,
21,
-17,
14,
4,
-13,
71,
-26,
-14,
9,
-30,
-32,
-2,
-36,
-10,
-28,
-43,
-10,
41,
24,
-11,
-11,
14,
38,
-6,
16,
12,
27,
14,
6,
17,
21,
-51,
29,
21,
-22,
-21,
-82,
-29,
-22,
-2,
21,
-39,
29,
-35,
-10,
10,
-46,
-19,
26,
12,
-9,
-51,
-37,
77,
1,
15,
-57,
-14,
-76,
-35,
4,
15,
21,
-19,
-34,
4,
16,
33,
27,
-43,
25,
-32,
22,
15,
-38,
21,
48,
-70,
-44,
-7,
31,
24,
18,
23,
-45,
16,
39,
-7,
23,
28,
-27,
2,
24,
22,
33,
-17,
-58,
17,
13,
6,
12,
6,
-45,
30,
13,
-4,
-26,
-69,
0,
7,
8,
-16,
-16,
-7,
50,
-8,
49,
53,
4,
-6,
-28,
54,
-1,
-23,
-34,
16,
12,
7,
9,
19,
18,
44,
-43,
25,
-20,
-8,
21,
0,
38,
-32,
15,
18,
13,
43,
-59,
-1,
-2,
-17,
43,
38,
0,
20,
37,
-15,
-22,
-59,
26,
-62,
-5,
-24,
37,
-4,
-2,
41,
-30,
-13,
52,
-31,
-19,
10,
-4,
5,
30,
0,
-9,
-5,
-62,
44,
-31,
-19,
-23,
-7,
59,
4,
-6,
-2,
-11,
-47,
26,
23,
-35,
9,
-29,
-26,
1,
37,
-1,
10,
-30,
-30,
15,
-28,
-22,
-11,
5,
48,
-29,
-4,
-43,
19,
-46,
0,
-22,
59,
-32,
1,
17,
-33,
-7,
3,
-25,
51,
16,
-13,
2,
26,
52,
8,
-61,
17,
0,
21,
48,
0,
41,
-28,
-29,
20,
22,
0,
-1,
-19,
4,
-2,
26,
-19,
-56,
-24,
14,
-6,
0,
1,
-28,
0,
25,
-9,
37,
40,
-18,
-29,
7,
-18,
45,
-23,
-57,
31,
9,
-59,
61,
-12,
32,
9,
5,
-16,
-35,
-19,
6,
4,
-31,
47,
-53,
13,
-45,
100,
-41,
-21,
-17,
-5,
22,
26,
22,
5,
55,
22,
5,
34,
38,
-21,
-18,
-3,
-20,
-28,
3,
11,
46,
-29,
0,
-19,
47,
-44,
19,
24,
17,
22,
51,
-26,
-22,
-45,
-40,
21,
46,
-10,
17,
-10,
-64,
-10,
0,
-5,
37,
-105,
-8,
10,
28,
13,
-22,
-1,
-22,
-55,
-18,
18,
30,
41,
14,
-5,
-20,
-26,
35,
9,
1,
-60,
-13,
40,
45,
59,
2,
39,
-14,
80,
0,
-13,
4,
-75,
38,
-62,
0,
-5,
-26,
-34,
22,
16,
-49,
-6,
0,
-70,
-34,
20,
-16,
-75,
-5,
36,
-47,
-28,
21,
18,
-72,
-3,
-25,
-14,
0,
-2,
-64,
-23,
13,
0,
-5,
30,
-23,
-8,
-31,
35,
50,
-3,
-29,
-44,
52,
-17,
-48,
6,
58,
-42,
-7,
10,
-11,
-5,
41,
55,
78,
0,
16,
18,
20,
4,
-15,
-39,
-5,
2,
0,
-27,
22,
-17,
11,
-13,
-43,
-2,
-23,
-18,
42,
5,
-57,
35,
15,
-12,
-49,
31,
-31,
-21,
-19,
31,
24,
11,
41,
-18,
24,
0,
-4,
1,
-5,
6,
45,
-39,
-36,
-1,
13,
0,
0,
-39,
53,
-12,
-44,
18,
-29,
-51,
-55,
-1,
63,
-21,
12,
-61,
-4,
5,
-44,
-41,
6,
-17,
22,
8,
-23,
9,
-11,
5,
-17,
-1,
19,
7,
13,
33,
-33,
0,
15,
-11,
-10,
16,
-4,
-48,
-14,
1,
49,
70,
-8,
-5,
-45,
-49,
60,
48,
28,
27,
-23,
28,
26,
39,
34,
40,
-18,
-16,
-4,
47,
-33,
-69,
-8,
-17,
-31,
59,
-28,
-5,
-59,
-30,
17,
-67,
6,
33,
-31,
-33,
-1,
13,
3,
25,
-6,
-37,
17,
4,
54,
2,
-3,
45,
17,
0,
-26,
-21,
-30,
11,
9,
36,
-53,
9,
-53,
24,
-13,
-13,
15,
-65,
-80,
19,
17,
-39,
-6,
3,
-24,
32,
-10,
-39,
-23,
10,
-31,
-53,
-12,
26,
16,
-14,
63,
8,
42,
-6,
-5,
-12,
4,
0,
-28,
24,
12,
-54,
-14,
17,
6,
-15,
-25,
-15,
-4,
2,
13,
27,
-9,
-29,
-15,
-53,
-30,
-22,
-5,
24,
32,
-46,
-35,
-3,
-2,
-18,
-30,
-25,
10,
-42,
-9,
5,
-50,
32,
25,
67,
-42,
30,
15,
15,
5,
13,
51,
-1,
23,
-25,
3,
13,
-6,
-10,
17,
-8,
12,
48,
-18,
-10,
-33,
97,
-11,
18,
-15,
20,
-45,
-75,
-58,
22,
24,
-8,
21,
46,
16,
41,
18,
20,
-1,
-75,
13,
-33,
-16,
29,
-10,
-20,
21,
-7,
18,
37,
18,
-24,
-52,
-9,
-15,
57,
-11,
-19,
16,
58,
3,
-16,
0,
82,
13,
88,
67,
-5,
-54,
-19,
-30,
-5,
-33,
30,
-45,
14,
34,
-11,
51,
54,
-41,
-58,
-3,
-2,
-84,
40,
29,
37,
0,
-17,
-85,
46,
-48,
11,
28,
-45,
-33,
-30,
-6,
27,
-25,
-29,
-37,
58,
37,
46,
-14,
12,
-19,
9,
6,
30,
19,
-41,
-15,
-12,
23,
0,
33,
-17,
44,
-29,
27,
17,
10,
-3,
0,
-15,
21,
1,
51,
56,
-20,
-41,
36,
5,
39,
-5,
-35,
-9,
-23,
38,
12,
51,
-22,
-19,
27,
14,
-18,
69,
-10,
-34,
40,
-1,
61,
-14,
-40,
10,
-4,
36,
20,
-46,
-36,
53,
-53,
16,
-33,
6,
24,
9,
35,
20,
-7,
-31,
-10,
39,
0,
0,
63,
-16,
13,
-37,
16,
47,
-13,
35,
-8,
3,
-19,
-10,
49,
-5,
39,
47,
38,
-27,
-28,
-59,
8,
-28,
7,
58,
32,
-7,
-44,
6,
57,
17,
-6,
-79,
4,
-17,
-3,
34,
65,
-31,
-28,
5,
1,
-11,
-29,
32,
-11,
7,
-14,
-33,
-39,
-25,
10,
-4,
8,
59,
32,
65,
5,
-5,
-9,
-10,
4,
3,
18,
18,
-12,
-6,
-23,
-9,
14,
-29,
9,
-11,
-35,
-3,
-58,
34,
-78,
17,
-52,
-8,
12,
-9,
-24,
-43,
-39,
4,
-37,
-2,
-11,
23,
-19,
38,
-54,
14,
-47,
-24,
39,
37,
-64,
-18,
-50,
-17,
19,
-50,
26,
-28,
21,
7,
3,
0,
21,
-9,
-29,
-23,
2,
-18,
21,
12,
57,
57,
-28,
-63,
20,
-40,
-2,
59,
26,
16,
-23,
-21,
-35,
17,
-40,
21,
31,
9,
13,
0,
12,
17,
-72,
4,
13,
4,
6,
-41,
-77,
48,
-21,
14,
-37,
70,
-6,
56,
2,
17
] |
Michael J. Kelly, P. J.
Defendant pleaded guilty of operating a vehicle while under the influence of intoxicating liquor or a controlled substance (ouil), third offense, MCL 257.625(6); MSA 9.2325(6). The circuit court sentenced defendant to the maximum possible term of imprisonment, forty to sixty months, and imposed a fine of $3,500 and costs of $1,500. Defendant now appeals by leave granted. We affirm.
Defendant first argues that the $3,500 fine in addition to the maximum term of imprisonment constitutes a violation of the principle of proportionate punishment set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). We disagree. The imposition of both a fine and a term of imprisonment is provided for in MCL 257.902; MSA 9.2602:
Any person who is convicted of a violation of any of the provisions of this act declared to constitute a felony [MCL 257.625(6); MSA 9.2325(6)], unless a different penalty is expressly provided herein, shall be punished by imprisonment for not less than 1 year nor more than 5 years, or by a fine of not less than $500.00 nor more than $5,000.00, or by both such fine and imprisonment.
Defendant’s punishment falls short of the $5,000 maximum fine possible under this statutory provision. The punishment is proportionate not only to the severity of the crime committed but also to defendant’s criminal background. The trial court properly considered all pertinent factors.
Defendant also contends that his fine violates the excessive fines clauses of the Michigan and federal constitutions, Const 1963, art 1, § 16; US Const, Am VIII. In People v Wolfe, 338 Mich 525, 540; 61 NW2d 767 (1953), our Supreme Court stated that the question of excessive fines "necessarily involves a consideration of the purpose sought to be accomplished by the legislature and of the seriousness of the problem with which it undertook to deal.” The hefty fines provided for in MCL 257.902; MSA 9.2602 represent the Legisla ture’s response to those persons who ignore lessons of leniency after a previous conviction.
Defendant urges this Court to take into consideration his financial status in determining whether the fine is excessive. See Hindt v State, 421 A2d 1325, 1333 (Del, 1980), citing State v Trailer Service, Inc, 61 Wis 2d 400, 409; 212 NW2d 683 (1973), for the proposition that determining excessiveness of a fine in a constitutional sense includes consideration "in some instances [of] the ability of the accused to pay.” Although defendant has enjoyed only seasonal employment as an asphalt layer and has no significant assets, we do not believe that a $3,500 fine violates all standards of reasonableness in view of defendant’s criminal history and the legislative purpose of the fine.
Defendant’s next argument is that the circuit court lacked the authority under MCL 257.902; MSA 9.2602 to impose costs. Defendant correctly points out that first-time ouil offenders under MCL 257.625(4); MSA 9.2325(4) may be subject to costs while MCL 257.625(6); MSA 9.2325(6), via MCL 257.902; MSA 9.2602, does not expressly provide the same for three-time offenders. On this ground, the prosecution concedes that the portion of defendant’s sentence requiring him to pay costs should be vacated. However, an order vacating that portion of defendant’s sentence would contravene the holding in People v Cousins, 196 Mich App 715; 493 NW2d 512 (1992). There, this Court held that costs may be imposed under MCL 257.625(6); MSA 9.2325(6) because it would be unreasonable to interpret the ouil provisions as authorizing costs for a first-time offender but not for repeat violators. Although defendant submits that the Cousins decision is erroneous, it is precedential under Administrative Order No. 1994-4.
Finally, defendant argues that he is entitled to resentencing because his sentence was based on inaccurate legal and factual information in the presentence information report (psir) with regard to the potential for early release. The psir recommended the maximum term of imprisonment because defendant would "continue to be a threat to the public” and it would be "entirely probable” that he would be released back into the community by the Department of Corrections after a short period of time. Although a sentencing court may not impose a lengthy sentence solely out of concern that the Department of Corrections will grant a legislatively authorized early release, People v Fleming, 428 Mich 408, 422; 410 NW2d 266 (1987); People v McCracken, 172 Mich App 94, 102; 431 NW2d 840 (1988), we cannot say that such concern motivated the trial court to impose the maximum term of imprisonment. In contrast to Fleming, supra, where the trial court cited the defendant’s possible early release as a reason for departing from the Sentencing Guidelines, and McCracken, supra, where the trial court’s comments revealed displeasure with the practices of the Department of Corrections, the record in this case contains no evidence of improper considerations by the trial court. The court cited defendant’s criminal background and the public danger posed by his drinking and driving habits as reasons for defendant’s sentence. There was no impro priety in imposing a maximum term of imprisonment regardless of the practices of the Department of Corrections.
Affirmed.
On January 1, 1992, a new statutory scheme for ouil offenses under MCL 257.625; MSA 9.2325 took effect, superseding the scheme that applies to defendant’s March 1991 violation. 1991 PA 98. The punishment provision cited here is now incorporated into MCL 257.625(6); MSA 9.2325(6).
Since the time of defendant’s offense, MCL 257.625; MSA 9.2325 has undergone significant modification. 1991 PA 98, § 1 effective January 1, 1992.
As noted in footnote 1, supra, 1991 PA 98 amended MCL 257.625; MSA 9.2325, eifective January 1, 1992. Subsection 7 of the amended statute specifically provides that, in addition to imposing the sanctions prescribed under subsections 4, 5, and 6, the court may also order a person violating those sections to pay the costs of prosecution. | [
19,
51,
1,
23,
-50,
8,
14,
-32,
-69,
43,
28,
-30,
-2,
-35,
83,
-2,
-4,
-14,
-22,
-12,
6,
-12,
26,
5,
-8,
22,
42,
58,
19,
14,
18,
0,
-3,
-31,
12,
-2,
3,
0,
41,
42,
6,
-49,
5,
11,
-45,
-15,
15,
-19,
32,
-32,
-2,
-2,
0,
-9,
39,
85,
-11,
-8,
-17,
36,
-30,
30,
17,
-24,
18,
3,
-25,
45,
-23,
-38,
-11,
12,
-19,
54,
-19,
26,
11,
36,
7,
24,
-41,
21,
-2,
8,
10,
12,
-1,
-39,
-10,
-39,
1,
-2,
-30,
-39,
-5,
-24,
-24,
-19,
23,
-31,
-19,
-31,
-1,
52,
-6,
13,
-13,
-16,
-50,
57,
-11,
-5,
43,
-42,
-35,
-78,
-55,
-14,
-26,
17,
32,
-28,
29,
34,
-9,
-66,
21,
-5,
-36,
1,
50,
22,
16,
-11,
-6,
37,
-36,
64,
32,
35,
4,
13,
44,
3,
14,
2,
17,
-26,
58,
-15,
-30,
2,
-23,
13,
24,
1,
20,
-4,
-18,
-5,
16,
26,
-19,
0,
0,
-37,
-28,
31,
3,
14,
39,
-5,
46,
21,
68,
5,
14,
8,
-3,
2,
-38,
65,
-7,
8,
14,
-10,
9,
15,
-55,
-59,
-20,
-9,
-24,
-41,
16,
3,
51,
41,
13,
-6,
-47,
-17,
4,
43,
40,
-32,
-18,
19,
-16,
-1,
6,
-22,
32,
-26,
-48,
3,
-13,
4,
-7,
-9,
-15,
-52,
24,
-36,
-12,
-35,
-23,
22,
-12,
-1,
16,
-2,
45,
43,
-3,
-62,
8,
-19,
47,
43,
-10,
-5,
-11,
-31,
26,
46,
-54,
-12,
-33,
7,
47,
-14,
-4,
-29,
-62,
-4,
54,
-28,
-17,
23,
-53,
23,
-11,
40,
-30,
4,
-23,
37,
-18,
22,
-10,
29,
-20,
-1,
-5,
-6,
-41,
52,
12,
24,
37,
37,
48,
9,
-18,
51,
-26,
53,
49,
0,
21,
-63,
-39,
33,
31,
27,
3,
23,
-32,
5,
33,
-24,
-4,
12,
28,
-24,
2,
34,
-39,
1,
6,
-46,
-33,
90,
1,
-31,
-28,
-7,
58,
-25,
-11,
24,
-28,
-11,
17,
-27,
88,
-27,
12,
-53,
-2,
-22,
14,
-4,
3,
-9,
23,
-6,
10,
15,
27,
-45,
41,
21,
-2,
46,
-8,
18,
-7,
-25,
-11,
51,
29,
41,
-15,
-35,
8,
-25,
3,
-27,
29,
-28,
11,
0,
5,
-5,
26,
-2,
5,
35,
54,
-15,
-16,
1,
-44,
5,
33,
11,
-42,
26,
-8,
-40,
0,
21,
35,
-35,
-37,
-44,
-40,
14,
-22,
57,
8,
-47,
-3,
-18,
-1,
9,
20,
-37,
-23,
-6,
34,
1,
27,
-9,
13,
62,
-5,
0,
-80,
-11,
36,
75,
18,
38,
32,
-15,
-15,
-50,
17,
16,
24,
-32,
39,
-17,
-4,
26,
9,
24,
23,
6,
35,
-52,
-33,
21,
-12,
-24,
16,
-28,
-58,
24,
20,
33,
30,
13,
-51,
-35,
18,
-51,
3,
-27,
-10,
10,
-29,
62,
14,
19,
-35,
-15,
-1,
-22,
-11,
-13,
17,
-51,
-60,
16,
75,
-36,
-11,
38,
20,
15,
8,
-14,
-5,
-3,
1,
26,
-27,
-28,
-16,
-13,
6,
-40,
-53,
-6,
-36,
-8,
29,
-22,
-37,
4,
26,
7,
0,
7,
-28,
63,
-29,
3,
-17,
-1,
36,
-38,
36,
-6,
52,
-24,
6,
36,
53,
21,
-25,
11,
-18,
-43,
45,
1,
6,
-11,
-7,
-8,
-23,
5,
-30,
-57,
-48,
22,
27,
23,
14,
-70,
-7,
-16,
22,
-15,
-16,
6,
22,
29,
-14,
0,
3,
0,
-26,
-9,
53,
16,
-57,
29,
-10,
-13,
-30,
-12,
-25,
-2,
17,
-17,
-15,
-5,
18,
26,
0,
43,
-11,
-22,
55,
15,
1,
34,
9,
12,
-25,
3,
42,
12,
-55,
-19,
48,
18,
-25,
-24,
-16,
-4,
-22,
29,
18,
-32,
0,
46,
21,
16,
-1,
-15,
-6,
-52,
25,
15,
18,
28,
2,
0,
75,
-1,
-33,
-2,
9,
12,
51,
45,
-17,
-19,
-21,
39,
-38,
-47,
-23,
-8,
11,
-45,
43,
-13,
21,
-21,
-27,
-24,
-68,
-3,
-52,
-8,
-20,
5,
-35,
23,
-19,
58,
-38,
-32,
-1,
37,
17,
-7,
47,
14,
-23,
33,
-62,
-30,
-38,
28,
-32,
-37,
52,
-17,
-44,
11,
-13,
-18,
-7,
54,
8,
60,
-35,
-20,
-17,
-31,
21,
0,
17,
-58,
-1,
21,
56,
-5,
-43,
4,
3,
-23,
-48,
-21,
21,
-28,
19,
0,
-41,
-17,
67,
-2,
-1,
10,
5,
-23,
-15,
19,
57,
47,
-47,
9,
11,
-2,
17,
-50,
-3,
7,
4,
-4,
13,
66,
-49,
63,
5,
-12,
0,
-20,
-24,
-12,
-74,
23,
-23,
-77,
21,
-3,
13,
9,
-51,
-29,
-15,
-9,
6,
-32,
28,
0,
13,
-7,
1,
-41,
-34,
30,
-11,
3,
0,
-41,
-8,
-12,
-13,
13,
5,
22,
-8,
38,
54,
30,
-35,
27,
36,
-9,
-38,
-25,
-39,
44,
-11,
35,
-28,
-9,
19,
14,
28,
-16,
-18,
-5,
12,
-19,
-9,
-20,
-51,
7,
-15,
-34,
44,
28,
-35,
-16,
-14,
-20,
-33,
-5,
-3,
2,
2,
-35,
27,
18,
16,
23,
-62,
43,
18,
-39,
-4,
-7,
35,
-36,
-49,
23,
29,
-45,
22,
-4,
15,
10,
2,
28,
29,
-10,
-14,
-8,
-54,
16,
53,
26,
-36,
-1,
-8,
-7,
25,
18,
-10,
0,
9,
8,
47,
19,
-21,
28,
24,
-16,
-28,
0,
63,
-40,
-19,
19,
-39,
40,
-12,
-4,
-12,
23,
-4,
-42,
-47,
-7,
1,
15,
-6,
-1,
7,
20,
22,
-1,
-2,
35,
-13,
7,
11,
4,
-50,
18,
-9,
34,
-15,
22,
-8,
11,
-12,
13,
-34,
9,
42,
-46,
24,
21,
40,
-15,
-66,
-66,
-44,
-9,
18,
-21,
-5,
-26,
-42,
-16,
-1,
1,
28,
-72,
34,
-17,
-17,
24,
44,
-12,
-19,
-11,
-35,
30,
-40,
34,
-8,
39,
-30,
-37,
-75,
28,
6,
-45,
-1,
71,
8,
42,
-29,
19,
6,
-28,
-25,
-4,
-47,
-13,
7,
3,
-43,
4,
48,
-30,
46,
-34,
-26,
19,
-2,
34,
-21,
39,
-4,
-26,
23,
-12,
-38,
6,
-11,
74,
-38,
-37,
-31,
8,
-13,
49,
-36,
50,
14,
-29,
-3,
37,
-25,
-19,
-11,
21,
-40,
-15,
-37,
3,
24,
2,
39,
-39,
-18,
-38,
-19,
-32,
24,
-20,
-19,
-45,
29,
33,
-21,
0,
-19,
10,
16,
23,
13,
-17,
-5,
-1,
2,
-24,
0,
-11,
-35,
-26,
27,
-8,
19,
11,
-19,
-3,
-5,
10,
-14,
8,
-70,
43,
20,
-10,
-21,
47,
14,
57,
2,
26
] |
Per Curiam.
Defendant was charged with two counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct. Pursuant to a plea agreement, defendant pleaded nolo contendere of assault with intent to commit sexual penetration, MCL 750.520g(l); MSA 28.788(7X1), and assault with intent to commit second-degree criminal sexual conduct, MCL 750.520g(2); MSA 28.788(7X2). Defendant was sentenced to prison terms of 48 to 120 months and forty to sixty months for his respective convictions. Defendant appeals as of right. We affirm.
Defendant argues that the trial court erred in considering prior criminal sexual conduct with the victim in assessing fifty points for Offense Variable 12. This issue has arisen in two published opinions since the adoption of Administrative Order No. 1990-6, which requires this Court to follow a prior published decision of this Court issued on or after November 1, 1990.
In People v Warner, 190 Mich App 26; 475 NW2d 397 (1991), this Court concluded that uncontroverted evidence of prior instances of sexual penetration between the defendant and the victim could be used to support the trial court’s scoring of offense variables. In Warner, the trial court relied on the evidence of prior penetrations between the defendant and the victim that was contained within the presentence report in scoring fifty points for ov 12. In affirming the defendant’s sentence, this Court stated:
We note, for purposes of defendant’s argument regarding the sentence imposed, that even if we were to find that the trial court improperly scored ov 12, defendant’s sentence would still fall within the minimum guidelines range. [Id. at 29.]
In People v Polus, 197 Mich App 197; 495 NW2d 402 (1992), another panel of this Court (Griffin, J., dissenting), held that prior conduct cannot be used in the scoring of ov 12. In so holding, the panel noted in a footnote that Warner was not controlling authority:
While Warner does arguably support the proposition that prior conduct between the defendant and the victim may be considered in the scoring of Offense Variable 12, we conclude that Warner does not control the case at bar because any such conclusion is mere dicta. While the trial court in Warner did consider prior conduct in the scoring of Offense Variable 12, and this Court upheld the trial court’s scoring of the guidelines, the Warner decision never explicitly addressed the question whether prior conduct is appropriate in considering the scoring of Offense Variable 12. Rather, the question addressed by the Court in Warner was whether the trial court could properly consider uncontroverted evidence in a presentence report in establishing the scoring of the sentencing guidelines. Furthermore, the Warner Court noted that it would not remand the matter for resentencing even if it were to find that the trial court had improperly scored Offense Variable 12 on the basis of the trial court’s comments at sentencing. [Id. at 200-201, n 3.]
In his dissenting opinion in Polus, Judge Griffin stated:
I disagree with the majority’s conclusion that the language in Warner addressing this scoring issue is mere dicta. In this regard, I note that, until today, our Court has routinely followed Warner with regard to this issue. . . .
The decision in Warner is binding precedent pursuant to Administrative Order No. 1990-6, 436 Mich lxxxiv. In my view, the majority’s failure to follow Warner is a violation of that order. [Id. at 206-207.]
In this case, we agree with the prosecutor’s contention that the Polus Court erroneously concluded that Warner was not controlling on the issue whether prior conduct between the defendant and the victim may be considered in the scoring of ov 12. Although not the central issue raised in the case, the consideration of whether prior conduct can be considered in the scoring of ov 12 was essential to the determination whether ov 12 was scored properly. The appropriateness of the scoring of ov 12 was considered by the Warner Court, as evidenced by its statement that "even if we were to find that the trial court improperly scored ov 12 . . .” and its affirmance of the defendant’s sentence. Thus, the language in Warner is not dicta, and a rule of law to which Administrative Order No. 1990-6 applies resulted concerning the scoring of ov 12. Hence, the Polus Court violated Administrative Order No. 1990-6 by failing to follow Warner.
Applying Warner, the trial court properly scored fifty points for ov 12, because the presentence report reveals, and defendant admitted, that he digitally penetrated the victim on prior occasions.
Affirmed.
The prosecutor in Polus filed an application for leave to appeal to the Supreme Court on March 5, 1993. Leave is still pending.
The Warner Court’s conclusion that it would find the defendant’s sentence to be proportionate even if the guidelines were improperly scored does not render its conclusion that the trial court properly scored ov 12 dicta, as suggested by the Polus Court. | [
8,
6,
28,
4,
-71,
-20,
-32,
-51,
-19,
11,
3,
9,
12,
-50,
87,
-15,
2,
-13,
-27,
-8,
35,
46,
-34,
47,
-31,
32,
59,
57,
30,
-4,
49,
-4,
7,
-31,
-22,
17,
20,
55,
5,
27,
54,
-7,
-16,
-52,
-61,
-32,
68,
16,
16,
-41,
13,
16,
30,
-9,
25,
-41,
21,
4,
21,
47,
-34,
31,
-31,
6,
4,
-94,
-8,
21,
-11,
-17,
-11,
-27,
-71,
22,
13,
-1,
-27,
28,
24,
15,
5,
30,
41,
56,
35,
-3,
15,
-19,
48,
20,
-13,
-45,
-48,
-19,
-42,
-17,
13,
-8,
38,
-59,
30,
27,
9,
5,
16,
57,
-18,
-12,
6,
12,
38,
56,
-11,
-42,
3,
15,
-9,
9,
-13,
-34,
44,
57,
31,
47,
45,
-18,
0,
-40,
-26,
-48,
-35,
10,
-5,
-37,
0,
15,
19,
42,
45,
-19,
-8,
22,
-17,
49,
83,
10,
-8,
-17,
27,
5,
-21,
1,
8,
-6,
1,
-4,
-9,
-36,
-9,
-46,
-6,
-14,
-24,
16,
-20,
1,
-25,
10,
10,
5,
49,
33,
67,
35,
5,
30,
-44,
-4,
11,
0,
-41,
28,
12,
5,
-1,
32,
-39,
-43,
-28,
-16,
-9,
6,
19,
-7,
75,
16,
35,
89,
20,
-7,
9,
-4,
3,
38,
25,
-21,
-8,
-24,
-44,
41,
11,
-3,
2,
-46,
17,
-16,
-1,
-37,
-9,
24,
-17,
-40,
8,
-63,
-7,
-57,
-17,
18,
-15,
30,
30,
36,
-51,
10,
-9,
45,
-12,
19,
57,
27,
4,
-7,
-14,
2,
18,
-5,
-28,
19,
9,
-12,
20,
-4,
-8,
28,
-53,
-23,
2,
0,
-11,
-22,
-6,
37,
3,
-38,
-45,
47,
11,
-33,
-19,
-26,
-16,
8,
-16,
-30,
-23,
20,
-11,
-19,
-43,
5,
23,
14,
19,
40,
-47,
-25,
-17,
22,
6,
1,
56,
-17,
-50,
-43,
45,
-18,
24,
28,
-35,
-18,
32,
-24,
36,
-15,
18,
-7,
36,
9,
-39,
-34,
-62,
-21,
-3,
2,
2,
-9,
-2,
-1,
19,
-54,
-61,
-62,
-19,
-43,
-3,
-19,
49,
-52,
11,
-20,
-60,
38,
-21,
68,
36,
-6,
-17,
-13,
0,
76,
-2,
-36,
30,
2,
3,
49,
-2,
12,
23,
-12,
-3,
-10,
16,
-17,
-58,
-12,
-65,
-35,
13,
-38,
4,
-13,
-34,
-41,
-19,
0,
18,
21,
4,
42,
26,
-52,
2,
-8,
26,
23,
78,
-17,
-6,
17,
-14,
46,
26,
-22,
10,
9,
-55,
-38,
20,
-36,
-21,
0,
5,
-13,
37,
4,
8,
13,
42,
-3,
25,
-49,
44,
39,
11,
-23,
27,
0,
-24,
29,
-44,
25,
23,
33,
4,
9,
-10,
-23,
17,
-24,
13,
-9,
36,
1,
15,
-20,
-29,
-22,
2,
1,
-44,
12,
-16,
-38,
29,
14,
-49,
48,
-14,
-25,
-33,
-2,
-33,
20,
30,
7,
37,
20,
1,
-13,
57,
-5,
-13,
-49,
16,
25,
14,
-15,
-50,
-36,
21,
0,
-15,
-4,
30,
-29,
-50,
-38,
11,
-26,
-20,
-7,
16,
57,
1,
18,
36,
21,
6,
-36,
31,
7,
-22,
-73,
14,
-27,
0,
-93,
27,
-37,
-29,
-38,
2,
5,
-26,
55,
-5,
15,
-22,
80,
-15,
-29,
-19,
0,
37,
-17,
36,
25,
12,
-31,
-4,
36,
-3,
32,
-29,
-6,
39,
-32,
-3,
7,
-10,
2,
62,
15,
-44,
51,
-42,
-75,
-54,
8,
66,
0,
-41,
-30,
20,
7,
-29,
-93,
-60,
-53,
-6,
6,
11,
42,
47,
-10,
54,
13,
-3,
46,
25,
7,
32,
-7,
-41,
0,
33,
-31,
-22,
-48,
-64,
-18,
30,
30,
-19,
15,
-74,
-17,
46,
-36,
30,
53,
-63,
-1,
-4,
26,
24,
12,
11,
37,
35,
22,
-29,
0,
-36,
-21,
40,
-13,
14,
-22,
-5,
15,
19,
7,
15,
-61,
-2,
6,
-36,
0,
26,
13,
5,
-60,
40,
39,
1,
42,
-37,
-20,
41,
20,
24,
9,
19,
-13,
-12,
-19,
-44,
-10,
-43,
-15,
-17,
-16,
5,
-14,
-36,
-14,
-9,
-24,
9,
-30,
-33,
-24,
16,
-7,
-24,
19,
-17,
19,
22,
40,
13,
29,
65,
93,
3,
33,
0,
-60,
7,
0,
-14,
-43,
46,
-8,
-48,
-8,
12,
20,
-29,
16,
-28,
68,
16,
8,
-7,
-71,
10,
-29,
-25,
25,
29,
13,
16,
-28,
-34,
-4,
51,
-15,
-37,
-20,
24,
-38,
10,
4,
-35,
44,
33,
-18,
-47,
13,
-22,
22,
42,
-12,
54,
4,
-85,
16,
3,
27,
16,
-11,
0,
-5,
-25,
-4,
32,
-23,
0,
27,
-19,
-7,
-25,
-27,
-27,
-44,
-81,
35,
40,
-29,
16,
-11,
0,
26,
-15,
15,
21,
8,
-25,
-11,
-3,
11,
39,
35,
0,
28,
10,
0,
18,
0,
-49,
-35,
-4,
-9,
9,
-48,
3,
29,
16,
-4,
29,
-3,
-24,
77,
22,
-38,
-37,
-67,
-22,
29,
-60,
13,
-23,
-18,
19,
-45,
39,
0,
-13,
-43,
48,
19,
-50,
30,
41,
29,
0,
-3,
-15,
34,
-38,
19,
7,
-30,
2,
-71,
-39,
11,
22,
34,
6,
-2,
26,
48,
-8,
5,
15,
-5,
15,
21,
-8,
-59,
-49,
23,
15,
-29,
24,
14,
5,
-9,
-31,
42,
-9,
1,
6,
-35,
55,
-29,
21,
0,
-51,
-1,
38,
8,
6,
-58,
52,
-53,
22,
78,
37,
14,
-34,
-4,
-1,
0,
-46,
43,
-15,
33,
5,
15,
79,
24,
-34,
31,
71,
6,
25,
8,
-5,
1,
-32,
47,
12,
37,
16,
-25,
-17,
-2,
-31,
21,
-13,
26,
21,
-20,
20,
-83,
-32,
36,
14,
13,
-22,
10,
-15,
-38,
-59,
13,
-2,
12,
6,
-35,
-25,
-12,
-34,
-28,
-61,
10,
14,
12,
33,
-21,
-7,
-6,
0,
33,
-6,
-59,
-22,
-14,
-21,
6,
8,
41,
56,
-42,
-43,
23,
13,
26,
19,
58,
10,
-37,
-26,
-19,
37,
-23,
21,
5,
48,
36,
-17,
15,
-14,
-44,
-49,
0,
4,
13,
-13,
-40,
-4,
0,
39,
-48,
36,
23,
1,
-27,
-35,
27,
-58,
20,
-81,
13,
15,
6,
-20,
16,
-30,
13,
-7,
-6,
-7,
33,
-50,
-20,
-27,
40,
-2,
-5,
-12,
0,
31,
-6,
-41,
47,
-8,
-79,
-6,
3,
-43,
41,
-1,
-6,
10,
-40,
-26,
8,
14,
-5,
10,
8,
-36,
51,
20,
2,
-6,
-22,
-14,
26,
10,
-30,
-21,
-42,
11,
-10,
-8,
49,
19,
-8,
-48,
11,
12,
-17,
-27,
14,
12,
43,
37,
-26,
21,
-3,
-24,
-12,
20,
17,
-48,
47,
10,
5
] |
AFTER REMAND
Before: Taylor, P.J., and Weaver and M. R. Smolenski, JJ.
Per Curiam.
The facts of this case were ably set out in the dissent in Phipps v State Farm Mutual Ins Co, unpublished opinion per curiam of the Court of Appeals, decided February 8, 1991 (Docket No. 115999).
On August 14, 1985, plaintiff, while driving his motorcycle, collided with an automobile driven by Richard Craven. Although the automobile apparently was titled in the name of Craven’s fiancee, Mary Markell, a policy of automobile insurance with State Farm was obtained for the vehicle that listed Richard Craven as the named insured, with Mary Markell designated as an occasional (forty percent) driver.
The State Farm policy was obtained on May 7, 1985, through the joint efforts of Craven and Markell. On that date, Craven and Markell were living together with their two children at the home of Markell’s grandmother, Ella Markell. Despite the two children that were the product of their longstanding relationship, Craven and Markell were not legally married; they termed their relationship as being engaged to be married.
On May 7, 1985, Markell went to a State Farm insurance agency to obtain automobile insurance for the vehicle. Before the visit, Craven had telephoned the agency advising of the visit and had supplied essential information. During the brief meeting with the insurance agency, Markell signed an insurance application in her capacity as fiancee of the named insured, Richard Craven. The only address furnished on the application was Markell’s grandmother’s: 11605 S. Morrice Road, Morrice, Michigan, 48857. With payment of the initial premium, a certificate of no-fault insurance was issued to Richard L. Craven.
Shortly after its issuance, State Farm decided to cancel the policy, after reviewing Craven’s bad driving record. On May 24, 1985, State Farm mailed a notice of cancellation by certified mail to Richard L. Craven at the address listed on the application, 11605 S. Morrice Road, Morrice, Michigan, 48857. The certified letter was received and signed for by Ella Markell, grandmother of Mary Markell, on May 25, 1985. Ella Markell, thereafter, gave the certified letter to Mary Markell, who delivered it to Craven. Mary Markell claims that she did not open the certified letter from State Farm and was unaware of its contents. At the time of the delivery of the certified letter, Craven had moved out of the grandmother’s house because of a fluctuating "marital” dispute with Mary.
Plaintiff brought a declaratory judgment action against State Farm Mutual Insurance Company, Watkins Insurance Agency, and Mary Markell, seeking to establish that defendant State Farm was liable for no-fault benefits for injuries resulting from the accident. State Farm denied liability, alleging that the insurance policy was written for Richard Craven, not Mary Markell, and that the policy had been canceled. Following a bench trial, the trial court entered a declaratory judgment in favor of State Farm, holding that the insurance policy issued to Craven was validly canceled and that a valid contract of automobile insurance was not entered into between Markell and State Farm.
Plaintiff appealed as of right. This Court ruled that there was no valid contract of automobile insurance between Markell and State Farm and remanded for the trial court to address the question whether Markell was entitled to notice of cancellation as an insured under Craven’s policy. On remand, the trial court ruled that Markell was not entitled to notice, because Markell and Craven were family members living in the same household when State Farm canceled the policy.
Plaintiff now appeals as of right. We affirm.
MCL 500.3020; MSA 24.13020 requires an insurance company to provide notice of cancellation of a policy to each party who qualifies as an "insured” under the policy. Lease Car of America, Inc v Rahn, 419 Mich 48; 347 NW2d 444 (1984). The Court in Lease Car explained the purpose of this rule as follows:
The obvious objective of this statute is to make certain that all of those who are insured under a policy are afforded a period of time, ten days, either to satisfy whatever concerns have prompted cancellation and thus revive the policy or to obtain other insurance, or simply to order their affairs so that the risks of operating without insurance will not have to be run. [Id., p 54.]
In the instant case, Richard Craven was listed as the insured on the application for insurance. Mary Markell was listed on the application only as a regular driver of the car. There is nothing on the application to indicate that Markell had an insurable interest in the car, or that she would otherwise need to receive notice of the cancellation for the reasons listed.
Thus, we hold that under the facts of this case, there was no need for Markell to receive notice of the cancellation.
We affirm. | [
-38,
-11,
33,
-14,
-24,
-9,
-51,
-50,
11,
-49,
-9,
-20,
44,
22,
-24,
31,
18,
35,
25,
36,
-21,
22,
3,
32,
-25,
-21,
18,
-41,
-14,
-21,
6,
36,
18,
-34,
-32,
-12,
-2,
19,
-37,
2,
5,
-3,
-2,
6,
-3,
2,
42,
6,
9,
-30,
0,
-1,
-20,
0,
66,
8,
20,
-15,
-15,
-27,
-32,
-20,
44,
16,
-1,
32,
-8,
72,
53,
38,
58,
26,
-43,
29,
-49,
2,
19,
26,
-28,
-10,
20,
-45,
27,
-14,
-39,
24,
-21,
-36,
-15,
28,
-40,
-65,
-25,
-65,
23,
21,
7,
-48,
15,
27,
-5,
0,
68,
41,
-3,
66,
81,
-43,
-53,
1,
20,
-17,
14,
36,
24,
4,
-20,
-9,
0,
12,
-9,
10,
12,
21,
-15,
5,
-6,
-4,
-2,
48,
14,
3,
-5,
-17,
29,
0,
-8,
-56,
-1,
-19,
42,
-20,
-29,
26,
50,
42,
-17,
-34,
0,
13,
-14,
0,
19,
10,
21,
3,
15,
-19,
45,
-25,
-28,
-22,
21,
70,
-26,
14,
-28,
32,
-19,
1,
59,
19,
6,
0,
40,
-54,
-9,
-32,
0,
53,
-18,
48,
34,
-34,
-85,
-51,
11,
20,
-44,
2,
15,
-52,
-5,
24,
3,
0,
15,
6,
0,
7,
4,
-40,
67,
-10,
32,
-9,
-13,
4,
-21,
-3,
18,
-49,
5,
-32,
-12,
20,
13,
0,
-51,
-25,
58,
26,
-36,
-27,
-52,
-56,
-49,
-50,
-12,
-17,
22,
-10,
29,
53,
-49,
1,
-11,
-52,
33,
0,
13,
-21,
5,
-22,
47,
-3,
-11,
-9,
18,
-9,
54,
-32,
10,
17,
16,
-14,
-6,
-19,
15,
47,
-26,
-2,
-13,
5,
15,
29,
3,
-8,
15,
-19,
50,
-2,
9,
-53,
-30,
-69,
25,
30,
14,
19,
36,
20,
-41,
4,
-16,
16,
37,
21,
-30,
-13,
63,
22,
26,
-35,
0,
-35,
75,
-10,
-50,
6,
39,
3,
27,
-32,
13,
-44,
14,
-11,
-9,
16,
-36,
-52,
45,
8,
21,
-30,
-14,
-56,
30,
-6,
-48,
53,
-5,
-11,
-50,
13,
6,
-9,
36,
7,
-60,
18,
13,
34,
14,
-41,
5,
17,
9,
7,
-59,
12,
9,
24,
-55,
9,
43,
44,
-9,
-6,
-84,
15,
10,
25,
-50,
34,
73,
-62,
-46,
6,
-48,
22,
-39,
76,
-4,
10,
39,
-2,
-28,
40,
40,
-30,
-21,
11,
15,
-26,
-16,
45,
-40,
29,
1,
-37,
-5,
5,
17,
9,
-38,
-17,
-81,
21,
-5,
-31,
2,
36,
-34,
-14,
1,
13,
-68,
-18,
31,
34,
-29,
-16,
-4,
40,
4,
-28,
-20,
2,
-59,
-8,
20,
3,
44,
42,
51,
-47,
-18,
-35,
-48,
5,
-39,
-31,
-4,
13,
10,
44,
-26,
-4,
3,
29,
-13,
-4,
28,
-25,
-72,
-22,
-8,
30,
11,
70,
-31,
23,
-27,
10,
-20,
-37,
0,
-5,
24,
-22,
19,
18,
15,
49,
53,
-33,
-48,
-62,
12,
-21,
13,
-58,
26,
13,
15,
-58,
67,
-47,
-22,
22,
21,
38,
11,
-36,
-18,
-36,
-40,
-15,
-24,
23,
-15,
-13,
-3,
-26,
-4,
4,
35,
17,
27,
-26,
-33,
-9,
-23,
27,
-28,
31,
-43,
-12,
-24,
31,
-9,
35,
48,
-32,
-22,
-15,
-48,
-42,
39,
-18,
9,
55,
33,
30,
-12,
-20,
41,
-2,
-12,
53,
-3,
-19,
-3,
-22,
6,
-37,
-22,
-61,
5,
5,
36,
-75,
5,
-23,
-19,
-9,
-51,
25,
-13,
27,
-10,
-21,
-38,
-27,
71,
-43,
8,
-8,
-33,
-2,
12,
-37,
4,
18,
20,
33,
-8,
31,
-40,
38,
4,
21,
31,
-28,
21,
-24,
24,
-36,
-32,
-54,
-1,
-14,
7,
81,
15,
-26,
-68,
-20,
2,
32,
-17,
-18,
-18,
-5,
-3,
37,
27,
-13,
2,
-5,
34,
-19,
29,
19,
32,
-65,
-60,
-15,
-43,
-2,
-2,
76,
41,
21,
6,
67,
-50,
1,
-10,
-11,
-4,
14,
-6,
10,
10,
15,
27,
-51,
-18,
33,
29,
25,
-2,
-8,
21,
40,
-25,
-7,
8,
-31,
-9,
-6,
-35,
-24,
18,
50,
-51,
14,
-52,
-10,
25,
27,
0,
7,
16,
-45,
4,
-66,
-67,
37,
9,
0,
-6,
-30,
36,
-12,
-19,
13,
-28,
15,
26,
24,
-50,
-36,
34,
-33,
-23,
17,
53,
7,
14,
32,
64,
33,
61,
14,
14,
15,
27,
0,
-22,
62,
12,
-35,
-19,
23,
9,
0,
-7,
-3,
-74,
-22,
-35,
17,
-29,
-7,
1,
0,
20,
29,
-26,
2,
-49,
20,
-48,
-30,
44,
41,
-10,
0,
26,
-58,
-46,
48,
6,
2,
-21,
-57,
-31,
-27,
12,
-24,
-9,
24,
31,
-10,
28,
31,
5,
-13,
-23,
18,
-2,
1,
52,
10,
-18,
10,
34,
34,
12,
8,
-14,
14,
-77,
24,
38,
2,
3,
24,
-43,
-26,
12,
-6,
33,
-4,
14,
-55,
19,
8,
13,
15,
27,
-7,
-26,
3,
9,
-41,
-12,
35,
-16,
-43,
-21,
33,
27,
-41,
-41,
-55,
-8,
-27,
-10,
-21,
1,
-15,
31,
12,
26,
-20,
30,
84,
29,
-32,
-22,
42,
-1,
-2,
29,
34,
47,
29,
-17,
7,
2,
6,
-6,
12,
34,
7,
-9,
48,
21,
-25,
-22,
41,
-24,
36,
-19,
32,
-26,
31,
-22,
-11,
-24,
28,
-20,
-3,
25,
-13,
-38,
-11,
-35,
-14,
-74,
17,
56,
26,
-10,
0,
33,
-24,
10,
9,
8,
39,
40,
16,
58,
3,
-19,
-49,
4,
67,
-32,
26,
-34,
15,
33,
-17,
-9,
-33,
-57,
20,
9,
7,
12,
-4,
8,
-15,
-73,
16,
-23,
0,
-48,
-10,
-44,
-13,
21,
1,
-5,
-42,
-7,
29,
-64,
-21,
4,
-22,
-6,
2,
-5,
-30,
33,
-40,
-13,
7,
6,
56,
52,
-11,
-17,
24,
-17,
-7,
7,
-12,
1,
-7,
-39,
-22,
10,
-20,
13,
0,
-42,
5,
-7,
13,
26,
-14,
37,
27,
11,
-15,
17,
17,
7,
-23,
-33,
22,
67,
-35,
-69,
11,
17,
-18,
-6,
-16,
-42,
37,
44,
-10,
2,
8,
-18,
-39,
37,
-49,
-4,
60,
27,
6,
-17,
-1,
-8,
-15,
12,
32,
58,
13,
-39,
16,
-7,
-14,
-22,
0,
-4,
0,
-35,
21,
13,
-34,
-11,
-31,
-26,
-12,
33,
41,
0,
-26,
-32,
-27,
-10,
24,
-28,
61,
-2,
-48,
-24,
-16,
1,
4,
-14,
66,
30,
11,
-22,
31,
31,
-29,
22,
-43,
18,
-4,
-38,
0,
-21,
1,
67,
7,
-14,
27,
-41,
-47,
45,
33,
-41,
19,
35,
-63,
-10,
7,
67,
29
] |
Per Curiam.
Plaintiffs Rita and Oliver Newsome appeal as of right from a Calhoun Circuit Court order dismissing their complaint for custody of Katelyn Helen Labby on the basis of lack of standing. We reverse.
Plaintiffs, who are Katelyn’s maternal grandparents, were appointed Katelyn’s guardians on May 21, 1990, after the probate court suspended defendants’ parental rights by reason of their disappearance. In October 1992, defendants petitioned the probate court for termination of the guardianship, and an "order for reunification” was signed by both parties and entered on December 28, 1992. The order established a plan for reintegration and provided that the guardianship would terminate on June 1, 1993.
In May 1993, plaintiffs filed a complaint for custody pursuant to the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., in the Calhoun Circuit Court. On May 7, 1993, the circuit court entered an ex parte interim order staying the guardianship proceedings in the probate court pursuant to MCL 722.26b(4); MSA 25.312(6b)(4). Defendants moved for summary disposition on the ground that plaintiffs were limited guardians who lacked standing to initiate the circuit court action. Following a hearing, the circuit court granted defendants’ motion after concluding that the plaintiffs had become limited guardians by virtue of the reintegration plan and that defendants had substantially complied with the plan. Plaintiffs objected to the entry of the order granting defendants’ motion. On September 3, 1993, the probate court issued a declaratory ruling that plaintiffs had remained full guardians throughout the court proceedings.
On September 13, 1993, a hearing on plaintiffs’ objections was held in circuit court. Recognizing that the probate court had determined plaintiffs’ guardianship to be a full guardianship, defendants argued that the circuit court should not take jurisdiction because plaintiffs had entered into the reintegration plan and essentially waived their right to petition the circuit court for jurisdiction. On October 7, 1993, the circuit court dismissed the action, finding that plaintiffs lacked standing to bring the custody action because the existence of the reintegration plan created an exception to standing conferred upon full guardians. An order dismissing plaintiffs’ action was entered on October 21, 1993. Upon the lifting of the circuit court’s stay of the probate court proceedings, the guardianship was terminated and Katelyn was apparently returned to defendants’ custody.
We are presented with the question whether the circuit court erred in determining that the existence of a reintegration plan presented an exception to the standing granted to full guardians in MCL 722.26b(l); MSA 25.312(6b)(l). We conclude that the trial court did err, and therefore we reverse and remand for reinstatement of plaintiffs’ suit for custody._
As.a preliminary matter, we note that the circuit court had jurisdiction to determine whether the plaintiffs had standing under MCL 722.26b; MSA 25.312(6b). See Solomon v Lewis, 184 Mich App 819; 459 NW2d 505 (1990), vacated 437 Mich 983 (1991) (the Supreme Court remanded the matter to the circuit court to determine whether the plaintiffs had standing to bring an action for custody of the child pursuant to MCL 722.26b; MSA 25.312[6b]).
MCL 722.26b; MSA 25.312(6b) provides in relevant part:
(1) Except as otherwise provided in subsection (2), a guardian or limited guardian of a child has standing to bring an action for custody of the child pursuant to this act.
(2) A limited guardian of a child does not have standing to bring an action for custody if the parent or parents of the child have substantially complied with a limited guardianship placement plan regarding the child entered into pursuant to section 424a of the revised probate code, Act No. 642 of the Public Acts of 1978, being section 700.424a of the Michigan Compiled Laws.
By its plain language, § 6b of the Child Custody Act has given a guardian, and a limited guardian in certain circumstances, standing to bring an action for custody of a child for whom the petitioner is guardian. MCL 722.26b; MSA 25.312(6b); Bowie v Arder, 441 Mich 23, 43-44; 490 NW2d 568 (1992). No exception to standing for full guardians is made, despite the fact that reintegration plans in full guardianships are. expressly contemplated. See MCL 700.424c; MSA 27.5424(3). Because the statute is clear, judicial construction is precluded. Dep’t of Transportation v Robinson, 193 Mich App 638, 644; 484 NW2d 777 (1992). The circuit court erred in judicially creating an exception to standing conferred upon full guardians and in dismissing plaintiffs’ complaint for lack of standing.
Reversed and remanded to the circuit court for reinstatement of plaintiffs’ action for custody. We do not retain jurisdiction.
See MCL 722.26b(2); MSA 25.312(6b)(2). | [
-20,
-11,
-49,
84,
33,
-49,
26,
14,
-13,
7,
-58,
-29,
-39,
43,
-37,
-5,
-9,
5,
9,
-17,
-49,
34,
20,
69,
11,
-8,
7,
0,
21,
46,
-5,
-61,
-15,
0,
-46,
-10,
-9,
27,
55,
44,
-19,
-5,
49,
-7,
-65,
-6,
26,
47,
13,
10,
15,
4,
-36,
31,
-20,
21,
2,
-9,
24,
-17,
-49,
64,
2,
-23,
13,
25,
4,
5,
-18,
29,
71,
16,
-2,
4,
17,
0,
-23,
-31,
72,
48,
53,
14,
1,
-46,
5,
-17,
-5,
12,
-46,
26,
-7,
35,
-47,
-24,
-39,
32,
-2,
-52,
81,
-18,
-11,
-22,
43,
34,
-29,
-7,
2,
-57,
-10,
2,
-2,
25,
22,
21,
-2,
15,
9,
-38,
-20,
27,
-24,
-4,
29,
-73,
23,
-24,
17,
-4,
13,
37,
-33,
8,
45,
-6,
8,
-11,
35,
-25,
29,
-88,
2,
-24,
1,
-51,
35,
16,
1,
-32,
-8,
-47,
19,
49,
-15,
56,
47,
74,
36,
10,
-9,
-33,
14,
30,
-12,
-20,
-19,
-82,
-19,
22,
-3,
36,
28,
-12,
12,
17,
-41,
8,
-10,
12,
-62,
4,
5,
-27,
-2,
-19,
-30,
-61,
-40,
-24,
-35,
-26,
-15,
9,
36,
23,
-1,
30,
35,
0,
-36,
5,
-26,
20,
-10,
-9,
3,
-22,
30,
-29,
-2,
-52,
-11,
-8,
10,
-57,
-24,
-25,
36,
0,
-38,
24,
53,
-39,
22,
8,
-37,
-38,
33,
-16,
6,
-27,
51,
-2,
-15,
28,
-8,
-30,
-22,
28,
25,
-3,
35,
-18,
22,
-52,
-49,
42,
-28,
8,
18,
12,
0,
26,
-65,
1,
-15,
-7,
-45,
51,
-26,
0,
22,
20,
-46,
-39,
-1,
79,
19,
59,
-6,
-63,
-12,
-1,
14,
-20,
18,
-42,
-14,
35,
-16,
-26,
29,
55,
42,
16,
-55,
-21,
13,
15,
27,
65,
-14,
18,
-11,
-13,
17,
25,
-6,
7,
-4,
0,
31,
10,
-1,
29,
-89,
20,
1,
-9,
13,
12,
5,
87,
20,
-56,
15,
-17,
-11,
-32,
41,
-32,
-42,
29,
21,
-29,
6,
-35,
33,
15,
21,
11,
-20,
-18,
-6,
-64,
23,
49,
11,
28,
-24,
48,
15,
-7,
-17,
14,
2,
-22,
14,
-44,
-9,
-8,
-53,
46,
25,
0,
-27,
-19,
-17,
-85,
-8,
-10,
0,
-12,
-44,
4,
23,
62,
53,
15,
24,
-11,
2,
-30,
11,
-38,
-4,
3,
-36,
14,
19,
55,
-4,
-56,
11,
17,
39,
-50,
-40,
5,
21,
-26,
2,
-34,
24,
-26,
7,
27,
-21,
53,
38,
-28,
24,
29,
-20,
52,
-53,
37,
-20,
-20,
-36,
21,
-13,
-13,
30,
65,
-12,
6,
-18,
-28,
17,
25,
17,
47,
-5,
-24,
-34,
8,
-4,
1,
30,
-12,
-24,
13,
-21,
23,
47,
25,
-11,
-29,
1,
-2,
-47,
-28,
0,
-10,
12,
-13,
-9,
-51,
25,
2,
17,
21,
-1,
-12,
-2,
-58,
-13,
18,
-55,
-15,
13,
-24,
1,
31,
3,
-36,
-34,
5,
2,
11,
-40,
40,
14,
24,
-13,
46,
-22,
13,
-34,
40,
28,
-13,
-23,
24,
-15,
36,
-28,
-19,
58,
-26,
0,
-25,
24,
4,
5,
-57,
-44,
-27,
-68,
-56,
68,
28,
32,
24,
52,
-40,
-35,
-23,
-51,
14,
9,
-21,
13,
-12,
-40,
-47,
26,
36,
28,
13,
42,
6,
-59,
-15,
10,
1,
14,
19,
-12,
27,
23,
2,
11,
26,
18,
77,
-42,
-4,
-31,
-7,
9,
80,
-23,
0,
20,
0,
11,
0,
10,
-30,
0,
-32,
-30,
13,
28,
-15,
-20,
-23,
32,
-15,
40,
-21,
39,
11,
-8,
-11,
-11,
-7,
26,
22,
31,
31,
-20,
11,
1,
66,
32,
11,
-23,
-37,
-38,
28,
-18,
-20,
-34,
0,
53,
-3,
20,
-16,
-41,
-34,
11,
-38,
15,
-26,
-22,
-55,
-9,
20,
-74,
4,
-15,
-11,
19,
-10,
19,
29,
-39,
-35,
21,
2,
-95,
-17,
4,
22,
43,
41,
-44,
45,
-6,
22,
-20,
37,
-27,
-40,
-3,
-1,
23,
-1,
42,
-4,
25,
-1,
-17,
-17,
0,
-25,
-12,
-14,
-54,
55,
-35,
6,
8,
-45,
56,
21,
15,
41,
-53,
80,
-35,
35,
-40,
7,
12,
22,
14,
-6,
23,
-10,
-17,
38,
37,
4,
-5,
12,
0,
-22,
-37,
44,
10,
43,
-8,
30,
17,
75,
-36,
18,
-29,
9,
-30,
-20,
-44,
9,
-36,
22,
1,
5,
24,
6,
47,
-12,
-25,
-40,
-47,
9,
1,
2,
-30,
59,
16,
-4,
-61,
-7,
-27,
12,
-20,
-71,
-57,
43,
15,
-37,
0,
0,
10,
-23,
-8,
-17,
-3,
69,
24,
-19,
49,
49,
60,
-37,
41,
-69,
1,
36,
0,
17,
-64,
10,
-6,
-42,
39,
-6,
30,
-41,
0,
4,
-11,
21,
23,
-7,
12,
1,
33,
-25,
-25,
28,
-16,
-8,
23,
-12,
-19,
21,
-24,
-39,
25,
-1,
3,
-15,
-53,
-34,
32,
1,
-36,
13,
-4,
-19,
3,
-41,
24,
1,
-12,
-15,
-37,
32,
-17,
16,
-29,
-27,
3,
-55,
-14,
7,
1,
6,
-2,
26,
24,
51,
8,
5,
-22,
-29,
14,
66,
5,
45,
14,
3,
-40,
37,
-22,
26,
22,
-28,
-11,
2,
-45,
-10,
21,
19,
-63,
-35,
7,
7,
-25,
17,
7,
10,
18,
3,
2,
-2,
-8,
-11,
22,
-21,
-24,
-46,
-6,
18,
9,
4,
-85,
-10,
-50,
-61,
44,
31,
16,
1,
28,
-24,
31,
-32,
11,
25,
-6,
-12,
-42,
-19,
-68,
4,
-8,
46,
15,
-120,
16,
49,
23,
-26,
37,
42,
-72,
-13,
-8,
50,
-10,
-60,
28,
19,
-42,
10,
65,
14,
-54,
21,
50,
65,
16,
-23,
9,
-2,
16,
-2,
20,
-5,
-60,
87,
27,
-7,
-1,
-8,
-10,
49,
-8,
-16,
19,
-25,
-55,
19,
36,
-40,
4,
-9,
-15,
31,
28,
6,
10,
2,
-15,
-18,
51,
-14,
-17,
-16,
-19,
-26,
8,
20,
-22,
21,
1,
5,
-12,
-32,
39,
0,
5,
-28,
3,
-40,
-32,
-9,
-20,
-11,
-14,
12,
-5,
-19,
-17,
-21,
-15,
-8,
25,
-7,
-14,
27,
-15,
-2,
-65,
16,
-52,
13,
-17,
12,
23,
-4,
19,
-21,
-10,
-5,
11,
13,
-14,
-17,
-8,
-31,
4,
-7,
-12,
18,
-36,
8,
-36,
16,
-41,
-26,
-67,
-36,
-46,
-15,
69,
-24,
80,
-6,
33,
34,
5,
12,
-12,
34,
7,
19,
6,
2,
-33,
-34,
12,
45,
-15,
16,
10,
-43,
22,
15,
17,
-18,
-61,
48,
37,
5,
20,
-25,
55,
11
] |
ON REHEARING
Before: Wahls, P.J., and Shepherd and Cavanagh, JJ.
Shepherd, J.
This opinion on rehearing concerns the calculation of various credits that are awarded to prisoners in the custody of the Department of Corrections (doc) as an incentive for good behavior. The credits represent days that are subtracted from a prisoner’s term of imprisonment.
Before December 30, 1982, these credits were generally known as "good time” credits. Under MCL 800.33(2); MSA 28.1403(2), as it existed before December 30, 1982, a prisoner who had neither breached prison rules nor violated the laws of this state received good-time credit as follows:
(a) During the first and second years of his sentence, 5 days for each month.
(b) During the third and fourth years, 6 days for each month.
(c) During the fifth and sixth years, 7 days for each month.
(d) During the seventh, eighth, and ninth years, 9 days for each month.
(e) During the tenth, eleventh, twelfth, thirteenth, and fourteenth years, 10 days, for each month.
(f) During the fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth years, 12 days for each month.
(g) From and including the twentieth year, up to and including the period fixed for the expiration of the sentence, 15 days for each month. [MCL 800.33(2)(a)-(g); MSA 28.1403(2)(a)-(g). ]
In addition to these "regular” good-time credits, prisoners were also eligible for "special” good-time credits, which were not to exceed fifty per cent of the amount of regular good-time credit.
As a general rule, these good-time credits were applied to a prisoner’s minimum and maximum sentences. However, with the approval of Proposal B in the November 1978 general election, the electorate circumscribed the early release of certain offenders. Proposal B, codified at MCL 791.233b; MSA 28.2303(3), and effective December 12, 1978, provided that the minimum sentence of a person convicted of certain enumerated offenses could not be reduced "by allowances for good time, special good time, or special parole.” Thus, after December 12, 1978, Proposal B offenders were no longer eligible to receive good-time or special good-time credit on their minimum terms; but, they continued to be eligible to receive good-time and special good-time credit on their maximum terms. In this case, it is undisputed that the offenses for which plaintiff was sentenced on July 9, 1981, are Proposal B offenses.
After the imposition of plaintiff’s sentence, MCL 800.33; MSA 28.1403 was amended, creating a new type of credit for Proposal B offenders. Effective December 30, 1982, Proposal B offenders became eligible for "disciplinary” credits and "special disciplinary” credits. 1982 PA 442. On December 30, 1982, MCL 800.33; MSA 28.1403 provided as follows in relevant part:
(2) Except as provided in subsections (3), (4), and (5), a convict who does not have an infraction of the rules of the prison or a violation of the laws of this state recorded against him shall receive a reduction from his sentence as follows:
(a) During the first and second years of his sentence, 5 days for each month.
(b) During the third and fourth years, 6 days for each month.
(c) During the fifth and sixth years, 7 days for each month.
(d) During the seventh, eighth, and ninth years, 9 days for each month.
(e) During the tenth, eleventh, twelfth, thirteenth, and fourteenth years, 10 days for each month.
(f) During the fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth years, 12 days for each month.
(g) From and including the twentieth year, up to and including the period fixed for the expiration of the sentence, 15 days for each month.
(5) All prisoners serving a sentence on the effective date of this 1982 amendatory act or incarcerated after the effective date of this 1982 amendatory act for the conviction of a crime enumerated in section 33b(a) to (cc) of Act No. 232 of the Public Acts of 1953, being section 791.233b of the Michigan Compiled Laws, shall receive a disciplinary credit of 5 days per month for each month served after the effective date of this 1982 amendatory act. Accumulated disciplinary credits shall be deducted from a prisoner’s minimum and maximum sentence in order to determine his or her parole eligibility dates.
In addition to disciplinary credits, a prisoner may be awarded 2 days per month special disciplinary credits for good institutional conduct on the recommendation of the disciplinary credit committee and the concurrence of the warden or superintendent based on an annual review of the prisoner’s institutional record. [Emphasis added.]
It is undisputed that the statutory plan for the accumulation of disciplinary credits is less favorable than that of good-time credits. Good-time credits under subsection 2 simply accrue faster than disciplinary credits under subsection 5.
Effective April 1, 1987, MCL 800.33; MSA 28.1403 was amended again to do away with good-time credits altogether for offenses committed on or after April 1, 1987. After that date all new offenders became eligible to receive disciplinary and special disciplinary credits only. See 1986 PA 322; MCL 800.33(3); MSA 28.1403(3).
Given the complexity of the statutory framework, doc adopted Policy Directive PD-DWA-35.05 in an attempt to comply with the Legislature’s intent. Doc Policy Directive PD-DWA-35.05 became effective April 1, 1987, and provided as follows in relevant part:
Disciplinary credits are earned as follows:
1) When serving for a Proposal B crime committed on or after January 1, 1983 prisoners earn disciplinary credit on both their minimum and maximum sentence. (Type A)
2) When serving for a Proposal B crime committed on or after December 10, 1978 but prior to January 1, 1983 prisoners earn disciplinary credit on their minimum sentence beginning January 1, 1983, but earn special and regular good time on their maximum sentence beginning from the date the sentence is effective. (Type B)
This means that under the current practice of the doc, a person in plaintiffs position is eligible for disciplinary credit on his minimum term beginning January 1, 1983, but is eligible for special and regular good-time credit on his maximum term dating back to the time of sentencing.
The genesis of this appeal was an order of the trial court denying plaintiffs request for a writ of mandamus to compel defendant to grant disciplinary credits against his maximum sentence pursuant to MCL 800.33(5); MSA 28.1403(5). In the first opinion in this case, we reversed and remanded for further proceedings because the trial court had failed to address plaintiffs issue concerning the applicability of MCL 800.33(5); MSA 28.1403(5) to his two remaining sentences of ten to fifteen years for unarmed robbery and breaking and entering. Lowe v Dep’t of Corrections, unpublished memorandum opinion of the Court of Appeals, decided June 17, 1993 (Docket No. 138095).
On remand, the trial court found that plaintiff was eligible to have disciplinary credits deducted from his maximum and minimum terms, but was not eligible for good-time credits on his maximum term after December 30, 1982. However, the trial court again denied plaintiffs petition for mandamus because plaintiff had been receiving good-time credits on his maximum term pursuant to doc Policy Directive PD-DWA-35.05, under which plaintiff accumulated good-time credits faster than the disciplinary credits for which plaintiff claimed he was eligible under MCL 800.33(5); MSA 28.1403(5).
After remand, the matter came before this Court a second time. We then issued an opinion that was sent to the parties and was scheduled for publication. Lowe v Dep’t of Corrections, decided Novem ber 15, 1993 (Docket No. 138095). In sum, we concluded in that opinion that the plain language of MCL 800.33(5); MSA 28.1403(5) compelled the result that Proposal B offenders in plaintiffs position were entitled to disciplinary credits on their maximum sentences after December 30, 1982. However, in order to prevent the accumulation of double credits, we also concluded that the Legislature must have intended the discontinuation of good-time credits after December 30, 1982.
On November 29, 1993, a motion for rehearing was filed by defendant. We granted rehearing on February 3, 1994, and ordered the parties to file supplemental briefs addressing the questions whether and how MCL 800.33(5); MSA 28.1403(5) can be reconciled with the constitutional prohibition against the enactment of ex post facto laws. On February 16, 1994, plaintiff moved for a stay of our November 15, 1993, opinion. On February 17, 1994, we granted plaintiffs motion for a stay of our November 15, 1993, opinion pending our decision on rehearing.
After careful review of the parties’ supplemental briefs on rehearing, it appears that our prior opinion after remand was erroneous, and this opinion constitutes the proper evaluation of MCL 800.33(5); MSA 28.1403(5) and doc Policy Directive PD-DWA-35.05. MCR 7.216(A)(7). Notably, at this point in the litigation, it appears that both parties are in agreement that our prior opinion was incorrect. In fact, both parties now agree that plaintiff should not have disciplinary credits deducted from his maximum sentence. As such, we find that doc Policy Directive PD-DWA-35.05 conforms to the legislative scheme in a way that is consistent with the intent behind MCL 800.33(5); MSA 28.1403(5), as well as the constitutional prohibition against ex post facto laws. Were we to hold otherwise, we would be in direct contradiction of the Michigan Supreme Court’s holding in In re Canfield, 98 Mich 644; 57 NW 807 (1894), and the United States Supreme Court’s holding in Weaver v Graham, 450 US 24; 101 S Ct 960; 67 L Ed 2d 17 (1981).
The following language from MCL 800.33(5); MSA 28.1403(5) is the centerpiece of this case:
Accumulated disciplinary credits shall be deducted from a prisoner’s minimum and maximum sentence in order to determine his or her parole eligibility dates.
In his original brief on appeal following the denial of his petition for a writ of mandamus, plaintiff argued that this statutory language required the deduction of disciplinary credits from his maximum sentence. However, persons in plaintiff’s position who were sentenced before the inception of disciplinary credits on December 30, 1982, were also eligible to receive good-time credits on their maximum term. It being obvious that the Legislature could not have intended to give Proposal B offenders a higher total of early release credits on their maximum terms than other offenders, we can rule out the possibility that plaintiff should receive both good-time and disciplinary credits on his maximum term. However, the question remains whether plaintiff should have either good-time or disciplinary credits applied to his maximum term.
Both Canfield, supra at 647, and Weaver, supra at 27, hold that a law enacted after the date of a prisoner’s sentence that attempts to reduce the amount of credit given for good behavior — and that, in effect, increases the prisoner’s sentence— violates the constitutional prohibition against ex post facto laws. Applying Canfield and Weaver to the instant case, an interpretation of MCL 800.33(5); MSA 28.1403(5) that would replace the more favorable good-time credits with less favorable disciplinary credits on a prisoner’s maximum term would be unconstitutional.
In general, statutes are presumed to be constitutional. People v Massey, 137 Mich App 480, 486; 358 NW2d 615 (1984). Where there is doubt, the presumption of constitutionality justifies a construction that is somewhat contrary to the natural interpretation of the language used, if necessary to sustain the law. People v Bandy, 35 Mich App 53, 57; 192 NW2d 115 (1971).
In the present case, the language used in MCL 800.33(5); MSA 28.1403(5) that "disciplinary credits shall be deducted from a prisoner’s minimum and maximum sentence” might appear to run contrary to the prohibition against ex post facto laws by the implication that it replaces good-time credits with disciplinary credits. However, we will presume that the Legislature intended a constitutional interpretation. Massey, supra at 486; Bandy, supra at 57. In other words, we will presume a constitutional interpretation that retains plaintiff’s right to continue to receive good-time credits under the statutory scheme that was in effect at the time of sentencing.
We hold that Policy Directive PD-DWA-35.05 provides such a constitutional interpretation of MCL 800.33(5); MSA 28.1403(5) by retaining a prisoner’s right to receive good-time credits on the maximum term while applying disciplinary credits to the minimum term after December 30, 1982. The doc’s Policy Directive PD-DWA-35.05 is an appropriate response to the statutory scheme enacted by the Legislature. As such, plaintiff is entitled to good-time and disciplinary credits in accordance with Policy Directive PD-DWA-35.05.
This opinion supersedes our November 15, 1993, opinion in this case. To the extent that the trial court’s statutory interpretation differs from that expressed in this opinion, the trial court’s decision is reversed. However, we affirm the trial court’s decision to deny plaintiffs request for a writ of mandamus.
Affirmed in part and reversed in part.
MCL 800.33(2)(a)-(g); MSA 28.1403(2)(a)-(g) remains substantially the same today as in 1982. However, as will be discussed infra, the addition of a subsection 5 as a new exception to subsection 2 on December 30, 1982, would change the nature of these credits.
Before December 30, 1982, special good-time credits were provided for under MCL 800.33(8); MSA 28.1403(8). Following a number of recent statutory amendments, special good-time credits are now provided for under MCL 800.33(12); MSA 28.1403(12).
An additional sentence of six to ten years for felonious assault has been terminated.
Of particular interest, plaintiffs original position as stated in his initial in propria persona brief on appeal was that defendant should be compelled via a writ of mandamus "to follow the clear requirement of statute 800.33(5) and deduct accumulated disciplinary credits from his maximum sentence.” More recently, in plaintiffs supplemen tal brief submitted pursuant to our February 3, 1994, order of rehearing, plaintiff takes the converse position that MCL 800.33(5); MSA 28.1403(5) "must be limited to being applied to the minimum sentences of those who were serving sentences prior to December 30, 1982.”
The state and federal constitutional prohibitions against the enactment of ex post facto laws are contained in Const 1963, art 1, § 10, and US Const, art I, §§ 9 and 10, | [
58,
11,
-5,
49,
-2,
-36,
-40,
-52,
-92,
9,
18,
5,
29,
-71,
13,
39,
-31,
-2,
-45,
11,
-10,
5,
31,
109,
-13,
61,
28,
38,
23,
9,
45,
-33,
5,
-60,
-37,
-77,
13,
22,
59,
6,
28,
0,
-23,
-21,
-54,
-28,
31,
27,
48,
-18,
-35,
-18,
11,
-5,
10,
62,
-20,
-11,
-53,
25,
-3,
15,
-48,
-14,
28,
2,
-21,
-2,
-50,
16,
39,
-2,
-19,
37,
9,
7,
65,
-10,
37,
-20,
1,
42,
-33,
30,
4,
-11,
10,
-54,
62,
-8,
-18,
7,
-48,
-47,
0,
-13,
8,
-19,
36,
5,
-58,
-30,
-66,
-33,
-14,
-19,
13,
-39,
-43,
5,
30,
40,
50,
-64,
24,
22,
-38,
50,
31,
34,
35,
51,
-3,
3,
25,
-54,
-37,
36,
5,
-30,
-45,
-5,
-15,
-34,
-24,
24,
36,
32,
2,
-39,
-74,
44,
27,
9,
38,
15,
-45,
-11,
34,
39,
-3,
-26,
7,
53,
20,
-59,
-9,
-22,
-57,
-51,
-6,
-17,
-5,
-24,
11,
-54,
3,
-13,
21,
-48,
-10,
69,
29,
45,
1,
-6,
6,
16,
32,
-9,
-91,
23,
19,
50,
-39,
15,
-80,
13,
-15,
11,
19,
33,
23,
-31,
48,
-72,
46,
31,
-16,
3,
-45,
8,
43,
42,
-29,
-16,
-12,
-22,
0,
52,
-38,
-22,
5,
-1,
11,
-15,
5,
11,
33,
15,
-38,
-16,
39,
-4,
-10,
-10,
22,
77,
24,
-7,
20,
-5,
41,
-1,
41,
-9,
9,
19,
13,
7,
3,
-47,
-20,
-12,
13,
61,
-22,
0,
50,
-77,
-33,
3,
-7,
14,
-76,
3,
27,
21,
-18,
28,
-10,
35,
41,
-26,
-85,
48,
-4,
28,
20,
5,
47,
-2,
-12,
15,
-9,
-26,
-25,
0,
0,
-14,
33,
5,
9,
28,
8,
-91,
-31,
12,
-10,
-49,
3,
25,
52,
4,
70,
-44,
-3,
47,
47,
22,
-49,
-38,
7,
-24,
-4,
-9,
5,
-39,
8,
-10,
2,
-5,
45,
-30,
-13,
-76,
19,
-12,
56,
14,
-51,
7,
33,
-15,
-17,
-20,
53,
6,
16,
-7,
0,
-10,
-16,
4,
46,
27,
-26,
47,
6,
53,
24,
26,
20,
-11,
-43,
-14,
-8,
-15,
-8,
5,
-18,
59,
0,
23,
35,
6,
-25,
-39,
-10,
-22,
7,
-64,
6,
-41,
3,
20,
4,
-5,
13,
-50,
57,
-12,
-3,
-31,
-45,
86,
31,
-20,
-11,
-17,
-11,
22,
-43,
-35,
-16,
-52,
-69,
-9,
27,
-22,
-48,
29,
-91,
-89,
16,
7,
22,
-11,
-21,
-43,
-3,
19,
11,
-4,
50,
-11,
-59,
0,
-6,
24,
-18,
0,
3,
15,
8,
-6,
-8,
-78,
-16,
-96,
16,
-26,
-17,
-40,
-28,
-2,
-10,
30,
35,
26,
-56,
16,
-35,
-30,
17,
-27,
-54,
-18,
-21,
-39,
10,
-45,
-24,
40,
58,
-2,
-9,
-55,
43,
-22,
54,
-24,
-89,
0,
-1,
51,
-8,
2,
-76,
-29,
5,
-31,
-9,
42,
74,
-22,
-51,
16,
-1,
43,
-16,
-19,
124,
92,
-4,
-55,
-20,
-15,
10,
-46,
-30,
-31,
-79,
-38,
1,
-35,
-54,
-8,
-60,
-3,
8,
-34,
4,
19,
-24,
-1,
-70,
4,
9,
30,
-29,
-18,
38,
-13,
13,
-15,
68,
-38,
14,
-14,
14,
27,
-9,
80,
50,
-49,
-4,
-71,
8,
-27,
-6,
9,
32,
2,
-79,
9,
-45,
13,
-62,
-20,
4,
16,
12,
1,
43,
-17,
-53,
-12,
-64,
-47,
32,
16,
12,
32,
55,
2,
12,
-54,
-23,
-15,
0,
35,
11,
-2,
-14,
2,
1,
44,
2,
-21,
-49,
73,
-16,
30,
-22,
29,
-10,
7,
25,
4,
23,
-21,
22,
44,
-45,
-3,
-5,
-15,
33,
9,
52,
47,
-6,
-6,
-9,
-11,
13,
18,
70,
25,
-19,
-10,
5,
66,
1,
39,
-1,
4,
-26,
-9,
22,
100,
6,
-4,
48,
12,
11,
65,
-2,
-21,
-15,
12,
24,
-3,
-71,
-14,
6,
13,
-53,
8,
-29,
-5,
-34,
-13,
-29,
47,
6,
-26,
15,
42,
4,
-43,
-36,
-6,
-44,
-21,
-24,
12,
9,
52,
-28,
3,
21,
-40,
-8,
47,
-31,
-25,
10,
-28,
5,
28,
-4,
-15,
-16,
48,
-38,
-12,
34,
-20,
-22,
43,
-12,
-7,
-8,
6,
-16,
-20,
-2,
10,
25,
-18,
22,
-5,
42,
43,
-29,
-24,
-21,
-5,
-43,
-29,
16,
23,
18,
47,
-25,
-8,
-4,
30,
-32,
41,
-17,
15,
28,
-31,
42,
40,
-43,
54,
37,
3,
-1,
2,
-25,
-16,
0,
-6,
49,
1,
-65,
22,
20,
14,
38,
-35,
-35,
24,
-6,
4,
43,
13,
-8,
75,
-7,
14,
-3,
24,
14,
-40,
-19,
-33,
-63,
-55,
44,
-2,
-9,
27,
-20,
-3,
-7,
32,
-75,
-11,
-23,
28,
-47,
6,
-45,
46,
15,
17,
0,
-35,
-89,
63,
13,
-41,
10,
29,
5,
20,
-41,
69,
-5,
-24,
-3,
15,
75,
3,
-9,
-22,
22,
80,
38,
33,
7,
38,
-22,
-8,
-29,
71,
-28,
-16,
45,
-87,
0,
-38,
2,
-18,
5,
4,
8,
25,
43,
2,
17,
-20,
-1,
-46,
20,
54,
-21,
-12,
9,
9,
43,
6,
-21,
3,
-18,
38,
-24,
39,
-1,
-7,
-44,
3,
19,
23,
38,
16,
0,
-10,
17,
25,
-18,
-4,
-2,
31,
-16,
52,
36,
66,
33,
-73,
-27,
1,
26,
-17,
-24,
-52,
43,
-10,
-49,
-37,
-34,
9,
-15,
34,
4,
38,
-20,
17,
-3,
35,
-14,
-10,
39,
-38,
-23,
3,
13,
51,
3,
20,
-2,
15,
48,
-14,
4,
8,
37,
22,
-51,
44,
-8,
7,
-61,
-19,
32,
-36,
43,
29,
75,
-55,
-25,
1,
12,
0,
-79,
25,
8,
-52,
41,
-14,
22,
42,
-55,
-27,
17,
71,
-81,
15,
24,
25,
-15,
0,
7,
-17,
38,
22,
-43,
8,
-5,
-51,
8,
23,
1,
-24,
-6,
-49,
20,
10,
43,
-7,
-20,
-93,
18,
76,
8,
17,
-4,
-2,
-9,
20,
-29,
-20,
23,
22,
-18,
-11,
-71,
16,
-22,
45,
-31,
24,
16,
-40,
9,
20,
-8,
-30,
-9,
-16,
22,
5,
43,
0,
-28,
68,
17,
-58,
40,
46,
-17,
-50,
-71,
-1,
55,
-40,
-3,
-41,
40,
19,
-6,
-1,
-36,
18,
9,
31,
23,
-26,
-20,
23,
5,
-10,
18,
45,
-15,
-33,
4,
27,
2,
-55,
10,
-5,
15,
20,
13,
12,
12,
-6,
-27,
-14,
1,
13,
-22,
-36,
10,
-17,
-13,
-32,
2,
30,
-7,
4,
-34,
-31,
-14,
21,
-44,
37
] |
ON REHEARING
Before: Cavanagh, P.J., and Wahls and G. W. Crockett, III, JJ.
Per Curiam.
Defendant was convicted in two separate jury trials presided over by the same judge of manslaughter with a motor vehicle, MCL 750.321; MSA 28.553, and of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. He was sentenced as an habitual offender to fifteen to thirty years’ imprisonment. Defendant appeals from his conviction and sentence. We are constrained by Administrative Order No. 1994-4 to reverse and remand for a new trial.
In the early morning hours of July 24, 1990, the vehicle in which defendant and Sandra Groves were traveling went off a freeway exit ramp and rolled over. Both occupants were thrown from the car, and Groves was killed. Defendant, who was found to have a blood alcohol level of 0.18 percent, was charged with manslaughter with a motor vehicle. A jury found him guilty as charged. A second jury then convicted defendant of being an habitual offender, third offense, on the basis of two prior convictions of operating a motor vehicle while under the influence of intoxicating liquor, third offense (ouiL-third), MCL 257.625(6); MSA 9.2325(6). This appeal followed.
Defendant’s first issue on appeal is whether the trial court committed error requiring reversal when it instructed the jury that it could find defendant guilty of manslaughter if his actions were a, rather than the, substantial cause of Groves’ death, in light of expert testimony that the allegedly defective design of the freeway ramp may have been partially or wholly to blame for the death.
A panel of this Court recently addressed this issue in People v Tims, 202 Mich App 335; 508 NW2d 175 (1993), lv gtd 445 Mich 862 (1994). In that case, Judge Marilyn Kelly reluctantly concluded that, on the basis of Supreme Court precedent, in order for a defendant to be convicted of vehicular homicide, his conduct must be the proximate cause of the death. Id. at 339-340, citing People v Layman, 299 Mich 141, 145; 299 NW 840 (1941); People v Townsend, 214 Mich 267, 275; 183 NW 177 (1921); People v Barnes, 182 Mich 179, 199; 148 NW 400 (1914). The remaining members of that panel concurred in the result.
We do not agree that the Tims result was mandated by the Supreme Court cases cited. If we were not constrained by Administrative Order No. 1994-4 to follow Tims, we would affirm the manslaughter conviction because we believe that it is both confusing and unnecessarily restrictive to instruct the jury that defendant’s conduct must be the substantial cause of death. However, on retrial the court shall instruct the jury that defendant’s conduct must have been the substantial cause of Groves’ death.
In light of our conclusion, it is not necessary to address defendant’s remaining allegations of trial error.
Defendant next contends that the trial court erred in denying his motion to have the habitual offender charges dismissed, because the prior felonies (ouiL-third) used to enhance the manslaughter charge were themselves both enhanced misdemeanors.
On August 22, 1991, our Supreme Court deter mined in People v Bewersdorf, 438 Mich 55; 475 NW2d 231 (1991), that the habitual offender act fully applies to third and subsequent ouil convictions, thus effectively overruling People v Tucker, 177 Mich App 174; 441 NW2d 59 (1989). However, in the recent case of People v Doyle, 203 Mich App 294; 512 NW2d 59 (1994), a divided panel of this Court held that Bewersdorf could not be retroactively applied (even though the Supreme Court in that case applied the new rule retroactively). Doyle, supra at 296-297. Accordingly, because the offense in this case was committed on July 24, 1990, we must conclude that defendant’s two ouilthird convictions may not serve as the underlying felonies for the habitual offender charge. Doyle, supra; Tucker, supra.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. . | [
-11,
20,
4,
23,
-5,
-26,
-50,
-24,
-48,
14,
12,
-35,
3,
-39,
37,
-2,
3,
25,
-44,
9,
-33,
-10,
15,
20,
-20,
-4,
0,
30,
-6,
17,
67,
-10,
36,
-35,
21,
-43,
8,
14,
11,
34,
22,
26,
-45,
-21,
-33,
7,
-1,
-26,
37,
-16,
-18,
-13,
4,
-12,
24,
16,
19,
36,
6,
21,
-8,
19,
-54,
3,
13,
11,
0,
34,
-50,
42,
-42,
-44,
-24,
29,
-17,
8,
14,
48,
16,
23,
-2,
73,
31,
10,
-18,
-7,
-14,
-36,
1,
-27,
12,
-8,
-26,
-7,
-33,
-19,
-18,
-51,
19,
-3,
5,
-18,
29,
1,
-46,
-1,
-20,
-48,
-14,
-2,
7,
85,
31,
8,
16,
-61,
-25,
24,
-30,
31,
0,
17,
19,
-29,
1,
-21,
-9,
-1,
-28,
-17,
-9,
15,
35,
-66,
15,
0,
-11,
48,
-31,
28,
-24,
44,
44,
23,
40,
-9,
-18,
14,
-15,
31,
12,
11,
-33,
-27,
21,
-55,
25,
-40,
-2,
29,
-8,
4,
35,
9,
-35,
14,
-45,
17,
-23,
-67,
48,
-19,
36,
39,
39,
-21,
17,
4,
-18,
-11,
-21,
24,
33,
19,
-7,
-52,
-84,
26,
-25,
-12,
-13,
-11,
21,
-15,
16,
-11,
40,
39,
32,
36,
0,
-1,
8,
-27,
-13,
-3,
-31,
11,
12,
25,
-20,
-10,
-10,
-15,
-7,
-14,
-26,
-10,
37,
6,
-44,
-15,
75,
-58,
-14,
29,
-30,
8,
30,
11,
34,
-5,
-7,
49,
0,
-22,
12,
-18,
18,
11,
51,
16,
20,
0,
4,
48,
0,
15,
-16,
-34,
72,
-5,
-4,
-22,
-56,
-1,
7,
-30,
-37,
28,
41,
25,
21,
23,
-27,
15,
-4,
25,
-43,
-26,
-13,
-38,
4,
11,
-27,
11,
-3,
42,
8,
45,
65,
16,
2,
-18,
-21,
-6,
-37,
100,
19,
-34,
22,
-29,
-23,
10,
28,
-11,
22,
12,
-14,
-13,
40,
-35,
7,
23,
23,
40,
9,
19,
-70,
4,
-21,
-40,
45,
67,
19,
44,
-14,
-50,
53,
-16,
-44,
10,
1,
-70,
12,
46,
23,
-14,
8,
-11,
-43,
47,
-30,
60,
37,
-37,
-7,
40,
-41,
60,
-5,
-12,
-17,
-15,
-4,
-14,
26,
60,
-33,
-34,
-11,
11,
63,
-28,
-34,
-51,
17,
-55,
20,
-31,
1,
-64,
-24,
47,
0,
19,
28,
15,
-27,
22,
47,
-29,
-14,
-25,
18,
16,
17,
14,
23,
12,
-14,
0,
1,
-57,
-18,
-57,
-44,
1,
-29,
6,
-34,
26,
-33,
-64,
-37,
10,
-12,
32,
-5,
-31,
-47,
6,
47,
-16,
-7,
-2,
-28,
15,
-13,
-43,
-38,
-16,
43,
31,
19,
-25,
-43,
-53,
-25,
-58,
33,
-23,
28,
-7,
-22,
-22,
-11,
38,
26,
-14,
7,
26,
31,
-64,
-9,
30,
-59,
9,
53,
0,
-44,
-42,
-18,
-4,
12,
38,
1,
-29,
47,
-4,
33,
2,
-20,
-5,
-34,
25,
45,
48,
-20,
-22,
-12,
-60,
-27,
-59,
57,
-51,
-48,
-18,
40,
-51,
10,
4,
18,
51,
-30,
-31,
30,
32,
3,
-3,
20,
12,
-41,
-52,
-4,
12,
15,
-8,
15,
-10,
-6,
10,
-12,
3,
-45,
-7,
-33,
-9,
-35,
1,
-20,
4,
-40,
-20,
62,
-22,
11,
-16,
10,
19,
30,
31,
-14,
55,
1,
19,
-17,
-5,
94,
-30,
9,
-24,
4,
-4,
-53,
-2,
0,
-9,
-47,
-29,
48,
-24,
-7,
-27,
14,
18,
-73,
-49,
-16,
-39,
-17,
42,
-3,
-22,
11,
-39,
10,
-7,
20,
45,
-17,
7,
-20,
-55,
-3,
-39,
41,
-10,
-30,
1,
-47,
-2,
18,
61,
9,
5,
-32,
8,
81,
26,
12,
51,
-12,
5,
-28,
54,
10,
36,
-53,
3,
38,
64,
-55,
12,
-34,
-9,
1,
17,
-9,
-9,
-39,
46,
39,
28,
7,
9,
12,
-45,
-26,
-17,
58,
37,
-13,
49,
26,
23,
24,
7,
-19,
-17,
43,
-25,
-38,
-13,
27,
0,
13,
-13,
-57,
29,
0,
12,
-35,
7,
-3,
-15,
-15,
23,
-2,
10,
-35,
29,
-53,
4,
-38,
-8,
-28,
11,
-23,
-18,
-22,
44,
2,
-19,
23,
19,
-15,
20,
-51,
4,
-59,
41,
-28,
16,
18,
-8,
-24,
-8,
-10,
-15,
15,
61,
-20,
-2,
-48,
3,
-74,
-23,
-38,
-15,
18,
-8,
14,
-3,
43,
24,
-1,
3,
0,
0,
-35,
-46,
38,
-28,
16,
18,
-60,
33,
80,
19,
-59,
67,
-46,
18,
-12,
9,
47,
5,
-41,
-40,
30,
-1,
-43,
32,
-34,
6,
37,
-34,
20,
-5,
-41,
82,
11,
-5,
7,
-12,
-6,
-34,
-60,
11,
-10,
-30,
28,
9,
13,
16,
-20,
0,
3,
-48,
52,
-10,
19,
19,
8,
-28,
12,
5,
33,
-7,
-23,
-25,
-11,
-36,
-21,
-26,
-33,
-7,
26,
-59,
-7,
23,
30,
-6,
-28,
38,
70,
-15,
-36,
-11,
7,
10,
-16,
37,
-57,
-7,
50,
18,
60,
24,
-44,
-44,
-1,
27,
-62,
46,
-17,
25,
8,
-31,
-32,
17,
-19,
-21,
18,
-47,
-50,
-29,
-38,
34,
26,
-5,
40,
46,
30,
29,
-7,
2,
30,
23,
51,
25,
10,
-3,
25,
-10,
50,
0,
37,
12,
54,
-13,
-17,
16,
70,
-32,
16,
-9,
-6,
26,
54,
66,
-28,
-49,
12,
6,
22,
-21,
5,
2,
-25,
-11,
5,
45,
-54,
-5,
60,
40,
-10,
-21,
8,
74,
7,
7,
0,
19,
44,
-4,
0,
87,
8,
-18,
33,
0,
-32,
11,
-83,
23,
-13,
42,
-13,
-44,
-63,
-2,
-42,
36,
2,
24,
-10,
2,
2,
20,
3,
30,
-49,
8,
-9,
-9,
-11,
-11,
-3,
-46,
52,
68,
32,
-17,
-18,
-27,
-67,
3,
-26,
102,
22,
-51,
-47,
-14,
7,
79,
-8,
-26,
-27,
11,
-47,
16,
3,
-25,
-55,
19,
-34,
-14,
-27,
-2,
-21,
21,
11,
-3,
-68,
-7,
21,
-17,
5,
27,
17,
-3,
6,
-28,
-8,
-64,
-17,
36,
-38,
-5,
16,
-37,
-9,
15,
21,
-24,
-12,
-90,
-36,
21,
-35,
38,
-1,
-17,
26,
-1,
-26,
-19,
-17,
-9,
-36,
25,
-14,
-42,
28,
20,
-10,
39,
-3,
49,
8,
1,
76,
-13,
2,
0,
-27,
44,
26,
-16,
32,
0,
21,
-32,
10,
4,
-14,
-11,
-27,
-16,
23,
-1,
-28,
-14,
34,
-32,
-42,
-12,
-62,
-7,
6,
102,
-42,
24,
-36,
20,
-18,
22,
-45,
14,
31,
20,
15,
36,
6,
14,
-6,
-18,
-31,
36,
-4,
-23,
-37,
43,
-8,
-39,
-25,
11,
-26,
52,
14,
-18
] |
Hood, J.
Plaintiff asserted a claim for proceeds as beneficiary under a life insurance policy. Defendant responded that the deceased insured misrepresented a material fact concerning his driving record in the application for the policy and, thus, recovery is barred. The trial court granted defendant’s motion for summary disposition. We reverse.
The relevant facts are as follows.
Plaintiff’s son, Mark, applied for life insurance with defendant in 1988. The application was completed by defendant’s agent-employee, who checked a box indicating that Mark had not received any traffic tickets in the preceding five years. (For purposes of this discussion, we will assume that the agent correctly transcribed Mark’s response to the question.) In fact, Mark had received several such citations. Mark’s signature appeared on the life insurance application below a preprinted statement declaring that he had read the questions and answers in the application, and that they were complete and true. Mark made timely premium payments until he was shot to death in January of 1990. Plaintiff applied for benefits under the policy and defendant denied coverage after an investigation revealed that Mark had several alcohol-related trafile citations.
Plaintiff initiated the instant action in the Wayne Circuit Court. Defendant moved for summary disposition, claiming that Mark made a material misrepresentation regarding his driving record in completing the application for life insurance. According to defendant, the policy would not have been issued had it known that Mark had several alcohol-related trafile offenses within the five-year period preceding his completion of the application. Plaintiff responded that summary disposition was inappropriate because a number of triable issues of fact existed. The trial court granted defendant’s motion for summary disposition. Plaintiff’s subsequent motions for rehearing and peremptory reversal were denied.
Plaintiff raises several arguments to support her contention that the trial court improperly granted defendant’s motion for summary disposition. We find persuasive plaintiff’s argument that a question of fact existed regarding whether defendant would have refused to issue the policy had it known the truth concerning Mark’s driving record.
In Michigan, a misrepresentation must be "material” in order to allow rescission of an insurance contract. MCL 500.2218(1); MSA 24.12218(1); In re Certified Question, Wickersham v John Hancock Mutual Life Ins Co, 413 Mich 57, 65; 318 NW2d 456 (1982). In determining the issue of materiality, evidence of the insurer’s practices with regard to the acceptance or rejection of similar risks is admissible. MCL 500.2218(3); MSA 24.12218(3). The insurer bears the burden of proving materiality. Szlapa v Nat’l Travelers Life Co, 62 Mich App 320, 325; 233 NW2d 270 (1975).
To support its motion for summary disposition, defendant presented an affidavit from its underwriter that stated that had Mark’s driving record been accurately related, the policy of life insurance would not have been issued. Defendant also presented an affidavit from the head of its underwriting department that stated that it was defendant’s policy at the time of Mark’s application to decline insurance to any applicant with two or more alcohol-related driving violations. (Mark had received two careless driving tickets and three convictions for driving under the influence of intoxicating liquor within the ñve years preceding his application.)
To rebut this claim, plaintiff introduced a copy of defendant’s "Driving Guidelines,” which were an integral part of its underwriting manual at the time Mark submitted his application. These guidelines seek to divide applicants into different groups according to the amount of driving violation "points” accumulated and the type of insurance policy sought. Notably, the guidelines take into consideration only those driving violations less than three years old and assign each possible type of violation a certain number of points.
Applying this formula, Mark would have been assessed thirteen points for driving violations received within the three-year period immediately preceding completion of the application. The guidelines do not state that a person with thirteen points would automatically be excluded from consideration for life insurance. In fact, Mark’s point total did not even place him in the highest category, but, rather, the second highest. Admittedly, given his point total, Mark would have been subject to a higher premium rate than he actually paid. Nonetheless, the fact remains that applicants with as many as sixteen points were eligible for life insurance coverage pursuant to the guidelines utilized by defendant.
More significantly, the guidelines do not support defendant’s stated "policy” position that an applicant with two or more alcohol-related driving violations would automatically be excluded from consideration for life insurance. To the contrary, the guidelines appear to be comprehensive, quite mechanical in application, and seem to leave no room for "individual considerations.”
Thus, the question remains whether the misrepresentation was "material.” In Keys v Pace, 358 Mich 74, 82; 99 NW2d 547 (1959), the Supreme Court, quoting 29 Am Jur, Insurance, § 525, stated:
The generally accepted test for determining the materiality of a fact or matter as to which a representation is made to the insurer by an applicant for insurance is to be found in the answer to the question whether reasonably careful and intelligent underwriters would have regarded the fact or matter, communicated at the time of effecting the insurance, as substantially increasing the chances of loss insured against so as to bring about a rejection of the risk or the charging of an increased premium.
In subsequent cases, regarding the question of "materiality,” the courts of this state have not focused on whether the insurer would have been entitled to charge an increased premium but for the misrepresentation. Instead, the inquiry has been limited to whether the insurer would have rejected the application altogether had the true facts been known. See Wickersham, supra; Clark v John Hancock Mutual Life Ins Co, 180 Mich App 695, 699-700; 447 NW2d 783 (1989). In drafting § 2218(1), the Legislature specifically defined "material” misrepresentations as those misrepresenta tions that, if known, would have led to a refusal by the insurer to make the contract. Therefore, we are inclined to follow the recent line of cases that limit the analysis on the issue of "materiality” to whether the insurer would have refused to make the contract had it known of the misrepresentation.
Defendant supported its motion for summary disposition by averring that it would not have issued the policy had it known the truth concerning Mark’s driving record. In this regard, defendant made an initial showing that the misrepresentation was "material.” However, plaintiff presented documentary evidence in the form of defendant’s "Driving Guidelines” in an effort to establish that defendant would not have refused to issue the policy had it known the truth about Mark’s driving record. Again, the insurer bears the burden of proving materiality. Szlapa, supra.
Clearly, plaintiff presented relevant documentary evidence that squarely addressed the issue whether defendant would have accepted or rejected Mark as a risk. Thus, despite defendant’s assertions to the contrary, a disputed question of fact existed regarding whether it would have refused to issue the policy had it known the truth about Mark’s driving record. Accordingly, summary disposition pursuant to MCR 2.116(0(10) was inappropriate. Paterek v 6600 Limited, 186 Mich App 445, 447; 465 NW2d 342 (1990).
Having found error requiring reversal, it is unnecessary to review in detail the remaining arguments raised by plaintiff. Suffice it to say, we do not find error in the other portions of the trial court’s ruling.
Reversed and remanded. We do not retain jurisdiction.
It is not clear from the records and briefs whether defendant’s motion was under MCR 2.116(C)(8) or MCR 2.116(0(10). However, because both parties and the court referred to evidence beyond the pleadings and whether there was a dispute of material fact, we treat it as a motion within MCR 2.116(0(10). | [
44,
-45,
-1,
-19,
37,
-16,
11,
-40,
2,
31,
0,
-24,
67,
59,
-3,
22,
6,
12,
-21,
-12,
-26,
-20,
15,
32,
-1,
-47,
-8,
30,
51,
35,
-5,
17,
-46,
-46,
-5,
-31,
17,
-25,
-4,
39,
-11,
-36,
61,
-28,
-41,
-22,
-33,
-17,
-32,
-17,
67,
-19,
-13,
-24,
31,
0,
14,
2,
-21,
1,
-14,
-8,
21,
-37,
-29,
39,
0,
70,
-10,
11,
-3,
31,
-13,
3,
-29,
-44,
-17,
17,
-9,
-17,
12,
-37,
29,
-2,
33,
48,
-1,
-2,
5,
-13,
3,
-17,
-14,
-54,
-17,
25,
-4,
-11,
15,
25,
34,
46,
-1,
2,
-41,
41,
38,
-30,
-21,
5,
72,
-2,
17,
-23,
12,
-5,
39,
19,
16,
-11,
-20,
-52,
34,
7,
-14,
7,
70,
-6,
-31,
-11,
15,
37,
14,
-21,
4,
-18,
21,
-7,
-26,
-10,
-21,
-31,
14,
-37,
-3,
65,
36,
-36,
-27,
-5,
-16,
31,
-3,
12,
-11,
7,
-10,
-26,
6,
-81,
8,
-12,
-16,
58,
-8,
5,
2,
-10,
-10,
-22,
11,
-49,
16,
-12,
-8,
39,
48,
7,
-9,
9,
-24,
22,
36,
30,
-6,
-80,
-7,
28,
-25,
-1,
8,
-13,
0,
77,
3,
53,
0,
65,
9,
-38,
-23,
-74,
46,
4,
8,
20,
-31,
-28,
19,
8,
-8,
11,
-14,
-38,
-10,
-40,
29,
-58,
16,
-6,
-25,
19,
22,
0,
-25,
-31,
-54,
-3,
-8,
-18,
-13,
-16,
9,
18,
-21,
26,
9,
-21,
43,
42,
14,
8,
2,
-40,
62,
35,
0,
-13,
13,
-36,
11,
-22,
20,
0,
-53,
-69,
24,
-4,
-41,
3,
-26,
93,
8,
12,
4,
-2,
0,
20,
-20,
-31,
-14,
-29,
-9,
-48,
20,
-43,
-39,
9,
-13,
-1,
25,
53,
22,
-24,
-78,
0,
18,
32,
-3,
-6,
15,
-29,
-18,
-55,
22,
-26,
11,
-6,
-32,
-6,
35,
-22,
23,
19,
-65,
-25,
17,
-3,
-35,
16,
-12,
-20,
28,
-26,
41,
-25,
29,
-49,
39,
0,
21,
44,
8,
-36,
-17,
-4,
14,
0,
-8,
14,
-104,
-7,
25,
54,
17,
-38,
-5,
-8,
19,
40,
45,
25,
-34,
-19,
-15,
19,
32,
7,
-6,
-26,
-22,
10,
-1,
-28,
14,
17,
53,
-37,
-13,
41,
0,
15,
-21,
18,
5,
25,
-40,
-2,
-4,
36,
11,
-29,
-19,
5,
10,
-25,
-25,
43,
-29,
-20,
-5,
-46,
10,
16,
16,
-18,
-10,
-21,
6,
-14,
-20,
-10,
-16,
14,
-45,
1,
-12,
4,
-12,
24,
36,
36,
-3,
24,
0,
23,
-5,
-29,
-49,
1,
-34,
31,
-22,
-5,
12,
43,
37,
-53,
4,
-30,
28,
-10,
15,
-22,
0,
-22,
-17,
41,
-24,
6,
14,
16,
-5,
-32,
3,
29,
-20,
-64,
16,
20,
-50,
11,
-22,
-2,
-15,
5,
-24,
0,
32,
-23,
-60,
30,
-11,
-23,
-23,
58,
34,
-16,
-5,
-54,
23,
-29,
7,
-31,
19,
-21,
-3,
4,
29,
-16,
30,
8,
-56,
11,
18,
38,
-3,
-57,
-35,
-29,
-12,
60,
10,
-42,
-17,
-5,
11,
0,
-38,
-22,
2,
-38,
3,
-16,
-45,
-31,
-31,
0,
-36,
-34,
-42,
32,
28,
27,
33,
-34,
-37,
-6,
8,
33,
31,
16,
-7,
-6,
57,
9,
3,
-43,
18,
4,
-20,
7,
-12,
-16,
-13,
-22,
-6,
-14,
9,
27,
59,
-13,
42,
-82,
40,
36,
13,
15,
-6,
8,
36,
45,
-14,
15,
-25,
12,
17,
-30,
2,
-4,
-45,
-29,
5,
48,
10,
-7,
20,
-36,
2,
-16,
-14,
38,
-7,
26,
2,
-39,
2,
-43,
34,
-35,
-46,
-15,
-7,
-24,
-38,
46,
52,
0,
-10,
13,
-8,
18,
1,
-35,
-49,
18,
30,
32,
1,
-38,
-43,
-20,
-7,
-41,
10,
-12,
-9,
-63,
-11,
25,
-25,
-19,
-40,
21,
4,
4,
12,
7,
0,
-45,
23,
10,
-37,
15,
-28,
19,
19,
-19,
40,
29,
26,
49,
27,
49,
-11,
13,
-8,
-2,
0,
3,
11,
-46,
-24,
-59,
1,
-46,
-29,
31,
7,
-54,
19,
-15,
42,
28,
6,
-20,
40,
-1,
-9,
-59,
-55,
38,
-3,
10,
-40,
-56,
-34,
12,
-30,
18,
-45,
-28,
-28,
-1,
0,
-1,
65,
-35,
-26,
16,
31,
-29,
-37,
22,
23,
15,
39,
25,
32,
79,
-36,
-14,
39,
43,
0,
-25,
-6,
-21,
71,
5,
-14,
23,
-15,
0,
-9,
20,
20,
17,
11,
-42,
-13,
12,
-29,
-15,
-17,
-21,
-4,
-6,
-37,
29,
12,
47,
-19,
-30,
-31,
55,
14,
20,
10,
-18,
-16,
6,
7,
-25,
20,
23,
47,
24,
10,
-37,
14,
-10,
10,
-17,
-41,
-27,
104,
-4,
-6,
-32,
35,
27,
45,
8,
-35,
-14,
-41,
12,
26,
7,
-14,
13,
-28,
4,
-29,
17,
28,
-50,
25,
-21,
-2,
-6,
-16,
22,
-27,
-15,
-28,
-12,
48,
-38,
-35,
-35,
27,
-30,
-39,
73,
46,
-27,
9,
-9,
25,
26,
-28,
22,
-36,
10,
19,
-44,
0,
-28,
-12,
28,
-38,
11,
31,
24,
42,
-8,
11,
-17,
30,
46,
15,
15,
0,
30,
9,
0,
15,
-47,
4,
-24,
8,
-6,
-42,
-37,
-25,
15,
-8,
-35,
3,
43,
19,
-21,
3,
2,
4,
-3,
29,
14,
-31,
-10,
17,
48,
-12,
-1,
50,
3,
-19,
-30,
38,
0,
-27,
49,
2,
-11,
-2,
-42,
44,
-16,
-13,
-52,
45,
61,
-23,
10,
-22,
-45,
34,
-9,
32,
-35,
-10,
31,
57,
-43,
-12,
34,
15,
-38,
-3,
0,
-33,
27,
11,
15,
10,
-6,
17,
-12,
30,
-4,
41,
54,
-34,
2,
28,
-29,
-39,
-18,
54,
14,
11,
-10,
-40,
-34,
11,
28,
-11,
-11,
6,
-38,
-45,
36,
-38,
0,
9,
-8,
-1,
-8,
-24,
-26,
56,
-23,
30,
27,
21,
-17,
-33,
5,
26,
13,
9,
-30,
45,
-24,
53,
38,
-38,
24,
-19,
36,
-10,
55,
11,
-30,
-4,
2,
-14,
39,
3,
-17,
-27,
3,
-39,
1,
16,
-7,
-32,
71,
-8,
-7,
1,
33,
-36,
38,
9,
26,
-38,
-9,
30,
40,
-70,
-6,
23,
52,
4,
38,
-22,
-7,
0,
-21,
-10,
-46,
-25,
-45,
64,
-34,
-60,
22,
0,
-1,
-53,
13,
-24,
0,
32,
-22,
-6,
11,
1,
14,
12,
53,
19,
29,
-14,
57,
-16,
-17,
5,
5,
12,
11,
0,
-8,
-4,
24,
18,
-47,
-1,
28,
-10,
24,
-16,
11,
-65,
-1,
21,
-27,
9,
32,
63,
24
] |
Marilyn Kelly, J.
In these consolidated cases, the defendant, Homeowner Construction Lien Recovery Fund, appeals as of right from orders in two separate construction lien actions granting Erb Lumber’s motion for summary disposition. MCR 2.116(0(10). We affirm.
i
In the first case, Docket No. 150628, Erb Lumber provided building materials and supplies to D.A. Derusha, Inc. for a residence that the contractor was building for George P. and Mary Alice Johnson. The supply contract provided that payment for materials must be made within 150 days of delivery. If not, a time-price differential charge of two percent per month would be added until the total was fully paid.
Erb sought to recover pursuant to the Construction Lien Act. MCL 570.1101 et seq.; MSA 26.316(101) et seq. Because the structure was a residence, Erb was required to name the State of Michigan, Department of Licensing and Regulation, Homeowner Construction Lien Recovery Fund as a party. MCL 570.1201 et seq.; MSA 26.316(201) et seq.
Erb obtained a consent judgment in which the Fund agreed to pay Erb Lumber’s entire lien claim except for the time-price differential which the Fund refused to pay. Erb moved for summary disposition on the question of whether the time-price differential charge was properly included in Erb’s lien claim and whether the Fund was liable for the amount. The circuit court judge found in favor of Erb Lumber, concluding that the time-price differential was properly included in the construction lien claim. The Fund appeals only from inclusion of the time-price differential in the construction lien claim.
H
In Docket No. 159195, while the contractor and the homeowners involved were different, the facts are similar. The homeowners and the Fund entered into a partial consent judgment with Erb Lumber but again disputed the Fund’s duty to pay the time-price differential. The judge in that case also granted Erb’s motion for summary disposition on the question. The Fund appeals from the trial court’s decision. The Court of Appeals consolidated the two cases on March 31, 1993.
hi
The Fund contends that the two percent time-price differential is not an improvement as the term is defined in the Construction Lien Act. MCL 570.1104; MSA 26.316(104). It also argues that both the language of the statute and case law demonstrate that interest payments are not properly included in determining the amount of a lien. MCL 570.1107; MSA 26.316(107).
Two sections of the Construction Lien Act are relevant to resolution of the dispute. MCL 570.1107; MSA 26.316(107) provides in part:
(1) Each contractor, subcontractor, supplier, or laborer who provides an improvement to real property shall have a construction lien upon the interest of the owner or lessee who contracted for the improvement to the real property .... A construction lien acquired pursuant to this act shall not exceed the amount of the lien claimant’s contract less payments made on the contract. [MCL 570.1107; MSA 26.316(107).]
The term "improvement” is defined in MCL 570.1104; MSA 26.316(104):
(7) "Improvement” means the result of labor or material provided by a contractor, subcontractor, supplier, or laborer, including, but not limited to, surveying, engineering and architectural planning, construction management, clearing, demolishing, excavating, filling, building, erecting, constructing, altering, repairing, ornamenting, landscaping, paving, leasing equipment, or installing or affixing a fixture or material, pursuant to a contract. [MCL 570.1104; MSA 26.316(104).]
A fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The first criterion to consider in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993).
The Legislature is presumed to have intended the meaning it plainly expressed, and the statute must be enforced as written. Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744; 453 NW2d 301 (1990). Unless defined in the statute, words and phrases should be accorded their plain and ordinary meanings. MCL 8.3a; MSA 2.212(1); People v Tracy, 186 Mich App 171, 176; 463 NW2d 457 (1990).
When the term "improvement”, defined in MCL 570.1104; MSA 26.316(104), is used in MCL 570.1107; MSA 26.316(107), it does not fix or define the extent of the lien as the Fund contends. Rather, it identifies the parties who are eligible to seek a lien. Thus, despite the Fund’s claims to the contrary, use of the term "improvement” in MCL 570.1107; MSA 26.316(107) is not helpful in determining which sums can properly be included in a construction lien. However, the same section of the statute provides that the amount of the lien is calculated by taking the lien claimant’s contract price, less the amount already paid on it.
Thus, it becomes necessary to decide if the two percent time-price differential was part of the contract price of the materials. The Fund argues that the time-price differential amounts to a finance charge and should not be considered part of the contract price. However, the cases cited in support of its position are unpersuasive.
hi
A
The Fund relies on Brede v Rose, 236 Mich 651; 211 NW 58 (1926). In that case, our Supreme Court limited recovery under a lien to the work performed and the materials used. The plaintiff and the defendant had entered into an agreement whereby the plaintiff would decorate and paint the defendant’s home. A dispute arose in connection with the plaintiffs workmanship, and the defendant refused to allow the plaintiff to complete the work. The trial court rendered a judgment for the plaintiff in quantum meruit, and the defendant appealed. Our Supreme Court agreed that the plaintiff was entitled to recover but excluded profit and overhead from the judgment amount. In reaching its decision, the Court implicitly accepted that profit and overhead are included in a contract price. The Court also suggested that, had plaintiff proceeded on a contract theory, he would have been entitled to recover a portion of the overhead and profit. However, as plaintiff had sued under a quantum meruit theory, he was entitled to recover only for the value of the work done and materials furnished up to the time of the breach.
In contrast to the plaintiff in Brede, plaintiff here relies on the terms of the contract to establish its costs. By including a time-price differential, plaintiff essentially set differing costs for the materials depending on when they were paid for after delivery. Following Brede, since the contract terms established the cost of the materials, and profit and overhead were included, plaintiff is entitled to recover the time-price differential as well. Furthermore, the statute here clearly contemplates that recovery is based on the value of the contract less amounts already paid.
hi
B
Defendant also relies on North v Globe Fence Co, 144 Mich 557; 108 NW 285 (1906). In North, the Court held that the amount of the lien could not include materials that were furnished but not used pursuant to the contract. However, the lan guage of the Mechanics Lien Act which was the basis for the Court’s decision in North was more limiting than the statute at issue here. Thus, the two cases are distinguishable.
in
c
Finally, defendant relies on Canvasser Custom Builders, Inc v Seskin, 38 Mich App 643; 196 NW2d 859 (1972). In Canvasser, our Court stated that the amount of a mechanic’s lien is limited to the extent of the enhancing value of the lien claimant’s material and labor. Id., p 647. The statement was dictum and did not cite supporting law. In the case before us, a statute is under consideration that does not contain or suggest such a limitation, but relies on the terms of the contract to establish the size of the lien.
Thus, we hold that, under the language of the controlling statute, Erb Lumber was entitled to seek a lien which included a sum representing the time-price differential.
Finally, we find the Fund’s public policy arguments unpersuasive. Public policy is best served by following the plain language of the statute and allowing the terms of the contract to govern the amount of a construction lien.
Affirmed. | [
14,
73,
-59,
20,
-7,
34,
10,
21,
-8,
37,
-3,
34,
8,
6,
18,
-15,
-22,
-14,
-22,
4,
29,
8,
31,
26,
-21,
32,
-10,
9,
17,
83,
-12,
-19,
-63,
-59,
9,
27,
-6,
38,
24,
19,
2,
2,
-19,
-44,
-23,
-34,
19,
-39,
54,
1,
31,
14,
42,
-20,
-13,
0,
21,
-11,
-5,
17,
22,
-15,
-29,
-27,
40,
17,
-7,
74,
-2,
-65,
-53,
16,
-3,
-23,
-21,
-25,
-14,
15,
-17,
25,
13,
-16,
43,
-59,
-42,
13,
-4,
-9,
28,
66,
-90,
-16,
-38,
18,
3,
27,
-12,
20,
-8,
43,
-2,
18,
27,
14,
-38,
25,
45,
-87,
-16,
36,
19,
-7,
5,
16,
-42,
-19,
1,
39,
-9,
-2,
6,
21,
1,
-8,
8,
-26,
43,
-42,
-51,
-3,
26,
0,
-21,
-18,
24,
21,
27,
38,
-22,
23,
-9,
-14,
-20,
-50,
9,
-8,
36,
-45,
-1,
-4,
2,
25,
-54,
25,
-3,
-53,
25,
-12,
-3,
-19,
45,
-20,
3,
3,
-46,
5,
-11,
-4,
-9,
19,
36,
-18,
43,
-37,
44,
32,
35,
-15,
10,
49,
-16,
-23,
8,
38,
-37,
32,
37,
17,
-5,
25,
12,
-43,
-47,
85,
-53,
15,
-24,
41,
7,
42,
-71,
-88,
29,
21,
-2,
-17,
40,
-4,
11,
-42,
23,
35,
-80,
-38,
4,
21,
26,
3,
34,
-51,
-34,
-43,
27,
-13,
-17,
-40,
9,
-7,
85,
-32,
7,
-1,
1,
-9,
-4,
10,
11,
19,
48,
47,
64,
-54,
-48,
-27,
-68,
-7,
-32,
-28,
-23,
-17,
-54,
-19,
20,
9,
-4,
1,
-2,
21,
-21,
33,
-3,
35,
-15,
-20,
5,
22,
-98,
35,
-13,
14,
-18,
25,
-14,
44,
-1,
-19,
-48,
32,
1,
-24,
18,
-44,
-6,
-1,
-8,
22,
4,
45,
-17,
-3,
45,
-21,
18,
-51,
-9,
40,
-24,
0,
-33,
12,
-24,
-42,
-28,
-41,
2,
14,
1,
33,
21,
11,
-41,
-49,
8,
-51,
1,
-24,
-4,
8,
-6,
-24,
78,
-22,
6,
10,
37,
-33,
42,
-10,
-44,
-1,
-47,
-21,
-32,
-39,
8,
-2,
13,
-17,
-8,
37,
32,
40,
36,
18,
45,
-10,
21,
-54,
-32,
21,
-30,
9,
-41,
39,
-23,
-19,
7,
-12,
-36,
91,
86,
37,
0,
-40,
-6,
-13,
-19,
34,
-3,
49,
-8,
-7,
1,
10,
-15,
0,
-49,
1,
-29,
-12,
-7,
50,
48,
-2,
72,
-27,
6,
5,
-11,
41,
-31,
-6,
-5,
-2,
-16,
-10,
31,
-40,
-14,
-25,
54,
-41,
19,
9,
41,
-27,
13,
15,
-9,
10,
20,
-41,
-31,
6,
-41,
-15,
14,
-26,
16,
42,
61,
2,
-26,
-64,
56,
-30,
-4,
-1,
-48,
43,
-87,
35,
16,
-46,
0,
64,
-41,
12,
-98,
2,
27,
58,
19,
-51,
4,
11,
-29,
1,
52,
0,
-11,
24,
-18,
0,
-4,
-8,
7,
-19,
27,
13,
41,
-28,
3,
-3,
12,
-23,
50,
7,
15,
25,
-23,
11,
50,
38,
1,
7,
19,
-11,
-31,
-21,
0,
58,
-4,
-19,
-70,
-2,
-27,
-48,
-46,
-10,
-2,
-26,
-49,
-23,
-41,
28,
-18,
-25,
8,
39,
-31,
-63,
19,
27,
45,
-17,
25,
-7,
19,
-5,
0,
-15,
22,
25,
-12,
-16,
37,
10,
16,
63,
-39,
3,
-42,
-19,
30,
33,
-7,
41,
38,
1,
79,
-16,
-2,
-56,
-36,
33,
-36,
50,
1,
-34,
2,
50,
-5,
12,
8,
-8,
11,
25,
1,
-17,
-31,
-4,
-11,
72,
-14,
32,
-18,
-29,
0,
-33,
6,
30,
55,
1,
27,
-35,
-17,
-42,
-6,
41,
-18,
57,
-26,
13,
-32,
43,
-33,
33,
14,
-63,
-20,
-13,
-22,
-63,
-57,
-17,
55,
19,
41,
39,
-21,
15,
2,
-8,
0,
-21,
-9,
-7,
83,
-18,
23,
-15,
-56,
-26,
-30,
-7,
-21,
46,
9,
17,
14,
23,
-15,
18,
-7,
-18,
25,
15,
24,
53,
16,
15,
-39,
21,
-42,
48,
45,
31,
-17,
25,
2,
-5,
-9,
2,
7,
-17,
15,
12,
13,
-41,
-36,
22,
-17,
9,
4,
-47,
15,
17,
-23,
41,
-65,
42,
2,
0,
11,
-34,
12,
-37,
0,
-14,
48,
-33,
16,
38,
-25,
12,
9,
7,
41,
2,
-7,
8,
2,
17,
37,
-37,
-54,
25,
0,
64,
-37,
-31,
-39,
-49,
-47,
-17,
7,
-8,
1,
-7,
-17,
-26,
9,
2,
17,
21,
-4,
8,
1,
-5,
-26,
20,
39,
9,
-48,
9,
-34,
1,
-3,
63,
8,
-17,
2,
-3,
31,
35,
-18,
-39,
-41,
-69,
-5,
-30,
5,
0,
13,
-55,
-43,
-67,
-20,
-21,
-25,
106,
-15,
-10,
-11,
-50,
-15,
20,
-17,
4,
33,
1,
25,
-59,
-45,
1,
-11,
59,
-1,
6,
6,
-43,
-51,
3,
10,
9,
-31,
-27,
-41,
0,
2,
-42,
-9,
0,
27,
-24,
-37,
-41,
71,
-80,
-12,
44,
-11,
-3,
31,
-41,
-5,
30,
78,
19,
31,
-31,
40,
-12,
-26,
-87,
59,
-71,
20,
-16,
-30,
-28,
13,
4,
9,
24,
-14,
12,
-24,
-46,
-46,
15,
6,
-12,
4,
7,
-9,
-23,
-19,
-15,
8,
-34,
21,
10,
35,
4,
-17,
31,
10,
64,
-19,
-17,
-45,
-46,
-6,
19,
12,
13,
-4,
3,
44,
21,
3,
13,
24,
-41,
16,
32,
6,
-11,
9,
-11,
1,
16,
30,
0,
-51,
12,
-23,
-2,
-16,
-11,
11,
12,
-4,
66,
-15,
10,
-5,
8,
40,
37,
-14,
57,
-17,
12,
-24,
1,
27,
-9,
-3,
-30,
-31,
36,
10,
-15,
-25,
9,
11,
-6,
-8,
57,
37,
14,
-14,
-31,
-9,
5,
-36,
29,
2,
10,
-45,
0,
6,
-32,
16,
-54,
-4,
-13,
-5,
1,
-1,
19,
-5,
-18,
-68,
-23,
-54,
52,
-38,
26,
26,
4,
-38,
6,
6,
-36,
-24,
44,
-2,
11,
-41,
-20,
-33,
35,
22,
55,
-53,
18,
-29,
18,
25,
38,
-5,
-12,
48,
-22,
-9,
48,
4,
-69,
-14,
-14,
4,
-44,
1,
43,
-21,
25,
19,
14,
48,
57,
37,
-28,
-9,
79,
-19,
-45,
8,
-23,
52,
-14,
11,
-28,
2,
7,
-23,
-16,
-23,
-14,
-7,
-20,
-36,
-2,
2,
-39,
-15,
4,
65,
-18,
-19,
-15,
29,
-56,
21,
49,
-28,
64,
99,
-56,
18,
30,
-20,
-22,
-16,
-15,
24,
14,
10,
-22,
46,
-12,
39,
-37,
27,
6,
-1,
-12,
-49,
26,
6,
11,
31,
18,
-12,
-35,
39,
-55,
70,
-20,
-1,
63
] |
Reilly, J.
Defendants appeal as of right a circuit court order granting summary disposition to plain tiff pursuant to MCR 2.116(0(10) and permanently enjoining defendants from issuing any permits for the taking of wild raptors under Amendment No. 7 of 1991 to the Wildlife Conservation Act Commission Order. The trial court determined that § 8(1)(b) of the Wildlife Conservation Act, MCL 300.251 et seq.; MSA 13.1251 et seq., did not give defendants the authority to issue permits allowing the taking of animals not defined as game in the act. We affirm.
The Wildlife Conservation Act gives the Natural Resources Commission (nrc) the authority to manage animals in this state. MCL 300.258(l)(b); MSA 13.1258(l)(b). "Animals” are defined as "wild birds and wild mammals.” MCL 300.253(1); MSA 13.1253(1). Certain species of animals listed in § 4(1) are included within the definition of "game.” Only the Legislature may designate a species as game. MCL 300.261; MSA 13.1261. Once an animal has been designated as game, only the Legislature may authorize the establishment of the first open season for that animal. After that has been accomplished, the nrc has the power to establish open seasons for that animal and to issue orders pertaining to that animal for each of the other purposes listed in § 8. Id.
The only issue in this case concerns defendants’ authority with regard to animals that have not been designated as game. Specifically, plaintiffs claim challenges the nrc’s authority to enact Amendment No. 7 of 1991 to the Wildlife Conservation Act Commission Order. This amendment authorized the capture of certain raptors (hawks, owls, and eagles) within the state under permit from the director of the dnr for use in falconry. Plaintiff contends that because these animals have not been designated as game by the Legislature, the nrc has no authority to allow the taking.
Defendants contend that § 8(l)(b) of the act gives the nrc the power to regulate the taking of animals that have not been designated as game, and that the enactment of the amendment was within that power. Section 8(l)(b) provides:
(1) The commission shall manage animals in this state. In managing animals, the commission may issue orders to do all of the following:
(b) Determine the kinds of animals that may be taken.
"Kind” is defined in § 4(4) to mean "an animal’s sex, age, or physical characteristics.” Defendants argue that if the Legislature intended to restrict the power delegated in § 8(l)(b) to game animals, the subsection would read "kinds of game” rather than "kinds of animals.” We disagree.
When determining legislative intent, statutory language should be given a reasonable construction considering the statute’s purpose and the object sought to be accomplished. Michigan Humane Society v Natural Resources Comm, 158 Mich App 393, 401; 404 NW2d 757 (1987). An act must be read in its entirety and the meaning given to one section determined after due consideration of other sections so as to produce, if possible, an harmonious and consistent enactment as a whole. Id.
We believe that the Legislature’s intent regarding the nrc’s powers over nongame animals is suggested by a close reading of § 7 of the act.
A person shall not take . . . game or any protected animal . . . except as provided for in this act or by an order of the commission or an interim order of the director. This section shall not be construed to enhance the commission’s powers to establish an open season for an animal that is not game or to give the commission the power to designate a species as game.
We are satisfied that the second sentence of this section indicates that the Legislature did not intend to authorize the nrc to allow the taking of nongame animals. The sentence reasonably can be read to mean only that § 7 shall not be construed to enhance the commission’s powers so as to allow the commission to establish an open season for an animal that is not game or to give the commission the power to designate a species as game.
We agree with plaintiff that the Legislature intended that the delegation of power in § 8(l)(b) must be read in conjunction with § 11. Thus, the authority granted in § 8(l)(b), to determine "the kinds of animals that may be taken,” applies only to animals that have been designated as game and for which an open season has been declared under § 11. Our interpretation of the act is supported by the Legislature’s use of the word "kinds,” which has a limited definition, rather than "species” in § 8(l)(b).
Defendants contend that the use of the word "kinds” in § 8(l)(b) does not indicate a limitation on the NEC’s power. Arguably, the nec could determine that both sexes and all ages of a species of animal could be taken. However, we agree with plaintiff that if the Legislature had intended that the nec would have the power to determine what species of animals could be taken, it would not have included § 11, and it would have used the word "species” in the definition of "kind.”
Therefore, we agree with the trial court that because the raptors have not been designated as game, the nec does not have the power to issue an order allowing the raptors to be taken. This being the only issue raised on appeal, we affirm the order of the trial court.
Affirmed._
MCL 300.258(l)(b); MSA 13.1258(1)(b).
MCL 300.254(1); MSA 13.1254(1).
MCL 300.261; MSA 13.1261 provides:
Only the legislature may designate a species as game. If an animal is designated under this section by the legislature as game, then only the legislature may authorize the establishment of the first open season for that animal. After the legislature authorizes the establishment of the first open season for game pursuant to this section, the commission may issue orders pertaining to that animal for each of the purposes listed in section 8.
Before the amendment, falconers were permitted to hunt with and possess raptors, but were not permitted to capture wild raptors in this state.
"Take” is defined in § 5(1), MCL 300.255(1); MSA 13.1255(1), as meaning:
[T]o hunt with any weapon, dog, raptor, or other animal; kill; chase; follow; harass; harm; pursue; shoot; rob; trap; capture; or collect animals, or to attempt to engage in such an activity.
MCL 300.257; MSA 13.1257.
Defendants seem to argue that the omission of a reference to nongame, nonprotected animals in the first sentence suggests that these animals can be taken by anyone at any time. However, this interpretation is inconsistent with the second sentence of the section. According to that sentence, the commission does not have the power to establish an open season, defined as "the dates during which game may be legally taken,” MCL 300.254(5); MSA 13.1254(5), for nongame animals. If nongame animals could be taken at any time, there would have been no reason for the Legislature to include the second sentence. Further, it is not reasonable to conclude that the Legislature intended to give the nkc the power to determine that a nongame species could be taken, but not give it the power to regulate the dates during which the takings could occur.
MCL 300.261; MSA 13.1261. | [
33,
21,
-30,
45,
19,
9,
-15,
73,
-3,
62,
-15,
19,
10,
22,
69,
-25,
38,
26,
6,
28,
-3,
33,
-6,
1,
6,
-50,
38,
5,
-19,
12,
-44,
-27,
17,
-23,
2,
-26,
18,
86,
-36,
26,
37,
-46,
5,
11,
-20,
-68,
36,
21,
26,
-16,
58,
6,
-11,
-21,
-103,
-14,
36,
-47,
9,
10,
-26,
8,
41,
40,
30,
-11,
-56,
-2,
-1,
-7,
33,
57,
-51,
6,
12,
-36,
3,
-50,
-22,
46,
-22,
98,
26,
-12,
39,
49,
-16,
-16,
17,
-9,
-87,
-14,
-40,
0,
17,
86,
-5,
-34,
38,
-28,
-1,
13,
37,
49,
23,
18,
-16,
-51,
35,
-21,
36,
-20,
-54,
-63,
38,
-7,
-18,
47,
-33,
29,
-39,
-24,
33,
11,
-7,
-57,
3,
-32,
-84,
42,
-12,
-48,
-3,
0,
-9,
29,
-59,
-3,
-7,
-52,
30,
20,
-23,
25,
-5,
-17,
2,
9,
-11,
2,
-12,
-12,
0,
42,
-12,
7,
-4,
32,
-16,
-45,
14,
29,
-19,
-29,
-13,
28,
-22,
-9,
-64,
4,
73,
1,
1,
19,
-7,
-42,
-17,
3,
19,
14,
-17,
45,
-12,
14,
-31,
-3,
-11,
-33,
-60,
-8,
17,
-42,
62,
-67,
17,
79,
31,
19,
4,
6,
38,
-26,
33,
-34,
19,
-9,
14,
1,
27,
2,
-58,
33,
-4,
-34,
-31,
-11,
-29,
3,
-17,
-49,
27,
-16,
102,
60,
-22,
-26,
28,
-1,
6,
-23,
31,
-4,
49,
20,
-30,
-39,
-19,
-8,
59,
-4,
9,
-17,
-48,
-30,
21,
29,
-39,
-29,
15,
0,
44,
-45,
-17,
48,
12,
-64,
19,
-59,
3,
-22,
-39,
-52,
-12,
-1,
-25,
26,
-86,
-1,
-23,
-26,
-39,
21,
-19,
61,
8,
-35,
21,
-23,
-18,
-43,
56,
37,
-37,
6,
-47,
47,
-14,
0,
14,
-36,
-23,
45,
-27,
1,
15,
23,
25,
-51,
26,
18,
9,
-14,
8,
-1,
0,
-15,
-46,
-24,
-22,
-7,
-45,
60,
16,
-17,
5,
-29,
0,
-16,
67,
-25,
8,
-38,
44,
37,
1,
-6,
52,
-9,
3,
-4,
18,
15,
26,
-24,
37,
21,
27,
-36,
-12,
68,
26,
-37,
21,
12,
1,
7,
-35,
-3,
-20,
7,
-22,
53,
-18,
21,
33,
-35,
-17,
-29,
-8,
38,
0,
0,
-30,
-26,
49,
34,
15,
22,
-9,
2,
11,
-5,
88,
-7,
5,
45,
3,
1,
-8,
-44,
18,
21,
28,
-38,
-7,
10,
-33,
45,
25,
5,
18,
-104,
-28,
-3,
0,
-8,
-1,
11,
76,
-12,
5,
-22,
0,
22,
-55,
-1,
7,
-24,
-5,
29,
-34,
19,
8,
30,
-49,
49,
1,
26,
16,
-31,
36,
-20,
-11,
-84,
14,
-76,
-4,
-8,
-20,
11,
-12,
3,
-41,
34,
-20,
6,
-13,
16,
0,
12,
-36,
-83,
20,
-49,
-12,
-48,
-13,
51,
11,
22,
25,
33,
-54,
-37,
-56,
22,
0,
7,
-37,
-36,
-78,
-34,
36,
-46,
12,
-7,
-60,
-34,
62,
-11,
9,
49,
19,
69,
-20,
-39,
28,
31,
-7,
49,
1,
-7,
-4,
-18,
-34,
-13,
7,
36,
59,
18,
-14,
26,
67,
26,
0,
56,
5,
-7,
24,
20,
-5,
-18,
20,
0,
2,
26,
-14,
-26,
-10,
68,
-10,
2,
12,
-6,
-23,
9,
40,
8,
-6,
7,
-17,
-36,
-4,
9,
0,
-5,
27,
-38,
52,
3,
26,
28,
-23,
11,
52,
9,
-14,
30,
5,
-19,
-6,
12,
25,
49,
24,
-9,
9,
-54,
18,
-45,
-9,
18,
7,
-2,
-17,
23,
-53,
14,
-4,
10,
2,
-10,
-5,
-48,
25,
18,
-14,
34,
45,
40,
44,
-24,
16,
-3,
1,
9,
9,
15,
0,
69,
-53,
-33,
23,
10,
43,
-38,
21,
12,
15,
-29,
-2,
-55,
9,
-9,
-50,
16,
61,
-21,
29,
30,
-41,
18,
-63,
-14,
3,
-12,
-13,
21,
16,
46,
-20,
-8,
-26,
30,
-37,
44,
24,
-50,
19,
19,
15,
-65,
-35,
-33,
18,
-4,
17,
0,
81,
-34,
-60,
-33,
13,
0,
8,
-46,
12,
18,
-12,
-2,
-47,
-12,
-26,
-19,
59,
47,
-6,
24,
-3,
34,
-3,
48,
5,
4,
-26,
10,
-34,
0,
2,
-1,
11,
-38,
-27,
-39,
39,
-21,
5,
18,
-10,
-15,
31,
18,
25,
-18,
21,
-11,
-46,
32,
8,
2,
-13,
-9,
-13,
-79,
33,
83,
-7,
40,
48,
-9,
11,
23,
94,
38,
4,
-40,
-10,
19,
-49,
-14,
18,
26,
-65,
39,
13,
-10,
-26,
-44,
-19,
14,
-21,
3,
39,
5,
5,
-7,
-24,
-2,
-39,
-31,
33,
42,
-16,
-78,
-17,
6,
-60,
1,
31,
4,
-72,
30,
2,
-36,
14,
27,
10,
48,
36,
-1,
14,
-34,
27,
-25,
-67,
10,
42,
-11,
48,
-10,
2,
-18,
-16,
13,
-17,
-2,
-34,
-23,
-53,
-50,
33,
-57,
-68,
-18,
-10,
-83,
36,
-24,
25,
-11,
16,
-48,
-1,
-32,
38,
-36,
17,
6,
2,
-29,
-50,
-30,
-12,
23,
-19,
-38,
-63,
-26,
-59,
29,
40,
4,
27,
18,
13,
37,
-39,
62,
-8,
-26,
13,
35,
-24,
13,
-29,
-4,
-19,
-42,
-20,
17,
3,
13,
37,
-47,
32,
27,
15,
-4,
-27,
-29,
17,
32,
-46,
-28,
11,
-14,
47,
-17,
-6,
-2,
35,
-5,
-62,
44,
22,
-44,
-33,
5,
37,
16,
-89,
8,
34,
-41,
-18,
5,
-6,
4,
-52,
-11,
-14,
42,
0,
22,
8,
43,
-30,
5,
10,
19,
0,
-8,
1,
-72,
22,
48,
-10,
13,
24,
-18,
1,
-15,
-64,
30,
-6,
29,
-37,
-11,
-38,
-1,
30,
-18,
-75,
54,
5,
23,
-20,
-19,
6,
-1,
42,
-4,
0,
39,
40,
61,
25,
-6,
22,
-7,
-13,
-1,
23,
-3,
22,
-3,
14,
-57,
-22,
27,
-26,
12,
-7,
15,
-23,
13,
-4,
-17,
10,
-16,
24,
52,
-5,
-1,
-43,
-22,
-32,
16,
28,
-12,
-28,
7,
26,
-47,
12,
46,
-31,
-6,
15,
-53,
-53,
7,
-18,
-9,
-39,
2,
-38,
-19,
-16,
18,
-20,
9,
-13,
-17,
8,
64,
-30,
21,
-31,
-13,
-13,
42,
60,
33,
14,
33,
18,
10,
-47,
32,
37,
-9,
-22,
-29,
-28,
-33,
-36,
70,
2,
40,
6,
-88,
17,
11,
33,
25,
-23,
-5,
-15,
41,
-11,
35,
41,
-6,
42,
-26,
-57,
13,
-42,
-71,
4,
-10,
-40,
-18,
25,
30,
64,
19,
19,
-27,
-20,
-21,
13,
56,
5,
26,
40,
-4,
-41,
-1,
-26,
-2,
0,
5
] |
Campbell, J:
This is the third litigation in this court arising out of the sale of certain hotel premises in Albion. The present controversy arises out of an attempt to foreclose a purchase money mortgage, which Goodenow claims should be restrained; first, because a condition precedent remains unperformed, and second, because of an alleged alteration in the note secured by the mortgage. The decision in the court below was in favor of Curtis on the main issue, and is appealed from by Goodenow.
The condition referred to arose out of an apparent defect in- the title. Two thousand dollars of the purchase money was to be detained until this was removed, and tho note and mortgage were framed accordingly. The note was drawn September 9, 1865, payable, with annual interest, on or before the 9th day of September, 1867, “according to a certain indenture of mortgage bearing even date herewith, payable to the said Thomas Curtis,” etc. The condition of the mortgage, so far as it boars on the defect of title, was as follows:
“The said two thousand dollars being for purchase money for the same, detained by the party of the first part as security for the perfection of the title, to be made good by the party of the second part, to-wit: a deed from Eice (and wife if any), or in chancery, or his legal representatives, to the party of the first part; also a mortgage to be discharged from record, made by one Joseph French, July third (3), 1841, unless the same shall outlaw prior to the time of payment of this indenture; all to be arrangéd and completed on or before two years from this date, at which time this mortgage shall become due and be paid; but in case the title shall be made good as aforesaid, prior to the ninth day of September, 18C7, the party of the second part shall give ninety clays’ notice to the parties of the first part of the arrangement of said title as aforesaid, the full time to not exceed two years from the date of this instrument,”, etc. “ Provided always, and these presents arc upon this express condition, that if the said party of the first part pay or cause to be paid to the said party of the second part, his heirs or assigns, the sum of two thousand dollars, after clue notice has been given, or on the ninth day of September, 1867, after the perfection of said title as within specified, with interest annually, according to the condition of a certain note or writing obligatory, bearing even date herewith, executed by the said Walter G-oodenow to the said party of the second part, a,s a collateral security, then these presents and the said note or writing obligatory shall cease and be null and void,” etc.
It appears from this document that both parties had fully agreed what defects of title they would stipulate to have removed. One was the French mortgage, which was to be discharged unless outlawed. -The other was the necessity of a deed from one Eice or his heirs. It was not an agreement or condition to make a perfect title, nor an assertion of the validity or invalidity of any claim of Bice, or under the French mortgage. The condition was definite and specific, that the money should be due when the French mortgage was discharged or outlawed, and when a deed was obtained from Bice or his estate.
It was decided in Curtis v. Goodenow, 24 Mich. R., 18, that the French mortgage had become outlawed. That left only the Bice deed to be obtained. A general disclaimer had then been procured from Bice, but it was held insufficient, because a disclaimer) addressed to no one, and containing no release or conveyance, was nugatory. The jjarties had seen fit for some reason to require a deed from him to Goodenow, and a disclaimer was not such a deed.
The present record shows that conveyances have been obtained from all of Bice’s heirs to Goodenow. This is a complete performance of the condition, and no further act is necessary to complete the obligation to pay the 'sum detained, with interest. If there arc any other defects, they .formed no element in this condition, and cannot operate to interfere with it; nor can they change the doty to pay the money.
The other point relied on to defeat the mortgage is an alleged alteration in the note, by interpolating the words “or bearer,” which it is claimed were not in the note originally.
The note (if it can be properly called a note) reads as follows:
“For value received, I promise to pay Thomas Curtis, or bearer, the sum of two thousand dollars with use, according to a certain indenture of mortgage bearing even date herewith, payable to the said Thomas Curtis, on village lots No. one, two, three, and four, on block thirty-three, in the village of Albion, Mich., to be paid on or before the 9th day of September, 1867, with annual interest. Dated Albion, Mich., Sept. 9, 1865.
“ [Signed] Walter Goodenow.”
It is certainly a new idea that a debtor can come into a court of equity and ask affirmative relief to get rid of a debt which lie honestly owes, because his creditor has made such an alteration in a security as may prevent his enforcing it according to its terms. It is a cardinal principle that equity will not aid a party in-doing that which is not equitable. He who seeks equity must be prepared to do equity. Such a bill as the one before us is unprecedented and anomalous, so far as it seeks to avoid the mortgage for the alleged alteration. If that had been the only allegation, the bill would have been demurrable for want of equity.
But the alteration, if made by Mr. Curtis (upon which, if it were necessary to decide it, we should desire to be very clearly satisfied), in no way changed the legal effect of the instrument. It was made expressly subject to the conditions of the mortgage. The m'oney was not payable absolutely, but only on certain contingencies, and the time of payment Avas also subject to be fixed or changed by the performance of certain acts by the payee. Such an instrument cannot be made negotiable by the use of the Avord bearer or order, or by any language, and the insertion of such language would be entirely nugatory. The note is the same without the words “or bearer,” as with them, and if they Avere inserted without Goodenow’s consent, the change was in law no change, and the note Avas not thereby invalidated, either at laAv or in equity. Curtis has performed all the conditions which he Avas bound to perform, and the mortgage is wholly due and unpaid, and subject to foreclosure.
The question of alteration Avas fully presented by the record in the case of Curtis v. Goodenow, 24 Mich., 18, before referred to, Avhero it was. not considered important enough to be discussed. The bill there was dismissed without prejudice, and only dismissed at all on the ground of the deficiency in the supposed rcmoAal of-the defect of title. It was not then imagined that the alteration controversy could again appear in court, and still less that it would be deemed material enough to interfere with any of the rights of Curtis. We do not understand on what principle the personal liability of G-oodonow was deemed by the circuit court to have been discharged. The defendant has not appealed, and the question is probably not of any moment, inasmuch as the land is evidently full security for the debt, and hereafter it -will not be competent to dispute the mortgage or its complete validity, which is now finally determined on the facts.
The proper decree in this case, as in all cases where a mortgagor attempts to get rid of a mortgage which is due and valid, and which his adversary seeks to foreclose, is a decree for redemption. This was practically decided in Schwarz v. Sears, Walker’s Chancery R., 19, and has been the constant practice. Every such bill is regarded as in the alternative a bill to redeem, upon the principle that a complainant seeking equity must be prepared to do equity, and this requires payment of his mortgage debt without further proceedings. In Schwarz v. Sears it was intimated that the decree should be one of redemption or strict foreclosure, aud that if a defendant desired a sale and its consequent rights as to deficiency, he should file a cross-bill. That practice has been disapproved, and our practice is now settled in favor of a sale in case of non-redemption. — Fosdick v. Van Husan, 21 Mich. R., 567. The effect of simply dismissing a bill to redeem, is an immediate and absolute foreclosure. The bill before us contains no alternative prayer for redemption, and the decree below evidently ignored the true nature of such a bill, and did not either order a redemption or impose the usual conditions. The defendant not appealing, it is questionable whether we can properly disturb it in his favor, but the -change ought to be made, and will be made if desired by the complainant. We do not think it proper to discuss the possible effect of the present decree as it stands. It finally and irrevocably settles defendant’s mortgage rights. Beyond that we need not examine it.
It was improper to deny the defendant his full costs in the court below. This defect can be rectified, as we regard this appeal as utterly without merits, and can impose the terms of paying such costs as .damages for the vexation. The decree will be affirmed, with the entire costs of both courts, including those which were denied to the defendant by the decree. If the complainant desires to end this litigation which has already fixed his liability, it may be done by making the usual decree for payment in ninety days, or sale on default of redemption.
The other Justices concurred. | [
-9,
-2,
16,
-38,
8,
23,
58,
22,
39,
-11,
62,
27,
35,
-15,
9,
-4,
-5,
-1,
-18,
16,
-42,
-44,
-54,
11,
-21,
14,
6,
-3,
-7,
11,
-12,
-47,
-44,
78,
-11,
7,
19,
-25,
43,
-29,
-23,
10,
-22,
13,
0,
0,
-18,
-38,
-13,
-29,
7,
-51,
30,
-14,
-6,
35,
-19,
6,
-19,
-7,
0,
-21,
46,
40,
-51,
0,
12,
-12,
27,
-18,
0,
-5,
34,
-4,
4,
8,
6,
-4,
-60,
-17,
-16,
-13,
25,
-7,
-6,
26,
28,
19,
26,
22,
-10,
1,
-29,
13,
-2,
24,
-35,
12,
3,
48,
-22,
-20,
-34,
25,
-26,
-12,
-11,
-25,
-30,
-27,
18,
9,
59,
6,
5,
18,
-49,
-13,
-9,
-6,
6,
15,
0,
-40,
16,
42,
-22,
-9,
-54,
-14,
-12,
-15,
-38,
10,
-56,
-22,
28,
-40,
-69,
-74,
30,
21,
-24,
-29,
-3,
4,
3,
-31,
1,
2,
-61,
16,
43,
30,
-46,
-42,
13,
-26,
18,
-27,
16,
25,
26,
-21,
-65,
-28,
22,
7,
15,
26,
34,
60,
-46,
-17,
26,
-1,
21,
-39,
-11,
-13,
-8,
0,
-6,
-18,
-16,
-25,
-13,
16,
-16,
-5,
10,
-36,
-5,
47,
-20,
-18,
-34,
-18,
-3,
-31,
-46,
-23,
-17,
0,
1,
-25,
49,
-26,
12,
65,
-63,
10,
-47,
13,
-30,
49,
21,
-8,
14,
-14,
-11,
15,
12,
8,
-34,
-34,
45,
-1,
54,
29,
-45,
15,
24,
-19,
-5,
7,
30,
28,
-52,
-7,
-28,
0,
-51,
26,
-33,
-5,
-6,
-7,
7,
11,
6,
-8,
-17,
13,
-48,
15,
-14,
15,
-10,
-2,
0,
25,
-32,
3,
6,
-77,
7,
-6,
7,
30,
-29,
16,
8,
56,
-30,
-8,
-4,
9,
-30,
34,
22,
-39,
8,
44,
21,
-29,
3,
-30,
16,
19,
-12,
-5,
-3,
-24,
14,
35,
-17,
-1,
-41,
-7,
-32,
-60,
16,
33,
18,
29,
-27,
-7,
10,
-29,
1,
-6,
2,
-43,
29,
37,
-46,
40,
-23,
-25,
45,
13,
-5,
-11,
-5,
36,
79,
-42,
7,
18,
4,
-7,
4,
0,
-2,
45,
72,
-12,
-38,
-28,
12,
23,
-25,
0,
12,
-15,
-34,
-59,
-35,
7,
-59,
43,
-56,
32,
0,
56,
0,
-33,
-35,
68,
41,
-16,
34,
-41,
-6,
6,
0,
-10,
68,
28,
10,
6,
-14,
25,
-27,
13,
-1,
16,
-14,
24,
47,
-8,
37,
61,
8,
16,
-63,
-36,
-35,
-14,
-11,
-29,
6,
27,
17,
10,
-6,
-1,
-69,
-25,
24,
17,
-62,
-40,
-44,
13,
-5,
-3,
-5,
19,
47,
-31,
-4,
-27,
-30,
-21,
6,
-7,
30,
-20,
-12,
23,
-28,
-37,
-2,
-27,
29,
35,
-25,
13,
-19,
8,
-12,
-12,
11,
1,
13,
5,
-18,
-3,
11,
40,
-17,
36,
-24,
18,
-31,
-3,
64,
18,
-43,
-13,
41,
20,
-5,
8,
50,
-23,
35,
-53,
28,
-36,
20,
3,
0,
26,
-24,
-36,
28,
25,
-37,
29,
73,
12,
-6,
-13,
13,
5,
-9,
0,
-20,
65,
-21,
37,
-26,
-27,
-81,
-33,
24,
28,
42,
-2,
30,
12,
16,
-33,
-14,
-24,
-39,
24,
18,
0,
36,
-8,
31,
-27,
2,
-1,
33,
72,
6,
-42,
-2,
-1,
-1,
-1,
45,
-14,
-10,
15,
32,
-6,
-55,
-14,
17,
18,
28,
27,
27,
-43,
-2,
60,
-32,
3,
29,
13,
32,
24,
28,
-28,
-72,
48,
15,
30,
-67,
27,
-21,
-47,
29,
-11,
-29,
20,
14,
20,
-25,
29,
14,
-31,
33,
9,
3,
-15,
-27,
-34,
20,
-12,
63,
-29,
-30,
3,
-38,
3,
-16,
14,
-44,
-40,
-3,
-33,
-9,
20,
-59,
-40,
23,
-48,
26,
4,
8,
17,
-8,
13,
-15,
37,
-14,
40,
5,
36,
52,
27,
-7,
-8,
-21,
-9,
11,
1,
30,
-17,
-43,
15,
4,
-6,
-14,
31,
-6,
-8,
5,
3,
-12,
-48,
19,
-5,
-6,
17,
-23,
-14,
36,
2,
25,
15,
-26,
17,
3,
-34,
-19,
-5,
-48,
14,
0,
15,
7,
-15,
-36,
-2,
-28,
-7,
-32,
53,
-43,
1,
40,
-21,
-36,
-4,
29,
-6,
29,
23,
11,
13,
21,
-6,
16,
-58,
-4,
43,
-16,
-8,
43,
33,
19,
-23,
-8,
-2,
51,
-8,
-6,
-27,
4,
38,
1,
-10,
31,
-24,
25,
19,
-22,
-21,
-1,
-42,
-13,
48,
9,
-5,
-14,
-62,
27,
13,
31,
16,
2,
6,
60,
-11,
25,
16,
-5,
-1,
-15,
-24,
-33,
-37,
41,
47,
14,
-22,
10,
-1,
10,
14,
-12,
14,
41,
-40,
40,
3,
-32,
52,
-3,
24,
-29,
30,
-23,
-4,
-36,
16,
-12,
52,
-6,
-38,
-14,
-36,
-70,
25,
-23,
33,
34,
23,
21,
36,
-33,
2,
26,
11,
7,
-1,
26,
-43,
-29,
17,
35,
-12,
22,
25,
13,
-27,
15,
4,
-40,
-22,
-7,
-52,
40,
-13,
10,
-20,
41,
27,
9,
12,
76,
-7,
-3,
-66,
3,
-15,
1,
-54,
-5,
37,
54,
27,
-16,
-2,
-10,
10,
-62,
-8,
0,
-32,
-25,
-3,
-27,
-4,
14,
9,
16,
22,
-1,
-22,
-15,
-10,
-41,
-32,
-9,
-18,
-37,
-24,
-17,
28,
-7,
-7,
-20,
44,
17,
-3,
6,
34,
-22,
-8,
-27,
28,
4,
-81,
-24,
2,
77,
-35,
-34,
-11,
22,
-4,
-4,
0,
13,
32,
-1,
-18,
-50,
21,
-19,
-54,
-14,
26,
-11,
-21,
-51,
-31,
-27,
-8,
8,
-45,
-8,
-8,
-14,
20,
19,
-31,
9,
81,
-4,
50,
-28,
4,
-27,
-1,
2,
44,
60,
-29,
28,
6,
-3,
-18,
15,
50,
-1,
10,
2,
25,
2,
56,
-41,
-30,
-9,
17,
27,
35,
-1,
-6,
37,
26,
-41,
39,
-2,
-1,
-12,
-26,
32,
7,
55,
17,
4,
-23,
-40,
-63,
-47,
2,
-16,
-18,
-4,
28,
72,
-6,
-29,
19,
0,
-43,
37,
-9,
-32,
52,
-26,
5,
-13,
23,
10,
-48,
39,
-24,
0,
0,
25,
-18,
20,
18,
-44,
14,
53,
-6,
20,
54,
-31,
31,
20,
14,
-39,
-15,
-11,
-65,
11,
-10,
-33,
32,
76,
-91,
29,
39,
56,
7,
-6,
-51,
-45,
-4,
-6,
-6,
-29,
33,
35,
-4,
14,
20,
5,
-47,
-43,
38,
-10,
-64,
32,
-14,
-7,
-16,
-17,
16,
-4,
2,
21,
-18,
23,
25,
-13,
23,
13,
-18,
46,
3,
11,
-39,
9,
25,
0,
-38,
-48,
-22,
42,
65,
20,
3,
29,
0,
35,
-10,
63,
0,
-34,
40
] |
Cooley, Oh. J:
The case of the complainant is, that in the month of August, 1861, his wife Margaret, who was the owner of a lage amount of real estate, being desirous of devising the same to him, but having in mind certain pecuniary transactions which might cause him serious difficulty, sent him to consult the defendant Crocker as to the proper method of securing her property to complainant without the risk of its being seized by others, and that under Crocker’s advice the property was all devised to the defendants on an oral understanding that they should hold the same for complainant’s use. The wife died in the following month, the will was duly probated, and the title to the property has ever since remained in the defendants, but with constant recognition of the understanding which has been mentioned, until very recently, when defendant Axford, who was nephew to Mrs. Hooker, sot up a claim to half the property as his own. Meanwhile complainant has constantly occupied the property as owner, made improvements, and paid off incumbrances, and he has also purchased other lands the title to which he has caused to be conveyed to defendants on the understanding that they also were to be held for him. And the bill is filed to compel them to convey to him as well the lands devised by the wife as those subsequently purchased.
The defendant Crocker admits the whole case made by the bill, and is ready to tender a conveyance. This relieves the case from any difficulty so far as he is concerned. Mr. Crocker appears to have acted in entire good faith, and no question is made of his readiness at all times to acknowledge complainant’s rights.
The defendant Axford expresses entire ignorance regarding the intent and purpose of Mrs. Hooker in devising the lands as she did, and puts the complainant to his proof; and it is upon this part of the case that the difficulties arise. Axford holds the legal title to one-half the land by a devise explicit in its terms, and which on its face fails to indicate that any third person was to be the object of the testator’s bounty. No charge of fraud is made against Ax-ford, and the evidence all tends to show that' he was entirely passive at the time the will was executed, and had nothing whatever to do in procuring it. What the complainant seeks to do, therefore, is to control the devise by parol evidence, and to give the testator’s bounty a direction wholly different from that given by the will itself.
If there were clear and distinct evidence, other than that of the complainant himself, that his wife intended to make him the object of her bounty, I should think the case relieved of one great difficulty. But there is no such evidence. The complainant was the medium of her communications with Crocker, and it is from his statements at the time, and from his testimony now, that wc are to gather what her wishes and intentions were. I cannot avoid -thinking that this is a very dangerous species of evidence to act upon when the question is whether wo shall upon the strength of it change the apparent intent of a devise in favor of the party giving the evidence.
There are certain facts, however, that arc undisputed, and which my brethren think are conclusive in complainant’s favor. One of these is, that Crocker advised the will to be made as it was for the benefit of complainant. Now it is possible that without such advice the testator might have made the same disposition of her property, and she may have .contemplated it before Crocker’s advice was obtained. But it would certainly have, been remarkable if the advice given for complainant’s benefit should in the naming of trustees have coincided exactly with those she intended to provide for. Another fact is, that the will gave the property to two persons who do not seem to have been anticipating gifts for their own benefit, and left the husband, who would naturally be the object of the wife’s bounty, substantially without a home. And this fact must go a great way ¿0 support the complainant’s evidence; for he was the active agent in procuring the will, and it is incredible that he should have aeted as he did, if he supposed it was to he devised away from him. Another important fact is, that for years after the testator’s death Axford loft complainant in the undisturbed possession and enjoyment of the property, precisely as ho should have done if complainant’s account is •correct, but as he would not have been likely to do if he had supposed he was to have a beneficial interest in the devise. Those facts are so conclusive as to Axford’s understanding of the testator’s intention, that I am not disposed to dissent from the conclusion of my brethren, that as to the devise Axford stands in no better position than Crocker.
The will, then, must he regarded as made as it was because Crocker, who was an attorney at law, advised that it should be. If he had given the advice intending to appropriate the property, this would have been a gross fraud, and a gross breach of confidence. It would be equally a fraud if, having given the advice honestly, he should afterwards conclude dishonestly to retain the lands. And this being his position, the party who, under, his advice, is associated with him, is in the like position. It would he a fraud in Axford to appropriate that which only by the aclvicc of Oroclcer, given for another person’s benefit, is brought within his roach. The fraud on Mrs. Hooker’s estate would be exactly the same, whether one or the other of the nominal beneficiaries repudiates the trust. — Lutterel v. Lord Waltham, 11 Ves., 638; Huguenin v. Baseley, 14 Ves., 273.
As regards the lands which since Mrs. Hooker’s death the complainant has procured to bo conveyed to defendants, the case is different. The act of vesting in the defendants the title to these lauds was that of complainant exclusively, counselled or procured, so far as the case shows, by no other person. The statute, Comp. L. 1871, §§ 4120, 4121, is very positive and explicit that in such a case no trust whatever shall result in favor of the party procuring the conveyance, but the title shall vest in the .grantee named therein, subject only to the rights of creditors. No circumstance of fraud or mistake attended these conveyances which can give jurisdiction for equitable relief. 'On complainant’s own showing, by his own folly he has put his property in the hands of others under circumstances which the statute declares shall preclude him from any remedy. If the' parties see fit to recognize in him any equitable rights, they may do so, but whether they will, is a question which addresses itself solely to their own sense of right and of honor.
The decree of the court below must be so modified as to except from its provisions giving relief as against Axford, .all the lands that have been conveyed to the defendants since Mrs. Hooker’s decease. In other respects it will be .affirmed. The defendant Axford will be entitled to costs on. this appeal.
The other Justices concurred. | [
-7,
17,
-15,
-24,
-8,
-10,
21,
43,
33,
15,
3,
-19,
55,
14,
-2,
-9,
1,
-26,
16,
-2,
8,
-29,
1,
-20,
2,
8,
-14,
-19,
-34,
-47,
15,
21,
-42,
60,
18,
-22,
32,
0,
-22,
-41,
-20,
29,
25,
-10,
30,
37,
5,
-25,
18,
-30,
13,
-17,
7,
-30,
21,
-4,
-12,
15,
-19,
-12,
1,
-67,
4,
-32,
-39,
20,
54,
-22,
4,
-67,
-7,
23,
4,
-28,
-8,
-7,
22,
-2,
-12,
15,
-2,
-52,
5,
-16,
5,
4,
2,
28,
-29,
2,
-10,
1,
4,
38,
16,
28,
18,
27,
-2,
50,
25,
-27,
-1,
18,
23,
-4,
-38,
-10,
-5,
-16,
-23,
11,
58,
-7,
-18,
-21,
-15,
-37,
-71,
-30,
28,
-16,
45,
-33,
-17,
41,
-13,
-31,
41,
20,
10,
19,
-63,
-8,
22,
-25,
-11,
-47,
-32,
-18,
-7,
11,
-21,
-61,
-7,
-32,
-6,
1,
0,
-19,
-8,
4,
15,
1,
41,
-50,
39,
-16,
43,
-25,
44,
-9,
-17,
-26,
-55,
10,
-12,
-34,
2,
63,
40,
1,
-53,
18,
14,
-23,
28,
-35,
-40,
-10,
27,
21,
8,
-9,
41,
-27,
39,
-4,
8,
10,
-14,
-15,
2,
6,
-5,
23,
-17,
-12,
15,
-1,
15,
-4,
-2,
5,
20,
-32,
-4,
-45,
-18,
-2,
-28,
20,
-22,
3,
-42,
6,
-40,
-41,
-24,
2,
42,
37,
34,
0,
-17,
-12,
25,
-20,
-2,
28,
-20,
-6,
-20,
22,
-54,
-21,
7,
-31,
-21,
-33,
-7,
8,
-7,
-24,
-24,
15,
15,
52,
-44,
30,
-40,
-23,
6,
39,
1,
-3,
-19,
44,
-8,
-45,
-15,
-3,
-6,
17,
1,
-67,
17,
-22,
-11,
32,
-29,
-8,
45,
28,
-14,
-34,
-35,
23,
-46,
1,
27,
5,
-23,
20,
5,
29,
-17,
35,
-10,
21,
33,
-44,
-26,
-23,
8,
66,
-14,
-9,
11,
-23,
-5,
-15,
46,
-13,
40,
9,
7,
-23,
-30,
-30,
-21,
1,
0,
-45,
43,
24,
-17,
-16,
2,
-37,
27,
16,
-6,
-14,
-2,
31,
7,
-30,
-11,
13,
-20,
-2,
3,
-47,
-18,
-5,
30,
-10,
-57,
-54,
13,
-1,
3,
-23,
0,
29,
4,
-14,
-14,
-10,
-11,
0,
-28,
4,
-9,
2,
-10,
-2,
2,
-23,
8,
9,
17,
-12,
7,
-11,
-26,
-34,
22,
-2,
4,
14,
19,
13,
0,
-23,
-38,
13,
33,
39,
5,
9,
15,
32,
14,
-30,
-25,
-4,
-22,
38,
-34,
23,
16,
17,
-53,
-13,
-10,
-14,
-22,
-4,
-14,
26,
-48,
-16,
-39,
33,
-58,
-9,
-34,
-27,
27,
2,
73,
-39,
15,
-7,
51,
2,
28,
12,
8,
-26,
33,
-16,
-7,
-24,
24,
3,
-6,
-28,
2,
-7,
70,
2,
1,
-12,
8,
16,
-21,
33,
-4,
8,
3,
34,
-57,
38,
-10,
-3,
49,
4,
-7,
13,
15,
28,
19,
-21,
119,
13,
37,
2,
48,
2,
40,
0,
5,
-45,
4,
-25,
41,
3,
26,
-6,
0,
-18,
-7,
8,
13,
28,
10,
-11,
17,
22,
28,
24,
-8,
23,
7,
-27,
12,
18,
8,
-7,
-43,
-30,
-1,
-38,
0,
-20,
23,
6,
0,
35,
4,
-11,
9,
17,
2,
-5,
18,
80,
-14,
-20,
4,
17,
-7,
61,
61,
2,
-10,
27,
46,
-68,
-50,
-24,
12,
21,
46,
38,
33,
-8,
-40,
5,
-44,
-39,
7,
-13,
23,
-44,
22,
-21,
-65,
36,
71,
-3,
-30,
32,
-3,
-12,
-3,
33,
-52,
-27,
33,
3,
-27,
9,
-5,
-32,
-1,
29,
0,
-28,
-14,
-56,
27,
-38,
0,
-45,
-1,
-8,
-9,
9,
29,
1,
-27,
1,
-31,
-2,
-19,
4,
-39,
-18,
6,
-53,
-4,
16,
-10,
37,
4,
34,
-1,
56,
25,
-31,
-11,
-38,
-3,
-24,
23,
-16,
-13,
-51,
-28,
-8,
-13,
43,
-48,
37,
-13,
5,
-5,
19,
48,
-10,
-5,
48,
-2,
-45,
-11,
12,
21,
-1,
7,
1,
37,
-34,
-1,
14,
-31,
5,
-32,
-53,
15,
44,
-41,
25,
-12,
-17,
-37,
11,
-32,
32,
-43,
-8,
23,
47,
-22,
-12,
-18,
-74,
-64,
-4,
-2,
-5,
18,
-26,
-2,
1,
-9,
-8,
20,
-46,
21,
2,
26,
13,
46,
27,
-1,
13,
28,
-35,
32,
49,
-21,
10,
-9,
46,
19,
9,
21,
-9,
65,
5,
-5,
-11,
15,
-26,
-5,
-10,
26,
-83,
0,
-31,
-25,
5,
25,
-9,
21,
-6,
11,
-25,
-4,
20,
-21,
-23,
31,
-11,
7,
-50,
60,
13,
43,
-14,
-18,
-9,
37,
-10,
8,
6,
-10,
-25,
3,
-33,
40,
15,
15,
-16,
-9,
9,
31,
34,
-5,
0,
-38,
27,
-22,
-44,
10,
-3,
-22,
-24,
-5,
21,
23,
-4,
39,
4,
28,
-5,
55,
34,
14,
-4,
39,
-22,
-48,
1,
-10,
-29,
35,
15,
-7,
-57,
-34,
6,
-24,
-18,
13,
-13,
-2,
22,
18,
-15,
11,
14,
37,
6,
14,
-24,
31,
-54,
-25,
23,
-6,
-6,
38,
-14,
9,
14,
-12,
-17,
-2,
-44,
-74,
-14,
5,
-38,
-27,
-34,
3,
-12,
18,
24,
16,
-13,
11,
0,
-15,
2,
-1,
-50,
-11,
-24,
-44,
-34,
0,
32,
-18,
52,
-14,
37,
13,
37,
-63,
34,
44,
15,
-26,
35,
2,
-52,
-6,
28,
21,
-18,
14,
-32,
-5,
-25,
-2,
7,
-17,
30,
12,
0,
23,
12,
12,
2,
-14,
16,
10,
-20,
-55,
-75,
-11,
21,
-10,
19,
23,
-9,
-14,
-32,
5,
11,
33,
13,
8,
-9,
5,
21,
-67,
17,
19,
8,
6,
-38,
8,
34,
-11,
10,
-53,
43,
-25,
37,
50,
-34,
-21,
18,
40,
19,
3,
4,
-22,
-10,
13,
-58,
16,
-6,
-46,
30,
-42,
-18,
12,
-34,
38,
4,
6,
26,
34,
-59,
-72,
-20,
-5,
42,
7,
-27,
-5,
58,
-7,
-31,
-42,
0,
-19,
-18,
39,
19,
5,
64,
-12,
-27,
-39,
-4,
38,
5,
13,
-35,
-22,
3,
36,
12,
-24,
41,
-26,
18,
45,
-7,
57,
41,
-26,
55,
56,
32,
2,
7,
13,
-49,
-28,
-1,
-12,
37,
-14,
-34,
83,
12,
38,
61,
10,
-18,
-8,
-59,
11,
-30,
22,
32,
43,
3,
8,
-38,
20,
5,
-31,
27,
16,
13,
9,
-65,
-60,
3,
-4,
49,
-55,
33,
-6,
18,
19,
27,
-16,
-14,
-2,
-55,
25,
34,
-34,
-27,
17,
70,
23,
-18,
-45,
-22,
47,
33,
-54,
7,
5,
16,
33,
-26,
32,
-6,
29,
23
] |
Cooley, Oh. J:
The consideration of the mortgage which is in controversy in this suit was the purchase price of certain goods bought by Merlin C. Osborn of complainant, and also an old indebtedness of a few hundred dollars owing by him to complainant. The mortgage is upon property owned by Emeline C. Osborn, who is the wife of the other defendant, and was given by her at her husband’s request. She defends the foreclosure, claiming to have been defrauded when her signature was obtained.
The alleged fraud consisted in the husband soliciting and obtaining the consent of the wife to the mortgaging of her property to secure the purchase price of the goods, and then, without her knowledge, making it cover the old indebtedness also. - No false representation is alleged, but there was deception in presenting and obtaining the’ execution of a mortgage which differed from what was agreed; and this deception, it is insisted, was a fraud which entitles Mrs. Osborn to avoid the mortgage.
The claim of the defense cannot be sustained to the full extent. So far as the security was agreed upon by Mrs. Osborn it must be supported. To that extent there was no fraud on the part of any one; and as the husband has had the benefit of the arrangement, whatever it was, all the equities are in favor of enforcing the mortgage so far as it was fair and just. Mrs. Osborn has all the relief she is entitled to if she is relieved of that -portion of the sum included in the mortgage which -it was wrongfully -made to cover.
The bill appears to have been filed to foreclose the mortgage on the second payment for the purchase price of the goods falling dqo, and it seeks a foreclosure for that payment only. The old indebtedness was represented by a note falling duo subsequently, and there were also two subsequent payments to fall due on the purchase of the goods. The allegations of the bill covered none of these, and no issue was made concerning them. Nevertheless the decree for complainant has been made to cover all of them. This was manifest error, and probably the decree was made through inadvertence.
On the case as' it stands on the evidence, the complainant would not have been entitled to a decree for so much of the sum specified in the mortgage as constituted the old indebtedness. Mrs. Osborn, having been to this extent defrauded in the giving of the mortgage, is entitled to avoid it unless it can be sustained on the ground that her negligence in carelessly executing a mortgage without examination has enabled her husband to make use of it with a person who has taken it in good faith, and who will now be defrauded if' it is not enforced. ' As thus presented, the question will be whether Mrs. Osborn or the complainant, both being equally innocent, must suffer for Mr. Osborn’s fraud; and it is said she should suffer because her negligence enabled the fraud to be committed. But to make this argument available it must appear that complainant, so far as the old indebtedness was concerned, has done something, or parted with something in reliance upon the mortgage, which will make defeating the mortgage as security to that extent operate to his injury. Nothing of the kind appears here; and this fact distinguishes the case broadly from McWilliams v. Mason, 31 N. Y., 294, on which complainant relies.
The decree must be modified so as to confine it to the installment which was put in issue, and Mrs. Osborn must recover the costs of this court.
The other Justices concurred. | [
35,
3,
-23,
-3,
-30,
-10,
28,
58,
-17,
15,
50,
-25,
49,
61,
-36,
-18,
21,
-78,
29,
-21,
-28,
-34,
-23,
-10,
-9,
10,
-5,
-69,
18,
39,
9,
10,
-33,
72,
-45,
-33,
6,
21,
-19,
-19,
-37,
-12,
16,
-13,
-22,
-13,
-6,
-36,
-8,
-13,
16,
-27,
53,
-19,
-27,
-14,
-20,
13,
-13,
-81,
18,
-37,
16,
-17,
-44,
0,
2,
21,
29,
4,
69,
9,
22,
-59,
-25,
6,
-35,
-1,
-57,
-52,
-41,
-53,
27,
-18,
25,
-30,
11,
5,
-41,
34,
-17,
31,
30,
36,
-15,
-14,
4,
56,
23,
59,
-28,
-2,
-14,
15,
17,
35,
-17,
-66,
-24,
10,
-6,
-32,
38,
4,
-43,
-51,
-34,
29,
-12,
-36,
-3,
-33,
-32,
-41,
9,
20,
7,
-32,
-25,
8,
28,
20,
-35,
31,
-11,
-34,
-16,
-8,
-46,
-32,
17,
-12,
-13,
-57,
0,
17,
29,
-25,
-25,
-8,
-34,
-8,
-24,
60,
21,
-15,
-16,
-51,
3,
-71,
62,
-7,
-17,
28,
-59,
-21,
-40,
36,
0,
-22,
46,
3,
-49,
-13,
-9,
5,
27,
-49,
50,
-21,
-2,
-12,
-7,
28,
15,
-6,
24,
0,
44,
19,
23,
-23,
-5,
77,
-2,
50,
-20,
-13,
27,
-62,
4,
-31,
-2,
4,
23,
-37,
20,
-50,
4,
31,
-13,
5,
-27,
-32,
-75,
-5,
65,
-15,
17,
16,
21,
41,
-22,
38,
-38,
-47,
33,
2,
33,
15,
-11,
2,
-18,
-32,
-7,
35,
12,
5,
13,
13,
-33,
1,
33,
-40,
-40,
1,
-29,
10,
-17,
9,
-69,
10,
12,
58,
-1,
11,
-6,
17,
60,
10,
39,
22,
-36,
14,
28,
-31,
-6,
4,
-5,
7,
50,
3,
-17,
101,
7,
0,
-66,
22,
-57,
15,
36,
10,
-26,
7,
34,
20,
7,
35,
21,
-6,
29,
-26,
-24,
-58,
28,
6,
-27,
-43,
3,
2,
11,
-36,
21,
-9,
-9,
6,
25,
-10,
-69,
6,
34,
3,
-16,
19,
24,
5,
-35,
-6,
30,
-11,
58,
10,
3,
7,
14,
-27,
86,
-37,
-40,
18,
10,
-10,
-38,
-21,
40,
4,
-1,
-47,
-41,
-21,
-10,
30,
0,
22,
7,
42,
-47,
21,
-48,
3,
-43,
9,
-7,
57,
28,
16,
-9,
22,
1,
20,
29,
12,
-54,
-40,
-9,
15,
17,
-55,
-4,
73,
-5,
4,
-30,
-34,
-26,
0,
-63,
20,
-48,
64,
-19,
-5,
17,
32,
-24,
11,
-37,
-32,
17,
-16,
-74,
-3,
16,
-2,
-28,
-36,
-1,
-22,
-43,
-46,
-21,
24,
-44,
-21,
-31,
23,
-23,
-8,
-17,
9,
42,
-25,
-19,
-37,
-56,
31,
48,
21,
-4,
23,
3,
-7,
0,
16,
24,
-37,
-9,
-31,
-26,
35,
-37,
25,
-12,
-36,
25,
8,
-18,
4,
-18,
5,
-2,
-9,
0,
-13,
39,
-16,
-42,
-10,
52,
2,
-32,
32,
6,
-15,
4,
17,
50,
-65,
-3,
-65,
25,
-34,
61,
-36,
-12,
-23,
-6,
0,
-19,
17,
28,
19,
41,
6,
-38,
9,
-3,
-1,
-22,
30,
-55,
30,
36,
-13,
-57,
0,
-21,
-32,
26,
-6,
27,
-29,
52,
20,
-3,
-18,
-1,
9,
20,
18,
-30,
53,
11,
-20,
38,
-28,
-7,
-1,
37,
44,
1,
-8,
7,
77,
-17,
8,
116,
12,
8,
80,
42,
-52,
-32,
-19,
-41,
12,
8,
20,
3,
-27,
-23,
1,
-25,
-8,
37,
40,
22,
14,
29,
-22,
-68,
66,
8,
35,
-34,
5,
16,
-30,
15,
12,
-24,
-21,
68,
48,
-4,
27,
48,
-26,
-43,
-6,
-36,
-23,
13,
14,
19,
-38,
48,
-47,
-22,
-43,
-20,
9,
-7,
5,
-17,
-21,
-21,
-36,
-5,
27,
-28,
14,
-12,
-32,
-39,
32,
6,
63,
0,
3,
-17,
-21,
6,
21,
-16,
-53,
-30,
-29,
13,
25,
-37,
-17,
-15,
-41,
7,
-49,
-44,
33,
-32,
25,
16,
-8,
31,
-16,
-11,
0,
-35,
-32,
-28,
43,
42,
54,
13,
13,
18,
5,
50,
24,
9,
4,
39,
-27,
77,
9,
-18,
-20,
-3,
0,
-18,
-36,
-37,
38,
-41,
0,
-25,
7,
-50,
6,
33,
-46,
-9,
12,
6,
14,
26,
-70,
14,
-33,
-32,
-23,
35,
-10,
-11,
5,
-9,
0,
59,
58,
5,
-6,
9,
-4,
49,
14,
29,
7,
-6,
26,
-10,
0,
-11,
4,
42,
-30,
-51,
34,
8,
-8,
-23,
8,
4,
-22,
-16,
-45,
0,
3,
28,
9,
15,
8,
49,
-59,
32,
43,
-72,
-2,
17,
-22,
-42,
35,
-18,
4,
-12,
-16,
0,
4,
11,
34,
0,
-32,
-14,
-32,
21,
-31,
-20,
-37,
23,
3,
7,
11,
12,
-26,
-8,
15,
-20,
71,
38,
-22,
-58,
-16,
-35,
25,
22,
-56,
27,
-23,
39,
45,
17,
-6,
23,
26,
-6,
-29,
6,
8,
-2,
3,
28,
-14,
2,
30,
12,
-22,
1,
64,
-5,
-29,
-6,
-39,
-6,
9,
-6,
1,
-5,
-4,
39,
-56,
45,
-21,
-1,
-10,
8,
-4,
-14,
-39,
40,
-16,
32,
19,
33,
25,
-46,
-6,
-18,
46,
13,
-57,
2,
-35,
8,
7,
7,
34,
1,
17,
-50,
-1,
15,
-2,
1,
6,
48,
-30,
-13,
-4,
20,
39,
-34,
14,
-12,
64,
7,
-11,
-72,
30,
-31,
-24,
-26,
0,
5,
3,
0,
46,
4,
54,
-4,
-6,
8,
-16,
-4,
-29,
-26,
0,
24,
24,
-29,
-16,
13,
-25,
11,
-27,
56,
35,
-22,
-10,
-63,
59,
1,
-41,
4,
22,
-22,
-6,
68,
-3,
2,
61,
24,
10,
10,
-24,
-14,
1,
42,
32,
49,
-32,
25,
-32,
2,
17,
-63,
32,
-23,
45,
28,
-12,
-39,
48,
0,
71,
-1,
10,
-6,
16,
-23,
-46,
32,
24,
4,
28,
-7,
-24,
32,
0,
1,
25,
-43,
22,
32,
-42,
-21,
-34,
-23,
44,
68,
-11,
-7,
23,
1,
-21,
-2,
-21,
3,
-11,
66,
28,
-36,
13,
20,
14,
-7,
43,
39,
-35,
-5,
-18,
9,
29,
10,
-28,
-15,
20,
-32,
-15,
-32,
-10,
42,
25,
-17,
18,
8,
40,
-8,
-27,
-8,
-56,
-29,
-54,
54,
1,
27,
-90,
29,
27,
26,
49,
7,
-52,
15,
3,
-22,
-69,
-37,
-5,
51,
-36,
5,
11,
6,
40,
-21,
81,
15,
-39,
12,
3,
-31,
9,
-1,
-34,
1,
35,
-2,
-50,
35,
14,
4,
-9,
5,
4,
67,
-18,
4,
-32,
-17,
12,
45,
-15,
-45,
-4,
37,
36,
-19,
7,
-10,
3,
50,
-19,
32,
41,
-24,
58
] |
Per, Curiam:
This case is ruled by Denison v. Smith, supra p. 155. Service in a foreign county under the statute (Comp. L. 1871, § 5748) is not authorized until after the record shows proof of service on some of theNdefendants within the jurisdiction of the court. The most that this record can be claimed to have shown at the time of service on Clark and Kirehmaier in St. Clair county is, a service made on the other defendants within the jurisdiction, and proof thereof filed, on the same day that service was made on them in a distant county, without any showing as to which took place first. But, moreover, the certificate of sendee on Clark and Kirehmaier was insufficient as proof of such service.
Judgment reversed. | [
20,
8,
22,
39,
-31,
34,
-16,
-9,
-11,
46,
-15,
-12,
22,
0,
-2,
-41,
-6,
34,
37,
-53,
-8,
51,
-21,
49,
-4,
-2,
41,
64,
17,
54,
-26,
0,
0,
-45,
22,
-18,
53,
-14,
11,
-23,
-26,
-3,
5,
19,
-39,
-19,
-22,
3,
14,
-19,
-5,
34,
-46,
18,
21,
26,
-31,
-80,
3,
-61,
-16,
-20,
5,
4,
-1,
19,
-30,
15,
54,
-23,
18,
-36,
-29,
-27,
17,
-11,
-12,
-26,
0,
0,
49,
2,
22,
-36,
-38,
4,
1,
-39,
41,
-31,
1,
-30,
-61,
-62,
-22,
8,
2,
-29,
-3,
12,
17,
7,
-54,
-1,
-43,
2,
-49,
-69,
-32,
-44,
39,
7,
-20,
-45,
-49,
12,
11,
4,
46,
29,
-2,
16,
39,
-2,
38,
-25,
11,
-35,
-31,
0,
38,
-58,
1,
18,
-39,
17,
9,
-21,
20,
-67,
36,
-17,
21,
23,
52,
-14,
50,
0,
-20,
-21,
-8,
35,
23,
16,
-43,
73,
29,
-41,
-27,
-43,
21,
53,
-36,
-34,
31,
-14,
-24,
10,
-5,
-30,
-13,
19,
28,
27,
29,
-19,
29,
-7,
34,
33,
-62,
7,
51,
-65,
35,
21,
-56,
-6,
0,
-6,
-10,
15,
61,
23,
10,
76,
-27,
-7,
14,
-6,
-5,
20,
17,
15,
-53,
-18,
76,
4,
-24,
13,
-8,
-13,
-9,
-34,
32,
-7,
15,
-10,
-10,
24,
15,
39,
13,
1,
8,
-10,
-61,
22,
-1,
-6,
-28,
-3,
13,
17,
-25,
-20,
25,
6,
27,
35,
3,
-16,
-2,
-2,
31,
-29,
14,
11,
-25,
7,
-12,
-33,
14,
16,
-16,
-21,
17,
55,
-20,
15,
7,
60,
-20,
-19,
-4,
15,
26,
14,
-3,
20,
-12,
-4,
41,
-11,
11,
18,
52,
3,
8,
1,
2,
28,
-13,
4,
-31,
25,
-24,
7,
21,
23,
11,
-9,
-61,
32,
-7,
-8,
29,
-5,
-9,
20,
38,
7,
20,
1,
-2,
-60,
-51,
-8,
23,
28,
16,
52,
8,
-30,
6,
27,
12,
-41,
51,
-20,
-48,
38,
-6,
-31,
2,
8,
22,
4,
5,
-29,
7,
-14,
-19,
18,
11,
-22,
16,
-46,
-24,
36,
-20,
-11,
-8,
49,
-5,
26,
1,
-13,
35,
-1,
18,
21,
8,
51,
-8,
45,
-36,
-44,
-2,
13,
12,
-8,
-28,
29,
-9,
19,
20,
9,
11,
46,
12,
-7,
-10,
32,
-59,
-26,
-19,
6,
19,
-6,
-29,
-57,
0,
10,
-11,
30,
-36,
-27,
-52,
-12,
32,
-76,
-25,
-7,
1,
-13,
-37,
14,
-18,
-40,
-39,
25,
6,
-16,
0,
28,
-25,
17,
16,
15,
37,
-23,
-19,
19,
-8,
21,
33,
-13,
69,
-22,
26,
1,
-43,
-42,
-28,
-47,
-5,
71,
-5,
34,
2,
6,
-10,
24,
6,
-22,
-39,
11,
26,
3,
-16,
21,
-29,
-15,
-62,
-27,
13,
54,
9,
-55,
4,
23,
7,
-20,
20,
57,
-4,
-54,
2,
14,
40,
-9,
0,
3,
2,
3,
-16,
-31,
-9,
0,
-48,
3,
5,
45,
-41,
-40,
-7,
-11,
-23,
10,
-37,
27,
-28,
-28,
-4,
-36,
-11,
20,
28,
15,
-5,
40,
-47,
12,
-5,
11,
-69,
3,
-48,
26,
-7,
-20,
28,
24,
-16,
6,
-21,
4,
-35,
-3,
14,
34,
14,
14,
-26,
14,
14,
0,
6,
13,
-9,
-29,
-31,
-14,
0,
29,
-11,
-16,
25,
-3,
19,
-22,
-22,
48,
-13,
0,
12,
30,
-29,
-6,
33,
28,
-24,
-21,
-14,
29,
-36,
24,
-57,
-15,
-35,
14,
10,
-27,
-43,
-69,
1,
-2,
-1,
-8,
-34,
-24,
16,
-9,
-11,
-5,
18,
-1,
10,
-13,
23,
-2,
-16,
-13,
56,
10,
4,
-1,
11,
-7,
5,
13,
-17,
-98,
-7,
-19,
-15,
-17,
11,
-20,
-68,
27,
-10,
31,
-6,
13,
-21,
-27,
52,
1,
45,
-6,
-10,
28,
71,
33,
13,
59,
-25,
1,
-9,
14,
-31,
-21,
-18,
-19,
4,
-5,
-27,
-9,
-70,
-14,
40,
63,
-44,
13,
-21,
-22,
-16,
-2,
-11,
29,
-44,
-33,
12,
15,
32,
11,
-11,
-6,
48,
-12,
-45,
20,
32,
-16,
27,
20,
50,
-15,
8,
26,
-3,
-9,
-21,
3,
34,
-57,
26,
26,
-21,
-21,
8,
35,
0,
-5,
-7,
1,
68,
30,
-5,
-32,
25,
0,
9,
5,
13,
-1,
26,
0,
-19,
11,
18,
3,
4,
-32,
-17,
14,
-41,
-25,
-23,
36,
-16,
29,
-4,
-54,
-30,
67,
-36,
18,
39,
-38,
-50,
52,
-17,
25,
-6,
-47,
13,
7,
-77,
-30,
0,
-6,
25,
7,
16,
9,
-13,
-3,
-13,
-57,
0,
-35,
12,
-18,
-52,
0,
29,
7,
59,
18,
-5,
-9,
3,
-17,
-3,
4,
-60,
7,
2,
-16,
36,
23,
37,
-16,
25,
12,
-40,
22,
36,
-4,
22,
-24,
6,
16,
-17,
52,
-24,
24,
14,
-12,
0,
-31,
27,
-13,
-50,
-11,
5,
-8,
23,
27,
28,
-2,
15,
20,
-5,
3,
56,
-5,
-21,
41,
0,
6,
17,
-57,
-7,
-32,
-46,
13,
41,
-25,
-18,
-2,
-39,
-11,
32,
9,
13,
21,
0,
41,
-31,
0,
30,
22,
-27,
28,
10,
-20,
58,
19,
-47,
-24,
-24,
29,
29,
0,
-8,
-18,
-11,
10,
45,
-44,
0,
27,
-5,
-31,
-37,
1,
-7,
-1,
6,
-1,
0,
9,
14,
-13,
-3,
11,
23,
8,
47,
-44,
-22,
22,
-22,
28,
46,
-26,
-6,
1,
-14,
-2,
11,
41,
38,
-26,
-2,
2,
-6,
13,
-12,
-62,
18,
-74,
16,
-6,
39,
20,
19,
30,
-14,
13,
-42,
-33,
27,
-3,
7,
47,
7,
7,
17,
18,
27,
-40,
-5,
25,
-24,
0,
35,
-3,
-30,
33,
11,
3,
19,
5,
22,
15,
3,
51,
11,
40,
25,
28,
18,
-30,
-37,
-4,
15,
-9,
-57,
-35,
0,
7,
-1,
-43,
27,
-37,
29,
15,
-10,
-59,
-19,
24,
44,
0,
-27,
6,
-9,
-77,
-38,
48,
44,
-2,
11,
10,
-5,
-7,
-33,
10,
-5,
-32,
-56,
81,
-43,
27,
-16,
27,
-32,
2,
-4,
-32,
-30,
39,
-24,
1,
28,
-7,
-24,
103,
-18,
30,
-55,
43,
-47,
-12,
10,
19,
-6,
19,
-6,
9,
10,
-27,
0,
34,
0,
57,
-34,
-15,
18,
25,
-26,
26,
0,
-15,
-52,
-27,
39,
-40,
29,
-63,
-4,
-5,
-63,
11,
-38,
16,
-11,
-15,
74,
-7,
28,
-37,
-7,
-3,
-39,
-13,
-35,
-3,
63,
-9,
-28,
-7,
-26,
-10,
-10,
46,
24,
-16,
2,
22
] |
Campbell, J:
Emma Van Burén sued Bichard Elliott for an assault and battery, one count of the declaration averring an attempt to ravish. The chief bodily damage shown on the trial consisted of bruises and injuries creating bodily weakness, and the aggravation of a malady accompanied with fits. The jury rendered a verdict of five thousand dollars. Errors are alleged upon various rulings during the trial, and in the charge to the jury.
The course of the argument renders it proper to refer briefly to some preliminary considerations.
This action is nothing more than trespass for an assault and battery. There is no such thing as a private action for a crime as such. The civil grievance here charged was an assault, described, as was proper, with its attendant circumstances of enormity, including an attempt to ravish. This, however, does not make it differ from an action for a lighter grievance, except as showing a heavier ground of complaint, for which, if made out, the damages allowed would be likely to be larger. The assault could be shown under either count, and if the whole circumstances of enormity were not .made out, this would not defeat the action, but would only bear on the amount recovered. There is no rule of evidence which requires a greater preponderance of proof to authorize a verdict in one civil action than in another, by reason of the peculiar questions involved. — Watkins v. Wallace, 19 Mich. R., 57. The doctrine of this case has been adhered to in this state, and the court rightly refused to direct the jury that they could find no verdict upon the main charge, unless on proof of the nature and degree required on an indictment for an attempt to commit the crime of rape; that is to say, in other words, they must be convinced beyond a reasonable doubt. Indeed, if such a direction would have been proper at all, it would have been applicable to the whole case; for a common assault has always been indictable, and an attempt to commit a felony was only a misdemeanor at common law, and the rule of reasonable doubt is not confined to felonies. No doubt a jury will always feel disposed to scrutinize an infamous charge more closely than a trifling one, and will not convict without being well satisfied, but there is no rule of law which adopts any sliding scale of belief in civil controversies.
We are also compelled to remark that it is not in the province of an appellate court to consider the amount of the verdict, or the weight of the evidence. The court of trial may set aside a verdict which violates justice, and it is to that tribunal that parties must apply for relief against excessive damages, or any other of the wrongs for which it may be right to grant a new trial. We are bound in all cases to assume that the jury have done no legal wrong when acting within their province. If the court below has committed no legal error, we can only affirm the judgment.
The errors assigned,' though numerous, are all capable of arrangement under a few heads.
The first group comprises objections to the reception of testimony tending to prove the continued results of the assault, in bodily weakness and malady, and the fact of plaintiff’s suffering from fits. The errors are supposed to consist in receiving irrelevant testimony, and in receiving testimony which was not in law the best quality of evidence.
Upon the first of these points the case is covered entirely by the decision in Johnson v. McKee, 27 Mich. R., 471. The sickness and. other physical mischief caused by the assault constitutes of necessity a large part, and sometimes the worst part of the damage done. The aggravation of an existing disease or injury is quite as reasonable a ground of complaint as the creation of a new one. And the declarations of a sick person made from time to time-concerning present sufferings and sensations (not being relations of past occurrences) are the usual means of evidence where third persons testify on the subject. The opinion in that case covers the whole ground, and we need not enlarge upon it further.
It is claimed, however, that the testimony of persons who are not physicians should be excluded, on the ground that the law requires the best evidence, and theirs is not the best.
The term “best evidence” is confined to cases where the law has divided testimony into primary and secondary. And there are no degrees of evidence, except where some document or other instrument exists, the contents of which should be proved by an original rather than by other testimony, which is open to danger of inaccuracy. But where living witnesses are placed on the stand, one is in law on the same footing with another. If he can testify at all, he can testify' in the presence as well as in the absence of those who may be supposed wiser or more reliable. There are some questions on which some witnesses cannot testify at all for want of knowledge. No one can be allowed to prove what he has never learned, whether it be ordinary or scientific facts. But one who can testify under any circumstances upon the facts on which he is examined, may do so as well where his superiors are to be found as where he knows as much as any other.
We think there is no rule which can prevent ordinary witnesses from describing what they see, or from testifying concerning the kind of injury or sickness of others whom they have had occasion to consort with, unless it is something out of the common course of general information and experience, or unless the question presented involves medical knowledge beyond that of ordinary unprofessional persons. It would be ridiculous to shut out testimony of what any juryman would understand well enough for all the exigencies of the case before him, simply because no physician has seen or examined the party. It would lead to a denial of justice in all cases of bodily injuries and sickness which did not occur within range of medical help, and which were not regarded as so difficult of treatment as to demand it. There is no danger that the introduction of common testimony on matters of common knowledge will do any more mischief, when open to cross-examination before a court and jury, than would arise from the want of any legal means of selecting witnesses from the numerous class of professional men, who differ as much in their relative merits as many of them do from laymen. There is nothing in the record before us which shows that any question arose on which it was necessary to resort to the evidence of learned witnesses. And all considerations concerning the credit due to the several witnesses belonged to the jury.
It is also alleged as error, although not much pressed on the argument, that the defendant’s wife was not allowed to testify as to her knowledge and approval of the purpose with which defendant below left his own house to go to that of Mrs. Van Burén on the occasion under review. But it must be manifest that if he actually made the assault complained of, he could not have done so with any innocent intention, whether he had in view the felonious purpose charged or not. The court charged the jury plainly that he could not be convicted unless he began the attack himself. He might have committed it on an intent conceived at the time, or on one which, was of longer duration. A considerable period elapsed before any thing occurred of which complaint is made. The only possible object for introducing the testimony proposed must have been to contradict and discredit the principal witness, or to corroborate defendant, by showing that the defendant professed beforehand that he had an innocent errand. But no previous declaration or intent could change the facts if he was guilty, or could tend to show that he was not guilty. He had been sworn at length and did not profess that his wife suggested his going to jolaintiff’s house, which was the special matter proposed to be shown; and on this point she could not, if she had so stated, have corroborated him. The only proof of malice brought' against him was in the actual circum stances of the assault; and we can see no way in which the effect of these could be changed by his statements as to what had preceded them or by his previous purposes as professed. It would be quite easy for him to get up a false pretext or contrive a plausible errand to conceal his true purpose. And it would be very dangerous to allow a party to make testimony for himself in this way. There was no evidence to which this would have been responsive, and it did not tend to disprove any fact Avhich had been sworn to. How far an inquiry might have been allowed into his doings at this time, if there had been testimony against him covering the same period, we are not called on to consider. There was nothing given tending in that direction, and we cannot discover the pertinence of the inquiry which was shut out.
The suggestion that the charge of the court would have allowed the jury to convict defendant even if acting in self defense is unfounded. The charge is very explicit to the contrary.
Neither can it be alleged as error that some of the charges left the jury to find a verdict, although they might not think Elliot had a felonious design. As stated in the outset, the offense charged was assault and battery, and all the matters in aggravation bore only on the amount of damages. A failure to prove them or any part of them would not have precluded the jury from giving a proper measure of damages for all that was made out.
It is also claimed that the court precluded the jury from allowing proper weight to certain testimony of bad character, both general and specific. So far as any of this testimony was immaterial, — and much of it is admitted to have been so, — we do not conceive that the court was bound to allow it any effect whatever. If the' parties allowed it to be received from any views of policy, they ran the risk of its having some effect with the jury. But neither party could have any right to have the jury instructed to regard immaterial evidence for any purpose. When the court told the jury this testimony as to character and conduct might be considered upon the question of consent as well as upon the damages, it covered the whole issue, for consent would have entirely negatived the assault. And allowing the specific and improper testimony to be considered as bearing on the credibility of the complaining witness, gave it, in such a case as this, just as wide a scope, inasmuch as the whole case depended on her credibility. Certainly no harm was done to the defendant below by such rulings.
The remaining questions, so far as they can be considered on the record, relate to damages. Some criticisms based on the omissions of the court to repeat in each of its rulings all the supposed elements necessary to authorize exemplary damages will be found without importance, from the nature of the action. There was no dispute but that plaintiff below received some blow or blows, or, what was equivalent, was pushed with more or less force by defendant. If this was done by him as the first assailant, he was unquestionably guilty of an assault. And as an assault cannot very well be purely accidental, and is not pretended to have been any thing but intentional if committed at all, it was such an act as must be regarded as willful, whether serious or trivial. Being so, it authorized the jury to give such damages as would, in their sound judgment, be required by the character and extent of its atrocity. If the jury believed that there was any assault at all, they could not help believing it was an indecent one, if not felonious, because there was no proof of any other.
We need not, therefore, consider any thing except the instructions given concerning what are called exemplary damages, as the case was fit for them if they are allowed at all.
The question of the propriety of their allowance is not an open one in this state. The argument that a person is thereby punished twice within the constitutional and common-law rules is, in our opinion, entirely fallacious. The maxim at common law, that no one shall be twice vexed for the same cause, where it applied at all, prevented a second prosecution as well as a second punishment, and if it applied to civil damages would cover the whole, and not merely what is assumed to be a part of them. But there is no analogy between the civil and criminal remedies. The punishment by criminal prosecution is to redress the grievance of the public, while the civil remedy is for private redress. In the eye of the law, the injury where both actions lie, is a double injury, and one action has never, therefore, been allowed to be pleaded in abatement or bar of the other, simply because they 'are contentions between different parties.
But when we look at the rules which have been provided for enforcing the redress of either the public or the private complainant, we are not so much concerned with any supposable theories on which such rules may be based, as with the rules themselves. Civil actions never lie except for the vindication of broken laws, any more than ’ criminal. It is a matter of arbitrary regulation, and not of principle, whether a given violation of law shall be redressed by a civil or criminal prosecution, or by both; and where new crimes are created out of what were before civil wrongs, the civil remedy has seldom been lessened or narrowed by reason of the new criminal prosecution. Whether we call the process punitory, or exemplary, or remedial, we get no nearer a conclusion, if the law has given the rule of procedure. And the controversy which has been so ably conducted on this head has not tended in any degree to change the legal result derived from the measure of damages in particular cases.
We have had occasion recently, in the case of Welch v. Ware, 32 Mich., 77, as well as in previous cases there referred to, to consider the questions at issue here. The jury in all these cases have a very wide discretion. The court can only help them by calling their attention to the elements which may properly be considered, and the dangers to be avoided. On examining the present charges and refusals, so far as they are excepted to, we find no material deviation from the rules and suggestions which have been repeatedly laid down on the subject, and therefore no error. It was hardly claimed on the argument that there had been any serious perversion of legal rules, if exemplary damages are recoverable at all;
But complaint is made of the spirit of the charge, as bearing with severity against the defendant.
We do not find that any thing was said which could in any way mislead the jury as to their powers or duties. This being so, we cannot be justified in acting as censors of the style or spirit of the charge, even if we should not approve them ourselves. Judges are not expected-to be so purely mechanical in their action as never to express in words more or less of their ideas upon many questions of legal policy and theory, as well as human conduct. The reports are full of judicial remarks which are not supposed to be meant as legal rulings, and which an appellate court would never think of reviewing. In Sheahan v. Barry, 27 Mich. R., 217, the remarks complained of bore much more severely against the defendant than any thing which appears in this record. But on a review of the authorities we were there satisfied no ground of error existed, and so we think of the case before us.
The judgment must be affirmed, with costs.
Marston and Cooley, JJ., concurred. | [
-13,
16,
13,
-9,
-19,
8,
7,
-18,
2,
50,
27,
2,
11,
-15,
6,
-8,
-5,
-8,
0,
-11,
4,
-39,
-29,
9,
-9,
-18,
38,
-39,
-10,
7,
-20,
25,
-7,
20,
-11,
-38,
10,
-15,
-21,
41,
22,
23,
10,
15,
16,
24,
-4,
-1,
8,
-15,
-21,
-47,
-25,
38,
-17,
-6,
24,
30,
16,
9,
17,
-5,
-48,
-44,
-26,
-12,
-6,
-4,
-15,
-18,
6,
-24,
9,
-37,
-49,
-22,
-36,
-42,
14,
45,
-65,
-28,
7,
53,
44,
-4,
-31,
-37,
-20,
-40,
16,
4,
-66,
-4,
52,
3,
-4,
21,
21,
31,
-12,
0,
-7,
31,
-48,
1,
-26,
1,
19,
34,
-8,
29,
21,
-20,
-55,
-63,
21,
-52,
-41,
-26,
19,
28,
77,
38,
0,
-25,
-41,
-40,
-5,
-56,
9,
46,
1,
-43,
6,
-22,
28,
9,
8,
-46,
-17,
-17,
14,
35,
24,
46,
-19,
0,
-9,
0,
-10,
-13,
-25,
24,
4,
-55,
2,
-31,
0,
21,
10,
-13,
-7,
-3,
-9,
-20,
-21,
7,
31,
-16,
-15,
-8,
33,
27,
44,
34,
-27,
-68,
-3,
-5,
49,
6,
-30,
67,
-3,
-18,
-27,
7,
-11,
-3,
-13,
22,
-38,
-28,
45,
43,
-18,
18,
-9,
-43,
36,
19,
-41,
11,
-12,
0,
33,
-23,
34,
-9,
11,
26,
-27,
5,
-46,
-3,
0,
-16,
-20,
-5,
-86,
-36,
-15,
36,
12,
-71,
4,
-12,
-32,
4,
86,
26,
-48,
-38,
-20,
-46,
6,
10,
14,
-21,
-15,
12,
6,
-60,
75,
-57,
0,
45,
32,
47,
2,
-5,
44,
56,
-4,
-34,
32,
5,
-15,
4,
-28,
23,
4,
9,
-13,
25,
19,
25,
-59,
-12,
1,
11,
-16,
35,
-11,
-22,
-58,
-12,
39,
-20,
-33,
25,
13,
34,
-21,
-52,
-57,
20,
19,
-37,
50,
-62,
22,
-8,
4,
52,
64,
17,
27,
15,
29,
-10,
62,
-13,
9,
14,
8,
24,
-47,
-67,
-8,
14,
-10,
28,
14,
27,
7,
31,
-9,
-43,
-5,
-48,
3,
-4,
-5,
19,
39,
-75,
-40,
-10,
16,
52,
6,
8,
0,
-16,
25,
-2,
31,
-10,
66,
-7,
-17,
-45,
-33,
67,
-36,
-18,
-36,
27,
-5,
23,
4,
-1,
14,
-2,
-45,
1,
48,
-13,
-18,
-8,
47,
-26,
22,
-5,
-4,
-53,
40,
73,
-18,
-27,
-2,
-14,
-57,
0,
19,
-7,
8,
38,
16,
-14,
14,
-4,
-3,
45,
-57,
-43,
7,
10,
-35,
13,
27,
-24,
-12,
-25,
3,
-31,
50,
-16,
-12,
16,
52,
-23,
-64,
-32,
-40,
-16,
-7,
-8,
25,
25,
88,
22,
-7,
-9,
-11,
12,
-16,
40,
17,
-35,
24,
27,
-17,
-20,
-1,
3,
-8,
-26,
-12,
8,
15,
-5,
-10,
-16,
-5,
-21,
26,
-18,
-23,
14,
-39,
12,
5,
-14,
41,
24,
45,
-17,
35,
-18,
1,
-25,
9,
25,
-10,
-1,
31,
3,
-15,
2,
-2,
-22,
53,
-37,
-78,
-44,
-8,
-8,
43,
-27,
-20,
4,
39,
48,
10,
71,
7,
-9,
43,
-10,
22,
-7,
2,
18,
30,
-37,
8,
-77,
47,
28,
-20,
38,
0,
14,
-1,
27,
-24,
22,
-27,
52,
-50,
-28,
51,
-3,
10,
42,
9,
50,
-10,
1,
11,
5,
0,
-19,
35,
21,
-23,
-11,
6,
-24,
-16,
36,
-28,
3,
24,
-32,
-26,
-16,
43,
-24,
-35,
-13,
13,
42,
-21,
-19,
50,
-31,
-43,
37,
66,
-12,
1,
-24,
-60,
11,
21,
26,
-39,
1,
0,
-11,
7,
-5,
-15,
-33,
35,
-21,
8,
10,
4,
-26,
-11,
-2,
26,
-25,
63,
-15,
-2,
19,
-36,
-40,
-54,
-34,
-6,
4,
-10,
-21,
28,
-17,
-33,
15,
-18,
-54,
-1,
15,
-12,
-1,
-27,
17,
23,
-2,
10,
-17,
0,
-41,
13,
6,
7,
21,
-3,
44,
16,
21,
9,
-14,
4,
-13,
30,
28,
11,
10,
7,
32,
-16,
-12,
-8,
15,
11,
-33,
-26,
-13,
15,
-37,
22,
-22,
-37,
-43,
-12,
-33,
29,
29,
-69,
79,
-1,
22,
-6,
9,
35,
6,
-21,
-24,
-26,
66,
-72,
35,
-3,
-72,
0,
21,
8,
-11,
24,
12,
-17,
21,
-21,
-23,
17,
41,
-23,
67,
-58,
37,
-3,
4,
1,
-27,
11,
-3,
12,
5,
20,
9,
-1,
10,
5,
1,
19,
-16,
27,
19,
2,
15,
-4,
27,
22,
-15,
23,
-21,
17,
-1,
28,
-19,
30,
54,
-59,
30,
-2,
-23,
1,
-16,
12,
-7,
-47,
-30,
-22,
-32,
11,
22,
-4,
-16,
6,
-36,
-25,
-25,
-8,
-27,
23,
-1,
37,
-41,
-20,
29,
27,
60,
27,
23,
3,
5,
-58,
42,
-9,
45,
17,
34,
13,
15,
-61,
9,
12,
-28,
18,
-33,
9,
8,
9,
33,
58,
25,
70,
-2,
-26,
2,
2,
-23,
-20,
-49,
22,
8,
-24,
-52,
-27,
-42,
-46,
4,
34,
37,
-15,
-14,
0,
-2,
-28,
21,
36,
-36,
19,
30,
34,
-10,
-18,
-4,
-17,
-17,
35,
-31,
-24,
-9,
46,
22,
-37,
18,
3,
-1,
-23,
-44,
14,
-16,
19,
-33,
12,
44,
-31,
25,
5,
15,
6,
16,
13,
-5,
-52,
-27,
-16,
0,
5,
17,
13,
-48,
18,
1,
-34,
4,
6,
29,
-22,
-56,
18,
-28,
-2,
8,
-46,
31,
4,
67,
8,
-16,
27,
17,
-6,
11,
-3,
15,
19,
57,
39,
19,
-4,
-15,
29,
27,
-14,
-53,
-21,
-13,
11,
17,
13,
0,
11,
9,
-39,
-16,
-13,
-20,
39,
-12,
8,
21,
-15,
34,
23,
21,
-27,
51,
3,
-23,
-18,
42,
-36,
-35,
-21,
9,
-2,
4,
-16,
-53,
-17,
-19,
71,
4,
10,
66,
-32,
13,
-16,
-19,
23,
-48,
-39,
40,
8,
10,
7,
-29,
9,
-31,
-49,
-21,
24,
-24,
20,
32,
-9,
100,
-60,
39,
38,
-11,
13,
24,
77,
-12,
-42,
17,
-14,
12,
-17,
42,
-23,
-56,
-7,
-37,
-60,
0,
25,
-28,
-19,
-19,
39,
31,
-50,
10,
-2,
10,
-33,
2,
1,
-13,
-51,
-8,
73,
1,
-42,
-20,
-19,
18,
-34,
-6,
21,
19,
-8,
-47,
11,
62,
59,
16,
5,
-22,
15,
19,
-45,
-10,
10,
2,
-5,
-18,
-33,
9,
-10,
-7,
-36,
4,
-8,
23,
-84,
47,
-44,
-34,
-78,
41,
-12,
22,
-15,
-27,
-8,
1,
-11,
-14,
-51,
40,
-17,
46,
-17,
-51,
82,
9,
23,
-41,
-42,
3,
72,
28,
0,
39,
-27,
-25,
-19,
-61,
-29,
34,
54,
8
] |
Marston, J:
The defendant was convicted for the seduction of Alice J. Morey. There were three counts in the information: the first charged him with committing the offense on the 28th of July, 1873, in the county of Calhoun; the second, with the commission of a like offense on the same day in the township of Penfield, in said county; and the third, with a like offense, under and by means of a promise of marriage, on the same day, in the county of Calhoun.
Upon the trial the prosecution introduced the complaining witness, who gave evidence tending to prove an act of seduction, in the town of Penfield, July 28 th 1873. The prosecution then offered to prove a distinct and subsequent act of seduction, stating for the first time, that they relied upon this instance, and not the one already proven, for conviction. This was objected to, but admitted, the court remarking that the prosecution would have to elect one particular act or transaction to put before the jury. The prosecution then offered to prove a third distinct act, which occurred subsequent to the first act proven to have- taken place in the town of Penfield, bub prior to the second act already proven. This was also objected to, but admitted.
After the close of the argument, but before the court charged the jury, the prosecuting atborney stated to the court, in the hearing of the jury, that he relied upon the last act of intercourse, which was the second proved, and that if the court desired him to elect, he would elecb that act; no election, however, was made; and the court charged the jury that it was sufficient if the prosecution had proved the offense committed at any time within a year prior to the 24th of June, 1874, that being the time when the prosecution was commenced; and refused to charge, that the prosecution having-first put in evidence tending to show that the defendant committed the offense in Penfield, on the 28th of July, they were, not at liberty to prove any subsequent offense committed elsewhere, for any purpose; and that the jury could not consider the evidence of such subsequent offense for any purpose whatever.
It was decided in People v. Jenness, 5 Mich., 327, that the prosecution, before the evidence was introduced, could select any one act of criminal intercourse, such as -was charged in the information, which occurred within the jurisdiction of the court and within the period of the statute of limitations, but when evidence had been introduced tending directly to the proof of one act, for the purpose of procuring a conviction upon it, the prosecutor had thereby made his election and could not be allowed to prove any other act of the kind as a substantive offense upon which a conviction might be had in the cause.
Upon this question we 'consider the ruling in that case decisive. The act alleged to have been committed in the buggy, in the town of Penfield, being the first to which evidence was introduced, was the only offense upon which the defendant could be tried; and if proof of subsequent acts were admissible at all, they could not be admitted as distinct offenses to go to the jury and upon which the defendant might be convicted. It was not necessary for the prosecution to expressly elect for which act they would try the defendant in order to bind them. The fact of their introducing evidence tending to prove a distinct substantive offense was a sufficient election. In this case under the charge as given, there was no certainty whatever that the jurors all united upon the same act in finding the defendant guilty.
Nor could the prosecution after having thus introduced evidence tending to show an offense committed in the town of Penfield, on the 28th of July, show subsequent acts as corroborating testimony, as they would have no such tendency. Proof of previous acts of sexual intercourse would tend to show a much greater probability of the commission of a similar act charged to have occurred subsequent thereto, but the converse of this proposition would not be true, as the proof of a crime committed by parties on a certain day could have no tendency to prove that they had, previous thereto, committed a similar offense. — People v. Jenness, supra; Templeton v. The People, 27 Mich., 501; The People v. Schweitzer, 23 Mich., 304.
There is still another serious objection to the prosecution relying upon the second or third act proven in this case for a conviction. It appeared from the testimony of the complaining witness that the first offense was committed, if at all, on the 28th of July, 1873; that the second and third offenses were committed, if at all, during the month of August following, but at what particular time she was unable to state. And upon cross-examination she gaye testimony tending to prove several distinct acts of intercourse, in all instances connected with a promise of marriage, in the months of July and August, and all subsequent to the 28th of July.
Illicit intercourse alone would not constitute the offense charged. In addition to this the complainant, relying upon some sufficient promise or inducement, and without which she would not have yielded, must have been drawn aside from the path of virtue she was honestly pursuing at the time the offense charged was committed. Now, from her own testimony it would seem that the parties had illicit intercourse as opportunity offered. “Such is the force and ungovernable nature of this passion, and so likely is its indulgence to be continued between the same parties, when once yielded to, that the constitution of the human mind must be entirely changed before any man’s judgment can resist the conclusion” that where parties thus indulge their criminal desires it shows a willingness upon her part that a person of chaste character would not be guilty of, and that although a promise of marriage may have been made at each time as an inducement, it would be but a mere matter of form, and could not alone safely be relied upon to establish the fact that she would not have yielded had such a promise not been made.
We do not wish to be understood as saying that, even as between the same parties, there could not be a second or even third act of seduction; but where the subsequent alleged acts follow the first so closely, they destroy the presumption of chastity which would otherwise prevail, and there should be clear and satisfactory -proof that the complainant had in truth and fact reformed, otherwise there could be no seduction. The object of this statute was not to punish illicit cohabitation. Its object was to punish the seducer, who, by his arts and persuasions, prevails over the chastity of an unmarried woman, and who thus draws her aside from the path of duty and rectitude she was pursuing. If, however, she had already fallen, and was not at the time pursuing this path, but willingly submitted to his embraces as opportunity offered, the mere fact of a promise made at .the time would not make the act seduction.
Nor will illicit intercourse which takes place in consequence of, and in reliance upon a promise made, make the act seduction. If this were so, then the common prostitute, who is willing to sell her person to any man, might afterwards make the act seduction by proving- that she yielded relying upon the promise of compensation made her by the man, and without which she would not have submitted to his embraces. Illicit intercourse, in reliance upon a promise made, is not sufficient, therefore, to make the act seduction. The nature of the promise, and the previous character of the woman as to chastity, must be considered. And although the female may have previously left the path of virtue on account of the seductive arts and persuasions of the accused or some other person, yet if she has repented of that act and reformed, she may again be seduced. We do not say that there may not have been a reformation in this case; indeed there may have been many, but they were unfortunately fleeting. Had a reasonable time elapsed between the different acts, a presumption in favor of a reformation might arise, but we think no such presumption could arise in this case, and that the burden of proving such would be upon the prosecution.
In this connection we may discuss another question raised. Upon cross-examination of the complaining witness she was asked whether previous to this time she had ever had connection with any other man. This was objected to as irrelevant, and the objection was sustained. It does not clearly appear from the record what particular time the question referred to, whether to a time previous to the first alleged act of intercourse with the defendant, or previous to the trial. If the latter, the ruling was clearly correct.— People v. Brewer, 27 Mich., 134. If the former, then Are think the question, under the objection made, was proper. In the examination of this question, and also of the one last discussed, we have derived but little benefit from an examination of the authorities. Seduction Avas not punishable by indictment at common laAAr, and the cases which discuss these questions are all under statutes Avhich differ in some respect from ours.
In most of the states their statute makes the seduction of a woman of “previous chaste character” an indictable offense, Avhile there are no such words, nor any of like import in ours, — and the courts have held that the words “prerious chaste character” means that she shall possess actual personal virtue, in distinction to a good reputation, and that a single act of illicit connection may therefore be shown on behalf of the defendant. If, however, AA'e are correct in what AAre have already said upon the question as to what is necessary to make an act of illicit intercourse seduction, then the chastity of the female at the time of the alleged act is in all cases involved, and the presumption of law being in favor of chastity, the defense have a right to show the contrary. This, upon principle, Ave consider the correct doctrine, and that it necessarily folloAvs from Avhat Ave have said upon the other question. As bearing upon these questions Ave refer to Carpenter v. The People, 8 Barb., 603; State v. Shean, 32 Iowa, 88; Kenyon v. The People, 26 N. Y., 203; State v. Carron, 18 Iowa, 372; Andre v. The State, 5 Iowa, 389; Boak v. The State, 5 Iowa, 430; Cook v. The People, 2 Thompson & C. (N. Y.), 404; Crozier v. The People, 1 Harris C. C., 453; Safford v. The People, Id., 474; State v. Sutherland, 30 Iowa, 570.
The defense offered to prove that during the examination of the defendant for this offense, the complainant Avas present but Avas not examined. This Ayas excluded, and we think rightly.„ The complaining Avitness, of her own motion, could not talco the stand as a witness upon that examination. The prosecuting attorney need not necessarily be present, but even if he were, we think at that stage of' the proceedings he must have some discretion given him.as to what witnesses he should call, and his omission to call any particular witness cannot be made a subject of criticism upon the trial in the circuit.
The defense also offered certain evidence tending to show a plan between the complainant, her father and mother, to inveigle the defendant into a marriage with the complainant, and failing, to prosecute him. This was their theory of the case, and for this purpose the evidence was admissible. This is an offense where it is very difficult for the defense to present any direct evidence to disprove the charge, as third parties are not usually called in to witness such transactions, although in this case it does appear that complainant’s mother did find them in bed together on one occasion. She, however, whether discreetly or not, kept silent and did not communicate that fact to her husband or any one for nearly a year thereafter. We think the facts offered by the defense tended to support their theory, and they had a right to have them presented to and considered by the jury, as bearing upon the question whether the offense charged had been committed or not.
Medical witnesses were called to testify, that in their opinion intercourse, under the circumstances described by the complainant, was highly improbable if not impossible, and also to the pain and suffering the complainant would have experienced had such an act taken place. As already said, the defense is a difficult one to prove, no matter how innocent the accused may be, more especially where the parties have been in each other’s company, and thus apparently an opportunity has been given to commit such an offense. The time the parties were together, the particular place, and the probabilities arising therefrom of their being caught in the act, their position and their opportunities while together, all or any of these may render it highly improbable, if not impossible, that such an offense Aras really committed. And although counsel in their argument might draAY the same conclusion as a medical expert Avould from the facts proven, yet they are not bound to rely upon this, but may call competent parties to testify upon that subject.
To establish the fact that the prosecution Avas commenced within one year, the Avarrant issued by the magistrate Avas offered in evidence, but objected to: first, because it did not appear that the complaint referred to therein Avas in writing; and, second, that the Avarrant itself would not be evidence of the commencement, but would only be evidence when coupled with the examination and return of the magistrate. The evidence and return of the magistrate was afterwards offered in evidence, which disposed of the second objection. And as to the first, the statute does not require a complaint in writing. The issuing of the Avarrant in good faith, and delivery to an officer to execute, is a sufficient commencement, if it appears that the defendant Avas after-wards arrested upon that Avarrant and bound over for trial.
A question was raised that as but one offense was charged in the warrant no other offense could be set forth in the information. The defendant, by pleading to the information, Avaived any such question that he might have raised thereto.
Questions were also raised as to the charge of the court relative to the effect of good moral character, and some others which are not likely to arise again, under previous decisions of this court which seem to have been overlooked, and we do not consider it necessary therefore to discuss them.
The. conviction should be set aside and a new trial granted, and directions giAen to the court beloAV accordingly.
The other Justices concurred. | [
55,
25,
0,
11,
-27,
-8,
0,
-20,
5,
-14,
0,
-9,
-12,
-34,
8,
-16,
-16,
-8,
60,
-30,
18,
-21,
16,
-10,
4,
-18,
4,
46,
-44,
9,
24,
28,
-4,
-28,
11,
16,
27,
12,
15,
-23,
6,
-25,
-56,
70,
-18,
26,
34,
-23,
-7,
35,
54,
-37,
-30,
0,
-31,
-42,
7,
19,
68,
-17,
-17,
34,
-19,
8,
-48,
-57,
15,
-10,
-20,
-44,
8,
-30,
11,
-4,
36,
11,
-43,
-33,
19,
14,
3,
-17,
7,
49,
28,
-6,
-6,
-12,
23,
18,
18,
-18,
-18,
-8,
32,
9,
-51,
-23,
33,
-37,
-12,
-26,
-38,
-3,
-20,
30,
-17,
13,
3,
14,
-21,
0,
53,
18,
-35,
-10,
23,
5,
-34,
-32,
32,
10,
14,
12,
-13,
2,
-34,
-2,
-8,
-40,
-5,
9,
21,
-12,
-26,
-29,
-42,
5,
40,
-2,
-8,
-12,
8,
26,
19,
21,
-47,
46,
16,
13,
-71,
-8,
44,
38,
-2,
0,
15,
-47,
-8,
-27,
-68,
2,
-21,
-38,
1,
-14,
-20,
-26,
36,
20,
-15,
57,
52,
-13,
4,
-8,
-39,
-45,
-2,
41,
-20,
-6,
-37,
23,
13,
23,
-13,
-14,
-31,
-8,
18,
6,
27,
-22,
58,
32,
-31,
-23,
19,
-20,
-26,
-21,
-22,
5,
-27,
-11,
-9,
12,
-7,
20,
-30,
-52,
-10,
-39,
-20,
-23,
-39,
-1,
27,
24,
20,
-11,
5,
23,
-35,
-26,
-17,
19,
-26,
15,
17,
48,
-9,
-22,
-79,
-39,
-9,
-2,
38,
29,
-37,
-4,
9,
6,
-46,
22,
5,
5,
-69,
51,
1,
-32,
-9,
7,
-33,
0,
35,
-11,
-4,
-2,
-30,
27,
-11,
23,
13,
25,
25,
10,
-43,
39,
-5,
-2,
40,
78,
-43,
-29,
-2,
-2,
-24,
-13,
19,
-36,
10,
91,
14,
-34,
-54,
41,
-22,
-17,
15,
-41,
-11,
3,
13,
53,
27,
23,
-45,
-12,
34,
27,
7,
-31,
10,
0,
-27,
-21,
-24,
-23,
-29,
18,
27,
-22,
45,
-1,
-8,
0,
44,
-11,
-53,
-35,
-18,
-74,
-5,
-32,
-10,
-13,
17,
-2,
-8,
-33,
17,
17,
-10,
28,
-23,
1,
-13,
-6,
-34,
-22,
12,
0,
-23,
23,
-33,
-29,
-7,
-40,
-28,
-30,
18,
-35,
-90,
20,
-7,
-49,
-11,
-27,
-5,
30,
22,
-13,
71,
3,
13,
-5,
83,
25,
43,
13,
-17,
0,
15,
16,
2,
-18,
-13,
57,
-35,
18,
21,
2,
46,
61,
12,
-51,
-34,
18,
6,
25,
-8,
17,
31,
5,
15,
17,
11,
-34,
37,
46,
52,
18,
-53,
11,
-27,
-5,
52,
1,
2,
18,
34,
21,
16,
-60,
-6,
-22,
7,
-2,
65,
44,
27,
5,
30,
14,
32,
-26,
-5,
-62,
-14,
33,
36,
0,
-21,
46,
-10,
39,
4,
-31,
-17,
-1,
13,
56,
-33,
-23,
16,
36,
54,
23,
-16,
16,
15,
-32,
55,
45,
-42,
32,
-11,
9,
34,
16,
-36,
-33,
44,
7,
-44,
-29,
-31,
-3,
-24,
4,
11,
-29,
-13,
28,
5,
35,
16,
-16,
48,
7,
5,
-14,
19,
-38,
-16,
-57,
28,
-35,
3,
-17,
-28,
49,
-9,
-15,
-23,
16,
-28,
36,
-25,
0,
-6,
16,
10,
54,
53,
-5,
7,
40,
-9,
37,
-40,
2,
26,
-43,
17,
-2,
-47,
12,
-12,
-37,
-14,
-3,
-42,
-5,
50,
-59,
-10,
-21,
59,
29,
-45,
-3,
33,
31,
-1,
-9,
24,
-74,
-3,
12,
31,
15,
-32,
-48,
-14,
-28,
43,
0,
25,
44,
12,
-24,
-32,
-12,
-14,
-35,
-33,
35,
-30,
-60,
55,
-9,
46,
-7,
-28,
-69,
32,
-38,
20,
4,
-19,
33,
11,
3,
35,
-30,
0,
33,
-13,
2,
-46,
2,
-5,
33,
-16,
35,
10,
13,
1,
22,
4,
23,
-9,
-34,
-35,
0,
0,
-48,
42,
4,
-10,
-14,
40,
12,
-10,
2,
-45,
-11,
28,
-2,
6,
32,
28,
31,
-54,
13,
-79,
16,
-7,
5,
28,
-8,
42,
44,
0,
-14,
-20,
19,
-36,
-5,
-40,
39,
-26,
33,
13,
-11,
-1,
-22,
18,
-5,
-10,
13,
40,
27,
-42,
19,
17,
-32,
-21,
-22,
22,
-94,
9,
-37,
-14,
9,
7,
1,
47,
-24,
0,
19,
9,
-4,
10,
0,
33,
-61,
-8,
-51,
10,
7,
2,
-39,
-22,
-1,
42,
17,
21,
-8,
-28,
-5,
25,
28,
28,
54,
-43,
2,
17,
-40,
21,
38,
-7,
30,
22,
-16,
-46,
22,
23,
9,
36,
0,
-31,
-1,
-32,
-49,
-33,
-5,
-63,
52,
10,
19,
-7,
-11,
20,
-4,
-20,
64,
4,
-24,
27,
18,
17,
33,
-13,
20,
56,
0,
51,
16,
-41,
20,
67,
23,
-13,
4,
-3,
27,
-18,
-28,
-36,
13,
-18,
0,
6,
14,
-35,
37,
54,
17,
93,
41,
-18,
29,
23,
-8,
-76,
-87,
-3,
8,
-47,
-84,
-19,
-21,
-17,
-58,
-12,
32,
-26,
-1,
18,
-7,
-32,
-9,
-8,
-1,
22,
-32,
63,
1,
-25,
-31,
8,
0,
24,
-4,
66,
2,
-1,
6,
12,
36,
-46,
-28,
-8,
11,
13,
5,
-32,
35,
-47,
24,
-17,
4,
-8,
14,
-4,
16,
39,
70,
-13,
-26,
-22,
-3,
0,
-60,
-19,
-29,
-7,
-21,
-27,
-9,
-10,
47,
16,
-13,
-3,
-50,
45,
44,
-6,
-7,
-5,
39,
-11,
2,
-62,
30,
-8,
45,
-23,
23,
27,
26,
40,
0,
54,
-74,
56,
32,
-69,
-11,
-79,
3,
38,
-27,
0,
39,
-21,
21,
-45,
-57,
5,
28,
33,
-53,
41,
19,
-48,
-6,
20,
39,
-9,
23,
6,
-20,
-14,
35,
-20,
-40,
20,
8,
10,
-9,
33,
-43,
1,
-23,
32,
-7,
39,
18,
-32,
-17,
20,
-10,
0,
-11,
30,
20,
-42,
2,
-3,
-27,
12,
-12,
-33,
10,
27,
-13,
7,
-20,
-72,
39,
-21,
-28,
57,
1,
10,
-28,
56,
41,
-46,
4,
-16,
0,
-24,
36,
9,
-55,
-81,
-22,
2,
49,
51,
-58,
15,
11,
38,
30,
-10,
-12,
-19,
39,
-55,
-34,
27,
14,
-67,
25,
30,
4,
1,
1,
-10,
9,
6,
-4,
-4,
16,
14,
-4,
-39,
57,
-66,
46,
2,
37,
16,
-38,
-25,
9,
-20,
5,
14,
-51,
1,
-30,
-14,
-10,
2,
43,
27,
13,
-4,
54,
-1,
15,
4,
-23,
6,
-13,
29,
-31,
-29,
-52,
5,
-6,
-16,
-34,
-4,
36,
8,
-15,
26,
27,
17,
-48,
-21,
-18,
6,
16,
-35,
10,
18,
-20,
-7,
-19,
-53,
38,
-20,
16
] |
Graves, J:
Complainants and defendant Rumsey and one E. D. Tripp, on the 12th of April, 1871, became co-sureties on the township treasurer’s bond of one Edward L. Smith, a son of complainant Smith, and this Edward L. Smith became a defaulter. The township sued the principal and sureties on the bond, in the circuit court, and on the 17th of February, 1873, recovered judgment for damages, six thousand .six hundred and eighty-five dollars and twenty-eight cents, and costs taxed at forty-five dollars and thirty cents. Execution was stayed until April first, 1873, and was issued on the 3d of that month, and on the same day a levy was made on a large amount of complainants’ property, including real estate, and also on certain parcels of real estate as the property of the defendant Rumsey. These last parcels were described in the levy as follows: “The west half of the northwest quarter of section twenty-nine, and the east half of the northwest fractional quarter of section thirty, and land sixteen rods east and west by ten rods north and south out of north east corner of southeast quarter of northeast quarter of section thirty, all in township seven north, of range two west, in Clinton county, Michigan.”
Within a short time after the levy the amount which the execution called for was fully paid by complainants, one-half by each, and the sheriff, by direction of the attorneys for the plaintiff in execution, retained the writ in his hands. Complainants thereupon filed this bill against Rumsey, tlieir co-surety, and the other defendants, his sons-in-law, the latter claiming as grantees from Rumsey all the lands levied on as his, except forty acres on section twenty-nine, and he making claim of a homestead right on a portion of the land on that section so levied on. The bill is not strictly one for contribution. It insists that on the payment of the judgment a right accrued to contribution, and that the levy, under the equitable doctrine of subrogation, instantaneously inured to complainant’s benefit, in so far as necessary to work out contribution under the execution at law, and that the aid of equity is needful, not to expressly decree and compel contribution, but to remove obstacles fraudulently interposed and set up to prevent the obtainment of contribution through the execution and levy. The real purpose is to get rid of these impediments, so that the quota claimed of Rumsey may be collected under the process at law, and as inducement to the right to come into equity for the removal of these impediments, the matters concerning the right to contribution and the right of subrogation are necessarily set forth. The bill states that Smith, the principal, and Tripp, the other surety, are respectively insolvent; that Rumsey is responsible, and in equity bound to contribute to each complainant one-sixth of the debt;- but that intending -to evade his obligation and cheat and defraud complainants, he, together with his wife, deeded, under date of March 31st, 1813, the day before the stay of execution expired, to his son-in-law, Rollin Hathaway, the northwest quarter of the northwest quarter of section twenty-nine, and also deeded under the same date to James H. Hathaway, another son-in-law, the east half of the northwest quarter of section thirty; that he lives on said northwest quarter of the' northwest quarter of said section twenty-nine; that all his interest levied on, exclusive of the premises so deeded, is wholly insufficient to satisfy his share of the amount paid on execution; that complainants are informed and believe that the lands so deeded are worth five thousand dollars, and that there was no consideration for the deeds, and that his sons-in-law respectively received them with the intent and purpose of cheating and defrauding complainants in the premises. The bill then asks that Rumsey may be decreed to pay to complainants respectively the sums rightly due them on account of such suretyship and payment; that said deeds may be declared fraudulent and void as against the complainants, and that said Kollin and James H. may be respectively decreed to reconvey the lands described in such deeds to Rumsey, to the end that the sheriff may sell the same under and by virtue of said execution and levy to> satisfy the amount due from said Rumsey to complainants' respectively.
The answer of the defendants, in which all joined, admits the judgment, the conveyances by Rumsey to his sons-in-law, and his residence on the northwest quarter of the. northwest quarter of section twenty-nine; but neither admits nor denies the insolvency of the defaulter Smith, or of the co-surety Tripp, the issuing or levy of the execution, the amount of the judgment, or the amount paid by complainants.
It denies liability to contribute, the solvency of Rumsey,, and all fraud in deeding to the Hathaways; and insists that those deeds were upon good, valid and sufficient consideration/ It then sets up that about the middle of April, 1871, an agreement was made between Rumsey and Rollin Hathaway, whereby the latter and his wife, a daughter of Rumsey, were to work four years for Rumsey for the piece of land specified in the bill as deeded on the 31st of March, 1873, by Rumsey and wife to said Rollin; that immediately after this agreement ivas made, Eollin and his wife began work thereunder, and so continued up to the 'time of answering; that the land in question at the time of conveyance was not, and is not now, worth more than eight hundred dollars, whilst the work of defendant Eollin and his wife is well worth two hundred dollars per year; that the small parcel of about an acre on the southeast quarter of the northeast quarter of section thirty, embraced in the levy, was sold to said Eollin for cash paid down in 1871; that about the 15th of February, 1872, the defendant Eumsey sold the east half of the northwest quarter of section thirty to James H. Hathaway for two thousand five hundred dollars, and that long prior to the judgment said James had. paid to said Eumsey all of the purchase price going to him; that about the 19th of March, 1872, he so paid two hundred and' thirteen dollars and forty-fire cents in money, and seventy dollars in the amount of a saw and lumber bill he held against Eumsey, and five hundred and ninety-two dollars in a debt Eumsey owed him for work he had done for him; that there was a five hundred dollar mortgage on the land, with accrued interest, and which he, said James, assumed and agreed to pay; that soon after his purchase said James went into actual possession, and has since that time resided on the land. The answer then contains the following matter: “These defendants show and aver that William Bird, an old man, had an interest in said l^ind to the amount of one thousand eighty-four dollars and seventy-five cents, for money which ho advanced to the said Luther Eumsey, and for which he was, by an arrangement with the said Luther Eumsey, to have and hold an interest in said land, for the purpose of securing to him his support. These defendants aver and show that the said James H. Hathaway, when he purchased said land, assumed the said obligation of one thousand eighty-four dollars and seventy-five cents, and agreed to secure and pay the same, and has executed and delivered a mortgage for the same.”
It is next set up that defendant James has built a house worth six hundred dollars on the land, and that at the time of his purchase the premises were not worth more than two thousand five hundred dollars, and are not now, aside from the house; that the northwest quarter of the northwest quarter of section twenty-nine, where defendant Rumsey lives, is his homestead.
Finally the answer avers that the levy was wholly released and destroyed by complainants’' payments; and then by way of demurrer makes the point that so much of the bill as unites complainants as co-parties, and also prays joint relief* is not good in law. A general replication being filed, and proofs being taken, the cause was heard upon the merits, and the court made a final decree in favor of complainants. By this decree it was declared that defendant Rumsey was liable, and ought to contribute; that the sum for which he was so liable, and ought to pay to complainants, was" two thousand five hundred and ninety-five dollars and twenty-six cents, and that he pay the same.
It was also declared that the levy in the sheriff’s hands, on the west half of the northwest quarter of section twenty-nine, and the east half of the northwest quarter of section thirty, and land sixteen rods east and west by ten rods north and south out of the northeast corner of the southeast quarter of the northeast quarter of said section thirty, all in township seven north of range two west, constituted a good, valid and subsisting lien upon said premises, and-inured to the benefit of the said complainants. It was further declared that the deed from Rumsey and wife, of March 31, 1873, to defendant Rollin, for the northwest quarter of the' northwest quarter of section twenty-nine, and the deed of like date from Rumsey and wife to defendant James II. Hathaway, for the east half of the northwest quarter of section thirty, were made without consideration, and with intent on the part of Rumsey and the grantees to cheat and defraud complainants, and were, as to the latter, fraudulent and void, and that all of said premises were subject to the payment of the sum of money before mentioned; and finally it was decreed that defendants Rollin and Jamos H. Hathaway respectively recom'ey to Eumsey, and that the sheriff proceed to'sell under the levy, and apply the proceeds, or what thereof may be necessary, to the payment of the sum adjudged by the decree to be due to complainants, and that the latter recover their costs, and have execution therefor. The defendants appealed.
This tedious detail has been deemed expedient for two reasons: First, to see what points and issues the case really raises and leaves open for controversy; and second, on account of some incongruities in the record.
On turning to the proofs we find the ground of contention much curtailed. The alleged suretyship, the execution and payment by complainants, the retention of the execution and levy by the sheriff, and the utter insolvency of Smith,, the treasurer and principal in the bond, and of Tripp, the surety not sued in this case, are facts fully proved, and not now disputed.
The proposition, that the court is bound to adjudge according to the case shown and issues raised by the pleadings, is so evident, and has so repeatedly been expounded and applied in this state, that any thing beyond a reference to it would scarcely be excusable. Without noticing all the cases, or any of the most recent, it is enough to cite the following by way of illustration. — Thayer v. Lane, Walker Ch., 200 ; Manning v. Drake, 1 Mich., 34; Van Dyke v. Davis, 2 Mich., 144; Smith v. Brown, Ib., 161; Cicotte v. Gagnier, Ib., 381; Warner v. Whittaker, 6 Mich., 133; Wright v. Dudley, 8 Mich., 115; Bloomer v. Henderson, Ib., 395; Barrows v. Baughman, 9 Mich., 213; Gorham v. Wing, 10 Mich., 486; Dunn v. Dunn, 11 Mich., 284; Peckham v. Buffam, Ib., 529; Moran v. Palmer, 13 Mich., 367.
This rule, so manifestly proper in itself, has a direct and plain application in this case.
The bill raises no question whatever in regard to the title to the one-acre parcel on the southeast quarter of the northeast quarter of section thirty, claimed by Eollin Hathaway. In describing the property levied on as owned by defendant Bumsey, that piece was included, and that is all. There is no charge or statement to affect the ownership, or any claim for the removal of any obstacle in the way of the execution. The remedial features of the bill ignore this piece, and' there was no ground for that portion of the decree which assumes to positively subject 'it to the execution.
The bill and answer perfectly agree that the specific parcel deeded by Bumsey and wife to Eollin Hathaway, March 31, 1873, is the northwest quarter of the northwest quarter of section twenty-nine, or, as may be said, the north half of the west eighty acres of the quarter; and they equally agree, after amendment by stipulation, that Bumsey’s residence was and is on the same parcel; and the proofs show that the deed, as drawn, executed and delivered, on the part of Bumsey and wife to Eollin Hathaway, actually described the land deeded in this way; and further, that the deed continued in such shape, not only until after the levy, but for many months after the bill was filed, and was then altered by the grantors so as to cover the south half of the lot, and leave Bumsey’s residence unconveyed; and that this change rvas made under the claim that the original description was a mistake made by Mr. Strickland, the draftsman. There is no pretense of complainants’ assent to this change, and they do not admit that there was a mistake. But all this is outside the pleadings, and contrary to the solemn admissions in the record. The claim in the proofs and by argument, that there was a mistake, and the proceedings by Bumsey and wife and Eollin Hathaway and their counsel to correct it, cannot help the defendants, or hurt the complainants. The case must stand as the parties through their mutual pleadings have deliberately made it. In order to vary the grounds of contention and bring in this ingredient, it was indispensably necessary that the course of proceedings should be modified or changed in some way applicable to the circumstances.. We do not pause to point out the precise method. Looking, then, at the course the parties have chosen to take, it is quite impossible for this court, in the exercise of its appellate power, to adjudge on the hypothesis that the deed to Rollin should hare applied, and now properly applies, to the south instead of the north half of the lot.
The pleadings and evidence agree that from a considerable time prior to the levy down to that of his testifying in the case, the home of the ' defendant Rnmsey and his wife was in fact on this north forty acres. There were the dwelling house and out-buildings. Up to the 31st of March, 1873, when the deed was given to Rollin, there is no question but that Rurnsey had a homestead there. It was not then subject to execution. It was exempt. It was, however, grantable. It was capable of transfer by deed executed by himself and wife, and since creditors could enforce no process against it, could no more pursue it for their debts against him, than they could pursue for the same purpose the absolute property of the government, the law will not allow it to be said that the transfer of it, if any -were made, operated to defraud creditors. IVlien the law declares that a debtor’s disposal of his property with intent to defraud his creditors shall be voidable at the instance of his creditors, and at the same time declares that specific property of the debtor shall be exempt as against his creditors’ adverse claims, the provisions are in _pari materia, and must be construed together, and the latter provision must be held to except this exempt property from the operation of the former provision. Certainly it would be very inconsistent to say that a debtor’s disposal of property, and which property, in so far as the creditor and his claims are concerned, may be said to have no existence at all, is a fraud upon the creditor. — Story’s Mg., § 367 and cases cited, and especially Mathews v. Feaver, 1 Cox Eq., 278. This position is not within the sweep of the discussion in Bayard v. Hoffman, 4 J. C., 450, and numerous similar cases. There the real subject for consideration was, whether stock, or other intangible property which could not be reached by an execution at law, might not be subjected, to the creditor’s claim by the court of chancery, and consequently whether the circumstance alone, that the property from its nature could not be taken on the execution at law, should be held as warranting the proposition that no shift or transfer of such property could amount to a shift or transfer in fraud of the rights of creditors. Upon this question the current of authority in England, and the course of decision and of legislation in this country, have been different. But the reasoning on the question necessarily implies that the property itself is not set apart by the law as positively exempt from all coercive proceedings, both at law and in equity. The debate relates to the existence and importance of a remedy to reach a species of property, not subject to execution, indeed, but still not positively exempted from forced appropriation to satisfy debts; and it supposes that the property is not by law impressed wdth any character which gives it complete immunity against all coercive proceedings of creditors in all courts, but has a character which may enable it to escape unless the court of chancery afford a remedy. Here the question is different. The law excludes the homestead from all remedies of creditors in all courts, and the power of the creditor to take it against the will of the owner is absolutely subverted. There is no question left as to whether there is or should be a remedy somewhere to subject the homestead. The law.has closed the door against all discussion about it. In view of the case, then, as wc find the parties have made it, and accepting the fact in which they agree in their pleadings, that Rumsey and wife deeded to Rollin Hathaway the north half of the lot on section twenty-nine, and that Rumsey and wife there resided, and yielding to the proof that at the time of this conveyance the grantors had their home there, I think it follows that when that grant was made Rumsey had a homestead right on the granted forty acres, of undefined territorial extent, and that the grant, in so far as such right extended, cannot be adjudged a fraudulent grant as against the com plainants in their character of creditors of Rumsey. The point is not whether Rumsey may now, after having, as he claims, ceased to be owner, proceed to insist upon the existence of a present homestead right in his favor, but it is whether, on being charged with a fraud against his creditors, in making conveyance of his homestead, he is not entitled to reply: “True it is I did not mean that you should have my homestead for your claim against me, and I conveyed it, but in your character of creditors you were not thereby defrauded, or even prejudiced, since the law positively forbade your subjecting it against my will, either by legal or equitable proceedings, and moreover left in me the perfect right to grant it away, provided my wife would join.” It appears to me fallacious to make the question turn upon the present want of ownership in Rumsey, as between him and Rollin Hathaway, and then deal with the transfer as though it related to property in general. A view of that kind must involve a confusion of the order of events and the unwarranted assumption that the owner'of the homestead by granting it can defraud his execution creditors.
This opinion, it may be said, disagrees with observations of the chief justice in Herschfeldt v. George, 6 Mich., 456, and this is no doubt true. To the extent of the disagreement I cannot assent to what is said in the opinion of Chief Justice Martin in that case.
The pleadings leave the title lo the south half of the lot on section twenty-nine in Rumsey, and without any conveyance in seeming conflict with the lien originally obtained by the levy. Admitting the right of complainants to have the levy sustained and proceeded under to a sale for their benefit, the pleadings disclose no obstacle in so far as this parcel is concerned.
The defendants raise three objections to the case, which may now be noticed: First, they insist that whatever claims the complainants may have for contribution, they are individual, separate and distinct, and not joint, and not matter of joint complaint in equity. Whatever force this objection might possess if the case was strictly one for contribution, it is not a valid one here. But there are even cases at law for contribution, where two or more sureties are allowed to join as plaintiffs. Such, for example, where two or more sureties pay the debt out of a joint fund. — 1 Parsons on C., 35 and cases cited. The present case, however, does not come within the principle on which these cases rest, nor within the principle which discountenances a joint suit. The ground of the complainants’ equity here extends to and takes in the alleged security obtained by the township, the original. creditor against Rumsey, the co-surety of complainants, and the latter seek to make that security available in their favor against Rumsey, their co-surety. The security in question is a lien on land, obtained by means of a levy. The levy is an entire thing, in the sense of giving a lien capable of being enforced by sale for complainants’ benefit; and their rights and interests, however separate in regard to their payments to the township, and in regard to their claim against the pocket of their co-surety, come together and join in the pursuit and subjection of the lien. The levy on Rumsey’s land, as an item' of security obtained by the township, is in itself indivisible, and hence not apportionable, and the relief sought, in so far as it turns on the subjection and enforcement of this lien, is necessarily joint. This objection, then, is not well founded.
Second. It is also objected that the case is properly cognizable at law and not in equity. This is so clearly without force as to merit no comment. — 1 Story, Eq., §§ 492 to 508; 3 Kent, 124, 12th Ed.; Willard’s Eq., 106; Adams’ Eq., 267, 269 and notes; 1 Spence, 661 to 664; 2 Ib., 837 to 845; Dering v. Earl of Winchelsea, and Eng. and Am. notes, 1 L. C. in Eq.; 1 Par. C., 38, and 32 n. d.
Third. It is next claimed that on the payment made by complainants the execution ceased to have any force, and the levy expired. The doctrine in England lends countenance to this position. The courts of equity there lay down the principle in very broad language that the surety is entitled to be subrogated to all the securities acquired by the principal creditor, — Craythorne v. Swinburne, 14 Ves., 160, where Lord Eldon adopts the language of Sir Samuel Romilly’s reply; but they at the same time hold that where the surety pays the whole amount called for by the security on which he became surety, he cannot be subrogated to that identical security. — Hodgson v. Shaw, 3 Myl. & K., 183. And this limitation of the doctrine is rested on what would seem to be a ground quite too narroiv and technical to satisfy the sense and jurisdiction of equity. The ground is, that the surety in paying up the amount extinguishes the security, and hence that the latter no longer exists to serve the purpose of subrogation. The reasoning which has attempted to support this view is not satisfactory in itself, or in harmony with the principles on which the equities of sureties rest, or with the general maxims of the court. And notwithstanding the authority with which the rule has been expounded in England, there are not only individual eases, but classes of cases, there within its range in which it has been disregarded..
The weight of authority in this country supports a broader and wiser view. It looks to the relations of the parties, and the substantial rights and duties which are incident to such relations, and not to considerations purely technical, and considers that the debt and the evidence of it, and legal benefits built upon it in the form of liens, ought not to be considered as annihilated if the purposes of equity and justice require the contrary; and where the intention with which the payment is made requires that the security should survive, either generally or against particular persons, and the situation and relations of the parties will fairly admit it, a court of equity will generally, in this country, respect the intention; and treat the security as in being to the end designed, and recognize and enforce the right of subrogation. —See authorities last cited; also Am. note to Aldrich v. Cooper, 2 L. C. in Eq. (3 Am. from 2d Lon. Ed.), 226 to 230, top; Lidderdale’s Exrs. v. Robinson’s Admrs., 2 Brock., 159; S. C., 12 Wheat., 594; Bk. of U. S. v. Winston’s Fxrs., 2 Brock., 252; Cuyler v. Ensworth, 6 Paige, 32; Eddy v. Traver, Ib., 524; N. Y. State Bk. v. Fletcher, 5 Wend., 85; Cory v. Leonard, 56 N. Y., 494; Hart v. Western R. R. Corporation, 13 Met., 99; Wall v. Mason, 102 Mass., 313, 316; Low v. Blodgett, 1 Fos., 121; Atwood v. Vincent, 17 Conn., 575; Goodyear v. Watson, 14 Barb., 481; Neilson v. Fry, 16 Ohio St., 553; Dempsey v. Bush, 18 Ohio St., 376; Neal v. Nash, 23 Ohio St., 483.
This doctrine is founded on higher and better reasons than the doctrine announced in England, and the case is within it.
The debt going to the township was indeed satisfied as between the defendants in the judgment, who were the obligors in the bond, and the township, which was plaintiff in the judgment and obligee in the bond, but as the parties were situated and related it was not in equity and justice satisfied as between the complainants who paid and the principal and their co-sureties in the bond, and the very act of payment to the township with intent to keep the security alive as against the defendants in this case, and not to extinguish it, supplied the required circumstance needed in connection with the other facts to invest complainants with the right to claim contribution from Rumsey, and at .the same time invested them with the right, as against both Rumsey and the township, to insist that the levy should remain to be enforced for their benefit. And it is an unwarranted assumption to say, that because the security was no longer of efficacy in favor of the township, in consequence of the payment by complainants of the claim made by the township through or upon it, it was therefore no longer of efficacy in equity as between those equally bound, and could not be resorted to as a means to prevent one from throwing his just share of a common burden upon others standing on equal ground with himself. Indeed the equitable right of complainants could scarcely be plainer if the township and the defendant Rumsey had concurrently stated to complainants, upon their making payment, that it should in no manner preclude them from having recourse to the levy as against him.
There is not a fact in the case to countenance the notion that an extinguishment of the levy as against him was intended by the township or complainants. The proof is decisively the other way.
On the whole it is clear that notwithstanding the payment to the township, the levy still subsisted as against Rumsey for complainants benefit, that the latter were in the situation of equitable purchasers of the levy from the township for specific uses, and that equity would have interfered to prevent the latter from impairing the force of the levy to their injury, and from taking any step to obstruct or hinder their rightful recurrence to it. No doubt complainants might have so shaped their course as to have canceled the levy, and to have cut off all right to resort to it; but they did not. On the contrary, their action was plainly regulated by the opposite purpose. If the position of defendants’ counsel were sound, the right of subrogation in a multitude of cases would prove to be a barren one.
This disposes of all the special objections taken by counsel for the defendants, and the only question remaining relates to the validity of the transfers on the 31st of March, 1873, as against the right of complainants to enforce the levy for their benefit, and so far as necessary to raise the share Rumsey was and is bound to contribute. It was admitted in proof that the judgment and proceedings were stayed as alleged in the bill, until the day succeeding the 31st of March, when these transfers were made; and the payment by complainants was not only proved, but admitted by defendants’ counsel in his brief. The retention by the sheriff of the execution after the payment, and the direction of the attorneys for the township that it should be retained, were likewise proved, and there is no claim to the contrary, or any claim opposed to what the evidence tends very strongly to show, although there is no express proof on the subject, that the writ was so retained pursuant to an understanding between complainants and the township therefor.
Coining to the question of fact, touching the design with which these deeds were made and received, and the end intended to be accomplished, a few words will suffice. It would be tedious, and would unnecessarily lengthen this opinion, to advert in detail to the facts and circumstances bearing on this point. A careful examination and comparison of all matters shedding light upon the motives and purposes of the defendants, and the nature of the transaction, inspire the opinion that these persons were not acting in good faith, but upon a plan contrived to prevent the subjection of the land for the payment of any share of the judgment.
It follows as a consequence that complainants showed themselves entitled to relief. But the views which have been expressed show also that the relief given below was not appropriate to the case made. The complainants were entitled to a declaration giving them the benefit of the levy as to the east half of the northwest quarter of section thirty, and the west half of the northwest quarter of section twenty-nine, except as to so much of the northwest quarter of the northwest quarter of said section twenty-nine as constituted the homestead of defendant Rumsey at the time he and his wife conveyed to Rollin Hathaway on the 31st of March, 1873, and so far as necessary to raise the amount payable by Rumsey to qomplainants.
The complainants were further entitled to a decree for an admeasurement and set-off of the homestead according to the situation and value at the time of the conveyance to Rollin Hathaway, and for setting aside the deed to James H. Hathaway, and the deed to Rollin Hathaway, of the 31st of March, 1873, except as to the parcel set apart as constituting the homestead of defendant Rumsey at that date, as fraudulent against the levy and the right of com. plainaufcs. No decree should have been made touching the one acre parcel, for the reason before given; and as the conveyed homestead was not liable, and the bounds of it have not been established so as to show how far the deed to Kollin cannot be disturbed, or to what extent the levy can be executed by sale upon the northwest quarter of the northwest quarter of section twenty-nine, provision should have been made for ascertaining the homestead by metes and bounds.
The decree below being wrong, and the defendants being compelled to come to this court or submit to the error, they are entitled to their costs.
The cause 'should be. remanded, with directions to modify the decree according to this opinion, and. for such further proceedings as may be necessary.
The other Justices concurred. | [
-13,
40,
23,
-19,
-59,
29,
24,
-26,
28,
55,
-45,
2,
1,
44,
-1,
1,
-33,
-13,
1,
52,
-26,
-55,
4,
-10,
-32,
20,
55,
26,
2,
9,
25,
-16,
-21,
34,
19,
-8,
14,
-35,
-30,
-30,
-37,
34,
-12,
-26,
-3,
32,
30,
-10,
14,
-20,
0,
4,
12,
-24,
-10,
-5,
-34,
-46,
-14,
-14,
-27,
-17,
-25,
11,
-23,
0,
-12,
39,
31,
-45,
4,
23,
-1,
12,
0,
6,
-25,
-61,
-30,
-21,
-33,
-23,
31,
14,
-36,
-37,
-36,
3,
-45,
40,
-6,
-11,
-19,
10,
62,
1,
13,
-26,
-37,
6,
-25,
-5,
-10,
53,
38,
-23,
30,
-21,
-4,
-16,
-18,
-5,
29,
-16,
-27,
-15,
-57,
-50,
4,
9,
20,
-3,
63,
7,
-21,
5,
0,
-24,
-15,
16,
32,
-8,
-43,
-14,
-24,
2,
-4,
-24,
-2,
8,
12,
-20,
-12,
-66,
-5,
17,
-4,
-27,
11,
-2,
-35,
-4,
31,
29,
2,
-23,
40,
-32,
37,
-10,
78,
-6,
-7,
-4,
-62,
6,
-22,
-19,
-2,
64,
53,
16,
-24,
-19,
33,
-10,
17,
2,
10,
58,
19,
48,
3,
-28,
-23,
-43,
23,
-15,
-17,
-1,
17,
-10,
-19,
-17,
-2,
24,
-2,
-17,
-33,
0,
-18,
-55,
19,
23,
-28,
-28,
54,
-32,
-39,
2,
-22,
11,
-24,
36,
-59,
34,
-1,
-34,
1,
-22,
4,
37,
-1,
37,
-31,
-43,
7,
24,
29,
-35,
13,
-20,
27,
12,
-57,
-30,
-29,
16,
-8,
31,
-23,
-9,
-22,
-33,
-25,
-8,
-17,
9,
-19,
38,
-50,
0,
-22,
6,
23,
-11,
-16,
0,
-1,
7,
-42,
20,
7,
27,
0,
-17,
25,
-1,
-9,
2,
13,
-10,
68,
23,
2,
17,
-4,
11,
27,
-18,
14,
-60,
-1,
50,
24,
34,
-12,
24,
-31,
-26,
18,
-26,
24,
4,
38,
70,
0,
-31,
53,
7,
-20,
34,
-1,
-27,
-2,
17,
-28,
-9,
-24,
11,
7,
-10,
-9,
-31,
56,
15,
-32,
-10,
36,
-21,
26,
2,
39,
-33,
8,
36,
28,
23,
-31,
19,
-6,
-11,
31,
-19,
12,
-8,
-19,
-18,
-30,
-40,
6,
14,
0,
14,
7,
7,
0,
-20,
-34,
17,
-31,
-2,
-35,
61,
-2,
35,
43,
-2,
-25,
20,
21,
27,
-32,
5,
-3,
-27,
-33,
-65,
18,
43,
31,
37,
-5,
3,
-13,
8,
-29,
0,
-22,
50,
42,
18,
-1,
54,
21,
-31,
-25,
7,
-58,
27,
-6,
7,
7,
3,
27,
-24,
7,
-22,
-63,
-21,
-8,
28,
-44,
2,
11,
37,
-33,
14,
-3,
-14,
28,
-17,
49,
-31,
18,
0,
27,
-24,
8,
15,
54,
16,
14,
-36,
-22,
-58,
25,
-7,
-21,
15,
-7,
7,
27,
-30,
24,
-5,
-42,
-24,
-27,
-13,
2,
58,
71,
0,
38,
-27,
-32,
18,
47,
-41,
-25,
-24,
-29,
1,
-30,
23,
32,
-9,
34,
-54,
33,
8,
-13,
-32,
15,
-2,
-15,
-15,
-4,
5,
-17,
11,
14,
-5,
14,
-26,
23,
-3,
21,
-15,
29,
0,
-57,
-34,
-45,
-18,
-2,
7,
-41,
8,
33,
11,
-34,
25,
24,
13,
-56,
-24,
0,
37,
23,
36,
-6,
7,
12,
43,
-48,
-35,
-11,
24,
-7,
-27,
16,
62,
-13,
30,
75,
-42,
24,
38,
-34,
20,
-68,
-11,
51,
19,
-15,
38,
34,
2,
-20,
-32,
-24,
-23,
10,
4,
-14,
51,
-40,
-31,
-10,
31,
72,
28,
16,
49,
15,
0,
8,
-39,
-41,
-14,
34,
38,
-22,
-12,
-25,
-13,
36,
14,
11,
4,
-17,
-22,
0,
-8,
38,
-19,
-25,
-6,
-24,
-7,
18,
-9,
35,
-1,
-15,
-11,
32,
-8,
-2,
2,
18,
-31,
26,
35,
2,
45,
-5,
62,
6,
27,
3,
21,
-33,
-3,
-11,
26,
23,
26,
-19,
9,
-6,
27,
-1,
-9,
-9,
-3,
49,
26,
14,
-29,
20,
16,
14,
41,
-19,
-33,
-3,
4,
51,
-17,
6,
28,
35,
-28,
13,
-1,
-74,
7,
-17,
-22,
-14,
21,
-51,
25,
29,
30,
6,
22,
-7,
10,
-11,
-11,
-4,
-19,
-40,
0,
-38,
-39,
-55,
24,
22,
-6,
11,
3,
15,
-33,
19,
-19,
69,
33,
-10,
60,
11,
-5,
4,
-10,
39,
26,
6,
-48,
-7,
13,
-1,
-39,
21,
46,
-2,
-4,
-1,
1,
-19,
29,
5,
-5,
-14,
18,
-7,
18,
0,
8,
-35,
-1,
-15,
23,
21,
7,
1,
23,
10,
5,
-55,
11,
-46,
24,
-4,
0,
-49,
-33,
5,
-21,
42,
-23,
-2,
10,
16,
12,
1,
-21,
-29,
-53,
0,
-12,
36,
-20,
9,
-49,
-3,
29,
-7,
65,
-30,
-44,
10,
-7,
-26,
36,
-45,
-4,
-4,
-50,
-58,
14,
32,
19,
21,
14,
35,
5,
40,
44,
10,
19,
-7,
-27,
-69,
25,
-31,
26,
11,
33,
-17,
-9,
9,
-3,
-32,
-46,
53,
-35,
-12,
88,
-39,
-30,
28,
-36,
-44,
5,
-36,
-21,
47,
-8,
-2,
-10,
-39,
-29,
24,
6,
4,
-20,
3,
-48,
26,
36,
-46,
21,
46,
-29,
-12,
11,
-27,
35,
-16,
80,
18,
12,
-22,
6,
0,
24,
-15,
-32,
-27,
28,
-15,
20,
-18,
25,
10,
17,
-42,
53,
17,
12,
4,
29,
35,
23,
-22,
7,
40,
8,
-27,
10,
46,
-58,
18,
-26,
4,
13,
-2,
-31,
-36,
8,
7,
-1,
17,
42,
-6,
18,
-41,
11,
18,
-3,
-46,
-23,
33,
-27,
-28,
16,
33,
-32,
-42,
-23,
-18,
1,
45,
-29,
-11,
17,
-19,
3,
-53,
31,
1,
20,
57,
-35,
-13,
-9,
-40,
5,
-20,
-17,
13,
-1,
41,
-75,
0,
10,
-21,
12,
-41,
37,
-27,
-34,
-17,
-43,
-31,
10,
20,
19,
-30,
-19,
-39,
-18,
14,
3,
-4,
33,
-11,
-31,
-20,
-18,
-52,
3,
-3,
-53,
-8,
12,
14,
-17,
-32,
-28,
-41,
14,
16,
17,
-3,
63,
4,
20,
-59,
-8,
24,
-10,
44,
-46,
-6,
8,
55,
8,
-30,
-15,
-12,
35,
35,
-28,
31,
12,
-25,
0,
71,
85,
-11,
6,
-20,
-6,
-19,
5,
-33,
-5,
26,
-37,
-9,
29,
-11,
-17,
16,
-28,
-9,
-30,
-17,
-24,
31,
-27,
24,
-14,
-19,
-56,
15,
-25,
-15,
3,
-38,
1,
-15,
-13,
-17,
-15,
8,
43,
34,
16,
0,
-18,
12,
-12,
4,
-40,
17,
-49,
-3,
7,
8,
-29,
44,
42,
14,
9,
-51,
42,
21,
46,
1,
32,
-45,
16,
12,
-21,
46,
-3,
-19,
22
] |
Per Curiam:
The city sued in the court below in ejectment for a street within its limits, and the court allowed a recovery. The cause comes up on a case. The defendant seems to have made no objection to the form of the action, and tlie plaintiff’s counsel insists: first, that there ivas no ground for any; and second, that if there was, the objection should have been made by plea in abatement or by demurrer. On the first point he cites Dillon on Corp., § 523. The text, it is true, goes to support the position, but the authorities cited we think fail to support it. But however that may be, our statute forbids ejectment when the party suing has not, when he commences his suit, a valid subsisting interest in the premises claimed. — § 6206, C. L. And the city has no such interest here. The question is a fundamental one, and goes to the right of the court to give judgment of recovery. The action is foreign to any right claimed, and no case is made for any judgment for plaintiff. There was no necessity for a demurrer or plea in abatement, because it appeared affirmatively that the remedy was unwarranted, and the failure to raise the point by pleading or otherwise in the court below would not authorize a form of proceeding and judgment in it which the statute inhibits.
The circumstance that the charter of the city gives the corporation the supervision and control of all the streets does not help the case. This is nothing more than the power possessed by township officers over country ways, and the power usually given to cities over their streets. Our laws have made particular provisions for the care of streets and ways, and the prevention and removal of encroachments and obstructions. And it has never been supposed that ejectment could be maintained for any such purpose. The objection is fatal and cannot be ignored.
The judgment must be reversed, and one entered here for the defendant, with the costs of both courts. | [
-19,
19,
28,
25,
-9,
1,
18,
0,
8,
57,
16,
26,
31,
10,
8,
-14,
29,
-1,
-7,
17,
-18,
-41,
24,
8,
15,
-2,
51,
7,
15,
33,
10,
-34,
-45,
40,
-24,
27,
7,
0,
62,
30,
2,
-2,
20,
-58,
1,
-8,
3,
9,
17,
-26,
10,
13,
-13,
-11,
0,
-17,
-12,
55,
-17,
-20,
-26,
8,
-11,
-7,
11,
36,
-34,
15,
9,
28,
-60,
-7,
-18,
4,
39,
4,
-1,
8,
-9,
-7,
-28,
15,
32,
1,
23,
5,
16,
-16,
6,
-53,
28,
30,
-18,
50,
-20,
33,
-5,
-49,
5,
-21,
-8,
36,
13,
8,
-19,
-34,
-10,
-55,
37,
-24,
-6,
34,
-4,
-49,
-21,
-40,
-3,
-27,
25,
-11,
38,
-6,
-12,
5,
-43,
2,
-36,
21,
-30,
48,
-1,
3,
-2,
-20,
4,
11,
-10,
25,
17,
52,
53,
-39,
24,
-5,
-6,
2,
32,
26,
-15,
-1,
-10,
0,
15,
-23,
-44,
36,
-4,
-34,
49,
-3,
34,
37,
-10,
8,
-20,
0,
-27,
45,
-11,
26,
14,
-8,
1,
22,
33,
-11,
-41,
48,
-11,
7,
0,
31,
24,
2,
1,
-3,
-5,
-11,
5,
-22,
46,
-8,
-29,
-22,
32,
34,
4,
51,
-7,
-50,
-36,
-20,
-29,
-48,
-29,
8,
27,
17,
17,
14,
-8,
25,
-33,
-18,
18,
-33,
57,
-36,
5,
-12,
13,
-18,
-34,
13,
-27,
-21,
-29,
-11,
-19,
-10,
-9,
-32,
0,
0,
11,
4,
55,
48,
-27,
19,
0,
126,
-39,
-32,
-13,
-7,
7,
7,
-5,
16,
14,
-49,
-9,
11,
0,
4,
-29,
27,
-2,
-10,
47,
51,
9,
-16,
-26,
-1,
-22,
6,
-20,
6,
13,
41,
-1,
47,
-15,
-54,
-30,
-2,
9,
16,
-7,
-12,
4,
3,
-11,
61,
-23,
-2,
42,
14,
37,
-21,
-36,
41,
8,
34,
36,
19,
-2,
-32,
-26,
11,
3,
10,
72,
0,
-30,
21,
-18,
-21,
-4,
9,
-27,
44,
61,
49,
0,
-1,
-6,
-44,
39,
-16,
13,
-22,
-16,
-11,
55,
9,
5,
-18,
71,
22,
31,
40,
15,
22,
14,
-40,
-67,
-3,
17,
-18,
-12,
10,
38,
-7,
-35,
-19,
-3,
16,
-65,
-12,
-35,
25,
29,
-39,
-2,
-28,
-27,
22,
41,
38,
14,
-48,
24,
-46,
9,
-15,
-16,
28,
2,
-32,
-61,
-23,
-29,
-21,
46,
-6,
-51,
24,
39,
-74,
5,
-26,
58,
43,
-32,
-28,
-61,
-30,
-26,
-24,
16,
-21,
-25,
-23,
-7,
42,
-11,
-4,
-16,
-9,
-24,
41,
9,
-45,
23,
1,
0,
46,
-6,
2,
61,
9,
-32,
34,
22,
20,
22,
-1,
-9,
-6,
16,
-47,
-8,
-31,
4,
-6,
-22,
-3,
-7,
0,
-21,
-57,
-12,
22,
-19,
-63,
-32,
-30,
-27,
-10,
10,
27,
-20,
-3,
-15,
22,
-31,
-9,
7,
37,
8,
-9,
-19,
47,
-19,
-21,
41,
-27,
42,
-21,
-30,
-14,
-8,
-7,
-24,
-27,
23,
4,
15,
13,
-26,
39,
-9,
-27,
4,
20,
-38,
9,
3,
33,
24,
-10,
-43,
6,
19,
5,
12,
-9,
10,
37,
3,
-49,
12,
-43,
-9,
1,
-30,
2,
38,
49,
-58,
-23,
-10,
2,
-19,
-10,
8,
54,
-25,
2,
40,
-2,
21,
30,
0,
-3,
9,
26,
-20,
-49,
-29,
-36,
32,
15,
-10,
-9,
-4,
-37,
24,
-35,
-70,
-25,
-6,
-19,
-17,
30,
-4,
1,
-35,
54,
-5,
6,
-15,
35,
7,
69,
16,
33,
-45,
14,
-21,
18,
22,
-37,
-32,
-53,
32,
2,
-22,
34,
1,
-12,
15,
55,
26,
-57,
12,
-2,
-13,
-28,
32,
-33,
-32,
-5,
16,
-35,
9,
-24,
-38,
-6,
-10,
-36,
5,
-23,
-7,
-10,
14,
-42,
-11,
-21,
15,
-23,
20,
1,
-19,
-2,
7,
45,
9,
7,
-21,
-16,
6,
-9,
-29,
-35,
29,
-13,
63,
13,
-49,
24,
-19,
12,
-13,
37,
54,
-33,
28,
3,
-43,
-18,
-25,
-61,
20,
-6,
-38,
22,
-24,
13,
-1,
20,
5,
15,
17,
43,
26,
23,
-3,
31,
10,
-52,
1,
14,
-6,
47,
-15,
-4,
-31,
33,
23,
-47,
38,
0,
-9,
1,
16,
-35,
-2,
-6,
16,
-23,
-46,
30,
3,
3,
-17,
0,
0,
15,
31,
34,
5,
-26,
15,
1,
-47,
22,
14,
-49,
-36,
-23,
-27,
6,
26,
11,
22,
7,
0,
-55,
-10,
-25,
-22,
66,
15,
3,
6,
10,
20,
-26,
35,
34,
-75,
9,
-14,
34,
5,
2,
0,
1,
0,
-20,
26,
-12,
19,
-17,
6,
12,
55,
-14,
-29,
-64,
-11,
34,
8,
-32,
-51,
-8,
-10,
-15,
4,
-30,
-55,
0,
16,
-48,
0,
-37,
-6,
30,
1,
16,
-23,
-12,
-35,
-15,
-13,
39,
-18,
-30,
29,
13,
42,
-13,
-16,
-1,
-42,
-15,
3,
-60,
-33,
20,
-34,
12,
-2,
0,
0,
-7,
-14,
21,
36,
-36,
-16,
44,
-33,
-32,
23,
36,
-21,
-38,
-38,
17,
-9,
-19,
-31,
24,
4,
63,
28,
2,
-26,
11,
-31,
32,
-18,
-40,
3,
14,
-20,
20,
4,
0,
-9,
0,
-44,
57,
29,
-4,
-20,
-53,
-5,
-17,
-7,
33,
-14,
33,
-32,
-12,
-21,
14,
-10,
12,
2,
46,
32,
-39,
26,
7,
53,
-60,
-21,
79,
-16,
29,
27,
19,
-4,
-40,
-13,
-36,
-4,
16,
4,
10,
-41,
19,
0,
33,
-26,
34,
10,
-21,
43,
9,
-7,
-14,
22,
-12,
50,
38,
4,
-25,
25,
-32,
-51,
6,
49,
12,
-11,
42,
19,
1,
-3,
0,
-28,
-34,
-24,
-15,
11,
19,
-6,
1,
-34,
2,
-14,
-38,
-11,
45,
76,
24,
-29,
21,
-22,
-9,
-73,
8,
32,
-25,
21,
-22,
100,
14,
-19,
0,
-7,
1,
0,
-18,
30,
-44,
34,
-2,
19,
18,
-26,
2,
27,
-3,
20,
62,
-20,
-13,
-51,
1,
-31,
-1,
-8,
35,
13,
-44,
0,
3,
13,
-16,
5,
-16,
0,
-29,
-17,
-21,
33,
81,
-7,
-11,
-37,
-17,
35,
-10,
-15,
7,
12,
12,
-32,
-2,
-31,
21,
-41,
-20,
21,
-18,
-31,
-50,
20,
-9,
11,
-26,
-12,
-5,
-21,
-3,
-7,
42,
14,
-32,
8,
-26,
-34,
13,
70,
-37,
0,
11,
-32,
20,
20,
37,
-23,
-39,
-8,
20,
14,
2,
-35,
2,
-23,
11,
24,
-49,
-4,
26,
-16,
2,
14,
-15,
16,
30,
41,
-29,
-42,
18,
54,
31,
0,
-1,
-14,
22,
-40,
0,
37,
-29,
-34,
26
] |
Marston, J:
We have examined the several assignments set forth in the record in this case, and are satisfied that no error was committed. The plaintiff in the court below had a right to abandon the special count, and seek to recover on the common counts. There was evidence tending to show a promise made by an authorized agent of the defendant to pay the plaintiff one hundred dollars for his services. The question was properly submitted to the jury, and they having* found for tbe plaintiff, tbeir verdict is final. We do not consider the questions raised of sufficient importance to demand separate examinations.
Judgment affirmed, with costs.
The other Justices concurred. | [
22,
20,
-29,
-4,
-25,
-20,
58,
-2,
5,
43,
76,
36,
3,
-1,
-33,
-56,
-29,
-15,
49,
-35,
-54,
-16,
-15,
27,
-2,
28,
17,
58,
-61,
11,
-14,
43,
11,
32,
-45,
38,
28,
38,
-8,
-47,
27,
-47,
-6,
-40,
-12,
11,
17,
-16,
0,
-25,
28,
-11,
-42,
-5,
20,
16,
1,
-19,
-32,
-56,
25,
-11,
-24,
22,
-32,
-45,
-18,
-29,
-3,
-9,
-54,
30,
19,
-25,
29,
-14,
-24,
-10,
-40,
7,
18,
-23,
18,
-15,
-10,
22,
54,
7,
14,
-40,
8,
37,
18,
-51,
11,
50,
10,
-8,
38,
14,
25,
9,
-45,
20,
-55,
22,
-79,
-46,
29,
-2,
37,
12,
-29,
-10,
-50,
67,
-31,
24,
-42,
-42,
7,
46,
34,
0,
-68,
-2,
-59,
-18,
-31,
-31,
8,
-8,
-64,
40,
-11,
-43,
-1,
-5,
-7,
-22,
23,
-1,
27,
4,
32,
0,
2,
-1,
-15,
-16,
9,
-4,
-8,
29,
0,
-26,
14,
-53,
44,
-59,
23,
15,
19,
-1,
20,
18,
27,
8,
47,
21,
4,
-12,
52,
15,
16,
49,
-19,
-15,
-10,
-45,
-24,
17,
-10,
1,
12,
27,
15,
25,
47,
-25,
-20,
16,
-20,
0,
1,
-1,
43,
41,
3,
-31,
-21,
15,
-9,
38,
-7,
12,
-18,
-47,
-25,
21,
-21,
-4,
-34,
-86,
-21,
4,
-58,
-54,
0,
-37,
-28,
11,
-39,
-11,
-42,
-37,
-31,
32,
34,
-16,
-20,
69,
14,
34,
4,
8,
10,
-33,
5,
-27,
-38,
15,
-2,
-3,
8,
19,
1,
-6,
-56,
6,
33,
15,
15,
40,
-37,
-14,
48,
34,
-38,
-9,
-25,
41,
-46,
-10,
-12,
-37,
75,
20,
42,
16,
-29,
1,
5,
-53,
-25,
-45,
20,
-34,
-45,
42,
9,
-5,
-17,
50,
-54,
3,
20,
10,
21,
13,
19,
-42,
52,
-17,
37,
34,
66,
54,
-48,
-35,
29,
-27,
50,
70,
40,
-6,
-6,
-12,
-28,
-6,
-19,
10,
18,
-29,
48,
23,
-49,
-26,
7,
-3,
-25,
8,
35,
-44,
3,
4,
14,
-102,
3,
-8,
-30,
7,
8,
25,
4,
-22,
4,
36,
-25,
-7,
19,
-52,
-72,
-21,
14,
-4,
-47,
-29,
-64,
-6,
-8,
55,
5,
45,
24,
9,
16,
-34,
-10,
10,
-1,
0,
37,
0,
24,
8,
18,
-67,
9,
41,
-10,
-16,
-2,
-17,
-18,
19,
43,
-27,
9,
41,
-29,
-3,
-64,
-28,
21,
-6,
-12,
-32,
5,
-6,
2,
0,
-4,
26,
-49,
6,
-21,
-22,
-7,
-6,
19,
13,
29,
-7,
-68,
19,
-29,
-29,
-10,
-2,
-53,
11,
3,
-21,
5,
-15,
3,
-10,
-14,
-27,
31,
-10,
9,
35,
-17,
-11,
9,
38,
-35,
-26,
-42,
-6,
0,
-69,
9,
-35,
18,
-4,
21,
-18,
-62,
0,
-47,
23,
-18,
7,
-13,
41,
25,
-24,
21,
-10,
18,
38,
7,
36,
14,
-39,
15,
48,
-14,
-20,
-17,
-44,
12,
5,
-5,
0,
23,
-71,
-39,
-19,
44,
36,
8,
10,
-53,
0,
17,
-28,
33,
34,
-6,
4,
-62,
7,
-48,
-4,
-36,
-36,
-36,
6,
-15,
7,
-16,
0,
14,
33,
-36,
33,
-5,
-6,
33,
-25,
11,
0,
-20,
-45,
24,
4,
3,
54,
31,
21,
6,
9,
-7,
35,
-23,
42,
8,
-24,
-26,
-38,
29,
7,
1,
-15,
-9,
-41,
52,
86,
8,
-20,
2,
15,
23,
-40,
53,
-94,
-50,
21,
24,
32,
7,
3,
-10,
-37,
5,
59,
41,
10,
44,
-11,
-29,
-12,
56,
-26,
16,
-43,
-49,
-28,
4,
4,
79,
-9,
13,
-30,
-6,
-45,
41,
-12,
-44,
63,
-8,
-18,
-2,
10,
-14,
-42,
-29,
34,
-33,
8,
-12,
27,
32,
-15,
27,
46,
-21,
-7,
1,
-12,
-42,
-82,
11,
-7,
-14,
-2,
0,
11,
-49,
12,
22,
32,
-13,
23,
-2,
-35,
19,
-3,
11,
-8,
-15,
-11,
6,
0,
4,
13,
7,
35,
2,
-24,
-15,
16,
0,
-26,
-24,
-26,
12,
-33,
8,
15,
-68,
35,
-6,
30,
-63,
-17,
72,
-6,
3,
2,
27,
16,
-28,
-3,
-6,
-5,
33,
34,
29,
-2,
7,
29,
-24,
-10,
30,
0,
18,
-6,
49,
58,
-2,
76,
17,
-11,
24,
3,
1,
-32,
12,
-20,
57,
-13,
21,
0,
-3,
-7,
-20,
-35,
26,
21,
-9,
19,
-24,
-15,
29,
-27,
12,
42,
-5,
-52,
-54,
-40,
60,
21,
12,
11,
21,
4,
-6,
6,
-3,
16,
-13,
88,
38,
-6,
39,
68,
-17,
24,
-9,
-11,
-39,
14,
-25,
8,
50,
-11,
48,
-30,
13,
-18,
1,
-4,
3,
-1,
41,
-21,
16,
21,
-9,
-11,
29,
-11,
-30,
-20,
-14,
39,
-9,
9,
25,
9,
19,
0,
-72,
52,
33,
-32,
67,
-36,
5,
35,
-9,
15,
-9,
11,
-25,
15,
-32,
-33,
28,
-11,
-61,
-32,
-44,
12,
-3,
-55,
34,
14,
-25,
85,
10,
-39,
-21,
-15,
15,
-4,
-5,
41,
-43,
-45,
-24,
-5,
-32,
57,
24,
30,
27,
24,
14,
0,
-5,
42,
-3,
10,
-6,
28,
17,
9,
13,
30,
13,
3,
-7,
-21,
-10,
-4,
-22,
-14,
-4,
-41,
0,
-17,
-25,
-13,
-5,
15,
35,
0,
-37,
11,
-25,
38,
16,
11,
39,
-22,
-32,
25,
-11,
25,
-23,
-59,
-59,
36,
-6,
18,
-9,
23,
9,
-14,
-76,
40,
-24,
-28,
1,
16,
29,
7,
-3,
3,
36,
2,
40,
41,
-30,
21,
-34,
6,
55,
34,
34,
7,
25,
-5,
-4,
42,
36,
-41,
-26,
33,
15,
0,
12,
20,
-11,
0,
-24,
55,
5,
-42,
28,
-52,
-35,
-3,
37,
-27,
17,
7,
30,
-8,
-35,
19,
8,
2,
35,
19,
-37,
7,
11,
14,
12,
-1,
-26,
56,
57,
21,
33,
-37,
-2,
51,
14,
-19,
1,
-34,
7,
11,
-15,
16,
20,
-43,
2,
-59,
-19,
-28,
-26,
-2,
21,
16,
14,
-7,
8,
16,
-17,
21,
18,
-45,
-16,
30,
-60,
-27,
-66,
46,
-14,
-21,
-18,
9,
40,
1,
-38,
30,
-35,
-10,
-55,
21,
-10,
3,
34,
8,
-10,
0,
-28,
1,
-46,
4,
71,
26,
-3,
-32,
28,
-37,
11,
-6,
-39,
-24,
-1,
-12,
17,
3,
-18,
13,
-18,
-4,
-12,
-8,
40,
-4,
31,
-32,
-45,
-24,
-29,
3,
29,
-27,
9,
-9,
-8,
-8,
8,
-39,
40,
43,
2,
-74,
-16,
21,
22,
11,
-13,
13,
-14,
-14,
-14,
12,
30,
48,
26,
0
] |
Per Curiam.
On December 15, 1981, plaintiff commenced a medical malpractice action, alleging negligence in his care and treatment on July 1, 1977. Defendant Heritage Hospital moved for accelerated judgment pursuant to GCR 1963, 116.1(5), on the grounds that the claim was barred by a prior judgment and by the statute of limitations. The motion was denied and defendant has appealed by leave granted.
The court below, in denying defendant’s motion, ruled that the statute of limitations was tolled for the period that the parties were in arbitration. Demand for arbitration had been filed by plaintiff on June 27, 1979. On December 14, 1981, counsel for plaintiff received the December 4, 1981, opinion of the arbitration panel denying plaintiffs claim. Both parties acknowledge that the panel’s ruling was a dismissal on jurisdictional grounds.
We hold that the statute of limitations was not tolled during the period that the parties were in arbitration. Our decision is based on Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256 (1984), which was decided since this appeal was brought.
Michigan courts have long held that the tolling statute deals with prior "lawsuits” or "court proceedings”. e.g, Buscaino v Rhodes, 385 Mich 474, 482; 189 NW2d 202 (1971), Barczak v Rockwell International Corp, 68 Mich App 759, 762; 244 NW2d 24 (1976). Prior to Barczak, supra, the cases generally involved a prior court proceeding, rather than a nonjudicial proceeding, as the tolling action. The Barczak Court found these cases to be precedent for its holding that a complaint brought before the Michigan Civil Rights Commission was not a tolling action.
In Mair, supra, the alleged tolling action was a charge filed with the United States Equal Employment Opportunity Commission. Rather than relying on dictum in earlier cases as the Barczak Court had done, the Mair Court engaged in an analysis of the tolling statute’s application to administrative proceedings. This analysis confirmed the correctness of the result in Barczak, as the Court concluded,
"The statutes of limitations, as well as the tolling statute, are of legislative creation. So too should be any further exceptions, and particularly any further exception which makes an administrative proceeding a tolling event.” Mair, supra, p 85.
The Mair Court reached its conclusion in spite of persuasive policy arguments for allowing an administrative proceeding to be a tolling event. It noted,
"Clearly, there are administrative proceedings that would serve the purpose of the statute by giving notice to the defendant of the allegations against him in a forum where the remedies available are equivalent to those in a civil action.” Id., pp 83-84.
Nevertheless, the Court found dispositive evidence that the Legislature did not contemplate nonjudicial proceedings as tolling events. The dissent agreed that the tolling statute applies only where an action has been commenced in a court but believed that the Court should have exercised its power to provide by court rule for tolling on terms different from those set forth by statute.
In the instant case, we are persuaded by the policy arguments for allowing an arbitration proceeding as a tolling event. The scope and purpose of arbitration is comparable to that of a lawsuit, even more so than many actions before administrative agencies. Nevertheless, in accordance with Mair, supra, p 85, we must decline to create an exception to the statute of limitations.
Defendant has argued that summary judgment was proper, in any event, because the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., is unconstitutional and the arbitration proceeding taken pursuant thereto is void and ineffective for any purpose. This argument fails because the constitutionality of the act was upheld in Morris v Metriyakool, 418 Mich 423; 344 NW2d 736 (1984).
We conclude that the circuit court erroneously denied defendant’s motion for accelerated judgment. Accordingly, we reverse, but without prejudice to plaintiff’s claiming that defendant is es-topped from relying on the statute of limitations. Plaintiff’s estoppel claim was not considered by the court below and is now before us on an inadequate record, so we are unable to render any decision on its merits.
Reversed.
MCL 600.5805(4); MSA 27A.5805(4).
MCL 600.5856; MSA 27A.5856 provides:
"The statutes of limitations are tolled when
"(1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when
"(2) jurisdiction over the defendant is otherwise acquired, or when,
"(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” (Emphasis added.) | [
-23,
0,
-39,
36,
31,
17,
-12,
-37,
-4,
54,
-33,
10,
-13,
-41,
14,
9,
19,
10,
12,
25,
-18,
4,
-24,
1,
-3,
6,
41,
17,
7,
35,
-11,
20,
-6,
12,
-47,
-37,
18,
-17,
40,
65,
-6,
-6,
24,
0,
-39,
-27,
54,
-10,
50,
-20,
34,
16,
-28,
22,
12,
-24,
25,
-42,
-23,
16,
-38,
21,
37,
12,
35,
24,
42,
11,
4,
-28,
-14,
28,
-2,
25,
-10,
7,
13,
6,
12,
-45,
4,
-29,
17,
-12,
-2,
21,
-23,
16,
4,
-26,
-37,
-40,
-5,
-1,
4,
45,
-11,
-9,
35,
2,
-75,
25,
1,
10,
14,
22,
0,
-45,
-29,
-18,
-2,
-6,
-70,
-45,
26,
18,
10,
27,
1,
11,
-7,
30,
65,
15,
-8,
23,
-11,
-20,
10,
18,
-13,
20,
14,
6,
23,
19,
20,
-10,
26,
-28,
-41,
6,
-17,
-9,
52,
2,
-3,
-54,
14,
-71,
-31,
64,
15,
14,
-6,
30,
-35,
-18,
-2,
-2,
28,
-32,
-4,
12,
1,
-34,
7,
16,
55,
-18,
10,
-4,
35,
-16,
-13,
36,
45,
34,
-64,
9,
-51,
6,
19,
21,
2,
-46,
-5,
-30,
14,
-45,
-3,
-37,
19,
40,
44,
24,
-4,
47,
-20,
43,
16,
-21,
6,
29,
67,
60,
1,
-40,
-20,
23,
-15,
-26,
-29,
-24,
4,
-20,
28,
-38,
12,
22,
-17,
-16,
25,
-39,
4,
8,
7,
-27,
76,
-46,
-10,
-14,
-7,
15,
20,
-5,
-12,
-1,
51,
36,
-23,
2,
-2,
0,
-43,
38,
-13,
-20,
3,
-8,
32,
-25,
1,
-17,
11,
-12,
-2,
1,
-60,
-47,
-22,
38,
-31,
-7,
7,
27,
6,
2,
5,
-27,
-48,
24,
57,
20,
-40,
-60,
-14,
-30,
56,
7,
-24,
31,
15,
16,
-69,
31,
-1,
7,
-38,
38,
28,
15,
-35,
19,
22,
-6,
35,
-8,
-11,
33,
-10,
14,
56,
2,
-1,
-56,
-36,
32,
60,
-4,
-30,
-9,
30,
25,
-24,
16,
-35,
-45,
68,
-21,
14,
42,
2,
2,
-53,
-54,
7,
-8,
9,
-5,
-7,
17,
7,
77,
35,
-49,
21,
0,
-27,
71,
13,
75,
-1,
18,
-24,
5,
3,
-42,
44,
34,
-37,
-6,
0,
0,
31,
29,
19,
-4,
-54,
58,
-13,
-26,
-15,
-37,
-14,
-6,
-42,
-16,
-12,
58,
-12,
38,
10,
18,
-54,
-18,
-7,
17,
15,
59,
42,
0,
9,
-25,
32,
15,
-15,
23,
17,
-28,
-34,
-28,
24,
47,
-21,
5,
-7,
40,
-8,
-21,
11,
-13,
16,
17,
52,
11,
6,
-6,
-2,
33,
-6,
-52,
-19,
12,
-8,
-13,
37,
1,
-33,
-36,
0,
6,
-6,
-21,
-12,
-66,
46,
-12,
-15,
-14,
-18,
15,
1,
-50,
49,
30,
-48,
-2,
0,
-25,
-52,
30,
-2,
-54,
7,
30,
12,
45,
24,
14,
-1,
-19,
22,
0,
-80,
10,
-43,
-20,
5,
3,
-8,
-58,
-10,
19,
29,
-23,
-22,
12,
1,
-31,
-9,
-18,
-5,
33,
13,
22,
31,
2,
0,
-6,
-15,
11,
-17,
8,
-40,
16,
6,
-25,
-7,
-7,
19,
-45,
-27,
-13,
-30,
-25,
-53,
10,
-16,
37,
-34,
-33,
-1,
-12,
52,
-25,
12,
-93,
-5,
14,
-55,
-37,
43,
38,
4,
-2,
23,
35,
37,
19,
-44,
-26,
8,
25,
6,
-9,
-16,
-31,
39,
-26,
33,
4,
18,
-60,
-28,
40,
-22,
1,
-8,
-44,
15,
20,
27,
12,
46,
-3,
-2,
-37,
13,
16,
-14,
-38,
-11,
-12,
-32,
-4,
-29,
30,
-5,
-21,
3,
32,
30,
5,
14,
1,
-19,
-65,
40,
27,
-22,
59,
28,
0,
-15,
0,
-17,
10,
-49,
-30,
-43,
1,
-12,
-21,
-53,
0,
16,
1,
-19,
0,
-9,
16,
-12,
-27,
78,
43,
0,
-61,
38,
-12,
23,
-35,
-39,
-43,
-63,
42,
-2,
-1,
53,
-30,
51,
17,
-57,
-23,
-47,
-2,
6,
20,
38,
15,
-19,
44,
16,
-17,
-7,
62,
20,
6,
-37,
-31,
15,
37,
-30,
-47,
12,
-21,
-2,
28,
-1,
-11,
-7,
8,
12,
18,
-26,
1,
51,
31,
-33,
-19,
21,
55,
9,
-4,
-26,
40,
20,
-75,
0,
-34,
-19,
-8,
52,
13,
12,
27,
13,
-39,
12,
27,
11,
29,
48,
-37,
44,
-16,
-33,
17,
30,
-11,
-57,
-1,
38,
-47,
-27,
-25,
-9,
24,
21,
-14,
-19,
36,
-22,
-10,
12,
-6,
-16,
54,
24,
83,
-17,
45,
29,
72,
-4,
1,
-31,
-13,
-6,
-45,
-26,
-30,
22,
-63,
30,
67,
-20,
-41,
-15,
-23,
-28,
-68,
1,
-32,
34,
-1,
-10,
-7,
24,
-8,
-51,
-9,
-10,
-17,
-53,
-64,
24,
-15,
-32,
40,
22,
43,
-9,
-8,
4,
-33,
-37,
36,
-4,
26,
-9,
7,
-69,
8,
19,
-22,
-10,
-40,
-25,
-7,
-14,
15,
2,
10,
13,
-54,
37,
-45,
6,
11,
-21,
-18,
32,
-6,
-5,
-6,
-67,
-12,
1,
-36,
-9,
7,
58,
23,
-35,
-6,
33,
-37,
0,
17,
31,
-58,
32,
-61,
41,
38,
37,
-2,
-3,
-36,
44,
0,
44,
8,
-5,
4,
-2,
-20,
3,
-6,
-10,
-43,
12,
-43,
-19,
-48,
-37,
15,
3,
-8,
-9,
-2,
-74,
-20,
0,
1,
20,
29,
52,
24,
49,
-20,
-64,
46,
-15,
-24,
-19,
45,
-26,
-36,
32,
-12,
-11,
49,
18,
-8,
-13,
-14,
-2,
41,
-23,
-31,
-27,
4,
44,
32,
-21,
-36,
15,
-12,
5,
12,
-26,
-29,
10,
-10,
-35,
-15,
28,
4,
-3,
6,
-17,
-16,
-31,
1,
1,
-21,
3,
-50,
-36,
27,
-6,
13,
-1,
-22,
-13,
27,
-73,
16,
55,
7,
-13,
5,
-32,
4,
-17,
36,
24,
7,
-11,
34,
57,
18,
-3,
70,
-17,
-13,
-60,
27,
-5,
-7,
14,
9,
-4,
18,
-37,
6,
4,
-45,
33,
15,
1,
-55,
0,
5,
10,
1,
-16,
5,
-6,
-44,
-25,
22,
28,
13,
-6,
-4,
-3,
13,
-62,
-16,
36,
45,
-51,
-19,
0,
-9,
-10,
38,
36,
-23,
37,
18,
-36,
16,
43,
-34,
-1,
-19,
44,
-34,
14,
10,
38,
8,
-22,
-11,
4,
17,
-36,
-13,
-29,
9,
-12,
12,
-20,
11,
-15,
21,
14,
-37,
0,
36,
-49,
34,
-17,
-19,
-31,
-19,
-11,
44,
-23,
-26,
37,
-21,
-16,
-3,
65,
46,
0,
15,
29,
1,
20,
20,
59,
-17,
33,
-17,
-8,
50,
14,
-17,
51,
12,
-20,
-49,
-33,
-24,
3,
3,
-33,
-9
] |
Per Curiam.
The trial court granted defendant hospital’s motion for accelerated judgment pursuant to GCR 1963, 116.1(2) on the ground that the court lacked subject-matter jurisdiction because the plaintiffs decedent, Maddalena Aluia, had entered into a binding arbitration agreement. Plaintiff appealed from the grant of accelerated judgment and the trial court’s findings that the plaintiff’s decedent was presumed to understand the agreement which she signed and that the medical malpractice arbitration act, MCL 600.5040 et seq.; MSA 27A.5040 et seq., was constitutional. This Court reversed the trial court, finding the act unconscionable and/or unconstitutional. (Docket No. 55819, decided August 20, 1982 [unreported].) The question of the validity of the agreement was not addressed by this Court. Defendant hospital filed an application for leave to appeal as cross-appellant to the Michigan Supreme Court. The application was held in abeyance pending decision in Morris v Metriyakool, 418 Mich 423; 344 NW2d 736 (1984). Thereafter, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, the decision of this Court was reversed by order of the Michigan Supreme Court and remanded to this Court for consideration of the remaining issue. 419 Mich 884; 347 NW2d 698 (1984).
The following facts are drawn from the pleadings and affidavits contained in the record. Maddalena Aluia was admitted into Harrison Community Hospital on August 10, 1978. At the time of admission she was given an arbitration agreement form and a patient arbitration information book let. Since she spoke very little English, her son translated what the admissions personnel said into Italian, her native tongue. She had a minor operation on August 15, 1978. Later that day she fell in the hospital and bruised her arm. Her condition deteriorated and on August 21, 1978, Maddalena Aluia died.
An affidavit by decedent’s son, Gene Aluia, states that he accompanied his mother to the hospital and translated what was said by the hospital personnel about the arbitration agreement for his mother. Gene Aluia stated that he did not fully understand what was being said and therefore he did not feel he could adequately convey what was said to his mother. An affidavit by Margaret Coughlin, the admissions officer at Harrison Hospital, indicates that she stated the following to Maddalena Aluia when she presented the arbitration agreement to her:
" 'This is the arbitration form — if you are familiar with it and care to sign it you may.
" 'Every doctor’s office and hospital in the State of Michigan must offer arbitration to it’s patients. All it says is — that if you are unhappy with the care you receive here, by signing this (indicating the paper) you have the right to arbitration. If you change your mind you have sixty (60) days after your discharge to cancel the agreement, in writing.’ ”
Coughlin further stated in her affidavit that if a patient did not understand English, the information would have been conveyed to a friend or relative who would have translated it for the patient.
The issue in this case is whether decedent may be presumed to have known the contents of the agreement she signed. The trial court answered this question in the affirmative.
We disagree with the trial court’s ruling and reverse. The issue here is whether plaintiffs decedent knowingly, voluntarily and intelligently waived her constitutional right to a jury trial by signing the arbitration agreement in question. Due to the peculiar factual context of this case and the important right to a jury trial which was waived by the agreement we do not believe that the matter may be summarily disposed of by use of the convenient presumption that a person always knows the contents of an agreement he signs. A factual dispute was raised here which made accelerated judgment improper.
The question of what constitutes a knowing, voluntary and intelligent waiver of the right to a jury trial when signing a medical malpractice arbitration agreement was not addressed in the Michigan Supreme Court justice’s opinions in Morris, supra. The lead opinion by Justice T. G. Kavanagh, in which he was joined by Justice Levin, briefly addressed the question of who must bear the burden of persuasion in showing the validity of the waiver. Morris, supra, p 439. Chief Justice Williams only addressed the issue of the constitutionality of the composition of the arbitration panels. Morris, supra, pp 442-443. Justice Ryan, joined by Justice Brickley, specifically declined to address this issue. Morris, supra, p 474. Justice M. F. Cavanagh limited his discussion to the composition of the panel in his dissenting opinion. Justice Boyle did not participate in the decision. The only issue squarely addressed in all of the opinions was the constitutionality of the composition of the arbitration panels. The opinions in Morris are therefore not dispositive of the issue now before this Court.
The case under consideration here was an action for accelerated judgment brought pursuant to GCR 1963, 116.1(2). A demand for jury trial had been made and affidavits were submitted pursuant to GCR 1963, 116.3. Defendant hospital claimed that jurisdiction was lacking because of the arbitration agreement. However, accelerated judgment is improper where a factual dispute exists on a material issue. Lefever v American Red Cross, 108 Mich App 69; 310 NW2d 278 (1981). It is reversible error for a trial court to engage in fact-finding when deciding a motion for accelerated judgment where a jury has been demanded. Baker v Detroit, 73 Mich App 67; 250 NW2d 543 (1976). In this case there was a material factual issue regarding the validity of decedent’s waiver of her right to a trial by jury when she signed the arbitration agreement. This factual issue was raised by the affidavit of Gene Aluia. His affidavit was not specifically rebutted by Margaret Coughlin’s affidavit and, therefore, should have been accepted as true by the trial court. Winsett v Donaldson, 69 Mich App 36; 244 NW2d 355 (1976); Empire Shoe Service, Inc v Gershenson, 62 Mich App 221; 233 NW2d 237 (1975). In reviewing motions for accelerated judgment, courts must accept all well-pled allegations of the nonmoving party as true. Kircos v Goodyear Tire & Rubber Co, 108 Mich App 781; 311 NW2d 139 (1981), lv den 414 Mich 971 (1982) (validity of release signed by plaintiff created a factual issue barring accelerated judgment under GCR 1963, 116.1[5]).
The factual issue is whether decedent intentionally waived her right to a jury trial. In Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938), it was stated that there must be an "intentional relinquishment or abandonment of a known right or privilege”. More recently in D H Overmyer Co, Inc, of Ohio v Frick Co, 405 US 174, 183; 92 S Ct 775; 31 L Ed 2d 124 (1972), the Court addressed the waiver of a constitutional right by contract and noted that more than contract law was involved in the case. In Overmyer the corporations, parties of equal bargaining power, had negotiated with the assistance of counsel over the inclusion of a confession of judgment clause waiving the petitioner’s right to notice and a hearing before respondent obtained a judgment. Applying the Johnson standard, the Court determined that the standard had been met due to the equal bargaining positions of the parties and the advice of counsel. See also, Fuentes v Shevin, 407 US 67, 94-96; 92 S Ct 1983; 32 L Ed 2d 556 (1972).
In this case there is a material dispute about whether there was an "intentional relinquishment or abandonment of a known right or privilege”. There can be no presumption that a party acquiesces to the loss of a fundamental right. Ohio Bell Telephone Co v Public Utilities Comm of Ohio, 301 US 292, 307; 57 S Ct 724; 81 L Ed 1093 (1937). Gene Aluia’s affidavit states that his mother did not speak English well and that he did not understand the information he was translating for her benefit. Moreover, the affidavit of Margaret Coughlin does not show that a knowing, intelligent waiver was made. Her affidavit merely indicates that admitting procedures would have included conveying the information to a relative who would have conveyed it to the decedent. These facts also beg a question: Was the information booklet translated for decedent’s benefit? The contents of the booklet are mandated by the medical malpractice arbitration act, MCL 600.5041(6); MSA 27A.5041(6). The brochure is an integral part of the agreement. Nothing in the record indicates that the brochure was translated for decedent’s benefit or that the contents of the agreement were fully explained to decedent. Nor does Coughlin’s affidavit indicate that the full agreement was explained. Coughlin’s affidavit merely states that she told the Aluias that arbitration must be offered and that the agreement could be canceled. Assuming that these statements were exactly translated for decedent’s benefit, there is still a material factual question about whether decedent was aware that she was giving up her constitutional right to a trial by jury. We believe that, based on the facts of this case, a sufficient factual question has been raised which made accelerated judgment improper.
We are aware of the significant authority which states that a party’s lack of understanding of the language and contents of a contract which is voluntarily executed is not, in the absence of fraud, grounds for avoiding it. 17 CJS, Contracts, § 139, p 885. It is well settled that where a person cannot read the language in which a contract is written, it is ordinarily as much his duty to procure someone to read it to him as it would be to read the agreement before signing, were he able to do so. Failure of a party to obtain a reading and explanation is ordinarily negligence which will estop the party from avoiding the contract on the ground that the party was ignorant of the contract’s provisions. 17 CJS, Contracts, supra, p 886. However, our examination of the cases in Michigan which have applied this rule shows that a waiver of a constitutional right has never been an issue in the contracts involved in those cases. Cleaver v Traders’ Ins Co, 65 Mich 527, 533; 32 NW 660 (1887) (suit to enforce an insurance contract); Warren v Federal Life Ins Co, 198 Mich 342, 353; 164 NW 449 (1917) (suit to recover premiums on an insurance policy); Gardner v Johnson, 236 Mich 258; 210 NW 295 (1926) (quantity term in a contract for sale of foxes in dispute); Sponseller v Kimball, 246 Mich 255, 260; 224 NW 359 (1929) (mortgage contract); Pakulski v Ludwiczewski, 291 Mich 502; 289 NW 231 (1939) (lease and promissory note terms in dispute); Leidel v Ballbach, 345 Mich 201; 75 NW2d 860 (1956) (suit to set aside a duly executed deed). It would be inappropriate to apply this rule to the waiver of a constitutional right. Fuentes, supra; Aetna Ins Co v Kennedy, 301 US 389, 393; 57 S Ct 809; 81 L Ed 1177 (1937).
This case is remanded for a hearing in conformity with GCR 1963, 116.3 to determine if decedent made a knowing, informed waiver of her rights when she signed the agreement.
Reversed and remanded for proceedings consistent with this opinion. We retain no further jurisdiction. | [
-1,
-14,
-39,
38,
-21,
-19,
9,
-17,
17,
0,
-10,
-5,
21,
-34,
10,
-7,
1,
-17,
-18,
-12,
-12,
4,
-43,
55,
16,
7,
88,
4,
34,
-3,
-15,
52,
13,
-9,
-38,
-27,
44,
-30,
12,
-10,
-14,
-6,
-7,
9,
-61,
5,
26,
1,
47,
-28,
15,
7,
-21,
3,
-12,
-7,
-19,
-26,
-29,
0,
-9,
2,
31,
-30,
32,
42,
55,
26,
4,
-16,
18,
13,
25,
-7,
5,
-11,
-37,
23,
-19,
-10,
28,
-24,
15,
-12,
-25,
0,
-10,
17,
-24,
12,
6,
-16,
-13,
-14,
-11,
73,
11,
-19,
45,
21,
-52,
21,
7,
14,
4,
2,
-10,
-22,
14,
-2,
-31,
7,
-61,
-29,
11,
42,
4,
52,
-43,
12,
-50,
16,
13,
43,
22,
21,
20,
10,
5,
-15,
-6,
29,
-49,
-4,
6,
28,
40,
-5,
81,
-15,
-19,
34,
26,
-6,
8,
10,
-9,
-64,
-47,
-66,
-10,
8,
27,
31,
20,
23,
6,
5,
-32,
41,
42,
-2,
17,
25,
-25,
-74,
17,
14,
34,
9,
26,
0,
33,
-33,
-37,
11,
-14,
-15,
-63,
39,
-33,
19,
26,
-20,
14,
-41,
21,
-48,
14,
-32,
-13,
-6,
-39,
61,
6,
35,
7,
20,
-1,
36,
-15,
26,
20,
12,
27,
26,
-29,
-33,
-21,
-11,
44,
-37,
-48,
-16,
40,
5,
31,
6,
-41,
26,
3,
21,
0,
10,
-4,
-6,
-20,
-32,
-7,
-88,
17,
-2,
-24,
8,
23,
55,
-2,
51,
28,
0,
-23,
25,
18,
20,
22,
4,
37,
-12,
15,
-3,
9,
0,
36,
-17,
-38,
-10,
12,
34,
-13,
-67,
-41,
22,
-71,
3,
-22,
59,
-10,
-4,
45,
-27,
-57,
-4,
12,
-38,
3,
-75,
-26,
0,
7,
32,
16,
-16,
-27,
14,
-24,
8,
-6,
27,
-58,
43,
64,
12,
-51,
-31,
74,
3,
16,
-53,
-49,
1,
0,
-5,
47,
51,
1,
-12,
-14,
43,
20,
-20,
15,
16,
11,
16,
19,
-32,
-40,
-37,
19,
-38,
7,
44,
-33,
6,
-28,
-36,
0,
-47,
-4,
13,
-46,
69,
14,
-32,
35,
-29,
-22,
25,
-18,
-29,
59,
31,
12,
23,
-28,
5,
-2,
-4,
9,
0,
-2,
0,
8,
1,
4,
15,
18,
12,
-23,
3,
-3,
-27,
-11,
-35,
-3,
69,
16,
11,
3,
52,
-22,
18,
-6,
-19,
-78,
-1,
25,
-20,
27,
69,
10,
17,
29,
-21,
22,
-3,
-52,
44,
36,
-31,
-52,
-57,
0,
32,
4,
46,
-1,
40,
0,
-54,
45,
22,
-16,
4,
32,
-9,
63,
-15,
-5,
4,
-5,
-8,
-13,
0,
9,
-10,
30,
-27,
11,
-70,
7,
10,
-14,
-32,
-43,
-37,
-10,
-15,
-3,
4,
-13,
22,
35,
-53,
65,
3,
-19,
35,
0,
37,
-6,
17,
-14,
-17,
-16,
-33,
10,
9,
-2,
-7,
40,
-4,
11,
7,
-55,
22,
-70,
14,
-15,
-27,
-59,
-65,
11,
2,
53,
-34,
21,
21,
42,
-50,
-57,
-10,
-24,
26,
40,
0,
-15,
18,
-43,
-23,
5,
20,
1,
-34,
-4,
39,
-14,
11,
0,
-36,
7,
-108,
-14,
28,
-37,
10,
27,
-10,
0,
-20,
-29,
0,
40,
15,
-1,
-56,
-21,
-58,
-10,
-27,
-81,
-48,
39,
51,
-1,
3,
22,
-39,
-12,
45,
-16,
18,
-37,
-21,
25,
-26,
-9,
-8,
21,
-39,
21,
39,
14,
-57,
-24,
-1,
-44,
28,
8,
0,
-10,
36,
-14,
-7,
-24,
-16,
7,
-20,
36,
47,
44,
-40,
-21,
-53,
8,
-4,
16,
18,
16,
-29,
-16,
57,
5,
28,
12,
15,
-6,
-62,
49,
29,
-7,
47,
-4,
24,
-14,
-33,
40,
27,
-35,
-12,
-5,
13,
-36,
12,
-54,
9,
7,
-2,
-30,
-25,
-63,
-20,
6,
-23,
62,
-5,
-12,
-44,
27,
-7,
29,
-27,
-8,
8,
-26,
37,
31,
0,
12,
-61,
19,
-25,
-57,
-13,
-50,
-9,
3,
23,
16,
51,
-32,
92,
-12,
5,
-24,
35,
-19,
11,
6,
26,
7,
-14,
23,
-54,
-39,
0,
-11,
38,
-22,
-21,
-21,
28,
26,
-19,
3,
-18,
52,
-62,
-34,
28,
-22,
64,
-46,
3,
-3,
25,
47,
-3,
-25,
22,
1,
-4,
17,
34,
35,
45,
70,
12,
-18,
15,
-21,
55,
28,
-13,
50,
2,
17,
52,
84,
27,
-67,
6,
15,
-36,
8,
-2,
-21,
58,
-4,
43,
-11,
6,
10,
14,
22,
-25,
-8,
64,
10,
23,
-15,
59,
-55,
13,
-36,
22,
1,
-8,
-1,
-65,
-13,
-52,
-14,
-5,
3,
61,
-6,
22,
20,
-44,
-73,
-53,
11,
-33,
37,
-3,
19,
36,
11,
-24,
0,
-56,
24,
40,
4,
-43,
12,
-14,
-36,
26,
11,
50,
-26,
31,
-17,
-43,
-18,
35,
-13,
-13,
-9,
15,
-38,
10,
-33,
-36,
20,
-26,
19,
33,
-57,
41,
-22,
25,
-10,
-28,
-20,
27,
6,
-2,
12,
-3,
45,
-3,
-38,
-28,
-37,
-38,
-30,
-44,
12,
-5,
1,
-9,
5,
-29,
31,
-19,
-24,
41,
2,
-11,
15,
6,
47,
1,
-5,
-51,
-75,
-31,
59,
0,
30,
21,
24,
-12,
-36,
-28,
-7,
37,
-5,
-28,
13,
-32,
-11,
-6,
-38,
-37,
-12,
10,
33,
-20,
-47,
-22,
15,
-22,
50,
9,
-32,
11,
10,
11,
-38,
0,
11,
-14,
25,
-35,
-19,
-33,
-6,
-32,
-1,
38,
13,
-13,
-9,
38,
14,
22,
0,
-35,
-7,
13,
44,
-21,
21,
-56,
3,
-20,
0,
-6,
-59,
-32,
4,
71,
-25,
18,
-13,
0,
-31,
-54,
-12,
-9,
-31,
-23,
-5,
-29,
23,
21,
5,
-29,
-26,
-15,
-3,
21,
-26,
23,
-80,
15,
29,
24,
15,
1,
-35,
5,
-26,
10,
5,
37,
1,
29,
-6,
-10,
-12,
56,
-16,
-12,
-13,
38,
-1,
26,
-18,
10,
-24,
77,
19,
-24,
-12,
-36,
20,
33,
-23,
-29,
29,
18,
2,
28,
-24,
21,
17,
-9,
-3,
-7,
7,
-3,
-2,
10,
-8,
35,
4,
15,
34,
12,
0,
-3,
41,
-31,
26,
-6,
23,
-14,
-27,
20,
-50,
53,
35,
19,
-42,
24,
-1,
-35,
-4,
6,
33,
-49,
-26,
12,
22,
-26,
-19,
-3,
-20,
-14,
13,
-25,
18,
37,
28,
-15,
-12,
-15,
-20,
62,
-32,
-10,
-32,
-37,
-30,
-46,
54,
-43,
-38,
-14,
57,
37,
3,
-42,
46,
23,
18,
-2,
27,
48,
-5,
-40,
-1,
-79,
46,
13,
11,
54,
48,
-13,
21,
20,
-56,
-36,
3,
-7,
-20,
-11,
-29,
-29
] |
Per Curiam.
In the first of these two consolidated appeals (docket #65391) the defendants, owner/operators of an adult bookstore in Ann Arbor, appeal from an injunctive order of the Washtenaw County Circuit Court which has the alleged effect of putting them out of business. They claim that the city ordinance upon which the injunctive order was based is invalid because of improper procedures in its adoption and because of several constitutional infirmities. We reverse and vacate the injunction on the procedural grounds and, therefore, do not reach the constitutional issues. We find that the ordinance is void because it was never lawfully adopted.
In the second appeal (docket #66991), one of the defendants’ principals (Shoultes) and one of their attorneys (Lippman) were convicted of contempt for violation of the injunction and were sentenced by the trial court for such alleged violations. We affirm as to Shoultes, but modify the sentence. We reverse as to Lippman.
I
The Ordinance
Section 5:50 of Chapter 55 of Title V of the Code of the City of Ann Arbor was, according to the city, adopted on February 23, 1978. A trial exhibit contains a certification from the Deputy City Clerk that the ordinance was adopted on that date and remains in effect.
This portion of the zoning ordinance defines adult entertainment businesses, adult bookstores, adult motion picture theatres, adult mini motion picture theatres, and adult personal service businesses. The ordinance restricts the location of such businesses. Other sections of the ordinance regulate their operation. Since we hold the ordinance invalid on procedural grounds, we need not describe its provisions in detail except to the extent required by an analysis of the issues pertaining to the violation of the injunction in Section IV of this opinion.
II
Adoption of the Ordinance
Cities may provide by ordinance for the manner in which "regulations and boundaries of districts or zones shall be determined and enforced or, amended, supplemented, or changed”. MCL 125.584; MSA 5.2934. The foregoing section further provides that a public hearing shall be held after 15 days’ notice of the time and place of the hearing has been published. In cities having a population of 25,000 or more, the legislative body of the city may appoint a commission to recommend in the first instance the boundaries of districts and appropriate regulations to be enforced therein. The commission is required to make a tentative report and hold public hearings prior to filing a final report. In any city having a population of 25,000 or more, the legislative body may not determine the boundaries of districts or impose regulations until after the final report of the commission, and the hearing before the legislative body shall not take place until the final report of the commission has been received; nor may amendments be made until proposed amendments have been submitted to the commission and it has made its report to the legislative body.
This statute is the enabling act which authorizes cities to adopt zoning ordinances and amendments thereto. The City of Ann Arbor is a city with a population in excess of 25,000. It has a City Planning Commission and it is bound by the statute. In Boron Oil Co v Southfield, 18 Mich App 135; 170 NW2d 517 (1969), we held that where there has been a failure to comply with the requirements of the statute with regard to the holding of public hearings, any ordinance adopted in the absence of such compliance is void. In this case we hold that the language of the statute with regard to the filing of the final report of the City Planning Commission is equally mandatory and that violations of such provisions render an ordinance adopted in the absence of the statutorily mandated report void. To hold otherwise would permit city planning commissions to set a formal hearing, open and close the hearing without evaluating the ordinance and do nothing with regard to preparing or rendering a report, thereby permitting the legislative body of the city to proceed without the benefit of the statutorily mandated report from the commission.
In the instant case, a second amended complaint was filed by the city against defendant Shoultes. In his answer Shoultes alleged as an affirmative defense that "[t]he ordinance in question is void for the reason that it was adopted contrary to the terms of the enabling acts of the State of Michigan”. Although the answer was filed only three days prior to trial, the trial took place during the course of several non-continuous days over a period of several months, the last day of trial having been held some four months after the first. No motion was made to strike the answer for tardiness nor was the default of defendant Shoultes taken for failure to file a timely answer. The trial proceeded on the pleadings as they had been filed immediately prior to trial. We are satisfied that the city had adequate notice of the issue of the validity of the ordinance, i.e., regarding its failure to comply with the enabling statute.
At the trial, an exhibit was admitted into evidence indicating that a City Planning Commission public hearing was held December 13, 1977, at which the following motion was made:
"The Ann Arbor City Planning Commission hereby recommends that the Mayor and City Council approve the Technical Amendment to Chapter 55, Section 5:50 of the Code of the City of Ann Arbor [i.e., the relevant portions of the zoning ordinance in issue in this case].”
The staff of the City Planning Commission recommended approval. The minutes of the December 13 meeting indicate that a motion to table the matter was duly made and seconded. Commissioner Thomas said that he believed that the purpose of the ordinance was to protect the young from adult entertainment, but that the ordinance did not do that since it did not include clear descriptions. Another commissioner stated that she did not feel equipped to make revisions, and suggested that "zoning be separated from the licensing regulation”. Comments were made that the ordinance did not include all residential zones. After discussion, a vote on the motion to table indicated six votes in favor, none opposed, with two commissioners absent.
Thereafter, on February 23, 1978, the City Council held a meeting at which the "technical amendment to Chapter 55, section 5:50 regarding ordinance regulating adult entertainment” was adopted. The minutes of another City Planning Commission meeting, held five days later, indicate that there was no report of the commission on § 5:50.
This evidence was unrebutted and stands as the uncontroverted testimony that those portions of the ordinance which regulate defendants’ business were adopted without the necessary report having been filed by the City Planning Commission. Accordingly, the ordinance is void. The opinion of the trial court which held it to be valid is in error.
Defendants also argue that the City of Ann Arbor violated that portion of MCL 125.584; MSA 5.2934 which requires 15 days notice of a hearing before the city legislative body. On appeal, defendants argue that answers to interrogatories indicate that there was only a ten-day period. Plaintiff responds that the answers to interrogatories were never properly admitted into evidence. We need not address this issue since we hold in this opinion that the ordinance is void by reason of the failure of the City Planning Commission to make a final report prior to the hearing before the City Council. Presumably, if a new ordinance is adopted, city officials will follow the notice procedures mandated by the statute. The circuit court could have taken note of the answers to interrogatories in its file. OCR 1963, 309.4. If a finding had been made that the 15-day rule had been violated by the City Council, this would have been a further ground for invalidating the ordinance. To the extent that the ordinance was an attempt to remedy an important social problem, we are disturbed that the council failed to follow the proper procedures for enacting local legislation. These procedures are designed to protect the public against hastily adopted ordinances rushed through without giving the public time to react. Regardless of the merits of the legislation, we must hold ordinances void which violate these procedures.
We can no more approve of an ordinance adopted in the circumstances of this case than we could approve of legislation adopted by only one house of the Legislature. In the latter case, it is the Constitution which describes the legislative process; in the former it is the Legislature. We are required to follow the mandates of both.
Ill
Constitutional and Evidentiary Issues
Defendants have raised several issues relating to the validity of the ordinance on constitutional grounds, e.g., the presumption of invalidity of an ordinance regulating a First Amendment right, whether the ordinance is unconstitutionally vague in its language, and whether the limitations as to locations where adult businesses may be established are unconstitutionally restrictive. We need not address these issues since we find that the ordinance was void ab initio on procedural grounds. If a new ordinance is adopted, constitutional defects can be addressed in a proper manner by the City Planning Commission and the City Council. We note that the City Planning Commission had questions regarding the vagueness of the ordinance. If a final report had been submitted to the City Council, such problems might very well have been addressed by the council and remedied. The requirement of a report from the City Planning Commission has a purpose. The consequences of the lack of such a report are made evident by the circumstances of this case.
Defendants also raise issues relating to whether their business properly fits within the definitions of the ordinance. We need not address those issues since we find the ordinance to be void. Although we do not address such issues in detail, they are of some relevance in determining whether Shoultes and his attorney, Lippman, can be found guilty of contempt for violating the injunction. To the extent that they relate to that issue they will be discussed below.
Similarly, since the ordinance is void ab initio, we need not address the issue raised by defendants that the city failed to present adequate evidence at trial to justify an infringement on First Amendment rights under the requirements of Young v American Mini Theatres, Inc, 427 US 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976).
IV
Violation of the Injunction
A. The Injunction
The injunction of the Washtenaw County Circuit Court, dated June 28, 1982, provides:
"It is hereby ordered, that said nuisance be abated, and that the defendants Danish News Co., X.O.N. Development Corporation, Executive Art Studio, Inc., and Terry Shoultes, and their agents, employees, officers, servants, and persons in active concert or participation with them who receive notice of this order be and hereby are permanently enjoined and restrained from operating an adult entertainment business, as defined by Section 5:50 of the Ann Arbor City Code, at 209 North Fourth Avenue, Ann Arbor, Michigan, or elsewhere within the said City of Ann Arbor, other than in a C2A zone and in compliance with said Code.”
Although we have held the ordinance upon which the injunction was based to be void, nevertheless, an order entered by a court of proper jurisdiction must be obeyed even if it is clearly incorrect. City of Troy v Holcomb, 362 Mich 163; 106 NW2d 762 (1961). See also, State Bar of Michigan v Cramer, 399 Mich 116; 249 NW2d 1 (1976), "[pjersons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.” Cramer, p 125, citing Howat v Kansas, 258 US 181; 42 S Ct 277; 66 L Ed 550 (1922).
B. Jurisdiction of the Circuit Court
Defendant Shoultes argues that the circuit court lacked jurisdiction to hear the contempt issue since a claim of appeal had already been filed in the Court of Appeals and that, therefore, the circuit court was divested of jurisdiction. We hold that after an appeal is taken from an injunction, the court which issued the injunction has the power to punish disobedience of the order in a contempt proceeding.
GCR 1963, 530.3 provides that when an appeal is taken from an injunction, the court may suspend, modify, restore or grant an injunction pending appeal. This rule has been interpreted to mean that the suspension of an injunction depends upon the discretion of the trial court, Catsman v Flint, 18 Mich App 641; 171 NW2d 684 (1969). A Supreme Court decision which precedes the 1963 General Court Rules by many years held that, although the effect of an appeal is to bring a case into the appellate court, an injunction is not dissolved pending appeal and it may not be ignored. Wilkinson v Dunkley-Williams Co, 141 Mich 409; 104 NW 772 (1905).
"The automatic stay is not applicable in actions for injunctions, and in such actions the judgment, whether interlocutory or final, may be stayed only by order of court.
"* * * [GCR 1963, 530] recognizes that the trial court is often better equipped to formulate and enforce an order of the kind required to preserve the status quo.” 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 304-305.
C. Initiation of Contempt Proceedings
The Ann Arbor City Attorney filed a "motion for arrest for contempt”. The motion contained a prayer for the arrest of Shoultes for "his contemptuous disregard of the June 28, 1982, order of this Court set out in the attached affidavit”. The affidavit of a Robert Flynn recites that on August 23, 1982, and August 24, 1982, the premises at 209 North Fourth Avenue in Ann Arbor were visited. Two signs were observed in the window which read, "Re-Opening In Violation Of Court Order” and "We will be reopening this store on August 23 at 12 o’clock noon”. Shoultes was observed on the premises. The affiant viewed booths on the premises and was advised that "the peep shows would not be installed until the evening of August 24, 1982, and that within a few days the business would be selling a full line of the latest 'hard core’ films”. Affiant purchased five magazines and two books, viewed the covers and titles of other maga zines and books and concluded that the majority of the products available for purchase consisted of books and magazines which were "charactered by their emphasis on portrayals of human genitals and pubic regions or acts of human masturbation, sexual intercourse, or sodomy”.
Based on the motion and affidavit, the court issued an order to Shoultes to show cause "why he should not be adjudged in contempt of this court as it is alleged”. Following service of the order, Shoultes’ attorney filed a response which referred to the proceedings as criminal in nature. The attorney also filed a demand for a jury trial.
D. The Nature of the Contempt Proceedings
Defendants argue that the motion and order to show cause do not clearly identify the contempt proceedings as being criminal in nature and that, therefore, the circuit court was without authority to impose the criminal penalty of 19 days in jail and a fine of $250 for each of the 19 days. In view of the events prior to the trial on the contempt issue, we hold that the defendants had adequate notice that these proceedings were criminal in nature. People v Johns, 384 Mich 325; 183 NW2d 216 (1971), holds that criminal contempt is a crime in the ordinary sense and that the proceedings must comport with the standard of due process applicable in all criminal proceedings. A defendant cannot be found guilty of criminal contempt when the proceedings lacked any semblance of a criminal trial, the sentence had elements of both civil and criminal contempt and defendant could have reasonably expected that he was being held in civil contempt.
In the instant case, the court found defendants guilty of both civil and criminal contempt and, arguably, the pleadings could be interpreted to be either civil or criminal in nature. However, prior to the hearing, the store had been closed, eliminating any possibility of civil contempt. The response filed by Shoultes’ attorney characterized the proceedings as being criminal in nature. Moreover, defendants filed a demand for jury trial. There would be no right to a jury trial in any civil contempt proceeding. We held in Fraternal Order of Police, Lodge #98 v Kalamazoo County, 82 Mich App 312; 266 NW2d 805 (1978), that one who comes into court reasonably believing that he is about to be tried for civil contempt cannot be punished for criminal contempt at the conclusion of the hearing. A defendant charged with contempt is entitled to be informed as to whether the contempt proceedings filed against him are civil or criminal. In the instant case, where Shoultes and his counsel clearly believed from the pleadings and the factual context of the case that they were about to participate in a criminal contempt hearing, we believe that there was no denial of due process. However, we caution the bar that where contempt proceedings are initiated, the better practice would be to clearly define in the pleadings the nature of the relief requested. The failure of the city attorney to do so in this case required the above analysis which would not have been necessary had counsel proceeded in a less ambiguous fashion.
E. Right to Jury Trial
Shoultes claimed that he was entitled to be tried on the contempt issue by a jury. The court denied him this right and proceeded to hear the matter as a bench trial. The Michigan Supreme Court has held that a party has no right to a jury trial in contempt proceedings. Cross Co v UAW Local No 155 (AFL-CIO), 377 Mich 202; 139 NW2d 694 (1966). Nevertheless, the United States Supreme Court has held that there is a constitutional right to trial by jury for serious criminal contempts. Bloom v Illinois, 391 US 194; 88 S Ct 1477; 20 L Ed 2d 522 (1968). The Bloom decision apparently indicates that the guarantee of a jury trial applies neither to criminal contempts which are merely petty offenses nor to civil contempts.
In the instant case, we hold that this was a petty offense, punishable by a $250 fine or imprisonment for up to 30 days, or both, under MCL 600.1715(1); MSA 27A.1715(1). Criminal contempt in Michigan has been defined as "petty” on the grounds that the penalty does not exceed six months imprisonment. People v Goodman, 17 Mich App 175; 169 NW2d 120 (1969). Furthermore, in the instant case, the city attorney has conceded that the six-month penalty allowed in MCL 600.3820; MSA 27A.3820 does not apply in this case. Therefore, there was no right to a jury trial. We note again that the demand for a jury trial filed herein clearly evidences knowledge on the part of defendants and their attorney that this was a criminal contempt proceeding.
F. Conviction of Attorney Lippman
Given the holdings of Johns, supra, and Kalamazoo County, supra, we conclude that Lippman was denied fundamental due process in his conviction of criminal contempt. The motion and order to show cause were not directed to Lippman and he was not informed in advance of the hearing that he was to be called upon to defend himself in a contempt action. He appeared as a witness on behalf of Shoultes and was found guilty of contempt by the court as a result of his testimony. If a witness appears in court in a criminal case and his testimony reveals the commission of a crime, he has the right to a separate trial and may not be convicted at the hearing where he has appeared as a witness. Since a criminal contempt proceeding is a criminal case, the same rule applies. This was not a contempt committed in the court’s presence. Rather, evidence of Lippman’s alleged out-of-court contempt was revealed at Shoultes’ trial. If the city wished to then proceed against Lippman, it should have initiated a new contempt proceeding. His conviction is vacated.
G. Sufficiency of the Pleadings and Evidence as to Shoultes
Shoultes argues that the pleadings do not clearly identify him as being in violation of the injunction. This case had proceeded in the Washtenaw County Circuit Court for a period of years prior to the allegations of contempt. The record was filled with evidence that Shoultes was an owner and operator of the store in question. The contempt pleadings do not state that Shoultes was an owner but merely indicate that Shoultes was present on the premises at the time the affiant appeared. Since Shoultes had previously been identified in court records as an owner, he was not denied due process as a result of the affidavit which recited his presence without specifically stating that he was a principal.
The ordinance defines adult entertainment businesses and adult bookstores as businesses or establishments having as their principal activity the sale of various items which are characterized by their emphasis on portrayal of human genitals and pubic regions or acts of human masturbation, sexual intercourse or sodomy. Although the testimony indicates that Shoultes appeared to have engaged in some redesign of his store after the injunction was issued, by bringing in merchandize such as underwear, other articles of clothing and reading material which was sold in drug stores and bookstores, we find that there was sufficient evidence in the record to justify a holding by the circuit court that, for the 19 days that the bookstore was opened after the issuance of the injunction, the store was operated in violation of the injunction since its principal activity was in the category proscribed by the ordinance.
First, a sign in the window clearly stated that the bookstore was being reopened in violation of a court order. The court order enjoined reopening in violation of the ordinance. The ordinance prohibits operation of a store which has as its principal activity the sale of clearly defined pornographic materials. This is clear evidence that Shoultes, an owner and operator of the store, knowingly violated the injunction.
Other evidence indicated that the display area of the store prominently featured sexually explicit magazines, books and films, including items depicting matters prohibited in the ordinance. We have examined the exhibits and the testimony and we conclude that there was enough evidence before the circuit judge for him to find Shoultes guilty of criminal contempt.
H. The Sentence of Shoultes
The statute under which Shoultes was convicted, MCL 600.1715(1); MSA 27A.1715(1), provides as follows:
"Punishments for contempt may be by fine, which shall in no case exceed the sum of $250.00 or by imprisonment, which except in those cases where the commitment is for the omission to perform an act or duty which is still within the power of the party to perform shall not exceed 30 days, or both, in the discretion of the court.”
The court sentenced Shoultes to 19 days in jail, "that’s one day in jail for each day that [you were] open”, and a $250 fine for each of the 19 days. The court also indicated that if the fine were not paid by the 19th day, Shoultes would remain in jail for an additional six months.
The City of Ann Arbor concedes that the alternative jail sentence of six months is not authorized by the statute and must be stricken. Furthermore, under Catsman v Flint, supra, the fine of $250 per day for 19 days is suspect. There, the Court concluded that the statute limits the amount of a fine possible for a single finding of contempt to the maximum of $250.
Shoultes argues that, like the fine, the jail term cannot be multiplied by 19 days. However, the statute allows a sentence of up to 30 days and, therefore, a jail term of less than 30 days would be appropriate. The statement by the trial court that it was imposing a jail term of one day for each of the 19 days that the store remained open in violation of the injunction was, in our view, nothing more than a statement by the court of the reason that a 19-day term was imposed rather than the full 30 days which are permitted.
Shoultes is correct in that there was only one finding of contempt and that the sentence could not exceed 30 days or $250 or both. However, Catsman, supra, clearly establishes that the fine could not be more than a maximum of $250. If the City of Ann Arbor were correct that the fine could be $250 for each day, it would also follow that the jail term could be 30 days for each day the store remained open. If that were true, this would not be a petty criminal contempt and Shoultes would have been entitled to a jury trial. Since we have held that this was a petty criminal contempt, logic compels us to conclude that both penalties provided for in the statute indicate a maximum penalty and that, therefore, the fine imposed upon Shoultes cannot exceed $250.
We, therefore, modify the sentence by eliminating the alternative six-month term imposed by the court, and by limiting the fine to $250. The 19-day jail term is affirmed.
The judgment and order in docket #65391 is reversed and the injunction is vacated.
The judgment and order in docket #66991 is reversed as to Lippman and affirmed in part and reversed in part as to Shoultes. | [
-25,
14,
34,
-9,
-42,
7,
-24,
-7,
-34,
41,
-14,
-1,
6,
35,
18,
-30,
-13,
30,
-23,
25,
-5,
4,
-5,
31,
-22,
-41,
33,
-23,
16,
-20,
0,
-40,
49,
29,
31,
42,
7,
50,
67,
-23,
-15,
-12,
-23,
-36,
-37,
-14,
50,
15,
36,
-58,
-52,
12,
-45,
14,
-41,
-47,
-26,
-32,
13,
23,
-7,
39,
-5,
29,
54,
-22,
-10,
14,
38,
-7,
12,
-10,
-8,
-51,
21,
-13,
-6,
-10,
-17,
17,
-8,
5,
9,
-26,
-21,
16,
-6,
13,
21,
-42,
-9,
-42,
-25,
-33,
1,
58,
-6,
-36,
24,
-99,
5,
6,
-8,
46,
-33,
-3,
-14,
-4,
26,
-32,
29,
-15,
2,
-32,
7,
-15,
5,
2,
17,
19,
34,
25,
-10,
30,
52,
-7,
44,
-7,
-39,
-11,
-4,
55,
16,
24,
31,
36,
11,
23,
29,
-2,
65,
-1,
43,
26,
18,
-31,
-14,
36,
-16,
-26,
-32,
-12,
34,
30,
-17,
34,
15,
-27,
52,
37,
17,
21,
-28,
2,
-14,
-44,
-17,
4,
-11,
20,
31,
-14,
6,
-31,
8,
-24,
-29,
22,
2,
-51,
-62,
-16,
-24,
-46,
-4,
2,
12,
-77,
-8,
-13,
25,
-33,
3,
5,
43,
26,
16,
58,
14,
3,
-36,
-10,
-18,
8,
17,
-30,
11,
12,
-57,
25,
-40,
-9,
-25,
13,
58,
-16,
-48,
-18,
-2,
15,
19,
-16,
-6,
6,
-22,
-32,
36,
-3,
2,
4,
24,
-17,
53,
-1,
20,
-7,
28,
55,
69,
27,
-15,
61,
-37,
1,
-33,
-1,
24,
-16,
13,
-11,
2,
-16,
11,
-2,
-25,
-9,
-45,
23,
-64,
4,
74,
10,
-19,
-1,
-31,
14,
-12,
14,
-72,
13,
-62,
44,
0,
17,
-7,
3,
-22,
8,
51,
-2,
-31,
-14,
20,
3,
13,
63,
2,
23,
14,
30,
5,
29,
-90,
27,
43,
-7,
-31,
-36,
11,
9,
-12,
16,
-1,
66,
5,
-5,
-25,
10,
29,
-51,
-20,
-38,
-13,
13,
-13,
-38,
9,
12,
70,
-23,
0,
-12,
3,
17,
-72,
-45,
72,
-22,
11,
-39,
29,
-3,
-37,
-1,
5,
39,
9,
-65,
-80,
-9,
39,
-51,
43,
7,
26,
34,
-11,
4,
31,
-49,
-17,
19,
-8,
1,
-2,
-21,
4,
-46,
-31,
61,
24,
28,
4,
-11,
-10,
47,
12,
29,
35,
34,
-75,
-1,
-44,
33,
9,
-11,
-20,
0,
31,
30,
0,
-44,
22,
-1,
40,
-5,
-5,
-46,
-26,
-22,
-31,
-9,
13,
-12,
-17,
-23,
-2,
22,
23,
9,
-11,
5,
-4,
9,
11,
-10,
21,
22,
25,
16,
3,
18,
3,
-34,
-46,
60,
11,
-56,
11,
-4,
-41,
-2,
-23,
-20,
2,
-19,
-17,
0,
30,
49,
-40,
0,
22,
-41,
-28,
-24,
-12,
-5,
-21,
30,
-24,
5,
-55,
-15,
-23,
-59,
-4,
11,
6,
7,
55,
27,
-6,
-53,
-22,
21,
5,
24,
6,
-40,
31,
-32,
-62,
15,
-8,
-10,
-33,
-19,
-24,
-43,
-26,
13,
-4,
19,
-17,
-4,
0,
25,
-40,
33,
23,
31,
9,
-2,
-23,
16,
4,
13,
-57,
60,
0,
27,
5,
36,
39,
14,
-26,
-2,
31,
38,
32,
-8,
-42,
6,
12,
-9,
-9,
2,
-7,
7,
-25,
0,
19,
33,
-36,
15,
-3,
-35,
1,
5,
-47,
0,
-22,
-5,
16,
36,
6,
-6,
-7,
11,
17,
6,
-18,
-30,
31,
3,
0,
-14,
21,
21,
1,
14,
-13,
31,
35,
-8,
-6,
-40,
42,
-10,
-42,
-7,
-61,
-46,
11,
23,
-36,
31,
15,
8,
-39,
28,
20,
-21,
81,
20,
-5,
-36,
15,
44,
0,
-16,
21,
-31,
30,
-24,
14,
-35,
-3,
14,
6,
13,
-33,
-14,
10,
-38,
2,
1,
11,
-33,
28,
29,
-13,
-6,
9,
-6,
-12,
-11,
53,
0,
-17,
28,
-6,
-12,
-16,
-64,
-25,
-20,
-8,
-45,
6,
-40,
-39,
-12,
5,
30,
12,
9,
15,
33,
-26,
0,
11,
21,
33,
-21,
-11,
-12,
-12,
45,
-13,
-9,
57,
-2,
-13,
32,
31,
34,
2,
-10,
-56,
22,
-26,
-15,
32,
32,
23,
8,
-1,
27,
18,
58,
34,
-20,
32,
-41,
-22,
-40,
36,
-16,
-10,
1,
-44,
49,
-12,
4,
-16,
13,
9,
-3,
21,
70,
26,
1,
11,
-13,
-46,
-5,
1,
36,
-50,
24,
-14,
-14,
-13,
5,
9,
-14,
-7,
12,
19,
-13,
13,
-18,
0,
7,
-47,
42,
-14,
12,
-23,
57,
5,
24,
-84,
16,
-4,
0,
2,
13,
-14,
-31,
23,
12,
-10,
-8,
31,
-15,
0,
-2,
4,
-17,
-46,
-42,
25,
0,
17,
-30,
34,
10,
-2,
-1,
35,
-42,
-4,
51,
-17,
23,
40,
-12,
23,
-12,
-19,
-46,
-15,
-24,
-4,
14,
-29,
1,
-14,
-20,
-4,
-17,
-52,
-14,
11,
10,
1,
22,
-30,
-36,
11,
62,
-1,
-11,
29,
-7,
10,
-21,
27,
-26,
0,
-35,
-4,
-24,
-26,
6,
-12,
-16,
-21,
-27,
0,
22,
12,
-15,
-1,
-11,
3,
-16,
-11,
-37,
2,
-19,
-15,
60,
-6,
8,
45,
-18,
8,
38,
-5,
-6,
-41,
46,
-100,
-33,
8,
-1,
9,
-29,
-15,
-1,
70,
8,
-9,
-12,
-36,
-56,
11,
32,
-17,
-17,
-13,
-13,
52,
-57,
38,
-10,
76,
0,
-2,
9,
-47,
4,
21,
39,
46,
-8,
-33,
10,
-35,
0,
3,
32,
-8,
14,
6,
-39,
-5,
-16,
11,
-29,
62,
37,
-11,
-11,
1,
40,
2,
47,
-22,
-26,
-36,
3,
-23,
6,
7,
38,
-27,
17,
39,
-33,
0,
-18,
-25,
-20,
-36,
-18,
29,
-18,
12,
-25,
4,
15,
-33,
45,
-13,
0,
55,
21,
-10,
75,
-31,
18,
-31,
18,
27,
-60,
-10,
13,
16,
5,
-2,
29,
5,
32,
-46,
15,
-20,
-5,
3,
8,
13,
-11,
-20,
-9,
-13,
-16,
28,
13,
-7,
5,
-86,
12,
-31,
12,
-9,
19,
4,
-13,
4,
0,
-19,
-20,
43,
1,
17,
15,
-79,
8,
3,
-7,
8,
-28,
-59,
42,
-12,
-43,
-30,
4,
11,
16,
-42,
45,
-33,
23,
-53,
-14,
0,
28,
48,
-14,
-6,
4,
34,
7,
4,
10,
-52,
4,
35,
35,
-30,
39,
1,
23,
46,
3,
-6,
-40,
36,
-5,
13,
36,
10,
51,
-1,
-31,
25,
-37,
21,
-35,
-81,
-15,
-49,
25,
12,
7,
38,
14,
13,
-4,
6,
-2,
3,
-79,
-22,
34,
-31,
24,
44,
28,
26,
-17,
0,
37,
-39,
-15,
-13,
16,
-42,
7
] |
M. J. Kelly, J.
Plaintiff appeals as of right from an order of summary judgment in the garnishee defendant’s favor regarding the amount the garnishee defendant is liable for under the residual liability clause of an automobile insurance policy issued pursuant to the Michigan no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. We reverse.
The relevant facts are not in dispute. Arlene Nichols was killed and Brian and Samuel Nichols were seriously injured in an automobile collision that occurred on May 7, 1978. Jack Karpenko negligently drove the other vehicle involved in the accident. That vehicle was owned by his wife, Virginia Karpenko, who was also a passenger at the time of the collision. Both Karpenkos were killed in the collision.
Plaintiff, Samuel Nichols, individually and as administrator of the estate of Arlene Nichols, deceased, filed suit against the administratrices of the two Karpenko estates and the Karpenko’s insurer, the garnishee defendant, seeking recovery under two separate insurance policies issued by the garnishee defendant, Auto Club Insurance Association. Virginia Karpenko had insured the involved vehicle with the garnishee defendant under a policy providing maximum residual liability coverage at $20,000 per person and $40,000 per incident. Jack Karpenko, driver of the involved automobile and owner of another automobile which was not involved in the collision, had insured his vehicle with the garnishee defendant under a policy providing maximum residual liability coverage of $50,000 per person and $100,000 per incident.
The garnishee defendant does not dispute plaintiffs right to collect under both policies. In DAIIE v Widling, 114 Mich App 6; 318 NW2d 551 (1982), lv gtd 417 Mich 1037 (1983), this Court considered an exclusionary clause identical to the non-owned automobile clause contained in Jack Karpenko’s policy and held that it was unenforceable under the rationale of State Farm Mutual Automobile Ins Co v Ruuska, 412 Mich 321; 314 NW2d 184 (1982). Plaintiff may collect under both Karpenko policies. The only question presented to the trial court and on appeal is whether the amount recoverable under Jack Karpenko’s "stacked” policy equals the policy limits of $50,000/$100,000 or the statutorily required minimum of $20,000/$40,000. MCL 500.3009; MSA 24.13009 and MCL 500.3131; MSA 24.13131. The trial court held as a matter of law that the garnishee defendant’s liability was limited to the statutory minimum of $20,000/$40,-000.
On appeal, plaintiff argues as he did at trial that the garnishee defendant is liable to third persons for residual coverage under the terms of its insurance contract with Jack Karpenko and should therefore be held to the terms of that contract. The garnishee defendant responds that coverage is, in fact, being provided contrary to the terms of the contract and that it is thus liable only for the amount of coverage required by statute.
In support of the motion for an order granting summary judgment, the garnishee defendant and the trial court relied upon State Farm Mutual Automobile Ins Co v Shelly, 394 Mich 448; 231 NW2d 641 (1975). In Shelly the Michigan Supreme Court held that where an exclusionary clause in a motor vehicle insurance policy issued under the financial responsibility act, MCL 257.501 et seq.; MSA 9.2201 et seq., is void as against the Motor Vehicle Accident Claims Act, MCL 257.1101 et seq.; MSA 9.2801 et seq., the reinstated coverage is limited to the minimum required by law rather than the greater policy amount. The garnishee defendant argues for the same result in the instant case: where an exclusionary clause in an automobile insurance policy issued under the no-fault act is declared void, the amount of coverage provided by operation of law should be for the minimum amount required by statute rather than for the maximum coverage provided under the contract.
Several other states have applied the Shelly rationale to insurance contracts issued under the state’s financial responsibility act where the contract includes an exclusionary clause that is declared void or invalid. See Universal Underwriters Ins Co v American Motorists Ins Co, 541 F Supp 755 (ND Miss, 1982); Arceneaux v State Farm Mutual Automobile Ins Co, 113 Ariz 216; 550 P2d 87 (1976); Oregon Automobile Ins Co v Thorbeck, 283 Or 271; 583 P2d 543 (1978); Tibbs v Johnson, 30 Wash App 107; 632 P2d 904 (1981). At least two states have applied the Shelly rationale where an exclusionary clause has been invalidated under the state’s insurance act rather than under its financial responsibility act. Estate of Neal v Farmers Ins Exchange, 93 Nev 348; 566 P2d 81 (1977); Fields v Western Preferred Casualty Co, 437 So 2d 344 (La App, 1983), cert den 440 So 2d 754 (La, 1983). However, we note that in DAIIE v Parmelee, 135 Mich App 567; 355 NW2d 280 (1984), another panel of this Court refused to follow the Shelly rule after the Supreme Court in State Farm Mutual Automobile Ins Co v Sivey, 404 Mich 51; 272 NW2d 555 (1978), had declared the exclusionary provision at issue violative of Michigan’s motor vehicle responsibility law, MCL 257.520(b); MSA 9.2220(b).
While we agree with the analysis relied upon in these cases, we believe that the trial court erred in applying it to the instant case. The non-owned automobile clause in Jack Karpenko’s policy has not been declared violative of any statute and, in fact, the majority of justices in Ruuska have specifically found that such a provision is permissible under the Michigan no-fault act. Inasmuch as the exclusionary clause in this case is not void as against any statute, it is illogical to hold that the clause is enforceable only to the extent that it does not contravene a statute as was done in Shelly.
We look to general principles of law governing the construction of insurance contracts in determining the amount of the garnishee defendant’s liability under Jack Karpenko’s policy. Where the provisions of an insurance policy are unambiguous, the policy must be enforced as written and the courts will not make a new agreement or give it a meaning contrary to its express terms. Lease Car of America, Inc v Rahn, 124 Mich App 686; 335 NW2d 123 (1983). In this case, it is clear that the purpose of the residual liability clause in Jack Karpenko’s policy is to provide coverage up to a maximum of $50,000 per person and $100,000 per incident. We thus conclude that the garnishee defendant’s liability in this case is for the maximum allowed under the contract.
Reversed. | [
-2,
24,
-38,
51,
26,
5,
23,
-6,
-42,
11,
-36,
-51,
19,
20,
-12,
8,
-13,
-48,
-39,
-15,
-10,
-45,
14,
-10,
-6,
10,
19,
-22,
25,
12,
-3,
-4,
-40,
-14,
7,
-23,
-4,
40,
-49,
40,
-5,
-24,
11,
5,
-23,
10,
-11,
-23,
43,
0,
2,
-19,
-7,
-9,
15,
39,
22,
0,
0,
-36,
-24,
9,
51,
-17,
-42,
29,
50,
58,
-20,
16,
-37,
16,
-44,
0,
-28,
24,
22,
32,
-14,
-11,
14,
7,
35,
61,
18,
1,
-52,
-4,
-67,
-14,
-70,
-4,
-25,
-17,
1,
-6,
9,
-60,
18,
22,
0,
37,
24,
49,
-14,
46,
2,
-88,
-12,
-6,
9,
5,
39,
8,
-11,
-27,
12,
-18,
4,
55,
13,
-31,
43,
17,
21,
-37,
-2,
-13,
-31,
44,
13,
21,
-3,
16,
0,
-8,
-30,
-46,
7,
4,
48,
-56,
22,
-26,
-23,
56,
27,
-59,
24,
-44,
8,
1,
-29,
-36,
50,
-14,
-12,
-4,
-15,
-14,
-19,
-38,
24,
35,
-36,
-28,
20,
14,
-22,
26,
48,
-13,
15,
-7,
26,
16,
25,
-51,
-16,
35,
0,
73,
-18,
-13,
-23,
-62,
-10,
13,
-43,
12,
4,
-53,
-27,
-8,
-12,
24,
52,
48,
18,
16,
58,
-26,
-3,
-32,
71,
19,
8,
52,
-11,
11,
5,
-13,
-6,
-24,
-67,
4,
60,
-29,
-26,
-37,
12,
2,
-12,
-2,
-3,
-1,
-76,
-49,
-16,
21,
-7,
-64,
-10,
62,
-61,
-30,
-10,
-40,
54,
31,
49,
8,
-22,
-50,
45,
22,
-22,
-4,
-40,
34,
27,
33,
-10,
6,
11,
-38,
2,
-10,
-40,
34,
-29,
63,
-43,
18,
-33,
5,
13,
22,
-23,
17,
-46,
-36,
31,
-7,
14,
-68,
27,
66,
8,
-15,
42,
3,
-13,
-38,
-54,
13,
-2,
39,
9,
19,
-6,
-39,
-13,
7,
-4,
29,
23,
-39,
-10,
16,
18,
0,
84,
13,
11,
-57,
-3,
-12,
-18,
-2,
-77,
-21,
2,
53,
64,
0,
-7,
-19,
45,
-26,
35,
39,
-27,
-2,
-5,
-4,
11,
-12,
-18,
-27,
-68,
1,
-17,
-11,
15,
-83,
0,
-14,
-8,
22,
24,
8,
44,
-14,
-23,
9,
55,
58,
8,
4,
-37,
5,
30,
6,
-2,
-26,
88,
29,
3,
83,
-5,
37,
19,
-3,
22,
22,
-3,
35,
-61,
57,
43,
-1,
-17,
-57,
-17,
-39,
0,
17,
-10,
47,
0,
-9,
18,
0,
24,
17,
-32,
-22,
-52,
36,
-40,
-35,
6,
2,
-85,
14,
-47,
-14,
-44,
-18,
-9,
45,
9,
-50,
-26,
-16,
-10,
6,
-30,
-6,
-49,
-38,
-20,
28,
11,
18,
21,
-15,
-16,
-65,
20,
5,
39,
-62,
23,
-25,
12,
27,
9,
-20,
-13,
13,
13,
-50,
36,
-2,
-25,
-30,
45,
-47,
-21,
30,
28,
-2,
-41,
4,
-46,
2,
37,
-11,
31,
-2,
7,
22,
-10,
9,
-5,
4,
-31,
27,
14,
-53,
26,
-10,
2,
-22,
-12,
21,
30,
-15,
11,
26,
-41,
-11,
0,
-17,
21,
-15,
0,
9,
-27,
32,
12,
-22,
-31,
-19,
-1,
30,
-18,
-26,
-16,
1,
-28,
-8,
13,
-11,
10,
14,
-11,
-63,
-41,
32,
-21,
48,
36,
-47,
-43,
-91,
-6,
-19,
-7,
22,
47,
34,
8,
17,
44,
5,
66,
23,
-37,
7,
-12,
38,
-22,
-12,
2,
-1,
28,
14,
20,
11,
25,
-21,
2,
26,
-11,
0,
-31,
4,
36,
57,
-34,
-2,
-34,
-28,
-1,
28,
37,
18,
-7,
-48,
-25,
-28,
31,
-31,
7,
18,
8,
5,
-7,
29,
0,
33,
4,
-14,
24,
-34,
22,
-12,
-62,
-5,
12,
2,
-15,
16,
59,
6,
-76,
24,
-38,
48,
-54,
9,
-31,
39,
13,
37,
-7,
-2,
2,
18,
26,
-15,
18,
15,
6,
-16,
25,
-2,
-8,
8,
-64,
23,
-6,
17,
7,
5,
22,
3,
52,
1,
-63,
-35,
-29,
-21,
35,
16,
5,
-51,
14,
18,
21,
29,
25,
28,
13,
44,
-5,
-14,
27,
-10,
7,
40,
23,
-10,
-20,
65,
-54,
0,
-29,
6,
18,
3,
1,
-45,
25,
33,
-43,
-45,
-98,
40,
-42,
-20,
21,
-9,
-13,
71,
-56,
0,
-8,
4,
-10,
-43,
-4,
2,
-11,
-8,
-5,
14,
0,
-32,
26,
36,
23,
47,
-28,
52,
-26,
35,
-27,
-30,
-24,
7,
-27,
7,
-3,
4,
44,
-30,
-14,
51,
-36,
-34,
-12,
12,
13,
10,
-18,
-25,
-19,
-35,
-80,
51,
-10,
-24,
-17,
13,
15,
50,
-15,
22,
11,
-36,
11,
69,
31,
23,
-72,
-1,
-38,
-42,
10,
16,
9,
26,
9,
-30,
-27,
-5,
16,
-14,
-6,
10,
-44,
-12,
-9,
-72,
-13,
-19,
23,
-5,
64,
7,
-43,
-24,
-13,
65,
76,
-9,
-41,
33,
8,
13,
-3,
-1,
57,
-7,
-44,
-40,
-1,
-2,
3,
9,
-13,
8,
49,
-22,
36,
-26,
-39,
-8,
-4,
4,
-66,
8,
31,
-2,
-46,
-51,
-5,
-12,
-10,
24,
-8,
-5,
-11,
-24,
-25,
27,
39,
39,
6,
4,
31,
-3,
11,
0,
11,
-23,
12,
15,
-36,
-13,
20,
-34,
35,
4,
26,
-19,
39,
-47,
33,
-21,
-21,
-21,
-17,
12,
-45,
-1,
0,
30,
-26,
14,
5,
-15,
40,
-12,
0,
5,
4,
-14,
-3,
43,
-15,
50,
46,
29,
-35,
-2,
56,
-12,
-57,
63,
19,
34,
-27,
6,
7,
13,
-1,
-61,
20,
77,
27,
10,
-47,
-27,
13,
16,
13,
-59,
-51,
-16,
1,
19,
10,
25,
-46,
-20,
-14,
72,
-48,
37,
0,
43,
26,
23,
31,
-17,
-33,
-41,
-41,
98,
-20,
42,
-13,
-28,
-46,
-16,
60,
19,
27,
-47,
-61,
-36,
36,
1,
71,
-36,
-24,
10,
-19,
26,
2,
6,
-8,
-5,
-28,
-12,
9,
25,
35,
18,
5,
41,
-4,
11,
-32,
41,
-33,
-45,
-23,
-36,
12,
-6,
61,
-27,
-49,
24,
-6,
-2,
-33,
38,
16,
-29,
3,
-24,
-51,
-24,
-2,
42,
-14,
19,
-47,
-38,
32,
8,
-39,
19,
27,
-1,
-8,
60,
42,
2,
-34,
36,
-41,
56,
16,
31,
-3,
-20,
53,
-32,
-6,
-4,
11,
42,
10,
-60,
9,
4,
-6,
-56,
55,
16,
-36,
-11,
5,
-16,
-62,
21,
-5,
-10,
-7,
6,
-37,
-17,
-26,
7,
-18,
62,
-18,
-12,
-6,
61,
22,
18,
-27,
-20,
43,
-27,
-7,
-7,
-14,
45,
39,
-4,
12,
20,
-8,
-14,
-9,
30,
14,
7,
-59,
-8,
-2,
-22,
54,
-9
] |
Per Curiam.
This case arises out of defendants’ mistaken arrest of plaintiff on charges pending against a woman who apparently had stolen plaintiff’s identification. Plaintiff appeals as of right from the dismissal of her complaint against the city and the arresting officers. We affirm.
Plaintiff was a passenger in a vehicle parked in an area known to have a lot of drug and prostitution activity. Undercover officers suspected that a drug transaction was underway and asked the three occupants for identification. Plaintiff did not produce identification but gave her name and date of birth to the officers.
A check of the Law Enforcement Information Network (lein) computer disclosed that plaintiff’s name was an alias for a woman who had an outstanding misdemeanor warrant for prostitution. The date of birth listed on the computer was about two years earlier than the date of birth plaintiff gave the officers. She was nevertheless arrested.
For reasons that are unclear, plaintiff spent about three days in jail before she was released. She was tried and eventually acquitted. She later sued, claiming to have suffered various damages, including loss of employment.
Plaintiff attacks on many grounds the trial court’s decision to grant defendants’ motion for summary disposition. We have reorganized her arguments and address them below.
In her first two issues, plaintiff claims that the trial court erred in granting defendants’ motion for summary disposition under MCR 2.116(0(10). She argues that her arrest was without probable cause and also that the officers’ affidavits below were inaccurate. We disagree.
We note that, in opposing a motion for summary disposition, a "party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial.” MCR 2.116(G)(4); see also Stanton v Dachille, 186 Mich App 247, 262; 463 NW2d 479 (1990). Plaintiff completely failed to do that. In fact, she did not even submit her own affidavit in support of her allegations. Under these circumstances, the trial court was justified in finding that there were no questions of material fact for trial.
Just before the hearing regarding plaintiff’s motion for rehearing or reconsideration, defendants admitted in writing that there was an error in their affidavits. Specifically, defendants admitted that, contrary to what was stated in their affidavits, the lein report did not list the date of birth plaintiff gave the officers but rather listed a different date of birth. The trial court made this letter part of the record as an amendment of defendants’ affidavits.
After considering this admission, the trial court declined to change its ruling with regard to defendants’ motion for summary disposition. The court agreed with defendants that, because plaintiff had no identification or other confirmation of her asserted date of birth in her possession, because the two dates were only about two years apart and therefore there was no obvious difference in age, and because plaintiff could not be fingerprinted on the street, the officers had acted properly in arresting her. We agree with the trial court that, given these unrebutted facts, there was probable cause to arrest plaintiff.
On the merits, we also agree with the trial court that, because defendants had probable cause to arrest plaintiff, they were protected from suit by governmental immunity. See MCL 691.1407(2); MSA 3.996(107X2).
According to defendants’ uncontroverted affidavits, they clearly were acting within the scope of their authority and discharging a governmental function when they arrested plaintiff. See MCL 691.1407(2)(a) and (b); MSA 3.996(107)(2)(a) and (b); see also Harrison v Director of Dep’t of Corrections, 194 Mich App 446, 450; 487 NW2d 799 (1992). As discussed above, their conduct in arresting plaintiff was reasonable and not grossly negligent within the meaning of the statute. That is, their conduct was not "so reckless as to demonstrate a substantial lack of concern for whether an injury results.” See MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). Thus, they were immune from suit. See id. We note that, contrary to plaintiffs argument, there is no intentional tort exception to the doctrine of governmental immunity. Smith v Dep’t of Public Health, 428 Mich 540, 544; 410 NW2d 749 (1987), aff’d on other grounds sub nom Will v Michigan Dep’t of State Police, 491 US 58 (1989); see also Harrison, supra at 450. The trial court properly granted defendants’ motion for summary disposition regarding all plaintiffs state claims.
Plaintiff also argues that the trial court erred in dismissing her federal claims on the basis of res judicata. We again disagree.
For the sake of clarification, we note that, before suing in state court, plaintiff sued in federal court, alleging the same state and federal claims she asserted below. The federal court, in considering defendants’ motion for summary disposition, considered plaintiff’s federal claims on the merits and dismissed them. The federal court also dismissed plaintiff’s pendent state claims, but explicitly did so without prejudice. Plaintiff’s motion for reconsideration was denied and she did not appeal.
First, because the federal court’s order did not state whether the dismissal of plaintiff’s federal claims was with or without prejudice, the dismissal is presumed to be with prejudice. See FR Civ P 41(b); see also MCR 2.504(B)(3). Additionally, because the federal court considered and decided the merits of plaintiff’s federal claims, its decision is final and binding. Roberts v City of Troy, 170 Mich App 567, 577; 429 NW2d 206 (1988). That decision is therefore res judicata and bars relitigation of plaintiff’s federal claims. Id. Plaintiff’s argument to the contrary is clearly meritless. The trial court did not err in dismissing plaintiff’s federal claims.
We sympathize with plaintiff’s anger at being mistakenly arrested. However,_
[t]he Constitution does not guarantee that only the guilty will be arrested. If it did [42 USC 1983], would provide a cause of action for every defendant acquitted — indeed, for every suspect released.
. . . Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. [Baker v McCollan, 443 US 137, 145-146; 99 S Ct 2689; 61 L Ed 2d 433 (1979).]
Like plaintiff, we question why it took three days for her to be released when á simple fingerprint check would have disclosed that she was the wrong person. However, there is no evidence on this record that would indicate that these defendants were responsible for that delay.
Affirmed.
Plaintiffs claims against the supervisory officers involved are not part of this appeal. Therefore, "defendants” in this opinion will refer only to defendants-appellees.
In her first amended complaint, plaintiff alleged the following state claims: assault and battery, false arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution, negligence, and gross negligence. | [
27,
-8,
0,
22,
20,
-11,
11,
-32,
-6,
47,
59,
-36,
11,
44,
53,
3,
38,
35,
69,
-62,
2,
-39,
-5,
44,
-8,
-22,
40,
40,
16,
40,
0,
-6,
19,
-7,
35,
8,
20,
22,
-13,
31,
-11,
-37,
0,
-14,
-60,
2,
-15,
27,
37,
-66,
37,
-17,
-61,
36,
-30,
-12,
3,
-44,
4,
3,
-24,
14,
-6,
-25,
-32,
0,
-22,
55,
-46,
-41,
12,
20,
-51,
-57,
-37,
-46,
-31,
18,
2,
45,
-9,
-9,
4,
11,
91,
12,
16,
-55,
24,
-49,
37,
-32,
-52,
-56,
-3,
32,
34,
-45,
57,
-5,
-4,
26,
-47,
43,
6,
31,
-11,
-16,
2,
-35,
40,
10,
6,
-21,
-14,
-25,
7,
22,
32,
-49,
-13,
-7,
46,
22,
8,
-36,
0,
9,
-8,
54,
22,
14,
22,
-2,
12,
22,
16,
22,
46,
28,
-8,
-12,
21,
35,
29,
48,
41,
-6,
16,
-4,
-8,
-7,
33,
54,
-27,
11,
26,
-15,
-36,
-6,
-11,
33,
3,
-31,
21,
-25,
18,
17,
14,
-33,
48,
-15,
19,
19,
-16,
-11,
-72,
34,
5,
-58,
-43,
32,
-19,
-15,
23,
-32,
-6,
-32,
-46,
-14,
6,
5,
22,
41,
69,
21,
5,
37,
24,
-69,
43,
-44,
0,
-34,
-14,
11,
27,
-59,
-11,
-2,
-6,
-42,
7,
-62,
-5,
-52,
56,
-38,
-18,
14,
-28,
-32,
-15,
-37,
-15,
-22,
8,
-6,
13,
21,
59,
2,
22,
10,
-37,
-27,
52,
9,
43,
14,
13,
16,
-38,
-46,
12,
-4,
-41,
-34,
0,
5,
43,
5,
-9,
4,
-81,
-50,
35,
30,
-8,
1,
-34,
68,
2,
7,
-34,
15,
-17,
92,
-62,
-10,
-61,
12,
-28,
-20,
19,
-47,
-39,
49,
26,
41,
6,
33,
-9,
-4,
-22,
-20,
15,
28,
59,
39,
25,
9,
-85,
-4,
20,
-12,
20,
-7,
-30,
44,
32,
-15,
13,
-11,
-41,
-52,
18,
50,
-33,
-14,
37,
51,
25,
20,
29,
26,
-3,
-16,
47,
-45,
-33,
17,
-7,
-19,
12,
-48,
20,
-46,
-9,
-37,
-2,
9,
-39,
-4,
4,
0,
-1,
12,
-20,
6,
-19,
-27,
2,
-7,
4,
31,
-23,
-8,
6,
-46,
37,
4,
33,
17,
2,
-28,
7,
-47,
12,
-41,
11,
49,
7,
-21,
51,
17,
-50,
27,
14,
46,
-36,
-63,
-25,
26,
-48,
-39,
31,
-10,
14,
45,
7,
-44,
32,
-2,
-12,
-22,
-36,
-64,
30,
-51,
-3,
-5,
-8,
-20,
-2,
-27,
15,
31,
20,
-13,
-6,
39,
85,
11,
-20,
-41,
13,
7,
-29,
42,
-5,
19,
60,
22,
-40,
13,
-9,
-6,
-3,
-8,
5,
0,
-72,
-45,
-6,
49,
-19,
29,
29,
-22,
-28,
27,
-7,
-29,
11,
16,
-38,
-70,
53,
4,
1,
-14,
-48,
11,
-4,
-22,
-29,
-16,
16,
1,
34,
36,
34,
-14,
-15,
51,
40,
13,
-32,
-19,
14,
-24,
-16,
55,
-10,
-35,
-40,
-28,
-16,
26,
21,
10,
-20,
0,
-16,
43,
-5,
40,
-23,
-9,
-17,
7,
47,
-70,
-19,
7,
19,
-9,
-8,
45,
8,
-53,
-13,
50,
-7,
-1,
-23,
-21,
-5,
10,
26,
-9,
-36,
26,
26,
16,
0,
33,
-1,
5,
-28,
22,
-11,
-38,
-49,
-24,
-4,
-19,
19,
39,
15,
-3,
16,
-12,
-26,
36,
23,
-70,
-47,
13,
70,
-23,
-4,
-53,
49,
8,
-12,
-8,
15,
5,
6,
48,
-2,
-14,
13,
11,
14,
1,
-15,
-5,
-21,
15,
35,
-5,
-30,
-24,
12,
-31,
-22,
-27,
-47,
-15,
13,
21,
49,
5,
20,
-15,
30,
-37,
-10,
43,
-20,
-12,
-64,
35,
51,
25,
-14,
-46,
19,
50,
-20,
-60,
-55,
-13,
6,
1,
8,
-45,
-41,
-48,
6,
-33,
21,
36,
-85,
-61,
-1,
48,
72,
-26,
-62,
-11,
31,
-30,
14,
31,
18,
-66,
57,
-9,
-14,
0,
-14,
-20,
-1,
23,
-8,
13,
5,
19,
11,
80,
-11,
-54,
-68,
-28,
-3,
-21,
-1,
-62,
-2,
0,
-6,
-23,
-29,
29,
-16,
-9,
54,
30,
46,
17,
30,
-19,
29,
-4,
2,
-24,
-20,
53,
25,
1,
37,
-25,
-46,
-21,
7,
11,
-83,
12,
-33,
38,
18,
26,
-8,
-67,
51,
-9,
30,
-27,
8,
21,
22,
-31,
58,
-13,
-24,
-23,
-40,
26,
32,
-33,
-26,
-22,
-40,
-15,
18,
7,
2,
12,
-1,
23,
-16,
-9,
-2,
-7,
-16,
1,
-9,
18,
-7,
8,
-38,
1,
-3,
-2,
-19,
28,
-10,
24,
2,
-29,
4,
-16,
-55,
12,
-9,
7,
-2,
19,
28,
-6,
2,
24,
-25,
-26,
-3,
-85,
39,
54,
33,
12,
0,
-23,
8,
-4,
-13,
11,
18,
26,
49,
-27,
-7,
-7,
26,
-8,
7,
29,
16,
6,
26,
41,
-23,
33,
29,
-41,
-63,
-21,
-14,
-7,
7,
-42,
-47,
24,
-64,
5,
4,
15,
-64,
-23,
52,
-20,
-32,
62,
0,
-3,
19,
25,
45,
9,
-58,
23,
-21,
16,
12,
-36,
-28,
32,
19,
-33,
-25,
-8,
12,
30,
3,
-28,
-43,
-5,
33,
15,
21,
-31,
-5,
33,
-33,
-4,
-8,
-26,
5,
-33,
4,
0,
-4,
-12,
-17,
0,
15,
-48,
-2,
9,
-11,
9,
-21,
9,
5,
-50,
11,
-2,
6,
-4,
50,
8,
-24,
50,
12,
-19,
10,
-11,
4,
10,
10,
-7,
54,
18,
22,
-7,
25,
-14,
14,
21,
25,
17,
-4,
42,
-29,
48,
5,
-14,
18,
-10,
-11,
-67,
20,
2,
16,
4,
43,
34,
-11,
17,
24,
106,
-38,
19,
32,
-26,
12,
-4,
30,
-13,
-14,
28,
-7,
14,
0,
0,
-38,
-21,
13,
18,
35,
-10,
-43,
36,
19,
-4,
55,
-48,
30,
39,
-38,
46,
-5,
28,
20,
-55,
-69,
-10,
13,
-22,
10,
5,
74,
15,
-13,
-6,
17,
-26,
9,
39,
33,
-23,
-14,
4,
9,
45,
-36,
0,
-28,
-3,
-27,
17,
31,
24,
54,
0,
-18,
15,
-76,
-28,
-29,
11,
-20,
32,
-74,
27,
-4,
27,
-44,
-16,
65,
25,
-42,
16,
9,
-2,
-24,
-4,
0,
23,
-2,
5,
4,
-17,
-14,
-45,
19,
42,
19,
-18,
-30,
-30,
-3,
-15,
-21,
18,
-50,
-36,
-22,
-52,
-35,
0,
25,
-27,
-30,
31,
-48,
-10,
-5,
-9,
-15,
14,
-1,
33,
0,
-15,
-23,
10,
-33,
-1,
29,
20,
-15,
-38,
22,
-32,
-30,
15,
-11,
-59,
18,
-5,
-24,
38,
-31,
48,
-27,
37,
-2,
30,
42,
34
] |
Shepherd, J.
Defendant, a juvenile, pleaded guilty in the trial court to two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), in exchange for the dismissal of an additional charge of first-degree criminal sexual conduct and a charge of armed robbery. Defendant was sentenced as an adult to twenty-two to forty years’ imprisonment for each offense, to run concurrently. We reverse defendant’s sentences and remand for further proceedings.
Defendant’s sole argument on appeal is that the trial court failed to make specific findings of fact as required under MCR 6.931(E)(4), concerning each of the statutory factors outlined in MCL 769.1(3); MSA 28.1072(3), for determining whether to sentence him as an adult. After reviewing the record of the sentencing hearing, we agree with defendant’s position.
MCL 769.1(3); MSA 28.1072(3) requires trial courts to consider the following criteria when determining whether to sentence a juvenile offender as an adult:_
(a) The prior record and character of the juvenile, his or her physical and mental maturity, and his or her pattern of living.
(b) The seriousness and the circumstances of the oifense.
(c) Whether the oifense is part of a repetitive pattern of oifenses which would lead to 1 of the following determinations:
(i) The juvenile is not amenable to treatment.
(ii) That despite the juvenile’s potential for treatment, the nature of the juvenile’s delinquent behavior is likely to disrupt the rehabilitation of other juveniles in the treatment program.
(d) Whether, despite the juvenile’s potential for treatment, the nature of the juvenile’s delinquent behavior is likely to render the juvenile dangerous to the public if released at the age of 21.
(e) Whether the juvenile is more likely to be rehabilitated by the services and facilities available in adult programs and procedures than in juvenile programs and procedures.
(f) What is in the best interests of the public welfare and the protection of the public security.
The trial court in the present case did not make detailed findings concerning each statutory factor. Rather, the trial judge engaged in a rather lengthy diatribe at sentencing — comparing his own upbringing with defendant’s. While it does appear that the trial judge made a number of piecemeal findings that were potentially relevant to the statutory criteria, the trial court did not make complete, detailed findings with respect to each of the requisite factors as required under MCR 6.931(E) (3) and (4) and MCL 769.1(3) and (5); MSA 28.1072(3) and (5). It does not appear from the record that the trial court attempted to weigh the relevant factors in any meaningful way at the sentencing hearing. Accordingly, the trial court’s decision to sentence defendant as an adult constituted an abuse of discretion. People v Passeno, 195 Mich App 91, 103-104; 489 NW2d 152 (1992).
In sum, we are not satisfied with the trial court’s findings concerning whether defendant should be sentenced as an adult. MCR 6.931(E)(3) and (4) and MCL 769.1(3) and (5); MSA 28.1072(3) and (5).
We reverse defendant’s sentences and remand for further proceedings before a different judge, People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986), to determine whether defendant should be sentenced as a juvenile or as an adult. We do not retain jurisdiction.
MCL 769.1(5); MSA 28.1072(5) contains language similar to that in MCR 6.931(E)(4), also requiring specific findings on each of the factors.
See also MCR 6.931(E)(3), which mirrors the factors listed in MCL 769.1(3); MSA 28.1072(3) for determining whether to sentence a juvenile as an adult.
While a certain amount of personal reflection may be interesting and even potentially helpful to a full articulation of findings under the requisite factors, we would discourage the trial court from embarking upon such a lengthy autobiography in the future. Our review of the record reveals that much of the trial court’s discussion is composed of irrelevant personal information, which is not conducive to the efficient administration of justice. | [
32,
-21,
-26,
37,
-12,
-13,
-2,
-39,
-32,
30,
-44,
-14,
32,
-3,
24,
2,
-32,
-28,
-68,
-1,
14,
17,
4,
42,
-58,
-35,
7,
47,
-8,
21,
44,
-32,
-1,
-48,
-23,
7,
40,
10,
60,
29,
34,
-1,
-4,
-15,
-40,
-4,
23,
7,
-8,
29,
27,
-5,
21,
-16,
23,
16,
62,
45,
-38,
21,
-36,
64,
-39,
-6,
-3,
-47,
-37,
29,
-50,
1,
-21,
-18,
-72,
53,
11,
20,
-6,
-6,
61,
32,
6,
-9,
42,
10,
36,
-18,
14,
-7,
17,
-4,
15,
-18,
-29,
-12,
-6,
34,
15,
-46,
47,
-80,
0,
-23,
49,
3,
-20,
35,
-30,
-56,
14,
51,
19,
7,
11,
-26,
-11,
-14,
-42,
-13,
-49,
-18,
-30,
58,
40,
-10,
54,
-30,
22,
-37,
-22,
-42,
-57,
-16,
10,
0,
8,
11,
31,
53,
19,
25,
-44,
42,
51,
50,
21,
-4,
-14,
-33,
32,
28,
-30,
-27,
0,
-33,
15,
7,
-46,
-49,
-35,
-28,
-15,
-22,
-28,
-5,
-4,
-41,
2,
56,
8,
35,
9,
29,
63,
41,
29,
27,
-31,
31,
-9,
5,
-45,
13,
24,
33,
-5,
1,
-67,
-23,
-44,
-15,
-59,
22,
3,
-45,
62,
-9,
55,
24,
-25,
13,
-68,
14,
6,
57,
31,
-23,
-1,
-26,
3,
41,
-15,
30,
-26,
9,
2,
-18,
8,
-20,
-10,
33,
-26,
-44,
32,
-40,
-18,
-28,
-36,
35,
19,
-7,
17,
27,
22,
21,
3,
-13,
11,
33,
51,
68,
21,
-8,
25,
-13,
28,
41,
-43,
-39,
-15,
-58,
16,
15,
-5,
20,
-77,
-8,
-1,
-39,
-15,
-13,
-3,
-14,
54,
4,
-48,
50,
-27,
50,
-32,
5,
-33,
-11,
-41,
0,
-13,
42,
-10,
26,
-12,
33,
39,
43,
58,
64,
-29,
-18,
-16,
10,
31,
-30,
61,
-33,
-2,
-59,
74,
-68,
-21,
-14,
-20,
-23,
31,
-33,
-22,
10,
-8,
22,
62,
24,
-71,
-11,
-2,
-20,
-14,
30,
-2,
-24,
-52,
-32,
83,
-12,
-5,
-18,
-3,
-76,
-11,
0,
92,
-41,
-50,
0,
-74,
52,
1,
61,
26,
38,
-34,
-2,
-27,
48,
3,
-14,
21,
-35,
-1,
23,
-10,
16,
-16,
-19,
-22,
58,
43,
-40,
-28,
-46,
-40,
-32,
-1,
-56,
27,
-13,
-42,
-56,
0,
-13,
60,
2,
20,
48,
14,
-80,
-14,
6,
40,
-22,
59,
24,
22,
-15,
11,
19,
52,
-42,
33,
-12,
-26,
1,
15,
-19,
-21,
14,
-23,
-21,
-7,
10,
19,
0,
51,
-73,
-3,
-36,
62,
23,
19,
32,
-2,
-21,
7,
0,
-13,
54,
21,
50,
-15,
-38,
18,
-34,
-33,
-21,
8,
-5,
62,
-13,
28,
21,
-56,
30,
39,
-15,
4,
30,
-30,
-15,
40,
-3,
-41,
10,
21,
10,
-48,
-37,
-41,
25,
47,
-2,
11,
0,
44,
-31,
23,
11,
-17,
-79,
-1,
25,
-3,
52,
-13,
-48,
-6,
-35,
-19,
-51,
44,
-35,
-49,
-22,
17,
-13,
-14,
12,
4,
41,
37,
9,
2,
28,
-46,
23,
0,
-15,
-73,
-20,
2,
-14,
0,
-48,
-13,
-32,
-10,
-2,
-24,
14,
1,
8,
9,
37,
-33,
44,
21,
-60,
16,
-35,
82,
-19,
24,
36,
4,
-11,
29,
57,
-15,
-20,
-21,
-50,
-8,
-38,
25,
14,
23,
-45,
56,
17,
-14,
18,
-46,
-13,
-44,
42,
19,
-26,
0,
26,
84,
6,
-29,
-10,
-6,
-49,
-35,
1,
-16,
-21,
17,
-25,
39,
17,
-4,
12,
-31,
31,
43,
42,
-45,
-25,
0,
14,
5,
-35,
-31,
18,
44,
12,
-30,
-7,
-28,
15,
41,
-4,
39,
12,
-50,
31,
9,
10,
14,
71,
49,
40,
25,
32,
29,
-33,
-34,
-2,
26,
-34,
54,
-31,
8,
20,
-7,
15,
-28,
-36,
0,
-33,
-24,
14,
-10,
25,
-25,
-11,
57,
7,
14,
41,
-25,
-21,
42,
32,
-42,
9,
-6,
7,
44,
-1,
-57,
5,
-45,
-83,
-13,
0,
-15,
-57,
-62,
-40,
-28,
-9,
-19,
-16,
-18,
-12,
-22,
-8,
-36,
3,
-33,
-16,
1,
21,
-5,
-5,
70,
52,
11,
3,
1,
-55,
-16,
11,
-24,
-6,
15,
-19,
-41,
-26,
18,
-1,
-4,
3,
-40,
19,
-19,
23,
32,
-24,
-55,
-3,
-27,
15,
-3,
30,
12,
13,
-52,
-3,
35,
-27,
-52,
-28,
51,
-64,
-5,
5,
-4,
18,
46,
19,
-16,
-10,
50,
5,
11,
-1,
9,
47,
-36,
9,
-6,
27,
-9,
-12,
-38,
-11,
-4,
14,
-19,
-13,
-20,
84,
13,
42,
-28,
-50,
-20,
-58,
-66,
10,
31,
-24,
56,
-19,
-1,
19,
25,
26,
14,
-6,
22,
26,
-29,
12,
35,
46,
-33,
-1,
41,
28,
-26,
-27,
-76,
-46,
-51,
20,
-3,
-59,
6,
13,
3,
36,
32,
-29,
-1,
30,
96,
-16,
-35,
1,
-22,
31,
-5,
23,
-11,
-13,
25,
-10,
13,
-6,
-31,
-26,
-11,
9,
-22,
21,
-30,
48,
40,
-29,
7,
48,
-62,
-16,
-28,
-57,
-42,
-23,
-24,
-16,
-21,
51,
-10,
38,
24,
41,
-12,
-7,
33,
9,
33,
35,
-25,
2,
-45,
23,
14,
-32,
0,
24,
48,
32,
2,
45,
-8,
-18,
7,
-61,
7,
-10,
47,
12,
-27,
-43,
33,
25,
-2,
-42,
14,
-43,
4,
-8,
13,
54,
-27,
-46,
-25,
-11,
10,
35,
0,
-2,
48,
-11,
14,
16,
0,
1,
21,
-15,
62,
6,
-44,
-9,
21,
10,
-14,
36,
-12,
-66,
-6,
23,
-4,
6,
-25,
38,
-24,
-31,
22,
-81,
-26,
-1,
17,
-24,
-2,
-1,
-34,
-16,
-33,
26,
98,
-31,
41,
4,
23,
-16,
30,
-50,
-23,
-17,
-44,
-6,
30,
-31,
-43,
36,
4,
60,
10,
-65,
23,
5,
-59,
21,
-17,
-32,
23,
12,
-33,
16,
-17,
18,
23,
77,
51,
-23,
-13,
-22,
43,
-38,
-38,
2,
77,
89,
27,
-47,
-43,
-29,
-34,
0,
25,
31,
9,
-13,
-15,
19,
10,
-26,
9,
0,
1,
-15,
-73,
19,
-14,
32,
-50,
8,
27,
-31,
-24,
37,
-19,
5,
-41,
23,
3,
43,
-22,
-7,
-92,
7,
-18,
12,
48,
19,
46,
-41,
-14,
0,
6,
-16,
-65,
-17,
19,
-17,
27,
-42,
5,
-15,
-32,
-41,
-2,
4,
-18,
42,
-1,
59,
-5,
-13,
-27,
-48,
52,
34,
-24,
-30,
0,
-12,
-5,
-41,
-53,
52,
7,
29,
-7,
4,
3,
-31,
-40,
-52,
31,
20,
59,
14,
-4,
22,
7,
-1,
-16,
83,
2,
70,
6,
53
] |
P. E. Deegan, J.
I agree with Judge Shepherd’s recitation of the facts.
I also agree with Judge Shepherd that we should defer to the trial court with respect to its findings of fact regarding the police activity during the questioning of the defendant. Defendant alleged that the police engaged in a variety of improper behavior, including the misrepresentation of the defendant’s whereabouts to an attorney. Judge Shepherd concluded, and I agree, that "there is no evidence that they deliberately tried to conceal [the] defendant’s location.” Post at 547.
I further agree that the most important issue regarding the defendant’s second statement is "whether the officers’ [failure] to inform defendant of [an] attorney’s attempts to contact him,” post at 547, violated the privilege against compelled self-incrimination as guaranteed by Const 1963, art 1, § 17 and protected by the procedural safeguards in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 76 L Ed 2d 694 (1966), or the right to counsel as secured by Const 1963, art 1, § 20, or both.
However, I do not agree with Judge Shepherd that the facts of this case justify extending the privilege against compelled self-incrimination. I do not believe the police in this case were required to interrupt their interrogation of the defendant in order to inform him that an attorney, hired by a third party, was asking to talk with him. I find it significant that the defendant made a knowing and voluntary waiver of his privilege against self-incrimination, and that he never indicated to the police that he wanted an attorney.
The facts of this case differ in several important respects from those in People v Wright, 441 Mich 140; 490 NW2d 351 (1992). In Wright, the police did not advise the defendant of his constitutional rights until he had been in custody for over five hours. In the instant case, the police read the defendant his rights shortly after he voluntarily walked into the police station. The police in this case, in contrast to the police in Wright, reread to the defendant his rights before questioning him a second time. The defendant here, unlike the defendant in Wright, signed a standard constitutional rights notification form each time before he was questioned. The police stated that when they advised the defendant of his constitutional rights he declared that he understood those rights; he did not appear to be under the influence of any chemical substance, and he was cooperative. The defendant never asked to telephone a family member or a lawyer.
In Wright, the police engaged in coercive behavior. They deprived the defendant of food, and only gave him some water after nine hours in custody. They placed the defendant in a small room, four feet by five feet, in order to get him to confess. In addition, they threatened to charge the defendant with first-degree murder unless he confessed. Indeed, Justice Brickley, in his concurring opinion in Wright, makes it clear that Wright’s statement should have been suppressed because "he was deprived of food, sleep, and contact with friendly outsiders, combined with the fact that he was not informed of available retained counsel.” Id. at 172. Justice Brickley expressly relied on "[t]he sum of these circumstances” in his decision to concur in the result in Wright. Id.
The police in the present case provided breakfast for the defendant, and did not engage in any coercive behavior similar to that in Wright. The police treated the defendant justly. That is evidenced by the defendant’s second statement, in which he wrote the word "fair” in response to how he had been treated.
Because the facts in this case are not egregious and are dissimilar to those in Wright, I adopt the rationale of Justice Riley, dissenting in Wright, supra at 172-180 (Boyle and Griffin JJ., concurring).
In her dissenting opinion, Justice Riley relied on the United States Supreme Court’s opinion in Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), which was written by Justice O’Connor for the six-member majority. Id. at 415-434. Judge Shepherd suggests that we adopt Justice Mallett’s analysis in Wright, supra at 142-155. I am convinced that such a decision would establish a "rule that focuses on how the police treat an attorney — conduct that has no relevance at all to the degree of compulsion experienced by the defendant during interrogation — [and] would ignore both Miranda’s mission and its only source of legitimacy.” Moran, supra at 425.
Moreover, I believe that Judge Shepherd’s suggestion would create a multiplicity of) needless and confusing legal questions for Michigan courts when applying Miranda, for example:
To what extent should the police be held ac countable for knowing that the accused has counsel? Is it enough that someone in the station house knows, or must the interrogating officer himself know of counsel’s efforts to contact the suspect? Do counsel’s efforts to talk to the suspect concerning one criminal investigation trigger the obligation to inform the defendant before interrogation may proceed on a wholly separate matter? [Moran, supra at 425.]
In short, Judge Shepherd’s suggestion would create in Michigan a Gordian knot concerning Miranda rights.
Because the facts of this case are distinguishable from those in Wright and I am convinced that the reasoning in Justice O’Connor’s majority opinion in Moran is superior, I find the decision of the police not to inform the defendant, while interrogating him, of an attorney’s attempts to contact him did not violate the privilege against compelled self-incrimination as guaranteed by Const 1963, art 1, § 17 and protected by the procedural safeguards in Miranda. Accordingly, I find no error in the trial court’s decision not to suppress the defendant’s second statement.
I am also convinced that the right to counsel as secured by Const 1963, art 1, § 20 does not include the right to be informed that counsel, retained by a third party, is attempting to contact the suspect.
The general rule [is] that a defendant has no right to counsel until the right attaches automatically after the initiation of adversarial judicial criminal proceedings. . . . [An] exception [exists] for pretrial identification procedures . . . because of the unique elements of confrontation that these procedures present. . . . Normal custody interrogations have never been analyzed under the right to counsel simply because that right has not yet attached at this investigative stage. [Wright, supra at 173, n 4 (Justice Riley dissenting in an opinion joined by Justices Boyle and Griffin).]
Therefore, I do not find that the defendant’s second statement was obtained in violation of the right to counsel as guaranteed by Const 1963, art 1, § 20. Accordingly, I find no error in the trial court’s refusal to suppress the defendant’s second statement.
Notwithstanding established Michigan case law to the contrary, Judge Shepherd would extend the right to counsel to encompass a suspect’s "right to be informed about [a] retained counsel’s attempts to contact [him].” Post at 548. In support of his view, Judge Shepherd relies on the decisions of three foreign jurisdictions: People v West, 81 NY2d 370, 372-374; 599 NYS2d 484; 615 NE2d 968 (1993); State v Hattaway, 621 So 2d 796, 801 (La, 1993); and State v Lefthand, 488 NW2d 799, 801-802 (Minn, 1992). I believe that all of those cases are inapposite. In West, the defendant had an existing attorney-client relationship, and both Hattaway and Lefthand involved defendants who had court-appointed attorneys. In the present case, on the other hand, the defendant did not have an attorney, did not ask for an attorney, and did not retain an attorney on his own. Counsel was retained by a third party, not by the defendant. I find no reason to turn to foreign jurisdictions in light of our own established case law. The creation of such a novel extension would not advance the development of a sound Michigan constitutional right to counsel.
In summary, I conclude that defendant’s second incriminating statement to the police, made while an attorney retained by a third party attempted to contact him, did not violate the privilege against compelled self-incrimination as guaranteed by Const 1963, art 1, § 17 and protected by the procedural safeguards in Miranda or the right to counsel as guaranteed by Const 1963, art 1, § 20. Accordingly, the trial court’s refusal to suppress the defendant’s second statement should be affirmed.
Finally, I find that the trial court did not err in denying the defendant’s request for a separate trial or in admitting the codefendant’s statements in a joint bench trial. People v Etheridge, 196 Mich App 43, 52-53; 492 NW2d 490 (1992); People v Butler, 193 Mich App 63, 66; 483 NW2d 430 (1992). I also conclude that the defendant’s concurrent sentences of twenty to forty years’ imprisonment for the murder and assault convictions do not violate the principle of proportionality. People v Milbourn, 435 Mich 630, 659-660; 461 NW2d 1 (1990).
Affirmed.
Gribbs, P.J. I concur in the result only. | [
58,
-32,
-6,
31,
12,
1,
0,
-5,
-19,
26,
35,
-20,
52,
48,
14,
-37,
18,
52,
34,
-35,
7,
-2,
-10,
45,
-13,
-75,
1,
7,
-33,
17,
40,
-13,
8,
-36,
-1,
26,
87,
22,
-11,
50,
10,
-3,
-2,
-71,
-21,
-29,
-77,
20,
-10,
-13,
68,
9,
-12,
30,
-19,
-7,
10,
22,
-3,
-9,
-56,
35,
-48,
-44,
-26,
14,
-39,
46,
-84,
-30,
-17,
-20,
-13,
-14,
-29,
8,
27,
-15,
56,
27,
-21,
45,
6,
-12,
44,
-5,
-11,
-26,
14,
-12,
55,
9,
-45,
-43,
-14,
11,
34,
-21,
6,
-14,
-15,
-15,
-41,
-16,
-10,
70,
-48,
-67,
48,
-43,
1,
59,
-4,
-15,
-16,
-51,
-5,
31,
9,
-24,
3,
-8,
-8,
24,
16,
-42,
31,
-3,
33,
10,
-30,
40,
36,
-23,
-11,
-5,
-24,
9,
7,
-2,
-25,
-11,
51,
-38,
57,
-17,
-18,
69,
0,
73,
26,
14,
-18,
5,
-48,
-42,
31,
-67,
-41,
32,
-14,
15,
-44,
-23,
-30,
6,
-10,
-9,
13,
-23,
-4,
47,
9,
31,
27,
-52,
-104,
72,
9,
4,
-9,
-11,
11,
-5,
17,
-24,
-1,
-10,
19,
38,
-1,
-29,
16,
8,
39,
22,
1,
16,
8,
-96,
1,
29,
28,
14,
-18,
8,
11,
-4,
27,
10,
-27,
34,
-9,
-67,
-7,
-65,
0,
0,
-24,
36,
10,
-7,
-34,
-97,
-49,
14,
0,
36,
0,
-8,
41,
35,
-46,
28,
-15,
-46,
40,
-14,
46,
-18,
-26,
26,
36,
-24,
-5,
14,
12,
-35,
-29,
-7,
17,
34,
43,
-2,
-41,
-29,
-15,
3,
8,
-12,
39,
38,
7,
33,
2,
-23,
-22,
9,
-6,
3,
-19,
-3,
15,
6,
-38,
-28,
-9,
25,
-44,
1,
11,
1,
-11,
38,
-1,
2,
22,
33,
59,
-15,
53,
-14,
-71,
3,
32,
14,
45,
7,
-26,
-7,
63,
4,
-33,
0,
-22,
2,
26,
25,
-62,
15,
67,
30,
-20,
80,
32,
29,
-29,
7,
12,
-24,
-30,
21,
-11,
-33,
6,
-39,
26,
-33,
20,
-39,
-11,
16,
-26,
29,
14,
15,
-6,
-1,
-41,
-6,
-59,
-35,
-29,
-26,
4,
24,
-27,
47,
-54,
-19,
0,
23,
5,
1,
-8,
-1,
-50,
-54,
21,
-62,
26,
-14,
-9,
25,
-18,
-10,
9,
-19,
17,
16,
4,
-99,
-8,
-36,
-25,
3,
40,
-40,
-53,
73,
-35,
-34,
-27,
10,
-41,
29,
-37,
11,
21,
-39,
6,
4,
-21,
-5,
-35,
-25,
24,
-12,
70,
7,
-40,
-13,
47,
-16,
-47,
9,
-14,
13,
40,
-6,
15,
43,
30,
30,
-39,
-9,
15,
12,
20,
-9,
-34,
-84,
24,
-7,
34,
24,
-49,
18,
-3,
0,
-9,
-30,
-4,
-58,
-16,
13,
-21,
-51,
-2,
18,
-44,
-50,
-13,
34,
20,
-22,
-26,
-12,
-30,
-20,
0,
27,
8,
36,
-55,
42,
41,
11,
-15,
9,
0,
23,
-60,
28,
36,
-5,
-55,
-8,
-32,
7,
41,
-15,
5,
4,
-34,
4,
-36,
58,
-30,
1,
23,
-45,
36,
-26,
-80,
-4,
-4,
-13,
67,
35,
-8,
19,
53,
-43,
1,
24,
15,
1,
-45,
15,
53,
22,
-12,
12,
49,
-42,
41,
30,
22,
-5,
10,
26,
-32,
-8,
-77,
-12,
7,
-8,
5,
10,
58,
-43,
39,
-4,
23,
6,
-15,
-52,
-58,
-18,
54,
12,
-17,
-15,
55,
21,
-1,
-12,
10,
-24,
-13,
31,
3,
28,
5,
10,
39,
-34,
23,
9,
20,
-3,
-7,
0,
-6,
-47,
-2,
35,
13,
-38,
-31,
-32,
43,
63,
18,
37,
-23,
33,
42,
-26,
-14,
65,
-14,
18,
33,
15,
19,
24,
33,
-33,
13,
-19,
-37,
2,
-32,
-14,
25,
-27,
17,
-45,
-55,
-21,
5,
7,
13,
10,
-29,
-69,
-6,
69,
9,
3,
-30,
-22,
53,
-18,
12,
-2,
12,
-9,
39,
-32,
7,
-48,
-21,
22,
-16,
4,
-11,
40,
-36,
-47,
-58,
6,
0,
-61,
-27,
-1,
24,
-42,
-18,
-34,
-35,
-2,
48,
-5,
6,
-9,
-15,
37,
36,
15,
33,
-29,
21,
50,
49,
17,
-13,
-52,
-10,
4,
6,
3,
-1,
-13,
-37,
-2,
43,
14,
6,
21,
-35,
-1,
-93,
41,
-32,
-39,
4,
12,
43,
25,
17,
23,
31,
-24,
58,
-66,
-62,
2,
-50,
-60,
46,
-21,
12,
45,
-15,
28,
-17,
10,
6,
-16,
65,
-11,
-4,
-40,
62,
2,
-8,
17,
-47,
-22,
0,
-48,
-43,
-1,
14,
20,
-10,
13,
0,
24,
12,
32,
11,
-36,
-58,
23,
21,
61,
0,
47,
20,
21,
3,
29,
-5,
0,
-11,
-35,
34,
-2,
-15,
-2,
-3,
18,
-16,
-23,
47,
0,
-20,
32,
56,
-25,
22,
-3,
62,
-51,
-4,
37,
43,
-19,
31,
-1,
-24,
59,
27,
0,
-55,
-21,
46,
-4,
33,
-69,
-31,
15,
-48,
-21,
6,
44,
-7,
-87,
32,
-6,
-43,
17,
9,
-23,
13,
1,
-1,
40,
-72,
19,
29,
23,
-8,
7,
-41,
51,
32,
-17,
-39,
5,
41,
34,
29,
-65,
-3,
19,
62,
8,
54,
-37,
11,
-10,
33,
66,
47,
-24,
10,
-37,
17,
-5,
-27,
-31,
32,
27,
37,
-14,
25,
9,
13,
-12,
-57,
-6,
4,
-77,
9,
-51,
-11,
-8,
5,
42,
-2,
8,
-6,
-41,
26,
32,
34,
-3,
26,
18,
76,
-4,
13,
-30,
11,
25,
11,
48,
14,
-2,
-18,
-16,
-29,
40,
18,
6,
-20,
27,
32,
-44,
36,
11,
-16,
17,
80,
0,
2,
12,
75,
7,
-63,
0,
6,
8,
-29,
-12,
3,
19,
-8,
0,
30,
7,
-17,
-88,
16,
12,
-59,
37,
25,
42,
-24,
27,
-14,
49,
-31,
-7,
-10,
-42,
8,
26,
57,
-28,
5,
2,
1,
28,
-8,
-26,
-3,
-20,
20,
20,
8,
-42,
84,
-32,
-49,
83,
29,
52,
4,
15,
-27,
0,
-37,
-1,
11,
-21,
10,
-4,
28,
12,
38,
-21,
-33,
-24,
-29,
-22,
-49,
27,
-16,
47,
-81,
-31,
15,
32,
-53,
0,
5,
-4,
-3,
-14,
-6,
-52,
-12,
8,
-69,
44,
-27,
-24,
-32,
-17,
-4,
-30,
-33,
-22,
81,
-36,
-16,
-34,
19,
-25,
-37,
-4,
-34,
-2,
-31,
14,
-10,
10,
-10,
54,
32,
-11,
-34,
-28,
-34,
5,
-40,
22,
2,
4,
-58,
-34,
-14,
7,
-29,
61,
40,
43,
7,
-24,
-34,
30,
-19,
6,
10,
-26,
-1,
-18,
-71,
-7,
17,
16,
3,
0,
11,
51,
-23,
42
] |
Sawyer, P.J.
Defendants appeal by leave granted from an order of the circuit court denying their motion for summary disposition. We affirm in part and reverse in part.
Because this case involves a question whether summary disposition is appropriate, we will accept as true the facts pleaded by plaintiff. According to plaintiff’s complaint, on October 9, 1990, calls for emergency assistance were placed by two neighbors of plaintiffs decedent. The first call was received by defendant Hope Humbert, a 911 dispatch operator, at 12:30 a.m. Because of the priority rating given to the call, a police unit was not dispatched for approximately forty minutes after receiving the first call. According to plaintiff, while waiting for police to arrive, other calls were placed directly to the precinct. In any event, the first scout car did not arrive at the scene until approximately 1:30 a.m.
The original call itself was prompted by neighbors who saw and heard plaintiffs decedent being attacked and screaming for help. The two officers who responded to the scene are defendants Keith D. Beasley and Ronald Johnson. When officers Johnson and Beasley arrived, they were met by decedent’s neighbors, who explained that decedent had been screaming for help and that, through the decedent’s bathroom window, they had witnessed her being attacked. They informed the officers concerning which apartment decedent lived in. The officers then took down the witnesses’ names, circled the building, and left without knocking on decedent’s door or otherwise attempting to make contact, with decedent to determine if she, in fact, was being or had been attacked.
Thereafter, at approximately 4:15 a.m., a call was received by the 911 operator from decedent’s husband, who stated he had just stabbed his wife to death. In fact, the time of decedent’s death was placed at 4:50 a.m. Indeed, according to plaintiff, although decedent suffered numerous stab wounds, the actual cause of death was due to bleeding from those wounds._
On appeal, defendants argue that they were entitled to summary disposition on the basis of the "public duty” doctrine. Under the public duty doctrine, a public official, such as a police officer, is regarded as owing his duty to the public in general and not to a specific individual unless a special relationship exists between the official and the individual such that the performance by the public official would affect the individual in a manner different in kind from the way performance would affect the public. Harrison v Director of Dep’t of Corrections, 194 Mich App 446, 456-457; 487 NW2d 799 (1992).
Turning first to the issue of the 911 dispatch operator, defendant Humbert, we conclude that no special relationship can be said to exist between defendant Humbert and decedent. Decedent did not place the call to 911, thus, there were no assurances by Humbert to decedent that help was on the way. In essence, the connection between decedent and Humbert is simply too attenuated to conclude that any relationship or duty would arise between the two beyond the general duty owed by Humbert to the public at large. Accordingly, we conclude that the trial court erred in denying Humbert’s motion for summary disposition.
However, with respect to the police officers, and specifically defendant Beasley, we are persuaded that a police officer’s response at a crime scene is individualized sufficiently to allow for the creation of a duty to a potential victim at that crime scene above and beyond the general duty owed by the police to the public at large. In this respect, we think it important to consider the context in which the public duty doctrine normally is applied. Specifically, the cases in which claims were dismissed on the basis of the public duty doctrine have the common thread of involving the specula tive possibility of a tortfeasor’s injuring an unidentifiable member of the general public.
For example, in Harrison, a parolee broke into the plaintiffs house, murdered two thirteen-year-old boys, attempted to murder one other, and placed three other individuals in fear of their lives. The plaintiffs brought an action against the director of the Department of Corrections, members of the parole board, and various other officials of the Department of Corrections. In essence, their claim was based upon a theory that the granting of the parolee’s parole and his release from prison had been improper. This Court applied the public duty doctrine and rejected the argument that a special relationship existed. This Court noted that, at a minimum, the existence of a special relationship would seem to require some contact between the governmental agency or official involved and the victim and reliance by the victim upon the promises or actions of the governmental agency or official. Harrison, supra at 457.
The point made by Harrison, and other cases cited by defendants, is that while the defendants in those cases might have had some reason to believe that members of the general public might be endangered by the actions of a third party, there was no identifiable person who was being endangered. That is, the potential for injury and the identification of the victim remain hypothetical until such time as the crime has occurred.
Similarly, in Chivas v Koehler, 182 Mich App 467, 475-476; 453 NW2d 264 (1990), the Court concluded that prison guards owed no duty to members of the public killed by escaped prisoners. Again, however, in that case the danger to the public and the identity of the victims remained speculative until the crimes actually occurred.
In the case at bar, on the other hand, the police were responding to a police call in which they had been informed specifically that a crime was in progress and that a particular, identifiable victim was in danger. This does not involve a matter where some unidentifiable member of the general public might be injured, but where the police were informed that a specific member of the public was, in fact, in the process of being injured.
The closest case to defendants’ situation is that which was presented in Zavala v Zinser, 123 Mich App 352; 333 NW2d 278 (1983), aff’d sub nom Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). In Zavala, the plaintiff was shot outside a Detroit bar, which shooting was observed by police officers sitting in a nearby, marked police vehicle. The plaintiffs theory was that the defendant officers were negligent in failing to prevent the shooting. This Court upheld a grant of summary judgment, concluding both that there was no duty owed the plaintiff under the public duty doctrine and that the doctrine of governmental immunity applied. However, on further appeal, the Supreme Court specifically did not decide the issue of the public duty doctrine, concluding instead that summary judgment was appropriate on the basis of governmental immunity. As Judge Kaufman noted in his dissent in Zavala, there is a duty imposed by statute and by the Detroit City Charter for the police to preserve the peace and protect the public. Zavala, supra at 358- 359. The question, of course, becomes: When does a special relationship between the police and a specific member of the public arise that is sufficient to shift that duty from being owed to the public at large to a specific individual?
We believe that where an officer is responding to a call that a specific crime is occurring or has occurred, the specific nature of that police activity is sufficient to give rise to the special relationship between the officer and the victim so as to impose a duty upon the officer to render assistance to the victim or to protect that specific victim from further injury, dependent upon the circumstances.
We do wish to stress, however, that this does not make the police the guarantor of the safety of every crime victim. First, the officer is immune unless his conduct rises to the level of gross negligence. MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). Second, the fact that a police officer is unable to render assistance to the victim does not necessarily mean that the officer handled the call improperly. That is, the officer must handle each situation in accordance with the legal restrictions on the officer and with the proper considerations for the officer’s own safety, on the basis of the facts available to the officer at the time. The appropriate response to a particular case may, on the basis of the information available to the officer at the time, be to do nothing. Or, as was the case in Zavala, it may be appropriate for the officer to wait for backup.
Turning to the case at bar, whether the officers acted appropriately would have to be determined in light of the information received by the officers from the 911 dispatch operator and from the witnesses at the scene. The officers would have to evaluate that information to determine whether there was, in fact, a likelihood that there was a victim in need of assistance, whether the apartment should be approached, and whether the facts would justify their entry into the apartment to determine whether the victim was in need of assistance. Whether defendant Beasley and his partner breached their duty to the victim in the manner in which they handled the call or were grossly negligent, so as not to be entitled to immunity, in their handling of the call is not the question before us. Rather, we merely hold that once they were called to a crime scene in which they were informed that plaintiffs decedent was being attacked, that created a sufficient special relationship between them and the victim to create a duty to that victim to handle the call appropriately. Whether they handled the call appropriately and whether, even if negligent in handling the call, their negligence rises to the level of gross negligence necessary under the governmental immunity statute are questions of fact separate and apart from the duty question. We merely hold that a duty of care existed; the questions whether that duty was breached and whether defendants are entitled to governmental immunity are not before us.
For the above reasons, we conclude that the trial court correctly determined that defendant Beasley owed a duty to plaintiffs decedent, but erred in concluding that a duty was owed by defendant Humbert. Accordingly, we affirm the trial court’s denial of summary disposition with respect to Beasley, but reverse that denial with respect to Humbert. On remand, the trial court shall enter the appropriate order granting summary disposition in favor of Humbert.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. Defendant Humbert only may tax costs, the remaining parties not having prevailed in full.
Although Johnson is named as a defendant in plaintiffs complaint, he is not a party to this appeal, apparently because the motions for summary disposition in the lower court only affected defendants Humbert and Beasley,
Judge Kaufman did file a vigorous dissent, rejecting the conclusion that the public duty doctrine precluded liability by the officers.
Specifically, the Court noted that the officers did not, in fact, do nothing before the shooting. Rather, they determined the need for backup assistance before dealing with the altercation and had radioed for that assistance. It was while waiting for backup to arrive that the shooting occurred. The Court concluded that the officers’ decision concerning how to handle the situation was a discretionary-decisional act that came within the governmental immunity doctrine as enunciated in Ross, supra at 659-660. | [
-10,
10,
-55,
35,
-1,
-14,
-50,
35,
10,
46,
-21,
-35,
20,
42,
9,
-14,
4,
-1,
24,
-31,
-37,
-7,
-18,
5,
-9,
-24,
30,
14,
19,
55,
13,
-39,
11,
-55,
60,
19,
53,
0,
-10,
79,
9,
-4,
65,
-33,
-22,
-28,
27,
4,
16,
-10,
7,
0,
2,
1,
25,
15,
16,
-33,
13,
-27,
-54,
-10,
-41,
-15,
-41,
41,
-27,
56,
-57,
-39,
-19,
-3,
-49,
6,
22,
8,
-22,
14,
0,
2,
-8,
5,
43,
-18,
0,
-13,
-28,
-56,
-25,
-7,
-15,
31,
-13,
-37,
-30,
26,
54,
-40,
26,
-24,
15,
21,
12,
35,
-17,
35,
7,
-77,
19,
-47,
0,
45,
30,
-3,
-11,
-12,
12,
-34,
-9,
52,
24,
-28,
95,
-43,
31,
-42,
56,
-25,
11,
8,
15,
22,
46,
-14,
27,
-21,
-3,
-36,
22,
9,
-46,
-9,
10,
-33,
49,
-13,
8,
10,
-14,
43,
11,
51,
-42,
30,
15,
-15,
26,
-24,
-24,
17,
29,
-12,
11,
-29,
-39,
-33,
-34,
26,
-47,
24,
57,
14,
14,
23,
24,
0,
-13,
45,
-6,
-7,
39,
22,
45,
7,
-23,
-44,
9,
-23,
-23,
39,
-32,
-32,
3,
40,
20,
31,
64,
23,
-2,
-38,
-5,
-36,
23,
-37,
-16,
-31,
8,
6,
45,
-14,
1,
3,
-41,
-9,
-20,
-31,
13,
-35,
-45,
-4,
-31,
18,
-6,
1,
-32,
-29,
-37,
-34,
-14,
-24,
97,
-25,
-7,
46,
-27,
-13,
8,
-4,
23,
-32,
8,
-12,
21,
-35,
-25,
13,
-12,
-54,
-24,
9,
30,
14,
21,
17,
-5,
-43,
-12,
14,
3,
12,
36,
51,
-25,
35,
2,
40,
-6,
-7,
-54,
-30,
-24,
-18,
7,
8,
-6,
-35,
-23,
49,
16,
14,
5,
46,
-14,
-21,
-32,
-42,
-28,
34,
37,
19,
36,
-10,
-28,
-14,
18,
15,
47,
14,
-9,
-23,
38,
-36,
23,
-3,
-30,
-23,
24,
28,
8,
19,
11,
46,
0,
8,
33,
42,
-16,
-21,
22,
-4,
-16,
12,
-23,
2,
-22,
-6,
24,
27,
20,
-10,
-6,
49,
5,
-34,
-7,
12,
-14,
12,
-21,
29,
-8,
-6,
-31,
1,
17,
11,
17,
20,
-30,
-32,
1,
-3,
12,
-26,
-21,
9,
-4,
-33,
5,
48,
31,
-26,
-32,
22,
-27,
-33,
33,
-46,
-36,
27,
19,
-39,
-1,
-15,
3,
11,
29,
5,
-9,
67,
19,
-5,
39,
-9,
3,
-6,
-15,
27,
39,
25,
0,
-39,
16,
-39,
-36,
-17,
-20,
17,
49,
10,
-23,
-10,
21,
1,
-27,
3,
-29,
-17,
0,
18,
-7,
-12,
41,
27,
-32,
35,
-9,
-5,
62,
10,
43,
-27,
34,
-31,
0,
-14,
-43,
2,
-16,
-40,
13,
-22,
17,
-43,
-9,
48,
-60,
-12,
-10,
-24,
-61,
-26,
-13,
7,
0,
-32,
-8,
-20,
5,
3,
-9,
29,
32,
-11,
-60,
19,
66,
6,
8,
-3,
12,
-22,
8,
42,
29,
-12,
-5,
-1,
9,
-34,
6,
-8,
-44,
5,
20,
4,
-18,
27,
9,
-17,
-18,
15,
7,
-64,
-41,
50,
19,
-42,
45,
-22,
-1,
0,
-7,
-30,
-4,
9,
-11,
8,
-38,
-34,
12,
-1,
4,
9,
7,
-47,
-33,
2,
-2,
-16,
-16,
37,
-39,
-4,
-31,
0,
18,
-11,
11,
-5,
13,
-8,
-24,
-23,
-43,
9,
5,
-17,
-43,
-60,
41,
-8,
23,
-51,
57,
21,
-62,
-8,
0,
-32,
15,
13,
23,
20,
-2,
38,
34,
32,
17,
3,
4,
-14,
-8,
-10,
27,
-26,
7,
-31,
22,
2,
8,
-1,
-4,
34,
24,
-17,
30,
15,
25,
-9,
-30,
73,
-30,
-7,
-25,
34,
46,
45,
-15,
-29,
-13,
-1,
1,
-6,
-10,
-57,
45,
27,
0,
-7,
-55,
7,
9,
-14,
20,
-33,
-28,
-66,
-21,
-45,
11,
-17,
-20,
-8,
14,
-6,
34,
14,
-1,
-33,
25,
-10,
-40,
-13,
-43,
5,
12,
7,
23,
-24,
-44,
18,
-42,
64,
-15,
-63,
1,
22,
-31,
-49,
15,
-18,
13,
4,
11,
-3,
1,
13,
-30,
-7,
-7,
51,
-9,
1,
-16,
23,
33,
35,
2,
-13,
-51,
10,
-19,
19,
12,
-9,
-30,
-55,
-33,
-19,
0,
-11,
-43,
0,
-15,
-1,
5,
-43,
6,
6,
43,
46,
-1,
14,
-17,
17,
-20,
33,
-26,
43,
-6,
-50,
7,
-21,
-15,
14,
2,
24,
17,
-1,
15,
-38,
63,
22,
-14,
0,
16,
27,
19,
-30,
-5,
-31,
-38,
5,
-10,
-11,
35,
3,
-44,
-2,
-50,
12,
21,
-50,
-9,
-27,
-23,
-34,
42,
19,
4,
2,
29,
-71,
7,
45,
25,
-39,
11,
-60,
-2,
52,
-13,
5,
-30,
-79,
-32,
-21,
1,
-33,
-15,
25,
27,
-29,
33,
2,
-2,
5,
15,
44,
32,
47,
29,
-27,
3,
1,
33,
-5,
-57,
-14,
60,
-19,
27,
-21,
4,
-29,
-53,
8,
56,
18,
-11,
-14,
9,
-20,
-69,
24,
-23,
-30,
10,
-11,
-14,
11,
-58,
-3,
23,
-17,
-19,
-34,
25,
0,
17,
-13,
-35,
-17,
6,
16,
14,
-17,
11,
-24,
45,
2,
31,
8,
44,
-19,
3,
39,
-27,
3,
43,
-35,
-28,
-6,
-39,
0,
-12,
0,
-19,
-21,
5,
-16,
8,
8,
23,
3,
75,
-27,
-5,
20,
0,
-57,
33,
17,
-51,
17,
23,
-20,
5,
42,
-3,
20,
3,
19,
50,
5,
8,
-15,
7,
46,
-13,
-22,
31,
30,
22,
-3,
-50,
26,
-18,
-5,
-8,
10,
-25,
-41,
-21,
32,
7,
-4,
53,
1,
-34,
-15,
-29,
72,
-65,
10,
1,
13,
-6,
-5,
-10,
-11,
-15,
58,
-11,
31,
-15,
-28,
-34,
-3,
22,
33,
-24,
20,
-67,
14,
-1,
20,
36,
-44,
-31,
-31,
-13,
41,
32,
-18,
12,
-4,
-65,
-30,
-10,
-38,
-12,
-13,
15,
42,
-22,
-18,
8,
4,
-19,
49,
32,
-4,
11,
-45,
59,
-10,
1,
22,
-18,
6,
31,
-11,
38,
12,
60,
8,
-46,
-10,
-16,
7,
-24,
49,
0,
31,
-5,
12,
-24,
31,
7,
-28,
47,
8,
9,
58,
7,
-33,
-74,
19,
-49,
2,
27,
40,
32,
7,
0,
-11,
-19,
5,
39,
-31,
14,
-57,
17,
-45,
-2,
19,
-54,
35,
-33,
7,
19,
11,
-14,
42,
-18,
5,
-69,
11,
-9,
-3,
20,
42,
-28,
56,
-74,
60,
12,
0,
2,
-3,
34,
44,
49,
-7,
34,
49,
-31,
-10,
-24,
0,
5,
12,
-12,
10,
-43,
31,
-31,
37,
35,
9,
2,
26
] |
Shepherd, P.J.
On February 8, 1991, Donald C. and Rudale W. Austin sued Orley Enterprises, Inc., and Lyons & Company, Inc., for breach of a lease and damages. On March 19, 1991, contemporaneous with its response to plaintiffs’ complaint, Orley filed a third-party complaint against the assignees of the lease, Tri-Pointe, Inc., Pamela Lyons, Michelle Lyons, and Robert Marzolino, alleging default on the lease and seeking indemnification, damages under an asset purchase agreement, and payment of a promissory note. The primary action was resolved on November 26, 1991, when the court entered consent judgments against Orley and Lyons & Company. On July 3, 1991, Orley moved for partial summary disposition in the third-party action, which the court denied. Subsequently, third-party defendants moved for summary disposition, arguing that by demanding return of the business, Orley had foreclosed the possibility of pursuing any other remedies for the default on the lease. In an order dated November 25, 1991, the trial court dismissed the third-party complaint. Orley appeals from that order as of right. We affirm.
The focal point of this case is an agreement between Orley and Lyons & Company for the transfer of Orley’s lease with the Austins, and the purchase of Orley’s business assets. On March 17, 1990, before the lease was assigned to Lyons & Company, Orley and Lyons & Company entered into an asset purchase agreement. Pursuant to the terms of the agreement, Orley sold Lyons & Company the leasehold improvements, equipment, fixtures, supplies, business documentation, business name, goodwill, and telephone number for $85,000. The payment terms in the agreement provided that, at the time of the closing, Lyons & Company was to deliver to Orley a security agreement, a Uniform Commercial Code financing statement, and a promissory note in the amount of $70,000. Further, the agreement provided that in order to secure payment of the note, Lyons & Company’s shareholders were required to personally and individually guarantee payment of the security agreement and promissory note. The asset purchase agreement was made contingent on Orley securing plaintiffs’ consent to assign the lease of the property to Lyons & Company. Orley assigned its lease to Lyons & Company on April 16, 1990. Subsequently, the asset purchase agreement was assigned to Tri-Pointe, Inc., a successor in interest to Lyons & Company.
On April 30, 1990, third-party defendants signed a promissory note, the terms of which paralleled those outlined in the asset purchase agreement, with a principal amount of $70,000. Pamela Lyons signed the note in her individual capacity and as president of Tri-Pointe, Inc. Michelle Lyons and Robert Marzolino signed in their individual capacities.
After third-party defendants defaulted on the lease, they returned the business to Orley as demanded by Orley. Subsequently, Orley sought payment of the balance owing under the purchase agreement. Orley argued that it was a holder in due course of the promissory note and was entitled to payment on the note. The trial court denied Orley’s motion for summary disposition. Later, third-party defendants brought their own motion for summary disposition, arguing that Orley was precluded from demanding payments under the asset purchase agreement or the promissory note because Orley had elected to have the business returned. The trial court granted third-party defendants’ motion for summary disposition.
On appeal, Orley argues that the trial court erred in dismissing its third-party complaint. Orley argues that it may maintain a separate action to recover principal and interest on the promissory note in addition to its recovery of the business under the terms of the purchase agreement. In response, third-party defendants argue that the trial court properly granted summary disposition in their favor. Third-party defendants argue that Orley is barred from seeking recovery under the promissory note because the business has been returned.
This Court interprets language in contracts according to its plain meaning. Rome v Sinai Hosp, 112 Mich App 387, 392; 316 NW2d 428 (1982). Where written documents are unambiguous and unequivocal, their construction is for the court to decide as a matter of law. Mt Carmel Mercy Hosp v Allstate Ins Co, 194 Mich App 580, 588; 487 NW2d 849 (1992).
In the present case, the default provision in the asset purchase agreement provided in relevant part as follows:
In the event of Default by the Purchaser in any material aspect of any of the terms of this Agreement, including but not limited to, failure to pay rent and failure to pay Seller for a period in excess of sixty (60) days, Seller shall have the option of:
(a) Demanding payment of the total balance due under this Agreement;
(b) Requiring Purchaser to return ownership of the business to Seller, including the lease, all fixtures, furniture and equipment, existing on the date of closing and anything subsequently added by Purchaser up to the date of election of remedies by Seller. Upon this election by Seller, Purchaser shall execute any and all necessary documents to effect the total transfer of the business and the lease to Seller.
Our interpretation of the plain meaning of the default provision is that Orley could elect either to demand payment of the total balance due under the agreement or to require the return of the business. Rome, supra; Mt Carmel, supra. Orley argues that the absence of the disjunctive term "or” between options a and b indicates that the remedies are concurrent rather than mutually exclusive. However, the language in the provision concerning the seller’s "election of remedies” and the "option” of the two choices convinces us that Orley was required to choose one of the two remedies.
In the alternative, Orley argues that regardless of its remedies under the purchase agreement, it should be permitted to pursue a separate action as a holder in due course of the promissory note. We disagree with Orley’s position. Here, the promissory note and the purchase agreement were clearly all part of the same transaction. Indeed, the purchase agreement dictated the terms of the promissory note. To allow Orley to pursue a separate action on the promissory note would run contrary to the doctrine of election of remedies. Riverview Cooperative, Inc v First Nat’l Bank & Trust Co of Michigan, 417 Mich 307, 311; 337 NW2d 225 (1983). In the present case, to allow a separate action on the promissory note would be logically inconsistent with Orley’s prior election to have the business returned, and could result in double redress for a single injury. Id. at 312, 322; Jim-Bob, Inc v Mehling, 178 Mich App 71, 91; 443 NW2d 451 (1989); Gersonde Equipment Co v Walters, 363 Mich 49, 54; 109 NW2d 1 (1961).
The cases cited by Orley on appeal, McBride v Arends, 79 Mich App 440; 263 NW2d 5 (1977), and Badour v Zifkin, 96 Mich App 325; 292 NW2d 201 (1980), are distinguishable from the situation in the present case because in each of those cases the Court found that separate agreements pertained to different property interests. In the present case, both the promissory note and the default provision in the purchase agreement provided security for the same business assets. Thus, McBride and Bad-our are inapposite to the case at bar.
Similarly, Production Finishing Corp v Shields, 158 Mich App 479; 405 NW2d 171 (1987), is distinguishable from the present case. In that case, the plaintiff sought damages for breach of fiduciary duties, diversion of a corporate opportunity, and breach of an employment contract. Id. at 495. Although all of the claims therein arose out of the same course of conduct by the defendant, the counts sought different categories of damages, i.e., lost profits as opposed to bonuses. Id. In the present case, both the promissory note and the default provision in the purchase agreement were intended to provide a remedy for the same underlying harm — breach of the purchase agreement. Thus, Production Finishing is also inapplicable to the present case.
Accordingly, the trial court properly granted summary disposition for third-party defendants because Orley has already been afforded a remedy through the return of the business. Riverview Cooperative, supra at 311-312. We do not share the dissent’s concern that this opinion will contribute to the drying up of venture capital in the case of small start-up businesses. This case is of much less significance than the dissent would imply. The case involves nothing more than an interpretation of a specific agreement. Other agreements exist under which it is clear that all remedies are cumulative. This was not such an agreement. In the grand scheme of American entrepreneurial-ism, free enterprise survives notwithstanding the inartful and unwise language of one transaction out of the thousands that are consummated every day.
Affirmed.
R. D. Gotham, J., concurred.
Plaintiffs also sued Over the Rainbow, Inc., a prior lessee; however, a discussion of that party’s interest is not necessary for purposes of this appeal.
The prior published opinion in Mt Carmel, supra, was vacated in part on other grounds on rehearing. See Mt Carmel Mercy Hosp v Allstate Ins Co, unpublished opinion per curiam of the Court of Appeals, decided March 22, 1993 (Docket No. 119978). | [
11,
2,
-11,
13,
-34,
-27,
67,
5,
59,
26,
-12,
-5,
-18,
6,
-42,
45,
34,
-8,
15,
-51,
-47,
-46,
25,
13,
15,
-21,
-5,
-49,
-6,
-9,
-24,
-27,
-33,
-11,
-81,
23,
53,
18,
-32,
-32,
9,
29,
43,
-63,
-4,
4,
45,
-43,
29,
-10,
21,
39,
45,
-8,
-39,
-16,
17,
16,
14,
42,
-13,
-34,
33,
14,
-14,
1,
36,
41,
32,
5,
-15,
-5,
35,
-11,
-18,
-9,
-39,
33,
-15,
-22,
47,
-25,
28,
-20,
5,
11,
21,
31,
4,
47,
-47,
31,
-2,
-10,
-38,
37,
-54,
-28,
25,
-25,
-11,
-24,
20,
-5,
-11,
3,
15,
-31,
-29,
9,
-16,
11,
33,
-4,
-35,
-5,
-2,
-11,
19,
-4,
15,
33,
30,
-29,
59,
-16,
-14,
-17,
-24,
0,
8,
-17,
-76,
46,
-19,
-22,
28,
-6,
-7,
-19,
-41,
42,
-10,
-26,
23,
81,
-14,
1,
-10,
5,
-61,
17,
-13,
59,
8,
37,
13,
8,
-23,
-37,
70,
-35,
28,
-64,
-69,
-25,
9,
19,
4,
71,
30,
57,
12,
-70,
-7,
20,
39,
11,
-32,
-2,
-41,
5,
-52,
-7,
70,
-20,
18,
23,
-26,
31,
8,
-23,
-18,
76,
-29,
-37,
11,
20,
47,
-14,
-14,
-36,
-13,
-21,
-18,
-1,
45,
15,
-16,
29,
-33,
38,
-27,
-52,
-37,
22,
47,
-48,
9,
4,
28,
12,
-50,
-30,
-99,
-51,
3,
-32,
5,
-35,
-11,
26,
-74,
41,
3,
-14,
45,
24,
52,
10,
-2,
24,
-49,
-39,
-48,
-40,
-66,
-8,
19,
5,
-14,
10,
-83,
22,
-2,
-23,
-49,
3,
25,
-38,
32,
19,
-26,
3,
3,
-8,
-17,
-6,
-19,
80,
-60,
7,
20,
3,
37,
-22,
-9,
-12,
-11,
15,
4,
-40,
46,
13,
20,
-22,
71,
57,
-39,
7,
-36,
0,
-1,
-62,
43,
32,
-38,
47,
-3,
25,
-42,
-12,
19,
-28,
-4,
86,
-7,
-42,
-23,
-6,
33,
28,
22,
-27,
-36,
-5,
-22,
7,
49,
-39,
87,
-8,
34,
41,
9,
-39,
46,
26,
26,
-15,
5,
12,
-40,
-17,
-12,
31,
14,
-41,
-40,
46,
15,
27,
2,
-5,
21,
17,
27,
-34,
-18,
3,
-18,
-7,
-69,
29,
57,
14,
3,
22,
-58,
43,
53,
-45,
-51,
-14,
-27,
58,
-16,
49,
46,
39,
20,
48,
-40,
6,
3,
-10,
-1,
-4,
11,
63,
43,
-30,
28,
-11,
16,
-63,
-16,
11,
9,
-12,
-71,
43,
29,
-2,
-18,
-32,
-13,
17,
-15,
9,
30,
25,
-39,
-49,
-22,
-19,
44,
-64,
0,
-16,
-18,
-106,
-9,
7,
-69,
-20,
2,
-94,
15,
3,
38,
17,
-74,
14,
22,
-5,
7,
19,
-38,
49,
-76,
21,
31,
-16,
0,
11,
-73,
-24,
-23,
1,
-13,
44,
-34,
-6,
0,
27,
-20,
30,
53,
38,
-36,
-2,
40,
-25,
0,
-20,
10,
5,
-2,
-1,
62,
-59,
55,
-4,
-27,
3,
21,
-14,
-19,
30,
-20,
47,
35,
0,
-61,
-20,
-7,
-4,
16,
45,
24,
14,
8,
32,
-54,
-17,
43,
-13,
1,
-8,
14,
43,
21,
-16,
11,
0,
51,
19,
24,
42,
-31,
-27,
1,
38,
38,
10,
13,
-18,
22,
21,
24,
-33,
13,
62,
1,
-7,
-6,
48,
40,
22,
-40,
27,
11,
-2,
-3,
23,
16,
45,
26,
24,
24,
-3,
20,
9,
0,
26,
-24,
-50,
-44,
-76,
-3,
48,
-51,
30,
-31,
38,
34,
-47,
22,
0,
-28,
-19,
67,
33,
-55,
31,
45,
38,
-18,
-29,
-30,
31,
-3,
5,
23,
-7,
10,
-13,
31,
0,
-62,
11,
0,
-7,
1,
-23,
-6,
18,
18,
-41,
-66,
-23,
-45,
-34,
-28,
34,
47,
-9,
26,
10,
-13,
1,
27,
-26,
-4,
3,
-3,
-1,
42,
32,
-22,
-59,
-49,
-46,
-17,
-24,
-50,
62,
-16,
-49,
31,
-37,
-53,
-47,
-33,
-27,
59,
-28,
16,
0,
-44,
-26,
-8,
19,
1,
44,
57,
-15,
-9,
17,
8,
-4,
-39,
38,
5,
34,
14,
0,
-9,
-28,
28,
-12,
2,
-21,
-7,
29,
7,
-47,
47,
22,
-20,
-40,
81,
-21,
29,
-10,
8,
-53,
13,
-56,
36,
0,
8,
-14,
50,
-21,
4,
-50,
15,
-34,
-18,
36,
5,
33,
-12,
3,
24,
40,
-52,
-6,
-17,
5,
-49,
-15,
-52,
-21,
21,
-36,
2,
-10,
-71,
-47,
-15,
-14,
-47,
10,
49,
13,
26,
-6,
30,
16,
42,
66,
15,
17,
-64,
34,
-46,
14,
4,
-45,
16,
-40,
-1,
7,
30,
20,
-34,
-9,
9,
13,
93,
-20,
-53,
18,
-12,
24,
21,
28,
-18,
55,
-4,
27,
4,
22,
-6,
-62,
-54,
48,
-20,
-28,
-31,
27,
-29,
-7,
-34,
61,
22,
2,
-1,
0,
7,
55,
25,
-44,
-22,
-19,
-80,
-8,
12,
23,
2,
-34,
42,
3,
43,
-48,
10,
-13,
-39,
48,
0,
-5,
-26,
28,
54,
27,
33,
-9,
-34,
-12,
18,
17,
-4,
-23,
38,
-19,
56,
37,
-2,
3,
6,
-46,
-51,
39,
-13,
74,
-28,
-8,
-34,
-14,
0,
44,
5,
-20,
-12,
-24,
30,
37,
-9,
-25,
21,
-21,
33,
15,
-10,
28,
5,
39,
-43,
-14,
-39,
51,
-27,
44,
-44,
34,
24,
-12,
19,
-39,
-31,
-8,
-8,
32,
9,
28,
-14,
46,
-12,
-20,
-2,
-12,
51,
19,
-62,
30,
11,
-25,
-2,
-7,
42,
-43,
15,
35,
1,
-43,
-36,
-50,
49,
-16,
-44,
49,
3,
22,
-1,
19,
-7,
18,
-8,
-2,
19,
44,
33,
0,
42,
-39,
0,
-42,
11,
16,
-49,
63,
23,
39,
72,
10,
22,
-27,
-38,
-9,
-14,
-11,
15,
-27,
52,
-59,
-7,
4,
-78,
-5,
-9,
-12,
-41,
16,
-35,
-16,
-22,
-38,
35,
-18,
57,
0,
-37,
-8,
-30,
-6,
-10,
0,
80,
-74,
-27,
-58,
-12,
-15,
33,
-19,
-4,
-21,
20,
13,
31,
32,
25,
-30,
37,
-47,
-71,
61,
-22,
-19,
11,
-16,
-20,
-36,
0,
7,
16,
-8,
-26,
75,
2,
19,
-27,
2,
3,
0,
-26,
-78,
-25,
-39,
-16,
-37,
21,
41,
22,
-5,
-5,
-17,
13,
-3,
14,
-22,
-77,
-30,
-2,
11,
38,
14,
7,
-24,
-13,
45,
12,
-4,
-2,
-8,
19,
-19,
-20,
-44,
-5,
-10,
10,
-40,
-40,
22,
13,
35,
-38,
-8,
28,
-14,
-42,
-17,
68,
4,
27,
-18,
-11,
14,
47,
10,
-19,
22,
-17,
-23,
2,
34,
12,
-8,
-23,
31
] |
Per Curiam.
Plaintiffs appeal as of right from an order of the circuit court granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8). We affirm.
Although plaintiff Larry J. Lingle was found not guilty by reason of insanity in the shooting death of Robert Tollaksen, the trial court did not err in granting defendants’ motion for summary disposition. A plaintiff cannot benefit from a cause of action founded upon an immoral or illegal act. Glazier v Lee, 171 Mich App 216, 220; 429 NW2d 857 (1988); 1A CJS, Actions, §29, pp 386-387. Accordingly, Larry Lingle’s negligence claim arising out of his treatment as an outpatient at Riverwood Community Mental Health Center was barred.
Further, the bystander liability claims of Larry Lingle’s parents and sister were properly dismissed. Bystander recovery is limited to immediate family members of the injured third party. Nugent v Bauermeister, 195 Mich App 158, 160-161; 489 NW2d 148 (1992); DAIIE v McMillan (On Remand), 159 Mich App 48; 406 NW2d 232 (1987).
Affirmed._ | [
-32,
10,
-57,
42,
-9,
-29,
35,
47,
-25,
20,
3,
-7,
14,
19,
-44,
-27,
-12,
-20,
16,
9,
6,
19,
-23,
27,
-15,
-60,
-1,
6,
6,
16,
2,
-31,
-7,
-14,
-37,
21,
2,
34,
7,
37,
-49,
-28,
32,
-19,
-25,
-17,
53,
2,
30,
-13,
22,
-36,
-40,
-40,
23,
-31,
68,
-2,
-1,
6,
-36,
50,
-5,
-45,
42,
33,
-22,
35,
-6,
-6,
-16,
42,
-28,
20,
33,
10,
-19,
10,
2,
4,
15,
-7,
33,
-7,
-4,
-3,
-4,
9,
13,
-47,
-27,
-19,
-56,
-18,
13,
9,
20,
-52,
15,
-23,
2,
21,
46,
38,
-20,
-23,
3,
-11,
30,
-34,
-42,
6,
-22,
22,
-2,
-21,
21,
-12,
10,
60,
10,
-2,
68,
-49,
45,
13,
29,
2,
28,
58,
20,
-6,
49,
-37,
-3,
30,
-12,
-7,
9,
28,
-38,
-4,
2,
-38,
-15,
82,
-28,
-7,
34,
-38,
-28,
50,
24,
42,
28,
-1,
10,
-12,
0,
27,
30,
-38,
25,
3,
11,
-48,
-20,
11,
-30,
56,
4,
-23,
39,
16,
14,
55,
2,
9,
-22,
-27,
18,
16,
21,
29,
-16,
-52,
32,
2,
-31,
18,
-30,
-2,
-34,
3,
1,
72,
61,
28,
-22,
-16,
28,
-63,
-8,
-32,
43,
-28,
49,
-14,
39,
-31,
-14,
11,
-29,
-47,
27,
-14,
41,
-38,
-51,
-57,
-18,
18,
40,
11,
-2,
-41,
-36,
-30,
-38,
-37,
38,
-49,
-61,
26,
-45,
4,
-9,
-11,
76,
-16,
43,
5,
18,
-14,
-12,
9,
-20,
-44,
-23,
-23,
24,
-22,
-5,
30,
0,
-7,
17,
-13,
-19,
-17,
-5,
32,
-31,
25,
-30,
71,
-34,
36,
-65,
13,
-35,
23,
16,
-15,
13,
-101,
-5,
51,
53,
38,
54,
-13,
63,
-50,
-58,
-4,
-15,
23,
-6,
-23,
50,
-7,
-25,
-69,
6,
39,
21,
-15,
-30,
2,
18,
-16,
39,
-27,
-33,
-14,
21,
41,
-20,
23,
-52,
52,
-2,
-43,
-4,
-24,
-57,
-33,
31,
-20,
-32,
-25,
-12,
-53,
-48,
-27,
21,
27,
-6,
11,
-68,
56,
-5,
-31,
14,
19,
11,
-20,
-16,
14,
-1,
-7,
-31,
-25,
24,
12,
23,
20,
-2,
-40,
0,
-6,
2,
3,
-15,
-7,
0,
-22,
-19,
19,
0,
-16,
-41,
25,
8,
16,
34,
-13,
-2,
76,
-29,
-48,
1,
-20,
-6,
33,
-12,
25,
4,
37,
11,
-5,
53,
-28,
10,
-40,
-70,
-8,
22,
79,
-23,
-35,
-10,
-49,
12,
-32,
-60,
2,
16,
-29,
11,
-15,
6,
55,
-11,
-37,
-33,
-16,
6,
19,
-32,
65,
37,
68,
-6,
-6,
26,
-21,
-1,
-11,
61,
5,
18,
-69,
19,
7,
-3,
21,
-4,
-43,
19,
19,
-2,
-44,
26,
-4,
-61,
-2,
-11,
-9,
-55,
-68,
0,
-24,
-5,
-5,
-23,
-5,
29,
10,
-21,
28,
32,
-14,
-43,
5,
24,
6,
-16,
-30,
-6,
-51,
0,
-2,
26,
-46,
-16,
21,
16,
-33,
28,
-13,
-31,
6,
21,
29,
13,
15,
15,
-1,
9,
-16,
7,
-13,
-44,
17,
26,
18,
40,
-57,
20,
36,
5,
-28,
-12,
-47,
-19,
36,
-62,
-49,
15,
-25,
-8,
11,
48,
-34,
-51,
-58,
18,
40,
-5,
-12,
-30,
27,
-17,
-27,
15,
-34,
24,
-15,
-11,
-23,
21,
-25,
-25,
-10,
-11,
-12,
-22,
-37,
33,
-46,
13,
-31,
37,
0,
-71,
-23,
12,
-14,
44,
7,
33,
-4,
30,
-14,
5,
21,
61,
-25,
-35,
-36,
10,
-44,
25,
22,
-8,
29,
16,
7,
-4,
41,
50,
64,
2,
-1,
18,
-9,
20,
-14,
23,
25,
7,
-64,
-52,
14,
49,
66,
11,
-13,
-7,
43,
15,
-22,
-14,
-23,
38,
-1,
-43,
-12,
-56,
-22,
20,
-33,
-25,
-16,
13,
-27,
17,
10,
-44,
-11,
-18,
-8,
17,
16,
68,
-53,
47,
-20,
9,
12,
-25,
-10,
-39,
-9,
30,
2,
8,
7,
-69,
-18,
-10,
44,
-41,
4,
-19,
2,
-35,
-41,
-31,
16,
-4,
-26,
-32,
33,
16,
0,
-45,
22,
-13,
51,
6,
15,
21,
-19,
19,
26,
-3,
2,
-32,
14,
-45,
35,
-19,
-17,
-18,
-30,
-5,
-37,
2,
25,
-26,
14,
9,
25,
64,
-25,
6,
32,
31,
40,
-8,
48,
-18,
17,
-40,
43,
0,
48,
-30,
-32,
61,
-25,
-10,
41,
-61,
27,
57,
-16,
-22,
48,
47,
3,
-32,
24,
-29,
62,
22,
-27,
6,
54,
-21,
30,
-18,
20,
-5,
-23,
-50,
-50,
-44,
65,
-14,
-23,
0,
12,
0,
-61,
13,
15,
-15,
17,
13,
-34,
59,
21,
18,
24,
-22,
-35,
14,
-28,
1,
36,
-7,
8,
-3,
15,
-16,
1,
13,
16,
-7,
28,
-18,
-1,
-29,
-32,
65,
16,
12,
57,
-5,
-1,
-17,
-7,
45,
-26,
-26,
7,
21,
-4,
18,
1,
-14,
-46,
-30,
1,
6,
-18,
-41,
34,
-47,
-17,
-68,
4,
-7,
11,
13,
-8,
-11,
-14,
-8,
26,
-31,
-2,
-20,
-35,
-21,
-2,
26,
57,
-30,
26,
27,
31,
59,
7,
9,
-7,
24,
25,
1,
26,
-24,
-2,
-21,
-11,
33,
15,
91,
-27,
-24,
-3,
-40,
-21,
-18,
-24,
-15,
-1,
44,
7,
-30,
-1,
21,
5,
33,
-20,
-12,
0,
-74,
-6,
11,
65,
-43,
-27,
41,
-12,
-9,
-12,
-48,
13,
-26,
28,
39,
13,
73,
-71,
28,
26,
24,
-44,
-16,
38,
-26,
20,
-32,
-29,
14,
5,
45,
16,
-38,
-37,
-3,
52,
2,
-2,
16,
34,
-46,
17,
-38,
39,
6,
28,
-16,
12,
-33,
5,
26,
-27,
-30,
27,
22,
56,
-12,
-21,
-55,
-4,
11,
44,
-23,
22,
-11,
33,
-46,
13,
62,
-54,
-7,
-8,
14,
43,
11,
10,
-26,
30,
-34,
12,
-32,
-30,
71,
42,
-8,
18,
-48,
18,
27,
-22,
-27,
19,
61,
2,
-23,
-2,
46,
-18,
-40,
29,
-76,
-10,
29,
-22,
36,
-12,
28,
-11,
-45,
-25,
-6,
39,
-15,
44,
-6,
-10,
21,
-22,
-28,
44,
27,
-49,
-8,
-7,
-29,
23,
12,
-25,
-37,
5,
-20,
-26,
-68,
-7,
70,
-7,
17,
15,
38,
-20,
-3,
-30,
17,
-44,
27,
-35,
-15,
20,
-10,
22,
-12,
-33,
-2,
-34,
-17,
1,
-63,
15,
-23,
-21,
1,
-11,
16,
48,
12,
6,
-16,
4,
9,
-16,
28,
12,
45,
1,
47,
43,
57,
14,
21,
-40,
-14,
34,
88,
-49,
-3,
-16,
-28,
-5,
-20,
16,
-38,
27,
-5,
13
] |
R. J. Danhof, J.
Plaintiffs Ethel and Raymond Listanski appeal as of right from the circuit court’s orders granting defendant Canton Township’s motion for summary disposition pursuant to MCR 2.116(C)(7). We affirm.
On August 25, 1989, Ethel Listanski slipped and fell on a public sidewalk adjacent to a county road in front of a residence in Canton Township. The plaintiffs brought suit against the township and George Gornell, the owner of the residence, alleging that the sidewalk was not in reasonable repair. The trial court summarily dismissed the township, finding that the highway exception to governmental immunity did not apply because the township did not have jurisdiction over the sidewalk upon which Ethel fell.
On appeal, plaintiffs contend that the township has jurisdiction over the sidewalk and that the highway exception to governmental immunity therefore applied. We disagree.
The defective highway exception to governmental immunity applies where a governmental agency’s failure to maintain in reasonable repair a highway under its jurisdiction causes bodily injury. MCL 691.1402; MSA 3.996(102). This exception applies to municipal corporations. MCL 691.1401(a) and (d); MSA 3.996(lÓl)(a) and (d). The term "highway” includes sidewalks. MCL 691.1401(e); MSA 3.996(101)(e). .
Defendant asserted that the county had jurisdiction over the road adjacent to the sidewalk and that it did not have jurisdiction to repair the sidewalk without the county’s permission. In support of this allegation, defendant submitted the affidavit of Tom Casari, the engineer for Canton Township. Plaintiffs rely upon Jones v Ypsilanti, 26 Mich App 574; 182 NW2d 795 (1970), in asserting that the township and the county had concurrent jurisdiction over the sidewalk. Jones involved a plaintiff who fell on a sidewalk along a state trunk line highway in a city. This Court construed Const 1963, art 5, § 28 and art 7, § 29 in finding that the city retained reasonable control over state trunk line highways within its boundaries. Art 5, § 28 established a state highway commission to obtain jurisdiction and control over trunk line highways. Art 7, § 29 provides in relevant part:
Except as otherwise provided in this constitution the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government.
There were no statutory provisions. limiting the city’s control over the sidewalks within its boundaries. Thus, this Court rejected the city’s claim that it did not have jurisdiction over the sidewalk.
This case is distinguishable because a township is involved. MCL 41.288(1); MSA 9.585(3)(1) authorizes a township, through its board, to install sidewalks along a highway, but contains the following limitation:
A highway under the jurisdiction of the director of the state transportation department or the board of county road commissioners shall not be improved under this act without the written approval of the director of the state transportation department or the board of county road commissioners.
Further, MCL 41.288a; MSA 9.585(4) authorizes a township to enact ordinances relating to sidewalk maintenance and repairs along county roads, but further requires the approval of the county. Therefore, the Legislature has limited a township’s jurisdiction over the sidewalks within its boundaries by requiring the county road commissioners’ approval of repairs. There also is no provision imposing a duty upon the township to repair sidewalks adjacent to county or state roads. See Court v Clark, 19 Mich App 261, 263; 172 NW2d 545 (1969). Accordingly, this Court finds that Canton Township did not have jurisdiction to repair the sidewalk upon which plaintiff Ethel Listanski fell, and that the court did not err in summarily dismissing plaintiffs’ claims.
Affirmed.
Hood, P.J., concurred. | [
-63,
34,
13,
-3,
-50,
7,
-12,
16,
13,
39,
-30,
-26,
44,
27,
-48,
-7,
-20,
46,
-12,
32,
-1,
-45,
1,
8,
-70,
8,
57,
3,
-34,
41,
12,
-35,
5,
-5,
-32,
7,
74,
14,
23,
29,
23,
33,
-56,
-43,
5,
10,
15,
8,
7,
-21,
-15,
51,
-33,
17,
-25,
-8,
-43,
-15,
-25,
-51,
-48,
16,
-1,
-11,
50,
7,
24,
32,
31,
-20,
-28,
47,
-34,
-63,
-17,
88,
-26,
13,
0,
36,
-45,
-28,
26,
41,
-15,
-9,
-82,
13,
-37,
-12,
-3,
-36,
2,
0,
20,
32,
-19,
-29,
-4,
-47,
3,
48,
33,
18,
12,
12,
2,
-57,
21,
-15,
-53,
25,
-19,
17,
-9,
-15,
24,
55,
42,
34,
25,
-13,
61,
11,
-23,
-6,
-23,
-19,
4,
0,
6,
18,
-1,
53,
-9,
45,
-13,
-10,
54,
49,
10,
-5,
2,
-22,
10,
-2,
-19,
-3,
-24,
-35,
-48,
0,
74,
0,
-18,
15,
26,
-14,
53,
42,
23,
-4,
-9,
25,
-18,
-29,
-62,
47,
1,
41,
54,
6,
24,
-35,
18,
12,
-6,
29,
3,
34,
2,
19,
-25,
-29,
-9,
-84,
-41,
-49,
-6,
-46,
48,
0,
-10,
-44,
-4,
74,
-8,
50,
-45,
-18,
-7,
-61,
-8,
-28,
-17,
8,
-4,
-20,
-9,
-16,
1,
-52,
0,
0,
54,
-51,
67,
-40,
-16,
16,
25,
66,
55,
-21,
-45,
29,
-14,
-22,
-10,
-24,
44,
-6,
24,
37,
-6,
21,
-17,
-30,
1,
7,
14,
45,
7,
3,
-13,
15,
-24,
-13,
-29,
-9,
27,
-35,
-35,
-71,
-3,
-9,
30,
30,
-14,
-1,
55,
26,
-7,
15,
-15,
39,
14,
7,
-69,
-17,
-31,
23,
31,
-16,
-74,
-29,
62,
-11,
62,
38,
-13,
-48,
-35,
-20,
5,
72,
-16,
9,
-1,
-32,
6,
-18,
-32,
43,
-29,
29,
63,
-44,
11,
2,
0,
31,
6,
22,
1,
-10,
-19,
-23,
29,
5,
18,
-28,
21,
-11,
-2,
71,
-5,
-5,
58,
-14,
-34,
48,
-18,
-14,
-28,
-32,
-3,
-32,
4,
-4,
13,
52,
4,
29,
44,
-30,
0,
-18,
-69,
-1,
-3,
-4,
28,
1,
27,
22,
-42,
16,
43,
-12,
0,
-45,
-15,
-26,
-10,
10,
22,
-5,
-65,
16,
-10,
65,
-40,
6,
0,
-56,
9,
14,
9,
47,
-2,
-19,
41,
12,
-27,
-32,
-9,
50,
4,
47,
11,
-10,
28,
1,
14,
-21,
-13,
-20,
-26,
-9,
-33,
-59,
35,
49,
8,
-12,
3,
32,
-31,
0,
-8,
5,
4,
61,
-25,
-23,
21,
-1,
-10,
1,
-16,
-3,
8,
-31,
8,
19,
15,
-14,
-2,
-37,
7,
6,
0,
-81,
45,
-25,
-21,
13,
19,
32,
37,
16,
-10,
7,
26,
-23,
0,
-43,
-7,
-35,
-12,
20,
19,
-17,
-3,
-15,
-22,
37,
-31,
-6,
83,
27,
-12,
-16,
-2,
0,
-37,
-6,
29,
-75,
-11,
-35,
-20,
-31,
37,
-30,
-68,
9,
14,
-39,
-21,
9,
-9,
25,
6,
7,
0,
6,
-20,
-14,
-22,
-12,
-16,
-5,
2,
-25,
61,
66,
-32,
-22,
23,
6,
-26,
22,
23,
-14,
-23,
24,
-20,
-26,
31,
11,
-50,
24,
-3,
22,
-49,
13,
-39,
-11,
-17,
-39,
14,
49,
-2,
16,
43,
12,
37,
-20,
-24,
-18,
-10,
-34,
17,
-20,
-5,
-19,
23,
7,
5,
-34,
-10,
38,
-8,
-11,
5,
9,
-8,
-4,
21,
46,
12,
-32,
43,
-32,
-17,
56,
10,
-6,
-6,
-26,
-38,
-67,
35,
-58,
8,
-11,
15,
24,
-44,
36,
37,
6,
18,
13,
-6,
-30,
18,
-14,
-28,
24,
44,
-98,
-32,
28,
-3,
-19,
-8,
-12,
1,
19,
-43,
-39,
-5,
2,
0,
-42,
5,
0,
-2,
-18,
-12,
-23,
12,
41,
-7,
21,
9,
-10,
44,
-11,
-19,
26,
19,
-5,
2,
-63,
71,
-26,
13,
-22,
-45,
27,
-37,
26,
-22,
-1,
36,
-1,
-6,
21,
39,
40,
0,
20,
42,
17,
-89,
-22,
-10,
32,
-46,
-19,
11,
-2,
13,
17,
18,
10,
-16,
3,
-3,
0,
-6,
-26,
-18,
62,
-36,
-9,
-30,
61,
-6,
-17,
-2,
12,
-19,
6,
-8,
-18,
-5,
17,
6,
10,
-43,
14,
7,
-35,
32,
-6,
13,
17,
-1,
2,
37,
-41,
-23,
23,
-20,
49,
-6,
-39,
9,
-6,
21,
-36,
15,
40,
52,
-37,
-53,
23,
21,
21,
10,
-12,
5,
17,
-17,
56,
0,
66,
-14,
41,
-75,
26,
-1,
4,
12,
-18,
-38,
-3,
-20,
12,
-14,
52,
46,
8,
-12,
54,
1,
-30,
-49,
-33,
-2,
-27,
2,
-36,
-9,
60,
23,
36,
-7,
-18,
-14,
-13,
-17,
19,
16,
-52,
-11,
3,
-11,
-10,
-5,
0,
3,
0,
7,
-4,
-53,
20,
12,
-22,
-30,
-83,
3,
-25,
11,
11,
-4,
-41,
46,
-3,
-24,
-26,
10,
-4,
1,
11,
-14,
50,
-8,
-63,
-21,
20,
-43,
-48,
-15,
-57,
-7,
-5,
32,
-24,
7,
18,
10,
-6,
-28,
-5,
-5,
25,
36,
-23,
-7,
32,
44,
54,
20,
2,
-6,
32,
-16,
24,
2,
-19,
-49,
46,
39,
47,
-1,
-40,
5,
-3,
55,
25,
7,
47,
-11,
-7,
-19,
-21,
-17,
-20,
-16,
28,
23,
-20,
20,
-17,
30,
6,
-42,
10,
-41,
7,
19,
10,
-31,
-28,
45,
25,
-20,
-5,
-7,
33,
-15,
4,
20,
28,
-8,
-7,
11,
-50,
10,
3,
-8,
0,
-27,
31,
29,
1,
-71,
-42,
-26,
-16,
0,
-69,
39,
50,
-8,
50,
6,
-2,
32,
-37,
-40,
-24,
8,
-27,
8,
-14,
47,
19,
-24,
-8,
-30,
-9,
22,
32,
9,
13,
-22,
33,
-43,
1,
-65,
41,
31,
9,
4,
22,
39,
-49,
-67,
14,
38,
18,
-21,
19,
-35,
-15,
28,
19,
-10,
-13,
-39,
-22,
4,
0,
-17,
-2,
6,
-27,
-71,
3,
-20,
14,
22,
37,
-3,
-64,
-20,
0,
6,
-33,
-1,
-25,
-39,
-27,
19,
14,
-16,
54,
-26,
4,
26,
13,
-27,
9,
53,
9,
14,
26,
-10,
-8,
-33,
3,
11,
10,
13,
24,
-22,
21,
-17,
-33,
7,
-50,
37,
80,
-42,
19,
-34,
5,
22,
-16,
2,
21,
-6,
16,
7,
-22,
14,
36,
-17,
-16,
8,
-17,
-50,
-52,
-5,
7,
28,
-23,
-4,
7,
-45,
10,
9,
-6,
8,
-14,
22,
12,
16,
3,
48,
-34,
33,
29,
-24,
48,
75,
-32,
53,
21,
7,
16,
-38,
4,
-5,
-51,
3,
7
] |
Per Curiam.
Defendant was convicted by a jury on a charge of first-degree felony murder, MCL 750.316; MSA 28.548. Defendant, who was sentenced to life in prison, appeals her conviction as of right. We affirm.
The present case stems from a fire that originated in defendant’s apartment in a complex inhabited almost exclusively by senior citizens. Defendant, who is not a senior citizen, was permitted to reside in the complex because she had a medical condition (epilepsy). On September 8, 1989, the resident manager made several trips to defendant’s apartment to inform her that she would have to move out within thirty days because she had caused a number of disruptions. On the final trip, the manager observed a cigarette smoldering on defendant’s bed sheet; the manager removed the sheet and left the apartment after defendant indicated that she intended to kill herself.
Four days later, on the evening of September 12, 1989, an alarm sounded and smoke was seen coming from defendant’s door. The fire department was summoned and several residents began to assist others out of the building. Before the fire department’s arrival, one of the residents, Mr. Gannon, forced defendant’s door open and confirmed that her apartment was on fire. According to Gannon, defendant was not in her apartment. All the residents were evacuated from the complex, including defendant’s next-door neighbor, Emma Merritt. The fire department arrived and the blaze, which did not spread to other units, was extinguished after approximately one hour. Merritt, who was neither burned during the fire nor inhaled any smoke, collapsed on the sidewalk and died of a heart attack. The medical examiner who performed the autopsy opined that Merritt’s heart attack was brought on by the excitement generated by the fire.
An examination of defendant’s apartment led the authorities to conclude that the fire had been intentionally set. Defendant initially claimed that someone had thrown a Molotov cocktail through her window. Later, defendant stated that one of her multiple personalities may have started the fire by placing a lit cigarette on the bed. A trial was conducted and defendant presented the multiple personality/insanity defense. The jury found defendant guilty of first-degree felony murder. However, defendant was granted a new trial on the basis that both the prosecutor and defense counsel had misinterpreted the results of a blood alcohol test performed on defendant the evening of the fire. Defendant’s blood alcohol level was much higher than thought to be by defense counsel and the prosecutor.
At the retrial, defendant abandoned the multiple personality/insanity defense. Instead, defendant focused on the cause of death and whether she was capable of forming the requisite intent for felony murder given her level of intoxication. The prosecutor offered the testimony of a resident from the complex who claimed that defendant approached her on the sidewalk after the evacuation and said, "I did a good job, didn’t I.” Additionally, an inmate from the Ingham County Jail testified that, while awaiting retrial, defendant told her that she intentionally set the fire in response to the eviction notice. According to the inmate, defendant said that she did not intend to hurt anyone by starting the fire. The jury found defendant guilty as charged.
Defendant first argues that the trial court erred in denying her motion for a directed verdict. We disagree.
When reviewing a denial of a motion for a directed verdict, this Court must consider the evidence presented by the prosecution up to the time the motion was made in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. Circumstantial evidence and reasonable inferences therefrom may be sufficient to prove the elements of a crime. [People v Morris, 202 Mich App 620, 622; 509 NW2d 865 (1993). Citations omitted.]
To establish the crime of felony murder, the prosecution must present proofs from which the jury could rationally find that, while committing the underlying offense, the defendant acted with the intent to kill, with the intent to do great bodily harm, or with wanton and wilful disregard of the likelihood that the natural tendency of the defendant’s behavior was to cause death or great bodily harm. People v Aslin, 179 Mich App 456, 458; 446 NW2d 832 (1989).
In the present case, a resident of the complex testified that while the fire was still ablaze, defendant remarked, "I did a good job, didn’t I.” Additionally, an inmate at the jail where defendant was housed stated that defendant admitted inten tionally setting the fire by placing a lit cigarette and a pair of electric curlers on the bed. This statement was corroborated by the evidence found at the scene by investigators. More specifically, investigators concluded that defendant’s bed had been intentionally set on fire.
This evidence indicates that the fire that originated in defendant’s bedroom had been intentionally set. Moreover, the resident who forcibly entered defendant’s apartment to investigate the fire stated that no windows were broken before his entry and, further, that defendant’s apartment seemed secure in all other respects. From this evidence a rational trier of fact could conclude that the underlying crime of arson had been committed. Additionally, the physician who performed the autopsy on Merritt’s body testified that she died as a result of a heart attack brought on by the excitement surrounding the fire. Accordingly, because the corpus delicti of the crime of felony murder had been established, the prosecutor was free to introduce the testimony of the inmate who claimed that defendant admitted setting the fire.
On the basis of the foregoing, we believe that a rational trier of fact could have concluded that, by starting a fire in a senior citizens complex, defendant acted in such a manner as to exhibit a wanton and wilful disregard of the likelihood that the natural tendency of her behavior was to cause death or great bodily harm. Aslin, supra. Therefore, the trial court properly denied defendant’s motion for a directed verdict. Morris, supra.
For the same reasons, we find unavailing defendant’s argument that there was insufficient evidence to support her conviction of first-degree felony murder. Defendant argues that Merritt died as a result of a preexisting condition, and that the manner of her demise was not a foreseeable conse quence under the circumstances. To support this argument, defendant points to the testimony of the medical examiner, who stated that Merritt had a serious heart condition. The medical examiner opined that, given the severity of Merritt’s condition, there was no guarantee that she would have lived another day notwithstanding the fire. Nonetheless, it was determined that Merritt’s heart attack and subsequent death were brought on by the excitement generated by the fire.
As stated in People v Flenon, 42 Mich App 457, 462; 202 NW2d 471 (1972), a criminal defendant takes the victim as found. Nonetheless, defendant insists that she did not cause Merritt’s death because Merritt was neither burned nor asphyxiated. Aslin, supra, is instructive. In Aslin, the defendant broke into the home of an elderly woman (that he knew) in the middle of the night and robbed her. The victim, Mrs. Stephens, had a severe heart condition but did not die while the robbery was in progress. In fact, after the defendant departed, she went outside and informed neighbors of the incident. Mrs. Stephens died of a heart attack at a neighbor’s residence before the paramedics arrived. The Aslin panel held:
We find the evidence produced at trial could lead a rational trier of fact to conclude that defendant knew about the victim’s vulnerable state of health, and that defendant’s actions were such as to evince a wilful or wanton disregard for the likelihood that serious consequences to his victim amounting to great bodily harm or death would result. Confronting an older woman in her own home at night, and twice knocking her down, was likely to cause her injury. Knowledge of her heart condition increased the predictability of serious harm from these actions. At a minimum another heart attack was likely and death possible. [179 Mich App 459.]
Defendant does not contest the fact that she resided in a complex inhabited primarily by senior citizens. By starting the fire, defendant deliberately set in motion a series of events that adversely affected the residents of her complex. Having been forced to flee their residences in desperation, the tenants became the victims of defendant’s intentional act. In this case, defendant "found” one victim who had a severe heart ailment and a low tolerance for stressful events. It does not matter that, unlike the especially vulnerable Merritt, others would have been able to withstand the consequences of defendant’s actions. Defendant took her victim as she found her. Flenon, supra.
Given these circumstances, the questions of foreseeability and proximate cause were properly left to the jury. People v Clark, 171 Mich App 656, 659; 431 NW2d 88 (1988); People v Webb, 163 Mich App 462, 464-465; 415 NW2d 9 (1987); People v Moss, 70 Mich App 18, 22; 245 NW2d 389 (1976). In short, sufficient evidence was presented from which a rational trier of fact could conclude that defendant committed the crime of first-degree felony murder with the predicate offense being arson.
Finally, defendant argues that the trial court failed to properly instruct the jury. Again, we disagree. We first note that defendant failed to object to the instructions that were actually given at trial. Therefore, the arguments raised concerning these instructions will not be reviewed because defendant failed to preserve this portion of her argument. No manifest injustice will result from our failure to review this portion of defendant’s argument because the instructions that were given fairly presented the issues to the jury and sufficiently protected defendant’s rights. People v Curry, 175 Mich App 33, 39; 437 NW2d 310 (1989).
Defendant additionally claims that the trial court erroneously failed to instruct the jury regarding the defense of accidental death, CJI2d 7.2. We disagree. Failure to give this instruction was not erroneous because it was not supported by the evidence. Defendant claimed at trial that the fire was accidentally set. CJI2d 7.2 deals with a situation in which a defendant admits to having intentionally started a fire but lacked the intent to kill or cause great bodily harm to anyone. Therefore, the trial court did not err in failing to provide this instruction to the jury because it was not consistent with defendant’s theory of the case.
Defendant also argues that the court erred in refusing to give CJI2d 5.7, the addict-informer instruction. Again, we find that the trial court did not err. Defendant claims that the instruction should have been given because the inmate who testified against her, Deloris Curry, was an admitted drug addict. First, although Curry volunteered damaging information to the authorities concerning defendant, this Court is satisfied from the record that Curry was not an "informant” as contemplated by CJI2d 5.7. Moreover, Curry’s testimony was not uncorroborated but, instead, was supported by other evidence. The use note to CJI2d 5.7 provides that the instruction is to be used where the uncorroborated testimony of an addict informant is the only evidence linking the accused with the alleged offense. This is not the case here. Therefore, the trial court did not err in failing to give this instruction.
Defendant’s final argument pertains to her request below that the trial court specially instruct the jury with regard to how it could consider the evidence presented by defense counsel regarding Curry’s reputation for untruthfulness. No such standard jury instruction existed, and the trial court opted not to fashion a special instruction. Defendant points to no rule of law mandating the trial court to fashion a special instruction under circumstances similar to these. We find no error in the trial court’s refusal to do so.
Affirmed. | [
20,
3,
-44,
17,
3,
-38,
-24,
0,
-10,
6,
32,
-9,
35,
-45,
44,
-53,
-16,
37,
-18,
-13,
6,
7,
-61,
10,
-8,
-42,
9,
-6,
-18,
38,
30,
-28,
5,
-63,
5,
-13,
31,
24,
-19,
35,
31,
0,
28,
9,
-24,
-13,
-5,
17,
63,
23,
14,
1,
62,
19,
-41,
-18,
-13,
56,
-4,
43,
8,
-16,
-50,
-22,
13,
53,
26,
6,
-43,
22,
33,
-18,
-58,
7,
0,
30,
-7,
24,
-5,
16,
-45,
-2,
20,
36,
13,
-55,
-31,
-48,
-22,
-4,
2,
-30,
14,
-3,
-24,
-26,
-36,
7,
53,
-32,
-17,
5,
9,
54,
-22,
-4,
11,
-28,
-1,
-58,
-35,
27,
-19,
44,
-2,
-8,
1,
25,
-82,
36,
-5,
-39,
22,
-94,
20,
15,
-26,
19,
15,
-21,
-23,
47,
-15,
32,
-20,
-14,
-7,
26,
33,
0,
-56,
20,
-5,
3,
9,
-11,
7,
-27,
-58,
6,
-13,
66,
-19,
-5,
10,
-14,
13,
-28,
-36,
23,
-9,
-29,
16,
24,
-27,
-48,
-54,
19,
-8,
-39,
-6,
-33,
2,
42,
56,
-26,
12,
-22,
-22,
22,
0,
25,
5,
57,
62,
-24,
-70,
-36,
6,
-33,
3,
0,
-24,
-23,
31,
23,
35,
47,
13,
-62,
-5,
28,
6,
-29,
58,
0,
-82,
53,
82,
-27,
-23,
-2,
-31,
-28,
-36,
-6,
-33,
-12,
-39,
30,
-72,
-14,
-16,
-40,
-46,
-23,
17,
-1,
29,
-12,
10,
-9,
-3,
11,
0,
28,
32,
19,
43,
-16,
4,
40,
34,
47,
9,
42,
-16,
-6,
-30,
-18,
-1,
-12,
19,
58,
-3,
2,
-6,
-13,
6,
1,
-13,
-38,
-1,
25,
0,
51,
-7,
-24,
-48,
-9,
-63,
17,
0,
2,
-35,
-22,
2,
35,
-15,
-18,
68,
11,
2,
-18,
28,
31,
-19,
50,
-24,
-43,
32,
-16,
-23,
-43,
53,
-18,
20,
-15,
-25,
-8,
24,
-9,
3,
-9,
-19,
36,
45,
1,
-31,
5,
14,
15,
0,
68,
30,
-34,
-27,
-32,
9,
-26,
32,
-34,
-19,
-9,
-1,
-69,
19,
-30,
-6,
9,
-23,
38,
10,
50,
-3,
38,
-6,
38,
-13,
-2,
9,
-25,
-62,
-7,
-26,
48,
39,
38,
-64,
-73,
-11,
-14,
62,
-13,
13,
-50,
-8,
1,
13,
7,
6,
-26,
1,
26,
1,
-17,
54,
-39,
-3,
-2,
8,
-42,
-30,
0,
24,
17,
18,
6,
9,
51,
8,
-8,
59,
0,
-11,
28,
-11,
-26,
-4,
2,
-11,
-9,
5,
-4,
-47,
-16,
-32,
21,
41,
-9,
13,
-2,
11,
-65,
-50,
-11,
-51,
0,
2,
17,
-32,
15,
19,
16,
-30,
-15,
13,
-5,
53,
2,
43,
-11,
-8,
8,
-31,
-33,
-19,
19,
11,
-26,
-30,
29,
-11,
23,
-9,
7,
-79,
-15,
13,
24,
-30,
-40,
-46,
-7,
21,
9,
-30,
-20,
36,
29,
-55,
14,
10,
-1,
-25,
16,
-17,
20,
1,
11,
-8,
-37,
0,
23,
36,
3,
-36,
6,
39,
-28,
0,
-49,
-42,
-1,
6,
-12,
-29,
14,
-21,
33,
24,
33,
-16,
-22,
-34,
-10,
18,
-35,
16,
-33,
21,
-17,
17,
29,
-10,
17,
-16,
-2,
-34,
-66,
-10,
-47,
-33,
20,
11,
-57,
13,
-3,
6,
9,
-29,
41,
-22,
17,
0,
9,
34,
-23,
-3,
6,
-27,
-33,
-11,
16,
-29,
-37,
3,
-20,
-36,
14,
2,
-54,
11,
-15,
50,
25,
-42,
-24,
-12,
-14,
-14,
26,
-17,
36,
-20,
7,
-27,
18,
-15,
72,
-4,
-16,
-35,
-16,
-12,
15,
56,
-8,
-3,
15,
-33,
-13,
25,
0,
-13,
-9,
3,
1,
30,
-30,
9,
7,
-45,
44,
-27,
12,
-19,
50,
-32,
17,
-8,
19,
19,
10,
-20,
-4,
34,
35,
-36,
-4,
-24,
51,
79,
-19,
20,
-30,
-48,
-66,
-22,
-31,
-28,
1,
-32,
-3,
27,
16,
42,
-46,
7,
-38,
45,
-6,
-81,
-22,
0,
39,
23,
-1,
-20,
18,
-14,
21,
-25,
9,
-30,
-2,
-20,
-3,
8,
19,
-27,
2,
27,
-33,
38,
15,
34,
19,
-64,
-55,
-45,
52,
0,
-2,
0,
82,
45,
9,
4,
-15,
8,
-31,
-35,
-29,
7,
-56,
10,
-5,
9,
-35,
-39,
28,
0,
0,
10,
10,
6,
-48,
-82,
20,
-12,
55,
-4,
24,
-39,
22,
-32,
-33,
22,
-49,
-4,
-34,
18,
-14,
0,
-15,
-30,
-2,
15,
18,
-43,
-26,
38,
54,
49,
24,
5,
1,
40,
-4,
-11,
0,
-41,
40,
-34,
18,
52,
-55,
-2,
-27,
-31,
6,
43,
0,
-21,
-53,
-27,
-37,
2,
8,
-20,
-31,
32,
-7,
21,
-31,
67,
32,
19,
-28,
0,
-30,
-53,
42,
-4,
22,
-16,
23,
60,
-6,
-3,
-19,
14,
-5,
-25,
-29,
7,
-53,
54,
-64,
-1,
55,
37,
-24,
14,
46,
105,
-34,
-31,
17,
59,
-4,
0,
0,
-16,
-6,
55,
18,
19,
-18,
-40,
34,
29,
22,
-51,
46,
9,
-18,
25,
2,
34,
-22,
-3,
-44,
29,
-27,
-35,
-5,
-12,
10,
-36,
48,
-8,
51,
-10,
47,
-39,
16,
19,
12,
63,
35,
20,
20,
7,
13,
-9,
-4,
-5,
26,
65,
-6,
32,
9,
-29,
9,
13,
-43,
-9,
31,
24,
11,
-35,
-11,
25,
-41,
4,
-26,
2,
-30,
-14,
-23,
21,
35,
-12,
16,
-10,
21,
9,
13,
-46,
25,
31,
46,
6,
-30,
21,
-15,
31,
47,
63,
-24,
16,
23,
-9,
-15,
-12,
66,
32,
-4,
7,
18,
-8,
-25,
-52,
48,
-60,
35,
22,
-9,
-65,
-41,
-2,
14,
-10,
40,
-55,
-1,
9,
6,
25,
-30,
16,
3,
39,
49,
5,
-24,
-43,
12,
23,
1,
11,
-4,
-36,
20,
5,
38,
-5,
-66,
-2,
-29,
20,
23,
17,
2,
31,
-47,
9,
-13,
-17,
-1,
23,
49,
-1,
61,
-20,
-5,
29,
-29,
-64,
45,
45,
31,
11,
0,
-6,
11,
-46,
23,
-16,
-40,
16,
5,
11,
-14,
21,
-59,
28,
-4,
-19,
18,
22,
33,
7,
21,
22,
-66,
17,
-2,
-10,
46,
19,
16,
4,
-15,
2,
-19,
-58,
2,
-59,
37,
33,
33,
62,
14,
15,
6,
10,
-28,
48,
-58,
0,
-37,
-19,
-41,
-16,
5,
-1,
41,
-25,
-24,
23,
-44,
0,
-15,
12,
22,
-16,
6,
7,
-62,
23,
42,
0,
12,
-9,
-10,
-54,
-11,
-2,
32,
27,
62,
97,
-11,
-8,
-10,
0,
-1,
-22,
15,
64,
-67,
-44,
22,
-40,
34,
-4,
51,
16,
55,
11,
13
] |
Campbell, J:
The bill in this case is filed to obtain from Chesebrough certain lands patented to him on the 11th of January, 1868, at which time complainant claims they were legally held for his benefit under a reservation upon a swamp-land road contract, and therefore not subject to private entry.
The contract, or contracts (for there were five of them), were made by the state authorities with one William Thorlby on the 6th of April, 1863, to build one mile under each contract of the Midland and Isabella state road. The work was to be done by November 4, 1864. Within that time it was accepted by the local commissioner, prior to October 4, 1864, when Thorlby died. On the 1st of October, 1864, the contracts were assigned to Frederick P. Shaw. The governor for a long time delayed acting upon the certificates of completion, but in August, 1865, David Crapo was directed by the governor to examine the road throughout and reported it incomplete. Milton Bradley, local commissioner, subsequently examined it, and reported adversely.
On tlie 21st of August, 1867, Newcombe obtained an assignment of these contracts, and applied to the commissioner of the land office for a list of the lands reserved, which the commissioner sent him. He then proceeded, under assurances of the local commissioner, to do the work and bring it to completion. On the first of April, 1868, the board of control passed a resolution declaring that all contracts which “by their pterins” expired on or before December 31, 1867, should be canceled by the 1st of July, 1868, unless evidence should be furnished of their being performed properly, and directed notice to be given to contractors. Newcombe did not receive notice till July 2, when upon his representation the order was suspended, and the work was finally approved December 31, 1868.
On the 15th of January, 1869, on applying for patents, complainant learned the lands had been sold.
The main question in this case is, whether the reservation remained in force when this sale took place. The statute declares that lands selected by contractors to apply on their contracts shall be “withheld from market during the full time specified in said contract for the completion thereof.” — Sec. 5 of road law; § 3959 C. L.
It also provides that the board of control may extend the time for completing any contract.— Sec. 3 (§ 3957). In this their powers are very large, and whatever they did concerning these contracts, we are disposed, as now advised, to assume was lawfully done, and binding on the state.
The question is, whether the reservation was kept alive all this time by what was done.
No action was taken by the bpard, one way or the other, until after defendant purchased the lands. But there is evidence which seems to show that contracts while running uncanceled were regarded by them practically as in force. There is no official resolution to that.effect.
When lands have once become subject to sale they may be reserved from sale in various cases, of which the conract reservations in question furnish a common instance. But it is evidently the policy of the law that the question whether they are reserved or not shall hot be left open to private arrangement or to parol evidence. Such a course would be open to frauds. This statute declares the reservation to last during the time “specified in the contract.” This is very clear language, and must have been adopted for some purpose. That purpose is evident. It was to enable all persons to have means of definitely knowing whether the lands were in market, and probably, also, as a means of hastening tardy contractors.
But we think that whenever the board of control saw fit to extend a contract, the extension became the time specified, and the reserve would exist 'during that period. But as the board was the only body authorized to extend the contract, we cannot find any support for the' claim that the time “specified in the contract” can include any period not within the original contract or some authorized extension.
It is well settled that the action of a board of several members must be determined by their votes, and the votes must be looked for in their record. Their action separately can amount to nothing, and their joint action, whether meeting or not meeting (supposing they can act by consent expressed by writing, upon which no opinion need be given), must be evidenced in some way as the action of a lawful majority. It must be affirmative action, or it cannot create a term of time “specified.”
In the present case there was an interval of some years between the end of the time specified in the original contracts and any action of the board. During that interval we are compelled to hold there was no reservation, or else to completely disregard the only statutory conditions on which reservations were allowed to be made. The rights of defendant were obtained when the reservation was not in existence. The board of control could not, by subsequent action renewing the contract, take away his vested rights, although such renewal would bind the state to pay for the work. But contractors were not bound to file reservations unless they chose, and the loss of these lands does not deprive complainant necessarily of his remuneration out of others. The loss of these arises from a breach of the Thorlby contracts, and the extension was never obligatory on the board, but they could grant it or not, in their discretion.
Under these circumstances, complainant has no ground for relief. The decree must be reversed, and the bill dismissed, with costs of both courts.
The other Justices concurred. | [
6,
33,
46,
-18,
12,
0,
40,
-7,
35,
59,
34,
5,
54,
-18,
-3,
28,
-38,
-15,
-46,
64,
13,
14,
10,
-48,
-28,
-26,
3,
-16,
-34,
14,
20,
-11,
-35,
33,
46,
37,
-11,
33,
37,
0,
-26,
29,
-56,
-43,
37,
-30,
-17,
-24,
24,
-10,
-60,
17,
1,
-9,
10,
12,
-11,
-14,
-25,
-5,
-51,
-31,
9,
13,
-4,
19,
-22,
4,
76,
-10,
-19,
-9,
11,
-12,
42,
-23,
10,
0,
3,
-2,
8,
30,
7,
-17,
9,
0,
-30,
-41,
20,
32,
-49,
-33,
3,
19,
-2,
34,
-33,
-16,
-23,
30,
28,
-5,
13,
-3,
21,
-14,
-43,
0,
31,
7,
2,
-42,
10,
-43,
-41,
2,
1,
-41,
-22,
-3,
-7,
6,
19,
26,
-53,
-10,
-25,
-33,
-61,
23,
-5,
-48,
-2,
-18,
17,
31,
0,
-24,
-23,
-37,
-20,
26,
-24,
-8,
30,
54,
12,
-5,
1,
-2,
-10,
-18,
21,
-22,
-1,
-20,
76,
-12,
25,
-3,
33,
46,
34,
-53,
-71,
21,
4,
23,
-9,
77,
-1,
8,
-39,
-25,
31,
-93,
41,
34,
-18,
0,
17,
-21,
15,
5,
5,
-64,
7,
6,
-3,
9,
9,
-15,
21,
-2,
-16,
-24,
-27,
-5,
-5,
15,
-41,
8,
-5,
36,
-43,
2,
8,
50,
12,
45,
-45,
-25,
-14,
-2,
-13,
28,
13,
22,
55,
-49,
53,
6,
47,
23,
1,
-2,
-2,
-25,
-7,
-20,
-7,
44,
1,
5,
-55,
-26,
-29,
-11,
-37,
26,
-11,
-10,
-56,
-15,
12,
-19,
0,
-33,
25,
31,
-16,
6,
-57,
27,
9,
0,
-16,
15,
-26,
-20,
4,
22,
12,
-12,
31,
-41,
-5,
4,
15,
33,
-37,
-3,
11,
15,
-43,
9,
24,
-31,
-55,
-10,
23,
-59,
20,
0,
-6,
-5,
0,
11,
-5,
12,
-4,
0,
-17,
-6,
19,
49,
54,
24,
4,
-2,
7,
-22,
8,
-27,
68,
-3,
-13,
-44,
3,
-4,
-33,
-20,
-23,
-34,
-24,
33,
43,
-30,
-5,
-37,
5,
29,
14,
-16,
5,
9,
50,
-4,
-27,
0,
18,
-22,
-16,
-3,
0,
-7,
14,
-1,
-16,
3,
0,
30,
7,
1,
-3,
6,
15,
-29,
9,
17,
-8,
21,
-44,
-2,
-19,
25,
-10,
-4,
-27,
10,
-14,
-2,
-2,
2,
8,
-35,
-42,
23,
56,
-1,
-29,
36,
-5,
31,
-8,
-16,
17,
-15,
-11,
-3,
31,
24,
4,
67,
36,
-28,
-14,
-26,
-16,
15,
0,
-66,
-65,
5,
-25,
10,
39,
-11,
-42,
3,
16,
42,
-74,
-26,
-10,
16,
-19,
34,
9,
-17,
21,
-35,
60,
-32,
11,
-6,
-3,
10,
7,
4,
-24,
19,
-25,
-20,
-41,
-56,
4,
23,
-14,
1,
14,
19,
52,
-17,
-14,
5,
-20,
-33,
-6,
33,
-11,
34,
-5,
31,
-49,
19,
-9,
52,
17,
6,
45,
36,
-58,
46,
-55,
-7,
98,
0,
17,
-1,
-21,
-13,
24,
-39,
-10,
32,
-17,
-12,
13,
19,
-10,
58,
10,
-15,
-3,
-7,
42,
16,
17,
-6,
0,
-14,
-19,
37,
11,
-44,
-45,
39,
7,
42,
37,
10,
-24,
-21,
4,
14,
-29,
-61,
10,
63,
0,
29,
22,
-6,
0,
2,
-3,
18,
-2,
70,
11,
-33,
7,
6,
-8,
43,
22,
-12,
15,
-66,
36,
-3,
-59,
-32,
28,
31,
-37,
21,
64,
-31,
-17,
-28,
11,
-21,
-28,
-39,
-22,
36,
20,
-44,
-19,
13,
4,
15,
-14,
-15,
4,
-18,
-8,
-65,
-29,
-22,
-6,
-46,
-66,
16,
-47,
-41,
24,
36,
-28,
3,
1,
-43,
39,
8,
-3,
-7,
0,
86,
-1,
13,
-12,
0,
9,
46,
-16,
29,
12,
19,
-18,
-25,
41,
-8,
21,
1,
13,
27,
-8,
5,
-36,
10,
-3,
-12,
-49,
12,
43,
34,
-12,
3,
6,
-13,
-42,
27,
36,
21,
0,
-10,
39,
4,
-36,
-1,
8,
20,
-4,
24,
36,
-38,
26,
18,
-13,
-17,
-10,
-34,
40,
29,
16,
67,
-23,
27,
-9,
-23,
-19,
27,
-16,
-51,
36,
15,
34,
-24,
2,
-11,
-106,
-60,
-14,
-7,
-31,
-6,
11,
-2,
-52,
18,
-14,
-24,
8,
38,
17,
1,
10,
9,
85,
-48,
-8,
6,
-41,
-35,
-8,
-11,
3,
21,
22,
-15,
11,
-42,
19,
-39,
24,
10,
18,
16,
53,
10,
28,
-11,
30,
-6,
-7,
-27,
-11,
13,
18,
-8,
-10,
5,
-10,
-22,
-3,
22,
42,
-1,
6,
-4,
-4,
46,
-10,
35,
-11,
-24,
9,
14,
0,
34,
-2,
40,
-17,
7,
9,
31,
0,
-52,
55,
-34,
-35,
4,
-8,
-4,
-6,
-14,
-56,
-7,
5,
92,
-21,
-24,
-22,
-16,
40,
8,
-21,
-74,
-1,
-12,
-37,
17,
-19,
-34,
34,
11,
-39,
-14,
11,
-17,
8,
33,
45,
-49,
-45,
42,
-31,
-14,
0,
17,
-56,
-8,
-2,
-22,
32,
-19,
16,
-8,
16,
-7,
-59,
0,
41,
-21,
38,
18,
-7,
-12,
-15,
-27,
-21,
-37,
8,
-48,
-18,
-15,
12,
17,
1,
21,
4,
60,
-44,
1,
-3,
22,
-33,
-14,
17,
3,
-21,
80,
-35,
-21,
-6,
-17,
-14,
4,
7,
33,
-8,
-19,
49,
-57,
-46,
23,
51,
-16,
11,
5,
2,
-6,
31,
6,
0,
-25,
-17,
-5,
0,
-34,
-24,
-15,
68,
-52,
-20,
18,
27,
-12,
-67,
9,
17,
-26,
-4,
-51,
-39,
-1,
-23,
43,
-50,
11,
17,
-31,
-42,
-21,
-11,
-47,
11,
13,
50,
-3,
0,
-8,
-21,
12,
19,
41,
13,
18,
-15,
0,
21,
4,
-45,
25,
10,
-55,
-3,
58,
-22,
-37,
5,
19,
-20,
1,
35,
-21,
41,
19,
-8,
0,
-63,
20,
41,
-29,
36,
29,
-7,
-8,
-15,
50,
-7,
-5,
-41,
-37,
39,
14,
74,
45,
17,
-54,
-66,
-71,
-83,
-14,
-46,
7,
-5,
22,
60,
-41,
-42,
-12,
-20,
12,
-4,
11,
-3,
55,
-14,
4,
-52,
18,
-13,
-21,
60,
-25,
-10,
-28,
56,
14,
8,
-11,
-6,
-8,
37,
1,
40,
25,
13,
16,
39,
-9,
-42,
-35,
-81,
17,
70,
-40,
-25,
29,
34,
-70,
10,
80,
107,
10,
-32,
11,
42,
-18,
14,
35,
18,
18,
-30,
21,
12,
-26,
9,
-16,
-9,
39,
8,
46,
62,
-54,
-31,
-10,
-29,
61,
-13,
-12,
25,
-26,
-40,
58,
-21,
17,
38,
-39,
-27,
42,
23,
-13,
47,
-3,
31,
-45,
-58,
9,
20,
-34,
-19,
71,
8,
23,
17,
-42,
18,
-10,
-12,
27
] |
Marston, J:
In May, 1872, Blair recovered a judgment against Compton, in the circuit court for the county of Monroe, for upwards of ten thousand dollars. Execution was issued upon this judgment November 29th, 1872, and on the same day a levy by virtue thereof was made upon all the shares of stock in “The West Virginia Oil and Oil Land Company” standing in the name of said defendant. Other proceedings, hereinafter noticed, took place, and on the 7th day of April, 1875, a sale Avas made of such stock to William D. 'Thompson. On the 19th day of May notice of a motion Avas entered in said court and cause, that a motion would be made before said court on the 28th day of June to set •aside said execution, and the sale made thereunder, for irregularity, and, that such motion would be based upon the affidavits that day filed. The notice of such motion served upon plaintiff’s attorneys was, that such 'motion would be based upon the affidavits filed, copies of which were served, and also on the return of the late sheriff of Monroe county to such execution.
At an adjourned term of the circuit court of Monroe county, held on the 28th day of June, the motion came on to be heard, the attorneys of the respective parties in interest being present; owing, however, to the absence of one of defendant’s counsel, application was made on the part of the defendant, to postpone the submission and hearing of the motion to some future day; whereupon it was agreed by all the respective counsel then present for the several parties, that the motion should be heard before Hon. Daniel L. Pratt, circuit judge of the first judicial circuit, in which are situate the counties of Monroe and Hillsdale, at chambers at the court house at Hillsdale, on the 12th day of July, at 2 P. M.
Hpon the 9th day of July additional affidavits were filed, and copies served with a notice that they would be presented to the court on the part of the defendant on hearing of said motion at the time and place agreed upon. Copies of all these affidavits and notices were served upon plaintiff’s attorneys, and also upon Mr. Thompson, the purchaser of the stock on the execution sale. On the 12th day of July, at the time and place agreed upon, counsel for the respective parties appeared, the counsel for plaintiff appearing also for Mr. Thompson. Affidavits on the part of plaintiff and Thompson were presented, and the motion argued upon that and the next day. On the 14th day of July an order was made and signed by said circuit judge at chambers, transmitted to the clerk of said court and filed on the same day, setting aside said execution sale as being null and void.
Hpon the argument of the motion, counsel in support thereof, insisted among other things, that upon the face of the sheriff’s return and certificate attached thereto, both the levy and sale were void. Counsel opposing the motion replied thereto, but made no objection that any question as to the validity of such levy or sale, arising upon the face of the sheriff’s return, independent of the affidavits, was beyond the scope of the motion.
Thompson and Blair afterwards join in a petition for a certiorari, claiming that the order setting aside said sale is void, as being beyond the jurisdiction of the judge who made it, for three reasons:
First. It was not within the legal power of a circuit judge to hear such matter and make such an order in any like caso at chambers;
Second. It was not within the legal power of said judge at chambers, nor of the said circuit court in and for the county of Monroe, to make an order in effect taking from petitioner Thompson, in a summary proceeding, not according to the course of the common law, upon ex parte affidavits, substantial and valuable rights of property acquired at a public judicial sale without fraud or evil practice on the part of any one;
Third. There was no jurisdiction to deciare and decide the execution sale to be “null and void” as matter of law, upon the papers and in the proceedings had therein.
While counsel for Blair and Thompson in this court, in his brief and upon argument, insisted, that Thompson being a purchaser in good faith and for a valuable consideration actually paid, and not being a party in the original cause, his rights could not be tried and determined upon ex parte affidavits, and that the order itself, being a chamber order made by the judge at chambers in the county of Hillsdale, was a nullity, and did not furnish a basis on which to enter an order in open court in the Monroe circuit, yet he conceded, both in his brief and upon the .argument, that the circuit judge did not consider the affidavits read upon the hearing of said motion, but held the sale null and void from an inspection of the execution and return alone. He also, in his brief and upon argument, says this question of void levy and sale is the real meritorious question in controversy; that all parties are willing and anxious to have it decided on this record, as the facts are all here as fully as a case in chancery could present them, and that a failure to decide the real question now would but cause a weary and expensive litigation of no benefit to either party.
Should we, however, pass unnoticed the preliminary questions raised, as counsel desires us, and confine our entire attention to the merits of the real question in controversy, our right so to do might hereafter be questioned, because if the circuit judge at chambers, as in this case, could not make such an order, then there is no reason or necessity for our proceeding any farther. We shall, however, under the circumstances, content ourselves with a brief statement of our conclusions upon these questions, without discussing them at length, as we otherwise might have done.
The circuit court for the county of Monroe, being the court from which the- execution issued in this case, as between the parties thereto, had undoubtedly the power upon motion to set aside the levy or sale for any illegality appearing therein. The court could also, in case of an excessive levy, and in case where the property was sold at an inadequate price, set aside the levy and sale upon motion. In these last cases if the facts did not appear upon the faco of the papers, as ordinarily they would not, they might bp shown by affidavits, and the facts thus appearing, the court would grant- relief. Every court controls its own process, and will prevent an abuse of the same, if its attention is seasonably called thereto upon motion. — Cavenaugh v. Jakeway, Walker’s Ch., 344; Campau v. Godfrey, 18 Mich., 44. In the case in Walker’s Ch., the court holds there must be fraud to give a court of chancery jurisdiction, that neither the fact that the sale was irregular, nor that Jake-way the purchaser was not a party to the suit, would give that court jurisdiction.
The circuit court, then, having jurisdiction to hear and determine the question upon motion, and the plaintiff hav ing by his counsel appeared and consented that the motion should be heard at chambers, and having there appeared and opposed the motion upon its merits, making no objection to the jurisdiction, he cannot now come in and make a technical objection to the right .of the judge to hear the argument and make the order in this case.
In order to succeed under such circumstances it should clqarly appear that consent, would not confer jurisdiction. And the same reasons apply to Thompson that do to the plaintiff. Copies of the affidavits and notice of the motion were served upon Thompson. He appeared by counsel; opposing affidavits in his behalf, his own amongst others, were filed and read; and no objection was made that he being a third party his rights could not thus be passed upon. We think that any right to question in this proceeding the power of the circuit judge was waived. — See Patterson v. McRea, 29 Mich., 258; Peck v. McAlpine, 3 Caines, 166 b.
The purchaser at a judicial sale must be' considered as having submitted himself thereby to the jurisdiction of the court as to all matters connected therewith, and when he has had notice and appears in answer thereto and makes no objection, but goes to a hearing on the merits, he is not in a position to afterwards object to the power of the court to decide such motion.
We will now proceed to ascertain whether there was a valid levy and sale of the property in question, and it might be well for us before examining what was in fact done by the officer, to first lay down the legal principles which must govern us in this case.
1. At common law corporate shares were not subject to levy and sale upon execution. This, however, has been changed by statute in many of the states, and where such a change has been made, the authorities all agree that if the statute authorizing such a levy and sale has not been substantially complied with, then the sale is unauthorized and void, and cannot, as in a case of a sale being voidable merely on ac count of some irregularity, be ratified. — James v. Pontiac & Groveland P. R. Co., 8 Mich., 92; Howe v. Stark-weather, 17 Mass., 240; Princeton Bank v. Crozer, 2 Zab., 383.
2. A levy made after the return day of the execution, or after the official term of the officer has expired, and a sale made thereunder, is void, but where the officer has commenced the execution of the writ before the return day, .he may complete it afterwards, and so where he has commenced its execution during his official term, he may complete it after his term of office has ceased. Such was the rule at common law, and it has been recognized by statute in many of the states. Our statutes in this respect are but declaratory of the common law, and will be noticed hereafter.— Wheaton v. Sexton’s Lessee, 4 Wheat., 504; Remington v. Linthicum, 14 Peters, 93; Phillips v. Dana, 3 Scam., 551; Wood v. Colvin, 5 Hill, 231; Childs v. McChesney, 20 Iowa, 438; Butterfield v. Walsh, 21 Iowa, 101; Stein v. Chambless, 18 Iowa, 476; Ferguson v. Lee, 9 Wend., 258, 260; Willoughby v. Dewey, 63 Ill., 248.
3. The statutory requirements regulating proceedings upon execution are duties which the ministerial officer of the court executing its process is required to perform. The general rule of law is, that there is no presumption that an officer has neglected his duties. In other words, the presumptions are in favor of the regularity of the acts of the officer. — Herman on Fx:, % 345, and the numerous cases there cited. This rule has been recognized and acted upon in this state, under a variety of circumstances. — Peck v. Cavell, 16 Mich., 11; Hall v. Kellogg, 16 Mich., 135; Allen v. Mills, 26 Mich., 126; Saunders v. Tioga Manf. Co., 27 Mich., 523; Morse v. Hewett, 28 Mich., 485.
In the light of these rules we will examine the facts. That a judgment valid in every respect was recovered against Compton and an execution regularly issued November 29, 1872, and delivered to Phillip M. Nadeau, then sheriff of Monroe county, is conceded. Nadeau, as sheriff, upon the same day made the following endorsement upon the execution :
“State of Michigan, County of Monroe. — ss.
“By virtue of the within and attached execution, I have this day seized and levied upon all the 'Shares of stock in ‘The West Virginia Oil and Oil Land Company’ standing in the name of the defendant in execution herein, Benjamin S. Compton; that there was no clerk, treasurer, or cashier of said company in my bailiwick, and that thereupon I served a true and certified copy of this execution upon the following persons, who, I was informed, had the custody of the books and papers of the said company: William H. Boyd, deputy secretary or clerk of said company; William M. Smith, in charge of the office of the company, and Benjamin S. Compton, president of said company; and at the same time demanded of them, and each of them, to give mo a certificate of the number of shares or amount of interest held by said Compton in said company, which they declined to do.” He further certifies that on the same day he levied upon certain real estate, and also gives a copy of the notice by him endorsed upon the copies of the execution which he delivered to the above parties.
The statute provides that the share or interest of a stockholder in a corporation may be taken in execution and sold in the following manner: “The officer .shall leave a copy of the execution, certified by him, with the clerk, treasurer, or cashier of the company, if there be any such officer, and if not, then with any officer or person who has, at the time, the custody of the books and papers of the corporation; and the property shall be considered seized on execution when such copy is left.” — §§ 6112, 6113, 2 C. L.
The levy here made it is insisted was void, because first, the return does not show service of a copy of the execution upon either the clerk, treasurer or cashier of the corporation, or that there was no such officer, in which event alone service might be made upon some other person, and second, tlie return does not show service upon any other officer or person who “had at the time the custody of the books and papers of the corporation,” but only that it was made upon three persons named, who the sheriff was informed had such custody.
Was then the service in this case, looking at the return alone, in compliance with section 6113 already quoted? That section must be construed in connection with the one preceding it, and also with the general statute authorizing the organization of corporations. Section 6112 is general and authorizes the sale of a stockholder’s interest in a “bank, insurance company or any other joint stock company,” and when in section 6113 the sheriff is required to leave a copy of the execution with the “clerk, treasurer, or cashier,” it was not thereby conclusively assumed that such officers, or indeed any of them, would be found in every corporation and joint stock company intended to be embraced in section 6112, or that oven if every corporation embraced therein did have a clerk, treasurer, or cashier, the copy must be delivered to one of them, and that in the event only of there being no such officers could the service be' made upon some other officer or person having the custody of the books and papers.
The construction contended for would defeat the evident intent of the legislature, which was to authorize the levy and sale of a stockholder’s interest in any corporation or joint stock company. This is apparent when we examine the statute under which many of our corporations, including the one in question, was organized.
Chap. 95 of the Comp. Laws, relating to mining and manufacturing companies, authorizes the company to elect “'all necesssry officers.” — § 1. Before the corporation shall commence business the “president and directors shall cause their articles of association to be filed with the secretary of state.” — Sec. 3. “The directors shall choose one of their number president, and such other officers as their articles of association and by-laws may require.” — Sec. 10. Sec.. 18 requires an annual report to be made, “signed by the president and a majority of the directors, and shall be verified by the oath of the secretary, or other officer making the same.” Without reciting further, an examination will show that the only officers which the statute actually requires as essential to manage and carry on the business of the corporation is a president and directors. A “clerk, treasurer, or cashier” is nowhere required, nor is a secretary, conceding the words clerk and secretary to be synonymous. The corporation may provide for and elect or appoint such officers, but it is not bound to. Whenever the statute speaks of a duty to be performed by a secretary, it in the same connection recognizes the fact that there may be no such officer, and that such duty may be performed by some other officer. Nor rvould the fact that a report required by statute was verified by the president or a director as the “officer making the same,” make such officer either a secretary or clerk within the meaning of Sec. 6118.. Neither do I think the fact, that one of the directors was in the habit of keeping and recording the minutes of the corporation, drafting reports, etc., would make him a clerk, within the meaning of the section last referred to. Under-such circumstances he would undoubtedly come within the-second clause of that section as an officer or person having the custody of the books and papers of the corporation. It is therefore quite possible for a corporation to be formed in this state, issue shares of stock, and do business, and yet. have neither a secretary, clerk, treasurer or cashier.
If, however, a corporation formed under this chapter-should, in its articles of association or by-laws, provide for the election of either a clerk, treasurer or cashier, or all three, and in fact elect them, there is no provision requiring either or any of such officers to reside in this state* On the contrary, the statute recognizes the fact that they need not. The company may provide in its articles of association “for having the business office of such company-out of this state, at any place within the United States, and. to hold any meeting of the stockholders or directors of such company, at such office so provided for; but any such company, having its business office out of this state, shall have an office for the transaction of business -within this state, to be also designated in such articles.” — Sec: 2685.
If, therefore, the clerk, treasurer and cashier should reside out of this state, and there should be a deputy secretary or clerk of said company “in charge of the books and papers” at the office of the company in this state, nevertheless there could be no levy and sale under an execution of a stockholder’s interest in such corporation, under the view of counsel, because there being in fact a clerk, treasurer and cashier of such corporation, the sheriff could not certify “that there was no such officer, in which event alone, the statute authorizes a substituted service upon some other person.” And it is not claimed or pretended that the sheriff would have any authority to serve copies upon such officers outside this state. He could not serve a copy of the execution upon such officers, because they are out of the state, and therefore beyond • his jurisdiction. He could not certify that there were no such officers, therefore the judgment creditor is without remedy. Such a construction would enable corporations in very many instances to protect the shares of their stockholders from levy and sale upon execution, thus defeating the’ evident intent of the legislature.
I cannot consent to any such construction, or content myself by saying that the legislature -did not contemplate such a condition of things, did not provide therefor, and that additional legislation is necessary. The intention, as already said, is clear, and expressly gives the judgment creditor the right to levy upon and sell the interest of his debtor in any corporation formed under any law of this state. TVe are not at liberty, therefore, to defeat this intention, if the other provisions, pointing out the method of levying and selling, will, by any reasonable construction, meet the case.
The statute requires that in every ease there shall be an office within this state for the transaction of business. The presumption must be that the officers of the corporation, if within the state, will be found at the office which the company by its articles of association designates as the place for the transaction of its business. If the sheriff of the proper county where such office is located certifies that there is no clerk, treasurer or cashier within his bailiwick, I am of opinion that this is sufficient; that he may then serve a copy upon any officer or person who has at the time the custody of the books and papers of the corporation.
Does it then sufficiently appear that the office of the company in this state was in Monroe county? I think it does. Such is the fair legal construction of the officer’s certificate. Although he does not certify that the office of the company was in Monroe county, yet he does certify that he served a copy of the execution upon “Wm. M. Smith, in charge of the office of the company,” and we cannot presume that the' sheriff went outside his county to do this.
We now come to notice the second objection to the levy, viz: that the return does not show a service upon the officer or person who had at the time the custody of the books and papers, but only that the officer was informed they had such custody.
That portion of the return upon which this objection is. based is as follows: “I served a true and certified copy of this execution upon the following persons, who, I was informed, had the custody of the books and papers of the said company, William H. Boyd, deputy secretary or clerk of said company, Wm. M. Smith, in charge of the office of the company, and Benjamin S. Compton, president of the-company.” The officer’s certificate is clear and explicit, that he served the papers upon the persons named, and that, they held the positions in the company stated. The qualification as to what he was informed applies only to the fact of these persons having the custody of the books and papers. Could the sheriff act upon such information? We might •answer this by asking in what other way could the sheriff •ascertain who had the custody of the books and pajoers? Suppose he went to the office of the company, found the books and papers there, and also found several persons in the office, all apparently having equal rights and privileges; how is he, in such a case, to ascertain who has the custody in fact of the books and papers; or in case he found several persons in the office, but did not see the books and papers, how is he to ascertain whether they are there or not, and if they are, who has the custody of them?
Now, in the case first supposed it is not at all probable that even an inspection of the books and papers, were he permitted to make such an inspection, would give him the requisite information, and in the second case, unless he was permitted to examine the office he could not determine whether the books and papers were there, and when he did ascertain that fact, the question as to who had the custody of them would still be open. He could ascertain those facts only from making inquiries of those present - who were apparently the officers of the company, or the apparent custodians of the papers. Where a sheriff goes to the office of a corporation and makes inquiries concerning its business, from those he there finds assuming to act as its officers, the corporation and its stockholders must be considered as bound by the information given; and if he is there informed, or if the officers of the company in any place inform him, of the persons having custody of the books and papers of the corporation, he may act upon such information, and the corporation and its stockholders will be bound by the information given. The officers in fact, or those in charge of the office, assuming to, and who are permitted to act as its agents or officers, must be held as having authority to bind the corporation to this extent. Third parties have a right to act upon the apparent authority of those found in possession and control of the office of the corporation. An individual dealing with one assuming to act as the cashier of a bank does not act at peril of the person turning out not to be tbe cashier, and the bank therefore not being-bound by his acts. The fact that he is permitted to occupy that position, and assumes to so act in the office of the bank, is sufficient. Now, we all know and must recognize the fact that a sheriff in the performance 'of his official duties must frequently act upon information received from others. In the service of process he does not always of his own knowledge know the person upon whom service is to bo made. This information he derives from others. How frequently. does he levy upon and sell personal property where the only knowledge he has that it belongs 'to the execution debtor is what others -have told him. Let us test this still further. A corporation whose principal and only office is in this state, elects or appoints a clerk, treasurer or cashier; must the sheriff examine the records kept of such election before he can serve papers upon them and certify to the fact? Must he in every instance ascertain from the records whether a person assuming to act as president of a corporation is so in fact, before he can serve a summons upon him as commencement of suit against the corporation? But suppose there was no record kept of such election ox-appointment, what is he to do then? Or if there is, and he ascertains that A B was elected, how is he to ascertaixx whether the person upon whom he serves the papers is the one elected? Evidently in all these cases by making inquiries and satisfying himself of the fact. Hpoxx a trial in court it would not be necessary to produce record evidence of the election or appointment of an officer; parol evidence would be sufficient; and I know of no good reason why any stricter rule should be applied in this case. The presumption must be that the books and papers of a corporation are kept at its office, and that those in charge of the office are there with the permission and authority of the company, and have the custody of the books and papers. There is still another ground upon which this may be rested. If the officer received his information from the execution debtor, who, he certifies, was president of the corporation, then no one will dispute tbe fact that the information would be sufficient and would estop the defendant from now showing the contrary. While it does not appear that he received his information either from the president or from any officer of the company, or any one assuming to act as an officer in charge of its office, yet, as already stated, all presumptions are in favor of the validity of the officer’s acts. So that if information from a particular source ivas necessary to enable the sheriff to serve the papers upon the persons named,, we must assume that he received his information from that source, else he would not have so served them. In other words, he having acted upon information, we must assume that he derived it from the proper source, and that it was sufficient. — See Morse v. Hewett, 28 Mich., 485, and cases there cited, as well as those previously cited upon this point. I am of opinion, therefore, that the return of the officer shows a valid levy made on the 29th day of November upon defendant’s stock in the corporation. This being so, a sale could be afterwards made, even after the return day of the execution and after the term of the officer had expired.
But even if this levy was not complete, I am of opinion that what took place on the 22d of July following was sufficient, and that the levy previously commenced was thereby perfected.
The return shoivs that on the 13th of December the sheriff was officially notified that the defendant had caused a writ of error to be issued out of this court in said cause, and had filed the proper bond. This, under the statute, operated as a stay of all further proceedings upon the execution. The judgment having been affirmed, Nadeau, as-appears from his return, as late sheriff of Monroe county, at the request of the plaintiff’s attorneys, on the 22d day of July, delivered to Talcott E. Wing, the then treasurer of the West Virginia Oil and Oil Land Company, a certified copy of the execution, with a demand to deliver to him a certificate of the number of shares or amount of interest held by said defendant in said company. I have already said that at common law when an officer . commences the execution of a writ before the return 'day he may complete it after the return day, even though his official term may have ceased.
Sec. 573, Comp. Laws, provides that notwithstanding the election of a new serifE, the former sheriff shall return in his own name all writs, etc., “ and shall proceed to complete the execution of all final process and attachments which he shall have begun to execute, by a collection of money thereon, or by a levy upon property in pursuance thereof.” § 6111, is as follows: “When an officer shall have begun to serve an execution issued out of any court of record, on or before the return day of such execution, he may complete the service and return thereof after such return day.” While at common law, there might be some question as to how far an officer must have proceeded before the return day, some courts holding that the levy must have been complete, others that he had commenced to make his levy, I think this statute must be considered as settling the question, that the levy need not be complete and perfect on or before the return day in order for the officer to proceed afterwards. Now, without discussing the essentials necessary to constitute a valid levy, it must be conceded that time is required for that purpose. If the claim is a large one, and the property is scattered, considerable time may be required for the •officer to actually seize and take possession of sufficient to satisfy his execution. How far then must he have proceeded with his levy in order to have the benefit of this statute? Must the levy be complete and perfect ■ before the return clay, and nothing remain to be done but advertise and sell? Or in case he has commenced to make a levy but has been unable to complete it, can he after’the return day perfect the same? The statute reads, when he shall have begun to serve an execution on or before the return clay, he may • complete the service and return thereof after such clay. If the legislature intended to give ah officer authority to pro .ceecl in case the levy was completed on or before the return day, and not otherwise, I think different language would have been used; and if we once concede the right to do any act after the return day in order to perfect the levy previously commenced, it then becomes very difficult to draw any line and say just what may or may not bo done after the return day. Delivery of an execution to an officer, without any act being done by him in the service thereof, would not be sufficient, but where an officer has in good faith begun the service of it, by an attempt to levy upon property, although that levy may not have been perfected, I think lie' may after the return day proceed to complete his levy and sell the property. It would be difficult if not impossible to lay .down any general rule applicable to all cases; each must be determined upon its own peculiar circumstances.
In Clark v. Pratt, 55 Me., 546, it appeared that the plaintiff claimed title to the land in dispute under an execution sale; that the execution had been issued December 18, 1841. The levy was. commenced January 3, 1842, by a seizure of the land, and suspended, as certified by the officer making the seizure, by reason of a subsisting prior attachment in favor of the People’s Bank. It further appeared that on March 17, 1842, the appraisers were selected and sworn and the levy completed. The return of the officer, after stating that the prior attachment- referred to in his certificate of January 3, 1842, had been disposed of by a levy upon a part of the property attached, proceeded as follows: “I, Winfield Carr, late sheriff of Penobscott, still holding this execution, the same having been placed in my hands for service while exercising the office, of sheriff of said county, and having on the 16th day of March inst., taken the real estate described in the foregoing certificate of the appraisers, being a part of the same which was seized by me as aforesaid on the 3d day of January last,” etc. It was insisted in this case, upon argument, that’ the return showed the officer “took” the land on March 16, when he was not an officer; that the taking and appraisal must be had while the officer is in commission, and that such acts are conditions precedent to valid subsequent proceedings. Appleton, Ch. J., in delivering the opinion of the court said: “It is in proof that on March 17, 1842, Tlios. A. Hill levied on an undivided half of lot 13, by virtue of an execution. It is objected that this levy is void, because* at the time of its completion the officer by whom the proceedings wore commenced had ceased, to be sheriff. The levy was made under R. S. 1841, ch. 117, §§ 33-34. But by chap. 104, § 21, all sheriffs and their deputies may execute all precepts in their hands at the time of their removal from office. The officer, therefore, haying the execution and commencing its service before the termination of his office, might proceed afterwards to complete such, service.”
Nov/ whether the sheriff could after the return day, and after his term of office had ceased, levy upon new and additional stock, we need not decide, as the affidavit of the defendant shows that at the time of the first levy there was standing in his name upon the books of said company, and he then owned, at least four thousand one hundred and sixty-two shares. To this extent, then, the officer could sell, and for reasons hereafter stated a sale of any interest beyond this cannot be sustained.
It is next insisted that the sale was void, first, because made by the sheriff without having first ascertained, in the manner provided by the statute, or in any other way, the number of shares that had been levied upon. The statute (§ 6114) makes it the duty of "the officer who is appointed to keep a record or account of the shares or interest of the stockholders, upon the execution being exhibited to him, to give a certificate of the number of shares or amount of the interest held by the judgment debtor.
I am of opinion that a compliance with the provision of this section is not absolutely necessary to a valid sale. If the sheriff can, from any source, ascertain the number of shares held by the judgment debtor ho may offer the same for sale whether the books of the corporation show him as owning any stock or not. In case of a transfer, even although the books of the company do not show the same, yet an execution creditor or purchaser at such a sale, having notice thereof, would get no better title than the debtor had. — Newberry v. Detroit, etc., Iron Manufacturing Co., 17 Mich., 141. So if the debtor had purchased shares, although the same did not appear upon the books in his name, yet his interest therein might be sold. In other words, the entries upon the books would not be conclusive as to the interest of the execution debtor. Then again, if the officer required to keep such a record was not in this state, the sheriff feould not exhibit to him the execution, and this would prevent any sale if a compliance with this provision should be held necessary.
The return shows that the sheriff advertised to sell all the stock of The West Virginia Oil and Oil Land Company standing in the name of said defendant on the books of the company, or legally or equitably owned by him on the 29th of November or the 22d of July, that he was unable to give the precise number of shares, but estimated the amount at 11,000 shares. He further returns that he exposed the stock described in the notice of sale, be the same more or less, “but represented at the sale to be at least 4,162 shares.”
The only uncertainty which existed as to the property sold, was as to the legal or equitable interest which the defendant had over and above 4,162 shares. The property was advertised as estimated at 11,000 shares, and represented at the sale to be at least 4,162 shares.
The purchaser, therefore, was sure of obtaining title to at least 4,162 shares. This was certain. He might obtain more. As to this it was uncertain, but this uncertainty would not tend to prevent his bidding what he considered the full value of the 4,162 shares. It" would have an opposite tendency more likely. This uncertainty would however prevent parties from bidding intelligently for the interest the execution debtor may have had over and above the 4,162 shares. As to the excess therefore the sale would be void. Beyond this the debtor could not complain. If a larger sum was bid for the 4,162 shares because of the prospect which the purchaser ahd of obtaining other rights, the debtor could not complain' that he was injured thereby, if the sale, should be afterwards confirmed, only as to the number of shares definitely ascertained and sold. If either, under such circumstances, could complain it would be the purchaser. But in this case he has not thought proper so to do. He' may insist upon the sale being declared valid, and pay the price' which he bid, although he may not thereby acquire title to all the property he expected to at the time he made his bid. And if he is willing to accept of less, yet pay the price bid for the whole, I do not see as any other person has a right to complain on that account. The sale may be valid in part, and void in part; valid as to the number of shares definitely ascertained and sold, and void as to all beyond this.
It is in the second place claimed that such sale was void, because these shares wore offered for sale and sold in bulk, without having been offered for sale in parcels, and in support of this view the statute is cited, which provides that, “no personal property shall be exposed for sale on execution unless the same be present, and within the view of those attending such sale; and it shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price.” — § 6106. This statute cannot be applied to all sales of personal property. This court has repeatedly held that where the interest of a mortgagor is sold on execution, the property must be sold entire, and not in parcels. Nor can this statute be applied in cases of sales of stock in a corporation. Shares in a corporation, although for certain purposes treated and considered as personal property, yet cannot for all purposes. They cannot be seized and taken possession of; they cannot be present and within the view of those attending the sale. They are not capable of being treated in this way; they are but mere evidences of property; they entitle the holder to a certain share in the property and franchises of the corporation, and the very fact that at common law they could not he seized and sold upon execution, shows clearly that the rules applicable to the levy and sale of personal property cannot be applied to such shares. It is the interest which the judgment debtor lias in the corporation, that is sold and not the mere paper certificates which may or may not truly represent that interest. Whether each share is represented by a separate certificate nowhere appears. Whether such was the fact or not, a sale in bulk would not be void. It might upon proper showing be set aside upon motion. And we are asked, in case we arrive at the conclusion that upon the facts appearing in the sheriff’s return the sale can be upheld as valid, to look into the affidavits and see whether on the whole the sale, though not a nullity, ought not in justice to be set aside. The only matter set up in the affidavits which I consider it necessary to notice is what relates to the sale being made in bulk, and the inadequate- price the property brought on that account. Upon these grounds a very clear case should be made to warrant us in interfering. It is a well known fact that property sold'at a forced sale very seldom brings what the owner considers, or what may be in fact, its market value. The supreme court of Illinois upon a lilio question said: “But it never has been held that the creditor can be delayed in the collection of his money until the property of his debtor will sell for the price his neighbors may fix upon it, or until it can bo sold for as much as might be obtained for it at private sale under favorable circumstances. To hold such a doctrine would well nigh suspend all collections of money under execution sales.” — Noyes v. True, 23 Ill., 504.
Taking all the facts into consideration, I think the sale upon this ground should not bo set aside.
It clearly appears from the purchaser’s own showing, that he purchased such stock for defendant’s benefit, and to prevent it passing into the hands of strangers, and thus bo beyond Compton’s power of redeeming, and that his intention was to re-assign to defendant upon certain conditions. It would seem, therefore, as though defendant had a right to redeem the 4,162 shares sold, but as the facts in relation to this matter are not so fully before us, we give no opinion thereon, but leave the parties to pursue this matter • further should they consider it proper.
I am of opinion, therefore, that the order of the court setting aside the sale should be cpiashed 'and held for naught, with costs to the plaintiff.
Cooley, Ch. J., concurred.
Campbell, J:
The certiorari in this case is brought to review the order of the circuit court for the county of Monroe setting aside a sale of stock.
The grounds of objection set up in the affidavit are confined to the jurisdiction of the circuit judge to hear the motion or to make such an order; but as it seems to be assumed the action is open here so far as this court can review such proceedings, and as there can be no serious doubt that such motions are admissible, I shall not dwell upon the formal question.
I do not, however, see very well how we can examine into the propriety of the order if it was, as is admitted, within the authority to hear and determine on what was before the judge. He had before him the sheriff’s return, and a number of opposing affidavits. Some of these related to the equities of the sale. . Some wont further and bore upon its legality. The affidavit for certiorari shows that these papers were all used and discussed on the motion.
The order of the court is simply that the sale be set aside, vacated and held for naught as null and void. The judge’s return is express that the motion was heard and decided.on all the papers. And it also shows that the argument upon -the invalidity of the sale was not confined to the sheriff’s return and certificate, but that this was urged “ among other things.”
Apart from the other matters set out in the affidavits, there was'a positive showing, noton information and belief, that the sheriff did not serve any notice or copy of the levy or execution upon the persons mentioned in his return as officers of the company, or upon any one in custody of the company’s affairs. As there is now no question but that a sheriff’s return can be disputed by the parties over whose interests he has attempted to declare evidence of jurisdiction, and as the record does not disclose that this may not at least have been a ground of decision, we cannot review a decision which, upon such facts, would necessarily follow if the judge believed them. And it seems to me clear that this should dispose of the case.
I think, however, that the sale is void on the return itself.
At common law, and under our practice, a sale of personal property cannot be made on execution unless the property is produced at the place of sale, and within view of the bidders. It must be in the actual control of the officer, and it must be present for identification and delivery. No officer can lawfully sell what he cannot turn over to the purchaser.
It is against the general policy of the law to sell on execution any interest which cannot be thus delivered or seen. Where interests are intangible and incorporeal they are usually reached in equity, where the transfer can be made effectual by coercion of the owner. And all innovations on this rule are statutory, and can only be carried out by close adherence to statutory forms.
The stock of mining companies is divided into shares, and the holders are entitled to certificates which will identify their shares. These certificates are made by statute transferable by endorsement, and the purchaser and endorsee has a right to be received and certified in turn as a stock holder. The amount subject to be assessed may not all be called in at once, or at all, and there may be stock fully paid or part paid, so that all stock is not alike in this respect. These being all statutory regulations as well as common-laAV incidents, the statute providing -for the levy on stock and its sale upon execution must be read in the light of the rules of corporate May; and must be applied accordingly.
The statute allowing levies on stock OAvned by individual shareholders requires the following routine: The officer is to “leave a copy of the execution certified by him, with the clerk, treasurer, or cashier of the company, if there be any such officer, and if not, then Avitk any officer or person who has, at the time, the custody of the books and papers of the corporation; and the property shall be considered seized on execution when such copy is left.”
“The officer of the company who is appointed to keep a record or account of the shares or interest of the stockholders therein, shall, upon exhibiting to him the execution, be bound to give a certificate of the number of shares or amount of the interest held by such judgment debtor.”
“A copy of the execution and the return thereon, certified by the officer executing the same, shall, within fourteen days after the sale, be left with the officer of the company whose duty it may be to keep a record of the transfer of shares; and the purchaser shall thereupon be entitled to a certificate or certificates of the shares bought by him, upon paying the-fees therefor, and for recording the transfer.” — C. L., §§ 6112, 6113, 6114, 6115.
This shows very clearly that the interests Avhich can be levied on are such legal interests as appear on the corporation records as shares belonging to the judgment debtor, which can be thus identified as his legally, and not equitably, and which can be transferred on the books, as he himself might have transferred them, so as to make complete record title. It must be stock standing in his name. By taking the proper steps the company is notified of the levy, and therefore against transferring what is levied upon. But no levy can cover interests subsequently acquired, neither can it cover interests hot legally vested by being credited to the judgment debtor as his property on the company books. Till that is done his interests are equitable merely, and not subject to levy. The legal title to stock must always be of record.
While a levy may bind the property if served on any of the officers named, yet before the law officer can identify the stock it must he obtained from the company officer who keeps the stock account, and who may or may not be one of those named. And unless the stock is identified in some way, no purchaser can put himself or be put in a position where the subject of transfer can be placed on record and a new certificate or certificates issued in lieu of those issued or credited to the debtor. Unless, these rules are followed no purchaser can know what he is buying, and the officer cannot tell what he is selling; and the result will be, not only that property cannot ho sold for its value, but title cannot be perfected.
If any one bound to furnish such information fails to give it, and so leaves the levy uncertain, there is the same remedy open as in other cases where difficulties exist. A bill in equity will lie in aid of the execution. Perhaps there may also be a more summary legal remedy by mandamus or otherwise. But the difficulty of finding property will not justify a sale of it at random or out of sight, and the statute in prescribing accurate steps to be taken goes no further than is required in the sale of any personalty.
When a sale is made so that the purchaser knows, as he will thus know, the precise thing he is buying, and that the title is ascertained, as it always is legally on the corporate books, there can bo no difficulty in getting bids from those who liave any desire to purchase such property, unless sold in such amounts as to amount to a legal fraud, as it was here. The law never contemplated sales in amounts beyond the reach of ordinary purchasers. And it never tolerates illusory sales whore one purchaser cannot bo put in as good a position as others to know what he is called to bid upon.
The notice of sale in this case was not even definite enough to indicate that Compton’s record interest was to be sold, or its amount. It advertises all stock standing in liis name “or legally or equitably owned by him on the 29th clay of November, A. D. 1872, or on the 22d day of July, A. D. 1873.” And it states that the precise amount is unknown, but is estimated at 11,000 shares of the nominal value of $50 a share.
This indicates not only that the purchaser must bid on an entire uncertainty, but also that be will have to bid on the whole interest undivided (because unknown), and.that the property being nominally worth $55,000, no small bidders need appear. As the last date was beyond the life of the execution, as well as beyond his official term, there was the further uncertainty of what Compton owned in November; 1872.
Upon the return of salo it is stated the amount was represented as at least 4,162 shares. But this does not identify it. It does no good to bidders whom the notice had left in doubt. It does not show that any representation was made as to the title being a legal title, — the notice not so averring it. As a sale of any thing but a legal record title would be absolutely void, the sheriff by undertaking to make a sale in this way must necessarily prevent a fair sale, even allowing bis right to sell at all without identifying the property in some more exact way as to amount and other incidents. The fact that the actual purchaser was satisfied is not enough. The debtor bas a right to have a chance for fair competition, and bidders have a right to expect the sheriff to bo furnished with some evidence which binds the company by a statement of the amount of stock, and ensures them the enjoyment of what they bid upon.
I think the return is fatally defective, and the proceedings are illegal in other particulars upon which I do not deem it necessary to enlarge, but for the reasons given I think the order of the circuit judge should be affirmed.
Grates, J:
Blair recovered judgment in the court below and sued out execution, and the sheriff took certain steps towards levying on shares of Compton in the oil company, but was interrupted by writ of error sued out by Compton, and bail in error pursuant to the statute. The writ of error was served on the clerk, and the cause was brought here and heard, and we affirmed the judgment. The regularity of the px’actice in removing the cause, and in the steps to stop action below, has not been questioned. Assuming, as we must, that those proceedings were legal, what was their legitimate effect on the execution, and the doings of the sheriff under it?
Was the act of the sheriff, so far as it went, a legal fact not prejudiced or despoiled of efficacy by the intervention of the writ of error and bail, but left to await the addition, after affirmance, of other such facts as should be needful to constitute a valid completed levy; or, on. the other hand, was it an imperfect proceeding’which was rendered inconsequential by the operation of the writ of error and bail?
The former position must rest on the broad claim, that at whatever stage the sheriff is arrested after doing any act in part execution of the fact of levy on personalty, whatever may be the amount or whatever the character of the personalty, what is thus done, whether amounting or not amounting to a finished levy on one ox more specific items of personalty, must retain its original force, and that every thing beyond what is thus then done and accomplished must be abstained from. There must be at the very time an absoute pause; nothing more, nothing less. The act in part execution of the fact of levy must stand, whilst the stay prevents any additional or further act. If the levy is complete on one thing or on an immense quantity, or even if a sale is at hand or begun, whatever may be the nature of the personalty or the incidental or surrounding circumstances, what is done must stand, but all further action must be avoided in obedience to the stay. If we admit that an act towards a levy, but which in itself is not a levy, is of force in this way because it is a step taken -under the execution, then, upon the same principle, any other steps, at whatever stage occurring, must be respected and preserved, whilst all further steps or action must be absolutely suspended. The same interpretation of the law which is necessary to support the first must lead to the last.
The operation of such a construction ought therefore to be examined in view of its consequences and results in case of a finished as well as an unfinished levy upon one or more items of personalty before the writ of error comes to apply as a stay.
If a perfect or imperfect levy on personalty is in any instance kept in suspense, the same effect must follow in all cases. Whether the execution has only a few days to run or many, whether it has been applied to one sort of personalty or another, whether the amount is - great or small, or whether positive and complete suspension at and from the very time the proceeding in error attaches must cause little or great mischief or damage, can make no difference.
Now wherever the conditions in point of law will admit of it, it is the lawful province of the sheriff in case of levy to exclude the debtor’s possession until sale, and in numerous cases his own protection requires the sheriff to do this. His responsibility is necessarily large. Whatever the law considers as susceptible of corporeal subjection under the writ, it supposes he takes in case of levy and keeps under his dominion until regularly disposed of, and no body is under legal obligation to relieve him from any of the direct or incidental burdens. He may it is true make the debtor or a third person if willing his bailiff or keeper, but this is matter of arrangement for his own convenience, and which may or may not be practicable, or if practicable may not be prudent. Still his risk must remain. The law casts a heavy responsibility upon him and empowers him to be his own keeper, and he is under no legal obligation or duty to allow removable personalty to be meddled with by the debtor whilst the levy continues actually in' force, and if ho permits the debtor or third persons to be keeper for him, the sanctity of the levy must remain and the property must continue tied up by it.
The merits of a given construction may be sometimes tested by the supposition of practical cases, and a glance at some among many instances will at once suggest very formidable objections against the idea that whatever step may have been taken when the writ of error attaches, whether the step be one which amounts or falls short of amounting to a finished levy on some item of personalty, all proceedings must at once stop, and the act, whether constituting a levy or something less than a lev}, must remain as so much done and not necessary to be repeated. Now a sheriff may have entered upon the making a levy wdthout having gone far enough to consummate it on any thing. Or ho may have made a finished levy on particular items and been stopped when about to levy, or when intending to levy on others, or before being interrupted he may have made a finished levy on all the items intended to be levied on. Now suppose the entire stock of one in extensive trade to be put under levy, or the stock and machinery of a great lumbering, or mining, or salt, or manufacturing 'concern, or the like, to be so placed, must the property so seized continue tied up for an uncertain time? Other ca^es may be mentioned. Suppose a levy to have been made on a drove or train of hogs, cattle, or other animals requiring great and unremitting attention and labor in their care and. custody, and large daily expense for keeping; or suppose the levy to have been made on a mass of perishable property, or on growing crops ready to be harvested, or on property covered by chattel mortgage about due. Instead of á finished levy in these cases, suppose it to be a levy only in part made, so as not to be finished in regard to any item. What is to be the consequence? What may the sheriff or others in interest do? If the act of levy is complete, must it stand and the sheriff continue responsible, and every thing remain in the exact situation of the moment in obedience to the supposed operation of the writ of error? If not finished in regard to any item, what then ? What is the situation of the proceeding? What is the position of the officer and what is the condition of the property? What are the rights and duties of the sheriff and the parties? Whore are the regulations to obviate the difficulties involved in the theory in question? The law is usually particular in taking security and raising guards against embarrassing incidents to be plainly-foreseen as likely to ensue • from its own special provisions. The statute seems not to have contemplated need for regulations suited to. any such emergencies, and can such omission be accounted for otherwise than by supposing no room was understood as left for the emergencies themselves? At common law no bail in error was required, and if no final process had gone, the writ of error so far paralyzed the. power of the lower court as to preclude the issue of such process during the pendency of the writ: or if such process had already issued, to supersede it or cause it to be superseded. Still it was held that the execution of such process was an entirety and not severable, and hence if the process had gone out and its execution had actually begun, it should proceed by sale of what had been seized at the time of the intervention of the writ of error, and that the proceeds should bo returned into court to abide the event of that writ. No further or additional levy could be made. Neither could an unfinished levy be completed. The execution of- the process, so far as such execution had been commenced by full levy on any leviable item, might be completed by sale of such item and return of proceeds. To that property the process had perfectly attached, and as the completion of execution in regard to it required a sale and return of proceeds, those things wore not precluded. There could be no sev erance of execution. As writs of error became common on trifling grounds, and were often sued out simply for delay, the vexation and hindrance caused by the restfaining force of the proceeding induced efforts to correct the practice, and the judges of the king’s bench took measures to stay the issuing of the writ without a previous showing that substantial grounds existed; and at a later period the judges of the common pleas resolved that supersedeas should not be made until some manifest and pregnant error should be notified. Subsequently successive parliaments applied a reforming hand, and enacted in substance, that no execution should be stayed or delayed upon or by a writ of error, or supersedeas thereupon be sued, unless bail in error should be given, and the acts prescribed the nature and form of the security and generally the course in giving it. — 2 Tidd, 1202, et seq.; Merilon v. Stevens, Willes, 271; Mills v. Conner, 1 Blackf., 5, note; Blanchard v. Myers, 9 J. R., 66; Belshaw v. Marshall, 4 B. & Adol., 336; Slaughter House Cases, 10 Wall., 273; 3 Bouvier’s Inst., Nos. 3342, 3361, 3366.
Under these provisions the rule was admitted and observed, that if the sheriff had fully levied on any specific goods, and so had commenced execution of the process, he was to go on and sell what he had seized, notwithstanding the writ of error and bail, and accordingly none of the difficulties before suggested as involved in an enforced suspension of all further action could'arise. The goods were not required to be tied up subject to a variety of incidental risks and mischiefs’ and where, too, in many cases there must be repugnant or incongruous regulations. The beginning of execution of the process, which was said to be sufficient to avoid the stay in so far as to allow completion of what had been commenced, had no reference to a mere partial act of'levy. The meaning is readily gathered from a view or the facts and language taken together. A distinction is to be observed between the process itself, the finished act which is denoted by the term levy, and the stuff or things subject to the act. Wliat was meant, was an effectual service in respect to one or more specific items; a levy on such item or items, which, as to such property, would be the beginning of execution, and which might be completed or consummated by sale and return of proceeds. No other articles could be levied on, or an unfinished levy be completed, and the meaning of a beginning of execution was not that the process having been levied on one or more things it might be kept up and carried to other things. If nothing was fully levied on, execution of process had not begun at all, and as a consequence of the intervention of the stay, the proceedings remained barren. Nothing could be sold' because nothing had been levied on, and the process, being one not partly executed, one not begun to be executed, was stayed or superseded. After the statutes referred to, no supersedeas was deemed necessary. — Sampson v. Brown, 2 East, 439. They were sufficient by themselves.— See authorities before cited; also Lane v. Bacchus, 2 T. R., 44; Jaques v. Nixon, 1 T. R.,279; Braithwaite v. Brown, 1 Chitty R., 238; - v. Butler, Ib., 241; Samp son v. Brown, supra; Smith v. Howard, 2. Dow. & Ry., 85; Attenbury v. Smith, Ib., note; Bailey v. Baxter, 1 Mass., 156; 1 Roofs Summary, 563; Phelps v. Landon, 2 Day, 370; Arnold v. Fuller’s Heirs, 1 Ohio (Ham.), 458; Boyle v. Zacharie, 6 Pet., 648; Dutton v. Tracy, 4 Conn., 365; United Stales v. Dashiel, 3 Wall., 688; Board of Commissioners v. Gorman, 19 Wall., 661.
The revision of New York in 1830 guarded against sale in such case. — Tit. 3, Pt. 3, Art. 1, ch. 9, § 30; Delafield v. Sandford, 3 Hill, 473. Still, when the process was fully executed, as in case of arrest on ca. sa., the English rule was adhered to, that there was no supersedeas to discharge the party from custody. — Sherrill v. Campbell, 21 Wend., 287.
I will now quote the provisions of our statute which apply directly. They are contained in three sections of ch. 227,. C. L., entitled “writs of error and certiorari.”
§ 7120, “No writ of error shall operate to stay or supersede the execution in any civil action, unless the plaintiff in error, with two sufficient sureties, or three sufficient sureties without the plaintiff in error, shall give bond to the defendant in error, with condition that the plaintiff in error shall prosecute his writ to effect, and shall pay and satisfy such judgment as shall be rendered against him thereon.”
§ 7121. “The sufficiency of the sureties and the sum for which the bond shall be given, shall be determined in each case by any justice of the supreme court or circuit court commissioner; but the penalty of such bond shall not be less than double the amount of the judgment upon which the writ of error is brought, if such judgment be against the plaintiff in error, nor in any case less than one hundred dollars.”
§ 7122. “The bond, if any be given, shall be filed in the office of the clerk of the court in which the judgment was rendered, at the time of serving the writ on such clerk, and notice thereof shall be given to the defendant in error, or his attorney, and no execution shall thereafter be issued upon the judgment complained of, during the pendency of the writ of error; and if any execution shall have been issued, all further proceedings thereon shall be stayed, upon the officer holding such execution being served with a certificate of the service of such writ, and the filing of such bond, signed by the clerk with whom such bond shall be filed.”
These provisions ought not to be read as abstract propositions. They take for granted certain previously settled and understood conditions in regard to the nature and operation of a writ of error, and in order to perceive their real import and application it is needful to consult the system where those conditions were settled, and to which system our own regulations owe their origin. We should also keep in mind the state of our law in regard to what may be taken on final process, and our various and peculiar provisions respecting the execution of such process in special cases. As was well observed in Glenn v. Bank of the United States, 8 Ohio (Hammond), 72, 80: “As every statute, at tbe same time “that it professes to ordain a new rule, contains also a recognition of a great variety of old ones, by the assistance of which we are alone able to understand and interpret it; it becomes necessary to look both in and out of the statute whenever any controversy arises demanding a construction of it.” In substance, the section’s I have quoted are very similar to the ,provisions -quoted by Tidd, and I see nothing to cause .a difference of practice in regard to the right and duty of a sheriff to go on and sell such personalty (when no other conditions are in the way) as he may have fully levied on at the time of the attachment of the stay caused by the pro-ceedings in error. And on the other hand, there seems to me to be special reasons here, beyond what exist in England, for such a course. And these reasons are.seen in the almost insuperable difficulties to ensue from a contrary practice, on account of the character of much of our leviable personalty, -and the nature of many of our regulations in regard to the subjection of such personalty. Our statute makes no express mention of a case where a levy has been already made, or of a case where the act of levy has only been entered upon. It forbids the issue of execution while the writ of error is pending, and stays, without express limit as to time, all further proceedings on an execution which has been previously issued. The language is broad, but without strong .reason it should not be applied as extensively as the words will admit, contrary to the long settled practice under the provisions from which in substance our own were derived, and when to do,, so, moreover, must cause many serious 'embarrassments on account of specific peculiarities before noticed.
Then, again, a literal construction would cause the writ -of error to operate as a perpetual stay, even in case of a full levy, since the terms, as before mentioned, contained no limit to it. It is likewise material to notice in this connection, that it is expressly enacted that goods and chattels .shall be only bound from the time of levy, and not from an act towards a levy and not amounting to one. — § 6091, C. L. The provision as to stay may be well satisfied by restricting the operation of the stay to an outstanding fi. fa., where no levy at all has been fully made, and as in England, precluding it from attaching in respect to a leyy already complete on personalty. Under such construction the execution of the fi. fa., already begun by perfect levy on specific items, can, if nothing else is in the way, be carried out to completion as to such items by sale thereof and payment of the proceeds into court. As to other items no execution would be begun, and as to them the fi. fa. would stand absolutely arrested. The English regulations had no concern with a levy on real property, and in the nature of things the practice must or should be different. There may be no solid ground for saying that such a levy should not stand subject to the stay. In Green v. Arnold, supra, the supremo court of Ohio held that a levy on land was not vacated by writ of error and supersedeas; but the point need not bo decisively considered now. In the case at bar there was no finished levy at all on any stock when the stay attached, and according to the English rule and the prevailing course in this country the transaction when the stay in error took effect was of no greater force as an execution begun of the d. fa. than Avould have been a movement of the sheriff for the purpose of levying on goods without levying on any. The sheriff Avas arrested in his movement before levy Avas consummated on any thing, before the fi. fa. Avas fastened to any stock. — § 6091, C. L. All that had been done Avas an attempt to levy. And the attempt, as something falling-short of a levy, was not a proceeding capable of independent existence as a legal fact, and which, after cessation of stay, could be pieced out by the addition of other facts. It Avas not good as a levy, and it could not be good as the fraction of a leAry. To be recognized as a beginning of execution, the proceeding should be at the least in substance a levy, and not merely a movement towards making one. The law should no more recognize it as an independent legal fact, severed from other acts necessary to create a levy, than i would divide execution of the fi. fa. It must amount in substance to a levy when the stay applies. If it do not, it is a mere circumstance not within legal vision and not apprehensible as a legal fact to stand as so much done once for all. What actually took place did not amount to a merely irregular levy on the stock, and it is plain that it was not uuderstood to bo such. If it had amounted to a full levy, theu, according to my view, there would have been nothing to stay a sale, and it would have been the sheriff's duty to proceed and sell without unnecessary delay, and return the proceeds. I have confined my attention to the operation- of the writ of error and bail, and have not referred to possible occasions for special stays by. rule or order. The conclusion is, that the fi. fa. ceased to have any operation as against the stock when the proceedings in error attached. If correct in this, it follows, of course, that'the order setting aside the. sale ought not to be disturbed.
The court being equally divided, the order of the court below was affirmed under the statute. | [
-7,
-12,
49,
36,
13,
34,
-11,
-29,
-8,
-2,
12,
-5,
-34,
8,
1,
-9,
28,
6,
-2,
8,
37,
20,
22,
-44,
56,
-73,
-64,
-26,
-24,
1,
0,
3,
-11,
-13,
2,
38,
-2,
15,
14,
-33,
-5,
37,
22,
43,
-14,
7,
-48,
-35,
21,
7,
7,
-31,
21,
-50,
-17,
-49,
11,
18,
17,
-2,
8,
-26,
51,
5,
8,
22,
-45,
-35,
9,
-5,
9,
-28,
19,
25,
62,
-49,
-42,
-39,
23,
-24,
-22,
-11,
-4,
-13,
-11,
-14,
-20,
15,
24,
57,
35,
-28,
-63,
-59,
30,
52,
16,
32,
-53,
37,
-7,
-7,
-46,
-21,
0,
53,
-8,
-35,
-44,
29,
33,
-14,
51,
14,
10,
-27,
10,
-62,
20,
16,
35,
0,
28,
-10,
-14,
-13,
1,
0,
-49,
-20,
23,
-78,
-40,
-27,
26,
-14,
-7,
-27,
-42,
5,
-35,
-37,
10,
15,
48,
22,
54,
-9,
-14,
22,
-23,
11,
-13,
16,
14,
-74,
46,
-10,
-18,
-28,
36,
-16,
15,
-26,
-44,
-29,
7,
-36,
-48,
59,
29,
3,
-8,
2,
-17,
14,
-25,
-44,
-41,
7,
-37,
-90,
-27,
15,
-1,
-12,
-11,
25,
9,
38,
30,
17,
10,
-10,
-3,
-22,
20,
-31,
37,
46,
-6,
-41,
-29,
-19,
8,
-15,
42,
12,
-22,
18,
-32,
2,
18,
-33,
-5,
31,
-49,
-42,
55,
-41,
36,
-1,
20,
32,
-20,
-28,
40,
27,
30,
-7,
-20,
11,
12,
-8,
-15,
-14,
-2,
-26,
29,
8,
0,
-34,
-12,
38,
30,
-18,
13,
-16,
-21,
17,
-20,
-16,
-29,
5,
-6,
15,
-17,
-14,
-9,
15,
-4,
5,
-63,
38,
16,
-18,
-21,
-55,
-5,
31,
26,
-46,
29,
16,
-26,
-14,
14,
-19,
-32,
-55,
21,
-28,
-31,
3,
54,
22,
-19,
-15,
-34,
23,
27,
15,
14,
-7,
-21,
-18,
11,
-11,
11,
-9,
-37,
38,
-30,
-58,
-24,
20,
-24,
-32,
-40,
-11,
-7,
1,
5,
8,
23,
-24,
28,
10,
9,
-63,
-9,
14,
1,
-22,
27,
-11,
42,
-16,
-7,
22,
31,
-49,
21,
-5,
-26,
4,
-18,
38,
23,
44,
-4,
0,
-10,
13,
24,
-12,
36,
-30,
8,
30,
-4,
-20,
43,
2,
-45,
-26,
-25,
43,
7,
-44,
38,
-18,
16,
3,
21,
-39,
-1,
-39,
-3,
55,
31,
13,
6,
-17,
12,
23,
5,
-10,
-33,
-5,
11,
31,
37,
-27,
7,
14,
-25,
-21,
-65,
4,
0,
13,
-12,
32,
3,
-62,
50,
-32,
-7,
-24,
25,
47,
0,
-9,
-26,
-11,
-56,
34,
43,
-11,
-6,
28,
-6,
19,
-18,
7,
2,
7,
0,
-2,
-2,
19,
15,
-51,
5,
14,
34,
-14,
7,
-24,
-49,
60,
17,
47,
-2,
59,
-33,
39,
0,
9,
-12,
-31,
48,
18,
-2,
-6,
9,
-6,
72,
39,
-33,
16,
0,
-21,
-4,
55,
20,
-43,
19,
27,
68,
-3,
10,
-7,
14,
-1,
16,
-34,
19,
6,
-6,
56,
37,
-25,
-4,
-42,
21,
-25,
47,
-57,
43,
20,
-38,
-13,
-28,
-12,
10,
0,
18,
31,
22,
-53,
13,
-66,
31,
-7,
11,
-34,
-28,
-25,
-44,
-36,
47,
8,
-10,
76,
-21,
-22,
3,
78,
48,
-6,
-46,
1,
16,
-2,
-35,
34,
65,
-7,
33,
-40,
-21,
25,
-11,
-15,
0,
-54,
2,
-55,
-30,
-5,
-43,
-26,
1,
6,
-19,
6,
-26,
-40,
7,
-10,
39,
-34,
-43,
-30,
13,
-57,
-12,
1,
21,
9,
16,
-13,
5,
0,
-22,
-57,
7,
-17,
-26,
-18,
13,
-13,
46,
-5,
-14,
-35,
7,
44,
4,
-4,
39,
10,
96,
-32,
-26,
-24,
15,
43,
7,
-40,
0,
-27,
-9,
0,
24,
-11,
0,
9,
-63,
10,
29,
35,
32,
-14,
7,
29,
-8,
-13,
-26,
4,
29,
-28,
76,
-9,
8,
70,
-44,
-5,
-38,
-34,
31,
25,
15,
0,
9,
-10,
-12,
-22,
-4,
22,
-18,
34,
33,
53,
-5,
16,
-55,
27,
-33,
-30,
-34,
39,
-24,
32,
5,
22,
-40,
4,
-11,
-47,
-15,
-38,
13,
4,
-12,
-34,
38,
30,
-26,
-51,
51,
9,
0,
37,
8,
-22,
29,
-41,
53,
-39,
21,
27,
41,
-39,
10,
6,
16,
15,
-31,
-10,
12,
-43,
-30,
13,
17,
53,
17,
8,
24,
9,
3,
5,
2,
20,
-28,
46,
-15,
5,
-7,
-14,
-6,
19,
-70,
-12,
35,
-15,
5,
-19,
29,
24,
-8,
48,
47,
16,
-3,
-6,
19,
-56,
-17,
13,
-6,
14,
-24,
-46,
64,
-7,
-41,
-36,
32,
-47,
31,
-25,
16,
34,
-43,
31,
0,
13,
-16,
13,
-6,
27,
-24,
-12,
-39,
-12,
-48,
22,
12,
9,
-22,
-16,
-5,
20,
-15,
16,
-17,
45,
7,
15,
-4,
5,
29,
-26,
-17,
-20,
-39,
-6,
-36,
27,
4,
-19,
-7,
13,
-33,
-10,
-21,
-10,
10,
-10,
-15,
-10,
5,
12,
0,
-12,
0,
24,
-13,
-22,
-10,
-38,
12,
-82,
-22,
46,
49,
11,
50,
-32,
34,
-11,
-46,
16,
39,
30,
-40,
-1,
-29,
36,
-21,
31,
22,
0,
60,
-3,
-20,
-11,
-1,
31,
22,
-30,
12,
25,
-28,
7,
-35,
7,
2,
6,
-1,
33,
25,
27,
-70,
-7,
-24,
14,
12,
-28,
-17,
-1,
18,
-44,
72,
-37,
-31,
-89,
-49,
15,
-20,
-22,
14,
-29,
-26,
11,
-6,
-13,
19,
8,
-59,
-43,
-51,
-14,
62,
-43,
-2,
28,
24,
-6,
-38,
-14,
-12,
-8,
21,
50,
-39,
21,
15,
26,
-46,
41,
-20,
67,
3,
-37,
-1,
6,
-28,
-2,
-3,
42,
16,
2,
86,
-35,
-15,
-22,
30,
-25,
-19,
3,
-37,
24,
14,
-42,
-2,
-37,
7,
-11,
-15,
21,
13,
14,
21,
-5,
24,
-10,
3,
-9,
5,
-37,
-62,
74,
39,
-15,
-7,
-22,
95,
1,
0,
53,
-13,
8,
13,
11,
30,
34,
11,
-31,
-13,
-21,
7,
-2,
-10,
-60,
24,
-18,
41,
-13,
-8,
-18,
1,
1,
0,
0,
-12,
32,
27,
-9,
16,
28,
-25,
-1,
-31,
-1,
93,
22,
-10,
12,
2,
-59,
23,
64,
-48,
78,
-30,
-38,
4,
11,
28,
-58,
57,
60,
18,
-13,
21,
-46,
24,
-5,
2,
22,
43,
-52,
43,
54,
58,
5,
22,
3,
1,
7,
29,
31,
-14,
22,
-71,
-11,
5,
-46,
6,
15,
27,
-5,
8,
-32,
15,
20,
-96,
-9,
-27,
-8,
-16,
43,
10,
-16,
69,
-14,
24,
-9,
31,
41
] |
Cooley, J:
It is not very clear from this record that the court erred in admitting evidence of the value of McNeil’s services as superintendent. Undoubtedly it was the duty of the parties who employed him to furnish and pay the superintendent. This is not only the custom in such cases, but the nature of the duties to be performed by a superintendent are such that it would be highly improper that he should be appointed or controlled by the contractor. He is to oversee the work of the contractor, and to exercise a quasi judicial authority in determining upon its suitableness and sufficiency under the contract; and this fact would seem to preclude all idea that he was to superintend for his employers his own work. The two positions of contractor and superintendent of the contractor’s work are inconsistent, and it is no less than an absurdity to imply a contract on the part of the employers to pay him for accepting on their behalf his own work. Nor is it very manifest that, if the superintendency went no farther, the contractor would be put to any extra trouble. As contractor he must see that his own work is sufficient, .and as superintendent he could do no more. If, therefore, the builders left him to act as superintendent, while there might be a strong inference that they expected to confide in his judgment, discretion and fairness as to the character of the work and materials, it would be on a very violent presumption if it were to be assumed that they expected to pay him for superintending himself.
But it does not distinctly appear from the record that McNeil was not to superintend the work of others. His contract was for mason work only, and it does not affirmatively appear that he superintended nothing else. All reasonable intendments are to support the rulings below; if it were legally possible for the employers to make their con tractor superintendent, we must infer that the proper showing was made. There was certainly no difficulty in the way of his being made the superintendent of the work of others, and therefore no error in admitting evidence tending to show an employment. 'Whether the evidence went far enough to make out a case is another question, and one upon which nothing in this record enables us to pass.
Complaint is made that the church trustees -were not allowed to show a loss of pew rents in consequence of the contract not being completed in season. It may be questionable whether the provision in the contract, authorizing them after three days’ notice to take the work into their own hands and complete it at the contractor’s expense if he failed to proceed with due diligence, is not to be regarded when acted upon as a remedy agreed upon as a substitute for future damages (Clark v. Babcock, 23 Mich., 164); and if not, whether the extension of the time for completion by consent or acquiescence was not a waiver. The question is not very material here, because a further difficulty is insuperable. The contract upon which suit was brought was not one the completion of which w^as to put the building in condition for the renting of pews. A large amount of other work would still remain to be done, and large expenditures to be made, with which this contractor would have no concern whatever; and the building might never be put in condition for the renting of pews and yet he be in no way responsible. It can never be said that the loss of rents is a necessary, natural or probable result of a particular default, when had no default occurred, the necessary conditions to rent would still be wanting, and might never be supplied. Any claim against this contractor for damages resulting from loss of rents must assume that the trustees had the ability and inclination to proceed at once to complete the church, and were only delayed by the contractor’s default; but damages so remote and contingent would require to be specially claimed by the pleadings, if recover able at all, which is doubtful. — See Michigan Central R. R. Co. v. Burrows, supra, p. 6.
The offer to show damages by reason of the trustees being deprived of the privilege of giving to McNeil a fifteen thousand dollar, six year, eight per cent, mortgage for part of his demand, was not sufficiently specific to warrant the proffered evidence, if no other objection existed. The offer was to show that by reason of McNeil’s failure to complete the contract in season, they were compelled to borrow money at a higher rate to complete it themselves. It was not proposed to show that the current rates for six year loans were higher than eight per cent., nor that the loans made by the trustees were any thing more than- mere temporary loans. If by reason of McNeil’s default they lose the benefit of an eight per cent, credit for six years, it does not follow that they suffer damages therefrom, unless the current rates of interest are such that money cannot be borrowed on that time without paying more. This the defendants did not offer to show. A temporary loan can afford no proper standard of comparison for a loan of six years.
But it may be questionable whether all rights under the stipulation regarding the mortgage were not gone when the trustees took the work into their own hands. Where the contractor completes the work, there is no difficulty in enforcing such a stipulation, since if he refuses the mortgage, he is precluded from recovering the compensation until the credit to be given by the mortgage has expired. But when the employers take the work into their own hands, the stipulation becomes incapable of specific enforcement, because they then do the work at his expense, and are likely to be his creditors instead of his debtors. Nothing then remains but the question of damages; and these would be ' damages not for a refusal to take a mortgage as agreed, but for neglect to complete the work so as to have earned the mortgage. The loss of the opportunity to give a mortgage would consequently be only one of tbe elements which go to make up damages from a failure to perform the work in season. There are- serious difficulties in the way of holding that dainages can legally be predicated of the loss of an opportunity to give a mortgage at a rate of interest exceeding that fixed by law, and which, as a legal presumption, must usually be deemed adequate compensation for the use of money; difficulties so troublesome that when suggested by a contract any alternative which the contract presents may well be supposed to have been provided as a substitute.
Now this contract provides in substance that when the contractor completes the work he shall take a mortgage for fifteen thousand dollars in part payment. It also provides that if he does not complete it, the trustees may do so at his cost. Is it a legitimate inference from these stipulations that it was contemplated by the parties that a failure on the part of the contractor to complete the work should subject him to damages for not putting himself in position to be required to receive the mortgage in part payment? This does not appear to us so simple a question as it was assumed to be by counsel for the trustees.
There can be no legal presumption that it is to oire’s advantage to give a mortgage at eight per centum interest. On the contrary, when a stipulation for such a mortgage appears in a contract, the presumption is reasonable, where nothing appears in the contract to qualify it, that it was for the benefit of the party who was to receive the mortgage, rather than of the one who was to give it. And this presumption would be stronger in proportion to the time the mortgage was to run; because in the- money market, if the security is ample, the rates are usually diminished as the time is increased. It could not, therefore, be held as a presumption either of law or fact that the trustees would be damnified by losing the opportunity to give such a mortgage to the contractor, or that they would lose any thing by taking the work into their own hands at the contractor’s expense. The giving of the mortgage might prove to be for his benefit rather than for theirs; this would depend upon contingencies not to be fully foreseen when the contract was made; and these contingencies would strengthen the probabilities favoring a construction of the contract that if the trustees took the work out of the contractor’s hands this stipulation would be waived. We are inclined to regard this as the legal construction.
The fourth exception taken by the plaintiffs in error we have not been able to overcome. They offered to show what the finishing of the work cost them after they took it into their hands, and that they paid the current rates. This offer was excluded. It is true they were permitted afterwards to put in the testimony of experts on the same point, but this did not cure the error. If the excluded evidence were cumulative merely, it should have been received; but it was really something more; it was or should have been more satisfactory and conclusive upon the question of cost than any mere opinions. No opinions can be so satisfactory or conclusive as the actual test, if fairly and honestly carried out. It is true, as was urged on the argument, that the cost to defendants was not the proper test of. what they were to charge the contractor; but they offered to show that they paid only the current rates, and this offer made the evidence admissible. We regret the necessity for sending the case back for a new trial, but there seems to toe no alternative. It will be so ordered.
The other Justices concurred. | [
35,
-50,
-11,
-32,
-1,
8,
13,
25,
3,
26,
65,
25,
76,
-28,
-7,
-64,
-10,
24,
2,
-17,
44,
8,
11,
-53,
-13,
15,
11,
-43,
-13,
82,
-30,
-6,
-34,
-2,
-52,
25,
31,
4,
17,
-24,
10,
-16,
-35,
-62,
47,
12,
13,
-9,
12,
13,
-5,
20,
-20,
4,
64,
-3,
10,
9,
-3,
14,
-3,
6,
-5,
-19,
-1,
-7,
-4,
18,
26,
-15,
-16,
49,
-30,
-26,
4,
-6,
9,
1,
9,
23,
2,
-11,
23,
-61,
33,
22,
-4,
-6,
7,
16,
-10,
-6,
23,
33,
-35,
51,
-27,
23,
9,
10,
59,
-8,
-8,
-15,
-38,
-38,
-45,
-32,
37,
20,
32,
32,
26,
-46,
7,
-7,
33,
32,
-55,
-31,
38,
48,
4,
-40,
-33,
-27,
49,
-28,
-71,
17,
-32,
-22,
-67,
-5,
8,
-4,
41,
-7,
-12,
-1,
9,
33,
23,
9,
-51,
-27,
-47,
2,
-34,
-19,
40,
13,
41,
-20,
-10,
-34,
-19,
-56,
31,
-25,
12,
35,
-3,
1,
-24,
-8,
-29,
4,
23,
31,
46,
25,
-30,
-25,
28,
-4,
17,
-6,
21,
-17,
-28,
14,
25,
-26,
35,
7,
15,
13,
39,
-11,
-38,
-32,
-18,
0,
2,
0,
-22,
11,
-11,
-21,
-21,
56,
9,
14,
-5,
14,
9,
5,
-10,
34,
-5,
33,
-45,
-18,
-24,
35,
-15,
1,
-41,
-66,
-19,
9,
12,
-41,
-72,
-43,
-26,
45,
38,
-22,
-38,
-2,
65,
15,
-25,
23,
0,
20,
-20,
-9,
-5,
11,
-66,
0,
-26,
-27,
17,
13,
-12,
5,
-24,
-9,
57,
38,
-10,
-6,
-15,
44,
-33,
-37,
33,
-6,
-27,
-18,
32,
-35,
11,
26,
21,
54,
7,
38,
50,
45,
-21,
7,
-16,
-4,
-45,
11,
-4,
-2,
-18,
32,
-16,
5,
5,
24,
-19,
8,
38,
-12,
15,
-11,
52,
46,
24,
-21,
-19,
-47,
-17,
7,
27,
75,
8,
42,
-95,
12,
2,
0,
8,
-9,
-47,
-19,
-7,
27,
-48,
-41,
-5,
-21,
-8,
-23,
8,
-72,
2,
-16,
43,
-28,
-17,
-11,
15,
-6,
-3,
1,
-9,
37,
27,
-5,
-10,
-17,
-29,
56,
10,
-57,
-40,
-18,
4,
-18,
27,
-5,
48,
14,
-66,
16,
10,
42,
-22,
-23,
-32,
-15,
53,
40,
10,
-22,
-29,
0,
-34,
8,
32,
17,
53,
-15,
-12,
-4,
-42,
28,
-9,
7,
-58,
48,
-22,
0,
-31,
-25,
-24,
4,
-24,
21,
-29,
4,
-24,
-17,
9,
26,
-42,
-23,
36,
47,
7,
-11,
7,
0,
-32,
-37,
-5,
-20,
-27,
-32,
-41,
26,
-36,
94,
0,
19,
-5,
-36,
7,
-28,
26,
48,
-2,
-21,
50,
9,
40,
-46,
-14,
52,
-31,
-71,
-53,
-36,
10,
-41,
-11,
-20,
21,
-19,
-42,
9,
-47,
-9,
-53,
2,
-9,
40,
18,
46,
4,
1,
20,
13,
4,
37,
25,
-22,
0,
-57,
91,
42,
13,
6,
42,
-28,
-9,
0,
2,
15,
34,
33,
1,
-5,
62,
10,
-3,
-9,
-27,
31,
-12,
12,
66,
17,
21,
41,
-33,
15,
-61,
-14,
7,
32,
17,
52,
-18,
-29,
-14,
-8,
14,
-29,
-32,
43,
11,
37,
32,
-64,
29,
-35,
10,
-35,
33,
19,
-75,
-7,
78,
24,
-41,
-16,
47,
38,
-25,
11,
42,
-51,
-20,
-27,
35,
63,
-41,
34,
22,
-40,
-17,
36,
33,
60,
-30,
2,
3,
-31,
26,
-56,
-42,
34,
22,
53,
-17,
11,
-14,
-3,
-30,
8,
10,
-14,
23,
-15,
-47,
-1,
24,
20,
17,
36,
-9,
28,
45,
-23,
12,
8,
-81,
30,
54,
-48,
28,
10,
-9,
29,
-29,
25,
-4,
5,
41,
-35,
-5,
-10,
8,
-7,
-40,
16,
2,
4,
22,
-11,
-39,
0,
-17,
-29,
3,
-57,
23,
-11,
15,
15,
-4,
10,
-31,
-9,
-26,
0,
-17,
25,
39,
26,
10,
-4,
20,
0,
-43,
34,
-33,
-74,
17,
26,
29,
15,
-14,
-70,
-43,
40,
56,
30,
32,
-23,
-38,
-6,
-17,
20,
-6,
-42,
-4,
-43,
-13,
38,
32,
-2,
-41,
3,
-14,
73,
23,
64,
54,
-7,
-2,
31,
34,
24,
21,
-45,
-2,
-6,
-12,
-43,
66,
-24,
40,
46,
-12,
12,
-48,
53,
16,
0,
-3,
2,
26,
49,
-7,
-66,
-30,
-39,
-30,
-20,
21,
-5,
-10,
-41,
10,
28,
-12,
-33,
-17,
-38,
13,
-12,
29,
-72,
11,
-35,
-18,
35,
36,
22,
-8,
1,
43,
27,
-11,
-1,
-9,
-24,
-20,
17,
29,
-1,
-18,
21,
-30,
22,
-24,
28,
-73,
1,
58,
-25,
-26,
-7,
33,
21,
16,
-24,
4,
-40,
-22,
-39,
-5,
-20,
1,
-1,
-5,
13,
-1,
21,
-1,
29,
-26,
-21,
-15,
21,
60,
19,
-13,
4,
19,
-15,
-12,
-34,
25,
-33,
-8,
-14,
16,
14,
-18,
-46,
9,
8,
50,
-37,
-67,
22,
-34,
-62,
87,
19,
24,
16,
16,
30,
25,
11,
20,
-19,
11,
-22,
-13,
67,
-48,
-75,
-4,
-4,
-24,
51,
-4,
8,
37,
-7,
-30,
-27,
-41,
20,
18,
-26,
-12,
38,
-11,
-9,
11,
5,
-22,
9,
40,
-14,
-12,
-10,
-15,
4,
-3,
0,
-15,
19,
-18,
21,
-27,
36,
-30,
-39,
22,
-22,
50,
-11,
-29,
38,
2,
9,
-64,
49,
6,
-33,
-69,
14,
-8,
-33,
-29,
-33,
17,
44,
-5,
-19,
-29,
37,
-22,
-13,
-20,
41,
13,
-37,
0,
-42,
9,
-38,
71,
-2,
-15,
58,
26,
29,
-10,
-9,
-1,
38,
44,
-40,
5,
48,
8,
-32,
-27,
-27,
12,
-4,
27,
59,
11,
39,
-29,
-3,
3,
-21,
-8,
23,
44,
49,
15,
-74,
-41,
24,
19,
-8,
6,
19,
-13,
15,
-36,
-1,
-19,
-13,
36,
10,
-2,
-9,
0,
34,
-12,
1,
-51,
-34,
-23,
55,
1,
2,
10,
24,
19,
-54,
-47,
-4,
12,
15,
4,
-35,
-15,
-10,
-11,
-15,
20,
45,
62,
-53,
14,
-15,
-54,
-49,
-25,
-26,
-12,
28,
37,
-6,
-17,
7,
16,
-29,
-8,
79,
1,
0,
-11,
22,
-45,
-16,
-42,
-48,
-23,
7,
16,
-27,
51,
-15,
57,
17,
-39,
-62,
36,
-20,
-12,
-35,
34,
-1,
-37,
-30,
8,
5,
10,
-15,
-16,
21,
3,
5,
32,
-26,
-50,
2,
38,
33,
-7,
-23,
-23,
-67,
-34,
-31,
59,
-7,
19,
8,
-40,
10,
0,
36,
6,
64,
19,
-77,
-11,
35,
15,
25,
-2,
-9,
-45,
19,
-28,
-62,
67,
-27,
-14,
38
] |
Graves, J:
The defendants in error recovered in the court below on. a fire policy issued to them in their firm name of Verdier & Brown by the company. The risk covered by the policy was from the 15th day of May, 1874, until the 15th day of May, 1875, and was taken on Verdier & Brown’s “stock of hardware and gas fixtures, consisting of stoves, shelf goods, tinware, furnaces, pumps, mantels, plumbing materials, gas fixtures, gas pipes and such other goods usually kept on sale by them as dealers in hardware and gas-fitters’ goods, contained in three-story brick, tin roof building, situated on the east side of Canal street, No. 102, Grand Rapids, Mich.” The amount of the risk was three thousand dollars, but the policy permitted other concurrent insurance of nine thousand dollars, and in fact there was other insurance in the association called the Underwriters, and also in the Merchants’ Insurance Company, and making with that taken by the plaintiffs in error eight thousand dollars. That of the Merchants’ company, however, included a small sum upon tools. The loss' happened on the 4th of June, 1874, but was only partial. It amounted to six thousand eight hundred and eighteen dollars and twenty cents.
The plaintiff in error claimed that besides these insurances, there was one existing when the fire happened, of three thousand dollars, issued by the Home Insurance Company, and which ought to be taken into account in calculating the amount or share of the entire loss to be borne by them. This position being controverted by the assured, the plaintiffs in error, on the 15th of August, 1874, and before suit, tendered one thousand nine hundred and three dollars and seventy-six cents, as the sum they were liable for on the basis of the Home Company’s policy being reckoned amongst those to be considered in fixing the sum called for from plaintiffs in error under the agreement in their policy. This was several hundred dollars less than they were bound to pay if the policy of the Home Insurance Company was excluded. The defendants in error continued in their opinion, and finally claimed upon the trial that the Home policy was not to be considered at all in fixing the amount lawfully payable by plaintiffs in error under the agreement in their policy, and the court below, being of that opinion, charged accordingly. And the question now is, whether it appears by this record that the court erred in so ruling. If it did, the recovery was excessive; if otherwise, it was not. To decide the point we must be governed by the record. The policy in suit is set forth, and by the seventh article the parties contracted as follows: “In case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, without reference to the dates of the different policies, or their invalidity from want of notice of this or other insurance, or from the violation of any of their conditions, or the insolvency of any or all the other insurance companies. And it is hereby declared and agreed that in case of the assured holding any other policy in this or any other company on the property insured, subject to the conditions of average, this policy shall be subject to average in like manner.”
It appeared in evidence that the Home Insurance Company of the city of New York insured by their policy of May 1st, 1873, the defendant in error, John A. S. Verdier, in the sum of three thousand dollars for the term of one year, “on his stock of hardware, tin, iron, stoves and such other articles as are usually kept on sale by him as a hardware and Yankee-notion dealer, contained in three-story brick building, situate on the east side of Canal street, No. 82, Grand Rapids, Mich.” It also appeared that No. 82 was afterwards changed to No. 102 by city ordinance. The place was therefore identical with that specified in the policy issued by plaintiff in error.
Mr. Verdier being sworn, it appeared from his evidence, that for some time prior to the fire he had carried on the business mentioned in this policy, and that about a month before it he took Mr. Brown in as partner, and that it was then agreed, between them that all fire policies should be' transferred to the firm, that the policy issued by the Merchants’ Company was transferred accordingly, but the policy issued by the Home Company was not assigned, for the reason that on seeking for the agent in order to accomplish that object, it was found that he was not at Grand Rapids, and that the term of the Home policy esjaired on the first of May, and the premium for renewal was not paid until the day of the fire and just after that event, but was then paid to a clerk of the agent. A renewal receipt was put in evidence, which purported to bear date May 1st, 1874, and to renew the policy for a year from that time at the rate of one and a quarter per cent. It also appeared from the evidence of Mr. Verdier that this policy covered the goods in the store before Brown united with him, and that the adjustment of loss was begun four or five days after the fire and was concluded about two weeks after, and that the agents of plaintiffs in error, of the Underwriters’ Association, of the Merchants’ Company, and also of the Home Company, participated in it. It seems a necessary inference likewise, that the defendants in error did also.
It further appeared from Mr. Verdier’s evidence, that after the loss he assigned the policy of the Home Company to the Hanover Company of New York, being one of the association styled Underwriters, and received therefor the amount he claimed, leaving out the Home Company, or in other words, as subsequently stated by him, that lie received from them the amount the loss would bear to the Home Company, provided they had to pay, and that they settled with him on the basis that the Home did not pay any thing.
This evidence was in no way controverted, and it is substantially all we have in the record; and standing as it does, it shows that the defendants in error considered the Home policy in force and operative as an insurance on the stock when the agreement was made between them for an assignment by Verdier to the firm, and when the premium for renewal was paid after the fire, and it also serves to show 'that the Home Conrpany so considered it when they took part in the adjustment of loss. We have the further fact of an assignment to the Hanover Company, of the Underwriters’ Association, and the circumstance that the Home Company does not appear to have surrendered or returned the renewal premiums, or to have questioned in the least the subsistence of the policy, or the amplitude of its application to the firm stock. As between the defendants in error, the agreement to assign conveyed the equitable right and title to the firm, and the proof given by Mr. Verdier himself is strong to show that the company acquiesced, and were not minded to object that no formal assignment had been made. If the defendants in error and the Home Company mutually assented to the continuance of the Home policy, and its application to the firm stock, as it stood up to the time of the assignment to the Hanover Company, as the uncontradicted evidence is very strong to show, we do not see upon what ground the defendants in error can maintain the opposite to defeat the operation'of the 'seventh article of the policy in suit. The defendants in error and the Home Company were certainly competent to give effect to the arrangement between Verdier and Brown for a transfer, and to keep the policy in life and allow its application in the broadest manner; and all the evidence is very cogent to show that they did so. Notwithstanding the old stock originally insured as the individual insurable interest of Mr. Verdier had become firm stock, still the Home Company received a renewal premium and kept it. We say kept it, because there is no hint of its return, and if it had been returned Mr. Verdier must have known it, and have felt the importance of stating it. He not only did not intimate any thing of the kind, but proved the assignment of the policy as a subsisting one; and still further, that the assignment was made in the way of working out an adjustment of a firm transaction; and in assigning in this way the defendants in error implied by their conduct, that in truth the policy was a firm asset. Then again, the joining of the Home Com pany in the adjustment, and the want of objection on their part, are agreeing circumstances with the others, to show that the company and defendants in error were in actual concurrence, that the policy was a living one of defendants in error, and an insurance upon their stock. The conduct of the parties will allow no other explanation rinless we go out of the records.
It will hardly do to say that the company, by their agents, were working and spending time in the adjustment of a loss in which they had no interest, or that the conduct of the company’s agents, in view of the attitude of defendants in error, or the acquiescence of the company in the claims or assumptions of the latter, may now be set aside or ignored by defendants in error. Neither is it quite admissible for defendants in error to now contradict the whole tenor of their dealings between themselves, and with the Home Company and the other companies, in order to escape from an article in their agreement with plaintiff in error. There was clear evidence to show a contract relation between the defendants in error and the Home Company, within the meaning and operation of the seventh article of the policy in suit. As the court below held otherwise, it erred.
The judgment should be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
-37,
23,
0,
-14,
4,
23,
18,
-32,
49,
-20,
44,
42,
33,
24,
23,
-23,
-21,
39,
-30,
-6,
12,
-39,
-49,
2,
-34,
-24,
52,
-19,
11,
63,
22,
13,
-38,
-14,
-34,
20,
-52,
20,
-69,
-20,
8,
-31,
60,
-65,
-4,
-21,
19,
3,
47,
36,
52,
-6,
16,
-20,
-25,
8,
-4,
58,
-16,
-55,
9,
-31,
13,
10,
25,
-6,
-9,
20,
1,
45,
26,
0,
7,
2,
16,
0,
-31,
-1,
-95,
-30,
-35,
-23,
38,
-33,
-4,
46,
-7,
-2,
-45,
20,
-23,
-44,
25,
13,
23,
11,
-19,
65,
-28,
50,
30,
-4,
-42,
20,
-47,
14,
9,
-10,
-8,
3,
-22,
14,
4,
-15,
25,
6,
-36,
10,
-19,
13,
22,
12,
18,
-24,
-9,
28,
4,
-9,
-28,
-2,
-33,
5,
-56,
16,
-2,
-9,
-14,
1,
-26,
-16,
6,
-41,
-42,
-6,
-40,
3,
-7,
-52,
-10,
-24,
-6,
-3,
-27,
1,
-33,
-5,
-11,
-46,
52,
-27,
19,
-25,
7,
43,
-38,
14,
-12,
16,
-27,
0,
30,
-33,
5,
-14,
43,
45,
32,
-108,
-20,
14,
6,
-2,
5,
0,
41,
-46,
-37,
18,
22,
-9,
76,
-28,
-83,
25,
-39,
15,
33,
53,
29,
-41,
40,
-44,
-20,
9,
68,
12,
-1,
2,
7,
-7,
-35,
16,
-59,
-34,
-25,
52,
-23,
-37,
-28,
-68,
-38,
13,
-38,
15,
-26,
-42,
14,
15,
26,
-40,
-33,
31,
40,
-7,
-8,
-18,
1,
9,
20,
50,
27,
-12,
-49,
8,
34,
0,
10,
1,
-31,
40,
-39,
-24,
16,
11,
-23,
-11,
-9,
26,
-56,
14,
-23,
16,
-64,
-7,
70,
-19,
11,
-10,
-20,
53,
-15,
15,
33,
-6,
-56,
-42,
3,
39,
-7,
-40,
16,
1,
-74,
0,
10,
8,
19,
-7,
-26,
-40,
26,
-52,
24,
-19,
40,
9,
6,
-5,
37,
-21,
-26,
2,
2,
-37,
30,
15,
-65,
-7,
-28,
23,
-37,
11,
-26,
9,
28,
-30,
-31,
32,
-30,
-8,
14,
4,
-8,
27,
-36,
-21,
25,
-1,
30,
-7,
-29,
0,
38,
19,
-24,
-29,
16,
-17,
7,
-27,
-3,
30,
8,
-39,
-21,
32,
13,
-13,
-20,
-2,
-13,
-4,
-4,
29,
14,
21,
63,
37,
-50,
59,
93,
54,
41,
35,
0,
21,
-7,
-22,
-2,
58,
-11,
-12,
-34,
-19,
12,
-3,
-15,
21,
-49,
26,
29,
-12,
-12,
14,
2,
11,
-6,
-15,
-50,
12,
-56,
-32,
25,
19,
27,
-24,
-23,
-55,
-43,
-34,
46,
33,
-5,
-32,
-20,
-10,
-40,
-14,
-8,
-10,
11,
-31,
17,
-72,
-15,
-8,
26,
-37,
8,
14,
53,
-12,
-9,
-14,
18,
-80,
45,
25,
-16,
23,
-32,
4,
0,
-22,
11,
0,
-40,
-14,
-26,
31,
-35,
48,
-31,
18,
43,
3,
-15,
24,
76,
-2,
2,
-1,
41,
5,
-20,
23,
2,
-43,
36,
-26,
20,
-21,
0,
-6,
-9,
-11,
30,
-22,
47,
-1,
-43,
-1,
29,
-42,
-7,
9,
-6,
-28,
-52,
47,
-9,
39,
17,
-3,
-26,
-30,
20,
26,
-30,
-8,
41,
20,
-19,
-19,
-17,
54,
-44,
0,
7,
-16,
-24,
-25,
3,
-5,
30,
9,
-8,
-28,
21,
31,
-1,
5,
41,
13,
5,
8,
20,
-13,
20,
31,
-28,
-17,
-72,
2,
-2,
29,
-40,
33,
49,
1,
15,
-37,
8,
-37,
-62,
-5,
44,
45,
13,
-7,
-1,
52,
27,
19,
-42,
-3,
-48,
44,
-24,
-33,
2,
-34,
43,
5,
-4,
20,
19,
-7,
29,
3,
-1,
14,
23,
-18,
18,
8,
22,
6,
29,
-31,
0,
-16,
-16,
23,
-21,
-7,
-40,
6,
-17,
11,
-45,
26,
55,
-47,
-26,
40,
-19,
24,
-2,
28,
25,
43,
-13,
3,
5,
-4,
-15,
-29,
-6,
17,
-29,
-23,
-19,
-6,
18,
19,
-25,
5,
15,
10,
43,
9,
-42,
-29,
39,
15,
13,
-12,
2,
-8,
63,
1,
-10,
19,
25,
37,
-2,
10,
-37,
49,
28,
-17,
32,
18,
0,
-2,
45,
32,
-37,
31,
-5,
-33,
34,
6,
-39,
45,
-29,
6,
-25,
-42,
-11,
6,
5,
-5,
-3,
-3,
-27,
0,
8,
-20,
-15,
3,
50,
81,
-70,
40,
33,
-48,
12,
-5,
14,
-4,
36,
36,
12,
-10,
-5,
67,
9,
13,
24,
5,
4,
-6,
30,
-24,
-32,
8,
22,
-19,
-5,
-8,
-55,
-31,
35,
37,
17,
35,
21,
-84,
-4,
-8,
4,
-15,
-57,
16,
-7,
-47,
33,
16,
23,
23,
28,
-41,
3,
-16,
-16,
-11,
-46,
-26,
-20,
-80,
40,
5,
-21,
-10,
16,
-10,
-13,
10,
-30,
-20,
-20,
-11,
8,
33,
9,
20,
-11,
-22,
-45,
8,
22,
27,
-40,
-8,
22,
-2,
71,
-8,
7,
24,
16,
-14,
31,
15,
-52,
21,
-15,
-38,
38,
0,
15,
-20,
-21,
-31,
47,
-27,
0,
-84,
-9,
21,
-15,
11,
-20,
54,
24,
-50,
0,
13,
95,
-23,
33,
-14,
-20,
-13,
31,
4,
17,
-8,
12,
25,
-28,
-22,
-16,
25,
-26,
-16,
5,
4,
-9,
-13,
16,
19,
10,
29,
-11,
-21,
37,
-25,
0,
-34,
12,
1,
21,
6,
-34,
3,
23,
24,
-41,
57,
-28,
27,
5,
-32,
-16,
-11,
-1,
3,
-10,
-30,
-30,
-15,
24,
-1,
-14,
2,
-50,
-3,
23,
2,
-31,
73,
27,
-9,
-22,
-11,
-33,
1,
-34,
-47,
58,
-7,
-17,
22,
-1,
-3,
57,
47,
10,
-7,
-26,
23,
35,
-16,
-30,
31,
-39,
-11,
-34,
35,
-23,
-26,
11,
37,
5,
-5,
57,
-2,
-23,
-24,
11,
3,
-17,
24,
-19,
-14,
-20,
79,
26,
3,
14,
48,
22,
-51,
-51,
6,
50,
-12,
21,
-8,
-37,
8,
2,
30,
-2,
-40,
-28,
22,
24,
23,
0,
-40,
10,
61,
26,
-9,
-40,
15,
-30,
-28,
13,
-34,
-22,
11,
2,
31,
8,
51,
14,
12,
-12,
63,
22,
-59,
27,
-28,
-37,
0,
-2,
2,
15,
9,
-23,
-34,
73,
-9,
14,
10,
5,
-15,
7,
35,
-18,
-15,
-54,
-10,
-25,
-6,
-56,
6,
6,
-34,
7,
-1,
60,
21,
-31,
-43,
5,
-32,
50,
-14,
-37,
-26,
2,
-45,
-23,
-8,
3,
-4,
-42,
19,
6,
-14,
-48,
5,
1,
5,
18,
11,
20,
40,
3,
-56,
-7,
27,
-8,
-29,
29,
18,
8,
24,
-9,
-18,
9,
-3,
27,
-7,
-38,
57,
55,
29,
-3,
-20,
-41,
42,
5,
-90,
73,
44,
9,
13
] |
Marston, J:
Winchester brought an action of trover to recover damages for the conversion by defendants of a quantity of pine saw-logs. It appeared on the trial that defendants were the owners of the north half of section thirty-three, township twenty-one north, range six east, in this state; that they contracted with one Smith to lumber on said land; that by mistake Smith cut the logs in question upon the south half of said section, caused the same to be hauled a distance of about five miles to the Au Sable river, thence run to the boom at the mouth of said river, there rafted and towed from thence to Toledo in the state of Ohio, where they were sold at twelve dollars per thousand feet.
Evidence was also given tending to show that the timber while standing on the land was worth one dollar and fifty cents per thousand feet; that the cost of cutting it was fifty cents per thousand; hauling the logs to the river, five to six dollars per thousand; and their value in the river eight dollars per thousand; that the cost of running them to the boom was thirty-seven and a half cents per thousand; boom charges, one dollar per thousand; rafting and towing to Toledo, two dollars per thousand ; and their value there, twelve to thirteen dollars per thousand.
It also appeared that when these logs were cut, the south half of said section was owned by Ebér B. Ward, and that he afterwards, and before suit was brought, assigned all his claim and right of action for such cutting to the plaintiff.
The plaintiff claimed to recover the price at which the timber was sold in Toledo.
The court charged the jury that if they found no willful wrong on the part of the defendants, they might award as damages the value of the property where it was taken, viz.: one dollar and fifty cents per thousand, together with the profits which might have been derived from its value in the ordinary market, or that they might take the market value at Toledo, deduct precisely the sum defendants expended in bringing it to that market and putting it in condition for sale, and award the difference between these two sums, with interest, in either case, from the time the conversion took place; and refused to charge that the plaintiff could recover as damages the price" for which the logs were sold in Toledo.
The finding of the jury, as appears from the printed record, was as follows: “The defendants cut the timber on the land of Ward by mistake; the quantity cut was one million ninety-three thousand seven hundred and eighty-six feet; the value on the land after it was cut was two dollars per-thousand feet; the value at Toledo, and for which the defendants sold the timber, was twelve dollars per thousand ; the expenses of the defendants on the timber in cutting and removing the same to Toledo, nine dollars and thirty-seven cents per thousand;” and they assessed the plaintiff’s damages at the sum of three thousand six hundred and thirty-one dollars and forty cents.
It will thus be seen that the only question raised by this record is, where parties by mistake cut timber upon the lands of another, and at their own expense transport it to market and sell it, whether the plaintiff in an action of trover can recover as damages the market value at the time and place where it was sold.
An examination of the authorities bearing upon this question shows that they arc not in harmony, and that the courts have not always agreed as to the proper measure of damages in this class of cases. Some courts have held, in cases like the present, that the plaintiff could recover as damages the value of the logs at any place to which they" were taken and sold or converted, while others have held such a measure of damages applicable only in cases where there was fraud, violence or willful negligence or wrong, and that where none of these elements appeared, but on the contrary the defendants had acted in entire good faith, and had by their labor and shill materially enhanced the value of the property converted, the plaintiff could not recover such enhanced value. In this last class of cases the decisions are not uniform as to whether the value of the property when first severed from the realty, as in cases of timber or coal where this question has arisen, or the value in its original condition, with such other damage to the realty as the injury may have caused, would constitute the proper measure.
It is apparent upon examination that there is no fixed, definite measure of damages applicable in all cases of conversion of property; and while the general rule undoubtedly is,, in ordinary cases, that the full value of the property at the time and place of its conversion, together with interest thereon, is the correct measure of damages in actions of trover, yet, as was said in Northrup v. McGill, 27 Mich., 238, “this rule yields, when the facts require it, to the principle on which the rule itself rests, namely: that the recovery in trover ought to be commensurate, and only commensurate with the injury, whether that injury be greater or less in extent than the full value of the property and interest.” Indeed, the language here quoted is but an application to actions of trover of the general rule as repeatedly declared in this state, viz.: that except in those actions where punitory or exemplary damages may be given, and those whose principal object is the establishment of a' right, and where nominal damages may be proper, the only just theory of an action for damages, .and its primary object, are that the damages recovered shall compensate for the injury sustained. — See Allison v. Chandler, 11 Mich., 542; Warren v. Cole, 15 Mich., 265; Daily Post Co. v. McArthur, 16 Mich., 447.
It is somewhat difficult to conceive why, upon principle, this rule should not be applied in its fullest extent to cases like the present. The cases, it is believed, all agree that punitory or exemplary damages are never given or allowed in cases where the defendant has acted in entire good faith, under an honest belief that he had a legal right to do the act complained of, although, even in such cases, he would be conclusively held to have contemplated, and the plaintiff would be permitted to recover, all the damages which legitimately followed from his illegal act, whether in fact he actually contemplated that such damages would follow or not. Such damages, however, would, in no just sense of the term, be held as punitory or exemplary; they would be but the actual damages which the plaintiff had suffered from the wrongful act of the defendant. Such then being the general rules applicable in cases even of active, aggressive wrongs, what is there in this case to make it an exception ?
It does not require any argument, and I shall attempt none, to prove that the pecuniary injury' sustained by the plaintiff, from the trespass complained of, falls far short of the value of these logs at Toledo; and that to award the value at the latter place as the measure of damages would be much more than compensation, and would, although under a different name, be but awarding exemplary damages, and that, too, in a ease where upon principle the defendants had been guilty of no act calling for such a punishment.
It is also clear beyond question that had the plaintiff commenced any other form of action to recover damages for the injury which he sustained, he could not in such action recover the market value of the logs at Toledo. It is very evident, therefore, that the right of the plaintiff to recover the value at Toledo depends entirely upon the particular form of action adopted in this case; as, in any other, where the defendants had acted honestly, he could only recover the amount of the actual injury sustained.
Passing for the present the adjudged cases, I can see no good reason or principle why the measure of damages in actions of trover should, be different from that in other actions sounding in tort; and to hold that there is such a distinction is to permit the form of the action, rather than the actual injury complained of, to fix the damages. This would be giving the form of action a prominence and controlling influence to which it is in no way entitled, and would be permitting the plaintiff, by the adoption of a particular remedy, to increase the damages at pleasure, and that to an extent which would far more than compensate him for the injury which he sustained, and would also be a positive wrong to the defendants. Such a doctrine, if carried out to its logical conclusion, and applied to many cases which might arise, would be to allow the plaintiff damages so far in excess of the injury which he sustained as to cause us to doubt the wisdom of any rule which would thus sanction a greater wrong in an attempt to redress a lesser.
Let us suppose, by way of illustration, one or two cases which might easily arise: a party acting in entire good faith enters upon the lands of another by mistake, cuts a quantity of oak standing thereon and manufactures it into square timber; this he ships to Quebec, where he sells it at a price which, as compared with the value of the standing timber, renders the latter insignificant. Or, suppose the owner, instead of selling such timber at Quebec, ships the same to some European port, and there sells it at a still greater advance. Or, suppose by mistake he cuts a quantity of long timber, suitable for masts, and forwards it to Tonawanda, or New York, and there sells it. Now, in either of these cases, would it be just to permit the owner of the standing timber, in an action of trover, to recover the value at which it was sold? Would the price for which it sold be the amount of the actual damage which he sustained from the original cutting? The price which it brought in the market was almost wholly made- up of the cost an$ expense of manufacturing and getting it there, no part of -which cost or expense was borne by the plaintiff. Why, then, should the plaintiff recover this increased value, no part of which, he contributed to in any way? Certainly not as eompensation for the injury sustained by him, because he sustained no such injury. Neither could it be for the purpose of punishing the defendants, because they have committed no act calling for such a punishment. It can only be placed upon the arbitrary ground that in this form of action the plaintiff can recover the full value of his property at any place he may find it, or trace it to.
Then, again, there is no uniformity in such a rule. One man cuts timber, but does not remove it; another cuts and removes it a short distance, adding but little to its original value; while another cuts and removes it a long distance, increasing its value thereby an hundred fold. Separate actions are brought against each, the plaintiff in each case claiming to recover the value at the place to which the timber was taken. Now, it is very evident that although the value of the standing timber in each case was the same, and the actual injury to the plaintiff in each case the same, the verdict would be very different, and the party who had in good faith done the most, and spent the most money, in giving the timber any real value, would be punished the greatest. In fact, by increasing its value he would be but innocently increasing to a corresponding amount what he would have to pay by way of damages. In other words, such a defendant, by his labor and the means which he expended in bringing the property to market, has given it nearly all the value it possesses; and when ho is sued and responds in damages to the amount of such increased value, he has then paid just twice the actual market value of the property in its improved condition, less the value of the original timber standing; once in giving it its value, and then paying for it in damages according to the very value which he gave it.
It may be said, however, that all these supposed cases are exceptional and extreme; this may be true, but in testing a supposed rule of law, we have a right to apply it to extreme cases for the purpose of testing its soundness; because by so doing, if we find that when carried out it would lead to gross injustice, and would not at the same time subserve any useful purpose, but would be in violation of other well settled legal principles, we then have a right to discard it as being unsound, not based upon sound reason or justice, and therefore contrary to the doctrines of the common law.
It might also be said, in answer to some of the cases supposed, that the plaintiff could not count upon a conversion which took place in some other state. This I am inclined to think would be correct; but in this case the plaintiff does claim to recover for a conversion which took place beyond the limits of this state. I have therefore only carried the doctrine contended for a little farther.
We need not, however, go beyond the boundaries of this state to imagine cases almost as glaringly unjust as those already supposed; indeed, the evidence in this case showed that while the value of the standing timber ivas one dollar and fifty cents per thousand, the value of the logs in Detroit Avas twelve dollars per thousand; and cases may easily be supposed where the value would be much greater.
There is another class of cases where the-doctrine which plaintiff seeks to haA'e applied would work gross injustice: a person honestly and in good faith obtains possession of some young animal; he may have purchased it from some person supposed to have a good title to it, but who in fact did not; or he may have purchased it at a judicial sale where, on account of some technical defect, the title did not pass; or it may be through a case of mistaken identity he has claimed to be the OAvner, Avhereas, in truth and fact he was not. lie retains possession, feeding and taking care of the animal until in process of time it becomes full grown and immensely more valuable. This time may be longer or shorter, depending very much upon the kind of animal. If a pig, but a short time would be required; if a calf or colt, a longer. The original owner, having at length discovered his property, demands possession, which being refused, he brings trover to recover the value. Noay, most assuredly, in any of these cases, the extent of the injury which the plaintiff sustained would not be the then value of the animal. He has not fed it, taken care of it, or run any of the risks incidental to the raising of stock; all this has been done by another. Why, then, should he recover this increased value? And why should the result of the labor, care and expense of another thus be given to him? True it is, that the amount involved in these cases is not so large, but the principle is the same.
It is sometimes said that the effect of the view which we have taken would be to compel a party to sell and dispose of property which he desired to retain as an investment, at what ho might consider an inadequate price, and at a time when he would not have sold it. This may be true, yet it is no more than what happens daily, and that under circumstances much more aggravating. Take the case of a willful trespasser: he cuts the timber of another into cord wood and burns it; or ho takes his grain and feeds it; or cattle, which the owner prizes very highly, and butchers them. In all these cases the owner has lost his property, and the law cannot restore it; the law cannot do complete justice; it cannot fully and completely protect and guard the rights and feelings of others; it can but approximate to it; and because the owner in this way may be compelled to part with his property, and thus a wrong be done him, it would not improve matters to inflict a much greater wrong upon another equally entitled to protection, in order that the first sufferer might be unduly recompensed thereby. The law rather aims, so far as possible, to protect the plaintiff, but at the same time it has a due regard to the rights of the defendants, and it will not inflict an undue or unjust punishment upon them, in cases where they are not deserving it, as a means of righting an injury, especially where it would much more than compensate the owner for the injury which he sustained.
In this case each has an interest in the logs; the plaintiff as assignee of the original owner; the defendant by, in good faith, largely increasing their value. Bach should be protected in his rights, and thus as nearly as possible substantial justice be done. To allow plaintiff to recover what he here seeks would be to break down all distinction between the willful and involuntary trespasser; a distinction which is based upon sound legal principles, and which is applied in all other forms of action.
What we have here said must not be considered as having any application in cases where the trespass or wrong complained of was willful or negligent. We are not yet prepared to say that the willful trespasser can derive any advantage whatever from his own wrong. On the contrary, there is sound reason for holding that the owner in such cases may reclaim his property wherever and in whatever shape he may find it.
The court under one branch of the charge instructed the jury to allow the market value at Detroit, or Toledo, less the sum of money which defendants expended in bringing it to market. This, we think, was as favorable as the plaintiff had any right in this case to expect. This was allowing the plaintiff more than the value of the timber when it was first severed from the realty. It did not permit the defendants to recover any profit upon what they had done, but protected them to the extent of the advances they had made; and this, we think, was correct.
There might, however, be cases where this rule would not apply, where the market value did not cover the cost of cutting and taking it to market, and cases where it was not sold. In such cases the plaintiff would be entitled to recover the value when the property was first severed from the realty (Greeley v. Stilson, 27 Mich., 154), and was thus in a shape where it could be converted, together with any profits which might be derived from its value in the ordinary market, with interest thereon. If any special damage is claimed beyond this, either to the inheritance or otherwise, it must be sought in some other and more appropriate form of action.
We think those rules, when applied by careful and intelligent jurors, will sufficiently protect all parties, and will afford no encouragement to trespassers.
We have thus far attempted to dispose of this case upon well settled principles, and without any reference to the decisions bearing upon the subject. It may not be considered inappropriate, however, to consider and briefly review some of the cases in point, with a reference to others, as the views we have above expressed we think are abundantly sustained.
In Forsyth v. Wells, 41 Pa. St., 291, the parties were owners of adjoining tracts of coal lands, and the defendant had opened a mine upon his own land, near the line, and worked it for years. The dividing line was not exactly known, and the plaintiff claimed that the defendant had dug coal over the line and out of her land, which was denied. The plaintiff claimed that the measure of damages was the value of the coal when dug in the bank, or what was called “knocked down,” while the defendant contended that the measure of damages would be the value of the coal in the ground before he had expended any labor in preparing it for market; in support of which he offered evidence, which was rejected; and the jury was charged that the value of the coal when “knocked down” in the bank was the proper measure of damages. Lowrie, Ch. J., in delivering the ojúnion of the court, said: “The plaintiff insists that, because the action is allowed for the coal as personal property, that is, after it had been raised or severed from the realty, therefore, by necessary logical sequence, she is entitled to the value of the coal as it lay in the pit, after it had been mined; and so it was decided below. It is apparent that this view would transfer to the plaintiff all the defendant’s labor in mining the coal, and thus give her more than compensation for the injury done. Yet we admit the accuracy of this conclusion, if we may properly base our reasoning on the form, rather than on the principle or purpose of the remedy. But this we may not do; and especially we may not sacrifice tlie principle to tlie very form by which wo are endeavoring to enforce it. Principles can never be realized without forms, and they are often inevitably embarrassed by unfitting ones; but still tlie fact that the form is for the sake of principle, and not the principle for the form, requires that the form shall serve, not rule, the principle, and must be adapted to its office.
“Just compensation in a special class of cases is the principle of the action of trover, and a little study will show us that it is no unyielding form, but adapts itself to a great variety of circumstances. In its original purpose, and in strict form, it is an action for the value of personal property lost by one and found by another and converted to his own use. But it is not thus restricted in practice, for it is continually applied to every 'form of wrongful conversion, and of wrongful taking and conversion, and it affords compensation, not only for the value of the goods, but also for outrage and malice in the taking and detention of them. * * *
“Where the defendant’s conduct, measured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence, or willful negligence or wrong, the value of the property taken and converted is the measure of just' compensation. If raw material has, after appropriation and without such wrong, been changed by manufacture into a new species of property, as grain into whiskey, grapes into wine, furs into hats, hides into leather, or trees into lumber, the law either refuses the action of trover for the new article, or limits the recovery to the value of the original article. — 6 Hill, 425; 21 Barb., 92; 23 Conn., 523; and 38 Me., 174.
“Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the purpose of all remedies; and so long as we bear this in mind we shall have but little difficulty in managing the forms of actions so as to secure a fair result. If the defendant in this ease was guilty of no intentional wrong, lie ought not to have been charged. with the value of the coal after he had been at the expense of mining it; but only with its value in place, and with such other damage to the land as his mining may have caused. Such would manifestly be the measure ih trespass for mesne profits.”
' In Hill v. Canfield, 56 Pa. St., 454, trover was brought for the conversion at Pittsburg of three rafts of timber sold by the defendants at Cincinnati, and in which the plaintiffs claimed, and the court below permitted evidence of the price at which the timber sold in Cincinnati as the measure of damages. This was held error. The court say: “If there be 'cases in which more than compensation may be allowed in trover, and I admit there are, they are in cases of heirlooms, family pictures and the like, taken and converted, and also where there are circumstances of fraud, violence and outrage.
“It has not been an unusual thing in practice to allow damages beyond the actual value of the goods converted, and interest, although the general rule undoubtedly is the value of the goods and interest. This may be exceeded, but not without the element of willful wrong, fraud or outrage.”
In Wood v. Morewood, 3 A. & E., N. S., 440, where defendant had “won the coals under the closes, Iona fide, supposing that these were his own,” Partee, B., instructed the jury: “If there was fraud or negligence on the part of the defendant, they might give, as damages under the count in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin v. Porter, 5 M. & W., 351; but that if they thought that the defendant was not guilty of fraud or negligence, but acted fairly and honestly, in the full belief that he had a rigTit to do what he did, they might give the fair value of the coals as if the coal field had been purchased from the plaintiff.”
In Reid v. Fairbanks, 4 J. Scott, 729, which was an action of trover for a ship, which had been greatly improved after the conversion, Maule, J., said: “It may be that the wrong-doer, who acquires no property in the thing he converts, acquires no lien for what he expends on it, and the owner may bring detinue or trover. But it does not follow that, if the owner brings trover, ho is to recover -the-full value of the thing in its improved state. The proper-measure of damages, as it seems to me, is the amount of the pecuniary loss the plaintiffs have sustained by the conversion of their ship.”
In Weymouth v. Chicago & N. W. R. W. Co., 17 Wis., 550, the plaintiff had cut cord wood and piled it upon land which she was in possession of, but which it seems she did not own, with the intention of selling the wood to the-defendant. Before the sale was completed the defendant, by mistake, carried the wood to Janesville and there mingled it with other wood, so that it could not be identified. The plaintiff demanded it at Janesville, and failing to obtain it, brought her action to recover damages for the conversion as at Janesville.
At the time of the conversion at Janesville wood was worth at that place four dollars per cord, and afterwards was worth five; while at Farmington, where the wood was first taken, it was worth one dollar and fifty cents per cord. The court held that the plaintiff could not recover the value at Janesville, and after referring to the New York cases, which seem to hold a contrary doctrine, said: “But where the owner voluntarily waives the right to reclaim the property itself, and sues for the damages, the difficulty of separating the enhanced value from the original value no longer exists. It is then entirely practicable to give the owner the entire value that was taken from him, which certainly seems to be all that natural justice requires, without adding to it such value as the property may have after-wards acquired from the labor of defendant.”
In Moody v. Whitney, 38 Me., 174, the court charged the jury, “that the measure of damages must be the value-of the logs when they first became personal property, after the trees were first cut down,” and this was held correct,, the court saying it was “difficult to perceive why a more rigid rule should be applied to a defendant in an action of trover, than to one of trespass.”
A contrary doctrine has been held in New York, but it is very doubtful whether the courts in that state will adhere to it should the question again come up. In Hyde v. Cookson, 21 Barb., 92, where an action was brought to recover damages for an alleged conversion by defendants of a quantity of hides, the plaintiffs had furnished the hides to one Osborn to tan and manufacture into leather, and return the same to the plaintiffs. Osborn, after partly tanning the hides, failed, and made an assignment of all his property to the defendants for the benefit of his creditors. The defendants took possession of the hides under the assignment, and claimed to own them, and refused to deliver them to the plaintiffs on demand. It was admitted on the trial that the hides had been increased in value Wo thousand dollars by Osborn, and the court charged the jury that the plaintiffs could recover this increased value. On • error the court said: “In applying the rule of damages, it must be remembered that the defendants are not trespassers or wrong-doers. Although the action is in form ex delicto, it arises out of a contract, and involves the right to property which came lawfully into the possession of the defendants, and of Osborn their assignor. Whatever has been'done to change the property from its natural condition, and to add to its value, has been done in good faith, with the approbation of the owners, and in execution of Osborn’s contract with them. This has been broken, and it is in consequence of that breach that the plaintiffs are entitled to recover. When they have judgment for the full value of their interest in the subject matter of the contract, is not that a full satisfaction, without depriving the defendants of the entire value of the labor and expenditures put upon it in good faith? * * * In acquiring title to property by accession, the law makes a distinction between a willful and involuntary wrong-door. The former never can acquire the title, however great the change wrought in the original article may be, while the latter may. * * * The most complete justice will be done to both parties by limiting the plaintiffs’ damages to the full value of their interest in the property, giving them the same ample indemnity as they would have had in an action for a breach of the contract.”
In Mathews v. Coe, 49 New York, 57, .the rule which had prevailed in that state, allowing the highest market value up to the time of the trial, was questioned, and a desire expressed by Ch. J. Church to consider the question upon principle, and in speaking of the effect of the old rule, the Ch. J. said, the difference “is transferred from the defendants to the plaintiff, not because the latter has sustained any such loss by any act of the former, but in obedience to a supposed arbitrary rule established in such cases.”
The same question again came up in Baker v. Drake et al., 53 N. Y., 211, where liapallo, J., in discussing this question, says, that “the rule of damages should not depend upon the form of the action. In civil actions the law awards to the party injured a just indemnity for the wrong which has been done him, and no more, whether the action be in contract or tort. Except in those special cases where punitory damages are allowed, the inquiry must always be, what is an adequate indemnity to the party injured, and the answer to that inquiry cannot be affected by the form of action in which he seeks his remedy.” This case expressly overrules Markham v. Jaudon, 41 N. Y., 235, which permitted the highest market price to be recovered.
See also upon this question, the following: Heard v. James, 49 Miss., 236, where it was held that the measure of damages for the wrongful taking or detention of property, is to be determined by the animus of the conversion. If the act was in good faith, upon some supposed right of claim or error, the measure will be the value at the time it was taken; but if the taking or conversion be characterized by malice or oppression, damages may be punitive; and in an action for its recovery, no allowance will be made the defendant for any increased value that may be bestowed by labor or skill on the property. — Riddle v. Driver, 12 Ala., 590; Dresser Manf. Co., v. Waterston, 3 Met., 9; Baldwin v. Porter, 12 Conn., 484; Sedgwick on Damages.
Finally, it is insisted that this question has already been decided in this court in Symes v. Oliver, 13 Mich., 9; Final v. Backus, 18 Mich., 218, and Grant v. Smith, 26 Mich., 201, in favor of the plaintiff.
In Symes v. Oliver no such question seems either to have been raised or discussed by the court, nor was the question of good faith alluded to by counsel or court in Final v. Backus.
In Grant v. Smith the defendant in the court below relied upon a tax-deed under which he claimed to have acted in good faith, and he offered the deed in evidence for that purpose, which was rejected. This deed having been rejected, there was nothing in the case tending to show that he had acted other than as a willful trespasser, and such being the case, the plaintiff was clearly entitled to recover the value of the logs at the place to which Grant removed them; and in discussing the objection relating to the measure of damages, the court proceeds upon the theory that Grant in cutting the timber was a mere naked trespasser. The question, however, still remains, was the tax-deed admissible in evidence “to show that Grant, in cutting the timber, honestly supposed that he was the owner of the land, and acted in perfect good faith.” I think not, and for reasons other than those there given. It is a notorious fact that tax-deeds are almost universally upon examination found to be invalid, on account of defects not appearing upon the face of the deed. The statute declares, in effect, the deeds to be prima facie valid, that is, it shifts the burden of proof to the party claiming against the deed to prove it invalid. But notwithstanding this fact, no person of ordinary care and prudence, with a just regard not only to his own rights and interests, but to those of others, would think of acting upon a tax title, made prima facie valid by statute, without having first made a careful examination, outside of and beyond tbe deed, in tbe proper places, for tbe purpose of ascertaining, whether in fact it was of any validity. If, however, he chose to shut his eyes to the well known fact that a large proportion of such titles turn out to be worthless, and act upon such a deed, regardless of how it may upon investigation turn out, and regardless of the rights of others, he cannot afterwards be permitted to come into court, admit the invalidity of his deed, and yet claim that because he did have such a deed he acted honestly and in good faith. The failure to make such an investigation would be evidence of gross carelessness, for which the party should be held responsible.
Judgment affirmed, with costs.
Cooley, Oh. J., concurred.
Graves, J., concurred in the result. | [
2,
57,
11,
7,
-6,
21,
-6,
2,
41,
26,
-12,
12,
6,
0,
30,
2,
-18,
-43,
26,
40,
13,
-29,
7,
-39,
-31,
-73,
18,
-6,
-40,
30,
-27,
1,
-23,
23,
-18,
49,
-7,
28,
-7,
-39,
-13,
-18,
34,
-7,
39,
15,
41,
-42,
46,
13,
41,
-46,
-15,
-2,
-14,
10,
-22,
-14,
4,
17,
34,
-56,
15,
-2,
8,
-58,
-21,
1,
50,
38,
28,
36,
19,
41,
11,
-7,
-44,
-31,
-18,
13,
-46,
-18,
22,
-1,
-17,
-11,
-4,
15,
31,
22,
7,
-34,
4,
-19,
16,
41,
-9,
59,
-55,
43,
35,
19,
-9,
-20,
-2,
-38,
-11,
-49,
-20,
-20,
31,
13,
36,
-12,
0,
-49,
-5,
-65,
57,
12,
7,
-12,
-20,
-52,
-32,
-2,
-18,
-42,
-3,
-21,
23,
-26,
-62,
46,
38,
3,
-20,
13,
-46,
-15,
45,
0,
-43,
-6,
39,
-3,
8,
2,
-31,
-37,
-44,
42,
-11,
23,
-3,
-9,
11,
-3,
8,
-61,
49,
-5,
-13,
-32,
-42,
23,
1,
-70,
-15,
27,
2,
6,
-14,
16,
36,
52,
9,
-54,
-28,
27,
0,
0,
30,
18,
17,
-39,
-4,
15,
2,
47,
83,
21,
-48,
5,
-19,
1,
-10,
-17,
-22,
7,
0,
-46,
-41,
21,
0,
18,
36,
7,
26,
36,
-10,
51,
-8,
-10,
-4,
59,
-25,
-31,
7,
-74,
23,
10,
59,
9,
-28,
-40,
3,
63,
61,
-10,
-43,
2,
7,
-29,
-19,
-27,
0,
-5,
6,
-38,
-17,
-21,
-39,
-28,
-1,
1,
-29,
22,
20,
54,
-56,
-41,
-47,
-6,
0,
38,
14,
14,
-51,
-41,
-26,
18,
0,
31,
9,
21,
-19,
22,
-10,
34,
-23,
-28,
61,
44,
-33,
-4,
3,
-9,
-41,
-6,
15,
-20,
-14,
27,
-2,
16,
-33,
0,
-24,
-4,
17,
10,
-3,
-57,
-2,
25,
12,
-7,
34,
15,
-13,
16,
-45,
-48,
7,
17,
-9,
-2,
-46,
17,
-24,
1,
24,
15,
59,
24,
17,
-21,
-51,
18,
5,
22,
-19,
4,
14,
49,
15,
2,
-27,
25,
-22,
6,
22,
56,
-1,
-36,
-11,
-51,
61,
10,
3,
-14,
-1,
5,
-23,
-26,
-6,
-79,
10,
4,
-12,
50,
0,
23,
25,
23,
-21,
29,
8,
15,
65,
46,
9,
-12,
29,
14,
-7,
-16,
28,
0,
-5,
20,
55,
4,
32,
35,
-35,
-11,
-85,
25,
40,
52,
16,
2,
15,
0,
20,
-65,
-24,
-17,
-32,
-1,
10,
46,
-37,
31,
-12,
-45,
-23,
-68,
5,
14,
32,
27,
-37,
5,
-15,
15,
13,
-18,
8,
-33,
-10,
-17,
-1,
-38,
6,
29,
18,
29,
86,
39,
41,
-7,
36,
-43,
18,
-24,
6,
30,
-26,
10,
4,
0,
-22,
46,
-16,
39,
-34,
-33,
-66,
6,
-3,
-23,
2,
-8,
-2,
32,
64,
-23,
-42,
3,
-28,
-18,
23,
28,
-36,
-62,
46,
14,
19,
-40,
15,
23,
3,
-7,
-13,
-55,
12,
35,
2,
56,
28,
-29,
-35,
1,
47,
-56,
-2,
8,
76,
46,
4,
49,
-48,
-31,
-13,
21,
12,
-20,
27,
21,
11,
-54,
-16,
1,
-52,
8,
53,
26,
-39,
-45,
4,
-83,
4,
57,
17,
0,
17,
51,
-9,
-17,
18,
-32,
-36,
29,
-29,
-4,
29,
2,
-27,
-55,
9,
32,
0,
40,
13,
-35,
41,
-24,
10,
-20,
-44,
8,
-52,
-12,
10,
-4,
-41,
-34,
-18,
-26,
38,
-15,
-29,
-17,
-4,
-60,
2,
-18,
-43,
-14,
45,
-29,
-21,
32,
-38,
-39,
-12,
-16,
31,
-3,
-23,
-47,
49,
16,
0,
-26,
17,
8,
8,
-40,
-20,
-8,
-13,
-11,
-37,
3,
28,
41,
-74,
-66,
-29,
-31,
-9,
-29,
24,
19,
-27,
38,
-12,
44,
-2,
0,
-58,
-13,
41,
24,
38,
38,
-33,
-41,
-33,
8,
55,
37,
-9,
50,
34,
57,
37,
-27,
19,
26,
3,
8,
-24,
-10,
27,
24,
21,
-31,
-34,
38,
-10,
5,
16,
-15,
-44,
2,
-27,
13,
-22,
35,
-28,
19,
34,
65,
-43,
41,
0,
-40,
22,
-43,
-39,
0,
-36,
25,
-58,
10,
-17,
-39,
23,
16,
-14,
8,
-5,
5,
7,
-18,
39,
11,
13,
48,
-5,
18,
-12,
13,
10,
3,
-7,
-60,
-4,
-41,
-1,
-69,
-42,
86,
21,
6,
28,
25,
44,
-23,
-19,
-15,
-21,
71,
3,
17,
13,
22,
-4,
37,
-40,
14,
1,
16,
-6,
-29,
9,
-3,
44,
36,
5,
0,
-15,
-8,
15,
-16,
18,
7,
33,
3,
3,
-2,
18,
-11,
-25,
-15,
35,
-8,
58,
-24,
8,
-17,
-6,
-27,
-17,
35,
0,
10,
-1,
-20,
-1,
-59,
-28,
20,
-17,
18,
-22,
-56,
-43,
-51,
16,
12,
17,
16,
13,
7,
4,
15,
37,
7,
-18,
-33,
-39,
-25,
-60,
-43,
57,
-18,
-21,
-19,
-11,
7,
-9,
-22,
66,
10,
-6,
-31,
-47,
23,
-2,
5,
5,
43,
34,
32,
45,
-48,
-51,
10,
-47,
-52,
23,
-19,
30,
-25,
-3,
-20,
-13,
39,
-58,
-8,
30,
12,
-21,
-25,
-13,
49,
16,
27,
-12,
13,
10,
-17,
-6,
-10,
-17,
-9,
0,
-41,
-28,
-4,
4,
20,
-7,
63,
-29,
7,
-2,
-23,
-8,
27,
-11,
-26,
-6,
-10,
64,
-18,
-41,
12,
62,
-28,
13,
-37,
-25,
-2,
12,
-12,
-2,
-13,
40,
-35,
10,
8,
-56,
-7,
-54,
10,
5,
-20,
-71,
6,
23,
-21,
38,
-18,
15,
-4,
-39,
-9,
-16,
-2,
39,
7,
-4,
9,
5,
20,
-27,
8,
-12,
29,
-35,
-10,
43,
20,
-8,
-29,
0,
16,
0,
25,
7,
-22,
38,
29,
36,
-38,
42,
19,
20,
0,
-58,
-42,
3,
-5,
12,
4,
10,
43,
1,
-4,
-3,
-56,
-15,
20,
20,
-39,
-15,
-20,
-41,
11,
1,
0,
-3,
-1,
13,
-40,
-1,
55,
-43,
18,
40,
2,
-14,
30,
-41,
20,
-19,
0,
-50,
16,
-2,
-82,
8,
46,
27,
-1,
19,
16,
7,
-45,
-3,
10,
-14,
18,
26,
22,
73,
43,
-27,
34,
-36,
-7,
-4,
-31,
33,
-10,
7,
19,
-15,
43,
-17,
-10,
-1,
-31,
-7,
2,
12,
-24,
50,
16,
-2,
-9,
-18,
2,
28,
10,
-15,
32,
54,
-55,
-19,
0,
10,
41,
-58,
28,
17,
-9,
26,
-32,
-29,
13,
-36,
-31,
-19,
-16,
16,
23,
64,
-18,
3,
33,
18,
-41,
-74,
28,
49,
39,
-27,
39,
-23,
4,
23,
-15,
73,
10,
-4,
51
] |
Tiije Court
held that to review the validity of the justice’s judgment on this writ would be to assail it collaterally, and that it is not open to collateral • attack for such defects. —See Reed v. Gage, supra, p. 179.
Writ quashed. | [
-64,
-29,
30,
14,
18,
26,
14,
-7,
3,
-6,
-21,
-2,
67,
52,
-12,
-9,
21,
24,
-21,
23,
-84,
38,
-8,
39,
19,
-25,
22,
8,
27,
4,
5,
-3,
5,
45,
-41,
-50,
-11,
25,
35,
-17,
7,
1,
-37,
37,
-4,
-62,
30,
5,
-21,
19,
-24,
-2,
-30,
-53,
-26,
9,
-14,
-19,
-49,
19,
-5,
-15,
-19,
21,
-47,
-13,
-34,
-66,
-18,
9,
-62,
43,
-35,
-48,
2,
-7,
38,
13,
-14,
-16,
-7,
-5,
0,
0,
12,
7,
30,
-20,
51,
-24,
-3,
-49,
-54,
-19,
-34,
57,
-3,
15,
12,
48,
-61,
12,
-21,
-3,
-9,
-22,
-41,
-4,
-15,
-14,
-16,
25,
-67,
-18,
-13,
-34,
-73,
56,
9,
-42,
-14,
57,
-17,
18,
12,
8,
9,
10,
18,
-3,
73,
-8,
-12,
68,
-17,
-17,
2,
-3,
-31,
-57,
-18,
2,
12,
0,
-10,
-32,
92,
-18,
-19,
18,
-2,
-40,
22,
14,
-34,
12,
-12,
-62,
59,
-53,
10,
32,
-46,
50,
2,
15,
32,
-26,
43,
38,
-42,
61,
-12,
54,
20,
-17,
-36,
-34,
19,
33,
38,
62,
5,
45,
-39,
6,
1,
-8,
-2,
-2,
-69,
33,
20,
33,
20,
32,
-41,
-30,
16,
-19,
-38,
11,
-43,
-18,
-43,
-28,
12,
-25,
-36,
25,
-28,
26,
-24,
-19,
8,
-34,
11,
-1,
26,
33,
-27,
21,
-8,
-17,
0,
-13,
-4,
24,
6,
-68,
-31,
17,
-22,
20,
66,
46,
28,
-29,
-1,
-19,
3,
34,
-36,
-19,
42,
-46,
29,
6,
20,
-16,
-3,
-24,
5,
24,
-9,
-47,
-60,
17,
6,
-29,
-29,
91,
-35,
-62,
-14,
0,
59,
38,
14,
12,
0,
-38,
-6,
34,
65,
20,
-30,
-55,
22,
-28,
-21,
29,
-64,
-8,
-68,
47,
-24,
13,
69,
17,
34,
-18,
-2,
60,
24,
-27,
24,
-3,
21,
-55,
22,
-49,
-44,
34,
16,
15,
14,
1,
-21,
-27,
29,
50,
-16,
-8,
-1,
32,
-41,
-33,
-10,
-19,
-33,
-2,
33,
-41,
-17,
22,
64,
-53,
-5,
49,
53,
67,
-6,
19,
65,
-5,
49,
0,
-54,
8,
0,
28,
-29,
-7,
-14,
15,
-42,
8,
2,
21,
-31,
47,
-30,
26,
-4,
-70,
-33,
-62,
-53,
15,
-43,
-19,
47,
7,
65,
-13,
-1,
-29,
-29,
6,
-33,
-10,
17,
-25,
6,
-2,
25,
-53,
-22,
7,
-17,
14,
95,
-19,
1,
22,
7,
-1,
-7,
6,
-50,
-19,
1,
26,
-42,
-10,
-14,
19,
0,
-25,
-25,
24,
-20,
17,
-33,
-17,
-17,
-4,
-8,
-2,
10,
10,
-45,
-9,
-24,
26,
34,
26,
39,
-40,
-47,
-36,
-9,
-25,
5,
-18,
-21,
5,
30,
0,
-32,
-18,
0,
-72,
-46,
19,
40,
0,
-28,
32,
24,
-30,
-38,
-44,
-22,
-52,
31,
19,
-43,
-72,
24,
-27,
11,
-45,
13,
-77,
32,
-29,
-18,
-2,
-13,
11,
-25,
-10,
14,
-10,
-18,
-33,
-12,
-3,
-28,
-44,
-24,
-11,
0,
-25,
-12,
28,
-22,
-8,
43,
37,
-2,
-8,
31,
62,
-12,
-55,
-24,
-49,
15,
25,
48,
-32,
-14,
2,
15,
-9,
-31,
39,
10,
26,
13,
-53,
10,
-3,
15,
-37,
2,
43,
28,
36,
23,
-3,
-26,
34,
-24,
9,
11,
9,
24,
-27,
-63,
-10,
-38,
52,
-50,
0,
1,
12,
11,
36,
-16,
30,
23,
28,
4,
-24,
20,
5,
-56,
0,
86,
29,
17,
-33,
24,
42,
-2,
68,
-29,
-30,
35,
34,
0,
-22,
10,
-2,
60,
-41,
-40,
7,
-26,
5,
8,
20,
10,
-21,
-9,
-57,
58,
-48,
-3,
46,
56,
-41,
5,
0,
0,
2,
-46,
41,
-10,
-43,
-10,
-29,
-25,
-49,
31,
-45,
9,
-27,
17,
-20,
-72,
-15,
29,
-11,
-24,
87,
-31,
50,
13,
0,
32,
52,
20,
37,
-72,
18,
41,
20,
16,
-32,
24,
-25,
8,
15,
-10,
-27,
-26,
-13,
-55,
0,
-45,
-59,
-10,
-9,
42,
-8,
-43,
-12,
-13,
17,
2,
49,
23,
-30,
-2,
18,
22,
2,
44,
-61,
39,
1,
-21,
8,
-19,
-2,
29,
57,
45,
-65,
-12,
47,
54,
-24,
-13,
-1,
31,
4,
5,
48,
-69,
63,
0,
47,
34,
32,
40,
-5,
55,
-7,
96,
-51,
105,
-7,
9,
-21,
-28,
17,
-4,
27,
2,
-13,
-40,
1,
-5,
12,
49,
-6,
14,
15,
3,
-27,
35,
3,
-16,
-6,
28,
-10,
-11,
-9,
-1,
-45,
0,
2,
33,
57,
5,
-9,
-57,
73,
29,
-39,
12,
-15,
-16,
-33,
-1,
-22,
39,
-2,
-48,
-6,
68,
43,
29,
78,
5,
2,
-10,
25,
14,
29,
10,
-18,
27,
-25,
-16,
23,
-3,
29,
-24,
9,
-4,
27,
-7,
-14,
69,
20,
46,
-24,
-68,
1,
-16,
24,
26,
-10,
23,
-24,
26,
25,
-1,
-13,
-20,
-31,
0,
28,
34,
-39,
52,
7,
-21,
84,
-29,
-35,
42,
3,
-51,
1,
-1,
40,
59,
-80,
-33,
-31,
-12,
16,
53,
-41,
-43,
16,
33,
-22,
30,
-13,
-11,
4,
-21,
-18,
7,
-54,
30,
9,
-27,
0,
32,
-17,
33,
-47,
-54,
-49,
-33,
24,
8,
-7,
7,
-13,
24,
-5,
5,
-36,
10,
64,
6,
-76,
7,
26,
22,
16,
4,
39,
25,
-12,
-30,
-45,
84,
-3,
6,
-63,
28,
-36,
33,
16,
-73,
15,
-20,
7,
-13,
-6,
-4,
0,
15,
-31,
24,
2,
-22,
68,
34,
17,
-36,
-25,
48,
5,
25,
-23,
64,
-6,
25,
-5,
77,
-61,
-12,
4,
-25,
-41,
-3,
-27,
-4,
-2,
0,
-1,
-24,
-4,
12,
-67,
-4,
47,
46,
13,
29,
48,
16,
29,
23,
-28,
6,
-3,
-6,
-47,
27,
-2,
28,
-34,
26,
6,
-31,
-4,
6,
-8,
14,
-6,
21,
36,
-33,
-15,
-34,
-19,
-3,
80,
34,
20,
-19,
12,
16,
18,
-1,
-14,
-1,
-10,
-32,
42,
-15,
-42,
-41,
18,
29,
51,
6,
-5,
4,
21,
-18,
24,
-50,
6,
7,
-6,
-16,
-19,
-28,
23,
2,
-39,
21,
16,
-6,
-30,
-12,
20,
-7,
-25,
9,
35,
-13,
23,
-33,
-13,
36,
25,
4,
-35,
3,
27,
4,
3,
-13,
-12,
29,
-60,
-40,
16,
-34,
-5,
-17,
61,
-10,
-46,
20,
5,
-5,
-30,
-69,
36,
-48,
10,
-20,
36,
2,
15,
42,
-28,
-2,
-29,
-16,
3,
-41,
-41,
-24,
-36,
64,
21,
26,
-3,
-31,
-22,
-5,
53,
26,
61,
59,
2
] |
Cooley, Ch. J:
The bill in this caso was filed for the specific performance of a parol contract for the purchase of lands. The contract is alleged to have been made in 1844, between Daniel 0. Dodge, tlie fattier of defendant, and Josiab Austin, Both these parties were deceased before this suit was instituted. It is averred in the bill that Austin took posses-, sion under the contract immediately after it was made, and continued in the actual, open and notorious possession until about the tenth day of April, 1865, making in the meantime valuable improvements on the land. Daniel O. Dodge died in 1863, and defendant, partly by descent and partly by purchase, has succeeded to his rights. Austin conveyed his rights to Lawrence Brower in 1865, and Brewer in the following year filed a bill for specific performance, and. took a decree in his favor in April, 1870. After this decree, and after the time for appealing therefrom had expired, complainant bought of Brewer. The decree was subsequently set aside as having been unwarrantably entered, and the case was heard on pleadings and proofs in the court below, and finally in this court on appeal, where the complainant’s bill was ordered dismissed, on the ground that he had parted with his interest in the subject matter of the suit. — Brewer v. Dodge, 28 Mich., 359. The present suit was commenced in April, 1874.
It is insisted on behalf of complainant that, inasmuch as lie bought of Brewer while a decree existed in his favor, and after the time for appealing had expired, the complainant is such a purchaser in good faith as cannot be affected by a subsequent order setting aside the decree, at least until after ho. has- had notice and an opportunity to be heard. No authority is cited to this position, and we know of none for it. The decree was found to have been entered without authority, and there is no question before us but that, as between the parties thereto, it was properly set aside. A purchaser under a decree must ascertain at his peril whether the decree was warranted or not.
On the facts shown by the evidence the case is embarrassing. It could not be otherwise when it is borne in mind that the bill was filed thirty years after the alleged parol contract, and that the bill by Brewer, which constitutes the excuse for not filing this one earlier, was not filed until twenty-two years after the making of the contract, nor until after the alleged vendor was dead. Any attempt to establish a parol contract against the heirs of an estate after such a lapse of time must always be open to some suspicion, and ought to be excused by a very satisfactory showing of facts.
The showing regarding the contract consists in this case of admissions by the alleged vendor, the most of which seem to have been accompanied by a declaration of his intention not to convey the land, because of an act of waste commits ted by the vendee. This distinct announcement of his intention not to fulfill the contract, weakens considerably the evidence, not only because it suggests that he must have believed he had a valid defense, but also because, in thus making public his intention not to be bound, he was notifying the vendee of the necessity of his taking legal proceedings if he claimed rights, and thus rendering the subsequent delay fairly attributable to a belief that the party claiming as vendee had no rights which he believed could be enforced. The facts fairly suggest such an explanation of the delay; and though it may not be the correct one, yet the suggestion cannot fail to be of considerable influence in a case where a party is seeking to enforce an invalid contract on a showing of special equities.
The possession from the time of the making of the contract was not of a character to be much relied upon. The land was wild land, which was partially brought under imperfect cultivation, and the acts of possession consisted almost exclusively of work done in raising crops upon it. This may have been under a contract of purchase, or under some other arrangement. If under the former, Dodge may have believed it had never been performed so as to give Austin any rights. Whatever may be the real facts as to Do'dge’s claim, it is certain that in 1861, or before, he dispossessed Austin of such occupation as the latter had, and appropriated a part of the crop he had raised. It is difficult to conceive of a'more distinct denial of Austin’s rights as purchaser; and if he claimed any rights after that, he should have moved promptly in their assertion.
The improvements made by Austin were insignificant, and not of a nature to indicate clearly that they must have been made in the character of a vendee. Indeed, the whole evidence seems to us entirely too vague and uncertain to justify any interference with the rule of law which makes all such contracts void. The contract is not clearly made out, and we could not feel satisfactory assurance that in enforcing it we were enforcing a contract actually made, and upon which the vendor had received his consideration.
The previous decisions in this state, of McMurtrie v. Bennette, Har. Ch., 124; Wilson v. Wilson, 6 Mich., 9; Bomier v. Caldwell, 8 Mich., 463, regarding the proof necessary in these cases, and Campau v. Van Dyke, 15 Mich., 372, and McVickar v. Filer, 31 Mich., 304, regarding the effect of delay in moving to obtain equitable relief, are all we need refer to in support of the views expressed. ,
The decree must be reversed, and the complainant’s bill dismissed, with costs of both courts.
The other Justices concurred. | [
14,
6,
4,
36,
43,
-5,
23,
11,
27,
42,
11,
0,
28,
-21,
48,
51,
7,
9,
1,
27,
-24,
10,
-18,
2,
8,
-27,
-17,
-16,
-52,
14,
54,
23,
-58,
40,
38,
-4,
35,
-6,
50,
19,
51,
1,
2,
11,
32,
-27,
-4,
-59,
24,
-4,
-23,
-51,
-18,
-3,
-23,
-24,
-29,
-36,
-11,
37,
-38,
-48,
-6,
-17,
-15,
8,
52,
10,
39,
-25,
13,
25,
-7,
-5,
26,
18,
28,
-56,
24,
-26,
0,
1,
9,
-53,
8,
22,
6,
8,
7,
77,
-27,
-39,
-6,
-15,
-15,
24,
4,
38,
-2,
-22,
0,
-62,
-31,
42,
38,
-34,
-31,
16,
-1,
-56,
27,
-27,
15,
-52,
-34,
-18,
0,
-20,
-25,
-31,
53,
25,
44,
3,
-39,
-21,
-38,
-5,
-44,
42,
2,
-31,
-31,
26,
36,
22,
17,
2,
-18,
-64,
-42,
-29,
-9,
-34,
21,
14,
2,
3,
15,
-25,
-28,
28,
-14,
16,
-12,
-1,
69,
-40,
63,
-36,
16,
-12,
29,
-51,
13,
-5,
-37,
-1,
2,
22,
17,
-4,
-39,
7,
51,
5,
27,
-2,
-34,
10,
24,
2,
-25,
24,
25,
-3,
2,
5,
8,
-23,
-6,
-32,
25,
-8,
12,
14,
-65,
0,
29,
-17,
-39,
-11,
8,
12,
42,
-7,
9,
4,
-29,
53,
-37,
-5,
-2,
-20,
-37,
-2,
45,
-10,
21,
21,
15,
-18,
10,
-6,
-2,
-70,
53,
13,
-20,
-34,
1,
-5,
44,
18,
-27,
-38,
1,
-27,
-28,
35,
12,
24,
-70,
-53,
3,
11,
11,
21,
16,
36,
-13,
8,
-50,
35,
24,
16,
-23,
-3,
6,
-10,
35,
22,
-23,
-15,
15,
-24,
-43,
3,
29,
44,
6,
-44,
46,
18,
-35,
-3,
-18,
-22,
-16,
-27,
20,
2,
0,
38,
20,
18,
25,
30,
-34,
-20,
33,
-51,
-48,
28,
-13,
59,
-9,
68,
30,
7,
-3,
-40,
21,
-54,
-5,
-27,
-3,
-2,
-5,
-24,
-23,
65,
-28,
-7,
-30,
8,
-5,
3,
12,
-38,
12,
-38,
-6,
-46,
23,
-37,
40,
-2,
-35,
12,
36,
1,
-4,
-34,
-10,
6,
45,
-4,
-28,
6,
61,
45,
-39,
41,
27,
47,
-1,
-4,
-11,
6,
-59,
-21,
-40,
10,
-28,
13,
-38,
-51,
23,
11,
-19,
8,
4,
-31,
13,
-51,
-64,
1,
38,
-42,
14,
52,
-36,
-1,
-30,
-5,
-20,
19,
-17,
38,
31,
46,
19,
22,
64,
34,
-25,
-1,
-46,
3,
-14,
0,
-18,
9,
-13,
-37,
10,
-7,
-50,
-24,
-6,
-14,
-72,
-17,
-26,
10,
-4,
32,
-15,
-15,
28,
-71,
23,
-29,
-1,
31,
-5,
8,
16,
49,
-13,
-18,
-3,
3,
-7,
-66,
34,
27,
3,
52,
-44,
0,
57,
-17,
1,
14,
-5,
-40,
8,
32,
6,
70,
-21,
15,
8,
5,
-16,
-27,
32,
12,
40,
10,
-49,
20,
-45,
49,
51,
-16,
33,
6,
19,
2,
21,
-10,
-36,
10,
-24,
1,
-5,
4,
-21,
1,
78,
-71,
-24,
-26,
13,
2,
-26,
15,
3,
-4,
19,
-18,
0,
-41,
-56,
4,
-6,
-23,
40,
-44,
16,
-18,
0,
-41,
-28,
-15,
18,
48,
24,
68,
-12,
27,
4,
11,
29,
5,
9,
69,
-24,
-34,
8,
-10,
-34,
24,
34,
-20,
25,
-15,
3,
-37,
-85,
-36,
-4,
-26,
19,
17,
28,
3,
-18,
1,
-21,
-27,
-56,
18,
-11,
39,
3,
-27,
-35,
21,
49,
12,
-22,
37,
5,
0,
6,
-13,
-48,
-5,
22,
13,
-32,
29,
-14,
7,
9,
19,
-5,
-10,
-24,
-41,
11,
16,
4,
-23,
16,
22,
-42,
44,
14,
-11,
29,
-10,
-26,
-46,
2,
42,
-58,
-58,
55,
-4,
3,
31,
-20,
17,
8,
-33,
-29,
27,
30,
6,
3,
-11,
66,
-16,
4,
31,
-18,
-15,
-13,
-3,
16,
6,
-58,
7,
1,
2,
7,
16,
31,
-12,
1,
11,
28,
-63,
18,
31,
-40,
-10,
-1,
-18,
38,
21,
18,
12,
-10,
41,
-11,
-38,
-42,
17,
-48,
35,
-6,
37,
7,
-34,
-26,
-32,
-24,
-13,
-36,
54,
-11,
30,
28,
-7,
-21,
4,
5,
0,
13,
3,
-7,
-13,
27,
2,
64,
-46,
0,
48,
5,
20,
26,
-26,
-45,
10,
22,
0,
29,
-3,
46,
10,
-2,
64,
-6,
10,
-19,
15,
33,
7,
0,
24,
37,
2,
-7,
5,
56,
-14,
-20,
-13,
-7,
8,
3,
-15,
24,
44,
-11,
-19,
0,
24,
-4,
20,
-69,
-25,
-33,
17,
23,
7,
19,
-24,
31,
-10,
45,
-40,
-27,
-62,
-1,
0,
5,
-9,
14,
0,
-15,
25,
1,
32,
-39,
59,
14,
-25,
52,
26,
15,
-7,
-32,
-41,
-13,
-25,
-9,
17,
-16,
-9,
-25,
0,
27,
19,
35,
-4,
3,
34,
-4,
-3,
-38,
19,
-44,
9,
28,
34,
1,
15,
-10,
-9,
-27,
-28,
26,
-1,
13,
-11,
-9,
-24,
13,
-9,
-13,
-27,
23,
-6,
6,
-62,
-19,
-39,
43,
-43,
35,
10,
0,
24,
-36,
6,
10,
24,
-48,
-7,
8,
22,
8,
-44,
-41,
-36,
-17,
76,
11,
-7,
-7,
-20,
-16,
-26,
6,
-4,
10,
-20,
5,
-3,
-29,
-11,
7,
-2,
-58,
2,
21,
7,
-39,
-1,
-20,
-41,
-29,
-14,
24,
-43,
-27,
11,
37,
-25,
19,
45,
11,
0,
-34,
18,
2,
-2,
0,
-3,
-32,
44,
1,
-11,
-19,
-19,
-16,
-17,
-55,
9,
14,
-3,
-8,
32,
41,
10,
23,
-28,
-12,
-37,
-12,
18,
-6,
2,
0,
-15,
47,
-8,
-13,
27,
2,
-34,
26,
14,
17,
14,
-61,
-17,
10,
33,
24,
-60,
30,
14,
29,
4,
-22,
25,
-14,
-7,
13,
-5,
19,
32,
-62,
7,
27,
-26,
15,
-14,
13,
-26,
-5,
-18,
28,
-26,
-16,
-25,
-43,
6,
-3,
23,
37,
-13,
76,
-4,
-20,
-17,
-31,
-7,
-11,
-5,
-17,
50,
-10,
-31,
-16,
13,
-37,
-21,
27,
-11,
41,
-2,
-13,
-13,
21,
3,
-31,
-8,
23,
-50,
33,
30,
-42,
45,
33,
20,
-6,
-21,
-42,
24,
28,
-3,
4,
30,
0,
-57,
-23,
34,
34,
36,
-6,
-7,
45,
-12,
-11,
29,
-21,
36,
30,
-4,
-12,
-22,
-28,
-14,
-26,
37,
-27,
36,
26,
-20,
11,
-8,
8,
56,
-28,
7,
14,
-14,
-64,
23,
15,
0,
0,
-39,
-54,
35,
6,
-16,
-18,
-7,
-6,
-17,
-35,
-4,
33,
54,
-32,
39,
1,
4,
35,
-48,
39,
-24,
-38,
15
] |
Graves, J:
The plaintiff claimed as assignee of one Adolph Hebei to recover ten hundred and thirteen dollars for a fire loss in 1872 suffered by the assignor, and which was covered by a policy issued to the latter by the defendant, a corporation of Ohio doing business here. The company defended on the ground that previous to the assignment to the plaintiff,, and after the loss, certain creditors of the assignor commenced two garnishee suits against the company, one before a justice of the peace of Detroit and the other in the Wayne circuit court, based on the demand existing under the policy on account of said loss; that final judgment had passed against the company in both cases, and that the aggregate amount was equal to the whole sum claimed in this suit. And the company insisted that such proceedings afforded a complete answer to the plaintiff’s action; that they amounted to a lawful adjudication that the liability on the policy was exclusively due to the garnishee plaintiffs, and not to the assured, and of course not to the plaintiff, who stands in his shoes. When the case came to be submitted to the jury the judge directed a verdict for the company. The only question there is depends on the validity of the defense as the record shows it. Several points commented on by counsel require no discussion. Concerning the theory of the defense there is no difficulty. The question as, whether, as we see the record, there were facts to support the theory. It will be noticed at the outset that the action is by the assignee to enforce against the company the very obligation it directly incurred by contract with the assured, and that in substance the defense made by the company is, that prior to this suit, and previous to the assignment by the assured, the right to this same obligation was ousted from the ownership of the assured and vested in third persons by proceedings on the part of those persons against the company under the garnishee law. It is material to distinguish between the attitude of these parties and this controversy, and the state of things when the garnishor and garnishee are contending about the consequences and results of garnishee proceedings which have taken place between them. Many things may take place in the course of such proceedings which the garnishee, on the one hand, or the garnishor, on the other, may be bound or estopped by, as between themselves, but which the garnishee may not be able to urge as matter of defense against the suit of the principal defendant. Still there is no question of the right of one prosecuted as garnishee to make many admissions and waivers without endangering his protection. He need not wait to bo led by the shoulder into court. He need not wage battle at every step. The law itself not only recognizes his right to suffer default, but provides what the practice shall be in such case, and invests the judgment with the same protective, force as it does one awarded after vigorous contest. Still the proceeding must have a beginning agreeable to its nature, in order to hold the principal defendant, and the nature of the proceeding requires that the law shall be brought to bear directly against the right of the principal defendant in the hands or under the control of the garnishee, and the mode, and the only one, provided for this is by service of the process on, or submission to service by, some one competent in law to receive service. The law itself must be caused to attach, and it can-be effected in no other way. Independent and spontaneous submission by the custodian or debtor of the right belonging to the principal defendant cannot bind him. The intervention of the law, according to its own substantial appointments, can alone initiate compulsory novation. A garnishee may admit away his own right over which he has power, but he cannot admit away another’s right over which he has no power. It is a plain proposition that one against whom there is an existing claim cannot by his own act alone transfer it into an obligation to another. The right itself and the power to enforce it must remain in the original owner unless there is a novation by his consent or by force of legal proceedings, and where the end is sought through the garnishee law and depends on no assent or acquiescence of the principal defendant, the right must be taken into legal custody and subjected by course of law, and as against the principal defendant this cannot be accomplished by the ex parte action of the debtor or custodian of the right, even on the request of the garnishor, though made in the form of complaint filed and process sent out. There must be action under process which brings home -to the garnishee, and the right to be subjected, the power of the law itself. In ordinary cases there is no difficulty, because the identical party being exposed to service is actually served. The case is different where the service must be vicarious, where it can be made only on some one standing in a special relation to the intended garnishee. In such case the existence of such special relation is just as indispensable in order to cause the law to attach and bind the principal defendant as is the identity of the garnishee with the person actually served in ordinary cases. If the relation appointed by law as a condition of valid service, as something to make the supposed service binding, does not exist, the laiv does not attach to the right, and the principal defendant is not bound, and if the intended garnishee assumes thereafter to step in and treat it as service upon or against him and against the right in question, whatever may be the consequence as between him and the party prosecuting as garnishor, such action eannot bind the right as against the principal defendant. The right has never been attached, and the action of the custodian or debtor of the right is in its nature merely voluntary. The bringing the right into the custody of the law by the application of process against some one competent to receive service cannot be waived by the intended garnishee as against the principal defendant. The step is one which lies at the foundation of the proceeding and is the basis of the protection of the intended garnishee against the urging of a claim by the principal defendant. The nature of the thing repels a fictitious service. The process must be served upon the very party, or it must apply against some one standing in point of law for the purpose of service in the place of the very party. Were it not so, were it not necessary to appear that the service has been on the identical party, or in case of vicarious service been caused to apply against ■ some one competent in law to receive service on account of the identical party, this fundamental step-would become as easy and unreal as was formerly the vouching to warranty in a common recovery. There the voucheewas usually the court crier. As already intimated, the-ability of a party to bind himself by acquiescence or voluntary appearance is unquestioned. But the right of the principal defendant can only be bound against his consent, when a real service is effected in some form by which his right is attached. In view of the foregoing considerations, were the garnishee proceedings, as they are represented in the record, sufficient to bind the right of Adolph Hebei, the-principal defendant, and preclude him or his assignee from recovering on the policy?
The- material inquiry is, whether the steps which were-taken in regard to service of garnishee process were adequate to bind Hebei, and enable the company to contend as against him that his right was subjected to the power of the garnishee law.
The steps in question appear affirmatively in the record.
The insurance company, as previously stated, is an Ohio corporation. It has never been in this state. The garnishee-process in the circuit court was issued on the 18th of De cember, 1872, and it required the company to appear and disclose on the 7th of January following; and one John F. Murray, purporting to act as agent, made disclosure more than a month afterwards, namely, on the 18th of February. No return by an officer iras made on the process, but the following endorsement ivas made on it of the same date as the writ:
“We do hereby accept sendee of the within writ of garnishment, as agents of the Amazon Insurance Company of Cincinnati. Schmemann and Kuhn.” There was no other evidence of service in the case.
The garnishee law applicable to circuit courts (L. 1861, p. 559) provides that “any corporation, domestic or foreign-, other than municipal, may be garnished.” — § 30. And particular provisions are introduced to regulate the mode of service in case of domestic corporations and natural persons, but the law is silent on the subject so far as foreign corporations are concerned. It is therefore necessary to look elsewhere for provisions applicable to them. As the case was commenced before the act of 1873 (L. 1873, p. 206), that law could not have applied. The only provision applicable to the -circuit courts, and then existing, would seem to have been section one of ch. 45, C. L. And it is this provision that counsel rely upon. It is there provided that each foreign insurance -company shall file a resolution with the secretary of state; that such resolution shall bo under the company seal, and be signed by the president, secretary or other chief officer; that it shall convey authority to each agent the company appointed by resolution under the company seal, to acknowledge service of process for and on behalf of the company; that it shall contain consent that the service of process on any agent shall be taken and held to be as valid as if served on the -company according to the laws of Michigan, or of any other state; and that it shall w-aive all claim of error by reason of such service. .Having thus required the filing of a resolution by the company, and having prescribed its contents, the law proceeds to declare, that suits may be commenced against any such (Company in any county in this state by declaration or process as in other cases, and that such declaration or process may run into and be served on any such agent or attorney in any county in this state where such agent or attorney may be.
Now it is quite plain that if the statement of Schmemann and Kuhn indorsed on the writ had legal force for any purpose, it had none whatever as evidence to the circuit court of the service of process under the law in question, so as to bind.Hebei’s rights, as between him and the company. The court could not take judicial notice, if such was the case, that a resolution was on file in the secretary of state’s office, or that Schmemann and Kuhn were agents appointed under seal, or were agents at all, and their statement that they were agents, could neither make nor prove them such.
Their unsworn statement was of no more legal yalue to establish' service than the like statement by any body else would have been.
There was positively no evidence before the court that Hebei’s right had been attached, and no basis for proceedings taken upon the theory that it had been, and even now it does not appear in any way that Schmemann and Kuhn were competent to receive binding service.
It would be strange if a man’s legal right were subject to be cut off or barred by such practice. The circuit court before going on should have had evidence before it to prove that its process had taken effect against the company, and had brought Hebei’s right under the power of the garnishee law.
This was not done, and the record shows that the court went on without any authority as against Hebei.
In the second case the justice at Detroit issued his proc-. ess on the seventh of March, directed to any constable of Wayne county, and commanding that the company be summoned to appear before the justice at his office in Detroit,. and make disclosure on the 19th of the same month. There was no official return of service at all, and nothing on the subject except an indorsement on. the writ as follows: “I hereby accept service of the within process, at Grand Eapids, March 8th, 1873. E. G. Holden, state attorney, Amazon Insurance Co.”
There was no disclosure at all before the justice. The paper submitted to the justice as disclosure ivas made and sworn to at Grand Eapids. The garnishment act applicable to justice’s courts makes foreign corporations, other than municipal, subject to be garnished, and directs upon whom service maybe made (§ 6463, C. L.), but there is nothing in the act which directly or by implication authorizes service beyond the bounds of the county, and the insurance company act, previously noticed, cannot be construed as intended to authorize a justice to send his process into any county in the state. — Hartford Fire Insurance Co. v. Owen, 30 Mich., 441. If Mr. Holden’s statement on the process showed any thing in the nature of a service regular in form, it showed at the same time that it occurred where the process was without legal force.
After the discussion which has been had, -it would be a waste of time to explain all the defects in this proceeding.
That there was no evidence before the justice of any service of his process binding on Hebei or his right, and no foundation for an «adjudication against him, is plain. It was observed in Hartford Fire Ins. Co. v. Owen, supra, that “it is a settled rule of law that all exceptional methods of obtaining jurisdiction over persons, natural or artificial, not found within the state, must be confined to the cases and exercised in the way precisely indicated by statute;” and the remark is strictly in point in regard to both the proceedings on which the defense in this case is based.
I am of opinion that neither of the garnishee cases afforded any defense, and that the court beloAV erred in holding otherwise.
Judgment reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
8,
19,
17,
-16,
-23,
19,
16,
-11,
11,
0,
-9,
17,
39,
57,
6,
-30,
-17,
26,
-14,
2,
56,
-43,
-25,
-14,
-31,
9,
20,
5,
11,
-2,
-22,
22,
-36,
5,
-11,
10,
-26,
-9,
-19,
-55,
-13,
13,
54,
3,
-2,
12,
-3,
-38,
30,
-39,
42,
-11,
9,
11,
-22,
-10,
-23,
41,
-14,
13,
10,
-53,
7,
-43,
-2,
-5,
16,
49,
9,
16,
-22,
11,
30,
32,
-11,
-8,
-36,
0,
-23,
-33,
-13,
-25,
5,
-23,
-34,
27,
-19,
46,
-71,
42,
24,
-5,
-16,
48,
34,
-6,
-21,
14,
8,
40,
5,
7,
-37,
76,
-33,
-11,
-23,
-15,
5,
-3,
55,
28,
36,
-24,
4,
-16,
-42,
3,
2,
6,
42,
-2,
17,
5,
2,
-6,
-15,
-53,
-42,
9,
37,
14,
-42,
11,
17,
-5,
-6,
-6,
-17,
0,
-1,
-20,
-7,
-36,
-16,
29,
-22,
9,
-27,
-37,
-24,
-6,
-15,
-21,
15,
-29,
24,
-17,
39,
-36,
14,
-32,
51,
35,
-48,
-12,
11,
-13,
-26,
42,
-8,
5,
2,
-17,
55,
32,
14,
-71,
-27,
48,
0,
-8,
-10,
-19,
63,
-47,
-26,
3,
-23,
-6,
18,
-11,
-55,
24,
-14,
45,
13,
45,
0,
-7,
61,
-22,
-63,
10,
5,
28,
25,
-4,
-13,
-6,
-36,
27,
-5,
-52,
-22,
29,
-18,
-35,
-23,
-23,
12,
-3,
-39,
11,
20,
-16,
-8,
-21,
17,
-26,
10,
-35,
2,
36,
-17,
-12,
6,
-14,
18,
10,
16,
3,
-9,
-19,
27,
-31,
-23,
22,
-18,
47,
-50,
12,
8,
56,
-24,
-55,
-68,
-23,
-11,
-30,
-1,
43,
-25,
-4,
-17,
-38,
12,
-9,
-9,
21,
-25,
-14,
31,
16,
4,
-34,
0,
9,
-16,
-8,
-2,
-13,
-61,
17,
-14,
17,
9,
17,
-60,
26,
31,
-8,
19,
-9,
48,
24,
0,
-5,
25,
0,
-20,
-6,
64,
-16,
-13,
46,
-48,
-25,
-60,
-15,
-17,
15,
-23,
12,
56,
16,
28,
35,
17,
-56,
45,
30,
0,
-33,
-5,
-19,
-5,
9,
4,
-12,
-20,
-6,
47,
-2,
-31,
-45,
25,
-14,
19,
3,
7,
-30,
31,
-23,
-8,
36,
32,
-39,
-1,
-1,
-20,
-1,
13,
7,
58,
16,
33,
30,
-41,
16,
25,
8,
26,
-9,
-9,
-4,
-41,
18,
20,
6,
34,
16,
-17,
-23,
-1,
0,
-13,
19,
-41,
75,
32,
-15,
13,
-7,
8,
23,
-4,
7,
-44,
14,
-45,
-11,
7,
30,
-58,
-38,
-14,
-23,
-38,
-26,
32,
37,
-14,
-8,
-25,
-33,
-18,
-29,
-17,
-7,
2,
-26,
-9,
-51,
-8,
-19,
13,
40,
62,
3,
47,
0,
-11,
10,
33,
-43,
24,
-15,
-25,
-7,
-48,
12,
1,
-13,
-37,
-16,
-43,
-15,
-14,
15,
0,
18,
-11,
35,
28,
1,
-35,
20,
45,
16,
-2,
1,
35,
4,
5,
15,
11,
-38,
60,
42,
46,
0,
7,
9,
0,
-36,
17,
-35,
6,
0,
-16,
-11,
4,
-21,
-39,
-14,
-1,
-1,
-12,
28,
-2,
48,
33,
-24,
-65,
15,
8,
4,
-9,
-9,
-15,
13,
-10,
-13,
-10,
30,
-21,
1,
7,
4,
14,
18,
6,
11,
2,
62,
-24,
-63,
-15,
69,
-5,
14,
23,
58,
51,
25,
9,
14,
-3,
-2,
19,
-16,
-67,
7,
28,
30,
-18,
-8,
25,
11,
-6,
-36,
4,
-62,
4,
32,
15,
24,
-2,
-48,
-6,
39,
25,
-9,
-30,
21,
-32,
47,
27,
-27,
-26,
-17,
48,
0,
-2,
1,
49,
-30,
14,
10,
-48,
-31,
-6,
-49,
38,
-22,
36,
-18,
15,
-22,
-37,
-30,
-9,
36,
-36,
-30,
4,
4,
-4,
-27,
-46,
-12,
-14,
-84,
-17,
48,
13,
47,
-28,
45,
47,
53,
16,
-26,
-7,
-9,
-16,
10,
20,
58,
-11,
-1,
-41,
-26,
-23,
-3,
-17,
16,
36,
7,
31,
-7,
-12,
-44,
19,
1,
0,
1,
11,
32,
30,
8,
-32,
18,
8,
22,
18,
0,
-48,
34,
3,
-39,
22,
49,
1,
28,
16,
46,
-57,
15,
-4,
11,
36,
-26,
-7,
-12,
-40,
68,
11,
-50,
-23,
39,
21,
0,
-14,
-10,
4,
-1,
-3,
-27,
-7,
-10,
-13,
24,
-7,
12,
-12,
8,
0,
-13,
1,
-32,
8,
13,
-7,
6,
-21,
55,
0,
28,
5,
0,
8,
0,
-10,
14,
7,
5,
11,
-13,
-9,
-8,
-32,
-17,
11,
-4,
8,
24,
5,
-22,
-4,
-20,
0,
33,
-25,
-4,
-12,
-4,
-2,
-26,
55,
-5,
9,
-27,
1,
25,
-22,
15,
-23,
-1,
-26,
-33,
47,
-21,
-4,
19,
-24,
7,
-13,
-4,
4,
-43,
16,
4,
-9,
-11,
-29,
5,
-49,
-15,
2,
-17,
4,
11,
-51,
-6,
16,
12,
26,
7,
11,
38,
30,
2,
0,
13,
-17,
-47,
-68,
-16,
35,
15,
16,
-20,
-17,
37,
-7,
-23,
19,
-68,
-27,
-11,
15,
3,
21,
17,
34,
16,
2,
1,
43,
-37,
44,
25,
-41,
-42,
-5,
6,
-11,
11,
3,
6,
14,
-21,
-8,
20,
66,
-39,
-40,
-21,
30,
0,
15,
56,
20,
-2,
13,
-9,
14,
15,
-28,
-19,
3,
-10,
4,
18,
-56,
-4,
-33,
7,
-81,
72,
4,
20,
-19,
6,
-35,
-29,
-12,
20,
11,
-44,
-48,
37,
6,
-4,
36,
32,
-1,
-52,
15,
-24,
-70,
32,
27,
22,
0,
-38,
-23,
42,
-25,
-28,
8,
22,
-3,
2,
-13,
-49,
17,
2,
-7,
-31,
-26,
17,
44,
1,
-46,
13,
-28,
-12,
30,
77,
-33,
-3,
-9,
21,
35,
22,
22,
-9,
9,
25,
2,
1,
-49,
28,
21,
-36,
-21,
43,
25,
-32,
-28,
19,
5,
-37,
15,
-30,
42,
-9,
0,
-17,
2,
23,
-50,
41,
3,
-19,
-6,
51,
39,
-1,
-21,
6,
10,
42,
28,
-29,
25,
5,
-16,
-15,
-19,
-27,
-27,
7,
38,
31,
-3,
55,
6,
13,
-21,
26,
35,
-8,
11,
-41,
0,
12,
-6,
-42,
-29,
-1,
-3,
-10,
15,
-13,
-9,
-6,
7,
66,
6,
49,
-63,
0,
-44,
-31,
-29,
-27,
0,
16,
-14,
-5,
25,
11,
24,
-40,
14,
-59,
20,
-23,
-9,
-28,
12,
-11,
24,
-42,
18,
-23,
10,
-8,
-43,
44,
30,
0,
15,
-12,
-35,
-51,
25,
20,
-1,
52,
4,
-61,
16,
46,
6,
-9,
-29,
6,
13,
-3,
-23,
-13,
33,
9,
12,
-26,
-7,
15,
17,
2,
-14,
16,
-22,
37,
-19,
-35,
40,
9,
-35,
50
] |
Campbell, J:
.Elizabeth Long sued Conrad in ejectment for the undivided half of certain lands in Wayne county. Her title, which depends on a devise, is the main matter in before us. It was claimed by Conrad to have been invalid upon its face.
Both parties claimed under the same source of title, which was the will of one A. S. Conrad. He devised the lands in question to his mother for life. After her death it was to go in conformity with the following clause of the will:
“To my brother Frederick S. Conrad I give and bequeath the one-half so remaining, and the other half I give and bequeath to my sister Elizabeth Long, upon this condition: if at any time subsequent she should conclude not to live with her present husband, Henry Long, as his wife. But if she continue so to live as the wife of the said Henry Long until her death, then, in that case, I give and bequeath all my property, real and personal, remaining after the burial of my mother aforesaid, to my aforesaid brother Frederick S. Conrad.”
It was claimed on behalf of Conrad that the condition mentioned is a condition precedent, and is void, and that no estate could attach.
That the condition is void is admitted. It is contrary to the plainest principles of public policy to stipulate or provide in this way for a separation of husband and wife as a condition to the enjoyment of an estate. No separation against their will, except by divorce, is consistent with the nature of the marriage contract, which is of public as well as of private concern.
But. we find here nothing in the nature of a condition precedent. The language is very blind, but it shows that the ultimate devise over to Frederick S. Conrad was to depend on whether Elizabeth Long continued to live with her husband until her death. The testator seems to have had an idea that her estate might vest and lapse from time to time, according to her leaving or remaining with her husband. This idea, of course, could not be maintained even upon a valid condition. But taking the whole clause into the account, we can only find in it a forfeiture of an estate on breach of condition, and not a condition precedent.
"We think she took an estate clear of conditions. So far as the case presents any questions concerning the ambiguity of the condition or its precise meaning, we need not discuss them, for no interpretation would change the general quality of the condition as contrary to public policy, and the will must speak for itself as to its being a precedent or subsequent condition. .
Error is assigned upon the reception of record evidence of a deed from Artemus Hosmer and wife to Abraham C. Truax, the objection being that the certificate of acknowledgment did not conform to the law concerning deeds of married women. But the title conveyed was that of the husband, and the deed was good against him, and the right of dower is not involved in this suit.
An attempt was made to show by George W. Coomer that some arrangement existed whereby he and one Day were to have some interest in the land. No offer was made to prove a deed, and no foundation was laid for giving parol evidence of any conveyance or agreement. As nothing but a conveyance of the legal title could defeat an action of ejectment, this testimony was properly excluded.
This embraces all the rulings complained of, which were called out by varied requests, covering in several instances very similar questions. There were no facts left open for the jury, and the court below very properly so held, and directed a verdict' for the plaintiff below, as all material things outside of the written evidence were settled by admissions.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
-25,
-19,
50,
28,
16,
17,
45,
31,
14,
-2,
-11,
9,
44,
-10,
3,
-8,
-21,
17,
-72,
49,
5,
-9,
-61,
79,
23,
27,
30,
28,
37,
0,
-5,
-2,
-53,
33,
-10,
22,
19,
-16,
23,
-52,
17,
-18,
20,
10,
-30,
7,
-15,
-38,
-11,
-14,
-19,
-66,
29,
6,
54,
4,
-31,
31,
-3,
-3,
-28,
-44,
-33,
-46,
-19,
72,
41,
12,
-27,
-34,
-9,
26,
-2,
10,
-30,
-22,
73,
13,
9,
23,
12,
-65,
-3,
-30,
-11,
0,
-16,
16,
27,
-18,
-9,
22,
-39,
4,
-38,
42,
7,
24,
-42,
39,
-14,
8,
38,
36,
-46,
-2,
-18,
34,
-14,
-22,
-2,
-19,
32,
-28,
-20,
16,
-47,
-19,
-29,
-10,
25,
-10,
28,
-29,
-7,
4,
-19,
-18,
-33,
-9,
59,
34,
-3,
6,
-15,
10,
-6,
-3,
-32,
-45,
59,
-15,
5,
-71,
30,
9,
39,
-40,
-30,
-42,
-25,
33,
15,
24,
31,
-44,
31,
-34,
20,
-43,
28,
-4,
32,
13,
-24,
-33,
28,
-10,
8,
41,
21,
52,
-35,
27,
7,
42,
27,
-53,
-41,
7,
1,
55,
28,
-36,
-1,
-30,
-40,
11,
-57,
-20,
-32,
-12,
67,
28,
-36,
34,
-13,
54,
-55,
-41,
2,
-6,
-52,
51,
2,
-5,
9,
-9,
-1,
-30,
-40,
15,
1,
-17,
-6,
-26,
-23,
-14,
-83,
34,
47,
17,
-12,
2,
2,
-69,
43,
0,
-29,
-8,
3,
36,
24,
-18,
1,
-28,
-13,
-1,
-16,
-31,
46,
5,
-5,
54,
14,
-6,
6,
21,
36,
24,
-18,
-13,
-5,
30,
26,
-5,
-61,
26,
33,
-47,
-5,
20,
-57,
18,
21,
-9,
26,
-37,
31,
-9,
26,
-19,
15,
-28,
-5,
4,
-3,
-10,
-34,
-37,
12,
25,
-43,
10,
-32,
14,
-45,
-6,
-16,
42,
33,
-64,
-23,
-21,
11,
24,
17,
8,
0,
15,
24,
18,
20,
59,
43,
42,
-36,
-5,
40,
-49,
-52,
13,
10,
19,
39,
18,
-18,
-29,
2,
-8,
16,
5,
-3,
5,
1,
-6,
-3,
-26,
-34,
27,
-16,
23,
27,
18,
61,
12,
14,
12,
-6,
-32,
4,
-22,
-9,
-3,
6,
-9,
36,
-51,
25,
-11,
-27,
32,
-3,
44,
-63,
0,
15,
-28,
-12,
22,
-30,
30,
24,
10,
-27,
-35,
-4,
-14,
83,
-26,
28,
-26,
48,
-29,
-13,
40,
-16,
36,
0,
28,
-1,
32,
25,
55,
9,
32,
-36,
-36,
-10,
11,
-15,
-62,
-13,
27,
-53,
-1,
-16,
21,
-37,
7,
-22,
23,
-30,
-37,
-12,
18,
-27,
-41,
-17,
57,
24,
0,
20,
-57,
0,
18,
17,
-23,
36,
4,
-36,
3,
12,
9,
-49,
-58,
-3,
46,
-9,
0,
2,
-8,
31,
24,
1,
-8,
-19,
6,
-49,
51,
-9,
12,
0,
38,
-20,
21,
-9,
-14,
2,
-42,
18,
7,
-4,
-2,
10,
-32,
25,
5,
-23,
-27,
36,
-25,
18,
19,
2,
-41,
-39,
-37,
30,
9,
-7,
4,
24,
0,
3,
13,
-33,
0,
2,
-17,
9,
39,
5,
-28,
9,
22,
-42,
-50,
-16,
-47,
28,
4,
-19,
3,
-26,
-90,
-16,
-33,
-15,
-15,
40,
45,
105,
17,
-7,
-41,
-3,
2,
-17,
32,
26,
-83,
37,
50,
-2,
23,
24,
-32,
7,
5,
38,
9,
-53,
20,
34,
-14,
16,
1,
40,
-8,
0,
17,
-7,
0,
-9,
58,
26,
-13,
-4,
-13,
-51,
52,
5,
32,
-33,
43,
34,
38,
-41,
7,
-17,
-66,
-2,
21,
22,
-30,
7,
5,
10,
15,
-5,
-32,
-18,
-35,
61,
-14,
5,
-2,
-37,
12,
22,
-52,
-10,
-20,
-43,
-6,
-4,
22,
10,
31,
-49,
-15,
15,
-31,
29,
-14,
-46,
2,
-9,
-17,
-20,
-4,
9,
-18,
-20,
-40,
38,
18,
42,
-4,
-23,
9,
5,
-29,
-25,
47,
24,
2,
53,
-29,
-6,
11,
-5,
-1,
9,
49,
28,
-1,
-20,
63,
8,
43,
-47,
-65,
-6,
-24,
-18,
20,
4,
5,
37,
-43,
12,
21,
-3,
10,
21,
19,
22,
5,
-18,
10,
-4,
-31,
-1,
-9,
-7,
9,
1,
-14,
18,
32,
-16,
-26,
4,
16,
5,
29,
0,
-9,
27,
0,
-15,
54,
1,
58,
21,
33,
-19,
11,
37,
11,
-5,
-8,
15,
25,
39,
5,
63,
28,
-6,
13,
25,
24,
-13,
30,
-23,
-6,
8,
-4,
-17,
-60,
-7,
35,
10,
41,
0,
42,
32,
-3,
35,
6,
5,
23,
-16,
-19,
-17,
21,
-20,
-14,
41,
9,
22,
-28,
0,
33,
33,
-12,
49,
-52,
10,
6,
-32,
-66,
1,
34,
2,
-36,
9,
-2,
-5,
6,
-61,
-22,
-24,
51,
23,
-25,
-10,
-43,
-30,
19,
5,
34,
-2,
16,
-8,
12,
-15,
-52,
52,
10,
27,
-8,
-19,
0,
-27,
21,
-3,
-10,
-2,
8,
-54,
15,
-33,
-18,
-30,
-6,
-22,
-15,
38,
13,
-38,
-18,
32,
14,
31,
46,
-6,
-21,
51,
-50,
-18,
-12,
-10,
-17,
28,
-27,
25,
27,
-18,
-31,
34,
-8,
-33,
-3,
22,
-6,
-30,
-22,
-5,
40,
-11,
27,
-26,
23,
-51,
34,
-14,
29,
23,
-9,
-11,
-12,
-54,
-75,
-18,
55,
-18,
-11,
18,
-11,
11,
14,
5,
38,
0,
8,
3,
-2,
22,
-23,
-8,
29,
67,
-27,
-18,
27,
-7,
-63,
19,
-1,
-21,
-15,
17,
-21,
-16,
4,
15,
-55,
-35,
-8,
-7,
-9,
-50,
-47,
-10,
-11,
0,
46,
-19,
-10,
-15,
-5,
6,
-49,
11,
35,
49,
32,
-50,
-26,
-67,
-29,
-21,
29,
15,
-56,
-31,
42,
-16,
24,
-64,
68,
-64,
19,
40,
-43,
-49,
23,
37,
-48,
-2,
2,
-43,
-6,
11,
-49,
14,
-58,
-53,
1,
20,
0,
14,
10,
12,
42,
13,
49,
23,
-31,
-21,
-30,
29,
58,
0,
4,
-32,
-27,
9,
-3,
-15,
-10,
-42,
18,
-20,
-2,
-9,
24,
7,
26,
-68,
-3,
26,
-20,
14,
-8,
27,
-2,
43,
-18,
8,
31,
2,
46,
42,
-29,
18,
-2,
-12,
42,
32,
30,
-45,
1,
-16,
-53,
-36,
-9,
-49,
13,
3,
-21,
11,
-34,
18,
26,
-2,
-31,
-39,
-35,
31,
-5,
-9,
13,
26,
-4,
8,
-39,
14,
-13,
-57,
26,
-49,
-47,
-1,
-6,
-46,
-46,
14,
17,
17,
9,
32,
13,
-1,
5,
-68,
11,
-9,
-34,
46,
-6,
13,
-59,
-8,
18,
14,
-20,
-44,
-12,
37,
68,
8,
0,
-7,
20,
13,
-12,
61,
-4,
47,
-17
] |
Graves, J:
The plaintiffs claim that under certain special contracts made -with defendants the latter became indebted to them in a large sum for cutting, banking, running and booming several millions of feet of pine logs, and for unusual expenses and on account of supplies provided at defendant’s expense, and they allege that on the footing of this specific indebtedness they proceeded on the 5th of June, 1874, to file a statement or petition with the clerk of the circuit court for Bay County in order to fix a lien upon the logs pursuant to the act entitled “'an act establishing a lien for labor and services upon logs and timber,” approved April 29, 1873. — Laws of 1873, p. 466. This case was begun by attachment under this enactment. Several questions are agitated on the record, and a mere glance at the case suggests many more. But as the controversy may be disposed of on a single ground, it is not expedient to spend time in discussing others. The suit was a miscarriage from the beginning, and on whatsoever grounds the court below gave judgment against the plaintiffs, there must be an affirmance. The statute in question reads more like a rough sketch or rude outline of a bill intended to be proposed, than it does like a perfected act, and if practicable at all as a law, there must be great difficulty in applying it safely to any except the simplest cases. It is well known that the first garnishee enactment in this state was produced by the passage, without change, of a mere sketch of some leading provisions of a proposed bill, and it is quite possible that this law may have crept into the statute book through similar inadvertence. Without entering into any general criticism.of the statute, it is plain that it contemplates a specific lien for a specific kind of claim, and an enforcement by means of a particular proceeding.
The right and remedy are bound up together and must be construed together. By general reference, it is true, the act borrows from the general law in regard to attachment, but this has no force to duplicate the redress. The proceeding is still distinct from the general attachment iaw, and the basis of it and the quality of the remedy and the result must depend upon the particular statute. A suit under this law must be carried out under. it, and it is one in rem, to enforce a lien, and not for the recovery of personal damages. Under no circumstances can the party prosecuting the proceeding go on and use it as a suit commenced by summons for the recovery of damages, as may be done in particular cases under the general attachment law. The separation is by a broader difference than exists between replevin generally and replevin for beasts distrained, and quite as broad as that between a bill for divorce and one for damages. A personal judgment is not authorized.
The leading feature of the act 'is to give one a right to hold the property of another upon a claim of having performed work or service about such property, and when no lien, or right to hold the property, would exist otherwise. Now it cannot be doubted but a party undertaking to assert this right of lien, the right to hold the property of a another upon a bare claim for work or services about the property, must be held to a strict compliance with the legal provisions in regard to the nature of the claim and the steps prescribed for the institution and perfection of the lien, and as the right and remedy both arise out of the statute and must go together, all material preliminaries to the right of suit must apjDoar to have been carried out strictly.
I do not pause to consider the objection, that the claim put forward and alleged in the declaration was not one upon Avhich a lien could be established under the statute, nor the objection, that the declaration contained no cause of action under this laAV because it did not sIioav upon its face that the steps indispensable to the establishment of a lien and the steps indispensable to the founding of a suit Avere taken. A question arises in regard to a proceeding prior to the declaration and indeed prior to the commencement of the suit, and one Avhich is expressly made necessary before any suit to enforce the lien is begun. By section nine it is enacted, that before any suit shall be commenced to enforce such lien, the person or persons claiming such lien shall give the owner or owners of the logs or timber a notice in writing of the filing the application or petition, the amount and other particulars described; and care is taken to prescribe the manner in Avhich the notice must be giAen to bring it home to the parties interested, and this is very essential. It declares that “such notice maybe served personally, or by depositing the same in ’ the postoffice, directed to the owner of the logs or timber, his agent or attorney, at his or their place of residence, and paying the full postage thereon; and if personally served, notice shall be gúven five days previous to commencement of suit, and if by mail, no action shall be commenced until fifteen days after the mailing of the same.”
The only statement in the declaration concerning the giving of notice of the filing of the claim of lien is, that “on the first day of July, 1874, they (plaintiffs) caused to be mailed to each of said defendants a notice of the filing of said petition or statement, as required by the act aforesaid,” referring to the statute before mentioned. This it will be observed does not explain the mode of mailing, and does not show that the notice was directed to the place of residence of the party, nor that full payment of the postage was made.
The allegation would not be false if the notices were wrongly or mistakenly directed, or if- prepayment of full postage was omitted.
Now the ninth section, before cited, says that “the plaintiff shall allege in his declaration the filing of such application or petition for a lien, and all allegations relating thereto shall be taken to be true, unless expressly denied by the defendant, his agent or attorney, in his or their answer under oath.” There was no denial on oath of notice; but in construing such an act as this, it would be going too far to say that the expression, “and all allegations relating thereto,” in view of its generality and grammatical relation, must be held to require a denial of notice on oath, in order to put the plaintiff to proof of such notice as the statute specifies. Indeed it would be somewhat strange to require a defendant, on peril of admission, to swear that the plaintiff did not mail a letter directed to him at his abode, and prepay full postage upon it, and very explicit terms would be required to justify a court in holding the legislature meant any such thing. I am therefore of opinion that the statutory notice was not admitted, and was a necessary fact to be proved by the plaintiffs, whatever view may be taken of the contents and shape of the declaration. No evidence was admitted to show the notice, and the only offer of proof on the subject was, that “on the first day of July, 1874, these plaintiffs caused to be mailed to each of the said defendants a notice in the words and figures following, to-wit:” and setting out a copy of the notice itself.
This offer, as will be observed, did not include a proposal to prove that the notice was directed to each defendant at his place of residence, or that full postage, or any postage, was paid; and this was fatal. The legislature regarded this notice as vital, and not only forbade suit without it, but carefully prescribed the mode of giving it, so as to ensure as far as practicable the effectiveness of service. It is a general rule that when service is sought to be made by mail, it should appear that the conditions on which the validity of such service must depend had existence, otherwise the-evidence must be deemed insufficient to establish the fact of service.
The plaintiffs, then, neither made nor offered to make a case entitling them to recover. On the contrary, if we presume they offered all the proof the truth permitted, as to-the sufficiency of the service of notice under the statute,, they showed themselves not entitled to maintain the action.
The judgment should be affirmed, with costs.
Cooley, Ch. J., and Campbell, J., concurred.
Marston, J., did not sit in this case. | [
0,
26,
10,
30,
11,
26,
21,
-19,
37,
42,
-5,
24,
44,
16,
26,
-23,
-3,
-2,
-31,
76,
34,
-20,
40,
-1,
-3,
-25,
29,
-5,
-24,
39,
-8,
23,
-46,
4,
-21,
-23,
-21,
-4,
-25,
7,
-27,
2,
27,
-27,
13,
15,
39,
-14,
34,
10,
19,
-51,
-12,
3,
-26,
28,
-22,
6,
-19,
-5,
11,
-45,
-5,
8,
12,
-44,
-23,
61,
43,
-39,
-2,
59,
8,
-1,
27,
-13,
-26,
-24,
-11,
25,
-35,
-19,
-7,
-32,
-23,
-22,
-67,
12,
-18,
39,
-24,
5,
-34,
56,
0,
12,
1,
18,
-4,
35,
8,
12,
7,
3,
-8,
-9,
-10,
-36,
-16,
10,
31,
2,
15,
-31,
-33,
-54,
8,
-13,
7,
-8,
16,
32,
12,
-37,
-37,
-15,
-16,
-16,
-26,
12,
42,
-3,
-37,
-20,
18,
-7,
-23,
-27,
-2,
-19,
-1,
-8,
-33,
-6,
12,
-8,
4,
1,
-10,
-28,
9,
10,
22,
0,
15,
-10,
19,
-15,
57,
-44,
85,
22,
-37,
-7,
-9,
-11,
2,
1,
5,
20,
18,
5,
-57,
1,
45,
-5,
53,
-55,
-7,
12,
0,
-5,
5,
0,
19,
7,
-38,
26,
2,
6,
38,
0,
-8,
-18,
-8,
21,
0,
1,
-13,
-14,
8,
-77,
-8,
23,
-15,
10,
47,
32,
-19,
27,
-11,
7,
-36,
-10,
-37,
46,
-17,
-58,
-7,
-26,
-13,
29,
7,
-33,
-28,
-27,
41,
15,
48,
-49,
-28,
-21,
20,
-9,
-31,
-28,
13,
-47,
23,
33,
-3,
0,
-55,
-43,
7,
-18,
-35,
19,
7,
-10,
-44,
2,
19,
57,
26,
8,
25,
0,
-52,
-38,
-60,
3,
6,
-34,
-2,
-40,
-2,
15,
-31,
31,
-16,
-24,
83,
34,
15,
14,
5,
3,
-38,
-52,
-20,
20,
-23,
8,
-15,
-12,
-42,
-3,
-20,
-3,
42,
-18,
6,
3,
27,
68,
14,
-34,
28,
23,
5,
-49,
30,
-49,
-15,
35,
-21,
-19,
-57,
-21,
-21,
1,
-47,
-15,
50,
11,
-30,
8,
0,
-59,
39,
16,
-9,
-35,
26,
24,
31,
-3,
-7,
2,
-3,
-33,
31,
7,
22,
-13,
7,
-12,
-32,
-16,
30,
38,
-22,
34,
-24,
11,
2,
-34,
20,
11,
-8,
-2,
-39,
34,
3,
-11,
-15,
-23,
-19,
18,
20,
18,
23,
1,
14,
2,
-31,
10,
41,
0,
-17,
13,
15,
-32,
-15,
-50,
-39,
32,
-17,
5,
45,
22,
43,
0,
14,
6,
-23,
-46,
-44,
-7,
-21,
-14,
5,
49,
-8,
-12,
10,
-37,
-41,
18,
-24,
21,
14,
-6,
-38,
7,
-41,
-32,
10,
-10,
3,
-5,
-21,
13,
-13,
-36,
32,
11,
67,
5,
69,
4,
7,
0,
31,
-65,
34,
-24,
4,
-21,
-31,
9,
28,
2,
-11,
10,
-34,
-5,
-30,
-17,
-6,
45,
23,
-10,
-12,
0,
13,
34,
73,
-42,
0,
-15,
-77,
-3,
6,
-6,
1,
-42,
53,
2,
11,
34,
1,
31,
39,
0,
-9,
-47,
-5,
35,
-25,
-8,
75,
0,
-51,
3,
46,
-8,
8,
5,
24,
12,
11,
6,
-49,
-11,
-6,
8,
-26,
-39,
49,
1,
-24,
-10,
-32,
14,
-50,
-60,
16,
63,
6,
23,
-14,
-31,
32,
3,
4,
29,
-7,
93,
-28,
-19,
42,
14,
-12,
56,
26,
-20,
0,
-19,
15,
-9,
-77,
14,
-1,
2,
-9,
2,
25,
-23,
24,
-23,
-22,
-10,
-21,
54,
-10,
20,
-29,
-46,
8,
43,
63,
11,
-13,
-3,
-25,
1,
29,
-14,
-58,
-18,
45,
-10,
-8,
77,
-3,
-41,
21,
24,
21,
-16,
9,
-61,
37,
4,
11,
-15,
0,
15,
-11,
-51,
19,
30,
-19,
6,
-59,
-7,
25,
-4,
-52,
-60,
-20,
-12,
-27,
-21,
-31,
50,
-7,
-10,
-23,
16,
1,
-23,
-49,
15,
-4,
-13,
48,
-3,
-1,
22,
-23,
-15,
-17,
16,
22,
33,
2,
22,
21,
-27,
19,
15,
56,
4,
25,
-11,
2,
38,
15,
-7,
-34,
29,
37,
11,
-16,
17,
-20,
27,
-20,
-3,
27,
50,
-5,
14,
17,
43,
-10,
26,
-29,
0,
-10,
0,
-5,
12,
-26,
71,
-26,
-34,
-12,
49,
22,
7,
-5,
12,
7,
11,
-40,
-21,
33,
-4,
4,
55,
7,
37,
2,
29,
-24,
28,
28,
-32,
2,
7,
-16,
-39,
-37,
66,
4,
-16,
14,
1,
16,
-38,
-43,
18,
12,
27,
22,
0,
44,
-21,
-6,
2,
-12,
29,
-3,
35,
13,
-16,
-1,
6,
-20,
20,
-18,
4,
-55,
-12,
11,
14,
0,
-12,
16,
-5,
17,
44,
-6,
-8,
-45,
-47,
-35,
-50,
6,
-28,
31,
-15,
52,
-27,
-21,
32,
-27,
52,
-26,
-9,
21,
-39,
-2,
26,
-4,
9,
20,
-40,
-24,
6,
-4,
-4,
-17,
-1,
9,
0,
30,
3,
-44,
15,
-12,
-15,
-56,
-22,
-26,
-4,
26,
-5,
49,
20,
0,
-30,
-54,
-10,
29,
-55,
-1,
4,
-31,
-12,
21,
14,
30,
16,
-6,
37,
65,
-40,
7,
7,
-31,
-87,
6,
-17,
24,
7,
-12,
-35,
45,
18,
-33,
0,
-26,
20,
-21,
7,
7,
12,
-10,
50,
-4,
25,
-5,
-14,
-1,
26,
-48,
-40,
0,
-14,
-24,
-8,
-13,
43,
-22,
23,
-34,
52,
-14,
-27,
32,
13,
7,
-1,
-37,
-2,
39,
-14,
-60,
1,
55,
-22,
19,
5,
16,
-4,
-11,
2,
10,
-3,
22,
13,
8,
3,
-52,
-15,
-18,
-29,
16,
12,
-33,
-26,
14,
-19,
10,
40,
7,
-4,
-4,
-16,
8,
3,
-9,
-20,
-12,
22,
0,
20,
-34,
6,
15,
11,
24,
-22,
7,
-2,
-35,
24,
-18,
18,
-14,
26,
3,
-41,
4,
27,
18,
-38,
22,
30,
5,
-6,
-4,
-52,
-8,
-6,
-20,
26,
10,
56,
-47,
-15,
8,
-32,
-19,
27,
32,
-11,
0,
-12,
-43,
66,
0,
26,
-19,
21,
49,
8,
-7,
-20,
-15,
0,
42,
25,
-23,
55,
-42,
-24,
-25,
8,
-23,
-17,
10,
-44,
0,
-3,
-19,
-14,
18,
-1,
-1,
-49,
20,
15,
-7,
1,
13,
47,
50,
49,
-37,
-26,
-50,
3,
-8,
66,
-25,
30,
7,
15,
-21,
50,
1,
-16,
0,
-62,
11,
-4,
-26,
-21,
27,
5,
35,
-35,
-19,
-17,
19,
-7,
-37,
36,
-4,
-20,
21,
-33,
-22,
-17,
31,
38,
54,
8,
3,
-44,
-50,
-8,
-40,
-3,
-15,
-10,
-6,
21,
35,
-26,
11,
32,
41,
-60,
-65,
-25,
15,
-3,
-25,
49,
-21,
-3,
4,
-33,
61,
-9,
18,
48
] |
Per Curiam:
I. The order was appealable. Such an appeal was sustained in People v. Simonson, 10 Mich., 335.
II. The respondent’s appointment as receiver having been determined, by this court to be utterly void for want of jurisdiction, it was lawful and proper for tbe court below, Avhich, by making tbe appointment, had deprived the defendants in said cause of the lawful custody of their property, by an order that was unauthorized and void, to order the person into whoso hands it had unlawfully placed it, to restore such property to the parties from whom it had been taken, and to place them as nearly in statu quo as the nature of things would permit. And it was competent for the court to enforce such order by proceedings as for contempt.
III. In so far as the respondent had expended the money of the company, which he had received in conducting the business, in the payment of expenses, and the salaries of employes for which the company would be holden, there being no objection urged to the allowance of these expenditures, it is proper he should be credited for them. But the charge for his own compensation was not a proper one to be allowed to come out of the fund thus collected.
Order affirmed, with costs. • | [
-24,
-42,
-21,
21,
12,
15,
8,
9,
-24,
22,
29,
10,
-2,
4,
-30,
-36,
-36,
12,
7,
-19,
24,
-33,
-16,
11,
-19,
-76,
22,
27,
17,
17,
-28,
-3,
1,
-17,
27,
32,
-21,
14,
14,
6,
8,
-21,
34,
-4,
-17,
-1,
-4,
-18,
-27,
-35,
71,
27,
4,
10,
56,
15,
-21,
-4,
-8,
12,
-34,
-6,
5,
11,
31,
-2,
-9,
15,
-26,
14,
-39,
70,
15,
14,
68,
-19,
12,
-20,
9,
46,
28,
-45,
-3,
-30,
-15,
39,
-4,
15,
-24,
-11,
-2,
45,
-43,
-61,
-46,
31,
43,
-37,
2,
4,
30,
-65,
35,
18,
17,
-11,
3,
17,
-23,
-1,
-4,
-28,
2,
-48,
-71,
41,
-25,
-30,
10,
-13,
31,
17,
32,
-26,
36,
1,
45,
-17,
-16,
39,
0,
58,
-74,
-49,
-14,
-26,
-3,
-24,
-18,
-33,
-2,
9,
16,
-5,
-32,
-24,
55,
0,
2,
-36,
15,
51,
7,
66,
18,
-1,
27,
-50,
46,
-19,
24,
9,
-35,
-24,
61,
-9,
38,
6,
14,
33,
37,
-16,
-60,
-8,
-8,
10,
-23,
-8,
-33,
-62,
22,
39,
-6,
-3,
36,
-8,
-6,
15,
41,
-64,
-16,
-17,
44,
49,
30,
24,
46,
15,
15,
-9,
-48,
-6,
-34,
32,
13,
-11,
14,
-59,
1,
-12,
-20,
44,
-16,
-33,
-28,
-38,
-26,
-57,
-5,
-6,
-11,
-12,
-6,
-27,
-41,
-41,
20,
36,
-17,
36,
-20,
52,
3,
19,
-9,
-91,
49,
14,
3,
-44,
-18,
26,
4,
-28,
-10,
-10,
10,
19,
24,
26,
-36,
-25,
28,
54,
-5,
-33,
-47,
38,
-15,
-20,
4,
8,
-30,
60,
18,
-27,
-19,
55,
-30,
-17,
-27,
32,
21,
-26,
18,
-9,
-28,
10,
24,
-27,
17,
-3,
34,
-20,
-69,
-16,
20,
-4,
20,
33,
17,
11,
24,
-32,
59,
27,
-21,
4,
-20,
-29,
-35,
-2,
43,
31,
33,
39,
0,
11,
-66,
-34,
-8,
-1,
-32,
-47,
51,
17,
-82,
7,
-67,
-7,
25,
-18,
5,
-35,
-14,
-11,
13,
-26,
18,
-29,
-17,
17,
-26,
-47,
19,
5,
20,
-1,
24,
25,
-12,
-16,
-53,
-52,
-4,
5,
19,
-28,
6,
20,
-25,
17,
-32,
88,
76,
26,
9,
-23,
-33,
84,
52,
-47,
8,
-78,
-2,
15,
-30,
10,
-6,
17,
9,
-7,
-25,
-29,
-26,
0,
-55,
11,
-35,
0,
-10,
-59,
30,
20,
9,
-34,
-44,
60,
-29,
-10,
0,
37,
4,
16,
-25,
-18,
-53,
-1,
20,
38,
-31,
53,
-45,
21,
2,
-29,
22,
-2,
4,
37,
-18,
14,
30,
9,
1,
21,
61,
-5,
78,
-2,
47,
-52,
19,
26,
12,
3,
8,
20,
10,
5,
-42,
-35,
38,
-12,
-2,
27,
-29,
-53,
-31,
27,
-2,
-39,
-32,
52,
-16,
22,
-17,
-31,
3,
-8,
-3,
-26,
16,
22,
16,
-2,
9,
5,
18,
21,
58,
-26,
23,
-1,
13,
3,
56,
44,
29,
12,
-22,
-15,
-20,
17,
-27,
-27,
0,
20,
20,
11,
-1,
23,
-16,
-7,
-59,
15,
4,
1,
-34,
38,
-11,
3,
-53,
13,
38,
-38,
-8,
-7,
-33,
-34,
8,
7,
55,
26,
29,
-54,
-11,
-76,
9,
-21,
-7,
2,
36,
37,
-14,
19,
-4,
12,
49,
25,
-6,
0,
-65,
-6,
18,
42,
-6,
6,
35,
3,
-15,
5,
12,
-19,
-8,
-7,
-12,
-48,
4,
-22,
-52,
69,
-6,
48,
49,
56,
2,
12,
2,
-16,
-25,
7,
-4,
15,
27,
-37,
3,
7,
42,
-16,
-52,
28,
2,
12,
45,
-38,
-16,
-19,
35,
52,
32,
0,
16,
60,
-5,
-37,
30,
-21,
-18,
-69,
-14,
11,
-4,
-25,
4,
-8,
-17,
-23,
50,
-15,
-43,
2,
24,
-18,
-30,
-22,
-5,
-41,
55,
60,
-57,
2,
-66,
-44,
-22,
-35,
17,
53,
-4,
-26,
-10,
31,
19,
-50,
-69,
-25,
10,
-11,
37,
25,
17,
22,
-4,
26,
22,
-31,
23,
-9,
-5,
42,
39,
-7,
30,
40,
0,
48,
17,
12,
-34,
9,
28,
-18,
-34,
-59,
28,
-13,
62,
36,
34,
70,
-14,
30,
-10,
18,
5,
-26,
-15,
-18,
43,
-23,
-23,
-51,
4,
9,
-1,
32,
-43,
28,
54,
-13,
-43,
-16,
0,
37,
9,
21,
-20,
-20,
-76,
-2,
-49,
-18,
-30,
35,
-8,
27,
17,
-13,
-9,
30,
8,
0,
-23,
-43,
12,
-52,
17,
17,
6,
0,
-38,
3,
3,
12,
34,
10,
-10,
29,
8,
61,
0,
-4,
-11,
18,
9,
-6,
4,
5,
-30,
2,
34,
-21,
34,
55,
1,
33,
-15,
-23,
-33,
-34,
3,
7,
48,
23,
-24,
-50,
-16,
-68,
-34,
-14,
23,
29,
44,
9,
-42,
35,
50,
10,
-31,
17,
41,
-3,
-37,
4,
-26,
6,
-12,
18,
-20,
-5,
-5,
18,
-50,
38,
-8,
15,
-25,
3,
-32,
-68,
-26,
-38,
42,
1,
29,
-5,
28,
12,
26,
6,
-21,
-28,
22,
103,
1,
-62,
25,
-34,
-56,
27,
31,
-49,
16,
-4,
-16,
-25,
38,
-56,
38,
-9,
-64,
29,
14,
-2,
-10,
20,
-39,
-13,
-24,
-49,
38,
-39,
-20,
1,
5,
0,
-3,
26,
-37,
-11,
7,
22,
51,
13,
-21,
-40,
5,
-34,
7,
51,
-15,
-10,
-32,
24,
-16,
-11,
49,
-21,
17,
-22,
-52,
-27,
-36,
36,
59,
25,
-104,
20,
-7,
-13,
1,
-15,
24,
12,
12,
-6,
-14,
-24,
48,
-12,
-2,
49,
6,
-10,
1,
-10,
-19,
-7,
33,
4,
18,
35,
15,
-18,
-41,
31,
49,
-16,
-11,
-16,
13,
25,
-43,
-30,
35,
9,
34,
-8,
-46,
39,
17,
-10,
-34,
33,
23,
10,
23,
-52,
-2,
1,
-36,
36,
-20,
11,
10,
30,
-17,
-18,
-20,
28,
13,
20,
-5,
17,
47,
32,
48,
-9,
29,
-66,
0,
-20,
-23,
5,
-4,
-25,
34,
-51,
10,
-6,
-25,
-7,
4,
32,
24,
-55,
5,
1,
-31,
36,
-35,
-35,
-37,
-5,
31,
13,
-49,
22,
-2,
-8,
-15,
29,
26,
-9,
-30,
-27,
-52,
-41,
-33,
-49,
-69,
-1,
36,
-17,
22,
58,
-2,
-29,
0,
12,
26,
-13,
-16,
-13,
12,
-42,
9,
-43,
7,
10,
1,
-23,
-19,
-20,
12,
-23,
-14,
-11,
-3,
-55,
53,
-6,
22,
-7,
-13,
2,
-6,
8,
35,
-13,
19,
22,
-27,
-46,
2,
9,
11,
47,
-42,
-72,
24,
-25,
17,
58,
-5,
1,
-16,
32,
2,
6,
1,
-20,
24,
38
] |
Cooley, Oh. J:
I. Several of the errors assigned relate to matters regarding which a liberal discretion must be allowed to the judge conducting the trial, or there could never be an end to litigation. Of this class was the ruling of the circuit judge in permitting the plaintiff to show what his sales were for the year 1873. The objection to this was, that the showing-covered some time which was previous to the publication complained of. It might have been better, perhaps, if the judge had limited the shoAvifig 'to a period beginning with the publication, but no harm could be done by allowing it to embrace the whole year, unless the parties were precluded from drawing out the facts in detail afterwards, so as to enable the jury to distinguish between the business before and after the publication appeared. It is claimed that this Avas the fact, because after the plaintiff had testified that the year 1873 Avas not so good a year for the piano business as 1872, the defendants were not permitted to ask him whether, if the publication had not been made, he would have sold as many pianos in 1873 as in 1872. But this again must be regarded as a discretionary ruling. The plaintiff had shoAvn that 1873 was a bad year for the piano business, and the conclusion that his sales would have fallen off in consequence was one the jury could draAV as well as he could. It is not claimed that the court excluded any facts which could properly form the basis for an opinion; and if not, Ave cannot say there Avas error in not requiring the plaintiff to express his opinion upon the facts. Neither do we discover any error in the charge on this branch of the case. The jury were instructed in substance that they could award no damages for the falling off in plaintiff’s business, unless they were satisfied it was in consequence of the publication complained of.
II. It is objected that the plaintiff was allowed to shoiv that those who sold pianos of a particular make were called in the trade, “agents,” though they bought and sold on their own account. The importance of the showing appears from the declaration, in Avhich the plaintiff is described as agent. But there can be no legal objection to such evidence. It is always competent to show that a particular word has acquired a peculiar meaning in a certain business, and to construe it accordingly, when it is made use of in reference to that business. — Coit v. Commercial Ins. Co., 7 Johns., 385; Child v. Sun Mut. Ins. Co., 3 Sandf., 26; Bancroft v. Peters, 4 Mich., 619. Besides, it appears that the plaintiff had exclusive rights Avithin certain territory, and sold one class of the pianos on commission; and we are inclined to the opinion that the court might properly take notice of a general custom to designate persons doing business in that manner as agents. But on the other ground the ruling is clearly sustainable.'"
III. Complaint is made that plaintiff was allowed to put in evidence other publications than the one counted upon, but like it, which were made on the same or the following day. But this was competent, as bearing on the question of malice. — Plunkett v. Cobbett, 5 Esp., 136; Finnerty v. Tipper, 2 Camp., 72; Macleod v. Wakley, 3 C. & P., 311; Wallis v. Mease, 3 Binn., 546; Inman v. Foster, 8 Wend., 602; Kennedy v. Gifford, 19 Wend., 296; Bodwell v. Swan, 3 Pick., 376; Baldwin v. Soule, 6 Gray, 321; Smith v. Wyman, 16 Me., 14; Williams v. Miner, 18 down., 464. It is said that some of them were not shown to have been made by authority of the defendants; but this objection was not taken on the trial, and we must presume the proper showing was made.
IV. The question to the plaintiff, what was the comparative number of Steinway and Knabe pianos sold by him from 1865 to 1867, seems to us proper. The defendants had undertaken to show that plaintiff while selling both pianos had recommended the Knabe as best, and this was important to their defense. The answer to this question might have some tendency to rebut that showing, and on that ground was competent.
V. The charge of the court, that to make out a defense. the truth of the publication must be proved just as it is charged, and that proving the truth of part of the charge is not a defense, was excepted to, as was also the refusal of the judge to charge, that if the jury believed certain witnesses for the defense who were named, they must find a verdict for defendants. The witnesses named were called for the purpose of showing that plaintiff, while selling both pianos, recommended the Knabe as best. Their testimony was not very direct, and we cannot say that if believed it would establish that fact, and therefore we think the court was right in refusing the instruction requested. He was clearly right in the instruction given.
VI. The judge charged the jury that “malice is to be presumed from the publication, and its falsity; that to rebut this presumption defendants must prove that they made the publication in good faith, believing it to be true in all its essential parts, and for a proper purpose.” Defendants insist that the purpose is immaterial, if they believed what they published, and made the publication in good faith. This might be so'if the publication had been true; but good faith cannot protect a false publication; nor can one excuse himself for making a mistaken assault upon his neighbor’s reputation by showing the absence of malice, when, even had his charge been true, there was no proper purpose in bringing the matter to public notice. If one makes an attack which the occasion does not justify, there is no injustice to him in requiring him to show its truth.
VII. The defendants requested the court to charge the jury, that they might consider a certain advertisement of the plaintiff preceding the publication complained of, and if they found that advertisement provoked such publication, they might consider it in mitigation of damages. The advertisement contained no reference to the defendants, and was only a very boastful proclamation of the merits of the Steinway pianos. The judge was right in holding that this was no provocation for a libel.
VIII. It is alleged for error that the judge refused to charge, that unless the jury should find that the publication complained of occasioned an actual injury and loss of trade to the plaintiff, then, under the declaration, which only alleged such injury, the plaintiff could only recover nominal damages. That might be true if the words had not been actionable per se; but being so, if the jury found they were maliciously published, the jury could not, whatever the proof as to the influence upon business, be thus limited in their verdict. In many cases it is impossible to show actual dam ages, and yet substantial damages are not only awarded, but arc strictly just. The case of a charge against a woman of want of chastity may be taken as air illustration. Such a charge is almost necessarily injurious, and when falsely made should be severely visited; and yet in very many cases no special damages could possibly be shown.
IX. The judge was requested to instruct the jury, that a certain letter by the plaintiff in which he had spoken of selling the Knabe pianos “for the best,” was an admission that he had sold them as superior to the Steinway pianos. But that would have been a forced construction. Things may be “best,” in the sense of ranking in the very first class, without being superior to each other, and one piano may be best for one purpose, and another for another. The letter seems to have been- called out by some charge conveyed to Mr. Knabe that plaintiff was recommending the Stein way pianos as 'superior to the Knabe pianos; and while by implication at least it denies that charge, it is not clear that it goes further.
No error is discovered in the record, and the judgment must be affirmed, with costs.
The other Justices concurred. | [
-14,
-20,
51,
-5,
0,
-9,
30,
-8,
-17,
25,
0,
9,
-7,
49,
29,
-42,
18,
24,
-2,
-11,
27,
-17,
-60,
17,
1,
21,
13,
30,
8,
21,
52,
16,
-15,
26,
-63,
45,
5,
3,
5,
-14,
32,
5,
4,
-10,
1,
-21,
11,
-25,
46,
-28,
32,
-27,
9,
-14,
-7,
-10,
0,
42,
-26,
-10,
-6,
0,
50,
-50,
16,
-23,
6,
-50,
0,
-18,
-58,
-35,
-11,
1,
-36,
-50,
-1,
-11,
-29,
4,
-8,
-53,
37,
-15,
24,
11,
29,
-21,
2,
-37,
19,
17,
-15,
-7,
8,
31,
41,
7,
0,
-38,
27,
-23,
-49,
28,
-21,
38,
-39,
-17,
4,
-22,
11,
39,
11,
-2,
-7,
6,
28,
39,
-26,
-23,
9,
16,
11,
-2,
-16,
15,
-17,
35,
-31,
4,
-20,
36,
-42,
-9,
19,
-6,
-41,
-16,
-14,
-15,
38,
-8,
-15,
10,
-10,
-1,
6,
3,
-31,
14,
-20,
12,
5,
43,
-8,
-54,
-6,
-71,
43,
-39,
16,
11,
-11,
-26,
16,
19,
-8,
-24,
-15,
3,
-61,
-21,
0,
-22,
8,
12,
34,
-60,
-13,
15,
-45,
11,
7,
6,
0,
-31,
-20,
1,
15,
19,
33,
13,
-1,
-13,
29,
-25,
-20,
58,
35,
-56,
-5,
-45,
-31,
1,
-2,
29,
-23,
2,
-36,
49,
-42,
16,
19,
-55,
-15,
-24,
-60,
-32,
-41,
20,
-20,
-2,
-18,
-31,
-18,
-30,
57,
30,
7,
46,
-47,
47,
8,
-24,
16,
-27,
12,
-24,
10,
8,
-10,
-10,
-28,
15,
-20,
23,
8,
-24,
21,
-5,
-7,
-13,
22,
17,
-32,
-37,
6,
-6,
-60,
-23,
10,
95,
-44,
38,
4,
-42,
47,
-9,
-3,
19,
-35,
-70,
8,
59,
2,
-26,
-11,
-21,
6,
-3,
-8,
-17,
1,
-5,
-36,
33,
24,
19,
0,
38,
56,
-17,
-40,
-18,
32,
29,
0,
25,
1,
-2,
-20,
-5,
19,
23,
9,
10,
-56,
-2,
-20,
-8,
-59,
-32,
2,
14,
22,
23,
-51,
-5,
26,
-44,
20,
10,
10,
20,
-2,
-26,
71,
-101,
5,
-16,
18,
12,
15,
-4,
-5,
-36,
39,
-32,
-22,
17,
27,
-8,
-14,
-10,
-13,
33,
9,
-5,
-18,
27,
3,
-4,
0,
15,
44,
-15,
19,
-29,
-41,
7,
32,
3,
49,
-35,
0,
7,
-4,
6,
11,
51,
-21,
13,
-10,
-12,
-60,
-43,
41,
-4,
0,
73,
4,
-17,
-7,
-24,
-38,
2,
-8,
-46,
-12,
16,
-48,
22,
25,
28,
-5,
29,
2,
12,
-22,
0,
-10,
39,
-9,
-29,
22,
27,
-14,
22,
-5,
35,
23,
1,
17,
-10,
-21,
7,
37,
-49,
-13,
-10,
0,
-28,
-3,
6,
9,
-38,
21,
27,
8,
3,
-39,
-12,
-13,
-92,
-48,
-6,
2,
8,
9,
4,
9,
25,
-38,
16,
21,
11,
10,
49,
31,
5,
-12,
-19,
10,
17,
28,
38,
20,
-61,
-24,
29,
70,
13,
0,
14,
14,
-14,
23,
-52,
12,
19,
2,
-2,
33,
15,
-56,
30,
-10,
-29,
11,
-20,
-9,
31,
25,
8,
-60,
-37,
-39,
-19,
-47,
8,
15,
-13,
22,
-14,
-47,
-24,
-1,
-14,
-27,
46,
-4,
-15,
30,
-25,
19,
-24,
33,
-47,
22,
25,
18,
-20,
27,
17,
13,
-56,
20,
22,
-22,
41,
49,
-26,
-28,
20,
-32,
1,
-27,
7,
33,
-23,
24,
50,
-30,
-35,
28,
42,
18,
-12,
9,
28,
-25,
66,
19,
37,
-1,
-12,
-9,
0,
23,
-4,
10,
-45,
22,
0,
-6,
15,
29,
24,
63,
-11,
-8,
21,
3,
-1,
40,
-6,
-11,
-25,
33,
-14,
-5,
-27,
5,
5,
-49,
-23,
-15,
22,
39,
-4,
-62,
4,
12,
-27,
2,
-31,
-5,
45,
44,
9,
5,
-31,
16,
0,
27,
6,
-34,
9,
38,
16,
-2,
-1,
-7,
-29,
9,
17,
-40,
47,
9,
-14,
29,
-27,
-11,
-15,
37,
9,
-5,
-7,
16,
3,
5,
2,
-13,
29,
20,
21,
-17,
24,
-56,
39,
-24,
-41,
0,
10,
-22,
41,
22,
38,
-34,
42,
-3,
-9,
37,
-24,
4,
57,
5,
18,
8,
-25,
25,
-32,
33,
-32,
-19,
17,
8,
-48,
12,
-2,
5,
-15,
-26,
-5,
23,
31,
-14,
-8,
-20,
8,
23,
-6,
21,
25,
0,
2,
0,
15,
27,
12,
57,
17,
53,
-2,
7,
3,
7,
-52,
25,
22,
-33,
-6,
-15,
-20,
-38,
28,
41,
16,
11,
-81,
10,
-20,
-11,
32,
0,
-5,
-32,
-23,
4,
-4,
7,
5,
14,
-14,
17,
-20,
18,
18,
-86,
-31,
2,
-27,
32,
-26,
7,
49,
47,
43,
14,
-14,
-27,
4,
-6,
-7,
-16,
79,
17,
-62,
-1,
-8,
20,
-4,
10,
-23,
-15,
26,
15,
-1,
-12,
10,
21,
53,
81,
-23,
-9,
21,
-13,
5,
-12,
-45,
10,
10,
-15,
4,
6,
32,
-28,
-24,
-16,
-27,
-18,
-27,
0,
-17,
-19,
49,
31,
13,
24,
-13,
48,
-30,
-1,
36,
34,
-16,
24,
31,
40,
11,
47,
-39,
-40,
-7,
-29,
-7,
-12,
-28,
10,
-16,
20,
10,
42,
50,
-28,
-10,
0,
-39,
32,
-6,
-14,
-16,
-14,
-70,
-6,
-43,
-1,
1,
-28,
-22,
-9,
21,
12,
26,
28,
-27,
0,
5,
42,
21,
59,
-49,
-8,
49,
28,
16,
1,
-9,
6,
-36,
2,
-8,
-36,
88,
51,
10,
-20,
5,
-26,
-23,
-12,
25,
-3,
-34,
-6,
-9,
-15,
-38,
26,
37,
-15,
3,
-7,
-11,
44,
9,
-34,
43,
50,
0,
-23,
66,
37,
-30,
-7,
23,
-27,
-16,
-17,
-42,
-11,
-32,
-42,
22,
-3,
7,
45,
-56,
-39,
-1,
6,
-23,
4,
-6,
1,
-44,
9,
-19,
39,
-11,
2,
2,
12,
55,
31,
21,
-7,
-5,
-34,
-5,
53,
-29,
19,
-35,
19,
41,
16,
4,
-31,
-4,
27,
-4,
-8,
-8,
-3,
-31,
16,
-4,
7,
8,
12,
-26,
8,
-7,
24,
-11,
-54,
-44,
-32,
14,
-27,
-44,
43,
17,
-57,
-25,
-42,
14,
-15,
-8,
-22,
48,
-37,
25,
-39,
0,
-2,
-11,
15,
-8,
-6,
39,
29,
-49,
14,
9,
24,
8,
-12,
-30,
32,
3,
-5,
-18,
-45,
16,
33,
-24,
-28,
-1,
27,
-20,
-29,
4,
16,
-45,
-19,
37,
14,
-69,
11,
-43,
7,
5,
-36,
-6,
1,
16,
6,
-29,
-21,
-15,
28,
-63,
-1,
-49,
5,
-18,
-13,
-21,
-37,
-10,
12,
43,
-16,
-3,
20,
9,
8,
-49,
30,
83,
-42,
6
] |
Campbell, J:
Hunt replevied from Strew a billiard table and four balls and a box of cue tips, which Strew held on an execution levy on a justice’s judgment against Abner S. Brown, and which it was also claimed had first been attached in the same suit.
The billiard table had once been owned and used by Brown in a hotel in Schoolcraft village. The balls, cloth, and some other small articles, were not identified in the same way, and reference will be made to them hereafter. On the 24th day of June, 1872, Hunt purchased the hotel and furniture, and claims to have purchased the billiard table, which was then in the house, but not put together. On this same day the attachment in question was issued and claimed to have been levied on the billiard table as it was then in the building, taken apart. It never was moved or disturbed by the constable until after the execution was levied under the judgment. When this last levy was made the constable found the table in use, and took the cloth, balls, and other articles, which were not in the building at the first levy.
Hunt went into possession of the hotel on the 25th of June, and soon thereafter leased ..it to one Kingsbury, who occupied it when this suit was commenced. He afterwards procured the balls, cloth and other articles, from Brown, who had them in Goshen, Indiana, where he had gone to take possession of the property which Hunt had traded with him for the hotel. The billiard table was then set up, and Kingsbury allowed to use it. On the 11th of September, 1872, the execution was levied under a judgment rendered in the attachment suit the day before. Hunt then replevied.
Judgment went against him for the amount of this execution lien, and the case comes up on error.
Hunt was the first witness on his own behalf, and gave an account of the transactions as far as necessary. He was asked on cross-examination certain questions as to whether the property had been taken on an execution in favor of the plaintiffs in attachment, Kirby and Fanckboner, and the questions were allowed. We can see no reason why they were improper. They were relevant to the issue, and it.was not sought to show the contents or validity of the execution, but only to identify the transaction.
Objection is also made to several successive rulings, ad mitting in evidence the attachment writ, bond, judgment, and execution. It is claimed the whole proceedings were void for want of jurisdiction, because the writ was not shown to have been properly served and returned. No objection is made to the affidavit on which it was granted.
When the writ was offered in evidence it appeared to have had an endorsement as follows: “Inventory of goods seized by the above attachment, — one billiard table.” The objection made to the introduction of the writ was, that there was no proper inventory. It was not objected that there was no return. The objection to all the subsequent proceedings was the same.
The judgment was rendered on an appearance of the parties, and the writ contained a personal summons clause. The proceedings were admissible as a basis for the execution, whether there had been an attachment levy or not, and were not void on that account. This objection, then, being-pointed only to the regularity of a step in no way essential to the jurisdiction of the justice to render judgment in the cause, was not ivell taken, because the execution levy was in issue, and the evidence was necessary and pertinent to show that the execution was regular, whether there had been an attachment properly levied or not.
An objection was also made to certain testimony of Kingsbury concerning admissions of Hunt of his knowledge of the attachment. The objection urged is, that knowledge of it obtained after his purchase would not defeat it. But whether this be so or not, there was further testimony given by Kingsbury that Hunt admitted he had purchased both after and subject to the attachment. This made it relevant, if it would not have been otherwise.
Bildad Bennett, who acted as Brown’s attorney in the attachment suit, was asked on cross-examination, whether he did not tell one of the judgment creditors when the judgment was rendered, that he could defeat that judgment, but had made up his mind to let him take judgment. This was ruled out.
The object was, as now stated, to avoid the judgment by showing fraud and collusion of the attorney. It was open to plaintiff to show there was no service of process made out, and that the attorney appeared without authority. Neither of these was attempted, and no intimation of such a purpose was given at the time. Without some such announcement the testimony was clearly immaterial, and it had by itself no tendency whatever to show either collusion or any defect of jurisdiction. It rather negatived collusion.
It is also objected that the appraisal in this suit was improperly received as evidence of value. We had occasion to consider this hi Worthington v. Hannah, 23 Mich. R., 530; and in Walrath v. Campbell, 28 Mich. R., 111. Such evidence is not very conclusive; but under the circumstances of this case we cannot hold it inadmissible, and it may be questionable whether if it had been, the error could be. alleged as prejudicial. The defendant recovered judgment for a lien of a small sum, the execution claim being about twenty-five dollars and interest. The plaintiff, by suing his writ out of the circuit court, asserted a value of more than one hundred dollars, and the record shows he got possession, for which he must have accepted and acted on the appraisal as the measure of his bond. It would be unreasonable now to hold this did not tend to show a value equal to that recovered.
It is also claimed to be error that the court charged the jury that if plaintiff had leased the property replevied to Kingsbury, the lessee, and not the lessor, would have the right to rejilevy during the lease.
Whatever may be the right of a general owner to sue wrong-doers for interference with his title, we do not think he can sue in replevin where another person has the only right of possession. The action of replevin is possessory, and although under our statutes, where a return is not had, the damages are regulated by the rights of the litigants, yet there is nowhere any indication of an intention to allow any one to recover as plaintiff who is not entitled to tlie possession. The affidavit is required to show such a right, and the whole system contemplates it. We do not understand the contrary doctrine to be maintainable under such, a statute, and we have found nothing to authorize it in any case. None of the cases cited on the argument maintain any such theory. — See contra, Putnam v. Wyley, 8 J. R., 434; Bruce v. Westervelt, 2 E. D. Smith, 446.
We think there was some evidence tending to show an attachment levy on the billiard table, and also some evidence which was admissible to go to the jury that plaintiff bought it of Brown while in Indiana, and with notice of the action of creditors. We cannot say, therefore, that there was nothing to justify the court in permitting the fact of the attachment, and the question of fraud against creditors, to go to the jury.
There are, however, some other questions on which we think the court erred.
George Fanckboner was allowed, against objection, to relate a conversation with the wife of plaintiff in his absence, wherein he states her to have made several remarks concerning what Brown had sold ' to her husband, indicating that the billiard table was not included. This was hearsay, and her statements could not bind her husband in any way. There was no foundation laid for it as impeaching testimony.
The court also allowed the jury, if they found that under the term “billiard table” was ordinarily included the cloth, balls, and other things necessary to its use, to regard them as covered by the inventory on the attachment levy. This was qualified by the condition that they must have been in fact included in the seizure.
But there was no evidence tending to show that any property was attached but the disjointed table. Upon this the evidence is positive from the officer, and from every one who speaks on the subject at all. There being no- testimony to support the charge, it was misleading and erroneous.
The remaining questions are not likely to arise again. For these errors the judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
7,
-12,
4,
5,
-68,
5,
-31,
5,
25,
-1,
57,
36,
-4,
14,
14,
21,
5,
2,
-40,
20,
25,
3,
-29,
-24,
15,
2,
16,
22,
-28,
13,
49,
4,
-17,
29,
-14,
46,
14,
18,
-32,
-33,
-19,
36,
2,
-12,
4,
19,
8,
-31,
33,
-25,
33,
-45,
3,
-17,
-30,
-28,
-28,
29,
-13,
41,
45,
-50,
4,
-34,
11,
-16,
54,
-29,
0,
-53,
9,
-6,
-18,
21,
-14,
-2,
5,
-32,
-36,
-25,
-8,
2,
-20,
-14,
-33,
-3,
23,
11,
25,
12,
-22,
-5,
-23,
-4,
12,
32,
46,
37,
29,
-14,
-52,
1,
-51,
-36,
15,
21,
46,
-28,
-25,
11,
36,
10,
40,
30,
-19,
1,
4,
-72,
-20,
0,
39,
7,
21,
-26,
-5,
-40,
-1,
-35,
-5,
37,
-35,
-15,
-19,
-7,
5,
6,
-27,
-1,
-29,
-42,
31,
0,
-12,
0,
-6,
8,
6,
51,
-53,
46,
-7,
-26,
-1,
50,
61,
-6,
7,
-12,
16,
4,
-16,
-1,
-24,
-82,
11,
13,
24,
-58,
-2,
18,
-7,
34,
46,
63,
45,
40,
-18,
-17,
-59,
4,
-46,
26,
40,
3,
42,
-37,
7,
-18,
14,
62,
5,
-28,
-4,
49,
-24,
2,
-5,
-14,
10,
-5,
9,
-38,
6,
-45,
19,
-26,
44,
-14,
-8,
-4,
-7,
36,
-5,
-35,
-43,
17,
-25,
-42,
-3,
4,
-39,
22,
-15,
28,
-58,
-36,
53,
33,
49,
-17,
-58,
34,
8,
-42,
-6,
-36,
-22,
-8,
13,
-4,
-4,
-19,
-65,
-19,
42,
18,
-11,
37,
-59,
-3,
-21,
29,
14,
29,
-5,
4,
8,
20,
-1,
-17,
-20,
0,
-31,
-9,
20,
7,
31,
-23,
9,
95,
0,
-30,
54,
28,
1,
-58,
0,
40,
42,
-42,
8,
-11,
0,
22,
-18,
-13,
-6,
-71,
-42,
-13,
-9,
33,
1,
0,
31,
7,
0,
0,
37,
-41,
-25,
22,
9,
-21,
9,
36,
39,
27,
-10,
-39,
-12,
-47,
-7,
1,
20,
-6,
-5,
12,
14,
-22,
-48,
-47,
-11,
-5,
-20,
-47,
13,
-43,
-6,
-12,
-28,
-3,
18,
-56,
-18,
35,
24,
-24,
9,
4,
8,
-38,
55,
-4,
-9,
-16,
63,
7,
-34,
7,
-40,
-33,
-55,
13,
11,
-14,
25,
14,
31,
30,
43,
42,
13,
-52,
-7,
-54,
-7,
-34,
41,
38,
25,
0,
15,
-10,
-12,
33,
-44,
-53,
-2,
-6,
-12,
30,
40,
-31,
23,
-5,
-8,
-14,
11,
79,
-17,
-7,
14,
-1,
6,
-28,
-26,
21,
-4,
-40,
5,
38,
-20,
-38,
-37,
-25,
-23,
27,
33,
27,
-21,
28,
-1,
-8,
33,
-2,
-33,
-24,
-8,
-15,
10,
-54,
19,
-37,
27,
-23,
-31,
5,
-10,
-19,
-18,
-12,
18,
-3,
-31,
-5,
-13,
27,
-20,
18,
-26,
-71,
-38,
13,
26,
34,
20,
32,
28,
6,
4,
-8,
-6,
-4,
23,
24,
40,
-21,
36,
-52,
53,
-29,
-38,
27,
55,
38,
-54,
-2,
-53,
33,
41,
16,
27,
12,
-32,
10,
76,
10,
16,
-18,
83,
83,
47,
47,
-21,
-62,
-51,
-11,
-3,
5,
-12,
-47,
-9,
-25,
-32,
43,
1,
28,
-41,
22,
-44,
-36,
-5,
-15,
16,
8,
-36,
-63,
50,
73,
7,
-3,
-20,
-18,
7,
-13,
54,
-33,
-36,
-10,
55,
10,
-39,
21,
-30,
-17,
14,
-4,
3,
-52,
-33,
19,
-65,
-12,
-10,
-47,
-25,
-10,
15,
-8,
-36,
37,
72,
24,
-58,
21,
15,
-29,
-21,
14,
-14,
14,
51,
-13,
-29,
-17,
8,
-6,
-4,
-4,
-27,
-13,
11,
-7,
13,
-6,
-27,
-4,
17,
-1,
-11,
3,
29,
-1,
-14,
16,
-24,
17,
5,
39,
-50,
-7,
7,
-8,
43,
-11,
15,
49,
-3,
37,
3,
-26,
1,
-26,
-2,
30,
-17,
26,
4,
-19,
-21,
-13,
38,
-2,
22,
-15,
-3,
11,
2,
49,
42,
-32,
31,
-41,
-41,
48,
15,
-25,
-21,
40,
10,
-19,
-25,
19,
66,
-40,
-29,
25,
7,
-68,
-42,
-20,
22,
64,
-51,
-23,
17,
-3,
-20,
-31,
6,
-17,
10,
-6,
-22,
47,
-27,
13,
-29,
-1,
-48,
4,
38,
37,
-41,
23,
-20,
44,
-1,
-7,
-38,
4,
-17,
6,
45,
18,
30,
-40,
-3,
-14,
14,
2,
33,
-24,
-17,
0,
-54,
-16,
37,
-10,
20,
-14,
2,
-48,
12,
52,
14,
0,
3,
-19,
-18,
-37,
-12,
-15,
33,
49,
16,
-82,
-35,
-73,
-10,
-11,
-3,
10,
16,
-39,
-5,
-42,
-6,
-55,
-25,
7,
-5,
-36,
-41,
27,
-17,
10,
-75,
34,
16,
-8,
63,
4,
0,
8,
-17,
17,
-12,
-37,
19,
-49,
27,
-8,
7,
16,
-40,
-38,
-3,
-32,
-46,
-16,
-4,
-4,
-24,
-10,
0,
32,
56,
-16,
45,
16,
2,
-35,
10,
16,
6,
-21,
-4,
-57,
-11,
61,
9,
-55,
-28,
38,
11,
34,
6,
1,
15,
-27,
-14,
10,
-6,
15,
43,
-13,
6,
-21,
-4,
-38,
-51,
32,
-16,
12,
-41,
43,
-12,
23,
0,
-34,
-34,
14,
-23,
-50,
-1,
-7,
-16,
13,
-32,
42,
9,
36,
13,
0,
52,
-9,
-20,
-28,
-14,
28,
42,
-21,
-16,
-13,
1,
-24,
29,
-23,
5,
19,
-68,
12,
27,
-71,
-37,
-28,
-58,
28,
6,
12,
-26,
12,
61,
-26,
-3,
4,
-14,
47,
-16,
35,
34,
56,
-11,
-42,
28,
54,
0,
3,
17,
41,
-25,
-29,
-63,
34,
28,
6,
52,
3,
-17,
-15,
-7,
-26,
22,
45,
40,
0,
53,
-53,
8,
5,
-8,
12,
-7,
58,
-10,
5,
-3,
-6,
-13,
-55,
-25,
25,
19,
0,
24,
-93,
6,
31,
-16,
0,
46,
-22,
27,
0,
3,
7,
42,
-60,
-6,
25,
-11,
10,
41,
-22,
23,
32,
-29,
17,
54,
9,
-11,
17,
11,
-2,
-9,
41,
-30,
-34,
31,
24,
21,
31,
0,
-9,
15,
-23,
-31,
63,
-16,
9,
-36,
4,
15,
34,
-6,
-6,
-25,
35,
30,
-38,
-11,
13,
-10,
25,
12,
9,
6,
57,
-34,
-11,
28,
56,
-49,
-28,
-16,
22,
0,
0,
-7,
-4,
5,
-56,
25,
8,
-21,
29,
0,
0,
-38,
-13,
-10,
-24,
-6,
26,
37,
5,
-11,
-26,
24,
13,
5,
-8,
1,
27,
-21,
8,
66,
12,
20,
-26,
-35,
46,
-12,
-34,
0,
54,
-2,
-5,
39,
-1,
29,
2,
45,
0,
-5,
45,
-19,
-51,
-34,
-29,
28,
21,
-7,
34,
-34,
27,
3,
-88,
43,
-30,
20,
25
] |
Campbell, J:
Moote filed his bill to redeem from Seri ven two parcels of land in Clinton county, one being the northeast quarter of section eighteen, and the other the southwest quarter of the southeast quarter of section seven, in town seven north, of range two west. The bill claims that Scriven’s interest is only a mortgage interest, aud offers to repay the amount due.
Tiie equities concerning the two lots are not identical, although asserted as arising under a single train of dealings. The court below" held that a right of redemption existed in the parcel of forty acres on section seven, but not on the rest. It will be proper to deal with this first.
On the 6th day of May, 1871, the redemption of this lot was running out on a statutory foreclosure of a mortgage controlled by Josiah Upton. Upton had made a partial arrangement to transfer his title to Samuel S. "Walker and one Cutler, but on the application of Moote, and for his advantage, he agreed to transfer it to Scriven, who was to give Moote time upon it. Scriven paid one thousand two hundred and ninety-eight dollars and ninety-four cents to Upton, besides some expenses, and received conveyances which gave him title in fee simple. He agreed to wait on Moote, as he says, one year, and as Moote claims, indefinitely, in consideration of twelve and a half per cent, to cover interest and expenses. Scriven claims the transaction was an agreement for a resale.
There is some difficulty in supposing that Scriven or Moote understood this to be a mortgage, in the proper sense of the term. No obligation rested on Moote to repay Scriven’s advances, and he retained possession of the premises and used all that he got from them for his own advantage, without ever accounting for either principal or interest. No payment was ever made to Scriven in reduction of the debt. And it does not appear in any part of the case that the parties, after the first purchase by Scriven, made or recognized any definite bargain, except that Scriven was desirous of having a written contract, and Moote was not disposed to make one. There can be no doubt from the whole case that Moote was to have the property back at some time and on some terms, and the answer admits a bargain to sell on one year’s time. As no further incumbrances were bought up to protect this tract, and the statement in the answer does away with any difficulty under the statute of frauds, we think that time was not so far of the essence of the contract as to prevent its present enforcement upon equitable terms. The court below, in its decree, allowed Scriven only seven per cent, simple interest, and allowed nothing for his expenses., This was not equitable. Wo think the twelve and a half per cent, was not too large an allowance for the interest and original expenses and trouble about the business, as the extra two and a half per cent, did not nfuch exceed thirty dollars, and that' ten per cent, interest should be allowed annually thereafter. On these terms we think he should be allowed to obtain back th.e premises. The whole case is so involved in contradictions that it is not easy to tell just what was agreed upon, and probably there was no very definite understanding. But there is no doubt at all that Scriven never would have advanced his money on less favorable terms, and without that. advance Moote would have lost his land entirely. An agreement to sell is more in accordance with all the facts than a mortgage, and it would be grossly inequitable to allow a redemption on any conditions lesá favorable to Scriven, who has not been dealt with very fairly, and has received no advantage fram the transaction, which was not of his own seeking.
The other property is very differently situated. In April, 1871, Scriven held a claim against Moote secured by a chattel mortgage on growing Avheitt upon both these tracts. Moote had made this mortgage in February, 1871, on the assurance that he had a good title to the land. As a matter of fact his title to the one hundred and sixty acres on section eighteen had been sold on execution and the redemption had expired, so that Moote had no further interest in the land. The execution title was held by one Gibbs, who also had a subsequent mortgage on the premises. The time for redemption by judgment creditors had not yet passed, and Moote confessed judgment in favor of Scriven, Avho then redeemed from Gibbs, but Avas in turn cut off by a subsequent redemption by one Babcock in the interest of Gibbs. An arrangement Avas then made between Moote and Scriven, Avheroby the latter was to purchase the title and give Gibbs a mortgage for the amount due him, Moote giving his note for the debt. It Avas agreed that upon Moote’s repayment of the advances and interest, Scriven should convey his title. Upon the question of time there is a direct conflict. Scriven says the payments AA'ere to be made in two years. Moote claims the advance Avas to be repaid-without limit of time. From time to time thereafter Scriven had to advance further sums to pay off the Gibbs mortgage and other incumbrances and claims, until his advances had reached a large sum, and Moote, though holding the land and getting the proeeedsj had done nothing to reduce the debt, and had not paid interest.
Under these circumstances, in April, 1874, the lot on section eighteen was sold on some earlier mortgages on chancery sales, and bid off by Scriven. Moote claims that this purchase whs also made under an arrangement for liis benefit, and that the whole interest of Scriven is that of a mortgagee.
■ Upon what took place before the chanceiy sales there is a downright contradiction between the parties, which is not much cleared up by the other witnesses. ' Moote makes it out a continuance, though by special arrangement, of the old arrangement whereby Scriven was to advance money and hold security on the lands. Scriven denies it entirely.
The original arrangement bears no resemblance to a mortgage. Moote had no interest in the land whatever. The dealings amounted only to a verbal agreement with Scriven to advance money to purchase lands and to remove incumbrances on them, which he was ultimately to transfer to Moote on repayment. There was nothing which could have been enforced by specific performance, as Moote was all the time in possession, and there was no act of his to his own prejudice Avhich Avould amount to a part performance. He had never been able to perform, and by reason of his neglect Scriven had been compelled to make advances beyond any agreement for his oavii protection. The whole circumstances render it very improbable that he would go on any further in this way. He Avas obliged to buy in the property at the chancery sales to save Avhat he had already paid out, and even if ho had been a mortgagee, it is not easy to see why he could not buy up such a title if he chose and hold it like any other purchaser, inasmuch as it was a legal sale of the mortgagor’-s equity, which any one could buy unless estopped.
Without; discussing the conflicting proofs, there is not only no evidence of a bargain conforming to the statute of frauds, whereby Moote was to have any interest, but there is not, as we think, convincing proof of any bargain at all. We think that whatever may have been the state of things before, the chancery sale cut off all previous equities, but we do not think that the previous transactions indicate any very strong equities. The dealings throughout show Moote to have been slack and entirely disregardful of his obligations; and Seriven does not appear to have acted unfairly or oppressively in any instance. It is not surprising that his patience had become exhausted. He was under no obligation to consider his own rights subordinate to the convenience of Moote.
The decree below, refusing redress to Moote concerning any supposed rights in section eighteen, must be affirmed, and the decree as to the forty-acre lot on section seven modified so as to require Moote to pay interest at the rate of ten per cent, from May 6th, 1871, on the amount of one thousand two hundred and ninety-eight dollars and eighty-four cents, and also two and a half per cent., or thirty-two dollars and forty-six cents, with interest at the same rate of ten per cent., Seriven to recover costs of both courts.
The other Justices concurred. | [
35,
16,
-1,
-17,
-16,
14,
26,
-28,
27,
54,
55,
14,
18,
12,
44,
23,
6,
-32,
-77,
28,
-26,
-57,
3,
2,
14,
-28,
21,
14,
-12,
20,
49,
7,
-35,
53,
-23,
6,
-28,
36,
6,
-41,
-16,
-21,
26,
-13,
-11,
28,
-6,
-87,
2,
7,
-2,
-29,
-14,
-3,
-12,
7,
-26,
-27,
-65,
20,
22,
-28,
-33,
-18,
-12,
39,
-13,
-17,
23,
-38,
0,
-9,
25,
-21,
42,
-34,
21,
5,
19,
-19,
-29,
-47,
24,
-16,
-73,
35,
-15,
-27,
61,
12,
20,
-20,
13,
-2,
28,
80,
25,
15,
-14,
28,
14,
-53,
-56,
-12,
-25,
-30,
-17,
-59,
-21,
49,
15,
-3,
25,
-42,
-37,
5,
-20,
-36,
-24,
1,
-3,
19,
-20,
54,
-32,
10,
-82,
-26,
-21,
2,
-10,
-40,
-72,
23,
-13,
-37,
13,
-13,
-16,
-19,
-5,
-30,
-15,
-58,
-39,
8,
-10,
-24,
0,
-4,
-43,
12,
-8,
16,
38,
-40,
40,
2,
-20,
-35,
31,
-21,
28,
-28,
-21,
14,
19,
-34,
-11,
-20,
35,
44,
-30,
-16,
16,
-19,
25,
-19,
-14,
-42,
-28,
42,
4,
-7,
17,
-22,
-12,
37,
31,
14,
4,
-16,
34,
-38,
9,
28,
-40,
-21,
-20,
3,
-26,
-32,
25,
36,
-7,
-54,
74,
-16,
-34,
7,
-60,
13,
-41,
-37,
-28,
40,
-14,
-23,
7,
-10,
73,
36,
28,
22,
-64,
-19,
3,
9,
4,
-28,
-30,
-5,
-23,
-25,
-22,
-2,
-2,
15,
-15,
10,
-24,
-1,
24,
-39,
-6,
5,
-16,
-10,
12,
38,
-45,
-27,
-30,
17,
7,
9,
-21,
45,
-2,
-53,
-14,
28,
4,
-27,
-15,
-65,
12,
9,
0,
23,
10,
0,
26,
54,
-52,
-13,
-8,
8,
-44,
-28,
71,
-10,
23,
36,
47,
42,
-7,
23,
2,
-11,
31,
-40,
43,
4,
-29,
17,
-13,
-9,
86,
-7,
2,
-64,
4,
-16,
13,
15,
-6,
-28,
-21,
-42,
37,
-38,
-9,
6,
54,
-24,
-7,
42,
-21,
-39,
51,
-6,
12,
-34,
82,
15,
35,
-54,
-29,
42,
-64,
1,
4,
0,
-5,
-12,
28,
-5,
-60,
-21,
-7,
20,
4,
-2,
72,
-6,
0,
-8,
-14,
24,
-45,
32,
-27,
69,
-11,
3,
7,
15,
-10,
21,
47,
37,
0,
-10,
10,
-8,
-26,
-3,
34,
-23,
7,
5,
15,
-20,
-8,
-1,
-32,
-23,
-19,
-8,
12,
-19,
-9,
9,
58,
13,
-24,
-31,
-8,
-7,
-12,
-33,
-26,
8,
-6,
-30,
-17,
-88,
-38,
-41,
17,
0,
-7,
0,
-42,
21,
-14,
7,
-3,
0,
38,
-53,
23,
-28,
3,
-8,
-14,
-15,
9,
39,
34,
-5,
-1,
-40,
25,
-16,
-10,
19,
-17,
-9,
-29,
38,
20,
-5,
23,
-24,
-17,
23,
-34,
32,
-14,
4,
15,
25,
10,
-32,
-68,
-10,
52,
-7,
0,
-11,
-2,
34,
-57,
29,
2,
-40,
53,
-76,
95,
4,
-30,
-51,
40,
-10,
-19,
-25,
2,
1,
-11,
35,
27,
-7,
17,
3,
7,
9,
6,
0,
0,
15,
-36,
-7,
-25,
-52,
-52,
7,
1,
13,
41,
-2,
41,
-2,
15,
-30,
-24,
-14,
-7,
49,
11,
-14,
24,
14,
28,
21,
15,
11,
33,
57,
24,
-17,
12,
25,
-1,
67,
27,
8,
39,
7,
39,
-32,
-30,
-10,
-28,
23,
32,
28,
29,
-39,
-32,
-30,
-61,
-34,
-9,
-10,
-5,
33,
41,
-38,
-74,
35,
25,
11,
-73,
49,
35,
-50,
-39,
2,
-34,
6,
40,
15,
-13,
10,
-32,
-66,
17,
-16,
-26,
24,
-16,
-57,
-8,
-28,
24,
-19,
-48,
36,
-3,
-25,
20,
0,
9,
-52,
-42,
-21,
26,
27,
-42,
-28,
-12,
-42,
-2,
36,
-33,
39,
16,
11,
-45,
24,
14,
35,
-11,
14,
36,
31,
-14,
28,
-47,
26,
-46,
-4,
71,
-20,
-43,
36,
12,
40,
-5,
12,
19,
56,
26,
-19,
33,
25,
17,
11,
39,
19,
-52,
-20,
3,
-15,
37,
1,
-7,
62,
8,
-10,
10,
47,
-61,
-13,
50,
14,
-25,
32,
-2,
-9,
-77,
-21,
-30,
61,
-67,
-8,
29,
-24,
-50,
7,
29,
9,
38,
45,
5,
20,
23,
-17,
68,
-39,
18,
37,
6,
-28,
40,
1,
0,
27,
33,
-44,
33,
16,
36,
6,
31,
39,
9,
-26,
-3,
-5,
30,
10,
-17,
40,
0,
6,
-21,
19,
54,
18,
-29,
12,
-7,
-6,
11,
41,
18,
13,
68,
26,
-10,
-2,
-18,
0,
-20,
3,
-17,
-16,
28,
46,
37,
-18,
-17,
-16,
3,
9,
1,
-28,
7,
-32,
15,
-28,
3,
-22,
14,
14,
-24,
38,
-29,
40,
-37,
16,
-68,
16,
15,
51,
-7,
-46,
-84,
31,
-24,
37,
-31,
36,
-21,
10,
-15,
31,
20,
2,
-30,
1,
2,
-29,
-39,
-40,
-2,
-30,
12,
23,
-33,
46,
20,
-3,
-44,
-34,
15,
-15,
12,
24,
-26,
35,
51,
-19,
34,
30,
6,
12,
-22,
-31,
-27,
-5,
-2,
-41,
6,
28,
53,
14,
-22,
11,
7,
38,
-57,
17,
24,
-12,
19,
2,
-9,
4,
-7,
15,
37,
-11,
15,
25,
-36,
5,
-28,
-34,
4,
-15,
-5,
11,
30,
9,
8,
1,
-10,
24,
-17,
-5,
-37,
52,
22,
0,
-54,
41,
10,
-10,
-48,
45,
26,
-53,
-13,
21,
-9,
-16,
-28,
-5,
2,
9,
45,
-17,
14,
4,
-35,
-17,
-27,
-11,
2,
-21,
-40,
-26,
-8,
7,
30,
28,
33,
21,
1,
31,
56,
-44,
7,
46,
-12,
20,
-11,
-12,
-29,
1,
19,
44,
17,
-19,
29,
-5,
-34,
-12,
-30,
27,
5,
29,
20,
-43,
39,
33,
-42,
-31,
2,
7,
-19,
-30,
-48,
-28,
6,
-37,
-25,
15,
-7,
-15,
-5,
-17,
45,
4,
22,
48,
22,
-19,
-17,
-73,
-76,
32,
-3,
-23,
15,
26,
24,
43,
-14,
-19,
-26,
8,
42,
-26,
30,
37,
-11,
38,
-28,
23,
1,
-18,
-8,
-6,
-36,
32,
39,
42,
3,
32,
-42,
35,
0,
-25,
5,
6,
-39,
-1,
47,
12,
-13,
3,
-57,
-24,
-1,
0,
-33,
65,
13,
-52,
3,
45,
8,
20,
-22,
-44,
-4,
-10,
-26,
-1,
42,
12,
1,
-33,
-36,
-15,
31,
-22,
-30,
57,
-9,
47,
14,
31,
-11,
11,
33,
-15,
30,
10,
38,
8,
-6,
31,
14,
-19,
2,
-23,
-2,
28,
-8,
-20,
56,
42,
32,
-94,
-44,
30,
35,
0,
-11,
0,
-1,
0,
7,
-54,
32,
-2,
-46,
38
] |
Campbell, J:
Parker was sued on a subscription for stock of the Northern Central Michigan Railroad Company. The subscription was made December 27, 1869, in the following terms:
“ We, the undersigned, in consideration that the Northern Central Michigan Railroad Company shall proceed in the building of said road, hereby agree to pay to said company (for which we shall haye paid up stock of the company), the amount set to our names, to be paid twenty per cent, a month, ’ beginning when the work shall haye been commenced.” The amount was two hundred dollars. The declaration avers that work was commenced August 1, 1871, and afterwards completed; and that in April, 1872,-stock was tendered, and that plaintiff below was ready and willing to perform.
Several questions are presented on the record, the most important of which relate to the nature and consideration of this instrument.
Some points are made upon the preliminary steps for the organization of the company, but we do not regard them as important on this record. The subscription, if valid otherwise, recognizes the corporation, and its existence cannot be disputed.
The principal inquiry is, whether a valid contract is alleged and proven. To establish this it is necessary to show not only a . promise by Parker, but a meeting of minds of both parties and a consideration valid in law to maintain the promise.
Under the railroad law in force when this company was organized, the original stock subscriptions were to be made upon books opened by commissioners, and a subscription made in the manner pointed out by law gave the subscribers such a right to stock as bound the company, and furnished a consideration for the undertaking of the parties signing. But it has been held uniformly that the subscribers were only bound when the company was bound, and that no unilateral subscription could be upheld. And as the statute did not create any obligation on the corporation, unless upon subscriptions regularly made, no others could be enforced unless they were made upon some actual consideration or agreement binding the company. — See Carlisle v. Saginaw Valley & St. Louis R. R. Co., 27 Mich. R., 315; Shurtz v. Schoolcraft & Three Rivers R. R. Co., 9 Mich. R., 269.
It appears in the present case that the subscription sued upon was not taken by commissioners. It must, therefore, if valid, rest on some positive consideration proceeding from the company. And the question arises whether this is alleged or proved.
Upon considering the declaration, which was amended after one jury had been sworn and discharged, and on which there has since been another voluntary nonsuit upon a trial before the one now under review, we may assume it represents the ease on which plaintiff below was prepared to rely as to what could be established. And we find the declaration and the proof equally defective in the same direction.
The averments in the declaration fail entirely to make out any contract, and merely sliow a subscription or promise not alleged to have been within the statute. It alleges merely that Parker signed his name to this paper; and this, with the consideration alleged, is set forth as follows: “that defendant, being- desirous that said company should proceed in the' building of its road from Jonesyille to Albion in this state, in consideration thereof, by the name and initials of C. T. Parker, did subscribe and sign his name to the following agreement.”
This may, perhaps, by a liberal construction, indicate that the building of the road was to be the consideration for the promise, as mentioned in the first part of the subscription. Whether that would suffice or not might depend somewhat on whether the company were already bound to build it. But there is no averment that they undertook to build it in response to the subscription, or in reliance on it, directly or indirectly, or that in building it afterwards they did it in such reliance.
Neither is it averred that this subscription was got up or signed in response to any proposition of the company, nor that the company or its agents ever prepared or sanctioned it. There is no averment directly or inferentially authorizing the conclusion that it was ever delivered to or accepted by, or in any way recognized- by the company or any authorized agent, at any time whatever.
We have then no more than the signing of a paper on the one side and the building of a road on the other, but nothing to show that the one was in any way caused by or dependent on the other. There is an averment of a tender of stock, which is not, however, connected with any statement that an undertaking to furnish it formed the consideration of the contract or any part of it, and which tender, whether made or ready to be made, was repudiated on the trial as unnecessary to be shown, and as aside from the actual consideration.
It is very clear that there could be no contract for stock or any thing else unless the company was bound as well as Parker. The subscription as alleged is not set forth as an offer, but as a present undertaking, and is declared on as an agreement from its date. But whether complete or to be made complete by subsequent acceptance, one or the other must be alleged and must be proved. The objection was pressed on the trial very strenuously that the promise was voluntary, but no amendment was made to obviate it.
Upon inspecting the proofs they indicate very plainly the same defect. There is not any evidence of a single resolution or other act of the company, or its board, authorizing the subscription or accepting it as a contract by which they were to be bound. And there is no legal evidence that we have discovered that it was ever delivered to the company or acted upon. Its history seems to be this, as far as it can be inferred.
The subscriptions were got up by a volunteer movement among citizens, stimulated by persons interested and who in some instances may have been officers, but who did not act as agents, or in an official capacity.
William H. Brockivay was the only important witness for the company, and no attempt was made on his direct examination to trace the subscriptions into the possession of the company, or to show any corporate recognition of them. He was cross-examined, and although he gives some impressions that the papers at some time or other came into the hands of the board or some of the officers, there is nothing which amounts to proof that the board ever received or accepted them. He seems in June, 1871, to have obtained an assignment of all the floating assets of the company and claims this subscription among the rest. This is all that appears.
The plaintiff did not claim to have shown any actual delivery or acceptance, but relied upon the presumption arising from its possession at the trial. The court, upon this question, charged the jury as follows: “I advise you further, that the subscription book, being produced here by the plaintiff, is evidence that it was delivered to the plaintiff, and conclusive in tbe absence oí evidence that it was wrongfully obtained by the plaintiff.”
As -the suit appeared to have been brought by Brockway, the plaintiff’s name being used for his benefit, the incorrectness of sucb a ruling iu regard to such a paper is manifest. The necessity of proving the mutuality of the agreement made it necessary to show distinctly when and how the company was bound, and possession by the corporation itself long after suit commenced would have been of no avail to raise a presumption of seasonable liability. And when it was shown the paper was originally got up and held by strangers, it became necessary to account for it and trace it.
As both declaration and proof are fatally defective on the very existence of an agreement, it would be improper to discuss the important and complicated questions which would arise if its complete execution bad been made out.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
31,
4,
7,
-59,
5,
78,
14,
-16,
50,
34,
0,
19,
31,
8,
20,
36,
-51,
-38,
6,
32,
-16,
-8,
6,
-37,
-27,
30,
-11,
25,
7,
-14,
39,
30,
-51,
22,
-20,
-11,
-14,
-40,
-29,
-19,
18,
9,
34,
-4,
16,
0,
32,
2,
-9,
-78,
47,
6,
-26,
-36,
-54,
27,
11,
9,
-53,
32,
-60,
-46,
32,
-23,
10,
21,
35,
23,
44,
-22,
-45,
32,
-12,
21,
34,
28,
-5,
-37,
-40,
-12,
-31,
-6,
-10,
-62,
-62,
54,
-19,
-9,
39,
25,
-8,
-24,
-38,
17,
27,
67,
-47,
8,
-27,
-9,
65,
19,
-22,
-47,
-8,
3,
6,
-32,
-40,
-15,
-39,
-18,
-3,
-27,
-34,
-22,
-35,
-12,
50,
-43,
-8,
11,
-18,
34,
7,
-7,
-21,
-3,
-50,
37,
9,
-20,
-43,
46,
19,
11,
22,
-34,
28,
-8,
10,
16,
8,
-19,
-17,
-16,
-8,
7,
-3,
-15,
-14,
21,
29,
3,
-26,
-10,
43,
-6,
65,
-57,
48,
-9,
-8,
-24,
-55,
36,
-17,
3,
-2,
38,
-36,
-2,
7,
-43,
26,
13,
-4,
-54,
-11,
0,
-12,
-3,
13,
9,
-15,
9,
35,
-9,
61,
3,
50,
-40,
-21,
27,
-32,
6,
14,
-38,
37,
6,
36,
-67,
-30,
30,
-77,
-29,
48,
29,
9,
-11,
13,
65,
-11,
9,
-4,
46,
-16,
-42,
8,
-61,
-6,
-30,
19,
65,
-27,
-45,
22,
0,
-47,
-27,
-12,
38,
29,
-14,
-45,
16,
12,
-55,
6,
-8,
2,
-32,
-34,
0,
9,
-56,
-31,
-16,
-15,
45,
-44,
0,
-46,
-8,
8,
-6,
-31,
4,
-26,
-27,
6,
50,
-101,
68,
13,
-63,
2,
18,
-9,
15,
37,
0,
25,
14,
-2,
-16,
57,
-24,
-16,
0,
39,
9,
0,
29,
7,
2,
-49,
3,
-32,
25,
54,
-3,
59,
-9,
9,
57,
9,
52,
7,
-30,
-6,
2,
19,
33,
13,
39,
-64,
-5,
-14,
-50,
-33,
3,
-29,
-39,
49,
-3,
21,
8,
11,
-46,
-3,
-28,
-13,
-29,
1,
22,
37,
-29,
-4,
-9,
4,
29,
13,
16,
-8,
-3,
40,
17,
16,
4,
5,
43,
-6,
37,
13,
-11,
7,
-67,
7,
-12,
-10,
2,
-18,
-15,
-24,
17,
16,
-1,
-13,
33,
7,
25,
49,
-48,
-1,
-36,
-45,
-13,
13,
43,
6,
23,
6,
-10,
-45,
32,
23,
37,
-36,
30,
-53,
5,
6,
7,
47,
0,
-21,
-17,
-70,
-12,
-27,
-27,
-31,
54,
-18,
-5,
-10,
34,
8,
-32,
9,
4,
-21,
15,
73,
-45,
0,
104,
-27,
31,
29,
46,
-12,
-46,
-11,
0,
4,
14,
-5,
16,
18,
-45,
-24,
-20,
-12,
-38,
22,
-6,
-70,
-10,
-29,
1,
78,
-38,
-36,
-4,
3,
-27,
-49,
-61,
15,
54,
15,
15,
1,
5,
-6,
27,
32,
-15,
-8,
-2,
-36,
0,
-6,
31,
-6,
-40,
56,
66,
15,
15,
65,
9,
-2,
-15,
31,
-31,
15,
73,
-47,
-2,
-5,
48,
-16,
-28,
-6,
10,
-16,
39,
-46,
-9,
10,
11,
-41,
-78,
20,
-27,
8,
38,
35,
6,
-11,
6,
32,
1,
-49,
-38,
7,
65,
-13,
-19,
43,
-19,
12,
49,
-2,
-56,
20,
2,
44,
-16,
38,
-20,
20,
-9,
-26,
46,
11,
-8,
-14,
1,
-45,
-21,
-63,
41,
1,
-50,
33,
-28,
-1,
-50,
-64,
-4,
30,
-28,
31,
-6,
-25,
-23,
-23,
37,
-10,
-29,
-20,
30,
-22,
0,
15,
-5,
-38,
18,
6,
13,
-3,
6,
1,
0,
18,
21,
-8,
17,
25,
-46,
-1,
4,
-18,
46,
-9,
-61,
-11,
55,
11,
9,
-6,
0,
19,
10,
6,
-36,
14,
-2,
-48,
-21,
-13,
-74,
-29,
0,
-16,
63,
-50,
-5,
0,
2,
23,
28,
37,
44,
57,
1,
-16,
1,
-47,
-25,
-21,
8,
-40,
42,
35,
54,
-15,
-11,
37,
1,
30,
-1,
20,
12,
23,
-17,
0,
1,
1,
-9,
15,
15,
36,
16,
-19,
9,
4,
-30,
-39,
28,
-17,
-3,
27,
19,
-41,
58,
-40,
-9,
6,
13,
-1,
-9,
-56,
41,
-26,
36,
35,
21,
29,
-8,
12,
33,
19,
19,
-19,
-26,
4,
-2,
12,
50,
-32,
2,
33,
0,
42,
31,
2,
-14,
7,
0,
8,
-35,
-30,
-11,
60,
42,
0,
26,
45,
-34,
9,
-37,
9,
39,
7,
-28,
21,
-19,
0,
28,
-31,
0,
41,
6,
24,
-48,
1,
3,
-25,
-7,
9,
-9,
-58,
-23,
37,
30,
39,
-38,
9,
-2,
-39,
23,
21,
25,
-18,
-51,
67,
4,
66,
23,
18,
40,
-5,
-4,
-23,
-3,
7,
23,
-27,
-25,
50,
-2,
18,
-57,
-29,
3,
38,
-33,
-15,
0,
-48,
3,
4,
33,
-63,
51,
4,
-7,
20,
21,
73,
-6,
-56,
13,
-24,
-55,
11,
29,
-16,
8,
-11,
44,
-50,
-17,
-15,
-68,
-14,
42,
4,
-22,
32,
17,
63,
-14,
-7,
13,
54,
-28,
15,
18,
-6,
-21,
49,
54,
2,
-14,
-14,
-4,
52,
18,
-28,
-13,
23,
-26,
9,
-12,
-44,
-8,
4,
-21,
-42,
13,
-23,
-24,
-13,
31,
-30,
34,
-31,
35,
13,
33,
-20,
-14,
-36,
-10,
-38,
44,
21,
32,
16,
30,
-9,
-28,
6,
40,
60,
7,
-18,
-15,
-7,
-7,
-7,
22,
-25,
-1,
43,
-43,
-37,
-32,
-2,
3,
-61,
32,
-18,
-13,
-26,
-4,
0,
-11,
-56,
-35,
14,
-39,
9,
54,
59,
22,
-73,
38,
40,
-16,
-20,
-8,
-35,
-9,
-20,
46,
-58,
5,
-12,
10,
19,
-44,
24,
-18,
-32,
-21,
43,
-5,
3,
-24,
63,
-15,
-6,
50,
10,
-40,
4,
-7,
-13,
-65,
3,
-16,
-28,
14,
3,
34,
14,
23,
1,
14,
38,
-45,
-10,
55,
22,
-6,
-23,
-9,
-57,
39,
-12,
-4,
-7,
15,
37,
-8,
0,
-37,
-43,
79,
10,
25,
16,
-4,
11,
-27,
18,
3,
19,
-14,
15,
-41,
1,
58,
12,
9,
-41,
-10,
-40,
-4,
-40,
-24,
14,
0,
-22,
-1,
31,
11,
-36,
-37,
-36,
5,
51,
-67,
58,
58,
45,
-26,
0,
-24,
-15,
-10,
-18,
-52,
16,
11,
22,
-32,
7,
42,
-5,
-44,
2,
-54,
47,
-46,
9,
39,
21,
9,
9,
4,
0,
-24,
36,
-19,
-2,
-14,
22,
-23,
8,
14,
-30,
-51,
3,
-41,
-58,
-3,
-12,
-27,
-26,
47,
-33,
3,
-29,
30,
-18,
12,
29,
46,
-20,
9,
-4,
-8,
72,
12,
-35,
28
] |
Graves, J:
For some time before his death, John S. Barry was associated in trade with John K. Briggs, and Davis was in their service when Mr. Barry died. He continued with Mr. Briggs, the survivor, and was also for a time in the service of Briggs whilst the latter was acting as receiver.
Charles II. Barry is executor of John S. Barry, and a large beneficiary. Davis having a claim for his services in these different positions, and there being some dispute as to the amount of it, it was deemed desirable to adopt some course by which the amount might be lawfully fixed and the payment rendered certain without multiplying proceedings and inflaming the expense. This was deemed practicable through a single suit brought directly in the circuit court by Davis against Charles II. Barry, subject to the controlling force of an agreement in writing. The suit was brought, and the writing framed and executed. The result was, that Davis recovered six hundred and seven dollars and forty-five cents. Barry now asks a reversal on the ground of errors to his prejudice on the trial.
The agreement in question is a personal assumption by Charles H. Barry of the entire liability, more or less, to Davis. The mention of his executorship cannot alter the inherent quality of the arrangement. The estate could not be brought into litigation in the circuit court and be rendered subject to the liabilities and incidents of the proceedings in this way. Whatever moral or legal chances Charles H. Barry may rely on for indemnity out of the estate, the law cannot look upon this suit as one between Davis and the estate of John S. Barry. The action must find its basis and privity in the obligation between Charles II. Barry and Davis, and the suit must be regarded as one between those persons.
• Davis being on the stand, his counsel was proceeding to show by him that an arrangement existed between him and John S. Barry for the rate of compensation for the first year, .and the judge stopped him and remarked that his opinion then was that the conversation could not be shown. His counsel then asked him what his services were worth, and the counsel for Barry objected, that it had appeared an arrangement was made and hence it was incumbent on Davis to prove what that arrangement was. This objection was followed up by Barry’s' counsel with this claim: “We ask now to cross-examine the witness upon what was said to him by John S. Barry in his lifetime, simply to inquire if there was an arrangement made and what it was.” —“We propose to examine him as to whether there was or was not a special agreement between him and John S. Barry as to what was to be paid him that year.” The court refused permission, and Davis’ counsel then asked him to state what his services were worth for that year, to which he replied: “A dollar a day was what I hired for that year.” After this ineffectual trial to interpose and cross-examine at once, as to whether Davis and John S. Barry made an arrangement, and if so, as to what it was, the counsel for plaintiff in error, as soon as the witness came under cross-examination, proceeded to make inquiries so framed as to call out the nature of that arrangement. In view of the explanation when the attempt was made to interpose, the mode of inquiry chosen, when the cross-examination was had,- was naturally adopted to elicit a statement of the nature of the arrangement between Davis and John S. Barry. Still after getting the answers the counsel was dissatisfied, and sought some time after to have them stricken out as not responsive. The rulings offered no cause for complaint by plaintiff in error, and the reasons are so obvious that we ought not to consume time in stating them.
Several errors are predicated on the rejection of an agree ment made August 2d, 1871, between plaintiff! in error and Briggs, and mentioned in the stipulation already alluded to between the parties to this cause. We fail to see how that paper could have aided either side if it had been admitted. It was made between other parties and its provisions could afford no legal explanations in this cause, and all of the matter contained in it having any pertinency whatever to what is disputed in this action is quoted in the agreement made by these parties, and the circumstance that they chose to use some of the language, when they came to make their separate agreement, is not enough. Their contract stands on its own basis and by itself, and must be construed and enforced independently. There is no ground for saying they intended the two instruments should be read together, and we see no reason why they should have intended it.
The witness Carl was allowed to answer a question which plaintiff in error had objected to on specific grounds. Error is assigned upon the ruling, but the position taken below is abandoned, and the objection now urged relates only to the discretionary province of the court in regard to the order and mode of examination. The point in any view is untenable.
The deposition of plaintiff in error was offered in evidence, and on objection the court excluded the answers- to the seventh, ninth and eleventh, and distinct parts of the tenth interrogatories. The ruling in regard to the ninth was unquestionably correct. There deponent only assumed to relate what Briggs had said in regard to the wages he was paying.
There is more question about the seventh and eleventh. In those, deponent states that Briggs told Carl in the presence of defendant in error that the latter was to have one dollar per day, and that he, Carl, was to have the same.
It does not appear that defendant in error made any reply, or that he heard the observation or was in a situation to hear it; and if it were true that he heard .it, there would still be the question, whether it required him to take notice of it and deny the statement if untrue, at the peril, if he did not, of having his silence thereafter proved against him as an admission. The remark does not appear to have been directed to him, or to have been made with any view to call upon him to speak out in any way. Under the circumstances, I am inclined to think the plaintiff in error not entitled to a reversal on account of these rulings. Before being entitled to ask the jury to infer any thing against defendant in error in the nature of an assent to, or acquiescence in the statement imputed to Briggs in his presence, the plaintiff in error should, at the least, have shown prima facie that defendant in error was in a situation to hear, and did not appear to dissent.
The answer to the tenth interrogatory purports to relate conversations between the parties themselves in regard to the rate of pay which defendant in error had agreed to accept; the plaintiff in error claiming that the price had been fixed by agreement at one dollar per day, and defendant in error contending that he ought to get more, because he could not live on such wages. The court excluded, on objection, .a portion of each conversation, and the part excluded was not only connected with the rest in sense, and proper to be read with it by the jury to enable them to set a fair and true estimate upon it, but what was so excluded related somewhat specifically to the vital question between the parties. I can find no substantial support for this ruling. Whether, in case the evidence had been let in, the jurors’ judgments would have been changed in any way in regard to the merits, cannot be known. But I discover no legal objection to it, and seeing in the nature of it something that the jury would have lawful right to consider as entitled to some weight in the scale, there seems to be no room for saying the rejection of it was not prejudicial error. For this I think the judgment must be reversed. There are no other points which require notice at this time.
Judgment reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
4,
0,
68,
-57,
7,
-12,
-4,
-80,
8,
24,
8,
-26,
7,
-34,
-19,
-32,
-10,
-12,
-24,
-53,
43,
-7,
-1,
25,
36,
-8,
9,
-3,
-7,
-35,
22,
41,
-9,
0,
-14,
24,
-4,
-24,
0,
-44,
0,
-34,
61,
20,
26,
42,
15,
-51,
-3,
-83,
-26,
5,
54,
-17,
55,
19,
-12,
32,
20,
-28,
-24,
-82,
-13,
-69,
-42,
1,
43,
14,
25,
8,
-26,
-22,
67,
32,
52,
-38,
55,
-44,
-15,
-18,
19,
29,
24,
-24,
-64,
35,
27,
-19,
17,
20,
14,
43,
21,
15,
-26,
30,
13,
25,
-30,
44,
17,
-38,
-58,
-16,
14,
-23,
-2,
-44,
16,
40,
-13,
26,
25,
-6,
-88,
-35,
36,
-51,
-29,
49,
-3,
-13,
0,
-15,
-47,
49,
6,
-27,
-23,
-39,
56,
-24,
-21,
3,
-46,
-24,
-62,
-53,
-20,
-30,
6,
-13,
-27,
-15,
-19,
-37,
-30,
-13,
-40,
7,
-10,
10,
3,
-25,
32,
26,
25,
-17,
58,
-18,
70,
12,
26,
-16,
-31,
9,
-14,
-13,
8,
19,
-26,
-29,
10,
9,
28,
21,
-12,
-4,
-61,
-6,
-11,
7,
2,
-23,
7,
-54,
26,
31,
-31,
16,
-36,
35,
11,
24,
-8,
8,
28,
-6,
39,
16,
-27,
42,
-18,
81,
-7,
4,
7,
5,
-25,
2,
-13,
12,
-6,
-35,
-40,
14,
-27,
-17,
-27,
-8,
31,
-2,
12,
36,
-42,
-75,
-6,
-9,
36,
-18,
-27,
-5,
-50,
0,
-9,
10,
-10,
24,
-48,
-18,
3,
-11,
-55,
5,
27,
-45,
51,
25,
0,
29,
-46,
17,
42,
14,
-12,
-21,
8,
26,
-32,
-44,
-28,
35,
-40,
28,
6,
-33,
-24,
13,
69,
64,
12,
-68,
0,
-14,
23,
-25,
-57,
13,
-76,
-105,
-9,
9,
-13,
0,
-7,
10,
-3,
8,
11,
57,
40,
9,
16,
-26,
56,
-11,
47,
60,
1,
-73,
-26,
-22,
5,
-12,
49,
16,
-27,
13,
-12,
-11,
-13,
-1,
-48,
-31,
72,
25,
-8,
-5,
31,
-39,
0,
19,
2,
-10,
0,
23,
47,
-21,
49,
-6,
-23,
49,
15,
-29,
-14,
-25,
57,
25,
-6,
-2,
36,
23,
5,
-74,
-31,
-58,
44,
-14,
-12,
16,
-27,
6,
-4,
26,
-11,
47,
21,
17,
0,
26,
26,
-36,
54,
25,
-12,
-3,
-9,
2,
23,
12,
50,
51,
-6,
-48,
1,
36,
-10,
0,
-13,
10,
-14,
-35,
-7,
-10,
16,
-42,
-64,
38,
-28,
38,
-26,
32,
9,
15,
-51,
92,
-25,
-17,
-42,
-13,
25,
32,
-34,
-22,
-28,
-21,
-18,
-17,
59,
-9,
6,
15,
33,
16,
-4,
5,
3,
-42,
11,
52,
32,
4,
-3,
-19,
35,
-18,
28,
24,
2,
-44,
-19,
16,
41,
12,
4,
-5,
-32,
9,
-74,
49,
24,
2,
-2,
60,
-18,
27,
-22,
25,
41,
7,
19,
41,
20,
48,
0,
12,
17,
16,
-9,
-18,
32,
-7,
47,
-22,
-4,
-17,
41,
-18,
23,
12,
-45,
10,
-20,
7,
-5,
9,
-31,
-38,
1,
-8,
26,
77,
13,
-9,
-13,
37,
18,
-43,
-17,
-75,
-23,
-14,
-46,
-43,
-46,
0,
-38,
0,
-58,
-25,
-13,
7,
66,
-10,
-18,
-20,
-18,
-48,
12,
-4,
54,
-3,
20,
35,
40,
42,
6,
12,
0,
-47,
32,
-11,
-18,
-12,
17,
2,
-16,
13,
55,
-36,
-6,
14,
-15,
-62,
-4,
-23,
-2,
5,
13,
-1,
-34,
31,
-4,
14,
-54,
-46,
20,
27,
-1,
35,
10,
-32,
-11,
1,
-26,
-17,
53,
41,
33,
4,
-10,
0,
-42,
-16,
16,
-23,
-10,
43,
34,
16,
-4,
-8,
20,
45,
9,
-28,
-9,
-7,
-13,
-20,
-2,
-4,
9,
-33,
-17,
-22,
-37,
-25,
5,
43,
0,
5,
-41,
-1,
-10,
-84,
16,
-28,
26,
14,
-8,
-1,
-5,
-22,
0,
15,
44,
72,
-4,
-23,
6,
-18,
23,
-38,
-35,
12,
0,
-8,
9,
55,
5,
49,
-9,
-57,
-4,
18,
19,
-13,
-31,
20,
11,
-56,
-54,
43,
-50,
-19,
-22,
25,
1,
14,
-5,
12,
11,
-48,
-7,
-33,
5,
6,
8,
-7,
4,
-3,
29,
-31,
-39,
29,
1,
40,
-18,
28,
3,
-27,
-10,
3,
-1,
20,
-7,
21,
20,
-36,
23,
-29,
34,
6,
58,
-5,
1,
23,
48,
39,
-8,
15,
44,
-22,
35,
-7,
24,
-39,
-18,
21,
6,
-31,
-38,
-47,
-5,
22,
24,
-20,
-19,
-18,
8,
-37,
-51,
59,
-1,
-24,
-23,
25,
-65,
-18,
68,
-22,
-43,
1,
2,
14,
-26,
36,
1,
-21,
-18,
-3,
67,
-41,
-27,
-1,
5,
0,
-34,
-28,
21,
-3,
-10,
18,
-66,
23,
-16,
-70,
-26,
3,
9,
46,
12,
-3,
-3,
-57,
-53,
43,
-23,
8,
33,
-29,
-7,
9,
7,
-11,
23,
25,
-4,
-19,
-42,
38,
-15,
-7,
-45,
13,
-32,
-51,
15,
-25,
-15,
1,
1,
54,
5,
30,
29,
22,
24,
1,
-5,
20,
-18,
-5,
-24,
-55,
2,
-28,
-10,
13,
19,
-39,
9,
32,
-17,
-51,
49,
41,
42,
-10,
25,
1,
-31,
37,
50,
-33,
55,
-4,
44,
9,
10,
-32,
-9,
1,
-60,
-58,
-61,
2,
10,
58,
-10,
17,
12,
26,
37,
60,
-21,
36,
-50,
19,
-36,
-31,
-41,
-20,
42,
72,
-6,
-15,
-5,
-36,
-7,
-14,
-21,
65,
25,
38,
-11,
-6,
-25,
-32,
0,
12,
-45,
14,
-29,
-19,
-11,
-75,
10,
32,
0,
-18,
-5,
50,
59,
-10,
39,
22,
-2,
-46,
24,
16,
-38,
-3,
-53,
21,
40,
0,
21,
16,
-86,
-15,
-15,
48,
17,
-21,
61,
-62,
-9,
46,
5,
-55,
-30,
-25,
11,
-56,
47,
21,
47,
1,
-25,
-46,
-53,
-39,
3,
-11,
-25,
36,
-14,
16,
67,
-31,
-50,
-33,
7,
26,
19,
41,
14,
43,
-18,
-26,
-13,
-3,
17,
11,
71,
22,
3,
37,
-6,
76,
-31,
-4,
45,
-73,
-7,
7,
-34,
30,
50,
-34,
13,
16,
-17,
1,
4,
18,
19,
20,
8,
-3,
-11,
37,
-10,
-16,
-21,
1,
-19,
10,
63,
-34,
-33,
28,
57,
38,
49,
46,
-55,
-11,
8,
-24,
35,
-87,
18,
20,
69,
-69,
-23,
-33,
14,
-26,
-14,
82,
-5,
20,
8,
21,
-51,
9,
36,
-3,
-29,
-11,
-16,
12,
18,
28,
11,
-35,
-30,
2,
0,
63,
-47,
-14,
17,
72,
-22,
-70,
-32,
-19,
12,
-2,
-47,
49,
3,
24,
-24,
-54,
28,
41,
27,
22
] |
The Court
held that the order pro confesso was premature and irregular; that it was not proper to enter such order before the proof of service of the subpoena was made and filed; and that, under the circumstances of this case at least, good practice required an affirmative showing that defendant had not appeared in the cause; that the order pro confesso being irregular, the subsequent steps taken in the cause cannot be sustained.
Decree reversed. | [
-12,
-30,
2,
-2,
8,
-16,
-51,
12,
16,
41,
21,
11,
3,
40,
-19,
-30,
26,
29,
-2,
-36,
-40,
46,
-21,
-22,
-6,
19,
1,
4,
-27,
2,
-4,
-15,
-4,
-76,
8,
24,
-13,
16,
96,
-6,
34,
-43,
-25,
-24,
-59,
-68,
-32,
-12,
4,
-6,
19,
1,
-32,
56,
13,
32,
40,
-85,
62,
14,
0,
18,
22,
41,
-74,
49,
-76,
23,
-70,
-3,
-40,
-13,
5,
37,
13,
3,
-21,
4,
33,
14,
45,
-19,
33,
-1,
-2,
13,
-19,
-19,
-20,
-70,
1,
28,
-38,
-46,
-77,
10,
20,
-11,
18,
23,
-2,
-7,
-10,
-21,
0,
26,
-11,
-34,
-31,
-36,
42,
-32,
-7,
-78,
-30,
31,
-32,
46,
-5,
-86,
14,
30,
58,
-6,
13,
10,
50,
-3,
-37,
-22,
-21,
-4,
18,
23,
14,
2,
34,
0,
-19,
-28,
8,
45,
0,
21,
-6,
-53,
35,
-26,
-2,
5,
-17,
18,
-14,
26,
0,
74,
-21,
-63,
-55,
-23,
-4,
30,
-38,
6,
39,
8,
-39,
51,
-13,
-32,
27,
33,
11,
-20,
18,
-36,
-15,
-32,
-6,
-11,
-5,
40,
-4,
-23,
3,
3,
-61,
36,
30,
-19,
-53,
12,
32,
108,
56,
-9,
18,
15,
32,
7,
-46,
48,
7,
33,
-4,
-33,
20,
-14,
-17,
18,
14,
-23,
-88,
-18,
-40,
-43,
11,
30,
0,
4,
-49,
52,
-8,
-67,
-34,
-31,
-8,
61,
22,
39,
5,
20,
9,
-36,
39,
-34,
-94,
14,
-20,
56,
32,
21,
-27,
16,
29,
0,
72,
2,
-2,
-45,
43,
-22,
8,
0,
0,
4,
-11,
36,
19,
13,
31,
20,
-12,
28,
-2,
-20,
56,
30,
1,
-31,
-7,
3,
25,
-22,
13,
39,
-26,
0,
4,
36,
4,
30,
-25,
26,
-46,
13,
11,
29,
29,
59,
20,
-17,
-12,
33,
5,
6,
-22,
-19,
-34,
-31,
26,
0,
16,
4,
11,
-13,
-14,
28,
-2,
-24,
17,
11,
-30,
19,
13,
49,
-82,
-40,
-35,
27,
-57,
-5,
0,
-14,
-25,
16,
47,
-4,
60,
35,
-14,
34,
14,
3,
21,
28,
-8,
29,
-94,
11,
-73,
9,
-71,
-7,
-25,
37,
46,
-15,
-3,
1,
26,
29,
-25,
16,
-18,
-33,
-74,
-42,
-18,
51,
56,
-66,
-45,
11,
19,
30,
-5,
10,
10,
75,
1,
-54,
-21,
4,
-85,
-49,
15,
-16,
-71,
24,
-32,
-57,
-19,
15,
-23,
19,
-30,
49,
-38,
-16,
34,
33,
52,
-46,
-6,
17,
3,
17,
16,
51,
-29,
33,
-10,
-7,
-58,
-49,
-35,
6,
-25,
0,
13,
6,
2,
18,
-49,
8,
41,
-32,
73,
-10,
-25,
-50,
7,
4,
10,
-7,
-83,
37,
-10,
-14,
-8,
12,
49,
-32,
20,
45,
-32,
-9,
-3,
0,
-2,
2,
-50,
1,
18,
25,
-14,
-9,
18,
0,
50,
4,
51,
-24,
8,
51,
50,
10,
19,
40,
5,
-28,
-31,
-3,
-13,
25,
-1,
0,
0,
-51,
-32,
-36,
96,
38,
-2,
-16,
-55,
-1,
-29,
-24,
8,
5,
-10,
-85,
-30,
2,
-29,
-12,
39,
7,
-56,
10,
13,
-2,
-13,
7,
1,
5,
-11,
80,
-62,
23,
7,
-10,
-1,
0,
38,
-11,
-50,
-41,
-45,
43,
39,
-14,
-2,
3,
0,
21,
-6,
36,
-3,
-10,
3,
-10,
-5,
85,
-45,
23,
-24,
-26,
8,
28,
19,
-31,
-33,
17,
-25,
-43,
15,
-16,
-39,
43,
61,
-18,
46,
45,
-2,
-4,
-35,
-17,
42,
35,
3,
2,
-30,
4,
51,
-26,
39,
-24,
-18,
15,
6,
12,
0,
-29,
-25,
7,
12,
-15,
17,
54,
-49,
49,
26,
-5,
22,
36,
-3,
-40,
34,
19,
27,
-68,
-29,
25,
-3,
-25,
22,
-61,
-44,
75,
49,
-18,
-21,
-33,
-37,
-37,
34,
25,
0,
9,
-30,
-24,
16,
-1,
52,
62,
-67,
-14,
15,
27,
2,
-31,
-10,
17,
-23,
42,
23,
15,
-61,
-31,
-29,
21,
0,
-24,
-42,
3,
46,
-36,
42,
11,
4,
29,
0,
4,
19,
-3,
-3,
-20,
31,
29,
-3,
-51,
9,
-44,
40,
22,
61,
59,
15,
60,
15,
-68,
63,
0,
-15,
-14,
50,
11,
-39,
-21,
-13,
24,
-3,
33,
-53,
9,
8,
10,
-24,
4,
-18,
-29,
-15,
39,
48,
15,
-77,
-72,
-9,
-2,
-30,
-35,
-66,
-33,
-14,
67,
-17,
-33,
20,
-14,
3,
13,
23,
-40,
26,
1,
32,
-6,
-12,
-28,
8,
4,
18,
-36,
-14,
-12,
22,
32,
-3,
15,
-11,
43,
23,
-5,
-41,
3,
-14,
-60,
43,
7,
-22,
51,
-11,
21,
-8,
19,
34,
-33,
20,
-28,
29,
42,
3,
5,
-1,
9,
-16,
56,
-25,
-23,
-24,
-19,
29,
22,
2,
29,
4,
-2,
71,
2,
0,
1,
-26,
39,
23,
-28,
-20,
47,
-8,
22,
-13,
-10,
26,
23,
-27,
7,
-44,
-29,
57,
-44,
71,
-4,
-33,
47,
-4,
-1,
75,
13,
-31,
10,
-13,
16,
32,
-70,
-5,
25,
-48,
46,
43,
-59,
1,
39,
4,
-3,
-50,
-41,
38,
28,
-1,
-33,
4,
-63,
-59,
17,
-12,
38,
0,
-45,
34,
0,
-14,
-1,
-12,
-12,
0,
-7,
25,
-4,
-18,
19,
41,
-50,
4,
1,
4,
-92,
4,
20,
-2,
24,
55,
-29,
-35,
8,
60,
2,
-14,
4,
-65,
42,
44,
10,
39,
-14,
-23,
40,
24,
-1,
23,
-53,
5,
-20,
10,
45,
-12,
-12,
4,
0,
-38,
-21,
4,
-39,
32,
-39,
-17,
24,
34,
-39,
-29,
20,
-46,
54,
-29,
45,
10,
-8,
47,
7,
10,
35,
-23,
19,
-4,
-27,
-41,
-12,
-52,
24,
68,
-13,
27,
-19,
31,
9,
-26,
-13,
-46,
31,
-20,
-26,
-36,
-48,
76,
29,
4,
10,
0,
0,
21,
25,
-42,
2,
37,
5,
32,
-10,
-31,
-54,
46,
19,
11,
28,
-7,
-38,
23,
-26,
22,
-40,
11,
-59,
37,
29,
37,
-43,
14,
3,
49,
32,
-55,
-37,
-65,
-20,
10,
11,
-51,
60,
-6,
-39,
-13,
9,
-49,
-56,
32,
48,
21,
-1,
-23,
-72,
-50,
74,
49,
24,
13,
4,
10,
39,
-54,
37,
41,
16,
-63,
-29,
-56,
-5,
-27,
7,
-12,
41,
-16,
-53,
-7,
-47,
-35,
-14,
20,
65,
-23,
-41,
48,
31,
-44,
28,
-45,
57,
-60,
-31,
-16,
22,
-40,
23,
52,
11,
3,
-15,
-19,
-15,
-40,
-19,
14,
0,
6,
41,
-10,
2,
-39,
-47,
-29,
20,
-13,
27,
15,
42
] |
Potter, J.
Petitioner seeks condemnation of respondent’s lands for widening a highway. An award was made by appointed commissioners. Petitioner filed objections to confirmation of their award, which objections were overruled. Petitioner brings certiorari. Respondent owns 20 acres of unplatted lands abutting 1,291.34 feet on the highway, in the proposed widening of which a strip 75 feet in width for the full length of respondent’s land is proposed to be taken. The commissioners awarded respondents $21,814.71 damages. Such commissioners, when appointed, are a constitutional tribunal with the same powers and duties as a jury, authorized to act in condemnation cases. Section 2, art. 13, Constitution of Michigan. They are an inquisitorial body — a tribunal of inquest. Chicago, etc., R. Co. v. Jacobs, 225 Mich. 677. They may conduct such inquiry as they deem proper without the aid or assistance of legal experts. Michigan Air Line Ry. v. Barnes, 44 Mich. 222. They are expected to view the premises and to use their own knowledge gained from such view and their experience as freeholders, as well as the testimony of witnesses as to matters of opinion. Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456; In re Widening of Bagley Ave., 248 Mich. 1. Being an inquisitorial body, a large discretion in taking testimony is vested in them (Chicago, etc., R. Co. v. Jacobs, supra), and they are the judges both of the law and fact. Fort St. Union Depot Co. v. Backus, 92 Mich. 33; Chicago, etc., R. Co. v. Jacobs, supra; In re Widening of Bagley Ave., supra. They are not vested with any arbitrary power. Like common- law juries who tried, titles to land, they are subject to supervisory control.
‘ ‘ Taking property by virtue of the right of eminent domain is a proceeding that ought to demand quite as careful oversight as the trial of any other case, for it deals with as important interests as any civil cause.” Detroit & Toledo Shore Line R. Co. v. Campbell, 140 Mich. 384.
The award arrived at either by a jury or by commissioners appointed in condemnation cases may be set aside if it is found by the court that there has been fraud or misconduct upon the part of the jury or commissioners affecting the rights of the parties; for gross errors or mistakes of the jury or commissioners; for the erroneous rejection or admission of testimony affecting the rights of the parties, for errors of such extraordinary character or grossness as furnish a just inference of the existence of undue influence, partiality, bias, and prejudice, or unfaithfulness in the discharge of the duty; when it is apparent to the court that the damages awarded are either inadequate or excessive (Union Depot Co. v. Backus, supra); where the jury or commissioners acted on a wrong basis in estimating the damages (Marquette, etc., R. Co. v. Probate Judge, 53 Mich. 217); or where the award of the jury or commissioners is based upon false principles and substantial justice has not been done in the premises. Union Depot Co. Backus, supra; Ontonagon R. Co. v. Norton, 236 Mich. 187.
Although this court may not substitute its judgment for that of the jury or commissioners, we may shear the case of speculative evidence inducing improper deductions, and determine whether compensation was awarded on a proper basis. In re Roger's, 243 Mich. 517. The proceedings here involved were had and taken under section 18, Act No. 352, Pub. Acts 1925, which provides:
“If any discontinued highway shall be upon lands through which a new highway shall be laid out, the same may be taken into consideration in estimating the damages sustained by the owner of such lands; and in like manner the benefits accruing to owners of lands by reason of laying out, altering, widening or otherwise improving any highway or of changing the line thereof, shall be taken into consideration in determining the damages to be paid to any such owner as compensation for the taking of any of his property for any such highway purpose. In each such case, the commissioner or commissioners having the matter in charge, or the court commissioners, as the case may be, shall state. such fact and the amount deducted on account thereof in the determination, or report, as the case may be; and should any special assessment be thereafter made upon such lands on account of such improvement, the owner or owners thereof shall be credited on such special assessment with the sums so deducted for benefits as aforesaid. In like manner, the court commissioners, in considering benefits, shall give to owners of lands already specially assessed on account of the improvement for which the property is being taken, credit to the amount of such special assessment, as against any allowance for benefits, in their determination of damages to be paid as compensation for such taking. ’ ’
Section 1 of article 13 of the Constitution of Michigan of 1908 provides that private property shall not be taken by the public without just compensation therefor being first made or . secured. What is just compensation therefor which must be made or secured prior to the appropriation of private property by the public?
“What the statute, under the Constitution, aims to do is to give to the owner fair value for what is taken. * * * To place him in such a position that the value of what he retains, plus the damages awarded, shall equal the value of his property before the highway was laid out. ’ ’ Township of Custer v. Dawson, 178 Mich. 367.
Just compensation should neither enrich the individual at the expense of the public nor the public at the expense of the individual. The injured party whose lands are taken should be left in as good a position as if his lands had not been taken. Fitzsimons & Galvin v. Rogers, 243 Mich. 649. The measure of compensation is the amount which the value of the property from which the right of way is taken is diminished thereby. Johnstone v. Railway Co., 245 Mich. 65. In re Widening of Bagley Ave., supra, it is said:
“Nothing can be fairly termed just compensation which does not put the party injured in as good a condition as he would have been if the injury had not occurred. In the ‘case of land actually taken, just compensation awards its value, or the amount which the value of the property from which it is taken is depreciated. Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393. Where the whole of a parcel of land is taken, the compensation to be made is the fair value of the land so taken. Where only part of a parcel is taken, just compensation is to be determined by the amount which the value of the parcel from which it is taken is diminished.”
The authorities upon which the rule above stated is based are reviewed in the opinion of Chief Justice North in Be Widening of Fulton St., 248 Mich. 13 (64 A. L. R. 1507), and we think the rule is settled.
Counsel for respondent claimed he could treat the property taken as frontage measured on a foot basis. He stated: “We are asking for frontage on a value of $60 a foot for the 1,291.34 feet that are being taken.” He insisted that the commissioners “must consider as one of the elements in the value of this land the independent value of the pieces being taken 1,291.34 feet front by an average of 75 feet deep. * * * $77,480.40 for the piece taken.” Counsel for respondents thus summed up his claims:
“I am going to ask the commissioner under the law to make a notation of our claim in this way. Value of the land, $77,480.40. You have that, I think. Value of land, $77,480.40. Benefits, $32,283.50. Under the law you must deduct the assessment from the benefits, $13,039.30. Benefits, $13,039.30. Net uncharged benefits $19,244.20. $19,244.20 deducted from the value of the land as testified to in the sum of $77,480.40 leaves a verdict that is a claim for damages in this case of $58,236.20. The State has already charged you with $13,039.30 by a special assessment against your land; taking that $13,039.30 away from the $32,283.50, this is the total benefit, leaving a net uncharged benefit of $19,244.20.
“The total value of land $77,480.40, benefits $32,283.50; assessed benefits $13,039.30; leaving a net uncharged benefit of $19,244.20, deducted from the value of the land is $77,480.40, leaves a net damage of $58,236.20.”
. Respondent’s brief filed in this court contends we must consider that respondent “hereafter has his business frontage set far back from a ‘one-way street’ behind a setting of ‘mud.’ ” Though the commissioners are judges of the law and fact, the court advised the jury as to the law. From the testimony, the claims of counsel for the respective parties, and the charge of the court, it is apparent that the parties were contending for two antagonistic rules of law upon what constituted just compensation. The authorities to support the rule in this State are above referred to..
The court charged the jury:
“It is the claim of the State * * * that just compensation * * * will be made if he (defendant) is awarded the difference between the value of his whole property as it stands now, and its value after the taking. * * * The State says that he will be justly compensated if he gets the difference in value of the property as it stands now before the taking and as it will stand after the taking. * * * The claim of the respondent is that just compensation in this case consists of the actual value, the present fair market value of the part taken. * * * The respondent * * * claims he is entitled to the value of the part actually taken based upon so much per front foot. * * * As I see it * * * a man is entitled to the present fair market value of the property actually taken.”
Of the rule contended for by respondent, Chief Justice North said in In re Widening of Fulton St., supra:
“The appellants claim that they should be paid as damages occasioned by taking the front 16 feet of their respective properties the fair market value obtainable therefor by its sale as a parcel separated from the remaining portion of the property. * * * The rule for which the appellants contend is not the correct rule by which a property owner’s damage should be assessed when only a portion of the parcel is taken. The fallacy in appellants ’ proposed method of fixing the amount of damages lies in overlooking the fact that widening Fulton street does not deprive their properties of frontage on that street, as would a sale of the front 16 feet for private use. They will still have a right of ingress and egress on Fulton' street, and their easement as to light and air on that side will still be pertinent to their properties. ”
During the proceeding counsel for respondent said:
“We submit that under the law it is very clear that we can treat it as frontage per foot, and if there is any doubt about it we are perfectly willing to have the matter taken up with the judge. ’ ’
One of the commissioners said they had had no ruling up to date, that they did not know anything about any ruling; that they expected the judge either to charge them or to give them a ruling, and we have already pointed out that the ruling upon the measure of damages was erroneous. When, however, it came to computing benefits, respondent contended his property not taken should be valued as upon the new highway, and from that value should be taken the value of the remainder without any highway at all, but 75 feet back from it, or, as the court charged:
“You will first determine * * * the value of what remains then fronting on the new highway * * * and deduct from that what you determine to be the value of the remainder as it is now, that is to say, 75 feet from a highway * * * and the difference of these two sums will be the amount of benefits to the remainder. ’ ’
In discussing the claims of the respective parties as to benefits, the court charged:
“In each of them you must first determine the value of what remains, considered as fronting on the new highway, * * *. If you adopt the State’s method '* * * you deduct from that the value of the remainder as fronting on the present highway. * * * jf yOU adopt respondent’s method, you deduct from the value of the remainder, considered fronting on the new highway, the value of the remainder without any highway at all, but being 75 feet back of the highway. * * * The reason for deducting * * # from the value of the balance on the proposed highway, the value of the balance * * * 75 feet back from the highway, is this: The respondent * * * claims that he is entitled to the value of the part actually.taken. He claims so much per front foot for the part actually taken.”
This as we have seen is not the rule.
We think it apparent from the contentions of counsel for respondents as to the method to be used in computing damages and benefits, the figures submitted by him to the commissioners, the charge of the court, and the award of the commissioners, that a different and larger award was arrived at than would have been reached had the commissioners followed correct principles of law in arriving at their award, which, for the reasons stated, is set aside.
Wiest, C. J., and Butzel, Clark, Sharpe, North, and Fead, JJ., concurred. McDonald, J., did not sit. | [
-15,
18,
22,
-44,
-22,
37,
6,
34,
-63,
28,
48,
-49,
33,
-4,
23,
-34,
51,
18,
18,
-3,
-66,
9,
6,
-1,
-18,
10,
31,
27,
1,
-41,
-11,
6,
5,
24,
-28,
-82,
12,
8,
35,
39,
13,
-13,
-41,
-16,
-24,
-6,
56,
-39,
4,
-32,
-9,
65,
0,
-13,
-52,
-43,
0,
-7,
-16,
-33,
-26,
32,
-31,
15,
22,
-19,
10,
-28,
22,
-38,
-47,
9,
-39,
22,
62,
38,
34,
-7,
10,
7,
19,
2,
35,
-36,
24,
30,
19,
-52,
38,
-5,
-15,
-45,
17,
1,
65,
9,
31,
-48,
30,
-11,
-8,
33,
35,
9,
-47,
-14,
-19,
-5,
54,
-9,
60,
-24,
-6,
-64,
-75,
8,
-8,
-30,
-23,
-25,
-29,
-52,
-14,
25,
-28,
-21,
38,
-85,
-57,
-9,
40,
24,
18,
23,
50,
8,
-3,
-32,
44,
50,
-22,
7,
22,
-22,
-63,
3,
-29,
-20,
-15,
-44,
45,
-40,
-32,
-2,
-5,
-22,
40,
-48,
54,
-6,
20,
22,
-31,
-8,
-47,
20,
-7,
3,
1,
26,
28,
-52,
42,
-21,
5,
-77,
5,
85,
-5,
0,
23,
4,
44,
0,
-65,
1,
-6,
8,
-6,
-54,
40,
-11,
17,
-22,
-6,
82,
-7,
30,
18,
22,
33,
-32,
-6,
-14,
-30,
39,
-32,
3,
36,
-17,
-7,
85,
17,
2,
52,
13,
46,
-1,
44,
-42,
38,
-7,
54,
42,
-10,
26,
-36,
-3,
3,
-10,
14,
-29,
10,
34,
-41,
-27,
12,
14,
14,
-4,
0,
18,
-1,
-4,
-17,
42,
-18,
-18,
26,
37,
6,
-9,
-21,
-17,
-41,
-7,
-9,
23,
7,
-20,
18,
32,
0,
-10,
-39,
18,
1,
11,
-28,
6,
-22,
20,
-18,
40,
11,
18,
-11,
26,
6,
10,
11,
-15,
-21,
0,
-33,
61,
-39,
24,
-6,
-1,
-37,
2,
-4,
36,
16,
3,
-29,
-7,
33,
-23,
17,
32,
2,
-8,
41,
-36,
13,
7,
30,
-16,
40,
17,
-14,
-21,
15,
48,
21,
-24,
65,
-25,
-6,
13,
-9,
-12,
0,
30,
26,
-28,
-5,
1,
-1,
8,
27,
25,
47,
30,
1,
-41,
-78,
-19,
66,
-10,
18,
1,
28,
0,
-36,
-23,
9,
-8,
-33,
3,
-35,
-5,
-10,
-31,
32,
8,
-6,
-4,
4,
42,
41,
-51,
3,
-23,
-45,
-56,
-5,
-24,
-40,
20,
21,
14,
2,
-14,
-11,
-38,
-3,
-6,
-14,
12,
2,
-25,
74,
-29,
-46,
31,
-8,
-14,
-28,
-36,
-33,
24,
-32,
34,
38,
-3,
15,
30,
8,
20,
-20,
79,
-30,
44,
17,
-8,
-7,
-1,
1,
5,
29,
36,
3,
-27,
44,
6,
-3,
-29,
-9,
-24,
17,
-43,
-10,
-68,
45,
39,
-13,
35,
-40,
-34,
44,
-67,
28,
25,
-8,
-70,
-53,
41,
-29,
20,
-8,
2,
-33,
1,
-29,
52,
-16,
-5,
10,
17,
-40,
-8,
1,
11,
13,
34,
68,
-8,
-40,
-4,
1,
-48,
-15,
-28,
-9,
26,
35,
-23,
33,
77,
-64,
39,
34,
-8,
16,
29,
-28,
41,
37,
-47,
-41,
15,
-6,
5,
14,
30,
-30,
-41,
-15,
31,
19,
-16,
2,
-17,
-4,
-30,
48,
25,
22,
35,
-20,
-41,
-2,
0,
-30,
-5,
9,
25,
-9,
7,
43,
-5,
-51,
46,
13,
-60,
18,
-4,
-34,
-31,
-20,
-21,
31,
16,
12,
20,
34,
34,
19,
-13,
-5,
45,
-54,
-11,
-20,
-9,
60,
-24,
10,
22,
36,
2,
-6,
15,
-13,
-30,
34,
-10,
-11,
-38,
-34,
-6,
0,
-30,
-21,
-45,
51,
15,
-10,
6,
38,
-14,
30,
-1,
17,
-29,
30,
38,
16,
42,
14,
-32,
18,
26,
34,
10,
-24,
-5,
-30,
-38,
-38,
-11,
27,
4,
1,
-39,
-3,
18,
-13,
-13,
-36,
-3,
-42,
-6,
20,
-10,
33,
-2,
22,
-11,
-34,
10,
-10,
-19,
4,
-23,
15,
-10,
-8,
-23,
1,
41,
4,
69,
-26,
-30,
35,
13,
-19,
-33,
72,
-36,
-10,
-14,
-12,
30,
-81,
17,
-23,
35,
-56,
32,
4,
-19,
12,
-12,
19,
6,
-8,
26,
-61,
-23,
3,
-8,
7,
60,
-20,
-17,
-29,
68,
-13,
-81,
38,
45,
-12,
24,
-7,
-12,
49,
1,
-11,
-20,
-32,
-8,
8,
-5,
33,
-5,
5,
9,
-17,
5,
11,
-46,
43,
62,
-12,
53,
-31,
-11,
-29,
35,
32,
44,
-8,
18,
43,
22,
29,
8,
-5,
-8,
8,
-50,
25,
25,
-23,
-10,
-25,
40,
-14,
16,
-4,
22,
19,
-20,
-4,
1,
-8,
22,
-32,
9,
-33,
19,
-24,
5,
0,
33,
18,
-38,
-50,
-3,
12,
-4,
-14,
-9,
-9,
16,
-12,
-25,
53,
-17,
15,
-15,
4,
-48,
20,
-74,
-2,
-26,
13,
-27,
8,
-11,
10,
6,
-24,
-21,
-10,
3,
6,
16,
-19,
-34,
-9,
1,
-15,
-24,
-28,
-16,
-38,
10,
-9,
-20,
30,
-5,
8,
23,
-44,
8,
-17,
-9,
-9,
-67,
-21,
10,
39,
-75,
-24,
-38,
-7,
11,
11,
-9,
-56,
-20,
0,
20,
-23,
-10,
-40,
17,
20,
-4,
-19,
2,
36,
-29,
-49,
16,
-24,
15,
8,
-3,
-66,
-32,
32,
33,
10,
-9,
-35,
-8,
20,
-40,
-10,
46,
-19,
-37,
11,
-1,
-6,
27,
-23,
7,
33,
-18,
10,
0,
30,
11,
-44,
59,
-18,
6,
5,
56,
38,
49,
34,
-40,
-32,
-9,
-43,
22,
-48,
27,
0,
69,
-61,
4,
-13,
4,
29,
-1,
7,
4,
-6,
22,
34,
28,
-4,
-2,
-5,
-23,
21,
-53,
5,
59,
-1,
49,
6,
-32,
34,
-5,
-29,
-35,
3,
-14,
2,
-18,
19,
-45,
0,
-8,
2,
-31,
-64,
64,
50,
-23,
-25,
70,
-28,
-1,
-32,
17,
9,
-8,
-12,
-19,
-3,
-41,
-4,
15,
-8,
27,
7,
15,
-1,
-40,
-40,
4,
-13,
-36,
-18,
-38,
-24,
8,
28,
41,
-74,
-21,
-33,
-49,
16,
5,
-16,
50,
-15,
-7,
1,
-30,
66,
0,
3,
-32,
-52,
-52,
12,
6,
-29,
16,
0,
-2,
-1,
64,
-16,
12,
-14,
-39,
40,
42,
-11,
0,
-27,
10,
-57,
-32,
18,
41,
12,
-22,
13,
-16,
6,
0,
-5,
91,
0,
22,
-27,
-9,
34,
-22,
-7,
6,
-4,
-19,
0,
-66,
8,
50,
-7,
21,
32,
-41,
-29,
-61,
5,
37,
29,
-21,
-8,
4,
-19,
48,
0,
-17,
-3,
20,
-46,
-2,
23,
32,
7,
32,
26,
15,
-25,
2,
39,
-11,
-22,
44,
-9,
-17,
-16,
-85,
10,
-56,
-22,
16
] |
Sharpe, J.
On September 23, 1927, the plaintiffs offered in writing to purchase lot 352 of Pulaski Park subdivision in the city of Detroit from the defendant Nathan Kousin for the sum of $8,500, $3,000 of which was to he paid by an assignment of their equities in lot 949 in Broad Acres subdivision No. 4 in Macomb county, and what is spoken of as the “Belmont property” in Hamtramck, the balance of $5,500 to be paid at the rate of $45 per month. The agreement recited that, as an evidence of their good faith, the plaintiffs therewith deposited with Kousin the land contracts held by them and assignments thereof for the purchase of said properties. The defendant Kousin attached an acceptance of this offer, acknowledged the receipts of the assignments and land contract, and agreed to convey in accordance with the terms and conditions thereof.
There is much confusion in the record as to when certain things were done, but it appears that after this instrument was executed the defendant decided that he did not want the assignment of the contract for the purchase of lot 949, on which but $200' had been paid, and that he detached and destroyed the same; that at his direction the scrivener changed the amount of the down payment from $3,000 to $2,800, and the amount thereafter to be paid from $5,500 to $5,700, and that this change was assented to by plaintiffs. Apparently by inadvertence, plaintiffs'’’ offer to assign this contract as a part of the down payment on the purchase price was not eliminated therefrom.
On the same day Kousin and his wife executed a contract to sell to plaintiffs said lot 352 for the sum of $8,500, of which $2,800 was acknowledged to be then paid. This contract was also signed by plaintiffs, but a copy thereof was not delivered to them. A dwelling was then in process of erection on this lot, and was to be completed by Kousin, after which a copy of the contract was to be delivered to plaintiffs. The contract provided that the first monthly payment should be made by plaintiffs “30 days after house completion.” The building was completed about November 1st, but Kousin refused to deliver the copy to the plaintiffs. His claim then was that they had represented to him that J. H. 0 ’Hara Company, the vendor in the Belmont property contract, would reduce the monthly payment provided for therein from $95 to $85 per month, and that it had refused to do so. Plaintiffs deny that this representation was made by them.
At the time the contracts were executed, there was money due on the O’Hara contract and for unpaid taxes, and plaintiffs gave Kousin their note for $150, payable in 60 days, to make payment thereof. It also appears that Kousin thereafter exercised acts of ownership over this property, and treated the occupants therein as his tenants.
On December 5th, ail attorney representing plaintiffs wrote Kousin, requesting performance. Kousin then mailed to plaintiffs the O’Hara contract and assignment thereof. In the meantime, the O’Hara company had instituted proceedings to recover possession of the Belmont property, and a judgment of restitution was entered by the circuit court commissioner on December 17th, on which a writ of restitution was issued and the O’Hara company put in possession on January 20,1928. The plaintiffs were made defendants in this proceeding, and the record discloses that a plea of “not guilty” was entered. Kousin was served with notice of the judgment before the time for payment had expired.
"While these proceedings were pending, the attorneys for the parties endeavored to effect a settlement between them. On December 20th they met at the office of plaintiffs’ attorney. A contract had been prepared by him. It contained a recital that $2,800 had been paid on the purchase price of lot 352, and that $5,700 was yet due thereon. Kousin refused to sign it unless the down payment was fixed at $2,800 and he be given the assignment of lot 949.
On January 11, 1928, plaintiffs filed the bill of complaint herein, praying for specific performance of the agreement of September 23d. In the meantime, Kousin had sold lot 352 to the defendants Tony Wolosyn and his wife. They were made parties by order of the court. After hearing, the court dismissed the bill and the cross-bill of the Wolosyns, holding that plaintiffs’ remedy against Kousin was in an action at law. The rights of the Wolosyns had been terminated by forfeiture. Plaintiffs appeal.
The offer of plaintiffs to purchase and its acceptance by Kousin constituted a valid and enforceable contract between the parties thereto. Under its terms, as modified by the change in the amount of the down payment, it was the duty of Kousin to deliver to the plaintiffs the land contract prepared at the same time, and in which the amount of the down payment was correctly stated, when the building then being constructed on lot 352 was completed. It is conceded that it was so completed on or about November 1st. Demand therefor was made on December 5th. Delivery should then have been made unless Kousin’s claim of misrepresentation avoided the contract. We are not so impressed. While plaintiffs expressed the opinion that, if the sums due on the contract were then paid, the O’Hara company would consent to reduce the monthly payments from $95 to $85 per month, it seems clear that Kousin did not rely thereon. Mr. Muller, who acted for both parties in the deal, testified that when the matter was under discussion he “went to O’Hara and spoke to them. They say if they get their hack payment they reduce it and then Kousin says all right.” It also appears that at the conference held on December 20th, at which a settlement was attempted, no such claim was insisted on by him.
It is also urged that the preliminary agreement is unenforceable because not signed by Mrs. Kousin. She executed the land contract on the same day pursuant thereto, and left it with her husband for delivery. If delivered, as we think it should be, she will be bound thereby.
After the preliminary agreement was entered into and the contract for the Belmont property assigned to Kousin and he assumed ownership and control, over the property, the obligation rested upon him to protect his interest therein 'against the foreclosure proceeding brought by the 0 ’Hara company. Plaintiffs had given him their note for $150 to cover payments on the contract then due. Kousin did not use its proceeds for that purpose as it was expected he would do. Neither did he return this note to plaintiffs until January 18, 1928, after the time for redemption under the foreclosure proceedings had expired.
The plaintiffs are entitled to a decree for specific performance by delivery of the contract executed on September 23, 1927. It appears, however, that the building erected violates the building code of the city by not leaving a sufficient space between it and the adjoining lot. The contract prepared by plaintiffs’ attorney, and which Kousin was urged to execute on December 20th, corrected the description in this respect. As plaintiffs were at that time willing to have such correction made, the decree may so provide.
An accounting must be had. The defendant Kousin is chargeable with the fair rental value of the building on lot 352 after November 1, 1927, less any sums paid by Mm for insurance, taxes, or necessary repairs, if any, on the same. Tbe plaintiffs are chargeable with the montlily payments which have accrued on the contract since that date. If counsel can agree upon these amounts, the account may be stated in the decree. If not, there will be remand for its ascertainment. The appellants will recover costs.
Wiest, C. J., and Btjtzel, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
10,
49,
-8,
-30,
-41,
2,
-8,
47,
27,
-20,
-13,
-35,
-10,
89,
-1,
-5,
-3,
-13,
-1,
0,
0,
-61,
-17,
-20,
-9,
12,
1,
-31,
4,
37,
0,
40,
-19,
10,
9,
25,
21,
-32,
2,
2,
-3,
-13,
-19,
34,
18,
20,
22,
-29,
58,
-11,
13,
12,
59,
-14,
-36,
-12,
-21,
13,
22,
-8,
-60,
-13,
-1,
47,
23,
19,
68,
19,
23,
-9,
-28,
21,
21,
-22,
7,
22,
-39,
11,
10,
-54,
34,
22,
41,
11,
-46,
26,
19,
-8,
44,
9,
0,
-13,
13,
52,
45,
-11,
50,
26,
-44,
15,
-4,
3,
-28,
8,
-3,
35,
-14,
-23,
6,
30,
-14,
3,
63,
27,
-1,
34,
-7,
-25,
45,
8,
10,
-11,
-39,
-12,
-11,
31,
-58,
-1,
-19,
0,
42,
-33,
-3,
9,
-12,
8,
-36,
9,
3,
-2,
48,
16,
-34,
-41,
4,
14,
0,
-12,
-17,
-49,
-50,
-36,
0,
41,
3,
-30,
-8,
-23,
-5,
-28,
38,
-23,
3,
0,
-15,
5,
-38,
25,
18,
13,
5,
-17,
5,
-74,
43,
-9,
19,
4,
-2,
6,
21,
20,
23,
-53,
-9,
-41,
-13,
-3,
15,
2,
47,
-72,
-16,
3,
-30,
33,
-21,
-21,
-41,
31,
7,
-53,
-6,
-22,
-22,
-32,
25,
18,
59,
66,
-15,
3,
1,
-15,
-11,
21,
-5,
-10,
-1,
-32,
60,
-24,
-53,
28,
-15,
3,
47,
-2,
14,
-21,
-20,
6,
7,
58,
-11,
-38,
7,
32,
-15,
-6,
-30,
0,
-20,
18,
-17,
50,
-39,
-20,
1,
23,
-50,
20,
-63,
-1,
-5,
3,
10,
-10,
28,
23,
-37,
4,
-26,
13,
22,
-1,
0,
-38,
-32,
55,
-73,
21,
1,
38,
-56,
-17,
-9,
-8,
17,
15,
23,
-30,
0,
19,
46,
49,
3,
54,
-65,
14,
-7,
8,
12,
-21,
32,
-6,
5,
-45,
34,
-11,
-43,
13,
28,
-5,
21,
2,
-7,
1,
29,
14,
8,
-14,
9,
9,
-34,
-15,
-15,
19,
23,
-26,
13,
23,
-18,
74,
29,
-46,
24,
-15,
1,
-8,
38,
13,
16,
16,
-26,
-19,
28,
-46,
-38,
-23,
-9,
35,
27,
-7,
53,
31,
-17,
21,
-50,
-12,
-30,
-16,
-32,
8,
-30,
13,
52,
47,
13,
51,
32,
30,
26,
0,
-33,
5,
0,
-17,
-9,
59,
9,
40,
-69,
50,
1,
23,
-20,
-33,
-40,
47,
-10,
-15,
26,
43,
33,
14,
11,
-16,
-17,
9,
-46,
-23,
-10,
49,
47,
-82,
-24,
7,
-24,
-73,
25,
13,
-1,
40,
-55,
23,
7,
10,
15,
19,
-16,
-74,
-10,
-52,
-5,
-22,
15,
-24,
-7,
23,
23,
6,
5,
-31,
-17,
-45,
42,
13,
-47,
47,
-27,
32,
39,
-2,
53,
16,
-47,
-16,
-30,
-30,
-2,
32,
-6,
26,
-4,
-10,
-20,
7,
-8,
24,
41,
20,
27,
8,
25,
-5,
2,
-47,
46,
44,
11,
-65,
15,
-20,
-35,
34,
-13,
29,
9,
29,
-22,
50,
14,
-39,
20,
-54,
-20,
-11,
20,
-8,
-24,
7,
-37,
10,
-43,
-3,
-43,
-21,
-1,
24,
3,
-28,
-4,
21,
20,
-22,
-13,
27,
-5,
13,
-29,
-26,
20,
51,
2,
0,
-14,
-48,
-23,
8,
-4,
-20,
-23,
21,
3,
55,
53,
4,
57,
22,
58,
3,
-12,
-7,
2,
11,
69,
25,
-7,
-13,
12,
-24,
-23,
-27,
-5,
-57,
22,
21,
-5,
7,
4,
-24,
-11,
12,
12,
14,
-8,
7,
13,
8,
-16,
-59,
-22,
-38,
4,
-9,
47,
-62,
19,
14,
-18,
-10,
39,
-10,
60,
-5,
15,
-30,
3,
50,
-46,
5,
7,
-7,
-7,
-36,
-18,
-36,
-30,
15,
-20,
-30,
47,
-33,
-9,
57,
64,
12,
13,
23,
-10,
-45,
18,
-20,
33,
-11,
-17,
54,
30,
-7,
26,
0,
-75,
-44,
-47,
-15,
-49,
17,
17,
-32,
-29,
1,
-32,
-14,
2,
21,
14,
-32,
52,
-20,
50,
-16,
-28,
-10,
29,
22,
0,
2,
-69,
62,
-10,
-28,
28,
28,
86,
-25,
50,
-2,
-20,
0,
-33,
-6,
-45,
16,
-17,
-15,
-64,
-38,
-31,
-4,
-49,
-2,
29,
-38,
11,
-8,
26,
6,
20,
-31,
35,
-8,
-2,
16,
-24,
-31,
80,
-48,
21,
7,
-16,
25,
0,
-11,
-1,
30,
14,
33,
49,
18,
6,
13,
-45,
20,
30,
-55,
37,
-40,
-3,
29,
-27,
-2,
23,
-22,
20,
-5,
-3,
2,
-16,
2,
16,
39,
-4,
20,
-21,
57,
-31,
3,
-43,
5,
-30,
16,
-38,
3,
-30,
91,
14,
30,
-11,
-25,
22,
-24,
37,
-39,
16,
-39,
-6,
-18,
-23,
46,
14,
40,
2,
5,
8,
15,
-26,
-39,
-34,
-54,
-4,
13,
-4,
-25,
-31,
-41,
51,
29,
-33,
8,
-19,
-12,
2,
22,
49,
0,
-45,
0,
-30,
40,
-34,
32,
-34,
-23,
16,
-16,
62,
-41,
1,
-40,
-26,
12,
-46,
6,
24,
-24,
-10,
-7,
9,
-54,
-10,
-6,
7,
-35,
14,
-13,
10,
1,
70,
46,
-1,
-34,
1,
-4,
-43,
-23,
72,
10,
33,
-25,
-33,
19,
-21,
40,
2,
-8,
-64,
6,
22,
14,
-33,
13,
-13,
-29,
19,
-3,
-1,
7,
16,
-15,
12,
-3,
3,
15,
-23,
-33,
5,
-12,
-40,
1,
37,
-40,
-16,
37,
-13,
19,
37,
13,
-28,
25,
53,
-39,
-28,
29,
8,
51,
-2,
-26,
-47,
-30,
-50,
-48,
-1,
17,
-28,
21,
0,
-9,
-16,
-4,
52,
-23,
-33,
-12,
18,
-17,
-8,
-60,
25,
29,
33,
6,
-31,
9,
58,
28,
-26,
-24,
16,
-16,
-50,
2,
-41,
-18,
-27,
-20,
67,
-18,
-6,
53,
23,
-13,
-28,
-24,
4,
-30,
-10,
-4,
30,
21,
19,
9,
40,
13,
-16,
-7,
25,
39,
-1,
-12,
-11,
-32,
-21,
-55,
-104,
-29,
-38,
-29,
16,
23,
-8,
-21,
-18,
7,
4,
-37,
9,
43,
-25,
34,
16,
-1,
-23,
-8,
30,
1,
79,
-36,
-43,
-32,
32,
0,
10,
3,
-22,
12,
24,
-64,
-6,
19,
9,
-3,
17,
36,
-41,
-48,
-57,
-27,
-31,
-10,
43,
17,
-1,
-56,
20,
-13,
18,
15,
22,
17,
8,
-19,
-13,
2,
17,
-24,
38,
6,
-30,
-52,
33,
-32,
4,
24,
8,
6,
34,
12,
-40,
-17,
-6,
-20,
-14,
-9,
38,
-16,
-7,
-9,
-25,
-2,
-2,
15,
-19,
-3,
-16,
-24,
42,
-6,
16,
-49,
-18,
40,
58,
31,
-8,
18,
37,
-2,
-23,
0,
54,
-10,
-2,
36
] |
Sharpe, J.
Plaintiff, the owner of one share of stock in the defendant company, petitioned for mandamus to compel its officers to permit him to inspect and examine the books and statements of the corporation. Defendant seeks review by certiorari of the order of the trial court granting the writ,
Plaintiff’s right thereto is based upon the following provision in section 11, chap. 1, pt. 2, Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [50]):
“The books of every corporation containing its accounts shall be kept, and shall at all reasonable times be open in the city, village or town where such corporation is located, or at the office of the treasurer of such corporation within this State, for inspection by any of the stockholders of said corporation, and said stockholders shall have access to the books and statements of said corporation and shall have the right to examine the same in the said city, village or town or at said office.”
Before its enactment, this court had held that, under the common law, a stockholder in a corporation had the right, in a proper case, and for a proper purpose, to inspect the corporate records. Wood-worth v. Old Second Natl. Bank, 154 Mich. 459; Eldred v. Elliott, 161 Mich. 262. But such right was a qualified, and not an absolute, one. The duty devolved upon the stockholder to make it appear to the officers that he was actuated by motives that were lawful and proper, and that his purpose in securing the information was to subserve the interests of the corporation or his personal interest as a holder of corporate stock.
The provision in the statute above quoted contains no such limitation. This court must assume that the legislature was aware of the rights of the stockholder under the common law, and that its purpose in including this provision in the corporation act was to make some change therein. It cannot be said to be merely declaratory of the common law, for the reason that it omits the requirement in that law as to the duty devolving on the stockholder, as above stated, when making his request,
It is to be assumed that the request is made for a proper purpose; that the stockholder is acting in good faith and seeking thereby to protect his own interest or that of the corporation, and therefore his request therefor need not be accompanied by any statement of his purpose. The statute accords the right to him, and he is entitled to the privilege for the asking. See notes in 22 A. L. R. 24; 43 A. L. R. 783.
Thus far it may fairly be said there is substantial uniformity in the holdings of the courts. But when his request is denied, and he seeks mandatory relief, and the answer of the corporation sets up facts from which it appears that his purpose is not as above stated, but is inimical to the best interests of the corporation and its other stockholders, and these facts áre conceded, or established by proofs, the au-' thorities are much at variance as to the duty of the court to issue the writ.
The supreme court of Wisconsin (State, ex rel. Dempsey, v. Werra Aluminum Foundry Co., 173 Wis. 651 [182 N. W. 354, 22 A. L. R. 1]) has held that the writ will issue as a matter of course, but intimates that the stockholder may be prevented from using the information thus secured for an unlawful purpose. In Johnson v. Langdon, 135 Cal. 624 (67 Pac. 1050, 87 Am. St. Rep. 156), the right of the stockholder is held to be absolute, and that he cannot “be met with the defense that his motives are improper.” In Wilson v. Mackinaw State Bank, 217 Ill. App. 494, it was said that the right was absolute and did not depend upon any circumstance or condition except the ownership of stock. There are other decisions of similar import, although later cases in some of the same courts qualify the language used,
But the great weight. of authority sustains the rule that, while the right given hy the statute is absolute, mandamus is a discretionary writ, which will not be issued to enforce such right except for a just cause and a proper purpose. In Guthrie v. Harkness, 199 U. S. 148, 156 (26 Sup. Ct. 4, 4 Ann. Cas. 433), it was said:
“It does not follow that the courts will compel the inspection of the bank’s books under all circumstances. In issuing the writ of mandamus the court will exercise a sound discretion and grant the right under proper safeguards to protect the interests of all concerned. The writ should not be granted for speculative purposes or to gratify idle curiosity or to aid a blackmailer, but it may not be denied to the stockholder who seeks the information for legitimate purposes.”
In State, ex rel. Theile, v. Cities Service Co., 31 Del. 514 (115 Atl. 773, 22 A. L. R. 8), the authorities are reviewed at length by Chancellor Wolcott, and the conclusion thus stated:
“Whether, in any particular case, the writ ought to be granted, will, of course, depend on the facts of each case. All that we now decide is that the statute does not confer a right so absolute and unqualified in its terms that the court may no longer exercise its sound discretion when mandamus is prayed for as an aid to the enjoyment of the right. It is still permissible under the statute for defenses to be made to the petition for the writ.”
See, also, notes in 22 and 43 A. L. R., above referred to.
Mandamus is the proper remedy of a stockholder to secure such right. Leach v. Davy, 199 Mich. 378. It is “not a writ of right * * * and will not issue to compel an unlawful act, or to work an injustice.” Johnson v. Board of Supervisors, 202 Mich. 597, 600. The question presented, then, is this, Under the facts appearing in this record, was the plaintiff entitled to the writ!
The defendant in its answer to the order to show cause, verified by its vice-president and general manager, averred that the real owner of the share of stock assigned to plaintiff was one Louis Wojcik. The seventh paragraph thereof reads as follows:
“That as to the matters alleged in paragraph seven of said petition, this respondent says that one, Louis Wojcik, is, and has been for some time past, the principal owner and the editor of the Polish Daily News, the sole competitor of this respondent in publishing a Polish daily newspaper in the city of Detroit. That the said Louis Wojcik has interviewed numerous of the advertisers, whose advertisements appear in the issues of this respondent’s paper, and falsely stated to them that this respondent did not have the circulation it claimed to have; that it was losing money and it would only be a matter of time when he, the said Louis Wojcik, would own this respondent or put it out of business; and that they, the advertisers, were foolish in wasting their time in advertising in respondent’s paper, and made divers and false statements relative to this respondent corporation, to its paper, and to its business, and made threats to divers persons that he would ruin this respondent, and, as a part of his scheme so to do, this respondent shows that in the month of June or July in the year 1927, he induced one, Anthony Glowezewsld, to buy one share of this respondent’s capital stock, and to that end the said Anthony Glowezewsld approached one, Dr. Lazowski, and purchased from the said Dr. Lazowski one share of stock, and that the consideration therefor was paid to the said Anthony Glowczewski by the said Louis Wojcik.
“This respondent further shows that the said Louis C. Slay, alleged petitioner herein, was and is an employee of the said Louis Wojcik, and has been associated with him in business for some years in the Detroit Commerce Corporation and in other enterprises; and avers and charges the truth to be, that the said Louis C. Slay is merely a figurehead for the said Louis Wojcik, and that the said Louis Wojcik is' desirous of obtaining the information sought by the said Louis C. Slay for the purpose of using the same against the best interests of this respondent and of the stockholders, and of distorting the information obtained thereby for the purpose of unfair compétition with this respondent and with its business, and for the purpose of attempting to cripple this respondent and its stockholders, and that the information sought by this alleged petitioner is not sought in good faith, nor for the personal use of said petitioner, and that the furnishing of such information would be detrimental to the interests of all the stockholders of this respondent, but, as aforesaid, it is merely a blind to obtain such information to use in an unjust and unfair attempt to injure and damage this respondent and its stockholders. ’ ’
At the opening of the hearing, counsel for the defendant said:
“If the relator is willing to make it the sole issue, that is, that the motive for the obtainance of information is not relevant to the issue and that he has a right of inspection irrespective of motives or desires, then I am willing to proceed. If he is willing to admit that it does not make any difference what a man’s motives are, but that he has a right to inspect the books irrespective of any ulterior or improper motives.”
After some discussion, he further said:
“Your proposition is that no matter how detrimental to the Polonia Publishing Company your desire may be, it is absolutely material (immaterial).”
To which counsel for the plaintiff replied:
“Absolute, unless it appears we are going to perpetrate a criminal act.”
We must, therefore, accept the statements in the answer above quoted as expressive of the purpose of the plaintiff in seeking the inspection. It needs no analysis of the language used to conclude that siich purpose was entirely foreign to his status as a stockholder; that the privilege of inspection by him was not sought in good faith for the protection of the interests of the corporation, or of his own interest as a stockholder; and that he was not entitled to the writ.
The order reviewed is reversed and set aside and the petition dismissed, with costs to appellant.
Wiest, C. J., and Butzel, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
22,
-33,
79,
-30,
-5,
41,
12,
-19,
0,
5,
-17,
2,
34,
67,
37,
-2,
25,
52,
18,
6,
33,
-11,
0,
5,
-10,
-34,
1,
26,
-2,
-12,
-24,
-6,
-28,
-10,
-24,
27,
2,
-9,
-4,
0,
-1,
51,
55,
-28,
8,
-33,
17,
10,
14,
-38,
67,
40,
7,
-33,
-7,
7,
0,
7,
38,
9,
-30,
-10,
77,
30,
11,
42,
4,
-41,
23,
-24,
-56,
-29,
6,
-10,
44,
-26,
27,
22,
30,
-15,
0,
-14,
-3,
-71,
-82,
35,
1,
-1,
-17,
-5,
7,
-4,
-52,
-22,
37,
49,
1,
-29,
0,
29,
31,
32,
8,
-15,
19,
18,
-34,
-13,
-2,
-60,
-30,
-11,
12,
-1,
-6,
-18,
-51,
9,
36,
-29,
30,
43,
-13,
-17,
13,
3,
-5,
-57,
-33,
24,
-22,
-15,
-36,
34,
0,
-12,
-16,
-53,
-4,
-13,
-4,
31,
22,
2,
14,
17,
-42,
26,
-8,
-14,
24,
20,
8,
11,
0,
-15,
-50,
-9,
56,
-20,
6,
44,
2,
-19,
-29,
47,
-10,
-25,
-24,
51,
-19,
61,
-43,
-13,
-12,
-34,
-18,
0,
-40,
-6,
14,
22,
25,
-2,
-51,
-3,
36,
11,
19,
14,
39,
-8,
-8,
-4,
0,
11,
-19,
56,
29,
-50,
12,
-30,
-15,
-22,
7,
-50,
2,
3,
-38,
25,
-9,
66,
-29,
-27,
-10,
31,
-7,
-68,
12,
13,
9,
9,
19,
-29,
8,
43,
15,
13,
-26,
-14,
8,
7,
8,
15,
-53,
20,
33,
-17,
61,
-1,
-58,
1,
8,
17,
24,
-36,
31,
20,
-20,
30,
12,
-17,
-8,
-6,
-8,
-62,
-53,
-16,
55,
-23,
2,
66,
-31,
19,
9,
-56,
44,
29,
-24,
7,
-39,
7,
20,
-6,
-25,
-15,
36,
-57,
-49,
-39,
23,
-38,
-23,
-1,
-35,
-1,
1,
-17,
-15,
45,
-15,
20,
-23,
10,
18,
17,
12,
-33,
-9,
-32,
-20,
-14,
-5,
17,
22,
5,
-73,
-8,
-18,
-52,
56,
44,
-27,
-50,
23,
-48,
2,
48,
-9,
1,
16,
4,
3,
17,
-25,
5,
81,
-75,
59,
-35,
-19,
-7,
26,
20,
10,
27,
30,
-15,
8,
-1,
9,
-5,
31,
-22,
-15,
-12,
-54,
-18,
0,
-30,
-12,
34,
9,
61,
-1,
-5,
7,
-22,
-51,
5,
53,
-3,
22,
4,
-1,
1,
-67,
-22,
0,
9,
10,
15,
10,
-7,
0,
-30,
-3,
-33,
-8,
29,
-2,
-54,
52,
-44,
-18,
-7,
-1,
-19,
-24,
3,
-53,
42,
8,
45,
-75,
-27,
18,
13,
25,
-23,
-33,
8,
-35,
28,
-1,
-35,
31,
22,
34,
60,
-10,
34,
16,
16,
-41,
-18,
19,
-31,
73,
-34,
-2,
-31,
-37,
-21,
57,
-25,
-23,
58,
-9,
-24,
-57,
-15,
20,
-40,
-20,
-9,
-24,
-21,
33,
-40,
-32,
-16,
-31,
53,
11,
-13,
24,
-35,
35,
-19,
-8,
7,
41,
-26,
2,
30,
53,
-11,
20,
1,
36,
3,
-33,
18,
7,
28,
11,
-77,
55,
8,
-34,
-3,
-40,
-16,
-18,
-19,
-27,
20,
19,
-43,
17,
47,
2,
18,
-43,
9,
-49,
-8,
33,
15,
10,
-1,
25,
-3,
4,
14,
3,
-18,
-6,
28,
27,
-1,
11,
18,
8,
-4,
-22,
-30,
37,
59,
-23,
-26,
28,
16,
-24,
46,
-42,
36,
1,
-16,
85,
-37,
-46,
-18,
-50,
9,
31,
33,
13,
-13,
-7,
40,
13,
2,
23,
5,
33,
-20,
1,
-29,
-24,
0,
17,
15,
-20,
-14,
40,
11,
-2,
18,
-36,
11,
43,
12,
24,
-23,
36,
5,
-2,
31,
-47,
-6,
-4,
-45,
14,
-2,
-30,
70,
-9,
-17,
-5,
-5,
11,
28,
-14,
32,
30,
6,
1,
-20,
24,
9,
10,
-12,
-8,
-5,
-19,
-23,
27,
-36,
-6,
-55,
8,
-23,
9,
-7,
24,
15,
6,
26,
-54,
16,
-3,
-60,
-54,
21,
-14,
51,
-11,
-32,
-11,
-21,
-22,
-12,
-22,
-15,
-27,
-24,
12,
-43,
1,
1,
-2,
-29,
16,
-25,
41,
43,
-21,
30,
-12,
-49,
8,
6,
31,
-24,
15,
0,
-2,
5,
-40,
-42,
49,
-20,
58,
12,
-19,
50,
25,
22,
-36,
9,
23,
-3,
-17,
22,
31,
7,
36,
-12,
25,
-61,
-34,
74,
58,
-11,
-44,
-1,
64,
-39,
57,
14,
0,
4,
-18,
-33,
2,
-26,
19,
0,
-48,
-6,
-8,
11,
37,
-39,
35,
24,
17,
-35,
9,
-37,
-43,
-20,
-25,
-12,
4,
18,
42,
-31,
-17,
17,
28,
16,
5,
-39,
-87,
45,
-2,
2,
50,
-65,
-32,
-5,
-13,
-18,
-7,
40,
41,
15,
17,
-55,
49,
-41,
-20,
82,
8,
-42,
-34,
-16,
2,
-53,
-21,
-37,
22,
18,
0,
-59,
-29,
-22,
42,
24,
24,
11,
-27,
-12,
6,
28,
-19,
66,
40,
19,
33,
25,
19,
49,
-46,
4,
-26,
-67,
18,
8,
16,
-35,
0,
18,
-29,
-39,
-11,
-11,
19,
-33,
2,
5,
-39,
-7,
14,
27,
57,
16,
-26,
-24,
3,
7,
-14,
-42,
-47,
20,
25,
45,
20,
-22,
-32,
-66,
-15,
15,
29,
-46,
4,
-34,
25,
-2,
-14,
-13,
17,
-1,
12,
4,
9,
-5,
-18,
5,
-48,
-23,
15,
-28,
-20,
7,
-20,
-23,
-6,
-21,
3,
18,
-42,
33,
-5,
5,
0,
45,
17,
-24,
-23,
17,
24,
-43,
6,
-16,
-7,
-29,
2,
2,
-32,
4,
0,
-4,
-46,
1,
0,
-12,
11,
31,
-27,
-8,
-8,
-42,
62,
-39,
1,
-4,
-5,
39,
-24,
5,
34,
-6,
-70,
-31,
13,
28,
-2,
105,
-31,
-7,
-46,
9,
13,
-27,
-34,
22,
-45,
29,
0,
-48,
-34,
48,
31,
-8,
42,
18,
-24,
4,
-10,
9,
65,
-19,
-4,
-9,
-16,
0,
-11,
-32,
5,
81,
0,
33,
27,
-24,
-7,
65,
29,
-13,
-20,
-22,
-30,
44,
7,
-24,
16,
21,
32,
24,
0,
9,
-5,
19,
49,
22,
28,
9,
5,
-50,
31,
-9,
12,
-11,
28,
-65,
22,
22,
20,
-32,
-24,
33,
-25,
-21,
-24,
-4,
-2,
-19,
-13,
-61,
-29,
33,
-19,
28,
-44,
-39,
-16,
10,
-15,
53,
34,
33,
-40,
-22,
34,
-25,
-14,
-49,
15,
-8,
35,
4,
-1,
61,
-38,
-26,
51,
12,
8,
-37,
18,
51,
-25,
12,
-10,
-5,
15,
-14,
22,
42,
-15,
6,
-5,
19,
-14,
40,
29,
30,
26,
-8,
-4,
-4,
-22,
-31,
-18,
36,
-59,
14,
1,
-23,
42,
67,
-7,
-55,
26,
44,
-99,
-2,
-8,
24,
-46,
30
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.